| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Baroness Buscombe: I thank the Minister for his response. Indeed, the fact that he has outlined some of the inclinations that underlie this clause is helpful to us. It has perhaps encouraged the Government to focus upon our concerns about a plethora of targets, which we all know from experience compromises the effective workings of any such organisation. I thank the Minister and, on that basis, beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.15 p.m.
Baroness Buscombe moved Amendment No. 2:
- Page 264, line 20, at end insert—
The noble Baroness said: We believe that Amendment No. 2 is a straightforward amendment. It was suggested to us by the Law Society of Scotland. It provides for the disqualification of the director of the assets recovery agency from membership of the Scottish Parliament and the National Assembly for Wales. The Law Society of Scotland believes, and we in turn believe, that the amendment is necessary to fill the lacuna in the present drafting of the Bill. As the Bill stands, the director of the assets recovery agency would be disqualified from membership of the House of Commons and the Northern Ireland Assembly. However, there is no provision made for disqualification from the Scottish Parliament or the Welsh Assembly. I beg to move.
Lord Rooker: I am sure that the noble Baroness will be pleased if I say that, as was the position when identical amendments were tabled in the other place, we are in agreement with the principle behind them. Let there be no doubt about that. There is no obvious reason why the director could potentially become a Member of the Scottish Parliament or the Welsh Assembly while he could not be a Member of the House of Commons or the Northern Ireland Assembly. We promised in the other place that we would table amendments to the Bill in your Lordships' House if that was appropriate.
However, we have not done so because that would not be in accordance with the rationale behind the relevant provisions of the Scotland Act and the Government of Wales Act. It is worth putting on record the rationale, which was that, except as provided by the legislation establishing them, the new bodies should be left free to determine which office holders are disqualified from membership of that particular body. That is done by way of Orders in Council; in Scotland by the Scottish Parliament (Disqualification) Order 1999, and in Wales by the National Assembly for Wales (Disqualification) Order 1999.
Our view is, therefore, that the issue of disqualification from membership will best be achieved by means of amendments made to the relevant disqualification orders by the Scottish Parliament and the Welsh Assembly. That is subject to agreement by the devolved administrations that that would be desirable in the interests of consistency and political impartiality in this new important office.
I understand that the existing disqualification order for the Scottish Parliament is to be reviewed with the intention of a new order being made in good time before the next Scottish parliamentary elections in May 2003. I am able to give an undertaking that the director of the new assets recovery agency will be included in the new disqualification order when that time comes.
The position in respect of the Welsh Assembly is under consideration. It may be that disqualification is agreed in the interests of consistency. However, as the Welsh Assembly has no function in relation to crime or criminal justice—unlike the UK Parliament, the Northern Ireland Assembly and the Scottish
Baroness Carnegy of Lour: The answer given by the Minister was extremely interesting and helpful. I expect that my noble friend thinks the same; I do not know. In future can the Government consult with the devolved bodies when they are drafting Bills and such a matter arises? I can see why the Minister answered as he did. However, can the Government consult so that parliamentary time is not wasted here and in another place by having to answer such questions? Without my noble friend's question we would not have known of such matters. The Government could save themselves and noble Lords trouble. In future, would it be possible for the Government to think of that when drafting Bills and assure people of the position at Second Reading?
Lord Donaldson of Lymington: As a semi-outsider, I am a little puzzled. I understand why it should be a matter for the Scottish Parliament or the Welsh Assembly to decide who is eligible to become a Member. However, I am puzzled as to why it is not open to this House to decide that the director shall not apply to become a Member of either body, if, in the view of this place, it is undesirable that he should do so. That does not trespass on anyone's toes, as far as I know, except the director's.
Lord Rooker: I am not sure that I can reply specifically to the question asked by the noble and learned Lord, Lord Donaldson of Lymington. This is an important matter. As regards the question raised by the noble Baroness, Lady Carnegy of Lour, perhaps I may say that others will listen to what is said here on drafting. I do not know what the protocol would be if a Westminster Parliament Bill was drafted in such a way as to pre-empt a decision which was rightly one for the Scottish Parliament. As it has its own disqualification procedure, it should come under its own criminal justice system. I am all in favour of not having to repeat matters and of not wasting parliamentary time on a matter which could have been thought through before. It may be that a Bill is changed as it passes through the Westminster Parliament, which could change the rules for what is required. To pre-empt that would not make sense.
There seems to be a procedure, both in Wales and Scotland, for disqualifying from membership of those bodies someone who is in a high-profile, important public position where absolute political impartiality is required to the extent that the person shall not be a member of those two bodies. I believe that that is best
Baroness Buscombe: I thank the Minister for his response. However, we would not be happy if the director could sit as a Member of the Welsh Assembly. Is it the Government's view that that would be acceptable?
Lord Rooker: I have made the point that this is an incredibly important position. Anyone who reads the powers in the Bill will recognise that. It is a public position. The utmost political impartiality is required. The nature of the functions of the Welsh Assembly are not the same as those of the Scottish Parliament, the Northern Ireland Assembly or the Westminster Parliament. Therefore, one must look at that narrow area. It will be for the Secretary of State for Wales to make that decision and bring forward an order if necessary. But the point is well made that, in order to show crystal-clear political impartiality, the situation might look bad, but as we all know perceptions are sometimes as important as the words in the statute.
We have the power to provide that the director should not be a Member of the Scottish Parliament or the Welsh Assembly, but as the Order in Council procedure is there we should use it. There is a process for dealing with the issue.
Baroness Buscombe: Having started out thinking that this was a fairly straightforward amendment, I am deeply concerned that someone could be a Member of the Welsh Assembly and at the same time hold down such an important position as the director of the assets recovery agency. However remote that possibility is, it could present an enormous conflict of interest. I also share the view of the noble and learned Lord, Lord Donaldson, that it seems grossly unjust that the Scottish Parliament and the Welsh Assembly should enjoy such freedom while we, in this Chamber, do not.
We shall consider the amendment with care. We shall most probably return to it on Report. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Attorney-General (Lord Goldsmith) moved Amendment No. 3:
"In section 15(1) of the Scotland Act 1998 insert—
"(e) he is the Director of the Assets Recovery Agency";
In section 123(1) of the Government of Wales Act 1998 insert—
"(e) he is the Director of the Assets Recovery Agency"."
After Schedule 1, insert the following new schedule—
1 (1) An offence under any of the following provisions of the Misuse of Drugs Act 1971 (c. 38)—
(a) section 4(2) or (3) (unlawful production or supply of controlled drugs);
(b) section 5(3) (possession of controlled drug with intent to supply);
(c) section 8 (permitting certain activities relating to controlled drugs);
(d) section 20 (assisting in or inducing the commission outside the UK of an offence punishable under a corresponding law).
(2) An offence under any of the following provisions of the Customs and Excise Management Act 1979 (c. 2) if it is committed in connection with a prohibition or restriction on importation or exportation which has effect by virtue of section 3 of the Misuse of Drugs Act 1971 (c. 38)—
(a) section 50(2) or (3) (improper importation of goods);
(b) section 68(2) (exportation of prohibited or restricted goods);
(c) section 170 (fraudulent evasion).
(3) An offence under either of the following provisions of the Criminal Justice (International Co-operation) Act 1990 (c. 5)—
(a) section 12 (manufacture or supply of a substance for the time being specified in Schedule 2 to that Act);
(b) section 19 (using a ship for illicit traffic in controlled drugs).
2 An offence under either of the following provisions of this Act—
(a) section 327 (concealing etc criminal property);
(b) section 328 (assisting another to retain criminal property).
3 An offence under section 25(1) of the Immigration Act 1971 (c. 77) (assisting illegal entry etc).
4 (1) An offence under either of the following provisions of the Customs and Excise Management Act 1979 (c. 2) if it is committed in connection with a firearm or ammunition—
(a) section 68(2) (exportation of prohibited goods);
(b) section 170 (fraudulent evasion).
(2) An offence under section 3(1) of the Firearms Act 1968 (c. 27) (dealing in firearms or ammunition by way of trade or business).
(3) In this paragraph "firearm" and "ammunition" have the same meanings as in section 57 of the Firearms Act 1968 (c. 27).
5 An offence under any of the following provisions of the Forgery and Counterfeiting Act 1981 (c. 45)—
(a) section 14 (making counterfeit notes or coins);
(b) section 15 (passing etc counterfeit notes or coins);
(c) section 16 (having counterfeit notes or coins);
(d) section 17 (making or possessing materials or equipment for counterfeiting).
6 (1) An offence under any of the following provisions of the Copyright, Designs and Patents Act 1988 (c. 48)—
(a) section 107(1) (making or dealing in an article which infringes copyright);
(b) section 107(2) (making or possessing an article designed or adapted for making a copy of a copyright work);
(c) section 198(1) (making or dealing in an illicit recording);
(d) section 297A (making or dealing in unauthorised decoders).
(2) An offence under section 92(1), (2) or (3) of the Trade Marks Act 1994 (c. 26) (unauthorised use etc of trade mark).
7 (1) An offence under any of the following provisions of the Sexual Offences Act 1956 (c. 69)—
(a) section 2 (procuring a woman by threats);
(b) section 3 (procuring a woman by false pretences);
(c) section 9 (procuring a defective woman to have sexual intercourse);
(d) section 22 (procuring a woman for prostitution);
(e) section 24 (detaining a woman in a brothel);
(f) section 28 (causing or encouraging prostitution etc of girl under 16);
(g) section 29 (causing or encouraging prostitution of defective woman);
(h) section 30 (man living on earnings of prostitution);
(i) section 31 (woman exercising control over prostitute);
(j) section 33 (keeping a brothel);
(k) section 34 (letting premises for use as brothel).
(2) An offence under section 5 of the Sexual Offences Act 1967 (c. 60) (living on the earnings of male prostitute).
8 An offence under section 21 of the Theft Act 1968 (c. 60) (blackmail).
9 (1) An offence of attempting, conspiring or inciting the commission of an offence specified in this Schedule.
(2) An offence of aiding, abetting, counselling or procuring the commission of such an offence."
The noble and learned Lord said: Amendment No. 3 is of importance and of interest to Members of the Committee because it determines which single offences will attract the criminal lifestyle provisions and therefore the application of the assumptions in Clause 11 and its equivalents in Parts 3 and 4 for Scotland and Northern Ireland.
The Marshalled List is quite long. It will therefore be convenient to consider with this amendment the other amendments on Clause 75, so that we can have a wide-ranging debate on this issue.
Technically, the effect of the government amendments is as follows: Amendments Nos. 3 and 81 transfer the existing criminal lifestyle offences—that is to say, drug trafficking and money laundering offences—to a new schedule, to which additional offences have been added. The proposal is to introduce a new power to add or remove further offences to the schedule by means of Amendment No. 86. Clause 451 is being amended to make this power subject to the affirmative resolution procedure by means of Amendments Nos. 293 and 296. That is in accordance with the recommendation of your Lordships' Delegated Powers and Regulatory Reform Committee.
At the same time, Amendment No. 81 deletes the previous proposal in Clause 75(2)(c) to proceed by way of regulation. Therefore, it is a schedule plus a power by order which is subject to affirmative resolution instead of the present provision for regulations.
Perhaps I may say at the outset that the Government have taken a very careful approach to this exercise. We have been mindful that the Bill as presently drafted already allows for a conviction for an offence to attract the assumptions where the offence has been committed over a period of six months or where it forms part of a course of criminal conduct as specified in Clause 75(3). We have taken the approach that offences should be included in the schedule only where a single conviction for that offence can normally be regarded as indicative of a criminal lifestyle.Members of the Committee may
However, on further consideration, the Government have decided that it would not be appropriate to include some of this conduct in the schedule either because there were technical difficulties in including certain offences or because we did not think after all that they were normally indicative of a criminal lifestyle.
I shall first discuss which of the offences fall into that category; that is, those which have been omitted from the list. First, there is forgery of travel and other immigration documents. In the case of the forgery of travel and other immigration documents and conspiracy to defraud the Crown, the offences that currently relate to this conduct are very broad. The Government think that they will catch many offenders whom one would not normally regard as having a criminal lifestyle. Forgery offences, for example, could catch a person who forged a student card for the purpose of obtaining admission to a pub or a club.
Secondly, there is child pornography. Of course that is a very serious kind of crime. It may be indicative of a criminal lifestyle. It is not acquisitive but psychopathological. Most of the traffic in such material that goes on across the Internet is believed to be on an exchange or no-fee basis. The lack of an acquisitive element leads us to conclude that the offence is not indicative of a criminal lifestyle, as the term is understood in the Bill. So it has been omitted from the schedule.
With regard to bribery, prosecutors note that it often seems to be an isolated event related to particular and temporary circumstances. Against that background it is difficult to justify the inclusion of that offence in the schedule.
Similarly, insider dealing is not thought to be any more indicative of a criminal lifestyle than an offence such as theft, which is not included. It is not an activity typical of organised crime. The criminal law on insider dealing also works alongside a civil code of market conduct and rules of investment exchanges. That regime is designed to ensure that insider dealing does not occur on a systematic basis. So it is again omitted.
Terrorism has of course given us a great deal of food for thought. The list circulated in the other place talks in terms of including terrorist funding offences. But, on careful reflection, we have decided that it would not be appropriate to include these offences. They are very much concerned with the idea of raising funds for use in terrorism. As such, it is difficult to see how they could be regarded as indicative of the kind of offender who is involved in acquisitive crime.
Examination of that issue has lead to an acute awareness of the extent to which terrorists are involved in racketeering for their own benefit, particularly in Northern Ireland. The Government believe that it
So far as concerns money laundering, I should mention that in transferring the offences of money laundering from Clause 75(2)(b) into the schedule, we have decided not to include Clause 329 of the Bill—that is the acquisition, use and possession of criminal property—because we recognise that that offence is very broad and that there will be many cases where it is not indicative of a criminal lifestyle. Clauses 327—concealment of criminal property—and 328, dealing with certain arrangements, are, however, properly included.
I have set out—I hope that Members of the Committee do not think at too much length—the thinking on the omitted offences partly because the Committee will want to know why certain offences are not included but partly also to emphasise the cautious approach which the Government have taken to the issue. The Government are well aware of the consequences that can flow from a finding of a criminal lifestyle. For that reason, where there is doubt as to whether an offence should be specified as a criminal lifestyle offence the approach has been to exclude it. It will, of course, be possible to add offences at a later date or even remove them by means of the order-making power if the Secretary of State considers that justified and if Parliament so approves by affirmative resolution.
I turn now to the offences listed in the new schedule. In the main, they are self-explanatory, but I should like to make a few general comments about them. People trafficking is an issue of international as well as national concern, and I should be surprised if there were any controversy about including it in the schedule. Similarly, arms trafficking, like people trafficking and drug trafficking, is lucrative criminal conduct typical of organised crime.
I should perhaps add that we will need to revisit the facilitation offence in the light of the new offences in the Nationality, Immigration and Asylum Bill recently introduced in another place. If it is appropriate to specify offences in the new Bill, we shall do so.
The involvement of professional criminals in the manufacture and circulation of counterfeit currency and other merchandise is well known and the counterfeiting offences are included for that reason.
The reasoning underlying the inclusion of piracy offences—piracy in the sense of intellectual property, rather than any other kind—is similar. They are offences from which we know that professional criminals are making a handsome living. The offences are not particularly serious in sentencing terms, but we are here concerned with their capacity to generate
In relation to pimps and brothels, perhaps I may mention that at least one large confiscation order has been made under current legislation following a multiple conviction for brothel-keeping offences. The inclusion of sexual offences as a whole reflects our desire to attack the large profits made from sexual exploitation in all its forms.
Finally, I should make some comment on the offence of blackmail, which was not in the list circulated in the other place but which the Government now think should be included. The label of the offence may be slightly misleading. As Members of the Committee will be aware, English law makes no distinction between blackmail and extortion. I make it clear that the target of our attention in this instance is what people commonly refer to as extortion. That form of criminal conduct is quintessentially associated with organised crime, protection rackets and paramilitary racketeering in Northern Ireland.
The Government believe that the new schedule is a major improvement to the Bill, and I hope that the Committee will agree. It places the criminal lifestyle regime on a more coherent, rounded footing and will expose acquisitive criminals to more effective treatment than is presently possible. We intend to propose a list of parallel offences relating to Northern Ireland and Scotland.
I hope that in the light of my explanation, the Committee will support the new schedule, together with Amendments Nos. 81, 86, 293 and 296.
3.30 p.m.
Lord Goodhart: To clarify one point, would I be right to assume that where there was a single instance of insider dealing from which a substantial profit had been made, that profit could be recovered by a confiscation order on the basis of particular conduct or under a civil recovery order?
Next Section
Back to Table of Contents
Lords Hansard Home Page