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The Deputy Chairman of Committees (Viscount Allenby of Megiddo): Before calling Amendment No. 81, I must inform the Committee that if it is agreed to, I cannot call Amendment No. 82.
Lord Rooker moved Amendment No. 81:
- Page 47, line 34, leave out paragraphs (a) to (c) and insert—
On Question, amendment agreed to.
[Amendments Nos. 82 to 85 not moved.]
Lord Rooker moved Amendment No. 86:
On Question, amendment agreed to.
Clause 75, as amended, agreed to.
Clause 76 [Conduct and benefit]:
Clause 78 [Gifts and their recipients]:
Clause 84 [Property: general provisions]:
Lord Goodhart moved Amendment No. 90:
The noble Lord said: The definition of property in Clause 84 is too wide. Under Clause 42, the Crown Court may make a restraint order prohibiting any person from dealing with what is described as "realisable property" held by him. Under Clause 83, "realisable property" means,
Under ordinary property rules, an interest in property can be owned, but ownership of a particular interest in property does not mean that the owner of that interest necessarily owns the other interests in the same property. The definition in the clause radically extends the ordinary meaning of property. It means that the mere holding of an interest in that property may be interpreted, for the purposes of a restraint order, as including the property itself and all other interests in it. For example, if a defendant rents a house, he has a legal estate in that house: that is an interest. Under the terms of Clause 84(2)(a), the defendant would be treated as holding not only his tenancy of the house but the entire interest in the house itself. If the tenancy is of a flat that is part of a block of flats, it is at least arguable that the defendant is to be treated as holding the entire block.
That would mean that property outside the defendant's ownership or control would be treated by the Bill as being held by him and could be subject to a restraint order. It is not good enough to say that the court would not make a restraint order extending to such property or that the court would not, for instance, make a restraint order preventing dealings with a house in which all that the defendant owns is a tenancy. However, even the theoretical possibility that such a restraint order could be made makes it difficult,
We should make it clear that an interest in property is itself a form of property. That is recognised in Amendment No. 90. Of course, there is nothing in the least unusual about that. In any ordinary definition of property, an interest in a property is a form of property. An interest in a house—whether it be a tenancy, a right of occupation by virtue of a trust or licence or some form of right of way over the land owned with the house—is, in itself, a separate form of property. However, we propose also to remove paragraphs (a) and (b) of Clause 84(2), so that only the interest itself can be subject to a restraint order. Thus, a restraint order would be limited to the extent of a defendant's interest in the property and would not extend to other interests in the same property.
The amendment is sensible, realistic and fair. As the Bill stands, the Government's proposals go well beyond anything that is needed or justified. To make property that does not belong to the defendant and is not, therefore, tainted property potentially subject to a restraint order is seriously wrong and could cause serious hardship. I beg to move.
Lord Bassam of Brighton: The noble Lord has set his case out well. Amendments Nos. 90, 142, 202 and 265H would define property as including an interest in property. Amendments Nos. 91, 143, 203 and 265J would delete the gloss on the words "held" and "obtained".
The amendments would re-draft the definitions of property in Clauses 84, 153, 238 and 335. Amendments Nos. 90, 142 and 202 expand the definition of property to include interests. However, we consider that interests are already covered by the wide definition of property, particularly that given in paragraphs (b) and (c) of Clause 84(1).
Amendments Nos. 91, 143 and 203 would delete the gloss on the words "held" and "obtained" in relation to property. As the noble Lord explained, he does not see why that gloss is necessary if the Bill has already provided that property includes an interest. However, the terms "held" and "obtained" appear regularly in the Bill. If the paragraphs were removed, it might cause doubt about what is meant when the Bill states that a person holds or obtains property.
The gloss on the words "held" and "obtained" appears in current legislation at Section 102 of the Criminal Justice Act 1988 and Section 62 of the Drug Trafficking Act 1994. If it were not included in this Bill, it might give rise to the inference that we intended the words "held" and "obtained" to have a meaning that differed from that in existing legislation. That is not the case, and it would be unfortunate if the Bill were to be interpreted in that way.
The amendments to Clause 335, Amendments Nos. 265H and 265J, seem to be unnecessary. They raise concerns similar to those that we have expressed in respect of Clause 84.
For those reasons, we cannot accept the amendment, and we hope that the noble Lord will be able to withdraw it.
Lord Goodhart: The Minister has not really dealt with my arguments on this point. I do not blame him for that; they are, in a sense, highly technical issues of property law. No doubt, the Minister's brief has come from somewhere else. However, there is no doubt about what holding or obtaining property means, in ordinary language. Someone who holds an interest in property holds a form of property. He does not, however, hold a block of flats, simply because he holds a tenancy in the block: he holds the tenancy.
I see no need to resist the amendments on the basis that they would cause any doubt about references elsewhere in this Bill or in other legislation to the holding or obtaining of property. The real problem is that the definition of property in the clause would extend a restraint order beyond the property actually held by the defendant himself and impose a restraint order on any other interest in property in which the defendant held an interest. That goes well beyond anything that can be justified. It is clear that property should be defined in such a way as to mean that all that can be subjected to a restraint order is property held by the defendant himself or tainted property, which can be made subject to a confiscation order. Therefore, I hope that the Government will consider that matter in the interval between now and the Report stage.
Lord Bassam of Brighton: I have listened carefully to what the noble Lord has said and I agree that there is an argument upon which we may need to reflect further. I am prepared to give an undertaking to write to the noble Lord so that we can attempt to reach a common understanding and to answer his point. I can see that this is a useful issue on which we should reach a settled view.
Lord Hope of Craighead: Will the Minister also consider the Scottish position because the same point arises in the amendment to Clauses 152 and 153? I mention the point only because the law of property in Scotland differs in some respects from the law of property in England and Wales and if the matter is being considered in relation to the English property provisions to which the noble Lord referred, it would be right also to consider the Scottish position in order to ensure that the point applies equally.
Lord Bassam of Brighton: It would be right to reflect on that point in order to cover both positions.
Lord Goodhart: I am grateful for the Minister's comments. I shall wait to see what arrives in correspondence, but if a satisfactory arrangement cannot be reached I shall wish to bring the matter back on Report. In the meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 88 [Drug trafficking offences]:
On Question, Whether Clause 88 shall stand part of the Bill?
Lord Rooker: I rise to ask the Committee to delete Clause 88 from the Bill. I beg to move.
Clause 89 [Money laundering offences]:
"(a) it is specified in Schedule (Lifestyle offences);"
Page 48, line 4, at end insert—
"(4) The Secretary of State may by order amend Schedule (Lifestyle offences)."
Page 51, line 22, at end insert—
"( ) interests in property"
"any free property held by the defendant".
Clause 84(2)(a) states that,
"property is held by a person if he holds an interest in it".
Under Clause 84(2)(f), an "interest" means,
"any legal estate or equitable interest".
4.15 p.m.
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