Proceeds of Crime Bill

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Mr. Davidson: I support the thrust of the amendment, especially with regard to one subject. Certain aspects of the ARA's remit will extend to Scotland as well as to England and Wales, and in such circumstances, a single set of targets will cover the entire United Kingdom. However, in England and Wales the director of the ARA will pursue objectives that in Scotland are handled by other organisations. Will those Scottish organisations also be obliged to produce annual plans, objectives and targets? If so, they might be worded in a slightly different way, because of the different jurisdictions, and it would be helpful to ensure that they were compatible. That could only be ensured if the basis of such performance targets were listed. Therefore, I want the Minister to confirm three matters: first, that equivalent objectives and targets will have to be produced for Scotland; secondly, that they will, as far as possible, be compatible; and thirdly, that if that is not entirely the case, the basis of such performance targets in England and Wales, and in Scotland, will be made publicly available, to allow comparisons.

Mr. Ainsworth rose—

Mr. Hawkins: I am not sure whether the Minister wishes to respond to that—but he has already spoken, so it would be unconventional for him to respond to his hon. Friend's speech. It might be more appropriate if the hon. Gentleman were to ask him a question. Although the procedure is unconventional, Opposition members would be happy for the Minister to respond.

The Chairman: Members of the Committee can speak as often as they wish.

Mr. Ainsworth: I confess to my hon. Friend that I am not au fait with the details of how, north of the border, the Lord Advocate or Ministers make themselves accountable for performance targets. However, it will be necessary to ensure that the Act is correctly operated in every part of the United Kingdom, and I will try to come up swiftly with satisfactory answers to his questions.

Mr. Hawkins: The Minister is doing his best to help Opposition members—as I knew he would. He realises that the Committee is discussing a serious matter, which has not been raised for frivolous reasons.

I am also grateful to the hon. Member for Glasgow, Pollok for supporting the spirit of the amendment. He and I play on the wings for the Lords and Commons rugby club, and we also frequently take a similar approach to issues such as that which the Committee is now discussing. I look forward to further co-operation between those on the Opposition Front Bench and those on the Labour Back Benches as the Committee proceeds. The hon. Member for Glasgow, Pollok always takes an independent view of such matters. He does not slavishly follow his Front Bench but always speaks for himself. That is one of the reasons why he is so widely respected in the House.

Mr. Davidson: I remind the hon. Gentleman that when we both played on Saturday, I scored a try in each half. On the one occasion in the past when I was minded to give him a scoring pass, he dropped it.

Mr. Hawkins: I certainly remember the hon. Gentleman's two tries. He failed to inform the Committee that he managed the unique experience of scoring a try for each side, switching his jersey and playing one half for one side and the other half for the other. I would not dream of suggesting that the switching of jerseys is replicated in the hon. Gentleman's political career—but the word ``turncoat'' was mentioned by the Liberal Democrat peer who captained our team for the day. While playing for the Lords and Commons we have both dropped a multitude of scoring passes, and I do not believe that the experience to which the hon. Gentleman refers is unique.

We are discussing serious matters. Opposition Members are prepared to accept the Minister's kind offer to provide the Committee with guidance, and I am sure that he will write not only to us but to all members of the Committee. When we have seen that guidance, we may want to return to the point later, either on Report or in another place. For the moment, however, in light of the Minister's helpful offer, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

The Chairman: Before we discuss the next amendment, I give some guidance to the many hon. Members for whom this is the first major Standing Committee in this Parliament. We must speak to the amendments or clauses that are before the Committee. Matters that go wider than that are, strictly speaking, out of order. I have been lenient this morning, but do not be led into bad habits by the Front Benchers, who, by their very nature, have bad habits.

Clause 2

Director's functions: general

Mr. Grieve: I beg to move amendment No. 2, in page 2, line 19, leave out subsection (5).

The clause will allow us to have a wide-ranging discussion, because it relates to an important issue in the Bill. We have already touched on it in discussing clause 1 stand part. The amendment raises a specific issue about the guidance given to the director by the Secretary of State.

When we debated the matter on Second Reading, we had little sign of what form the guidance would take. However, as I said earlier, the Minister helpfully produced a guidance document, which arrived on our desks yesterday or the day before. It sets out the proposed guidance that the Secretary of State will give the director on how to exercise his functions so as best to contribute to the reduction of crime. Some aspects are innocuous and sensible. I am pleased that the guidance refers specifically to the director's need to liaise with prosecution authorities to ensure that no prosecution will be jeopardised by his activities, which is the nub of the matter.

Perhaps more controversial, especially in view of later clauses that deal with the triggers for confiscation, is point 5, which states:

    ``Where a criminal conviction has been obtained, the Secretary of State considers that the use of criminal confiscation is a method of targeting the proceeds of crime which will best contribute to the reduction of crime.''

No attempt is made to identify whether, for instance, the sort of crime referred to is crime for gain or any old crime. On the basis of the guidance note, if you had a road traffic conviction for speeding, you would bring yourself within the ambit of the Secretary of State's guidance. Some important issues arise from that.

The Chairman: Order. When the hon. Gentleman uses the word ``you'', he refers to the Chair, and I assure him that I do not have a conviction for speeding.

Mr. Grieve: I am sorry, Mr. McWilliam. I was oblivious to the fact that I had said ``you''. I was not suggesting that you had a conviction for speeding or for anything else.

We are discussing a guidance note, but there is nothing to prevent the Secretary of State from issuing dozens of guidance notes subsequent to the Bill being enacted. How does the Minister view that? Is what we were handed by the Government prior to this debate a tablet of stone or holy writ? Is it the defining guidance document for the director, after which he will be told to get on with it, or is it the first of dozens of guidance notes that the Home Secretary will send winging to the director's desk as he seeks to meet the performance targets that we discussed under earlier amendments?

11.30 am

If the guidance note is a tablet of stone, why was it not included in the Bill as a substantive clause? If it is not, how does the Minister see future guidance being developed? Above all, what opportunity will the House have to debate such guidance? The Bill sets out clearly what the director should do. He is supposed to hunt for the proceeds of crime by confiscation or civil recovery. That is an onerous task and one that is clearly a quasi-prosecutor's role. I was a little alarmed when the Minister drew a distinction between a prosecutor and the director of the Assets Recovery Agency because, for civil recovery, the powers given to the agency are draconian in the extreme compared with what has existed before.

As we said on Second Reading, the Government are setting up a structure that can lead people to be drawn through machinery that will ultimately confiscate their assets under a civil standard of proof. I am not even sure that it is a civil standard of proof; it seems to be a method based on the balance of probabilities. We must consider carefully what we are doing and what guidance will be given. I hope that the Minister can respond fully to my argument because the issue is one of the most important that we shall be debating this morning. The guidance will be critical. As the Minister made clear, the director will be susceptible to it because he will have to respond to it. In itself, I do not take great exception to the guidance note, apart from flagging up the interesting issue under point 5 about whether the Bill applies to all crime generally rather than to crime for gain.

Having said that, I am deeply troubled by the prospect that the paper is only guidance note No. 1 and that a great deal more guidance notes will regulate the manner in which the director operates. They will fetter his discretion and we may end up with a system of administrative enforcement that is dictated by politicians and that will bring the mechanism of the Bill into disrepute. As I said to the Minister on Second Reading, we support the principle behind the clause. It is important that those who enrich themselves through crime have their assets removed.

Mr. Bob Ainsworth: The amendment would remove the requirement on the director to have regard to the guidance given to him by the Secretary of State about how he might exercise his functions in a way that is best calculated to contribute to the reduction of crime. The Secretary of State would then have no statutory authority to give guidance to the director at all. The amendment would not prevent the Secretary of State from providing guidance but it would remove the obligation on the director to have regard to it.

The provision of guidance to the director by the Secretary of State is an important element in the operation of the new agency. The intention is that the guidance will help the director to fulfil his responsibilities under the Bill, and will focus on how he can best contribute to the reduction of crime in accordance with subsection (1). The Secretary of State is well placed to give such guidance, given his overall remit on the reduction of crime.

We envisage that the guidance will have two main functions. First, it makes clear that the Secretary of State's view is that the reduction of crime will generally be best achieved by the prosecution of offenders. That is important, and provides the reassurance that many hon. Members have sought. The pursuit of the proceeds of crime will not be used as a soft option and an alternative to normal prosecution. Normal prosecution should come first, and considerations on the recovery of the proceeds of crime should not impinge on that decision, which should be taken in the normal way.

Secondly, the guidance will set out how, in the Secretary of State's view, the various methods of asset recovery might contribute to the reduction of crime. The document that I have issued is not set in stone. It represents our current thoughts about what the guidance would be. I assure the hon. Member for Beaconsfield that it is not our intention to issue further guidance notes delving into other areas. That is the kind of guidance that we envisage is covered in the Bill, and that should be provided to the director. We do not intend that different aspects of the work should be covered in subsequent guidance notes, but that such guidance, or some variation of it, as we refine our thinking, is the guidance under which the director will operate.

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Prepared 13 November 2001