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Mr. Mark Field: I would be interested if my hon. Friend could go into some detail about this. I am also concerned that a "think" test will be applied rather than any of the other tests that would apply to similar civil or,
indeed, criminal proceedings. Can my hon. Friend go into detail about other legislation in which such a test is believed appropriate before draconian action is taken?
Mr. Grieve: I am grateful to my hon. Friend for his intervention. I do not claim great expertise in reading legislation, except possibly in relation to this Bill. I simply believe that it is rather an unusual term to use in relation to an administrative judicial process for the recovery of property against individuals.
Coming back to my analogy about being run over by a motor car, if I think that the driver was negligent, I may choose to initiate proceedings. I suppose that is where the Government's notion of the director "thinking" comes from. I certainly do not need to do more than that—whether I am justified in thinking that, only the judicial process may expose. There are a number of safeguards as the process unravels, so that if I have no case, it may become increasingly difficult to sustain it.
The thing about part 5 is that these are not ordinary civil proceedings—they are heavily weighted in favour of the state. The state has power: it can put in the receivers and it can confiscate and hold the assets, pending final determination. The state is given a range of weapons—for, I might add, perfectly valid public policy reasons—but it is important that they are not deployed without good and sufficient reason. That is why to change the test to one of "reasonable grounds to believe", thereby allowing for the possibility of review or criticism if proceedings are initiated when there could not have been said to have been a reasonable ground to believe, would be an appropriate safeguard to ensure that the assets that are pursued and the people who are roped along in the process are not unfairly or unjustly victimised. As the Minister acknowledged in Committee, the legislation will work if the public see the recovery of assets and the targeting of individuals who are palpably suspected of criminality, but who have never been nailed down through the ordinary criminal process. If people run to the courts and disappear off to Strasbourg, complaining that their rights to privacy, family life and property are being interfered with by an all-encompassing state agency with enormous powers—that is what we are creating—our process of law and the House that introduced such legislation will be brought into disrepute. It is precisely that outcome that I want to avoid.
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I am sure that the Minister's views and mine are absolutely identical when it comes to the legislation's desired outcome. However, I am anxious that, in their overwhelming desire to leave no loopholes by which devious criminals might suddenly escape, the Government have done rather more than close them. They have created a one-way system from which, potentially, there is no exit for the innocent until a lot of damage has been done. Amendment No. 59 goes a long way towards dealing with that issue and I commend it to the House.
Amendment No. 61 would amend clause 252, which, as I have said, states:
- "Proceedings for a recovery order may be taken by the enforcement authority in the High Court against any person who the authority thinks holds recoverable property."
- "No proceedings may be taken by the enforcement authority in relation to property where there has been a previous positive finding in relation to a defendant in confiscation proceedings pursuant to section 6 or 162 and the property that was the subject matter of the proceedings under section 6 or 162 includes the property sought to be recovered under this Part."
The House must ask itself whether it thinks it right in principle that it should be even theoretically possible for the Assets Recovery Agency to tell a person pursued in confiscation proceedings in relation to a particular asset—where the burden of proof is reversed and the asset is excluded from confiscation at the end of that process because the tests were not followed or did not succeed—"Well, we didn't get you that way, but we think we might get you by the civil recovery route." It will be remembered that the civil recovery route will be aimed at the asset, not the individual. I find that highly questionable.
As I said, I am conscious that the amendment tabled in Committee was defective. It had the unintended consequence of preventing civil recovery in a failed confiscation, even though other assets might exist that were not the subject of the original confiscation proceedings. That is why I have worded amendment No. 61 in a slightly convoluted fashion.
Mr. Garnier: I understand precisely what my hon. Friend is saying, but I wonder whether he can answer this question, so that I can appreciate the strength of his argument. Would not a court faced with a second claim of the type he has just described consider that there had been an abuse and strike it out on that ground, and of its own volition deal with the evil that he has identified through amendment No. 61? Perhaps he has considered that possibility and dismissed it, but I mention it now so that we can include it in our discussion.
Mr. Grieve: My hon. and learned Friend makes a good point. I find it difficult to say whether that might or might not happen, although my opinion was that there were no grounds for believing that it would. We are creating a statutory framework that, in many respects, overrides ordinary principles of criminal and civil law. There is nothing to prevent anyone from embarking on such a double system of recovery. If Parliament thinks that that should not be allowed, it would be wise to spell that out. I am mindful, however, that the area under discussion is not free of pitfalls. I do not wish to create loopholes and will listen carefully to the Minister's response to an amendment that is a variation on a point already raised in Committee.
I do not think that we should rely on the court's ability to strike out proceedings. For example—this may be an argument in the Government's favour—prosecuting someone who is not convicted does not prevent one from bringing civil proceedings for interference with goods if
one's house has been burgled. The principle of a civil criminal recovery system is not one with which I take issue.The problem is that we do not have such a civil criminal recovery system in this case. We are instead creating two parallel administrative law recovery systems, which are hybrids between the civil and criminal. Rather different tests apply to each. One test is onerous because a person is pushed into it if he has certain previous convictions that mean that he can be defined as having a criminal lifestyle. The other is a slightly more difficult test by which the Assets Recovery Agency may have a go at a Mr. Clean who has no previous track record of criminality.
All sorts of choices are open to the director, and the House would be wise to be aware that applying the usual test of whether the system is criminal or civil has little relevance. We are creating an administrative law recovery system for the state against individuals and assets that have a taint attached to them. We must be extremely careful about that, and I shall be grateful to hear the Government's response to amendment No. 61. They may think that the matter can be approached in another way, and I believe that it might be approached through guidelines, so I have a slightly more open mind on amendment No. 61 than on some of the others that we have debated tonight.
I have been on my feet for rather longer than I had hoped, but I had many amendments to put to the House. I hope that we may have a sensible discussion on those and on the Government amendments. In conciliatory mode, I am mindful that the Government are tabling many amendments that address comments and issues raised in Committee. I shall respond further to those amendments in due course, but I am grateful to the Minister for the way in which he has addressed those matters.
Norman Baker: I shall focus on the human rights aspect with which the hon. Member for Beaconsfield (Mr. Grieve) began. I agree with much of what he has said. I hope I do not flatter him too much by saying that if the rest of the Conservative party conducted itself as he does, it might be doing better in the opinion polls and have more seats in the House. He is welcome to use that in his election literature if he wants.
Mr. Hawkins: He can use it against the Liberal Democrat candidate.
Norman Baker: We are probably too far behind to win Beaconsfield anyway.
The impact of the Human Rights Act 1998 is important. I was concerned by the Minister's response in Committee when I asked about the Bill's compatibility with the Act. The Minister referred to that tangentially earlier today. In Committee, he said that the proposal then under discussion was compatible with the Human Rights Act because the Act is to be read in conjunction with the Bill. However, I believe strongly that each piece of legislation should in itself be consistent with the human rights legislation, not least because a future Government—run not by the hon. Member for Beaconsfield, but perhaps by some of his colleagues—might repeal the Human Rights Act. Each piece of legislation must, therefore, of itself be consistent with the Act.
I raise that point because of comments made by the Joint Committee on Human Rights of which I am a member, as is the hon. Member for Redcar (Vera Baird), who is in the Chamber. The hon. Member for Beaconsfield quoted from the Committee's 11th report, which was agreed unanimously by all three parties and both Houses. There was no dispute in the Joint Committee as to the direct language used about the clauses that we are considering.
I shall not read out the whole report, but shall select some portions to which I hope the Minister will respond later. Paragraph 20 of the report states:
- "If domestic law classifies a matter as criminal, it will be treated by the European Court of Human Rights as criminal under the ECHR, automatically attracting all the safeguards accorded to defendants in criminal proceedings."
- "If domestic law classifies the proceedings as civil, that carries relatively little weight under the ECHR. The reason is that giving domestic classification any real weight would make it too easy for a State to deprive people of the protection of appropriate standards of criminal procedure, merely by reclassifying matters as civil. We are therefore not swayed by the decision in the Bill to characterize the proposed new regime as civil."
- "Taking all these matters into account, we consider that the Government's confidence that the civil recovery process would be treated as civil, rather than criminal, for ECHR purposes is not justified."
- "The Government accepts that, if it is wrong on the classification issue, the civil recovery provisions would violate ECHR Article 7 because of their retrospective operation."
I turn now to the arguments about the balance of probabilities although I do not want to repeat points made in Committee. The Bill's powers are far reaching. An appropriate balance must be struck. We must ensure that criminals and those who benefit from the proceeds of crime are properly apprehended and charged or have their assets seized, as appropriate; but it is equally important not to do injustice to innocent people by setting standards and thresholds that are so high that they cannot convince the relevant authorities of their innocence.
I am not sure that the Government have got that balance right, especially given my comments and those of the hon. Member for Beaconsfield about the human rights implications. That is why I draw the Minister's attention to our amendment No. 201, although I freely confess that it would introduce a novel form of safeguard. It would replace the words
- "decide on a balance of probabilities"
- "give the benefit of the doubt to the person whose property is the subject of these proceedings in deciding".
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