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Mr. Foulkes: Of course—and neither would I, Mr. Gale. I was just pointing to an inconsistency and referring to it in passing. We shall discuss it in greater detail later.
Mr. Wilshire: Will the Minister give way?
Mr. Foulkes: If this is on the same point, it might be better not to give way to the hon. Gentleman just yet.
Mr. Wilshire: This is nothing to do with amendment No. 32. I just wanted to say that I failed to make myself clear when I was explaining what concerned me. I was not trying to encourage people to salt away money. I was flagging up the point that, despite the desire on both sides of the House to make the maximum effort, if history runs true to form, some people will still succeed in salting away money. I was merely saying that that should not be an excuse for not seeking to get it back in the future, which is the opposite of what I think the Minister heard me to say. I apologise for that.
Mr. Foulkes: No, no. I apologise if I misunderstood the hon. Gentleman. Now that I understand him, and appreciate what he said, there is every reason for the Committee to agree that clause 8 should stand part of the Bill.
Question put and agreed to.
Clause 8 ordered to stand part of the Bill.
Clause 9
Defendant's benefit
Question proposed, That the clause stand part of the Bill.
Mr. Foulkes: Hon. Members will recall that clause 8 provides that the amount of a confiscation order is the amount of the defendant's benefit or the available amount, whichever is lower. Clause 9 explains how the defendant's benefit is decided. Subsection (2) provides that the court must take account of conduct and property obtained until the time that the court takes its decision. Subsections (3) and (4) are designed to avoid double counting the same conduct. Hon. Members will note that the court will now be required to deduct confiscation orders previously made against the same person in any part of the UK. The current legislation has developed piecemeal on this point, and we seek to rectify certain omissions.
Mr. Wilshire: When I spoke to the Clerk this morning I was reassured that clause 9(2) did not mean that the court would take account of honestly gained assets. Will the Minister confirm that? Subsection (2) states:
(a) take account of conduct occurring up to the time it makes its decision''.
I assumed, perhaps wrongly, that that meant that the court must take account of conduct of a criminal nature that had occurred up to the time of making the order. Subsection (2)(b) states that the court must
``take account of property obtained up to that time.''
Similarly, I assumed that that meant property obtained as a result of criminal activity, rather than property that had been got hold of, purchased by or given to people in a totally legitimate and legal way. Will the Minister assure the Committee that the court will take into account criminal acquisitions, rather than totally innocent and above board acquisitions? If so, will he also say why clause 9 does not spell out the fact that the court should be taking into account criminal conduct and property obtained by criminal means?
The Chairman: Order. I invite the Minister to offer clarification if he wishes to—but with the caveat that many of the relevant issues will be dealt with under clause 11.
12.15 pm
Mr. Hawkins: When the Minister responds, will he be able to point to other legislation that has used the phrase ``general criminal conduct''? Rather like ``criminal lifestyle''—I do not want to reopen that debate now, as it would not be proper to do so—it strikes me as a slightly unusual phrase. I appreciate that the Minister may not be able to provide a precedent immediately, but it would be helpful to know where, if at all, that phrase has been used in other recent legislation. When my hon. Friend the Member for Beaconsfield and I first looked at the Bill, it struck us that it raised some of the same issues as ``criminal lifestyle''.
Mr. Foulkes: It would perhaps be better to deal with that last question later. Bearing in mind your admonition in relation to clause 11, Mr. Gale, I shall answer the point made by the hon. Member for Spelthorne. Subsection (2)(b) must be read in the context of subsection (1), which relates to decisions on benefit from conduct. Clause 76(4) provides that
``A person benefits from conduct if he obtains property as a result of or in connection with the conduct.''
Therefore, the reference to property in clause 9(2)(b) must be read in that context.
Mr. Wilshire: Is the conduct to which clause 9(1) refers criminal conduct, or all types of conduct?
Mr. Foulkes: As I understand it, it deals with criminal conduct, as does clause 76(4).
Mr. Wilshire: If that is so, why does it not refer to ``criminal conduct''.
Mr. Foulkes: Perhaps because it is assumed that, as we are dealing with confiscation of the proceeds of crime, the conduct will be criminal.
Ian Lucas: Clause 9(1) begins:
``If the court is proceeding under section 6''.
It clearly relates to the procedure following criminal conviction.
Mr. Foulkes: I am grateful to my hon. Friend for that additional clarification. I can tell the hon. Member for Surrey Heath that I am not aware of other legislation that refers to ``general criminal conduct''.
Mr. Grieve: My hon. Friend the Member for Surrey Heath has picked up on an important point, which the Minister may want to consider in the context of the clarity of the Bill. I have often found this Bill difficult to follow. I realised that it would be a complex piece of legislation, but it is not easy reading. It contains constant reference back, and constant tendencies to use terms such as ``conduct''. I, too, ascertained that that term refers back to the ``general criminal conduct'' referred to in clause 6(4)(b). However, such references are not often apparent. I am sure that partly draftsmen have special skills, one of which is not to repeat what is unnecessary—surplusage. However, sometimes the Bill is difficult to follow. Clearly, the clause should be aimed only at criminal conduct, but when there is a move away from the specific offence to something wider, it is important to have precision.
Mr. Foulkes: I appreciate what the hon. Gentleman says. If he, as a distinguished practising lawyer, has a problem understanding an aspect of the Bill, he will understand how those of us who are not lawyers share his difficulty—even with excellent briefing. However, I can underline what my hon. Friend the Member for Wrexham said in relation to the point made by the hon. Member for Spelthorne. Clause 9(2) must be read in the context of clause 9(1), which refers back to clause 6. Therefore, we are talking about criminal conduct.
Norman Baker: It is important to have clarity, and if that means repetition, that is beneficial and sensible. The phrase ``general criminal conduct'' appears again in subsection (3) and clause 11, so it is not as though it has been accepted and put to bed. It reappears throughout the Bill, and it is rather odd that it is missing here. For the sake of clarity and the avoidance of doubt, it would be helpful if it were repeated.
Mr. Foulkes: I understand the hon. Gentleman's point, and I shall take it on board. As was pointed out earlier, clause 7 does not refer to clauses 15 and 16, whereas clauses 15 and 16 refer to clause 7. I understand that the legal draftsman said that it was not strictly necessary to include such a reference. However, I agree that even though it may not be strictly necessary, it might make the matter clearer, and for the avoidance of doubt, we shall consider the idea.
Mr. Johnson: I should add that it would be a good idea to insert the word ``illegally'' into the reference to property or property obtained by criminal conduct, because that goes to the heart of what we are trying to do. Are we suggesting that it is right to take away all property from criminals in punishment for their crimes, or are we specifically trying to take away property that arises from criminal activity? I should be grateful for some clarification from the Minister on that point. Are we punishing criminals by taking away property irrespective of how it was obtained, or only property that was obtained exclusively illegally? That should be made clear.
Mr. Foulkes: I understand the hon. Gentleman's point. We all agree that it is implicit in the Bill that the reference is to property that has bene illegally obtained. I believe that he is saying that it might be better to make that explicit in the Bill. We shall consider the idea. It may not be strictly necessary to do that, but it might be for the avoidance of doubt. I would not be unhappy if at a subsequent stage amendments that clarified that fact were made.
Mr. Davidson: I am heartened by the suggestion by the hon. Member for Beaconsfield that he finds this difficult to follow, because I thought that it was just me who did. At least we agree on that. I should like clarification from the Minister on how someone's ill-gotten gains and legitimate income will be dealt with. I want to avoid circumstances in which people can admit that they have committed and been found guilty of offences, and then say that all the money that they have obtained from them has been spent on slow cars and fast women—or slow horses and fast women; whatever is the chosen poison—and all the money that they have left was obtained entirely legitimately, and therefore cannot be touched. That would be completely contrary to the thrust of the Bill as I understand it, and I should be grateful if the Minister would make it clear that someone's legitimately obtained assets are none the less available to be partially or wholly taken to pay the costs of crime.
Norman Baker: If someone has used the proceeds of crime to invest and has built up a substantial sum in excess of the amount that was illegally obtained, is it not important to make clear the position of that element of the money and assets?
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