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Mr. Heath: I think that the hon. and learned Lady is right. Had I not been trying to amend what the Government have proposed, I should simply have used the formula in my amendment, of someone with
''such a relationship to that person that their safety can reasonably be regarded to be at risk''.
That is the discretion that needs to be applied by the investigating and protecting authorities. They will not use their budgets for that purpose lightly and it seems odd to exclude anyone who might need that protection from consideration.
The Minister has said that she will consider the matter again, and I do not want to prolong the debate. We have had a good exposition of some of the issues and I am grateful to the Minister for at least listening to what I have to say. On that basis, at this stage I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made: No. 33, in clause 86, page 50, line 20, at end insert—
'(7A) A reference to a person who is or has been a member of staff of an organisation includes a reference to a person who is or has been seconded to the organisation to serve as a member of its staff.'.—[Caroline Flint.]
Clause 86, as amended, ordered to stand part of the Bill.
Clause 87 ordered to stand part of the Bill.
Clause 88
Mutual assistance in freezing
property or evidence
Question proposed, That the clause stand part of the Bill.
Mr. Grieve: I tabled an amendment that would have deleted the clause, but that was not my purpose. I really wanted to alert the Minister to the fact that I should like an explanation about what is intended. As I understand clause 88, it puts into effect the Council framework decision 2003/577/JHA, which must be accomplished by primary legislation because it falls outside the scope of ordinary European Union directives. It deals with the execution in this country of orders freezing property or evidence. It would useful if she could outline how she expects the system to work in practice before we enact an important piece of primary legislation.
Caroline Flint: Much of our discussion has been about recognising the way in which organised crime works. It is global activity, trading and working across national borders, so we need an international approach to tackling it. The clause embraces that approach, allowing the UK to implement obligations arising from the EU framework decision on freezing property and evidence. The key objective of this EU decision is to establish the rules by which member
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states recognise and execute in their respective territories freezing orders issued by the judicial authority of another member state. Such freezing is vital if property which would be liable to confiscation as the proceeds of crime is not to disappear. This is a significant example of what can be achieved through co-operation between member states, based on the principle of mutual recognition in criminal matters.
That approach was endorsed by the EU Heads of State and Heads of Government at the European Council in Tampere on 15 and 16 October 1999, assuming that competences in the decision to be recognised and acted on would always be taken in compliance with the principles of legality, subsidiarity and proportionality. The clause allows the Secretary of State, or Scottish Ministers, to implement these obligations by order under the affirmative resolution procedure, rather than by having to enact primary legislation. The power vested in the clause to create such provisions is also subject to certain qualified restrictions. We therefore envisage it enabling the UK to freeze property or assets suspected to be the proceeds of crime more quickly and with less formality than at present. Such freezing should only be a short-term and temporary measure, and must be followed up quickly by a formal request for confiscation. It is something that we and our European colleagues will gain from. I hope that that answers the hon. Gentleman's query.
Mr. Grieve: I simply raise this question as the devil always lies in the detail. I want to make it clear that I am not objecting to the Council framework decision 2003/577/JHA, but if its enactment is going to be complex, I would usually think it good for that to be done in primary legislation. The problem, as the Minister knows, is that its enactment is not simple and we have the opportunity only for a short debate on a statutory instrument. From my experience, that is when we start making mistakes. Would it not be better to have primary legislation to initiate what is quite an important piece of an international co-operation treaty that is to be enacted into British law?
Caroline Flint: The implementation of the framework decision on property that is liable to confiscation is particularly complex given our own extensive provisions in the Proceeds of Crime Act 2002 and the differing powers enjoyed by other EU member states. I fear it has not been possible to finalise our proposals in time for this Bill. Had we included any such provision, it would have considerably lengthened and complicated the entire measure. Similar consideration did not arise as regards implementation in the context of terrorist property and evidence, which was achieved in the Crime (International Co-operation) Act 2003. As I said, the affirmative resolution measure also allows for debate in Parliament.
Mr. Heath: Will the Minister assure us that any secondary legislation will be based on full reciprocity with applicable measures of other states?
Caroline Flint: Yes.
Question put and agreed to.
Clause 88 ordered to stand part of the Bill.
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Clause 89
Confiscation orders by magistrates' courts
Mr. Grieve: I beg to move amendment No. 216, in clause 89, page 52, line 1, leave out subsection (3).
I have a sense of déjà vu when I see the provisions of the Proceeds of Crime Act come back to haunt me. It is amusing and quite instructive to see circumstances—we shall consider them in a moment—in which it has been found necessary to tweak that legislation, despite the 36 sittings in Committee in which, I seem to recall, some of us here today participated.
The first tweak is rather straightforward. I may have misunderstood clause 89, but I thought that it referred to variations that the Secretary of State might wish to make for confiscation order purposes in relation to part 2 of the 2002 Act and part 4 of that Act in relation to Northern Ireland. When I saw subsection (3), I was a little startled to discover that any order that the Secretary of State chooses to make could
''amend, repeal, revoke or otherwise modify any enactment.''
That does not show much confidence on the part of the parliamentary draftsman that amending parts 2 and 4 would not have the most hideous knock-on consequences.
3.45 pm
As the Minister probably knows, I think it a somewhat Henrician clause. In the circumstances, I am a bit troubled by it. I should be grateful if she could explain why subsection (3) was thought necessary. It appears to give the Secretary of State extensive powers, over and above what Parliament would normally give except with very good reason.
Mr. Andrew Mitchell (Sutton Coldfield) (Con): I hesitate to display my ignorance to the Committee and to my hon. Friend, but will he enlighten us on what he means by a Henrician clause?
Mr. Grieve: A Henrician clause is one that has Henry VIII qualities.
Mr. Heath: Not Henry III?
Mr. Grieve: I always thought it unfair to Henry VIII. Other monarchs would have liked such powers.
It is an extensive power, and I should like to know why it was felt necessary to include it in subsection (3).
Caroline Flint: I thought that the hon. Gentleman was going to raise again the point about the magistrates courts. He is particularly interested in that because of his experience on the Committee that considered the Proceeds of Crime Bill.
The Attorney-General and others asked us to make the clause available to make better sense and use of effecting what we wanted from the 2002 Act. I am not sure that my answer will satisfy the hon. Gentleman—I am not sure that it satisfies me—but it might be possible to restrict ''any enactment'' in clause 89(3) to the relevant parts of the 2002 Act. If necessary, I shall seek further information.
Mr. Grieve: If I understand the Minister's reply correctly, she is suggesting that it would be possible to
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amend subsection (3) so that it is not quite so wide and sweeping. That is reassuring.
Caroline Flint: I have some more information. I understand that the Delegated Powers and Regulated Reform Committee in another place will be looking at all the delegated powers in the Bill, including those in clause 89(3). We will carefully consider any recommendations that the Committee makes. I am afraid that that is as clear as it is ever going to be.
Mr. Grieve: I am even more grateful for that helpful comment. It is pleasant to be reassured that it was not an attempt by some underhand method to introduce a widespread abuse of power.
The Minister does not need to persuade me of the value of making confiscation orders in the magistrates court. I have had a number of discussions with members of the Government about the matter. It was pretty apparent at an early stage that it should have been in the original legislation. To that extent, I welcome it. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 89 ordered to stand part of the Bill.
Clause 90
Civil recovery: freezing orders
Mr. Grieve: I beg to move amendment No. 217, in clause 90, page 53, line 23, at end insert
(c) to meet his reasonable legal expenses'.
The Chairman: With this it will be convenient to discuss amendment No. 235, in clause 90, page 56, leave out lines 3 and 4.
Mr. Grieve: I suppose that, having welcomed clause 89, I should be even more welcoming of clause 90 in its generality. When the 2002 Act first went through Committee, the possibility of having freezing orders, rather than appointing receivers, had not been entirely thought through, although it was touched on, and I remember some interesting discussions outside the formal setting of the Committee. The fact that we shall now have freezing orders strikes me as a very good thing.
The other thing that the Government are doing in the Bill, as they indicated on Second Reading, is taking the view that someone should be able to pay their legal expenses out of frozen assets if that is thought reasonable. There is a big history to this issue and it rang such a bell in my mind that I went off to dig out the Official Report of the Committee that considered the Proceeds of Crime Bill. I found that I had said the following:
''Will you end up with a legal aid bill of £5 million for convicting Mr. Big, without any regard to the fact that the money that was restrained and recovered would have covered that amount? That is bad PR for the legal system. Will the Minister explain how the system is designed to work?''—[Official Report, Standing Committee B, 29 November 2001; c. 375.]
I might add that the Minister then explained that that was exactly what was intended and that legal aid would be made available. So, the Government's
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change of heart is, I suppose, even more welcome, because it follows my original suggestion exactly.
My query, which relates to amendment No. 217, is that I assume that legal expenses are regarded as part of reasonable living expenses. If it is the Government's intention that they are not to be seen in that way, however, should we not spell that out? On Second Reading, the then Home Secretary made it clear that that was his intention. If I have misunderstood the position, I would be grateful if somebody could clarify it for me.
Amendment No. 235 relates to clause 90 and page 56, and they highlight something that is slightly odd. The Scottish provisions include an express provision excluding a person from taking money to meet legal expenses, which muddied the waters for me even further. I therefore tabled the two probing amendments to try to understand exactly what the Government intend.
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