Standing Committee B
Thursday 22 November 2001
[Mr. Roger Gale in the Chair]
Amendment proposed [20 November]: No. 24, in page 5, line 37, to leave out the word `must' and to insert the word `may'-[Norman Baker.]
The Chairman: I remind the Committee that with this we are taking the following amendments: No. 51, in page 5, line 37, leave out
`make the following four assumptions'
`follow the following four criteria'.
No. 52, in page 5, line 41, leave out `assumption' and insert `criterion'.
No. 53, in page 6, line 1, leave out `assumption' and insert `criterion'.
No. 54, in page 6, line 5, leave out `assumption' and insert `criterion'.
No. 55, in page 6, line 8, leave out `assumption' and insert `criterion'.
No. 56, in page 6, line 11, leave out `make a required assumption' and insert `follow any such criterion'.
No. 26, in page 6, line 13, leave out paragraph (a) and insert-
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. 57, in page 6, line 13, leave out
`assumption is shown to be incorrect'
`criterion is shown to be inapplicable'.
No. 58, in page 6, line 14, leave out `assumption were made' and insert `criterion were followed'
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.'.
No. 59, in page 6, line 15, leave out from `not' to `it' and insert
`follow one or more of such criteria'.
Question again proposed, That the amendment be made.
The Chairman: Good morning, ladies and gentlemen. As Mr. McWilliam said at our previous sitting, given the change in the grouping of amendments during the debate on Tuesday, the Chair will accept Divisions, if necessary, on amendments Nos. 26, 34 and 76 in addition to amendment No. 24.
Norman Baker (Lewes): I assure the Minister that I shall not press amendments Nos. 24 and 26 to a Division. I was pleased to hear him refer on Tuesday afternoon to his idealism. He said that he genuinely wanted to make a step change. I believe that his motives are laudable. He wants to make a difference while he is in office. That has been the cry of Ministers down the years. Some succeed; others do not. I caution the hon. Gentleman, however, that in his desire to make a difference, he should not always to seek to write the judiciary out of the script. It is tempting to say, ``Here is an obstacle to my objective, and I shall just move it out of the way.'' That attitude lead to Lady Thatcher abolishing the GLC-[Interruption.] I believe that Conservative Members are agreeing with my analysis.
Mr. Nick Hawkins (Surrey Heath): On a point of order, Mr. Gale. Surely the acoustics in the Room are good enough for the hon. Gentleman to hear my hon. Friends and me objecting to his remarks, and saying that abolishing the GLC was one of Lady Thatcher's wisest decisions.
The Chairman: I am not entirely sure that that is a point of order for the Chair.
Norman Baker: I draw to the Minister's attention the fact that yesterday we had an extremely interesting debate on the Anti-Terrorism, Crime and Security Bill. One of its clauses was headed ``Exclusion of legal proceedings''-a drastic title-and he will have noted that about 30 of his Labour colleagues decided that that was a step too far. However, it is important to be honest, and I must say that the Minister made a persuasive case when he responded to the amendment. I was especially pleased with his assurance about the balance of probabilities. It is important to say when one is convinced of an argument, so that when one is not it carries more weight. On the basis of the Minister's persuasive argument, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Norman Baker: I beg to move amendment No. 25, in page 6, line 1, after `property', insert
`transferred to the defendant after the relevant day and'.
The amendment is relatively simple, and I look forward to the Minister responding to it positively. It is an attempt to tighten the wording under subsection (3) to ensure that it has no unintended effect and specifies the period to which the clause relates. As drafted, the Bill has the capacity to confiscate property that has no feasible connections with a criminal lifestyle, notwithstanding the fact that the burden of proof is on the defendant to displace the assumption when it could be applied to property that has been in his family for generations.
The phrase ``the relevant day'' appears throughout the clause, including in subsections (2) and (4), but not in subsection (3). Why is it missing from that subsection? That might be a drafting error. Subsection (3) is unnecessarily wide and could have an unintended effect. Does the Minister share my view?
Mr. Hawkins: Before I speak to the amendment, may I echo the comments of the hon. Member for Lewes (Norman Baker) on the previous group of amendments?
The Chairman: No.
Mr. Hawkins: Given that we may not have a stand part debate, I shall talk about the general concept to which the amendment relates. Conservative Members appreciate that on Tuesday afternoon the Minister gave a serious response, although we do not agree with everything that he said. I understand that although the amendment was moved by the hon. Member for Lewes, because his name was first on the amendment paper, it is open to Conservative Members to ask for a separate vote on amendments that relate to the word ``criterion'' before we reach the stand part debate. Am I right in that understanding, in light of your earlier ruling, Mr. Gale?
The Chairman: I thought that I had clarified the position at the start of this morning's sitting. In case any hon. Members were not present and did not hear that announcement, Mr. McWilliam has made it plain, and I have agreed, that if necessary there will be separate Divisions on amendments Nos. 26, 34 and 76.
Mr. Hawkins: That was what I thought that I heard you say, Mr. Gale. I was present, and I did hear you, but I wanted to clarify my understanding. Conservative Members will ask for separate votes.
On amendment No. 25, we share the anxieties that the hon. Member for Lewes described. Once again, the reputable organisation Liberty has expressed anxieties about the provision. In suggesting the wording of amendment No. 25, it said that there should be an opportunity to prevent the assumptions-if, as the hon. Member for Lewes says, we are still using the word ``assumptions''-from applying to property that has been in the defendant's possession for more than six years. That relates to one of our discussions on Tuesday afternoon, and I believe, Mr. Gale, that it was one of the reasons that led your co-Chairman, Mr. McWilliam, to alter the grouping of the amendments. Like Liberty, we are worried that the Bill allows the confiscation of property that has no feasible or rational connection to the alleged so-called ``criminal lifestyle''-a phrase with which we do not agree, but it appears in the Bill-which would trigger the confiscation procedure.
I do not want to go back over old ground, Mr. Gale, and you would stop me if I did. However, I must point out to Labour Members that we have a perfectly genuine anxiety. In his remarks on Tuesday afternoon, the Minister understood that we were raising serious matters, although he did not agree with us about them. We are suggesting that if we align the second assumption to the same time scale as property transfers in subsection (2), and expenditure in subsection (4), the rational basis for making assumptions will be further enforced.
All Committee members want to ensure that the Bill makes a rational and proportionate response. We are not trying to undermine its purpose, but we do not want injustice. We want some rationality. I do not want to labour the point, so that is all I want to say about the amendment; I agree with the comments of the hon. Member for Lewes.
The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): The amendment would apply the assumptions-or criteria, as Opposition Members prefer to call them-only to property transferred to the defendant less than six years before proceedings commenced. The Bill allows us to make the assumptions about property held by a defendant without any need to show when it was received.
A fundamental characteristic of the Bill's criminal lifestyle confiscation procedure is that the court recovers the proceeds of a defendant's criminal conduct-not his ancestors' criminal conduct-which may have taken place at any time. The amendment would place beyond confiscation proceeds that were received more than six years before proceedings commenced. The Opposition seek what amounts to an amnesty for all proceeds gained more than six years before proceedings commence. We do not think that that is acceptable. In every case, the director or prosecutor would have to prove that the property had been received or spent by the defendant in the six years before proceedings commenced.
Norman Baker: I am slightly worried by the Minister's response. The onus is on the person who is assumed to have received the proceeds of crime. Is that person not being set a very high test if he or she wishes to demonstrate that what the prosecuting authorities believe to be the proceeds of crime was acquired legitimately, perhaps 25 or 30 years ago? It would be difficult for the person charged to prove that he or she acquired that property legitimately, given the time span.