Proceeds of Crime Bill

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Norman Baker: I hear what the Minister says about not intending to issue further guidance. However, if it subsequently transpires, following enactment of this legislation, that further guidance is required, how will that be undertaken? What steps will be taken to ensure that Parliament is made aware of such guidance?

Mr. Ainsworth: The hon. Gentleman raises an important point. We are setting up an agency that has no history in this country: it is a new venture. However, if a departure from the assurances given to the Committee was shown to be necessary by an unforeseen circumstance in the future, we would have to ensure that Parliament was given full oversight of any further measures. In relation to the current Bill, although this will not necessarily be the final document, guidance will be along the lines provided to the Committee, and will not allow the Secretary of State to intervene in the working of the agency and give directions, which, effectively, would result in a politically directed agency pursuing the proceeds of crime. All aspects of the agency must be free from direction and independent.

First, we want to ensure the primacy of the pursuit of the criminal through the normal processes of the law, as that is the most important element in reducing crime in this country, and the pursuit of the proceeds of crime must always be secondary to that. Secondly, guidance must be given as to the hierarchy that should be used for the different powers in the Bill. If someone is being pursued through the criminal courts, and is being convicted of an offence, confiscation should be the normal route by which the proceeds of crime should be sought. Only if that does not happen should we start considering civil recovery and, if that is not a possibility, we should examine the taxation of the proceeds of crime. It is sensible to give the director such guidance and not allow him to be a free agent in how he uses the powers that we are giving him and the order in which he chooses to pick up the different tools with which we have provided him.

Stephen Hesford (Wirral, West): Does the Minister agree that the Secretary of State is best placed to hold the ring between prosecuting a crime and the proceeds of crime? That is why the measure is important.

Mr. Ainsworth: Absolutely. The director will be accountable to Parliament for his decisions. I do not know whether the hon. Member for Beaconsfield has left the Committee, but he referred to point 5 in the guidance note and said that it applied to all crime, not only to acquisitive crime. The agency will not be concerned with crime that does not involve acquisition. It will not be involved in anything other than proceeds, so acquisitive crime will be the maximum area with which it will be concerned. I do not know whether that paragraph is problematical. From first reading, I do not think that it is, but I am happy to consider it and make absolutely certain that it is not a problem. Point 5 states:

    ``Where a criminal conviction has been obtained, the Secretary of State considers that the use of criminal confiscation is a method of targeting the proceeds of crime which will best contribute to the reduction of crime.''

Given that the proceeds of crime are being targeted, we are talking about acquisitive crime.

Mr. Grieve: I apologise that I was not in the Room when the Minister first drew attention to that point. I was called out for a moment. I am grateful to him for his reassurance. It goes some way towards meeting my anxiety.

Mr. Ainsworth: Given that response, I invite the hon. Gentleman to withdraw the amendment.

Mr. Alistair Carmichael (Orkney and Shetland) rose—

The Chairman: Does the hon. Gentleman want to speak?

Mr. Carmichael: If the amendment has been withdrawn, I cannot make a contribution to the debate.

The Chairman: The amendment has not yet been withdrawn.

Mr. Carmichael: Alarmingly, I find myself in agreement with a great deal of what has been said from the Conservative Front Bench. However, I would be seriously worried if Conservative Members ever tabled an amendment that reflects their rhetoric. There is a serious point to be made about setting up arm's-length agencies. The amendment would weaken parliamentary accountability. If the requirement were for the director merely to take account of—not necessarily to follow—the mandatory power, rather than the discretionary power, an element of parliamentary accountability would be lost. That is a more important principle than second-guessing what may or may not be contained in future guidance that may be given to the director of the agency.

Mr. Grieve: The hon. Gentleman's comments have considerable force and one of the purposes of Standing Committees is that probing amendments are tabled to elicit explanations. As that process proceeds, only a small minority of amendments may be put to the vote. I am grateful to the Minister's explanation because there are other parts of the Bill under which what type of crime will be bitten on in the confiscation process can be examined in more detail. However, in light of his reply, I am happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mr. Wilshire: I draw attention to a couple of points that could bear a little scrutiny so that we know the Minister's thinking. The point that I made earlier becomes relevant for the first time in relation to subsection (3). It states:

    ``The Director may do anything (including the carrying out of investigations)''.

I flag up what I said earlier: it might be unsuitable for certain employees—and, perhaps, some staff who are contracted to provide services—to be involved in the carrying out of investigations. The Government might wish to clarify what the director can and cannot delegate, because skilled specialists ought to carry out such sensitive activities, rather than anyone whom the director might engage.

I also wish the Government to reflect on a more important point. Subsection (4) states that

    ``subsection (3) does not allow the Director to borrow money.''

I understand why that point has been made. I could discuss the issues that it raises at length, but I do not intend to do that now. Later, however, the Committee might need to debate the point.

Subsection (4) has relevance to subsection (2), which states:

    ``In exercising his functions as required by subsection (1) the Director must—

    (a) act efficiently and effectively''.

I am surprised that the word ``economically'' has not been included in subsection (2)(a), particularly as the director is not to be allowed to borrow money, because if you are not allowed to borrow money, the pressure to act economically becomes overwhelming.

11.45 am

The Chairman: Order. Nobody has said that I cannot borrow money. I have never had any problems in that regard. I am being picky because many new Members are present and they must learn how to speak correctly in the Committee: the word ``you'' is employed only to refer to the Chairman.

Mr. Wilshire: It has taken me 14 years to fail to learn such conventions. I hope that the new Members will take less time than that successfully to learn them.

I apologise for suggesting that you need to borrow money, Mr. McWilliam. Unlike me, you do not need to do that. Perhaps you could advise me how to organise my private life so that I do not have to borrow money.

If the director is to be prevented from borrowing money, the Government might wish to add the word ``economically'' to subsection (2)(a), because when I was involved in local government, and subsequently, when I became a Member of Parliament, I was constantly reminded that the three Es meant efficient, effective and economic, and they used to enjoy the support of the entire House, rather than merely my party.

The director must act in each of those three ways. The efficiency with which he does his job will, perhaps, be tested by examining the processes that he follows, and his effectiveness will be measured by assessing the outcomes. However, it would not be sensible for the agency and its director not to be subjected to a debate about whether they are costing too much. The principle of value for money must be upheld—even with regard to the activity under discussion.

The director or his staff might decide to pursue the proceeds of a crime and it might transpire early in the investigation that those proceeds will not amount to much. The director should be asked to justify himself, particularly when there is a possibility that the cost of recovery will exceed the sum recovered. That is an important point and it should be debated. Nothing is to be gained by vindictively chasing people when ultimately it is the taxpayer who loses, rather than the criminal. In such circumstances, the concept of the director economically going about his work is just as valid as efficiently or effectively going about his work. Will the Government reflect on that and consider whether they might table an amendment of their own?

Mr. Carmichael: I associate myself with the earlier remarks of the hon. Member for Glasgow, Pollok about parallel provision in Scotland and the rest of the United Kingdom, and in particular about the functions that might be carried out by the Lord Advocate north of the border.

Parts 2 and 3 largely replicate each other, although part 3 wears a kilt, and makes appropriate provision for Scotland. However, no direction is given to the Lord Advocate such as is given to the director of the Assets Recovery Agency in part 1. Such direction seems to be missing.

The Crown Office in Scotland publishes an annual report that includes performance indicators and targets. However, an important point is involved. Historically, the office of the Lord Advocate has never been keen on disclosing an ounce of information more than it absolutely has to. If such provision is to be made, will the Minister speak to his opposite number in the Scottish Executive in order to establish whether, when the time comes to consider amendments to part 3, further measures might be introduced to improve the position north of the border?

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Prepared 13 November 2001