Proceeds of Crime Bill

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The Minister of State, Scotland Office (Mr. George Foulkes): I am dealing with the clause, although not because the hon. Member for Beaconsfield stridently and atypically told my hon. Friend the Under-Secretary to ''go away'' to think about matters, and later said that he smelled a rat. My hon. Friend is not slinking away. The arrangement was made in advance to allow him a well-earned rest after a full morning sitting and half an afternoon stint.

Associated property requires explanation and I shall take up the invitation of the hon. Member for Surrey Heath (Mr. Hawkins) and say more about it. My comments may be of a clause stand part nature, which may be more sensible.

Associated property is property that is the subject of civil recovery proceedings but that is not in itself recoverable. Clause 250 defines associated property. The enforcement authority will have the discretion to bring proceedings in respect of associated property in addition to recoverable property. There may be civil recovery cases in which only part of a property may be

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recoverable because only part may have been obtained through unlawful conduct. Alternatively, there may be several interests in the property, only some of which were obtained through unlawful conduct. The non-recoverable part of the property or the non-recoverable interest in the property is described as associated property.

We would not expect proceedings to be brought in respect of non-recoverable property unless the enforcement authority considered it necessary to do so after taking all circumstances into account, including satisfying any right that it has to recover the recoverable property. For example, that may be proportionate when a non-recoverable interest in property cannot be separated from a recoverable interest. That should not prevent civil recovery action. The provision on associated property will allow proceedings to take place in respect of the whole property, including any part that is not recoverable.

If the court allows the enforcement authority to recover associated property, it will almost certainly recompense the associated property owner for the loss by, for example, ordering the payment of compensation. There are provisions relating to what would happen to associated property subject to a recovery order in clauses 270 and 272. Associated property may be held by a third party or by the respondent, for example, when the respondent mixes recoverable property with his legitimate property. The clause defines associated property as property that falls within one of five descriptions, which is not in itself recoverable property.

The first category is any interest in the recoverable property—for instance, a tenancy in a recoverable freehold. That tenancy is not recoverable by the enforcement authority but is associated with the recoverable property. Proceedings may therefore be brought in respect of the freehold and the tenancy, and the tenant will, of course, be a party to the proceedings. I am sure that the hon. Member for Surrey Heath, as a qualified lawyer, will understand that.

The second category is any other interest in the property in which the recoverable property subsists. When a lease in a freehold block of flats has been purchased with recoverable property, the other leases in the same block, bought with legitimate money, would be associated property. If the enforcement authority brought proceedings in respect of the recoverable lease, it would have a discretion to bring proceedings in respect of the other leases, too. Whether to exercise that discretion would be a matter for the authority. Any decision to bring proceedings in such circumstances would have to be proportionate, in order to comply with the European convention on human rights. Hon. Members may wonder why I look at Liberal Democrat Members when I say that—

Mr. Carmichael: We are very keen on the European convention on human rights.

Mr. Foulkes: Yes.

Mr. Carmichael: And on proportionality.

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Mr. Foulkes: We are not so keen on proportionality in all matters.

The next two categories would apply to cases when property is held in common—for example, when two people buy a car together. My hon. Friend the Member for Wrexham (Ian Lucas) will no doubt be thinking of such matters. One buys the car with recoverable cash, and one with legitimate cash. The second one would be my hon. Friend, if he were involved. The share of the person who paid with legitimate cash would be associated property. That is different from the situation in which two people hold property jointly. Property held jointly, when one party contributed recoverable funds, and the other did not, is dealt with at the recovery order stage. That is because, in law, when property is held jointly there is only one interest in the property. By contrast, when property is held in common, the law recognises two interests in the property.

The final category would apply when recoverable property is part of a larger property but not separate from it. That will interest the hon. Member for Surrey Heath. For example, if a painting was recoverable property but the frame—the square thing round the painting—had been purchased with legitimate money, the frame would be associated property. When the recoverable property consists of rights under a pension scheme, however, the clause makes it clear that no property is to be treated as associated property. That has the effect that civil recovery proceedings cannot be brought in respect of the non-recoverable interest in a pension fund—the interest of all those other than the respondent who have an interest in the pension fund. Particular arrangements exist for recovering the proceeds of unlawful conduct that have been paid into pension schemes, while protecting innocent parties in the scheme at the same time. Those arrangements are set out in clauses 273 to 275.

Mr. Grieve: The Minister is providing an extremely lengthy and helpful explanation. While doing so, will he also explain why pension schemes are being treated in that way?

Mr. Foulkes: I will indeed—

Mr. Hawkins: The Minister is waiting for a note.

Mr. Foulkes: May I first deal with the amendment, as I have just dealt with the definition of associated property? The amendment would change the definition of associated property, omitting the category in which recoverable property is part of a larger property but not separate from it. Clause 310 makes it clear that the term ''part'' used in relation to property includes a portion.

Mr. Wilshire: Yes, Minister.

Mr. Foulkes: Associated property is property that is not in itself recoverable. Well, I said that earlier when I mentioned the example of the frame of a painting. It would also cover circumstances in which a person buys property—for example, a necklace—with a mix of recoverable and non-recoverable cash. The recoverable property would then be a part of the larger

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property, but clearly not a separate part. Subsection (1)(e) ensures that the non-recoverable portion is associated property.

It may be helpful if I explain further the thinking behind the concept of associated property.

Mr. Wilshire: My mother has not been mentioned for several weeks. I am struggling to work out what I can do with three strands of pearls. Will two of the strands be the recoverable bits? Will I be able to keep the third?

Mr. Foulkes: Funnily enough, I was thinking about that when the hon. Gentleman referred to the necklace. Necklaces can be divisible. I am glad that his mother has returned—if not in person, at least in spirit. My hon. Friend the Member for Glasgow, Pollok (Mr. Davidson) has also returned in spirit. He has asked me to give his apologies for his absence this week. He is in Nairobi. Earlier this afternoon—or was it this morning?—I felt like sending him a postcard saying, ''Come back—all is forgiven'', because we were missing him.

There may be civil recovery cases in which only part of a property may be recoverable, because only part of it may have been obtained through unlawful conduct, or there may be several interests in a property, only some of which have been obtained through unlawful conduct. The non-recoverable part of the property or the non-recoverable interest in the property is described as associated property. We would not expect proceedings to be brought in respect of non-recoverable property unless the enforcement authority considered it proportionate to do so. I think that I may have said that before, too. In light of this explanation—[Interruption.]

Hon. Members: Saved by the bell.

3.42 pm

Sitting suspended for a Division in the House.

3.54 pm

On resuming—

Mr. Foulkes: Where was I?

Mr. Hawkins: Lost.

Mr. Foulkes: I think that I was about to say that when the recoverable property and the part or portion are owned by the same person, clause 250(1)(b) will not apply, because it assumes that there is more than one interest in the property, thereby implying that there is more than one holder of the interest. Clause 250(1)(e) is therefore essential to cover the case in which recoverable property and the part or portion are held by the same person.

The hon. Member for Beaconsfield asked about pension rights, which—to revert to my serious mode—I must emphasise is an important matter. The Bill provides that rights in a pension scheme may be recoverable. I am sure that he will understand that that is necessary in order to ensure that pension funds are not used as a safe haven. However, as I was thinking during the break in our proceedings, the question

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arises of how to identify the value of pension rights. [Interruption.] This is my serious mode. Hon. Members are not supposed to laugh now. I am assured that it is always possible to identify the value of a right in a pension scheme. Cash equivalent values are used for that purpose. If you—or, rather, if hon. Members—contact the Fees Office, they can find out the value of their pension rights, as indeed can you, Mr. O'Brien, which I am sure in your case are lucrative.

 

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Prepared 13 December 2001