Forfeiture: Supplementary Provisions
Clause 34 makes provisionwhich brings me back to my earlier commentfor the court to be entitled to hear from any person.
Subsection (2) of new section 23B states:
In considering whether to make an order...in respect of any property, a court shall have regard to...the value of the property, and...the likely financial and other effects on the convicted person of the making of the order (taken together with any other order that the court contemplates making).
Since the order is in fact a financial order, what are the other effects that the Government consider the court might wish to take into account?
Mr. Hogg: I always like to agree with my hon. and learned Friend the Member for Beaconsfield, but this is one of the occasions when I am jolly uneasy about the amendment. My general rule, as the Committee will know, is to take the libertarian view and I ask myself: what is the impact of the criteria set out in my hon. and learned Friends amendment? It seems to me to tighten up the circumstances, against the interests of the convicted person.
I can well comprehend a range of circumstances when other effects will go outside the financial effects. If somebody, for example, owns a carI am sorry to come back to the car, but it is a rather good exampleforfeiting a car might not only have a financial effect, but it might preclude a person from being able to live where that person has chosen to live, or go to work, or other such consequences. As the power to forfeit extends to anythingI use the word advisedly, because it is in the language of the statuteI want the court to be able to consider as wide a set of consequences as is possible. [Interruption.] If my hon. and learned Friend is seeking to intervene, I will certainly give way.
Mr. Grieve: I am. My right hon. and learned Friend is doing the Ministers job for him. These are the matters that I rather hoped that the Minister would put on the record so that they can be waved around in court when, at a subsequent time, people seek to advance the very arguments that my right hon. and learned Friend is seeking to advance here. I was not intending to restrict the scope.
Mr. Hogg: I am glad to know that, because we all hope that we will be in a position to do the Ministers job fairly soon.
Mr. Hogg: That was an intervention; I have not finished my speech. The answer is not all of us want to do it, or only if the price is a very high one.
Mr. David Heath (Somerton and Frome) (LD): I rise simply to say that I am with the right hon. and learned Member for Sleaford and North Hykeham in this, and I suspect also with the hon. and learned Member for Beaconsfield.
Mr. McNulty: There we arethe Committee is a big tent, because I too am with the libertarian right and the liberal right and the Liberal Democrat centre, or whatever it is. The key point is, if we go back to the imaginary Mr. McNulty, he or his partner may live in the middle of rural Lincolnshire and just have the car for survival and for whatever they can do with that car or van to earn a living. It may well be that the impact of forfeiture on the rest of the family needs to be taken into account and a range of other circumstance could prevail, including seeking and maintaining gainful employment.
Mr. Heath: I am very glad that the Minister has mentioned the effect on the broader family as it is not explicit in the Billthe court can take into account only the effect on the offender. Can he assure me that it can be construed as meaning also the effect on the family?
Mr. McNulty: I should love to show off and reel off a whole bunch of case law rooted in the Powers of Criminal Courts (Sentencing) Act 2000, which as I described earlier is exactly the architecture that much of this forfeiture regime comes from. We feel that having and other in there is precisely broadly enough drawn to take into account all such circumstances, as the right hon. and learned Member for Sleaford and North Hykeham and, to be fair, the hon. and learned Member for Beaconsfield seek to imply. We think that amendment No. 147 runs counter to the establishment of an effective and fair regime with appropriate safeguards within it.
Mr. McNulty: I apologise. Amendment No. 174 runs counter to a fair and effective regime with the appropriate safeguards, and I would ask the liberal right to withdraw the amendment and come with me and the libertarian right.
Mr. Grieve: This was always a probing amendment. Having recorded in Hansard at Committee stage both the scope of what the expression and other will mean and, even more helpfully, the suggestion that it extends beyond the immediate impact on the individual concerned to those who are dependent upon himas I believe it doesI beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Mr. Hogg: I am sorry to come back to the imaginary Mr. McNulty, because I know that the real Minister is a little exasperated by this. However, I remain very concerned about the position of innocent third parties. I took the liberty of tabling an amendment. I know that it is starred, because it was put down late, but it is an attempt to set out the protection that I think should be given to innocent third parties.
I have read the Proceeds of Crime Act 2002 and the relevant provisions in the Misuse of Drugs Act 1971, and I am perfectly willing to accept that the provisions set out in the Bill are broadly in line with those provisions. However, I ask myself a basic question: are the interests of the innocent third party properly safeguarded by the provision in new section 23B(1), which, in my view, is the key part of clause 34? I think that the honest answer is no. Nothing is said about the burden of proof or the standard of proof, and nothing actually sets out the criteria that a court has to adopt.
The Minister may well say that there is a body of case law arising from, for example, POCA or the Misuse of Drugs Act, and that the courts need no further guidance, but I find that a profoundly unsatisfactory explanation for two reasons. First, it seems to me that the citizenthe ordinary chap; the imaginary Mr. McNultyis entitled to know what the law is by looking at the relevant statute without having to go to a body of case law to which, in reality, he will not have access. Secondly, although, at common law, we have long accepted judge-made law, and although it is inevitable that a majority of law is judge-made law, in the sense that statutory interpretation has to be in the hands of the judges, we parliamentarians should set out the tests and the criteria if we have the opportunity to do so. Here, we have not set out the criteria that address the question and we are relying instead on judge-made law from the past. Frankly, I do not think that is satisfactory. Given the opportunity, Parliament should set out the criteria and tests. If there is then ambiguity or uncertainty, the judges will have to interpret that. Simply shrugging off the responsibility seems to me to be profoundly unsatisfactory. We are not doing our job of safeguarding the innocentsin this case, the imaginary Mr. McNulty.
Mr. McNulty: I do. We touched on this matter last week. I understand why the right hon. and learned Member for Sleaford and North Hykeham wished to table his amendment, but it is unnecessary. If we followed his exhortation, we would have some quite large Bills. I do not believe that there is any ambiguity in the surrounding architecture of this or any other clauses in the Bill that relate to existing statutes, common law provisions or case law. It goes without saying that it is for Parliament to pass lawsgood laws. Given that we already have the provision elsewhere and, as far as I can see, it has worked satisfactorily, and given the provision in the ECHR and the other oversight and safeguards that I described, new section 23B(1) makes it very clear that there is role for at least looking at claims of ownership from third parties regarding forfeited assets.
As the right hon. and learned Gentleman implies, the provision mirrors similar protections in the Proceeds of Crime Act, and Parliament did not consider, when
Question put and agreed to.
Clause 34 ordered to stand part of the Bill.
Clause 35 ordered to stand part of the Bill.
Forfeiture: other amendments
Amendment made: No. 139, in clause 36, page 27, line 6, at end insert
( ) In section 7 of the Terrorism Act 2006 (c. 11), after subsection (6) insert
(7) The power of forfeiture under this section is in addition to any power of forfeiture under section 23A of the Terrorism Act 2000..[Mr. McNulty.]
Clause 36, as amended, ordered to stand part of the Bill.
Clause 37 ordered to stand part of the Bill.
Forfeiture: consequential amendments
(c) in relation to a restraint order, any offence specified in Schedule 2 to the Counter-Terrorism Act 2008 (offences where terrorist connection to be considered)..
Mr. McNulty: Again, these are tidying-up amendments that look at a range of consequential impacts on other legislation and tidy the relationship between various bits of legislation. Amendment No. 140 does that for UK legislation and Amendment No. 141 inserts the same change for Scotland. Essentially, we add to the offences listed in schedule 2 the relevant offences in respect of which a restraint order could be made. That is necessary because schedule 2 offences are determined to have a terrorist connectionand thus allow the forfeiture powers in new section 23A to have effectonly at the end of proceedings, whereas a restraint order might need to be issued before proceedings begin in order to prevent the disposal of assets. I commend the amendments to the Committee.
Amendment agreed to.
Amendment made: No. 141, in schedule 3, page 73, line 1, at end insert
(c) in relation to a restraint order, any offence specified in Schedule 2 to the Counter-Terrorism Act 2008 (offences where terrorist connection to be considered)..[Mr. McNulty.]
Schedule 3, as amended, agreed to.
Clause 38 ordered to stand part of the Bill.
Offences to which this Part applies: terrorism offences
Amendment made: No. 142, in clause 39, page 28, line 38, leave out from things) to end of line 39.[Mr. McNulty.]
Clause 39, as amended, ordered to stand part of the Bill.
Offences to which this Part applies: offences having a terrorist connection
Mr. Grieve: I beg to move amendment No. 95, in clause 45, page 33, line 12, leave out such a determination and insert section 42..
The Chairman: With this it will be convenient to discuss amendment No. 96, in clause 45, page 33, line 15, leave out subsection (3).
Mr. Grieve: I would not seek to move amendment No. 96 on its own, because I think it is in fact quite clear what the clause means. Amendment No. 95 has been slightly overtaken by events, as we also have a Government motion to transfer the clause. It might therefore be sensible for me not to go into any further detail on amendment No. 95 except to say that I had difficulty reconciling clause 45 with the terms of clause 42, which was why the probing amendment was tabled. I would like the Minister to address his remarks to that. It may even be that he can properly do so by merging it with his speech in respect of transferring the clause, because I think the consequence of that will almost certainly be to make everything very much clearer, whereas I found the Bill unclear with clause 45 in its present location.
Mr. McNulty: As the hon. and learned Member for Beaconsfield suggests, it might be useful if I move the motion referring to this clause at the same time, as it goes to the heart of the amendment.
Mr. McNulty: This clause was the initiative test for the Committee. Quite deliberately, it was misplaced. The challenge was for anyone to read the Bill properly and try to relate clause 45 to clause 42. The prize goes to the hon. and learned Gentleman. I would be quite worried if, by the time we got to clause 45, the Committee, including myself, read it in the context of clause 42 and let it go. The measure does not belong as clause 45 at all. It refers entirely to, and should logically follow, clause 39. If it doesI am not pre-empting our subsequent debate, though I hope and pray the Committee is with me on my motionI think the fears and concerns with which the hon. and learned Gentlemans amendments deal would disappear almost overnight, or a bit quicker than overnight, and logic would be restored to the Bill. The perfectly and elegantly crafted amendments Nos. 95 and 96 would then fall away as utterly irrelevant, with the one mistake in the Billit was quite deliberate, I
Mr. Heath: I am prepared to give the Minister the benefit of the doubt. I think he is going to be enormously persuasive when he moves his motion for the transfer of the clause. For that reason, I am not minded to support the amendments at the moment, although we might of course have to return to them on Report.
Mr. Grieve: I am grateful to the Minister for his comments and grateful that my late-night reading of the Bill has had some success in identifying oddities. I look forward to hearing the Ministers comments on the transfer of the clause. I agree that that will produce the clarity that is currently entirely absent, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 45 ordered to stand part of the Bill.
This is entirely due to a sequential and printing error. Under clause 45, which is titled Offences to which this part applies: offences having a terrorist connection, notification requirements would apply to someone when a court finds that their offence was connected to terrorism provided they met the necessary sentence threshold. Logically, as the hon. and learned Member for Beaconsfield implied, the clause should follow clause 39, which sets out terrorism offences to which notification requirements would apply. We are simply making a minor, technical change that has no effect on existing policy. The clause would look rather daft if it stayed after clause 44, so I urge the Committee to agree to the transfer of the clause 45.
Mr. Grieve: May I raise one issue? I might have misunderstood this, but the Minister will be aware that the determinations in clause 45(2)now to be transferredappear to be governed by clause 42. Is that correct, or will other provisions also govern the need to make a notification requirement?
Mr. McNulty: As I read the matter, that is entirely correct and addresses the cohesion of the architecture of the way in which the clauses interplay with each other[ Interruption. ] Apparently I am wrong. The determination is made under aggravated sentencing in clause 29, apparently, and how that interplays with clause 42.
Mr. Grieve: Yes, I can see how that may be the case, as clause 29 is titled Sentences for offences with a terrorist connection: England and Wales. However, clause 42 is titled Sentences or orders triggering notification requirements and clause 45(2) relates to a
person to whom the notification requirements apply by virtue of such a determination.
Will the Minister go away and think about this between now and Report? I know that people have very little sympathy with lawyers, but some poor lawyers
I am confident that the Government have probably got the overall picture right, but the approach is a bit ponderous and I wonder whether it can be simplified.
Mr. McNulty: That is a fair point and we can certainly look at that. Clause 29 sets out the schedule 2 offences that are potentially in the frame for terrorist offences and, therefore, notification. Clause 42 makes it clear that the sentence must be at least 12 months for notification to kick in.
The definition, the criteria and the notification determination order are fairly clear. If it appears that there is a lot of hopping about and cross-referencing and we can tidy that up with no significant change to the policy, which I do not think is what the hon. and learned Gentleman is seeking, I am happy to take away that principle. Having rather rapidly refreshed my memory of clauses 29 and 42, the determination of terrorist offences and the 12-month caveat for of sentence notification determination and, therefore, notification, I think that this approach is quite logical, albeit a bit clumsy. I will, as the Committee asks, look at it further, but I think that it works.
Question put and agreed to.
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