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Mr. Ainsworth: That is what I was saying I was happy to consider—but I ask the hon. Gentleman to accept that there are reasons for the particular wording of the provision. We need to understand the consequences of any changes that we make. As I have said, if the present wording would rule out the participation in those decisions of some people with expertise, and if we can include them—and nothing more than that—by using other words, we would consider doing so.
Mr. Grieve: I am grateful to the Minister for that response, but I am somewhat mystified by his objection to the amendment. It would not in any way preclude the rules of court enabling the applications to be made ex parte. The hon. Gentleman may wish to raise the matter with his advisers, and I defer to him, and to them, with regard to it.
The important thing is the intention to bring those other people in, because that would be beneficial. I would be content if that could be achieved by employing a form of words different from those in my amendment. However, I do not understand why my form of words should have the unintended consequence that has been suggested, and I ask the Minister and his advisers to reconsider whether that would be the case.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 332 ordered to stand part of the Bill.
Clauses 333 and 334 ordered to stand part of the Bill.
Clause 335
Requirements for making of production order
11 am
Mr. Grieve: I beg to move amendment No. 549, in page 194, line 33, at end add—
'(5) There must be reasonable grounds for believing that it is in the public interest having regard—
(a) to the benefit likely to accrue to the investigation if the material is obtained
(b) to the circumstances under which the person in possession of the material holds it.'.
The Chairman: With this we may discuss the following amendments: No. 554, in clause 342, page 199, line 5, at end insert—
Column Number: 1199
'(d) that there are reasonable grounds for believing that it is in the public interest having regard to—(i) the benefit likely to accrue to the investigation if the material is obtained; (ii) the circumstances under which the person in possession of the material holds it.'. No. 559, in clause 347, page 201, line 30, at end add—
'(4) There must be reasonable grounds for believing that it is in the public interest having regard to—
(a) the benefit likely to accrue to the investigation if the information is obtained;
(b) the circumstances under which the person in possession of the information holds it.'.
No. 562, in clause 360, page 208, line 31, at end add—
'(6) There must be reasonable grounds for believing that it is in the public interest having regard to—
(a) the benefit likely to accrue to the investigation if the information is obtained;
(b) the circumstances under which the person in possession of the information holds it.'.
Mr. Grieve: The clause sets out the requirements for the making of a production order. They demand that certain ground rules should be observed. For instance, there must be reasonable grounds for suspecting that,
''in the case of a confiscation investigation, the person the application for the order specifies as being subject to the investigation has benefited from his criminal conduct''.
There must also be
''reasonable grounds for believing that the person the application specifies as appearing to be in possession or control of the material so specified is in possession or control of it.''
Those are serious powers. I am sure that the Minister would readily accept that, potentially, they involve a substantial interference with individual rights that are upheld under our law. For someone to knock on one's door, make demands and require answers to questions is an interference with the liberty of the subject that should be carried out only on good and sufficient grounds.
The Drug Trafficking Act 1994—the original legislation on the matter under discussion—contained public interest protection clauses identical to those that I wish the Bill to include. They are that there must be
In the explanatory notes, the Bill's draftsman informs us that because the Human Rights Act 1998
''requires a judge not to act in a way that is incompatible with Convention rights'',
it is no longer necessary for the legislation to contain the public interest test, and that it has therefore been deleted. That is a major change from the way in which other relevant legislation has been framed.
I highlight that alteration because I am not persuaded that the two tests are identical. The public interest test that the earlier legislation required to be fulfilled is, by its nature, likely to be higher than the balancing act of proportionality that would have to made under human rights legislation.
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Ever since the introduction of the Human Rights Act, I have been troubled by something that I regard as an unintended consequence. As the Committee may be aware, I was one of the few members of my party to show considerable understanding of the intentions behind the Human Rights Act 1998. However, since its introduction, which provided what I always believed would be a baseline—the safety net—on which the structures of justice would be built, I have been concerned because all too often, that baseline has been used as the norm. During that process, various safeguards that were previously regarded as absolutely normal under the law have suddenly been put in the dustbin because we have been assured that they are no longer necessary to ensure that our legislation is compatible with convention rights. That is why I thought it right to highlight the matter by reinserting the public interest provisions.
This is not a probing amendment. I am open to persuasion, but I shall need a lot of persuasion to believe that public interest provisions can safely be jettisoned because the Human Rights Act replaces them. Although I do not claim great expertise on that Act, it causes me considerable concern to see such measures discarded.
Norman Baker (Lewes): I draw the hon. Gentleman's attention to the front of the Bill, which states:
''In my view the provisions of the Proceeds of Crime Bill are compatible with the Convention rights.''
Surely each provision should be deemed to be so compatible rather than deleting other provisions, thereby relying on a backstop in case of any challenge.
Mr. Grieve: I agree. My difficulty is that on several occasions since the passing of the Human Rights Act we have been told that, although different safeguards that were previously deemed important under English law are going out of the window, the new legislation is still compatible with the Human Rights Act. As the hon. Gentleman knows, people have expressed grave misgivings about the judicial systems of some countries that are signatories to the European convention on human rights. It had not crossed my mind that we were about to reduce ourselves to the lowest common denominator of compliance with the human rights convention, and it was to be the central pillar of our legal system. I have always thought that we should be doing rather better than that. Indeed, in the past and in many areas of our law, we have done considerably better than that.
Mr. Stinchcombe: An alternative analysis could be that through incorporation of the European convention on human rights, we have introduced substantive rights so that other previous protections are no longer necessary. How did the hon. Gentleman reach his analysis?
Mr. Grieve: I have made the position clear: I said that I was open to persuasion by the Minister that the protections afforded under the Human Rights Act—in its text and in the way in which it has been interpreted—are such that the safeguards of the public
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interest argument are no longer required. If the Minister can persuade me that protection under the Human Rights Act is greater than that provided by the public interest tests, I shall have no difficulty in accepting the clause. However, if he cannot do that, I want the Committee to consider why it was decided to remove the public interest requirements.
I shall now mention another matter that I should like to explore with the Committee, but to which I do not have an immediate answer. The test under the Human Rights Act may be slightly dissimilar to the public interest test, so it could be argued that the two protections should be included, because one complements the other, and they should be allowed to interact. I hope that the Committee can have a brief discussion of such matters, and the best thing now would be to give the Minister the opportunity to reply and give his officials' view of the background.
Stephen Hesford (Wirral, West): Subsection (4) should be read in the light of the preceding subsections in the clause. Is not the hon. Gentleman's argument too pernickety? It is clear if one reads the clause that a production order must be made on the grounds of public interest. Is that not inherent in the clause? If that were not the case, an application for a production order would not get past first base.
Mr. Grieve: When I respond to interventions it is sometimes difficult to find my place in my notes. I have compared the clauses with the pre-existing provisions, and I may be wrong, but my recollection is that in the previous legislation the words ''substantial value'', as used in subsection (4), were married with the public interest test. I am now glancing at section 55 of the Drug Trafficking Act 1994, and can see that the two are put together there. Clause 335(4), which the hon. Gentleman rightly highlighted, is not a substitute for the public interest test contained in the 1994 Act. Section 55(4) of the 1994 Act states:
''(b) that there are reasonable grounds for suspecting that the material to which the application relates—
(i) is likely to be of substantial value (whether by itself or together with other material) to the investigation for the purpose of which the application is made; and
(ii) does not consist of or include items subject to legal privilege or excluded material; and
(c) that there are reasonable grounds for believing that it is in the public interest, having regard—
(i) to the benefit likely to accrue to the investigation if the material is obtained, and
(ii) to the circumstances under which the person in possession of the material holds it,
that the material should be produced or that access to it should be given.''
I have looked at the old legislation and I do not think that clause 335(4) alters my point. I accept that the Human Rights Act 1998 might alter the necessity for the subsection that I am trying to re-insert, but I should like to be persuaded of that.
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