Standing Committee B
Thursday 29 November 2001
[Mr. John McWilliam in the Chair]
Conditions for exercise of powers
The Chairman: Good morning. As no Liberal Democrat Member is here, would one of the other hon. Members in whose name amendment No. 67 stands like to move it?
Mr. Dominic Grieve (Beaconsfield): I beg to move amendment No. 67, in page 26, line 43, leave out `Crown' and insert `High'.
Unexpected though this may be, I am happy to move the amendment—and to make a follow-up speech.
Mr. David Wilshire (Spelthorne): You do not look as if you are.
The Chairman: Order. I am not making a speech.
Mr. Wilshire: I am sorry, Mr. McWilliam—and I should have asked your permission to take my jacket off, too. Shall I put it back on again?
The Chairman: No. I give my permission for hon. Gentlemen to remove their jackets.
Mr. Grieve: Amendment No. 67 brings us to a topic that we touched on briefly when we discussed clause 6, which is whether the Crown court is a suitable venue for restraint proceedings. As the Minister is aware, although confiscation orders are made in the Crown court, the enforcement power of the confiscation order regime and the restraint orders lies in the High Court. Under the new provisions, it is the Government's intention to ensure that the Crown court is seized of the matter throughout. We can see the attraction of that action with regard to administrative efficiency, and if the entire proceedings are handled within one court, there are advantages. I suspect that the charges or costs of bringing the proceedings to the Crown court may be lower than if they were to be managed as High Court proceedings. Perhaps the Minister will confirm that.
I seek reassurance about whether the Crown court has the training, skills and capacity for such an operation. To put it simply, there is no Crown court tradition of dealing with the complex issues of equitable law that will arise in respect of asset restraint. There is no department of Crown court judges and I believe that most Crown court judges would say that there were completely unqualified to carry out such an exercise. I am sure that the Minister will agree that the clauses that follow on from clause 41 show the complexity of the proceedings, which include the appointment of receivers, their powers, the restrictions on what they may do with restraint orders, and discharge and variation. They are all matters with which the High Court, not the Crown high, is extremely familiar.
As most Crown court judges are barristers or solicitors with practising certificates who have, for the most part, specialised in criminal work, I question whether the expertise exists to use such powers. It is easy for such an exercise to go wrong. If it were not carried out correctly, there would be costly appeals and further time and public money would be spent, which would probably be unnecessary if a proven method through the High Court were used. I also ask how easy it will be to find time in the Crown court to carry out such proceedings. My understanding of the way in which the Crown court works is that it moves from one trial to the next.
The Minister of State, Scotland Office (Mr. George Foulkes): That seems like a good idea.
Mr. Grieve: But because the programme for the court is on the basis of a morning start at 10.30 with a trial, applications—be they bail applications, applications for the discovery of documents, or public interest immunity applications—get slotted in beforehand. How will time be made available for complex applications that require the hearing of detailed argument on equitable principles of law, and about people's rights in respect of property?
Will the Minister explain any discussions he may have had with the Lord Chancellor's Department about the way in which such a procedure will operate? In contrast, the High Court is probably better suited to slotting in applications, estimating time and incorporating the work as part of its mainstream business. Has that been properly thought through? I understand the temptation to say that the Crown court can deal with all this—indeed, that it is better if it does—and I see the theoretical justification for that. However, the High Court and the Crown court are two entirely different animals, and perhaps not all members of the Committee are aware of that.
I have some anxieties, and over the past few weeks I have raised the subject with High Court judges. They expressed their worries about whether the Crown court was capable of doing that type of work. That is anecdotal evidence, but I believe that the last thing High Court judges want is hold on to that type of work. They are already burdened with a huge range of duties and will not, I suspect, be particularly pleased when restraint orders are on their lists. I am worried that we could end up with a system that starts badly. Will Crown court judges be trained in the principles of such activities? They are outside both their judicial work and, almost certainly, the work that they will have practised as solicitors or barristers.
Will the Minister give a detailed explanation of the basis for making that particular decision and tell us how it will work in practice? What contact has there been with the judiciary and the Lord Chancellor's Department about its operation? What view does the Crown court service have about the impact of those applications on the courts' already overloaded casework? Unless those questions can be satisfactorily resolved, we as a Committee—and subsequently, Parliament as a whole—will be passing legislation that is unworkable in practice. If that happens, the whole issue will have to be disentangled. I want it to work and I want the restraint order procedure to work smoothly and efficiently. My experience, and everything that I have heard in conversations, suggests that there may be a problem in that particular area.
Mr. Alistair Carmichael (Orkney and Shetland): I apologise for not having been present for the very prompt commencement of business this morning. I assure the Committee that that happened not of any discourtesy but because of an inborn inability to be punctual. Hon. Members may be aware that I was born and brought up in a Gaelic-speaking area of Scotland—and that there is no word in Gaelic that quite expresses as much urgency as ``mañana''. I tender the appropriate apologies.
I shall be brief, because the hon. Member for Beaconsfield (Mr. Grieve) gave a substantial exposition of the thinking behind the amendment, and I associate myself with the broad thrust of his remarks. It seems to me that by taking responsibility for the application of restraint orders from the Crown court to the High Court we would be able to put in place a necessary provision to protect the quality of the Bill's execution.
The hon. Member for Beaconsfield rightly drew attention to the fact that the nature and quality of the work undertaken in the Crown courts is normally different. They are essentially trials courts, whereas in this case we are dealing essentially with civil property litigation. Indeed, clear parallels could be drawn with the law of injunction in England, and certainly with that of interdict in Scotland.
The clarion cry with which Opposition Members are assailed day after day in the Committee is that we are being soft on crime and those who live on the proceeds of crime. After a while, that becomes slightly tedious, but if that were the only tedium with which I had to contend in the course of a working day, I should be quite happy. However, the suggestion that we take matters out of the Crown court and put them into the High Court assures us that on this occasion no accusation could be made of our being soft on anyone. In my experience—and, I am sure, that of the hon. Member for Beaconsfield and others—superior courts routinely take a much more severe and, dare I say, occasionally draconian approach to criminal and criminal-related work than is often taken in the lower courts.
As the hon. Member for Beaconsfield may have already made clear, this is a probing amendment. I am interested to hear about the Minister's thinking. I am not minded to ask for the amendment to be pressed at this stage, although I do not want to give any hostages to fortune as to how I may feel when I hear the Minister's explanation. It is important for the appropriate level for the determination of restraint orders to be fully explored at this stage. I look forward to the Minister's response.
The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): The hon. Member for Beaconsfield was good enough to say that he saw some advantages in the proposal in the Bill. I am sorry that the hon. Member for Orkney and Shetland (Mr. Carmichael) feels that, sitting on the Opposition Benches, he suffers such tedium when we continue to throw such allegations at him. I ask him during the rest of the proceedings to imagine the tedium of being on the Government Benches when the hon. Member for Spelthorne (Mr. Wilshire) is going through the Bill trying to burn up the Committee's time.
Mr. Carmichael: I can hear him as well.
Mr. Wilshire: I haven't said a word.
Mr. Ainsworth: Yet.
The amendment would require restraint proceedings to be held in the High Court, as at present. As we have said previously, it is our deliberate intention to transfer such proceedings to the Crown court. The amendment would therefore reverse one of the key changes that the Government are making to the current confiscation procedures.
The subject was discussed in some detail in the report of the performance and innovation unit, to which I have already referred. In the Government's view, the transfer of restraint from the High Court to the Crown court is fully justified. Our starting point is the number of restraint orders currently made. The performance and innovation unit report stated that only 252 orders were made in 1997, and 247 in 1998.
The Government's aim in part 2 is to increase greatly the use of confiscation as a tool against acquisitive crime, and we make no apologies for that. Effective and early restraint of the proceeds of crime is a critical element in the process. Due to the ease and speed with which cash and assets can be transferred to the safety of foreign jurisdictions, assets must be frozen as an emergency measure to prevent that from happening. The Government consider the transfer of restraint to the Crown court unavoidable, given the anticipated growth in the number of asset recovery proceedings.
The administrative court could not cope with a heavier workload. The Crown Office of the High Court is the only forum authorised to hear such cases. It has just 20 judges, who sit mainly in London, and it deals with a huge range of work, not just restraint proceedings. It is vital that restraint orders are available routinely and locally, to support the greater number of confiscations that we anticipate. The hon. Member for Beaconsfield is right to say that the Crown court does not deal with restraint matters, but it has dealt with complex property issues in confiscation cases for many years.
We need to ensure that there is expertise in the Crown court judiciary. The Home Office and the Lord Chancellor's Department are in discussion with the Judicial Studies Board about what support and training is required to underpin the transfer of restraint to the Crown court, and about other changes in the Bill. We have discussed and are still discussing those matters with the Lord Chancellor's Department, which is fully involved in the matter.
The hon. Member for Beaconsfield is good at taking a brief, but I suspect that he has a little more sympathy for the proposition than he would allow us to see. I am sure that he accepts that if we did not make the transfer, our ability to increase the number of cases would be restricted.