Proceeds of Crime Bill

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Mr. Davidson: When the Minister responds, will he clarify whether the appointed person will be instructed to accept that mistakes will inevitably be made? Mistakes, or seizures without successful results, should not be a cause for rebuke. Will the appointed person be guided to accept that it is far better—if necessary—for a considerable number of innocent people to be inconvenienced by searches either of their premises or their persons, rather than for those who consistently trade in death-dealing drugs to be allowed to go free?

As a Parliament, we should accept that even if most searches prove unsuccessful, the police should not be unnecessarily fettered. The nearest parallel is the current regular searches of young people in my area for knives. Most such searches are unsuccessful, but the knowledge that they are carried out regularly has had a major effect in reducing the percentage of youngsters who carry knives. The prospect of a search undoubtedly deters many youngsters from carrying knives, and the exercise of powers being unnecessarily criticised by an independent person would not be helpful. I hope that my hon. Friend can accept that.

Can my hon. Friend also assure me that the appointed person need not be a lawyer?

Mr. Carmichael: Although it is, of course, preferable that he should.

There is some force in the arguments of the hon. Members for Spelthorne and for Surrey Heath, in relation both to the appointment of the person—it would be of benefit if more details were set out in the Bill—and to the force behind the report and its

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recommendations when it is laid before Parliament. Under the Bill, the appointed person can make any recommendation that he wants, but that is as far as it goes. Such matters simply disappear into the ether at that point. I would prefer some reference to be made in the clause to the idea that if a recommendation were not followed, a Minister should be obliged to give a reason for that refusal. That is not an unreasonable burden to place on a Minister. I can think of any number of reports containing cogent and well argued cases from the Law Commission and other bodies that land on Ministers' desks and stay there gathering dust. If the appointed person is to have power, that would be a fairly sensible way in which to ensure that it is exercised.

I observe in passing that the clause is not well drafted. For example, it states:

    ''The report must give his opinion''.

That is meaningless. Presumably, the report must give the opinion of the appointed person. That may sound picky, but the present drafting is inelegant.

6.30 pm

Mr. Ainsworth: Until the hon. Gentleman's last point, he was making a good case for the appointed person to be a lawyer—but his last point seemed to undermine it.

The powers are potentially intrusive and Parliament must satisfy itself that they will be used appropriately. The purpose of this procedure is to ensure that the powers and the manner in which they are used are subject to public scrutiny. We do not intend the individual to report on every case—I hope that I have not misled the Committee in that respect. He will require reports to be made to him when appropriate, and those reports will cover such issues as the reasons to suspect that cash was the proceeds of crime or was intended to be used for crime, in addition to the justification for conducting a search without prior judicial authority. We do not intend the individual's subsequent report to go into the details of every case, which was part of the point made by my hon. Friend the Member for Glasgow, Pollok (Mr. Davidson). The individual should report to Parliament giving his opinions of the way in which the powers have been used, to allow us to check on an annual basis that they are not being abused, and to take action if they are.

As I said in response to the hon. Member for Spelthorne, the appointed person will be independent and assigned by Ministers to oversee the exercise of the search powers. There will be a separate individual for Scotland, who will be appointed by Scottish Ministers. The terms and conditions of those individuals are yet to be decided by the appointed Minister. We envisage that the post will be part-time, and it may be suitable for a person such as a retired judge.

My hon. Friend the Member for Glasgow, Pollok is probably right about what should and should not be included. However, if the appointed person is to be independent, it will be for him or her to decide how to structure the report. We do not want Ministers to tell the person what they will and will not report. That

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person will examine how the powers are being used and will report on that, and on the trends of use, and will make recommendations if he or she has worries.

Mr. Wilshire: I can understand why the Minister has not yet undertaken detailed consideration of the terms and conditions of the independent person. Is he able and willing to consider the matter before Report? That is important because the process is a vital safeguard against the abuse of a major power. Will he give us further information on Report?

Mr. Ainsworth: As I said, this is as far as we have gone at the moment. We want to move on as quickly as possible and give all hon. Members as much information as we can. However, I have mentioned the type of person that we are considering. We do not want to fetter the report. We want the appointed person to examine the way in which the powers will be used, to give his or her opinions and to make recommendations. We want to ensure that the recommendations are public. The hon. Member for Orkney and Shetland expressed concern that the process ends there and there is no requirement to act on the recommendations—but if a report is made and its recommendations are ignored, no Minister of the day will get away without commenting on those recommendations and giving reasons why they are rejected, or not acted upon. That is the nature of our parliamentary procedure, and I do not think that there will be a problem. If the report makes public recommendations, Ministers must respond to them.

Mr. Wilshire: I did not ask whether the Minister would give further thought to the independent person now. I asked whether he would be able to give us more information on Report. I repeat that: will he give us an undertaking to provide more details on Report?

Mr. Ainsworth: If things have moved on, obviously I will. I am also prepared to listen to any suggestions that the hon. Gentleman has about the structure. If he wishes to feed those in, either now or on Report, I will be happy to listen to him. As I have tried to tell him, it is not our intention to be secretive. We do not think that a full-time post is justified, and we require someone with some judicial experience, so the post may be appropriate for a retired judge. If we clarify our thoughts before Report, I will give the hon. Gentleman the benefit of our decisions.

Mr. Wilshire: I am grateful to the Minister for inviting me to make suggestions. One comes to mind immediately: in order to stress the person's independence from the Executive, will the Minister consider making the appointment subject to the approval of Parliament?

Mr. Ainsworth: No, I will not. We do not intend the person to be an employee of the Government, or anyone who cannot be deemed independent. The person will be someone with a legal and judicial background. The hon. Gentleman's fears are not justified.

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Mr. Davidson: I am grateful to the Minister for giving way to me on the question of whether the person's independence would be increased if he or she were approved by Parliament. I should think that a Parliamentary vote, with the Whips operating in all parties, is less likely to make the person appear independent—unless Government Whips, former Whips and Opposition Whips have decided, as a new year's resolution, to allow Members to make up their own minds. I doubt that they have.

Mr. Ainsworth: My hon. Friend's comments about former Whips are getting very personal, and I shall not rise to the bait.

The scheme that we propose is similar to that currently provided under the Immigration and Asylum Act 1999, in which an appointed person produces an annual report on refusals for entry clearance. That system was first introduced under the Asylum and Immigration Appeals Act 1993. It provided independent scrutiny of the refusals of entry clearance applications presented to Parliament. That is the kind of system that we envisage in this case.

Clause 290, as amended, ordered to stand part of the Bill.

Clause 291

Code of Practice

Mr. Grieve: I beg to move amendment No. 453, in page 169, line 26, leave out subsection (6).

The Chairman: With this it will be convenient to take amendment No. 454, in clause 292, page 170, line 4, leave out subsection (6).

Mr. Grieve: In subsection (6) of clause 291, which deals with the code of practice, there is a rather curious reference that also features in the Scottish clause. It says:

    ''A failure by a customs officer or constable to comply with a provision of the code does not of itself make him liable to criminal or civil proceedings.''

That is followed by subsection (7), which states:

    ''The code is admissible in evidence in criminal or civil proceedings and is to be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant.''

I find the inclusion of subsection (6) mystifying. Clearly, we do not intend to create a specific offence of failure to comply with the code. If we were to do that, we would have to pass specific legislation. I ask myself why subsection (6) is included. As subsection (7) is also present, it is apparent that a person could bring a civil action for accepted and existing torts, and include within that a claim, based on evidence, of failure to comply with the code. Similarly, it might be possible to bring a criminal charge against a customs officer or constable that would include, as part of the evidence, a failure to comply with the code.

What is subsection (6) trying to achieve? I need to be persuaded that its inclusion will not provide some form of statutory protection. If that is not the reason

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for it, I do not know why it is included. If it were removed, no damage would be done, and I find its presence odd.

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