Mr. Ainsworth: Clause 43 lays down who may be able to apply for a restraint order, and sets out criteria such as those in existing legislation for the variation or discharge of restraint orders. In addition to changing the venue for restraint order hearings and bringing forward the point at which the orders may be made, the clause provides that the prosecutor, the director or an accredited financial investigator may make an application. We discussed accreditation during an earlier sitting when we discussed the setting up of the agency.
Mr. Wilshire: That is one of the points that I was going to raise with the Minister. The director is mentioned in the clause. Will the Minister confirm whether that means the director in person, or any of the other people whom the director chooses to appoint? If I remember correctly, the director can appoint any number of people to discharge any of his responsibilities.
Mr. Ainsworth: We want the director to be able to pass his responsibilities down to appropriately trained people. This case will involve the director or those accredited by him as financial investigators. Such people will have the appropriate skill to ensure that restraint orders will be applied for only when they are justified.
For such reasons, we intend to give accredited financial investigators the ability to apply for restraint orders. That is a new measure. Accredited financial investigators are those who are accredited by the director in accordance with clause 3. They are likely to be employed primarily in the police force, in financial investigation units or by Customs and Excise. As I said regarding the venue, considerable expertise is sometimes required to make the investigations, and people will want to know that only appropriately qualified people will apply for them.
Mr. Grieve: I appreciate that. However, there may be a difference between the consequences of misfeasance by a senior police officer or customs officer, and the disciplinary regime to which a financial investigator is subjected if powers are exceeded or used incorrectly. That is why I have greater confidence in a system that is reliant on police officers or customs officers who are subject to an established disciplinary regime and a standard complaints mechanism, rather than on a financial investigator who, presumably, has an ordinary civilian or civil service status. That is why we should approach that issue with caution, and I hope that when the Minister considers its details, he will ensure that the status of the financial investigator is such that there is a complaints or disciplinary procedure similar to those that apply to police and customs officers.
Mr. Ainsworth: The hon. Gentleman said that it might be appropriate to discuss the matter when we debate a later clause. The Bill is complicated, but if he looks forward to clause 68, he will see that provisions are made for the oversight of such matters by a superintendent.
Question put and agreed to.
Clause 43 ordered to stand part of the Bill.
Appeal to Court of Appeal
Question proposed, That the clause stand part of the Bill.
Mr. Carmichael: Members of the Committee will be aware that my colleagues and I tabled an amendment to clause 44 that was not selected for debate. That immediately makes me suspicious that perhaps I have completely missed the point—
The Chairman: Order. The clause stand part debate should not be used as an excuse to reintroduce a non-selected amendment. There is a good reason why that amendment was not selected.
Mr. Carmichael: That will immediately become apparent when I raise my concern.
The clause allows for an appeal by an agency of the state. It also allows for an appeal by
``any person affected by the order.''
Presumably, that would be the defendant or a third party. The clause allows for them to appeal against an application for discharge or variation, or an order under clause 42(7) made to ensure that a restraint order is effective. However, it appears to me that it does not allow for an appeal against the restraint order itself by any person affected by that order. That is wrong—but I might have horribly misunderstood the clause. I would like the Minister to clarify the matter.
Mr. Grieve: I wish to make the same point. It is of concern to me that the provisions of the Bill restrain the ability of a defendant to appeal against decisions. It is unfortunate that the Committee did not get a chance to discuss that matter in relation to clause 32—because we did not reach it.
If I understand clause 44 correctly, it is possible for the defendant to appeal, but only after he has made a further application for the variation or discharge of the order. It is important that the system is fair, and I want the Minister to explain why it has been thought necessary to introduce that fetter.
Mr. Carmichael: The inevitable consequence is that an aggrieved party will make an application for a discharge or variation simply to gain access to an appeal. That does not make sense.
Mr. Grieve: I agree that there is a risk of that happening. If someone wishes to appeal the order, they will have to go through that process. It might therefore be simpler to offer an immediate avenue of appeal, rather than those two stages.
Mr. Ainsworth: I agree wholeheartedly that it is a shame that we did not manage to discuss clause 32. However, I remind the hon. Gentleman that we had extensive discussions about the timetable motion, and that there is a great desire on the Government side of the Committee to take on board any knowledge that he can bring to our proceedings that helps to improve the legislation. If he could have a word with his Whip, that might be helpful, as the Committee might then be able to scrutinise the Bill better, and we might wind up with better legislation. But if he plays the game of deliberately preventing the timetable motion from working, we will not be able to debate important clauses, and he will not have the chance to discuss those issues. His complaint should be made in a different direction.
There is a general right of appeal against any order of the High Court, under section 16 of the Supreme Court Act 1981. It applies to restraint orders made by the High Court at present, and orders ancillary to them. However, the general right of appeal in the 1981 Act does not apply to the Crown court. It has therefore been necessary to create a specific right of appeal in the Bill in relation to restraint orders made, or not made, by the Crown court.
As the hon. Member for Orkney and Shetland rightly points out in referring to his amendment that was not selected, there is no right of appeal against a Crown court's decision to make a restraint order. The appeal lies only against the Crown court's decision to vary or discharge an order, or not to do so. A person who is dissatisfied with a restraint order can in the first instance apply to the Crown court for its variation, and subsequently, if he is unhappy with the refusal to vary it, appeal against that decision. I do not know why the hon. Member for Orkney and Shetland regards that as a big problem. We would have thought that it was most sensible to specify that the Crown court is the place for people to request a variation with a right to appeal against the Crown court's refusal to make a variation, rather than automatically kicking the right of appeal.
Mr. Carmichael: I am acutely aware that I am blundering through English civil and criminal procedure, in which I have no qualification, practice or expertise. However, I would expect an application for variation or discharge to proceed as a matter of fact, and a point of appeal to be on a point of law. For that reason, I believe that an application for variation or discharge would be inappropriate. Indeed, if that were the point to be taken on appeal, the appeal would be unsuccessful.
Mr. Ainsworth: I am no greater expert than the hon. Gentleman, but we want such issues to be dealt with in the Crown court, and as I said, we believe that if people are unhappy with the confiscation order, that is the first place in which to make their complaint.
Mr. Carmichael: Will the Minister confirm whether the appeal will be on a point of law? That is crucial, because if an appeal will be allowed only on a decision to vary or discharge an order, if it is restricted to a point of law, all that the Court of Appeal will consider is whether the decision to vary or discharge as a matter of law was correct.
Mr. Ainsworth: I can now inform the hon. Gentleman that the appeal will be not on a point of law only, but on a refusal to vary or discharge a confiscation order.
Mr. Carmichael: I respectfully ask that perhaps at a later stage the drafting of the Bill might be altered to make that an express provision.
Mr. Ainsworth: I undertake to consider whether that is necessary.
Question put and agreed to.
Clause 44 ordered to stand part of the Bill.
Clauses 45 to 48 ordered to stand part of the Bill.
Mr. Foulkes: I beg to move amendment No. 39, in page 30, line 36, leave out from `property' to end of line 37.
The Chairman: With this it will be convenient to take Government amendments Nos. 40 to 44, 46 and 47.
Mr. Foulkes: This is a group of eight minor amendments concerning management receivers, directors' receivers and enforcement receivers. Amendment Nos. 39, 43 and 46 delete the power of the court to impose conditions or exceptions when it confers the power to take possession of property upon the receiver. However, amendments Nos. 42, 44 and 47 give the court the wider discretion to impose conditions or exceptions when it confers any power on the receiver under clauses 49, 51 and 53.
Amendment Nos. 40 and 41 relate to the ability of a management receiver to pay his or her remuneration and expenses out of the managed property. Amendment No. 40 is purely technical. The receiver is to be permitted to meet his expenses out of the property that he is managing. However, the power to sell assets might be too narrow if, for example, the receiver wished to take money from a bank account. I am sure the Committee—particularly the hon. Member for Beaconsfield—will understand that the word ``realised'' has a broader meaning than the word ``sell'' and will give the receiver more latitude.
Amendment 41 is substantive. It makes clear that before a receiver is allowed to draw down any of the managed assets for his or her remuneration and expenses, third parties must be given the right to be heard. In practice, a management receiver is never allowed to draw down assets that may be subject to a third party claim. The amendment gives explicit statutory recognition to the principle.