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9.45 pm

My hon. and learned Friend the Member for Harborough (Mr. Garnier) made the fair point that not all thoughts are factually based. I would go one stage further and say that not all thoughts are of themselves guaranteed to be just and fair—the argument that I have used on the other two amendments. If the director "thinks" unjust or unfair thoughts, he still thinks them. Under the Bill, that gives him the power to act. That cannot be right.

In Committee, the hon. Member for Glasgow, Pollok asserted that the simple act of carrying £25,000 in cash was almost proof of criminal activity. He felt that that would be proceeds of crime because he could not conceive of anyone under any circumstances carrying such an amount unless they were criminals. In that example, the hon. Gentleman "thinks" that he has the evidence that he needs to take action. What appeal can there be against him, as he has simply asserted that that is what he thinks? There can be no appeal against that, which is why we should introduce some concept of "reasonable grounds".

I would not wish to test your patience, Mr. Speaker, by rehearsing the debate we had in Committee about why it is possible to carry £25,000 in cash and not be a criminal. It is important that we are allowed to ask whether the agency has reasonable grounds for believing, rather than thinking, something. That is why I believe that amendment No. 59 should be sorted—I mean supported. [Interruption.] Some might think that it also needs to be

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sorted; others may think that I should be sorted. The hon. Member for Glasgow, Pollok has said that more than once in Committee.

Amendment No. 61 concerns double jeopardy. The highlight of the day for me is to hear two of my expert legal friends offering two different views of what something means. I would not wish to choose between my hon. and learned Friend the Member for Harborough and my hon. Friend the Member for Beaconsfield. Afterwards, they can sort out how the court would act, because that is not as important as the principle that there should not be double jeopardy. For the avoidance of doubt, we should support the amendment to ensure that that cannot happen, whatever the court may or may not do.

My hon. Friend the Member for Cities of London and Westminster (Mr. Field) was right to say that amendment No. 62 is also important. The principle of paying compensation when things go wrong is established and accepted by the Government. It is important that that should be fair and just to all those people who are involved. It is perfectly possible to have a partnership of several people where all but one of them are totally innocent and ignorant of what one partner is doing. If action is taken against one of the partners and subsequently fails, that single partner, under the Bill, will have some redress by way of compensation. If the business has been disrupted by seizure and by the failure of that action, all the partners in the business will suffer equally, but the Bill will allow only one to receive compensation.

A great deal more could be said, and it might be useful to hear the Government's view of their amendments. We may well wish to debate those but, for now, I shall just say that I should like to return to the matter if the Government provoke me on their amendments.

Mr. Stinchcombe: I speak with some trepidation, standing in front of my hon. Friend the Member for Glasgow, Pollok (Mr. Davidson), because I am a lawyer who practised in part in human rights law, and many of my former colleagues are in Matrix chambers. We have to be careful to ensure that the Bill is fully compatible with the European convention and the Human Rights Act 1998, which I spoke in favour of, as did the hon. Member for Beaconsfield (Mr. Grieve), the only difference being that I voted for it and he refused to do so.

There is a tension between the Bill and some elements of the Human Rights Act, as can clearly be seen in some of the different definitions of unlawful and criminal conduct. Close examination of those provisions shows that the Government are striving to ensure that the hierarchy of procedures and processes that they are setting up is fully compatible with the Act, targeting different remedies at different behaviours in an appropriate way. There is clearly some tension, so we must be especially careful in our scrutiny.

We must give full credence to the three categories of persons talked about by the hon. Member for Lewes (Norman Baker): we want to confiscate unlawful proceeds from the guilty while protecting both the victims—the people who die of drug addiction and those whose property is stolen by drug addicts—and the other innocent people who could get swept up in the process. We must strike that balance.

Opposition Members say that the amendment does not water down the Bill, but it clearly does. It precisely targets people who are guilty and puts them outside the

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parameters of the legislation. In terms, it targets people who have property that is the proceeds of unlawful conduct and exonerates them from having that property recovered under the civil procedure. That simply cannot be right.

The hon. Member for Beaconsfield spoke about that part of the Bill being a close from which the innocent should be able to escape, but the amendment would make it a road that the guilty never enter.

Mr. Ainsworth: I will not be able to go into detail on all the amendments, not because they are not worthy of discussion but because we walked all over most of this ground in Committee at great length. However, I want to deal with the points made by the Human Rights Committee and to go into some detail about the word "thinks", which appears to be exercising Members so greatly.

On amendments Nos. 57, 58 and 202, both the new civil recovery scheme and the expanded cash forfeiture scheme use the concept of recoverable property. By virtue of clause 316(3), the unlawful conduct that generated the recoverable property is not confined to conduct that took place after the commencement of the Act. That will enable the two schemes to have complete and immediate effect, allowing recovery of property that has already been obtained through unlawful conduct when the Act comes into force. To that extent, it has a retroactive effect.

The retroactive effect is circumscribed by clause 291, which imposes a limitation of 12 years. When we introduced the Bill, we did so to tackle a problem that we have now. I believe that it is important—and our constituents would consider it important—for the legislation to begin to bite now, rather than biting slowly over the next six, 12 or however many years. The present legislation clearly does not work well. There is abundant evidence that people are enjoying wealth that they have obtained illegally. The Government at least do not want to create what in effect would be an amnesty, which would be the result of stopping the retroactive operation of the Bill. If the amendment were accepted, people would consider what they possessed to be safe. Lawyers would advise clients, in no uncertain terms, to hang on to what they acquired before the Proceeds of Crime Bill became law, as that could not be touched.

As my hon. Friend the Member for Wellingborough (Mr. Stinchcombe) very capably pointed out, that has nothing to do with protecting the innocent. I accept that Opposition Members have made much constructive comment on the Bill, but on this matter, as on some others, the Opposition leave themselves open to the allegation that they are soft on crime. If they continue to push the line that retrospection in any form should not be allowed, that allegation becomes increasingly justified.

Mr. Grieve: The Minister may be missing the point. I share his desire to seize criminal assets, and to see prosecuted those people who have committed actions that I consider to be reprehensible. However, that does not allow me to pass retrospective criminal legislation. That is a well-established principle, and the Joint Committee on Human Rights has said that it fears that the structure being established by the Bill would do precisely that.

Mr. Ainsworth: I shall therefore move on to the important point, which is not to do with amendment

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No 57. It was made by my hon. Friend the Member for Redcar (Vera Baird), who spoke about the definition that applies to this part of the Bill, and its consequences. The hon. Member for Beaconsfield (Mr. Grieve) talks about retrospective criminal legislation, and he knows far better than I do that applying that definition to the Bill would cause problems with retrospection.

We believe that the provisions in the Bill are justified. There is no question that retroactivity will be applied to the definitions of what counts as unlawful conduct. We accept that the retrospective nature of the civil recovery proceedings depends on the fact that civil recovery is not regarded as a criminal penalty, for the purposes of the ECHR. That was the central point made by my hon. Friend the Member for Redcar.

We note that the Joint Committee on Human Rights has expressed reservations about the view that the Government have taken—that civil recovery does not amount to a criminal penalty. However, we note also that the Committee accepted that the matter has not been decided conclusively, either way, in existing case law. Civil recovery is, of course, a brand new procedure for the United Kingdom. We continue to believe that civil recovery should properly be regarded as a civil procedure.

Civil recovery is operated successfully in other countries. For example, Ireland, which has accepted the ECHR, has signed up to the same procedures as the United Kingdom. We are not persuaded that the scheme that we have created should be characterised as anything other than civil. As my hon. Friends have said, we have struggled to ensure that we have stayed within that definition and made this part of the Bill appropriate to be classified as civil. We fully understand that these powers are extensive, but we believe that we are on the right side of the line. That is the advice that we have had, and we continue to take that view, notwithstanding the views expressed by the Joint Committee on Human Rights.

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