| Proceeds of Crime Bill
|
|
Norman Baker: I am equally sorry that the hon. Lady was not present at the beginning because her contributions are welcome in this Committee, as they are elsewhere. I draw no connections between her absence and the fact that her ministerial colleague did not agree with her comments. Vera Baird: The Victoria line was to blame. Norman Baker: There can be few objections to amendment No. 381 as drafted. However, I ask whether the hon. Member for Beaconsfield allowed for a situation in which a person had not taken reasonable steps to determine whether property was obtained legally. There should be a test to determine whether the purchaser simply assumed that property that came into his or her possession was bona fide. If people asked questions before purchasing items, that would be a defence. The question is whether the provision suggested by the hon. Member for Beaconsfield is covered elsewhere in the Bill. There is an argument about whether it should be in this clause. One could argue that a clause with the heading, ''Property obtained through unlawful conduct'', was the correct location for the inclusion of any provision covering reasonable defence, rather than later in the Bill. Nevertheless, if the provision is in the Bill, it is in the Bill. When the Minister responds, he must explain the difference between the amendment and the provisions in clauses 306 and 267, to which I referred earlier. The hon. Member for Beaconsfield is correct to say that one must read paragraphs (a) to (d) of clause 267(4) together. In the light of that, I want the Minister's assurance about what clause 267(4) means, so that I can assess whether the amendment is necessary. Will the Minister explain the meaning of clause 267(4)(b) so I can understand the impact of it? Clause 267(4) states:
I will be grateful if the Minister clarifies what that means and why it is in the Bill. Mr. Carmichael: I am delighted that the hon. Member for Wellingborough (Mr. Stinchcombe) cannot understand the drafting of clause 247(1). I had the same problem. I generally approach these matters from the point of view that I am probably being stupid. However, now I know that someone who was a counsel before he entered the House does not understand it either, and I am emboldened by that. I also agree with my hon. Friend the Member for Lewes that clause 267(4)(b) would not be out of place in a script for ''Yes, Minister''. However, I do not agree with my hon. Friend that amendment No. 381 relates to the wrong clause. This is the proper place for such an amendment and, compared with the terms in which later provisions are couched, it has a certain elegance. I also commend its succinctness. It does not conflict with subsequent provisions, and relating it to clause 247 would send out the signal that the Government, in proposing the legislation, take seriously the rights and concerns of innocent third parties. The hon. Member for Redcar made a point about a portrait taken from the national gallery. That matter could be dealt under existing provisions for the determination of the ownership of property, which in Scotland is called an action for multiple poinding. There is another force behind the tabling of the amendment. Actions for multiple poinding are horrifically complicated and always messy. Reference was made earlier to a stolen car, and I can think of at least two authorities on Scottish law on stolen property, one of which relates to a stolen car, which give completely contradictory conclusions. We stand to have better law if we do everything possible to prevent people from having to start that sort of action in the first place. Mr. Ainsworth: I apologise, Mr. Gale, and accept your earlier request. My officials do not know about the vagaries of the parliamentary postal system or the different arrangements for redirection, and I should have made sure that copies of my letter were available in the Committee as well as sent out to people. I will seek to do that. The Chairman: I meant no criticism of the Minister. I received my copy on the Board late last night. The problem is that when material goes on to the Board, it goes into Members' internal post and they do not always get it straight away. I take this opportunity to tell Members who have asked for their copies to be sent over that I propose to suspend the Committee for five minutes when the letter arrives, so that those who have not had a chance to read it can do so. Mr. Hawkins: On a point of order, Mr. Gale. It may be helpful to mention that after our original discussion about post, and while other hon. Members were speaking, I received another letter, which is addressed to the Institute of Chartered Accountants in England and Wales and dated 11 December. I do not know if other hon. Members received that letter. Fortunately, it does not deal quite so directly with some of the matters to which earlier amendments relate, but with issues that relate to clause 247. The same principles therefore apply. The Chairman: The point is taken, and the Minister has generously acknowledged that something went wrong on this occasion, in spite of his best endeavours. I hope that the Committee accepts that. I will suspend the Committee when the copies of the letter arrive. Mr. Ainsworth: We will try to guard against such a thing happening again. I am starting to have profound worries about the direction in which my mind is beginning to work. I am starting to regret that I never had the opportunity to take up a career in law. Mr. Foulkes: No, no, no. Mr. Ainsworth: I have spent 20 years of my adult life missing out on all this fun—and the fact that I am finding it fun is beginning to worry me greatly. Mr. Carmichael: The Minister's regrets are entirely misplaced. If he thinks that life in legal practice is so great, he may wish to ponder why so many of us have chosen to enter Parliament. Mr. Ainsworth: I think that I have made my point. I want to make a couple of general points about the thrust of the contribution by the hon. Member for Beaconsfield. First, these matters are fiendishly complicated, even for someone with legal training, and he should not become over-obsessed with the order in which different clauses appear in the Bill. The mere fact that clause 306 is some way down the list of clauses is not significant. It is entitled ''General exceptions'' and it clearly applies to the powers in part 5. The fact that it appears in another place does not diminish the safeguards within it. The hon. Gentleman sometimes appears to suggest that it does, and that if it were brought further forward within the Bill, that would change something. Surely he accepts that that is not the case. Mr. Grieve: The Minister is right. I suppose I am fighting a battle against a sort of thought process that seems to suffuse the Government. A discussion of the way in which the Government approach legislation and its theoretical underpinning would be worth while. Something about the theoretical underpinning of part 5 gives me cause for anxiety. The amendment would remove some of that anxiety by restating clearly a category of individuals who are excluded from the bite of the legislation. Mr. Ainsworth: But that category is excluded under clause 306, the heading of which is ''General exceptions''. It states that bona fide purchasers for value are excluded. I do not know how to make the wording different, and I do not see how status can be derived from the position of the clause in the Bill. It is clear that bona fide purchasers for value are excluded. The hon. Gentleman tried to say that there was a huge contrast between the powers in part 5 and those in part 2. Later in his contribution, he spoke about tainted gifts, but suggested to the Committee that innocent recipients of tainted gifts could not be pursued under part 2. That is not the case. Clearly, such innocent recipients can be pursued under part 2, as he now acknowledges. The huge contrast that he said that there was between part 2 and part 5 does not exist. Part 5 is about civil proceedings, and part 2 is about criminal proceedings. However, innocent recipients of tainted gifts will be pursued, under part 2 powers, as well as, potentially, innocent recipients of the proceeds of crime, under civil recovery. Mr. Grieve: I accept that I may have expressed myself badly in response to the intervention by the hon. Member for Wrexham. However, the Minister's helpful letter to me, the relevant passages of which I read out, highlighted areas in which it was possible to recover under civil proceedings property that it was not possible to recover under confiscation provisions. The Minister must accept that, because he wrote the letter. He will remember it especially because I wanted to ask, by means of amendment No. 356, whether we should prevent recovery through civil proceedings. The Minister argued that we should not do that precisely because the powers were wider than those under the confiscation provisions. Mr. Ainsworth: The hon. Gentleman is right: we were chasing down a particular situation, in which he was suggesting—as he suggested on his previous amendment, on which we have not yet voted—that the director should not in any circumstances be allowed to pursue property under part 5, if he had failed for any reason to confiscate under part 2. He is right: there is a potential contrast. Such circumstances would be rare. However, the thrust of my letter was that such action should not be ruled out all together. Clause 247 defines a key concept in civil recovery and cash forfeiture, which is what is meant by property that has been obtained through unlawful conduct. Amendment No. 380 would remove from subsection (1) the bracketed words,
I hope that my hon. Friend the Member for Wellingborough will forgive me for saying that although his legal mind may be more forensic than mine, I have heard those arguments for more than 10 years. When examining drafting proposed by parliamentary counsel, some have suggested that the draftsmen should be dragged over here and, if they cannot explain themselves, should be shot in front of the Committee. I am more than happy for officials to discuss with parliamentary counsel whether clearer alternative wording would provide exactly the same effect, but, I do not necessarily have the ability to go down the obscure road of the drafting of the clause, rather than its substance.
|
| |
| ©Parliamentary copyright 2001 | Prepared 13 December 2001 |
