Column Number: 427
Standing Committee B
Tuesday 4 December 2001
[Mr. John McWilliam in the Chair]
Mr. Dominic Grieve (Beaconsfield): I beg to move amendment No. 270, in page 47, line 24, leave out paragraph (c).
The Chairman: With this it will be convenient to take the following: Amendment No. 279, in page 47, line 26, leave out paragraph (e).
Amendment No. 280, in page 47, line 28, after 'benefited', insert
'to a minimum of £5,000'.
Amendment No. 271, in page 47, line 30, after 'offences', insert
'punishable by imprisonment or a by a fine of or above level 2 on the standard scale'.
Clause stand part.
Amendment No. 272, in clause 76, page 48, line 5, after 'concerned', insert
'and which is punishable by imprisonment or a by a fine of or above level 2 on the standard scale'.
For the avoidance of doubt, it may be helpful if I clarify the scope of the debate. On 15 November, the Committee had a long debate about the desirability or otherwise of using the term ''criminal lifestyle'' to describe defendants who meet the condition set out in clause 75. The debate that we are now to have relates to the condition attached to the term ''criminal lifestyle'' and the definition of conduct that forms part of a course of criminal activity. I wish to make it clear at the outset that it will not be in order to refer to the desirability or otherwise of employing the term ''criminal lifestyle'' during this debate, because that matter has already been discussed and we have made a decision.
Mr. Grieve: It has been acknowledged in previous discussions that this is a key clause in respect of the workings of the confiscation provisions. I shall obey your strictures, Mr. McWilliam, not to stray into a discussion about the desirability of the term ''criminal lifestyle''. We may even come up with a better term, but the detail of what constitutes such a lifestyle will be critical in respect of how the Bill works, whether unfairness may creep in, and whether the measure will cover the offences that most people expect it to or whether it will be widened to catch those who commit offences that most people may consider do not fall within the category of a criminal lifestyle.
Column Number: 428
It may be helpful if I run through the amendments tabled by the official Opposition. Amendment No. 270 would leave out subsection (2)(c), which refers to such offences that may be
''specified in regulations under this section by the Secretary of State''.
Amendment No. 271 would introduce the same restriction that we discussed last week about whether certain minor offencesthose not punishable by imprisonment, but by a level 1 fine on the standard scaleshould fall within the offences that constitute a criminal lifestyle. Amendment No. 272 is consequential and relates to clause 76.
I shall explain first amendment No. 270. The Bill defines what type of offence constitutes a criminal lifestyle. For the most part, the offences listed do not fully encapsulate the intention of the legislation. Subsection (2)(a) deals with drug trafficking offences. Subsection (2)(b) refers to money laundering offences. Subsection (2)(d) deals with
''conduct forming part of a course of criminal activity''.
Subsection (2)(e) concerns
''an offence committed over a period of at least six months''.
For the moment, we will leave aside the question whether paragraphs (d) and (e) are too widely drawn, in that they are capable of targeting offences that were not committed for gain. I am aware that such offences constitute one of the trigger provisions that bring people within the criminal lifestyle definition.
We are anxious about the provisions that might be specified in regulations made by the Secretary of State. The Minister has been helpful. He sent me a listI am sure that other members of the Committee have received a copywith examples of criminal conduct that the Government consider to be indicative of a criminal lifestyle. He has already set out along the path of defining the areas that the Government might deem necessary to regulate by statutory instrument.
Many of the offences listed are already covered under paragraphs (a), (b), (d) and (e), and do not require any further definition under paragraph (c). To demonstrate that, it may be helpful if I cite some examples from the list, which includes
''people trafficking, in the sense primarily of trafficking for sexual exploitation''.
Although it does not fall within paragraphs (a) and (b), the offence, by its nature, will be part of a course of criminal activity and would have been committed over a period of at least six months. The same would be true in the case of
The list also refers to
''conspiracy to defraud the Crown (e.g. benefits, taxations, grants, etc),
to arms trafficking and to
''involvement in counterfeit currency and counterfeit goods''.
Mr. Mark Field (Cities of London and Westminster): The list is exhaustive, but under the example of conspiracy to defraud the Crown, will the defrauding of individual learning accounts be covered
Column Number: 429
under paragraphs (a) to (e)? Perhaps the Minister had it in mind under the all-embracing paragraph (c) to criminalise such minor offences?
Mr. Grieve: My hon. Friend may be right. The list refers also to insider dealing, and in certain circumstances such an offence could fall outside the scope of paragraphs (a), (b), (d) and (e). In that case, the offence would have to have been committed within a short time. However, such an offence is likely to require some preparation and therefore to have taken place over the specified six-month period.
The list covers ''dealing in child pornography''. That may be an example of when a person could be arrested on the first offence and be able to show a shorter course of conduct. We may have to consider what the Minister means by
''it constitutes conduct forming part of a ... criminal activity''.
My understanding of the clause is that any of the tests must be satisfied. The conditions mentioned in paragraphs (d) and (e) need not be satisfied together, because (d) can be satisfied without satisfying (e) for the time over which the offence was committed.
I shall finish the list to ensure that it is on the record: pimping, brothel keeping, corruption and terrorist funding offences. I tell the Minister that if the list is designed to be exhaustive in so far as there may be categories of offences that the Government are concerned may fall outside the scope of paragraphs (a) to (e), the sensible thing would be to state and refer to such offences specifically by amending the Bill. Alternatively, if the occasions on which the Minister believes that the Assets Recovery Agency should be brought into play involve offences that are likely to be over a time frame of six months or more, I am struck that it is unnecessary to include paragraph (c) at all.
The Minister will understand the anxiety that hon. Members are bound to have about paragraph (c). We are giving unfettered power to the Secretary of Statesubject to regulationsto classify any offence that he decides to incorporate. The legislation will apply retrospectively because a regulation that has been specified may refer to conduct that occurred prior to the legislation coming into effect. That is a more compelling reason why the Committee and Parliament should be wary of giving extensive powers, by regulation, to place within criminal lifestyle provisions categories of offence that Parliament and the public may have never imagined would be included in such provisions. I do not believe in giving excessive discretion to Ministers. Is there a compelling argument why the provision's inclusion is desirable?
Mr. Ian Davidson (Glasgow, Pollok): May I suggest to you that the reason for giving Ministers almost unfettered discretion is that although the will of Parliament is clear, we are not confident that judges, courts and the legal system will act in line with what Parliament desires? Rather than giving judges and courts the scope to reinterpret what we want and take out measures that we want included, we give the Home Secretary the opportunity to amend the legislation to
Column Number: 430
ensure that what Parliament and the public want is achieved. Is this a further example of your looking for loopholes for crooks?
The Chairman: Order. The hon. Gentleman prefaced his remarks with ''you'', and ended up by accusing me of looking for loopholes for crooks. I assure the Committee that I am doing no such thing.
Mr. Grieve: I think that I disagree with the hon. Gentleman. By virtue of discussions that we have had in earlier sittings, we are discussing mandatory provisions. The courts and judiciary will interpret them in the light of that. Parliament will provide that the judges shall deem that a defendant has a criminal lifestyle, and they will be obliged to do that. The question is not one of anxiety about judicial interpretation. The scope for judicial interpretation by judges to find a way out in a way that Parliament did not intend is non-existent.
Mr. Nick Hawkins (Surrey Heath): Does my hon. Friend share my worry that various interventionsthe most recent being made by the hon. Member for Glasgow, Pollok (Mr. Davidson)show that Government Back Benchers in the Committee often want to give the Labour Home Secretary carte blanche to do anything that he wants, in which case what is the point of Parliament and scrutiny? We might just as well have electronic voting from hon. Members' constituencies. We could ignore the Committee process and just have the Home Secretary's rubber stamp.
The Chairman: Order. The hon. Gentleman is out of line. Electronic voting from hon. Members' constituencies is not part of the legislation.