Clause
34
Forfeiture:
Supplementary
Provisions
10.45
am
Mr.
Grieve:
I beg to move amendment No. 174, in
page 24, line 2, leave out ‘and
other’.
Clause
34 makes provision—which brings me back to my earlier
comment—for 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
Friend’s 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 car—I am sorry to come back to the car, but it
is a rather good example—forfeiting 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 anything—I use
the word advisedly, because it is in the language of the
statute—I 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 Minister’s 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 Minister’s job fairly
soon.
Mr.
Crispin Blunt (Reigate) (Con):
Really?
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 are—the 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
Bill—the 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.
The
Chairman:
Order. The amendment is No.
174.
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 him—as I believe it does—I 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
citizen—the ordinary chap; the imaginary Mr.
McNulty—is 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
innocents—in this case, the imaginary Mr.
McNulty.
The
Chairman:
Does the real Mr. McNulty wish to
comment?
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 laws—good 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
passing that Act, that an amendment such as that which he is suggesting
was necessary. It was not necessary then and I do not believe that it
is necessary now. The safeguards already exist. It is not necessary to
legislate in such explicit terms to prevent the courts from unjustly
punishing innocent people. If we were considering the
amendment—if it were not starred—I would argue that it
was otiose, unnecessary and irrelevant. As was the case last week, I
take the thrust of the right hon. and learned Gentleman’s
argument, but I do not believe it is necessary to reflect that in the
Bill.
Question put and agreed
to.
Clause 34
ordered to stand part of the
Bill.
Clause 35
ordered to stand part of the
Bill.
Clause
36
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.
Schedule
3
Forfeiture:
consequential
amendments
Mr.
McNulty:
I beg to move amendment No. 140, in
schedule 3, page 72, line 18, 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).’.
The
Chairman:
With this it will be convenient to discuss
Government amendment No.
141.
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 connection—and thus allow the
forfeiture powers in new section 23A to have effect—only 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.
Clause
39
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.
11
am
Clause
45
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.
The
Chairman:
Order. I am advised that it would be appropriate
to keep the two
separate.
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
does—I am not pre-empting our subsequent debate, though I hope
and pray the Committee is with me on my motion—I think the fears
and concerns with which the hon. and learned Gentleman’s
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 Bill—it
was quite deliberate, I
assure you, Mr. O’Hara—having been identified
by the hon. and learned Gentleman, who is to be congratulated for
stumbling over
it.
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 Minister’s
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.
Mr.
McNulty:
I beg to move, That Clause 45 be transferred to
end of line 24 on page
29.
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
transferred—appear 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
and unhappy judges in the Crown court are going to have to wrestle with
this. There seems to be a lot of cross-referencing required for the
introduction of clarity. 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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