|Proceeds of Crime Bill
Mr. Carmichael: The Minister makes a good point. I can say that because it is the point that I made when I intervened on the hon. Member for Beaconsfield. Will the Minister move on to consider the power in sub-paragraph (2)(c), which mentions the ''pursuance of the order''? That is distinct and parallel to proceedings in which an order has already been obtained.
Mr. Ainsworth: Let me try to reassure those who are prepared to be reassured that, under the schedule, the powers will be conferred when the court is of the opinion that they could, or should, be used in order for the interim receiver or the administrator to carry out his function effectively. We have had repeated discussions about words such as ''may'' and ''must''. The first line of clause 252 states:
Mr. Grieve: The Minister is right. The court may use discretion, and need not give the interim receiver full powers as described in schedule 3. The oddity is that, if the court expressed the powers in sweeping terms, there would be no requirement for the interim receiver to return to the court for authorisation. If circumstances were to change, the scope of the receiver's inquiries could extend far beyond that which was originally envisaged. That is the issue. Provided the court keeps control, I shall be content. However, under the current drafting of the schedule, the court could easily lose control.
Mr. Ainsworth: The hon. Gentleman is absolutely right, although the court would have to have been convinced of the powers required in the first place. He is right to say that, if the court had been convinced of the necessity for the powers required, there would be no requirement on the receiver subsequently to return to the court to have the powers renewed on every occasion that he sought to use them. That would be the effect of the amendment that the hon. Gentleman proposes. While clause 254 may not require the receiver to have his powers renewed by the court, the exercise of his functions can be challenged and taken back to the court at any point in the future. It is not the case that, having received the power, the interim receiver may go off and do whatever he likes, and that no one may return to the court and ask, ''Wait a minute, is this what was intended? Is it justified in the circumstances?''
Mr. Hawkins: The Minister is right. After the event, anyone may return to the court to seek directions. When speaking to the amendment, I postulated a situation in which the damage had already been done. Of course the interim receiver must obtain his original power. However, simply stating that that provision exists does not answer our concern about paragraph 3, because its terms are so wide. Once the interim receiver has obtained his general authority, he may enter any property. As I have explained, human nature being what it is, the receiver may kick down the door of the wrong property, and it would be too late for that innocent person to go to the court afterwards to seek directions.
Mr. Ainsworth: The hon. Gentleman is right. That could be the case, but it need not necessarily be so. It would be possible for a person who became aware that the interim receiver was intending to exercise his powers, to object and ask the court to prevent him from doing so.
Mr. Stinchcombe: The hon. Member for Surrey Heath postulates circumstances in which the administrator might kick down the door of a property to which he was not entitled to gain access. I understood that the powers afforded by paragraph 3 were limited to carrying out a search for, or inspection of, anything described in the order. Therefore, the properties that could be legitimately searched would be set out in the order. That action would be authorised and guaranteed under clauses 252 or 260.
Mr. Ainsworth: My hon. Friend is right. The order would have to have been justified in the first place. The court would grant such powers only if it thought them necessary to establish whether the property that was the subject of the order was recoverable or associated property, or whether the property was recoverable in respect of the same unlawful conduct. It will not be a case of someone kicking down doors whenever they see fit. Prior authorisation will have to be given. If people want to challenge how the authorisation is amended or used, they may go back to the court. I accept what the hon. Member for Surrey Heath says. People need to know what is intended in the first place, but they can go back and stop the powers being used.
The Government accept that the powers are significant and may be intrusive, but it will be for the court to judge whether a particular power should be exercised in a particular case. That applies to the power to enter, search or seize as much as to any other power. The powers may be exercised only for the purpose of using or exercising the receiver's functions.
Under amendment No. 361, the powers of entry, search and seizure could not be used without the court's prior authority, which would change the position in the Bill. The prior authority of the court will have been given for the use of entry, search and seizure powers. An interim receiver or administrator would have to go back each time that he intended to use powers that he had already been authorised to use, in order to receive specific authority to use them in that case.
Mr. Hawkins: The Minister accurately summarises exactly what we want and why we want it. Under our law as traditionally set out, the police must have a search warrant to enter premises. That position has been hallowed by precedent for not merely 10 or 20 years but at least 100 years, to my certain knowledge. It is the basis of the belief that an Englishman's home is his castle, and it should remain.
Mr. Ainsworth: I hope that the hon. Gentleman will stop and listen to what he has just said and compare it with the powers conferred under clause 252 and schedule 3. Before the police may enter my home, they must have a search warrant. The interim receiver will have had to go to court and obtain a court order before he can do so. The hon. Gentleman tries to suggest that the provision is something completely different and relates to search and related procedures without prior court approval, and he knows that that is not so.
Mr. Johnson: Will the court order apply to the specific premises involved? If such a bold interim administrator were to turn up at some premises without clear identification of the premises as a target of the operation to relieve a gangster of his property, not only injustice but, as I said, prejudice to the health and safety of that interim administrator might result. Will it be spelt out in the court order which premises are envisaged?
Mr. Ainsworth: Opposition Members have repeatedly said during our proceedings that they have confidence in our court system and have effectively accused us of not having that confidence. The interim receiver will outline to the court the nature of the issue and the problem that he faces and will try to justify the powers that he requires in order to recover the proceeds of crime. If hon. Members are worried that the court will simply say, ''Oh, that's all right then'', and in any circumstances allow him to go away and do whatever he wants, that is a bit of a reversal of some of the allegations and accusations that they have thrown at us in previous debates.
Mr. Hawkins: The Minister makes a valiant and admirable attempt to bolster his argument. The point made by my hon. Friend the Member for Henley goes to the heart of the issue. There is nothing wrong with the provisions in clause 252 and, in the case of Scotland, clause 260, which we shall consider in due course, that cover the way in which the interim administrator acquires his initial power. However, it is a general power; it does not identify specific properties. The problem with paragraph 3 is that it provides that once the interim administrator has his general power he has an unfettered power to enter any premises. That is where the mischief lies, and a safeguard needs to be provided.
Mr. Ainsworth: The court will not give the interim administrator the general power to do what he likes, when he likes and how he likes unless he has managed to convince it, in the particular case, that that is necessary. The court will apply whatever restrictions it feels to be appropriate, before it votes such powers.
Mr. Stinchcombe: I simply do not recognise the breadth of the powers that the hon. Member for Surrey Heath asserts we are trying to establish. As I understand paragraph 3 of schedule 3, we are talking about a power to enter premises in the United Kingdom, and to undertake certain steps—[Interruption.] The word ''and'' is included. One does not simply enter; one enters in order to take any of the specified steps, such as
The order would therefore set out what one is entitled to search, and for what one is entitled to search.
Mr. Ainsworth: My hon. Friend is absolutely right. Under the civil proceedings—
Mr. Carmichael: I just want to remind the Minister that sub-paragraph (2)(c) goes beyond that, as it includes the words
Mr. Ainsworth: I am sorry; I cannot find that passage.
Mr. Carmichael: It is line 6 of page 263.
Mr. Grieve: The point being made is that this is not just a question of recovering property. It includes the right to obtain evidence—an even more extensive power than the recovery of property, which is the receiver's primary function.
Mr. Ainsworth: Opposition Members know that, as has been said repeatedly, the powers granted under this part of the Bill are modelled on civil recovery procedures, which are already in force and operate with regard to the civil law. Many Committee members are far more knowledgeable than I on this subject, and they know better than I do that civil procedure rules, which were recently updated, allow for search orders—formerly known as Anton Piller orders, as they are named after the particular case that first led to their being laid down—requiring defendants in civil recovery proceedings to allow claimants to search their premises for specific property. The power in schedule 3 is not unfettered, because it can derive only from a court order made under clause 252.
|©Parliamentary copyright 2001||Prepared 18 December 2001|