Proceeds of Crime Bill

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Mr. Ainsworth: The hon. Gentleman is concerned that we are, potentially, confiscating money—and an obligation to hand it back in its entirety—to a foreign jurisdiction, because that is where the request initially came from. We will act in exactly the same way in response to an external request, as we would in response to the internal workings of the Bill. Therefore, any money that is confiscated or realised as a result of civil proceedings under part 5 will be paid, through the appropriate route, into the Consolidated Fund.

Any repatriation of money to a foreign country will be agreed between this country and the country concerned, within the framework of either the bilateral agreement or the convention under which it is being operated. There will not be automatic repatriation of every penny that has been seized: issues such as the costs of carrying out the proceedings in this country will have to be considered beforehand, and representations will be made before repatriation takes place, if anyone feels that an inappropriate amount has been seized. With regard to that, the same procedures would be followed as within the main body of the Bill. That person would have an opportunity to make representations that a certain item was not realisable or confiscatable.

Mr. Wilshire: Those are helpful comments. Will safeguards and issues such as cost be considered at a later date, or will they form part of the Order in

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Council? In the latter case, will Parliament have an opportunity to consider those safeguards, or do we have to take the hon. Gentleman's word for it that it would be an administrative decision?

Mr. Ainsworth: They are not part of the Bill. The Bill gives us the power to use the procedures in response to an external request. They do not govern the international agreements between this country and others for the repatriation of all or part of the proceeds. The issue is not relevant to our deliberations. The provisions give us the ability to co-operate with external requests in exactly the same way as we would in respect of the internal workings of the Bill.

Chapter 3 of part 5 deals with summary confiscation of cash and that does not involve international co-operation. If a person is carrying a large amount of cash in this country, and that cash is either the proceeds of crime or intended for use in crime, it could be seized under chapter 3 of part 5. We do not presume that there will be an international dimension to those powers.

Mr. Wilshire: I am puzzled by that answer, and wonder whether the Minister will reflect on it. If a statue or a picture is the proceeds of crime, it may be seized and sold, and the money sent abroad. Is he saying that, if a person has cash that is the proceeds of crime, it cannot be seized by a foreign jurisdiction? That is extraordinary, because cash, not a statue or a picture, is the most portable and obvious way in which to take the proceeds of crime from one country to another.

Mr. Ainsworth: I understand what the hon. Gentleman is saying, but let me try to satisfy him. We need powers to respond to an external request in, say, chapter 2 of part 5. If there are considerable assets in this country that may be subject to civil recovery proceedings in, for example, the United States of America, an external request may be made, and we should be prepared to seize those assets. The issue of cash will be effectively dealt with, because cash that is discovered by a Customs and Excise officer or a police officer will be subject to the provisions under chapter 3 of part 5 and may be subject to court proceedings and civil recovery under part 3. That does not preclude the authorities in the United States of America from saying to the British Government at any time that the cash discovered at Heathrow airport belongs to that country and that we ought to consider whether any of it is recoverable.

We do not need powers under the Bill to be able to give that consideration. The powers are needed so that action can be taken against the person carrying the cash that is intended for use in crime, or is the proceeds of crime, under our bilateral arrangements with the USA. Whether some of the money is theirs or ours does not require to be established under the Bill.

Mr. Wilshire: I am becoming more worried, not less. Let us take the example of cash at Heathrow airport. I have seen Customs officers opening suitcases full of cash, but no crime has been committed because

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there are no restrictions on the amount of cash that can be brought into the United Kingdom. The provision is of no help if cash can be seized only when it is being brought into the country. Establishing whether a person should be subject to an external order will take some time—it cannot be done the moment that he has stepped off an aircraft at Heathrow with a suitcase full of $100 bills.

Mr. Ainsworth: Despite the hon. Gentleman tempting me, I have no intention of reopening the safeguards and the circumstances in which cash can be seized in this country, which we discussed when dealing with chapter 3 of part 5. We do not envisage cash being seized or the need for a power to seize cash in response to an external request. That does not cut across an external request being made to this country to say that cash that had been seized was the property of that country.

The hon. Gentleman asked why the provisions under subsection (3)(e) are not needed under clause 428. I remind him that that clause is about internal cross-border co-operation within the United Kingdom and that clause 429 deals with people having the right to be heard in a British court in response to requests being made by a foreign country. Those circumstances are different. There is a need for subsection (3)(e) under clause 429 to protect people's right, but not under clause 428.

Question put and agreed to.

Clause 429 ordered to stand part of the Bill.

Clause 430

External investigations

Mr. Grieve: I beg to move amendment No. 642, in page 250, line 27, leave out paragraph (b).

In this clause, further provision is made for external investigations. Subsection (1) states:

    Her Majesty may be Order in Council make—

    (a) provisions to enable orders equivalent to those under Part 8 to be made, and warrants equivalent to those under Part 8 to be issued, for the purposes of an external investigations.

I have no trouble with that, but subsection (1)(b) refers to a

    provision creating offences in relation to external investigations.

We are being asked to approve a provision that allows the creation of criminal offences in relation to external investigations. It will be made by Order in Council under the negative resolution procedure.

It is noteworthy that the penalties and criminal offences are not limited. It is not a matter of creating offences in relation to external investigations that are limited to or identical to the offences in relation to domestic investigations, although that may be what is intended. However, the way in which the provision is worded allows for the creation of criminal offences of an unlimited character for the purposes of external investigations. For reasons with which the Minister and the Committee may be familiar, that procedure does not commend itself to me as a way of legislating. It is a fairly unfettered power and I shall need a great deal of persuasion to go along with it.

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Mr. David Tredinnick (Bosworth): As Chairman of the Joint Committee on Statutory Instruments, I always view with some concern what could be brought into law through primary legislation that is presented to Committees in such a way. I am pleased that my hon. Friend is pursuing the matter, because it makes members of the Committee aware of an important principle. I hope that the Minister will bear that in mind.

Mr. Grieve: I am grateful to my hon. Friend. He has great experience. I served with him on that Committee during the previous Parliament and I know of the frequent problems that arise about unusual use of powers.

If the Minister wants, for the sake of simplification, to have similar offences of obstructing an external investigation to those of obstructing an internal investigation, the sensible action to take, if he wishes to proceed by Order in Council, is to spell that out. However, the Government have taken a short cut that could allow penalties and criminal offences to be created by an Order in Council that could be different to and wider than those that apply to the internal regime. I am sure that the Government do not intend that and that the Minister will reassure the Committee about the intention. However, good intention and good drafting are not necessarily the same thing. I am always prepared to give him brownie points for good intentions, but the drafting of the clause is deficient because the power is far too wide to be spelled out in this way.

12.30 pm

Mr. Wilshire: I listened with care to my hon. Friend because, for the reasons that he mentioned, this provision alarms me the most of all those that we have considered today.

If I, as a layman, understand the clause correctly—I am always willing to receive free advice from lawyers about my misunderstandings—it states what my hon. Friend said: an offence may be created by order. That is very strange, and it is stranger because the creation of an offence would relate to something that happened abroad, rather than in this country. I could be mollified to a point if I were told that the provision is necessary for things that happen in this country, but it is strange for such a draconian arrangement to be made for something that occurs abroad. As far as I know, the Bill does not grant that power for something that happens in the United Kingdom.

I can assume that the power is needed only because if something happened abroad that was not classed as an adequate offence in that jurisdiction, the order could make that an offence in this jurisdiction. We could be taking on the burdens of the rest of the world's sloppy draftsmanship, or allowing the Government to help the regimes and jurisdictions that we expressed grave worry about in previous debates. I do not understand why the power is necessary, and I hope that the Minister can reassure me.

Earlier, I was told that I should not have several of my worries because actions must be a crime in this country. I was told that the clause would satisfy my

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worries. Following that, my hon. Friend the Member for Henley has probably gone to check that the Elgin marbles are still where they should be. I was told that a statute of limitations—I think that I understand that—would be relevant to something that was nicked from Athens a long time ago, as the Greeks would see it.

I was told not to worry, because the alleged theft of the Elgin marbles happened so long ago that it would not be a crime in this country. However, we are considering a provision that says that if it suits a purpose, we may create an offence of stealing the Elgin marbles several hundred years ago. If necessary, the Government could make anything a crime if it suits their purpose to help a person abroad. That is very strange.

My hon. Friend the Member for Beaconsfield is a kind, generous and gentle man. He says that he is always sure that the Government's intentions are for the best. I come from a different brand of politics and I am not so certain that the Government's intentions are benign on all occasions. I need great reassurance to explain why their intentions will be adequate. If the Minister tells us that there is no intention to misuse the power, it should be written in the Bill. That must be on the record so that courts that are faced with a decision of a high-handed bureaucracy may see that the Government said that they did not intend to use the power in that way.

I would be grateful to know what sort of issues the Government have in mind, because in a previous debate, the Minister of State, Scotland Office, told us that we were not to worry, as the issues were not substantial. We never discovered what they were. I hope that the Under-Secretary will not simply say, ''Don't worry, it's all right, this is fairly minor and will not cause any great upset.'' That will not do. He must say in what sort of circumstances he wishes to invoke the power.

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