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Lord Rooker: I do not know what the noble Baroness's question is, but that is not the way I put the matter. That is not correct. I am happy to explain the matter again. I make no complaint about anything. It was always our intention to move the first group of amendments, headed by Amendment No. 255D. However, the group of amendments headed by Amendment No. 260A had been decoupled from the first group only because I had given notice that I would not move them. As I explained in a letter to Members of the Committee on the Front Bench, the only reason I did that last week was because the Home Office thought that the Delegated Powers and Regulatory Reform Committee—which I respect—had not had a chance to consider the new order making power in Amendment No. 265F. Therefore, I decided that I would not move the relevant amendments but would do so on Report.
However, the Home Office did not know that the Delegated Powers and Regulatory Reform Committee had already considered Amendment No. 265F and had published its 20th report. On Thursday when I said that I would decouple the relevant amendments, I was not aware of that report. I found out about that only this morning. We had discussions on the matter last week but no one said, "By the way, paragraphs six and seven of the 20th report deal with the issue". I apologise that the Home Office was not aware of that. The fact that the Delegated Powers and Regulatory Reform Committee has reported gives me the opportunity to move the relevant amendments as we had originally intended for the convenience of those outside the Chamber. I do not complain about that. I take full responsibility for the fact that I found out about the report only today. However, it had obviously been printed as it was ordered to be printed on 15th May.
Baroness Carnegy of Lour: I thank the noble Lord for those comments. I am a member of that committee. The chairman of the committee is not present. I checked that we met on 15th May and that our decisions were available in print on the Internet the next day. It is rather strange that the Minister was not aware of that. However, he has explained the position and I apologise for holding up the Committee.
The Chairman of Committees (Lord Tordoff): The Question is that Amendment No. 255D be agreed to?
Lord Kingsland: I apologise. There are other amendments in the group. I apologise for not being more alert.
The Chairman of Committees: I also apologise to the Committee but as no one rose to speak I sought to put the Question.
Lord Kingsland: Such was the impact of the Minister's speech that I required a certain degree of reflection before I rose.
The Opposition have one amendment in the group, Amendment No. 265CA. I think that I heard the Minister say, in the course of his opening remarks, that although he felt that he had moved towards us to some extent, he had not moved as far as the contents of our amendment. Is that correct?
Lord Rooker: Amendment No. 265CA is drafted slightly differently from the amendment of the Members of the Committee on the Liberal Democrat Benches. Amendment No. 265CA refers to a period of two working days. However, we do not accept that a period of two days is sufficient. Therefore, the government amendments which I propose refer to a period of seven working days. The principle of the matter is correct; that is, the enforcement authorities should be subject to a time limit. That is the big change in this regard; namely, subjecting the enforcement authorities to a time limit. If they do not reach a decision within that time limit, people will be able to proceed with the relevant transaction. However, from a practical point of view, a period of two working days is not sufficient to enable the necessary inquiries to be made. Therefore, the Government propose a seven day notice period.
Lord Kingsland: I think then that the proper approach for me to take is to wait until Hansard is published, to reflect carefully on what the Minister has said and to come back to your Lordships' House on Report if I feel that the timetable recommended by the Minister is insufficiently taut.
Lord Thomas of Gresford: I have taken a little more time to assimilate that which the noble Lord, Lord Rooker, said. My reaction to what he outlined was to say, "Phew"! However, having had a little time to reflect, I am pleased that the Government have taken into consideration the criticisms that have been made elsewhere and that the principle of time limits has been accepted. For my part, I do not see that there is such a difference between seven days and two days but, as the noble Lord, Lord Kingsland, said, it may be a matter that needs further consideration. There is a period of time available during which the financial institutions can make such representations as they think fit. I shall take a similar course to the noble Lord, Lord Kingsland, in due course.
On Question, amendment agreed to.
Lord Kingsland moved Amendment No. 256:
- Page 191, line 27, at end insert "; or
The noble Lord said: I shall be telegraphic. Although the alleged offender may know or suspect that the property is criminal property, it is unclear whether he or she must knowingly conceal, disguise, convert, transfer or remove the property before being liable to conviction under this section. It is clear from Clause 335(3) that the alleged offender under Clause 327 must know or suspect that the property concerned constitutes, or represents, a benefit from criminal
Lord Bassam of Brighton: As the noble Lord has already commented, Clause 335(3)(b), which defines criminal property, introduces a mental element of knowledge or suspicion into the three principal offences at Clauses 327, 328 and 329.
So, for example, as the Bill currently stands, an offence is not committed unless the person who carries out one of the activities in subsection (1) actually knows or suspects that the property represents a person's benefit from criminal conduct and he fails to make an authorised disclosure under Clause 334 without reasonable excuse.
The first point I would make in response to this amendment is that it would introduce an unhelpful element of uncertainty to the mental element required and the circumstances in which an offence would be committed. The prosecution would have to establish not only that I, for instance, knew or suspected that property was a person's benefit from criminal conduct but also that I intentionally carried out one of the acts in subsection (1).
However, it must be the case that if I know or suspect that property represents a person's benefit from crime, I cannot unintentionally go on to conceal, disguise or convert that property. It must be implicit in the knowledge and suspicion and the act itself that I intended to carry out the act without informing the competent authorities. Therefore, we think that the amendment is unnecessary and that it would do much to confuse matters.
We also take the view that the amendment would introduce plenty of scope in criminal proceedings for argumentation about the various mental elements that would be involved. That would almost certainly provide a welcome loophole by which those who assist in the criminal fraternity by laundering their ill-gotten gains would be able to escape the long arm of the law.
The aim of the Bill is to close such loopholes so that the opposite effect can be achieved. If the person shows that he or she did not know or suspect that the property represented a person's benefit from criminal conduct or that he had made proper disclosure to the authorities, that person will have absolutely nothing to worry about.
I hope that the noble Lord is persuaded of the case that the amendment would weaken the impact of law enforcement. I hope that he will reflect on that and withdraw the amendment.
Lord Kingsland: I am grateful to the Minister for his reply but I am not absolutely sure that I understand it. Is he saying that the amendment is unnecessary and that in front of each of the offences that are set out in
Lord Bassam of Brighton: I think that I am saying that. I believe that the mens rea element is already there. The amendment is unnecessary and would weaken the position.
Lord Kingsland: In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 327, as amended, agreed to.
Lord Rooker moved Amendment No. 256A:
On Question, amendment agreed to.
Clause 328, as amended, agreed to.
Clause 329 [Acquisition, use and possession]:
(d) the act he does is done without intention to commit an offence under subsection (1)"
4 p.m.
Page 191, line 37, at end insert "and (if the disclosure is made before he does the act mentioned in subsection (1)) he has the appropriate consent"
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