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Standing Committee B
Tuesday 5 February 2002
[Mr. Roger Gale in the Chair]
The Chairman: Good morning, ladies and gentlemen. On my way here I was musing whether we should perhaps have arranged home visits for some members of the Committee—but some things are beyond the power of even the Chairman. There is light at the end of the tunnel, however, and if hon. Members keep digging, they should break out at the appropriate time tonight.
Mr. Nick Hawkins (Surrey Heath): On a point of order, Mr. Gale. The only question in our minds is whether the light at the end of the tunnel will be that of an approaching train about to run us over.
The Chairman: Happily, that is not a question for the Chair, but the hon. Gentleman may wish to consider it on Report.
Enforcement in different parts of
the United Kingdom
Mr. Dominic Grieve (Beaconsfield): I beg to move amendment No. 640, in page 249, line 37, leave out subsection (4).
We now come to part 11, which is about co-operation, and deals with several important provisions that the Committee needs to consider. Clause 428 provides for enforcement in different parts of the United Kingdom. There is no dispute about the fact that it will be desirable for Orders in Council to make provision for enforcement from one part of the United Kingdom to another. When reading the clause, however, I was struck to note that, under subsection (4),
An Order under this section may—
(b) apply an enactment (with or without modifications).
I should be grateful if the Minister would enlighten the Committee about what is envisaged there, because enabling enactments to be amended by an Order in Council is a broad power. I also note that such a procedure will be subject only to negative resolution. I shall be grateful to receive an explanation, so that the Committee can consider whether such a power is required.
Mr. Hawkins: I wish to add to what my hon. Friend has just said. I was also surprised by the broad terms of subsection (4), and I wonder whether such stark terms have been used in other Bills. Given that the negative procedure will be used, such a provision gives enormously sweeping powers for the enactment of secondary legislation. When the Minister responds to my hon. Friend, will he cite an example of recent legislation that contains such stark words? If the
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Government intend to use such provisions as standard practice, it is deeply worrying. They would be wise not to draft such powers, so that we will know their intentions not only under this Bill, but concerning other matters.
Mr. David Wilshire (Spelthorne): On a personal note, Mr. Gale, may I say that when you spoke, you sounded as bunged up as I feel this morning. I apologise in advance if I have a sneezing fit.
Most of the issues that I want to raise about the clause are better suited to being discussed under clause stand part. As my hon. Friend the Member for Beaconsfield (Mr. Grieve) said, this part of the Bill is about co-operation. However, subsection (4) does not sound much like co-operation. It sounds like the Government dictating what they want to do, without reference to Parliament other than through an Order in Council. I would be anxious even if the provision said:
An Order under this section may—
(a) amend this enactment.
but it does not say ''this enactment''; it says ''an enactment''.
My hon. Friends have already asked some questions, and there are some more questions to which I would like an answer. We have spent what seems like four years—although I suspect that it is only four months—discussing what provisions are required, and whether there are too many or too few. After all that time, why are the Government giving themselves powers to change an enactment by Order in Council? That is extraordinary.
After four months, I can see a glimmer of what goes on in lawyers' minds and I have learned to look at every word carefully. A provision to ''amend an enactment'' presumably covers any Act that is still on the statute book and affects any part of the United Kingdom. Why, then, do we need Bills at all? Why do we need to discuss Bills on Second Reading and in Committee? There seems little point, if the Government can say, ''In future, you can talk as long as you like in Committee. You can talk for weeks, months or years, but at the end of it all, there will be an order-making process that allows the Government to change anything they like.''
The power to change an enactment under an Order in Council does not even have to relate to the proceeds of crime. It could be used to change any enactment—an enactment about the national lottery, for example. Perhaps the Minister will tell us what enactment he has in mind.
Subsection (4) states:
An Order under this section may . . .
(b) apply an enactment (with or without modifications).
Members of Parliament have spent years in the Chamber and in Committee debating and voting on which measures should come into force when. That will no longer matter, because a Government will be able to bring into effect any Act of Parliament that they like—at any time and for any reason—by using the Order in Council procedure set up under the Proceeds of Crime Bill. It is amazing that the
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Government are seeking that power in respect not only of the Bill, but of other legislation throughout the country.
Mr. Paul Stinchcombe (Wellingborough): I understand the force of the hon. Gentleman's comments, and I will listen carefully to what the Minister has to say about the breadth of the power. However, the power will not be as broad as the hon. Gentleman is arguing, because the words
An Order under this section
mean that the order would still have to be made under clause 428, and be for the purposes of that provision.
Mr. Wilshire: I find that interesting; it is always useful when a lawyer comes to my rescue and educates me further, and I am grateful for it. However, I still do not understand why an Order in Council under the subsection will give general powers. It does not say under the subsection that an Order in Council may amend an enactment that has something to do with the provisions of the Bill. It just says ''an enactment''. I have learned to have a great deal of respect for lawyers, and it will not be beyond the wit of the Government's lawyers to realise that under that provision, they can do anything. I will be fascinated to hear how the Minister wriggles out of that.
The Minister of State, Scotland Office (Mr. George Foulkes): I am pleased to be moving—
Mr. Grieve: At last.
Mr. Foulkes: Yes, at last, and right at the end of our deliberations. In this case, I am responding to the amendment. Last night, I was consorting with the hon. Member for Surrey Heath (Mr. Hawkins) over a glass of beer. He was pining for my hon. Friend the Member for Glasgow, Pollok (Mr. Davidson), who has gone off somewhere else, and was in such desperate need of company last night that he even spoke to me. He has now asked a perceptive question—which I did not plant on him last night. It is a pity, however, that I did not meet the hon. Member for Spelthorne (Mr. Wilshire) as well, because as usual, not content with going off at one tangent, he has gone off at quite a few different tangents.
The effect of the amendment would be that an Order in Council made under the clause could not be used to amend or to apply, with or without modifications, any other enactment. The provision that the amendment would delete already exists in previous legislation. I draw the Committee's attention to section 37(4) of the Drug Trafficking Act 1994—I wonder who was in government when that Act was passed; perhaps you recall, Mr. Gale.
The hon. Gentleman's question is perceptive, but the provision is not unique or new, and it has not suddenly been drawn out of the hat. There are good reasons for including it. Its purpose is to support powers related to the territorial enforcement of orders, warrants or postholders' functions. I hope that hon. Members will agree that it is important for such orders to be enforced throughout the United Kingdom, so that there can be no hiding place for drug barons.
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Mr. Grieve: I agree that most of the clause refers to that, so the measure seems to be mainly procedural. However, subsection (3)(a) refers to
provision conferring and imposing functions on the prosecutor and the Director.
Does it not, therefore, go slightly further than the mere process of registering and enforcing in different parts of the United Kingdom? The clause seems to extend to altering, or adding to or subtracting from, the powers that we have already discussed extensively.
Mr. Foulkes: We may come to that point under clause stand part, rather than dealing with on the amendment—and that will give me more time to think about it, too.
Subsection (1) deals with orders and warrants issued in confiscation proceedings and investigations under part 8. Subsection (2) deals with the functions of a receiver or, in Scotland, an administrator in confiscation proceedings. It will almost certainly be necessary to amend or apply other enactments to ensure cross-border enforcement of orders and warrants made under part 8.
It might help the Committee if I give an example; I always find it easier to envisage things when a practical example is provided. An Order in Council was made in 1988 under the now repealed Drug Trafficking Offences Act 1986. It was entitled the Drug Trafficking Offences (Enforcement in England and Wales) Order 1988, (S.I., 1988, No. 593). That statutory instrument dealt with the enforcement in England and Wales of drug-related restraint orders made in Scotland. It applied the Land Charges Act 1972 and the Land Registration Act 1925, which both relate to England and Wales. That allowed for the protection in England and Wales, by registration under those measures, of restraint orders made in Scotland by the Court of Session under the Criminal Justice (Scotland) Act 1987. That Act is the relevant Scottish measure for the confiscation of the proceeds of drug trafficking.