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Time for making order

Lords amendment: No. 5.

Mrs. McGuire: I beg to move, That this House agrees with the Lords in the said amendment.

Mr. Deputy Speaker: With this it will be convenient to consider Lords amendments Nos. 11 to 13, 16, 17, 26, 27, 44, 49 to 51, 54, 55, 74, 80 to 82, 85, 86, 95 and 96.

Mrs. McGuire: This group of Government amendments on the subject of postponement has two basic purposes, and I trust that we can move forward on the basis of consensus. First, the amendments take account of the criticism of the original version of clause 7 that was made in Committee. Clause 7 originally stated that a confiscation order must be made before sentence. Although the clause was qualified by the postponement provisions in clauses 15 and 16, we agreed that it was somewhat too categorical. In practice, more often than not confiscation orders are postponed. Clause 7 and its equivalents in parts 3 and 4 have therefore been removed, and clause 15(1) and its part 3 and 4 equivalents now leave it open as to whether the court postpones the confiscation hearings.

Secondly, we have added a provision that will prevent a confiscation order from being quashed merely because of a procedural error in the court's application of the

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postponement provisions. We are most concerned that that sort of thing should not happen to confiscation orders under the Bill. The main purpose of postponement provisions is to enable defendants to be sentenced quickly and to give the court time to deal with the confiscation issues. We do not wish them to be grounds for appeals on technicalities, and the amendments will prevent that from happening.

The amendments will improve the practical operation of the Bill, and I commend them to the House.

Mr. Grieve: I can confirm to the hon. Lady that there is agreement on the amendments. I am grateful to the Government for having taken on board what was said during one of the constructive episodes in Committee in which we were pleased to participate. This illustrates the necessity of a dialogue between Opposition Members, Ministers and their Back Benchers to try to improve a Bill. I am delighted that the hon. Lady has been able to achieve that.

Lords amendment agreed to.

Clause 9

Defendant's benefit

Lords amendment: No. 6.

Mrs. McGuire: I beg to move, That this House agrees with the Lords in the said amendment.

Mr. Deputy Speaker: With this it will be convenient to consider Lords amendments Nos. 7, 8, 10, 14, 15, 31 to 33, 45, 46, 48, 52, 53, 67, 75 to 77, 79, 83, 84, 100 and 324.

Mrs. McGuire: This is a mixed group of Government amendments. Some of them are fine tuning, but as a whole they are important to the operation of the Bill.

Amendments Nos. 6 to 8, 10, 45, 46, 48, 75 to 77 and 79 deal with a technical problem affecting certain cases where a previous confiscation order has been made against the defendant. That will ensure that any benefit taken into account for the purposes of a previous confiscation order is also taken into account when the court comes to make a new order against the same person.

Amendments Nos. 14, 15, 52, 53, 83 and 84 respond to Opposition concerns about clause 19, which empowers the court to order the defendant to provide information.

First, we have inserted a protection against self-incrimination for defendants. Secondly, we have made it clear that a failure to comply with the court's order exposes the defendant to contempt proceedings. That is necessary because the court has an explicit power under the clause to draw adverse inferences from such a failure. In the absence of a clear statement to the contrary, that explicit power could be misconstrued as preventing the court from exercising its contempt powers. The amendments put it beyond doubt that that is not the case.

Amendment No. 31 would make hearsay evidence admissible in restraint proceedings in England and Wales. It is needed because hearsay is not normally admissible in the Crown court, and restraint proceedings rely heavily on it in practice.

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Amendments Nos. 32, 33 and 324 simply take note of the enactment of the Land Registration Act 2002. Amendment No. 67 would bring the legislative steer in clause 134 on the powers of the court and administrator in Scotland into line with those in England, Wales and Northern Ireland.

Amendment No. 100 is technical, and would bring clause 212, which relates to the protection of receivers in Northern Ireland, into line with its equivalents for the other two jurisdictions.

Mr. Hawkins: We welcome the Under-Secretary's acknowledgement of many matters that we raised in Committee. I also welcome her transformation from being a Whip, in which role she also helped the Committee. It is a shame that the hon. Members for Glasgow, Cathcart (Mr. Harris) and for Glasgow, Pollok (Mr. Davidson), who served on the Committee and claimed in the previous debate that the Opposition were trying to wreck the Bill, are no longer present to hear her acknowledge that the Government are responding to the constructive points that we made to improve the measure. At least her fellow Under-Secretary is here and, whatever he says, he knows in his heart that the time in Committee was well spent and that it improved the Bill.

We want to make two small points. First, I want to consider the new provision about hearsay evidence, which was not debated in Committee but was introduced by Lord Bassam of Brighton on 22 April 2002. As Lord Goodhart said:

He went on to say that its introduction

He did not therefore object to it. Will the Under-Secretary confirm on the record that the Government do not intend the provision to be the thin end of any wedge, or plan to introduce new provisions to use hearsay when it has previously been inadmissible?

Will the Under-Secretary of State confirm that she and her officials will try to ensure that all those who try the cases that involve the new use of hearsay have specific extra training? We are considering a new approach, which, as the Government rightly said, broadens powers. I should be grateful if the Under-Secretary would confirm that the work of the Judicial Studies Board and the preparation of judges to deal with the novel factors will take account of that.

The Under-Secretary referred to another matter that I wanted to raise: the importance of the privilege not to self-incriminate. We welcome the Government's response to Opposition Members' anxieties in another place and in Committee about that.

The hon. Lady was right to say that our debates, which led to the Government amendments, greatly improved the Bill. We do not therefore oppose the amendments.

Mrs. McGuire: I thank the hon. Gentleman for his comments. Although we have criticisms of the Opposition, much of the discussion in Committee was constructive and I am grateful to him for recognising that we responded to that.

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I confirm that the provision on hearsay does not constitute the thin end of any wedge. It does not change the procedure and is simply a consequence of moving restraint from the High Court to the Crown court. Although I accept that introducing hearsay may be a new departure in some circumstances, we give a commitment to additional training. The Judicial Studies Board will ensure that that is done. In view of those assurances, I trust that we shall have consensus on the amendments.

Lords amendment agreed to.

Lords amendments Nos. 7 and 8 agreed to.

New Clause

Lords amendment: No. 9, after clause 10, to insert the following new clause—Compensation of creditors.

Mr. Bob Ainsworth: I beg to move, That this House disagrees with the Lords in the said amendment.

Mr. Deputy Speaker (Sir Michael Lord): With this it will be convenient to consider Lords amendments Nos. 30, 47, 66, 78, 99 and 166 and the Government motions to disagree thereto.

5.30 pm

Mr. Bob Ainsworth: In moving on to compensation for creditors with regard to the confiscation system, I should like to make it clear to the House that, in discussing Lords amendment No. 4 and the associated group of amendments, I hope that I said nothing to detract from the understanding that confiscation applies to a very wide range of offenders—far wider than that which was covered previously. My hon. Friend the Member for City of York (Hugh Bayley) raised an issue in respect of international bribery and corruption, about which I know he is concerned. I am sure that he will be pleased to hear me confirm that the Bill enables criminal confiscation orders to be made in relation to such offences and allows restraint of assets that are the proceeds of such offences.

The amendments cover a territory that should be very familiar to the House. We discussed the issue with which they deal at considerable length in Committee on 20 November last year. I should also make it clear to the House that the provisions that the amendments would overturn have been a settled feature of the tough confiscation legislation that the Conservative party introduced in 1986 and 1988. The hon. Member for Orkney and Shetland (Mr. Carmichael) is not present, but I am not the slightest bit embarrassed to say that we are trying to build on that tough legislation.

Given the degree of earlier discussion about the issues, I should like briefly to describe the amendments, which all relate to the position of unsecured creditors who have outstanding loans. The effect of amendments Nos. 9, 47 and 78 would be to make the enforcement authorities liable to pay the unsecured debts of any person whom the defendant was unable to repay because of the making of a confiscation order. Amendments Nos. 30, 66 and 99 would allow restrained assets to be used to pay any debts of the defendant that were incurred before the restraint order was made. Amendment No. 166 would have a similar effect in relation to part 5 as amendments Nos. 9,

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47 and 78. It would empower to court to require the enforcement authority to pay compensation to any person whom the respondent was unable to pay because of the making of a civil recovery order. The requirement could be placed on the enforcement authority if the debt was incurred for full consideration and the debtor had no reason to expect that the recovery order could be made against the respondent.

I shall speak first to the amendments affecting parts 2, 3 and 4. The amendments would undermine the confiscation scheme so completely as to render it inoperable. As I indicated, they would make the enforcement authorities liable to pay any unsecured creditor of the defendant at the time when the confiscation order was made.

The amendments state that such payments would be a matter for the courts; the creditor would make an application to the court and it would be for the court to decide who should pay. This raises the question of how such applications would be defended. The defendant to the action would be the enforcement authority involved in obtaining the confiscation order—it might be the Crown Prosecution Service, Her Majesty's Customs and Excise, or the director of the Assets Recovery Agency. It would fall to those authorities to defend such actions. I would personally prefer the CPS, Customs and the director of the agency that we envisage arising from the Bill to spend their time carrying out their proper functions, rather than defending actions against them in the courts from persons claiming to be the unsecured creditors of criminals.

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