Proceeds of Crime Bill

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The Chairman: Order. The hon. Gentleman has come to the nub of the matter. It is clear that the original grouping was too tight. I now intend to group the two sets of amendments together, so that any of them may be debated.

With the group already under discussion it will therefore be convenient to discuss the following amendments:

No. 26, in page 6, line 13, leave out paragraph (a) and insert—

    `(a) The Director does not lead sufficient evidence to establish the assumption on the balance of probabilities; or

    (aa) The defendant leads evidence to entitle the court to refuse to make the assumption; or'.

No. 34, in page 6, line 13, leave out paragraph (a) and insert—

    `(a) the defendant adduces evidence which is sufficient to raise an issue with respect to the matter and the prosecution fails to prove its case on the matter.'.

No. 76, in page 6, line 14, at end insert—

    `(c) there is no rational connection between the facts proved in proceedings leading to the trigger convictions and the facts adduced for consideration of the assumptions.'.

Any hon. Member who wishes to press an amendment to the vote formally at a later stage should tell me, and he or she can do so when we reach that amendment's place in the Bill and on the amendment paper. Given the way that the debate has gone so far, it would be fairer to hon. Members and we would be better able to explore the cause if we proceeded in that way.

6.15 pm

Norman Baker: Thank you, Mr. McWilliam. That is helpful to the Committee, because the amendments should be considered in parallel. I shall move amendment No. 26 formally, to enable us to widen the discussion.

The Chairman: Order. Amendment No. 26 does not need to be moved, as we have grouped it with lead amendment No. 24. The hon. Gentleman may speak to it.

Norman Baker: I shall speak to amendment No. 26.

The Chairman: And the others.

Norman Baker: And the others, but I shall pay particular attention to amendment No. 26.

Hon. Members have suggested that the discretion that amendment No. 24 would give to the judiciary is unnecessary because of the two safeguards included in subsection 6, which states that

    ``the court must not make a required assumption . . . if—

    (a) the assumption is shown to be incorrect, or

    (b) there would be a serious risk of injustice if the assumption were made.''

So far as they go, those provisions act as safeguards, but I do not think that they are sufficient. As my hon. Friend the Member for Mid-Dorset and North Poole (Annette Brooke) has asked me, why is the adjective ``serious'' included in subsection (6)(b)? Does it mean that a court will not take into account a risk of injustice that is not serious but is present none the less? That is a high hurdle. Does a ``serious'' risk of injustice refer to the likelihood or the nature of the injustice?

Stephen Hesford: The hon. Gentleman and the hon. Member for Mid-Dorset and North Poole have misread the passage. The word ``serious'' does not apply to injustice; it applies to the quantifiable level of risk.

Norman Baker: That is how I read subsection (6)(b), but I think that it would be helpful to put my point on the record. Even if that interpretation is correct, a ``serious risk of injustice'' nevertheless suggests that a lesser risk of injustice is tolerable, and I think that that is questionable. The risk of injustice may be quantified according to how severe the injustice is. I accept that ``serious'' must relate to the word ``risk'', but the nature of the injustice may offset that.

Stephen Hesford: With respect, ``serious'' does not mean that the risk must be of a great injustice; the word refers only to likelihood. It has nothing to do with the level of injustice.

Norman Baker: We shall have to differ on the subject. Although I believe the hon. Gentleman's interpretation, I have given my reasons why I doubt that subsection (6)(b) will be interpreted in that way. Even though I accept his definition of the passage, a ``serious risk of injustice'' precludes a court from concluding that there is a risk of injustice that may be less serious. That is an important point.

Subsection (6)(a) says that the assumption must not be made if

    ``the assumption is shown to be incorrect''.

That is an extremely difficult test. It may be impossible to conclude that the assumption is incorrect even if there are serious doubts about it. That is a test that requires 100 per cent. certainty. That is inappropriate, and that is why amendment No. 26 sets a different test that I hope Committee members will support.

The amendment has two parts. The first states:

    ``The Director does not lead sufficient evidence to establish the assumption on the balance of probabilities''.

The balance of probabilities is a test that Ministers have been happy to include so far in the Bill. In paragraph (a) of the amendment, we ask that the director should be able to produce sufficient evidence to establish the assumption on the balance of probabilities. That is not an especially high test, as legal tests go, and I should have thought it perfectly reasonable.

The second part of the amendment states:

    ``The defendant leads evidence to entitle the court to refuse to make the assumption''.

In other words, the person at the wrong end of the process will have the opportunity to produce evidence that leads the court to conclude that the assumption should not be made.

Those seem to me to be perfectly normal legal tests—and rather safer in law than the absolute wording of subsection (6)(a), which refers to when

    ``the assumption is shown to be incorrect'',

which is a 100 per cent. test, and

    ``a serious risk of injustice'',

which is close to it.

I hope that the Minister will not argue that the amendment would weaken the Bill. It is an attempt to get the balance right between not impeding the pursuit of justice and ensuring that proper safeguards are in place. Safeguards are an essential part of our criminal statute. I am merely trying to ensure that they are provided in the clause.

Mr. Ainsworth: I shall try to help the hon. Gentleman, who is clearly worried that the thresholds for triggering the safeguards provided are too high. The safeguards in subsection (6)(a) will be decided on the balance of probabilities. That will be the test for whether the condition in subsection (6)(a) is met.

Norman Baker: I confess that my reading of the Bill had not uncovered that, which is apparently a comment on my reading of the Bill rather than on the Bill itself. I am grateful for the Minister's clarification, which eases my mind about subsection (6)(a).

Amendments Nos. 24 and 26 are grouped. I am worried that the Government are, not only in the Bill but generally, as was evident in yesterday's consideration of the Anti-Terrorism, Crime and Security Bill, approaching the view that the judiciary cannot be trusted and needs to be put in its place, that Parliament's legislative powers are more important and that the historical balance between Parliament and the judiciary is wrong. That may be true, although I do not share that view. It is a perfectly legitimate view, and I believe that it is probably the view of the hon. Member for Glasgow, Pollok, who has been clear about his views on the judiciary.

I do not defend the judiciary; a lot is wrong with it, not least the background of many of those who comprise it. Nevertheless, democracy requires essential bulwarks and centres of power spread around, whether by devolution or alternative centres—between Parliament, the Executive and the judiciary. If we do not have that essential balance and one element of our constitution predominates, that is dangerous.

I cannot tell you, Mr. McWilliam, how the Bill might go wrong, but I know instinctively that we should not undermine one element of our constitution greatly and give excess power to another, because doing so can lead to unforeseen difficulties.

Mr. Tom Harris (Glasgow, Cathcart): Does the hon. Gentleman not understand that one reason why Labour Members are impatient with the judiciary is that even under existing legislation, the judiciary time and again refuses to make confiscation orders when it is entitled to do so? The hon. Gentleman mentions the democratic principle. Does he not accept that the democratic will of the House of Commons should take precedence over the decisions of the judiciary?

Norman Baker: The House of Commons should not take precedence over the judiciary. That would be wrong. Parliament can review the legal position and propose changes to the law if it believes that the law is impractical or ineffective. The hon. Gentleman referred to the unhappiness of Labour Members with the present judicial set up, and that hat is at the root of some of the problems that have led to the Bill and the worries of some hon. Members about the direction in which the judiciary is going.

The judicial system is not perfect. Some people should not be in certain positions; perhaps they do not have the correct background. However, the answer is not to curtail their power and change the democratic base of the country, but to give them proper training and guidance and to deal with them in a democratic way that preserves the essential constitutional balance. I am worried that judges will be sidelined because the Government may not like what they are doing. Amendments Nos. 24 and 26 are meant to flag up issues and make sure that they are taken on board so that essential safeguards exist.

I was grateful for the Minister's intervention. It was extremely helpful. However, I ask him to consider the wording of subsection (6)(b) and question why it contains the word ``serious''.

The Chairman: Order. I am anxious not to do the hon. Member for Lewes an injustice, but I wish the Committee to be clear about the grouping of the amendments. Amendment No. 25 deals with a separate point and stands on its own to be debated at a later stage.

Secondly, I have a duty to uphold the rights of the House. I remind members of the Committee that this is the High Court of Parliament.

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