Schedule
2
Offences
where terrorist connection to be
considered
Amendment
made: No. 137, in schedule 2, page 71,
line 33, leave out paragraph (b).—[Mr.
McNulty.]
Schedule
2, as amended, agreed to.
Clause
32
Forfeiture:
terrorist property
offences
Mr.
Grieve:
I beg to move amendment No. 170, in
clause 32, page 22, line 1, leave
out from ‘used’ to ‘for’ in line
2.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 130, in
clause 32, page 22, line 5, leave
out ‘or under their
control’.
No.
171, in
clause 32, page 22, line 8, leave
out
‘or had reasonable
cause to
suspect’.
No.
131, in
clause 32, page 22, line 9, leave
out ‘or
might’.
No.
172, in
clause 32, page 22, line 21, leave
out
‘or had reasonable
cause to
suspect’.
No.
132, in
clause 32, page 22, line 22, leave
out ‘or
might’.
Mr.
Grieve:
The clause deals with the forfeiture of terrorist
property. I wish to make it clear to the Minister that I have no
objection in principle to the idea that terrorist property should be
forfeited. However, we perceive that a problem arises about whether the
wording of the clause is too wide. It
states:
“Where
a person is convicted of an offence under section 15(1) or (2) or 16,
the court may order the forfeiture of any money or other property
which, at the time of the offence, the person had in their possession
or under their control and
which—
(a) had
been used for the purposes of terrorism,
or
(b) they intended
should be used, or had reasonable cause to suspect might be used, for
those purposes.”
In what
circumstances should I have a reasonable cause to suspect that money
might be used for a terrorist purpose?
For example, a large number of
organisations in this country, some of which are registered charities,
raise money for the relief of destitution, poverty and misery in the
middle east, particularly the occupied west bank. From time to time,
there are reports in national newspapers that one or other of those
organisations is not fulfilling its charitable purposes, and that it is
possible that money given by donors in this country is ending up in the
hands of those who are promoting violence, and that they are using it
to fund that violence. Seeing the generic nature of the anxiety that
had been expressed, it must at least be the case that, if confronted
with an organisation that seems to be a registered charity in this
country and that otherwise has bona fides, I might have to say to
myself, “I cannot say that I don’t have cause to suspect
that it might be used, even though I have no evidence that it will be
used as such at all.” I put it to the Minister that that
illustrates my point better than any more of my speech making would do.
I am worried that we might be extending the net too far through our
wording.
3.45
pm
Mr.
Hogg:
Perhaps an even more serious problem can arise,
although my hon. and learned Friend has identified a proper point. Let
us consider circumstances in which,
for example, the person is the owner of a garage. He is in possession of
a car that is owned by a third party. The third party is entirely
innocent, but the garage proprietor suspects that the car will be used
in a terrorist offence. The property owned by the innocent third party
is subject to forfeiture. If the Minister would be good enough to look
at clause 34, he will see that, although there is a right for the
innocent third party to make representations, there is no clear
guidance as to the criteria that the court should observe when
determining whether to make an order that will have a serious effect on
the innocent third
party.
Mr.
Grieve:
My right hon. and learned Friend makes an
extremely important point that we might cover a little more closely
when we reach clause 34. However, it is a point that the Minister
should answer during our
discussions.
As the
Minister will appreciate, the purpose of the group of amendments is to
amend the clause not, I hope, to negate its efficacity in forfeiting
terrorist property.
Mr.
McNulty:
The word is efficacy rather than
efficacity.
Mr.
Grieve:
The right hon. Gentleman is probably
right.
Mr.
McNulty:
That means that I
am.
Mr.
Grieve:
We must ensure that the net is not cast too
widely.
Mr.
Hogg:
May I reinforce the point that I have just made by
way of an intervention because it does raise rather an important issue.
We could often have a situation in which the convicted person is
essentially a bailee, if I can use that technical word. He is a
custodian. Let us suppose that the convicted person is in the business
of repairing a car. That is the best possible example because cars can
readily be used in terrorist attacks, either as the vehicle for the
bomb, for transport or whatever. He has the property of another in his
possession and under his control. We could think of almost any property
that would fall into that
category.
On that
person’s conviction, the property belonging to the third party
is subject to forfeiture. I acknowledge at once that a provision under
clause 34—proposed new section 23B—enables a person,
other than the convicted person who claims to be the owner or otherwise
interested, to make representations, but nothing in that proposed new
section sets out the rights of that innocent third party, if I may
characterise the person as such. All he can do is to make
representations. The provision does not explain the person’s
rights if the court was satisfied that he was wholly
innocent—“What is the standard of proof”, I say in
parenthesis. What are his rights? They seem to be at large, and I find
it difficult to believe that that can be right.
To be truthful, I have not had
time to table amendments to clause 34. I make no complaint about that.
It is my responsibility to do so. However, we must address such an
issue because innocent third parties should not have their property
forfeited because the bailee is guilty of an offence. I hope that the
right hon. Gentleman will reflect on the provision because, as I
suggest to my hon. and learned Friend, we shall need to return to it on
Report as it concerns a serious issue of third party
rights.
Mr.
Llwyd:
I am following on precisely from that point. I am
sure that the Minister will help us in a minute. What has been foreseen
under clause 34 is a similar or more robust procedure that applied
under the Police (Property) Act 1997—that both sides would be
heard properly and a decision arrived at. I agree that the procedure
must be robust, open and easily accessible to an innocent party who may
lay claim to the
property.
The hon. and
learned Member for Beaconsfield said that we must be careful not to
cast the net too widely. No one in the Committee or elsewhere would say
that it is wrong in principle to forfeit money or property that might
have been involved in terrorist activity. I can advise the Committee of
a case—I shall not name it because it is current and was decided
in the last few days—of someone who has been convicted of theft
of property worth less than £4,000. All the property was
recovered, and he was sent down for a matter of weeks. He came out of
prison to face one of these procedures. He had £7,000 in the
bank and could prove precisely where the money had come from, but the
judge was helpless and had to take the money from the offender. The net
is already too wide, and we should apply care. I have no regard for any
terrorist, and we must ensure that anything that is used in terrorism
is properly taken away. There is no doubt about that, but we must be
careful in this part of the
Bill.
David
T.C. Davies (Monmouth) (Con): This will be a short speech,
because it is completely unprepared. I strongly disagree with the last
point, because it is not just about money that might be used for
terrorism. It is about removing from people who have been convicted of
terrorist acts the means to perpetrate further acts of terrorism,
regardless of whether the money used for doing so was gained lawfully
or not. Frankly, I have no sympathy whatever for terrorists, burglars
or anyone else who is convicted of an offence. Once that conviction has
been made, the gloves should come
off.
Mr.
Hogg:
The problem is when that person is in possession of
the property of third parties in particular. For example, in
matrimonial situations a terrorist could share property with a wholly
innocent wife. I would find it difficult and I hope that my hon. Friend
would find it difficult to say that the property of a wholly innocent
wife should automatically be taken
away.
David
T.C. Davies:
I would indeed, and I was perhaps responding
more to the comments made by the hon. Member for Meirionnydd Nant Conwy
than to those of my right hon. and learned Friend. If it can be proved
that money or goods belong to someone convicted of
terrorist offences, regardless of whether they were used to carry out
the offences or were simply there, the authorities should have every
reason to try to remove them from the convicted
person.
Mr.
McNulty:
I was quite surprised by what the hon. Member for
Monmouth said—not the substance, but the notion that at some
other times he prepares his speeches.
I defend entirely the hon. and
learned Member for Beaconsfield who sent me a note stating rightly that
efficacitÃ(c) is French and that he had slipped into French. We
know how erudite he is in the English language, and I am sure that he
is just as erudite in French, but it ain’t an English word, and
I am happy to upbraid him for passing off efficacitÃ(c) as English
when it is
not.
David
T.C. Davies:
On a point of order, Mr. Bercow.
Is it not the case that medieval French is still allowed in the House,
although Welsh is not, and that my hon. and learned Friend was within
his
rights?
The
Chairman:
My response to that is that I understand that
French is allowed for the purpose of Royal Assent, but for that purpose
alone. I am grateful to the hon. Member for Monmouth for his point of
order, which I am sure was illuminating for the
Committee.
Mr.
McNulty:
Without prolonging the point, I am pretty sure
that efficacitÃ(c) is not medieval French, or Norman
French.
Mr.
Llwyd:
Does the Minister share my concern that the hon.
Member for Monmouth said that he recognised that some people might be
innocent?
Mr.
McNulty:
In his defence, I am sure that it was a minor
slip.
I freely accept
that the thrust of the amendments is not to wreck or
undermine what we seek to do—they are perfectly valid.
Strangely, however, the hon. Member for Monmouth had half a point,
because the mens rea for the measures is “had reasonable cause
to suspect”. Notwithstanding the hon. Gentleman’s point
about third parties and the ownership of property, or the points about
the European convention on human rights—about article 8, on the
right to respect for private and family life, and article 1 of the
first protocol, about the right to peaceful enjoyment of one’s
possessions—there is, incumbent on every individual, a notion
that they are responsible for their actions.
The principle applies even in
the examples that the hon. and learned Member for Beaconsfield quoted,
as there might be a reasonable suspicion that some of the bona fide
charities working in the west bank, or anywhere else, have clear
terrorist intent. Indeed, Members present could name such
organisations. If one makes a donation to such an
organisation—if one’s assets are aligned with them or are
utilised by them in any way—and one does not fulfil one’s
responsibility to put oneself in a position in which that is not the
case, it is appropriate that the forfeiture regime should apply. It has
to be applied carefully and there must be all sorts of safeguards, but
the Bill
provides greater safeguards than are provided in the 2000 Act, not least
new section 23B, to which I think the right hon. and learned Member for
Sleaford and North Hykeham referred. New section 23B(2) provides that
the court must have regard to the “value of the property”
and to the “financial
and other effects on the convicted person of making the
order”.
I
reiterate that we start from the premise that no one thinks that what
the measure does is other than a good thing. The concern is about
whether it has been drawn too wide, but there are appropriate
safeguards. The amendments would lessen the import and strength of the
measures, which is why I shall ultimately ask the Committee to resist
them if they are not
withdrawn.
Mr.
Hogg:
Let us take an entirely fictional person called
Mr. McNulty, who has a car. He gives his car to a garage to
be repaired, but, unfortunately, the owner of the garage happens to be
a terrorist. The proprietor of the garage uses the car for terrorism
purposes, and is subsequently convicted. May I ask where in the Bill,
or in any other legislation, the interests of the wholly fictional
Mr. McNulty are properly protected, because they are not
protected by clause 34 or new section
23B?
Mr.
McNulty:
I contend that they are protected by the whole
limb of “reasonable cause to suspect”. If the fictional
Mr. McNulty had no reason whatever to suspect the person
with whom he left his car at the garage, who was probably going to rip
him off, he would be entirely free from the
provisions.
Mr.
Hogg:
I have a feeling that the right hon. Gentleman is
misreading the Bill. I understand that the phrase “reasonable
cause to suspect” would apply to the garage proprietor, not to
the fictional Mr. McNulty, who gives his car in good faith
to the garage proprietor, who happens to be a terrorist. Where in the
Bill are Mr. McNulty’s interests
protected?
Mr.
McNulty:
There is no cause to protect the fictional
Mr. McNulty in the Bill because he is not the focus. In the
example, the right hon. and learned Gentleman was querying the rights
of the third party, the fictional Mr. McNulty, over his car.
These clauses would have no impact on Mr. McNulty. To the
extent that he needs to be covered, that will be done elsewhere, not
just by the ECHR, but under other
legislation.
4
pm
Mr.
Grieve:
My right hon. and learned Friend the Member for
Sleaford and North Hykeham has a perfectly valid point. The
architecture, as set out in proposed new section 23B on forfeiture,
clearly envisages the forfeiture of property in the possession or
control of the individual at the time of conviction. The individual is
the person who has committed the offence. That does not provide for an
individual to make representations to the court that the property that
has been used in the course of terrorism is his and has been used in
circumstances about which he had no idea or reasonable call to suspect
were happening. It may be that the Minister can provide reassurance
that a
safeguard exists elsewhere in the Bill, in statute or in court rules. I
think that my right hon. and learned Friend makes a perfectly good
point.
Mr.
McNulty:
I do not agree, not least because section 6 of
the Human Rights Act 1998 says that everything we do should be ECHR
compatible. Someone cannot forfeit wholly innocent property and remain
within the context of the ECHR. If there are any disputes, the
provisions in the Bill offer greater safeguards than in the original
Bill. As was indicated, the Police (Property) Act 1997 also covers this
point.
Mr.
Grieve:
It is not an adequate safeguard to say that a
person who finds that their property has been confiscated by the court
because it happens to have been under the control of a terrorist on the
date of conviction should have to rely on article 6 of the ECHR to
assert their right to recover it. They might well be able to do so, but
in legislation of this kind, I would ordinarily expect the Government
to make provision for that individual to make representations. I was
heavily involved, sitting in this room at one stage, with scrutinising
the Proceeds of Crime Bill, which made exactly that sort of provision.
I wonder if this is not simply an omission that can be corrected by the
Government before Report
stage.
Mr.
McNulty:
No, I did not say article 6, but section 6 of the
Human Rights Act 1998, which says that everything that we do must be
ECHR compliant and therefore compliant with the key provisions of
article 1 and the right to property in article 8. I alluded to that as
the background architecture. As the right hon. and learned Member for
Sleaford and North Hykeham has already mentioned, clause 34, which will
insert section 23B in the Terrorism Act 2000, says very
clearly:
“Before
making an order under section 23 or 23A, a court must give an
opportunity to be heard to any person, other than the convicted person,
who claims to be the owner or otherwise interested in anything which
can be forfeited under that
section.”
That is the
belt and braces and the right hon. and learned Gentleman has referred
to it already. That is entirely proper. As I have said, the way we are
amending the architecture of the 2000 Act and all that it says on
forfeiture will make the safeguards stronger. The points that have been
made are covered in the
Bill.
Mr.
Hogg:
I am sorry to press this matter, but I think that it
is important. The Under-Secretary of State for the Home Department, the
hon. Member for Gedling, may remember that when we were scrutinising a
different Bill last year, I raised the confiscation powers in the
Proceeds of Crime Act 2002 and we debated this subject. I think that
the Minister is uncharacteristically misunderstanding the
case.
Mr.
McNulty:
The right hon. and learned Gentleman’s
fictional Mr. McNulty is covered by the amendments to the
2000 Act contained in clause 34. Any other individual who, for whatever
reason, has their property captured under a forfeiture order, but who
has due rights and legal ownership and can justify that, can
get due process from the courts. Your
Mr. McNulty can waddle up to the court—if he is
anything like me—present himself and the documents that say that
it is his car that has been captured by the garage owner who happens to
be a terrorist and, under the amendments in new section 23B to the
Terrorism Act 2000, can also get due process from the
courts.
Mr.
Hogg:
Although I would like to think that the Minister is
right in his interpretation of statutory language, I fear that he is
not. Let us go back to the starting point. We are dealing with a
fictional Mr. McNulty who gives his car to a garage. The
garage proprietor uses or intends to use the car for terrorist purposes
and is convicted. At that point, Mr. McNulty’s car is
forfeited. What are Mr. McNulty’s rights? They are
set out in clause 34, particularly in new section 23B. Mr.
McNulty has a right to go to the court that made the confiscation
order, claiming to be the owner or to be otherwise interested in
anything that was forfeited. He has a right to go to the court, but
what is the court to do? Subsection (2) of new section 23B
states:
“In
considering whether to make an order under section 23 or 23A in respect
of any property, a court shall have regard to”—
only two
criteria—
“the
value of the
property”,
which is
Mr. McNulty’s car, and
“the likely financial and other
effects on the convicted
person”,
who is the
garage proprietor,
“of
the making of the
order”,
taken together
with any other order that the court contemplates making. There is
absolutely nothing in the clause that gives the court a duty to
consider the interests of the fictional Mr.
McNulty—nothing whatever. That is the
objection.
Mr.
McNulty:
That is because the duty is afforded under new
section 23B(1). New section 23B(2) relates to the remaining property
where it has already been determined that it belongs to the defendant
and is about to be forfeited. It has nothing to do with claims by
third-party owners who are only interested in whether their property is
being swept up in the forfeiture order. I think that that is very
clear.
The
Chairman:
Order. I was not entirely sure whether the right
hon. and learned Member for Sleaford and North Hykeham had finished his
speech or was taking an
intervention.
Mr.
Hogg:
I was giving way. Even if the Minister is correct in
his interpretation of subsection (2), he is not right in his
interpretation of subsection (1). All that subsection (1) does is
enable Mr. McNulty to claim to be the owner. It says nothing
about the burden of proof or what the court has to determine before
deciding whether or not the car should be forfeited. I am saying that
there is insufficient protection built into that provision for the
Mr. McNultys of the world. If the Minister thinks about the
Proceeds of Crime Act 2002 or the point made by the hon. Member for
Meirionnydd Nant Conwy about the Police (Property) Act 1997, he will
know that there are criteria in other legislation that touch precisely
on that matter.
I am perfectly willing to accept
that the Minister, at this stage, is not in a position to say,
“All right, the right hon. and learned Member is of course
right”, but he is in a position to say that he will think
seriously about the matter. I will be entirely reassured, because he is
a perfectly sensible chap, if he will say that he will give the matter
serious thought before Report, because I can tell him that we
will.
Mr.
McNulty:
In that spirit, I shall happily look at it, but I
am pretty clear that I am right, without pre-empting my dispassionate
reflection on how the two clauses interact.
Mr.
Grieve:
I simply canvas this as a possibility: it is quite
clear from the amendments that will be made to section 23 of the
Terrorism Act 2000 that it is envisaged that forfeiture will extend to
property that is more than just owned by an individual. That is why
clause 34 states that at the time of the offence the property
was
“in their possession
or under their control”.
I also agree with the Minster that in
clause 34, there is a clear provision for a person to make
representations to the court that they are in fact the owner or
otherwise have an interest in anything that is going to be forfeited.
What is not expressly spelled out is how the court is to reconcile
those two matters. If, for example, a person can establish ownership,
but it is quite clear that the articles were not under the possession
and control of the person at the time that they were used for
terrorism, are they to be confiscated? What is the situation in terms
of forfeiture where it is quite clear that the property does not belong
to the individual, but nobody has ever come forward to say it is
theirs? Is such property automatically confiscated? If the owner hears
about it six months later, is it too late to come along and reclaim it?
Or does it remain their
property?
I hope that
the Minister will forgive me. I suspect that these are matters which
can be cleared up quite easily, but I think there is, in the drafting
of these two
new sections, a degree of incompatibility or, at least, a lack of
clarity which it might be useful to
resolve.
Mr.
McNulty:
If, after the reflection that I have promised,
that is the case, we will have a look. Many of these provisions,
however, simply replicate, in the same language, the core of what has
already been in force since 2000 and which has not, in its language at
least, been problematic. The hon. and learned Gentleman will know that
issues around asset seizures have been reported in the press in very
recent times, but they are more to do with asset freezing than with
seizures.
I am very
happy, in the spirit that the hon. and learned Gentleman offered his
point, to take it away and look at the interaction between the
amendments to the 2000 Act. If there are concerns that have been around
since 2000 that we have not alighted upon, then I will have a look. I
am being very, very clear, as the hon. and learned Gentleman said at
the start, that this is not about trying to block, impinge or do
anything other than have the most efficacious set of principles to do
what we all, collectively, want to do, which is to make sure that the
assets of individuals involved in terrorism are duly
forfeited.
Mr.
Grieve:
I am grateful to the Minister for his
explanations. I hope that he will take what has been said in good part.
It may well be, as so often happens when we consider Bills, that those
tabling amendments have got it wrong. I do, however, think there is an
issue here, and the fact that the provisions date from 2000 does not
necessarily mean that the issue was resolved at that time. It would be
very useful if the Minister could provide some clarification before
Report. I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
32 ordered to stand part of the Bill.
Further consideration
adjourned.—[Mr.
Campbell.]
Adjourned
accordingly at thirteen minutes past Four o’clock until Tuesday
13 May at half-past Ten
o’clock.
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