Proceeds of Crime Bill

[back to previous text]

Mr. Alistair Carmichael (Orkney and Shetland): I am not without sympathy with the hon. Gentleman's argument, but we are dealing with the execution of an order of court that has already been granted. I offer him another example: if I obtained a decree against the hon. Gentleman in court, I could pass that to sheriff officers for enforcement. The powers of a sheriff officer are not massively removed from the power to enter, to pin and ultimately to remove and dispose of property under schedule 3.

11.15 am

Mr. Grieve: I agree with the hon. Gentleman; such powers exist. Before he was elected to the House, the power to pin that exists in Scottish law tended to be condemned by Labour Members.

The power under discussion initially derives from the interim receiver's being appointed with power to seize property. That is a general power. As it is described in paragraph 3, it is an extensive power, because it is not confined to premises that belong to, or are connected with, the individual against whom the order has been made. Any premises can be entered. If the Government art fund had inadvertently acquired a painting that fell within those provisions, someone could roll up outside No. 10 Downing street and demand admission to take it off the wall of the Prime Minister's office. Given that such circumstances might arise, it might be wise for people to be required to go back to the court to get the warrant, or the authority, for a particular entry.

I accept the hon. Gentleman's point that if a general power to seize property had been granted against an individual, it might be a logical progression to assert that any premises connected with that individual could be searched. However, the provision currently allows any premises in the United Kingdom to be entered. Given that related property that is in the hands of innocent individuals might be involved, the power is far too unfettered. In fact, it is completely unfettered. Once appointed, the receiver can do anything that he likes, in relation to going around the country investigating assets. That could give rise to problems. The easy way of dealing with them would be to say to him, ''If you wish to enter premises in that form, go and get the authority of the court.''

I might be satisfied if the Minister were to come back to the Committee and say that he accepts that there is a valid underlying point, and that he believes that some redrafting could be done that would still give the receiver powers that would frequently not involve his having to go to the court, but that would also take into account circumstances where he should have to go to the court—such as if related property that was in the hands of another person was involved. The amendment was not intended to achieve our end in that way; we sought to take the easy course of saying, ''Get the court's authority.''

If the matter is left as it stands, the power will be too wide—particularly as it relates to people's homes. Parliament should be very careful about giving individuals the power, in effect, to break and enter property at will, and without giving a good or sufficient reason. Even the police do not have such powers—except in extraordinary circumstances—and neither should the receiver have them.

Mr. Carmichael: In accordance with the best traditions of the Liberal Democrats, I have sympathy for both sides of the argument.

Mr. Hawkins: I am unsure whether the hon. Gentleman is right to say that that is one of his party's best traditions, but it is certainly a tradition—as both the Government and the Opposition well know.

Mr. Carmichael: That might be fair comment. However, it is not a tradition about which I am particularly embarrassed.

I feel that the power described in schedule 3 is too draconian, and I do not think that it is quite as obnoxious as the hon. Members for Surrey Heath and for Beaconsfield would have us believe. Strong parallels can be drawn between these powers and powers given to the recovery agents under normal civil proceedings. It is reasonable and necessary to give the receiver, interim receiver or administrator the power described in paragraph 3(2)(a).

The power described in sub-paragraph (2)(b) seems closer to the power that would be given to an investigative authority during a criminal prosecution. It is appropriate that a warrant should be obtained from the court before the execution of that power. The same argument applies to sub-paragraph (2)(c). In my professional experience, I have never come across the power to recover property in this manner under civil proceedings. In Scotland, an applicant under civil proceedings is entitled to enlist a motion for commission and diligence to require the other party to the action to produce certain articles. However, that is well removed from the powers that are envisaged here. If we move on to sub-paragraph (3), the powers become so general that there is a significant risk of an adverse effect on third parties.

I cannot support the Conservative amendment as drafted because it restricts the power unnecessarily. However, I ask the Minister to return at a later stage and recognise that this is an issue in which one size will not fit all.

Mr. Boris Johnson (Henley): I make a brief point not only to support what my hon. Friend the Member for Surrey Heath said about the draconian nature of the clause, but to express concern for the safety of the interim administrator or interim receiver—whoever he his. I understand that it is proposed that he or she should enter the property of the drugs dealer and, without explanation, start liberating various items from the property; for example, removing paintings from the walls. There may be circumstances in which unfortunate misunderstandings would occur between the interim administrator and the owner of the property.

Mr. Mark Field (Cities of London and Westminster): For example, burglars or a fence.

Mr. Johnson: Exactly; my hon. Friend prompts me well. The owner of the property may think that ''interim administrator'' is a euphemism for burglar. It would be wise not only for the protection of the rights of an individual to his property, which all on this side of the argument support, but for the health and the safety of the interim administrator if he had the protection and authority of the court when he entered the property. That is why the amendment is thoroughly sensible.

Mr. Field: I agree with the points made by—most recently—my hon. Friend the Member for Henley (Mr. Johnson) and my hon. Friends the Members for Surrey Heath and for Beaconsfield. It is perverse that we have a more draconian set of powers under civil recovery proceedings than those that the police have to deal with criminal offences. It was often said, perhaps with tongue in cheek, after the introduction of a set of draconian powers under the financial services Acts of the late 1980s and early 1990s, that if terrorists who committed bombings of the City of London and Canary wharf had been tried under insurance fraud provisions in financial regulations rather than under criminal law, the police would have had greater powers to sort out the crimes. It seems perverse that the police do not have such wide-ranging powers in criminal matters. If an interim receiver or administrator used such powers, high profile problems and concerns with the agency could get into the press. The Government will argue that Mr. Bigs deserve all that is coming to them, but I fear that it will lead to perversity if well funded Mr. Bigs decide to take their cases to the European Court of Human Rights.

I hope that the Minister will take on board some of the issues that I have raised, and consider whether the wording could be modified. The amendment is sensible and there should be some prior authority. I accept that that authority may have to be ex parte and may not come directly from open court, because of the sensitivity of some of the matters. I hope that the Minister will give the amendment serious attention.

Mr. Bob Ainsworth: One of the functions of an interim receiver is to investigate the origins of property that is subject to an interim receiving order and other property that might have been generated by the same unlawful conduct. Another main function is to look after and manage the property. The functions are set out in clause 252.

Schedule 3 specifies some of the more significant powers that a court may confer on the interim receiver. The hon. Member for Surrey Heath does Opposition Members an injustice by deceiving them—I can only speculate on the reason—by saying that the powers of the interim receiver are given no prior consent by the court. As a result, the hon. Member for Henley is overly concerned with the interim receiver's safety when entering premises, and says that the receiver should be protected by the court.

I assure the hon. Member for Henley that the receiver, however protected, will turn up on the premises with a court order in his hand. That order will state exactly what the receiver can do and will specify the powers conferred on him by the court. I do not know why the hon. Member for Surrey Heath led the hon. Member for Henley to think that that would not be the case, but the state of affairs appears to have arisen from the Opposition's inability or refusal to accept that the provisions deal with civil recovery proceedings. The hon. Member for Beaconsfield has said that the process is a strange animal and not civil recovery proceedings.

Opposition Members deny that such proceedings should exist and that they should follow the process used by other litigants. I was about to intervene on the hon. Member for Surrey Heath when the hon. Member for Orkney and Shetland (Mr. Carmichael) did so on my behalf, effectively, to say that of course the receiver could not kick down the door of a burglar up the road. However, if the receiver chose to pursue that burglar through civil recovery proceedings, for whatever reason, and had a court order against him, the receiver could send someone in on his behalf to recover the property.

Previous Contents Continue

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2001
Prepared 18 December 2001