Proceeds of Crime Bill

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Mr. Stinchcombe: I want to put on the record a slight worry that I have, which is not about subsection (2)(c). I see forcefully the case for the Secretary of State to have the power to create a further list of offences by regulation in certain circumstances, because there are fads in criminal conduct and different acts may arise in the future that cause serious worry. It would be wrong for the Secretary of State to be hampered and inhibited; it is right that he be empowered to deal with such changes.

We already have a draft schedule of serious criminal offences that the Home Office anticipates will be included in regulations. We have also heard suggestions of further serious offences for gain that are excluded from both the Bill and the draft schedule, such as murder for gain, armed robbery and aggravated burglary. I do not understand why such offences cannot now be included within a schedule, to direct future Secretaries of State when further ministerial discretion must be exercised. I am not worried about the existence of subsection (2)(c), but about why the offences that should fall within the ambit of the regulations are not currently specified.

Mr. Ainsworth: I do not argue in principle with what my hon. Friend has said. However, the schedule must define the conduct and we must relate that to the offences. Offences such as those that he raised may have to be included. I do not think that there is a point of principle at all; my hon. Friend is just worried that we are not further along with the process, and we do intend to move in the direction that he suggests.

The hon. Member for Beaconsfield struck at the heart of the matter. We differ fundamentally if he insists that we should remove the power to add further offences to the list. Despite the different powers in the Bill that he expounded, we need that fallback provision in case something arises after the Bill has been enacted. We should not have to return and make more primary legislation. The hon. Gentleman made his point eloquently and succinctly, but we will not be able to agree.

Norman Baker: Will the Minister give way?

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Mr. Ainsworth: I do not see the point in responding to many of the other comments, which have been made for many reasons. My hon. Friend the Member for Glasgow, Pollok wanted to put his points on the record. I am not dead sure about the motives of the hon. Member for Spelthorne, but I did not detect anything new in anything that he said.

Norman Baker: Before we move to a vote, can the Minister confirm that he is willing to consider inserting into the Bill a schedule to formalise the crimes that he identified on the list that he circulated? Furthermore, will he consider whether the de minimis provisions can be drawn up in a way that does not produce loopholes?

Mr. Ainsworth: I am not giving the hon. Gentleman assurances about thresholds. I recognise the advantages in such a proposal, but I also recognise the potential for huge problems. I would have to be absolutely convinced that loopholes would not be exploited. I am not positively thinking of such measures. As for exactly how we deal with the list and its expansion, I do not know. I shall think about it and let the Committee know how best it can be dealt with. As my hon. Friend the Member for Wellingborough (Mr. Stinchcombe) said, even if we had such an expanded list, the ability to add to that list would not be removed from the Bill. That is a point of principle with the hon. Member for Beaconsfield, and it is one about which we shall have to disagree.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 10.

Division No. 12]

AYES
Grieve, Mr. Dominic
Hawkins, Mr. Nick
Johnson, Mr. Boris
Wilshire, Mr. David

NOES
Ainsworth, Mr. Bob
Baird, Vera
Clark, Mrs. Helen
Davidson, Mr. Ian
Harris, Mr. Tom
McGuire, Mrs. Anne
Robertson, John
Stinchcombe, Mr. Paul
Stoate, Dr. Howard
Watson, Mr. Tom

Question accordingly negatived.

Amendment proposed: No. 280, in page 47, line 28, after 'benefited', insert

    'to a minimum of £5,000'.—[Norman Baker.]

The Committee divided: Ayes 6, Noes 10.

Division No. 13]

AYES
Baker, Norman
Brooke, Annette
Grieve, Mr. Dominic
Hawkins, Mr. Nick
Johnson, Mr. Boris
Wilshire, Mr. David

NOES
Ainsworth, Mr. Bob
Baird, Vera
Clark, Mrs. Helen
Davidson, Mr. Ian
Harris, Mr. Tom
McGuire, Mrs. Anne
Robertson, John
Stinchcombe, Mr. Paul
Stoate, Dr. Howard
Watson, Mr. Tom

Question accordingly negatived.

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Clause 75 ordered to stand part of the Bill.

Clause 76

Conduct and benefit

Norman Baker: I beg to move amendment No. 281, in page 47, line 40, leave out from 'conduct' to end of line 2 on page 48.

I shall be brief, as we have just had rather a long discussion. The amendment is to some extent related to the previous clause, although, rightly, it has been grouped separately. Its purpose is to ensure that the Government put on the record a statement of their policy on retrospectivity in this legislation.

Many of us are concerned when retrospective provisions are inserted in any legislation. That is not a process that many of us like to see, and there has to be a very good reason for it, as is well set out in law. It is a principle of basic justice that a person should not be convicted of an offence if, when the offence was committed, it was not a criminal offence, or if the penalties applicable for that offence at the time were different from those that applied subsequently because of retrospective legislation.

Mr. Hawkins: The hon. Gentleman is making a valuable point. Has he had an opportunity to discuss the Liberal Democrats' concerns about the European arrest warrant with the hon. Member for Southwark, North and Bermondsey (Simon Hughes), who, like the Minister and myself, is involved in considering the matter? Some of the concerns that he is currently expressing would be reamplified if the Government were to sign up to the European arrest warrant at the European Council at the end of this week.

Norman Baker: I shall respond—briefly, Mr. McWilliam, as I notice the flick of your eyebrows. Suffice it to say that I have numerous and lengthy conversations with my hon. Friend the Member for Southwark, North and Bermondsey, normally at very unsocial hours such as 3 o'clock in the morning—although that is an exaggeration. He has discussed the European arrest warrant with me, and we have concerns about retrospectivity in that context, as we do in relation to this Bill, and as a general matter of principle if an activity is subsequently criminalised when previously it was legal, or if the penalties for a particular offence were previously relatively minor but a swathe of hard-hitting legislation—I shall not use the word ''draconian'', which is pejorative—has suddenly been introduced.

For instance, the Bill shifts the burden of proof on to the person accused of criminal activity or of benefiting from the proceeds of crime. It will require the person accused to prove that possessions have been legally obtained and are not the proceeds of crime. That person will therefore have to produce tax returns and bank statements going back quite a long way. Earlier, the Minister spoke against an amendment that I tabled to limit that process to six years, and against the idea that the prosecution should bear the onus of proof when events are more than six years ago. Despite the fact that hard-hitting measures have been agreed

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earlier in the Bill, the Minister should at least give a full explanation of why such general retrospectivity needs to be included in the Bill.

Mr. Hawkins: I share the general concern expressed by the hon. Member for Lewes on behalf of his party about retrospective legislation. It has always seemed to me an important principle of English law that Parliament should be sovereign, but that it should not be able to create, with the stroke of a pen, criminal offences out of activities that were not previously criminal. The Government will have to work extremely hard to convince not only the Opposition but the world outside that such a draconian extension of the law is justified. Although we want to hit the Mr. Bigs to whom the hon. Member for Glasgow, Pollok and other hon. Members have rightly repeatedly referred, we must make sure that the law appears to be fair and does not retrospectively criminalise. If the Bill is brought into force in anything like its current form, great swathes of conduct and property that were not the subject of the law beforehand should not be criminalized from the moment that it is enacted.

I mentioned to the hon. Member for Lewes that I was concerned about the European arrest warrant. Committee members might be aware—not least from today's press, following the fiasco of yesterday afternoon's European Standing Committee B on the European arrest warrant, which had to be abandoned after 50 minutes, and is due to be recommenced de novo on a date that we do not yet know—that great concern is being expressed about the possibility that the Government are about to say that people in this country can be at risk of arrest for things that are not an offence in this country, but which might be declared, under the generic title of ''swindling'' or ''xenophobia'', to be offences in another country.

The same concern applies in the present instance. That is why the two matters are related. People should not be at risk of arrest in this country for activities that are not offences in this country, and people should not be at risk of being dealt with by a new Act of Parliament for things that were not criminal before it was enacted.

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Important principles are at stake. Although I do not expect that the debate will be lengthy, I hope that the Minister will address the matter seriously. I also hope that Government Back Benchers will contribute to the debate; many of them have a proud record, both in the House and in their previous careers, of standing up for the rights of the individual, of being public supporters of organisation such as Liberty and Justice, and of ensuring that our legislation is not too draconian.

 
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