Proceeds of Crime Bill

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Mr. Stinchcombe: I wonder whether one difference between the hon. Gentleman's formulation and the normal application of human rights law might be that, under his formulation—the historic formulation—

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there have to be ''reasonable grounds'' for the judge to include certain matters, whereas under the human rights formulation, he would have to decide whether the benefit was proportionate to the intrusion.

Mr. Grieve: The hon. Gentleman may be right, in which case he has made a good argument for not putting the provisions back in. He may wish to develop that in a contribution to the Committee. The best I can do now is listen to what the Minister—or the officials, through the Minister—have to say on the point. This is an important subject, and I do not want the safeguards that we have previously enjoyed to be reduced by the invocation of the Human Rights Act 1998, which I have frequently seen as only a fail-safe device.

Norman Baker: The hon. Gentleman has raised an important point that deserves a full reply. If it were possible, he would probably exchange his earlier victory on a small point for a different victory on this more substantial point. My worry is the suggestion—if it is true; we will hear from the Minister in a minute, although judging by the notes, it may well be the case—that the protections afforded in previous legislation are not replicated in the Bill because there is an assumption that the Human Rights Act supplies the protection. That would be worrying because on the front of the Bill, as with all legislation these days, there is a statement that the provisions in the Bill are compatible with convention rights.

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Each Bill that comes before the House should contain the necessary protections and compatibility with human rights legislation, rather than relying on a subsequent application of the Human Rights Act to remedy any defects in it. It is unfortunate if the Minister is proposing that that should be the case with the Bill. There is a point of principle: we cannot assume that if protections are afforded by other legislation, they need not be present in the Bill. That would mean that legislation brought before the House need not be compatible with human rights legislation, and we would have to rely on the backstop afterwards.

We have heard about the overlap between clauses 325 and 331, and the reasons why that is necessary. The Minister accepted that there was duplication, and made a convincing case that both clauses were needed, as belt and braces. It is also important to have a belt-and-braces approach here, to ensure that that we still have the protection afforded in previous legislation, to which the hon. Member for Beaconsfield (Mr. Grieve) referred, as well as the protection under the Human Rights Act. Each Bill should be self-contained and compatible with human rights legislation. The protections that would be afforded by the amendment may not be exactly the same as those afforded by the Human Rights Act.

Theoretically, a future Government could repeal the Human Rights Act and withdraw from the convention. Many of the right hon. and hon. Friends of the hon. Member for Beaconsfield would wish to go down that road. [Interruption.] I accept that the hon. Gentleman himself would not want that, but some of his colleagues would. It would be unfortunate to rely

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on the presence of the Human Rights Act as a backstop to fill the holes in legislation, rather than putting safeguards in the Bill. If the Human Rights Act were repealed, individual Acts would not contain the safeguards that hon. Members want. That is a further reason why a belt-and-braces approach is important.

If the Minister does not dispute the amendment and believes that the conditions that it sets out are appropriate—as they were in previous legislation—there is no reason why they should not be included in the Bill. If there is an overlap with human rights legislation, so what? What is the problem with that? It is better to have proper safeguards in each Bill, rather than allowing the opening of a possible lacuna that could present difficulties later. I hope that the Minister will consider the amendment.

Mr. Ainsworth: I am glad that the hon. Member for Beaconsfield has raised this important issue, although I am struggling to follow some of the arguments of the hon. Member for Lewes (Norman Baker) in support of the amendment.

The amendment would insert a provision that is already in existing legislation. It replicates section 55(4)(c) of the Drug Trafficking Act 1994, which deals with production orders. I understand the worries that lie behind the amendment, but I assure the Committee that its effect is already achieved in the Bill. The public interest test in relation to the investigation orders will be retained, and will apply to the new orders. That is because the Human Rights Act 1998 requires that a judge must not act in a way that is incompatible with convention rights. For example, an appropriate officer must satisfy a judge that any infringement of, say, a person's right to privacy under article 8 of the convention is proportionate to the benefit to be gained from making an order. As the Human Rights Act is now enshrined in our domestic law, there is no need to replicate its provisions and its effect in new legislation. We therefore think it unnecessary to retain the current public interest statement.

The issue goes wider than the Bill. We believe that wider and undesirable implications would flow from the amendment. It would suggest that whenever a human rights issue arises in legislation, we need to specify a test in the legislation, rather than relying on the Human Rights Act. That is the reverse of the argument of the hon. Member for Lewes. Inserting such a provision at every relevant point in legislation would be logistically difficult to achieve comprehensively, and would result in casting uncertainty on any legislation in which a specific human rights provision does not appear.

As a matter of policy, the Government are content that the Human Rights Act achieves throughout the statute book what the hon. Gentleman is trying to achieve in the Bill through the amendment. Judges are already legally bound not to act in a way that is incompatible with convention rights. That, too, is the reverse of the argument advanced by the hon. Member for Lewes.

In the Bill, as in all legislation when it is appropriate that such a statement be made, we have made a commitment that it is compatible with the Human

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Rights Act. We can do nothing in legislation to prevent, in every imaginable circumstance, someone from trying to use the powers in a way that is incompatible with the Human Rights Act. Obviously, such action would need to be challenged, but to suggest that we need to cover every circumstance, wherever it might arise, is more likely to lead to the sort of lacunae that the hon. Gentleman suggests that we might be opening up.

The hon. Member for Beaconsfield asked whether I could assure him that the protection given under the Human Rights Act was greater than that given by the current public interest statement. I do not suggest that it is, but we see no discernible difference between the protection given under the Human Rights Act and that given by the public interest statement. The balancing that will be required in making decisions about proportionality will be almost exactly the same as would be required under the public interest test.

We believe that the circumstances are covered, and that the way to ensure that they are covered comprehensively is to accept that the Human Rights Act applies to all our legislation, and statements appear on the front of Bills to that effect. To move away from that presents the danger of doing exactly the reverse of what the hon. Member for Lewes is arguing.

Norman Baker: The Minister seems to be saying that the Bill as drafted is compatible with human rights legislation only in so far as a separate measure exists to govern it, and that in itself, as a self-contained measure, it is not compatible with human rights legislation. The safeguards that have hitherto been provided in legislation, which he says would be difficult to insert—although we seem to have managed since time immemorial to insert them—are now being deleted from legislation.

Provisions such as those that the hon. Member for Beaconsfield has referred to are now being deleted. This an important philosophical point. The Minister says that as a self-contained piece of legislation, the Bill is not compatible with human rights—that it is compatible only if a further piece of legislation, external to it, is applied.

Mr. Ainsworth: How am I saying that? Is there not a statement on the front of the Bill stating that the provisions are, in our opinion, compatible with human rights legislation? In what way am I suggesting that that is not so? The hon. Gentleman is effectively suggesting that I am saying that the statement on the front of the Bill is incorrect. I am not saying that at all, and I do not understand his logic.

Norman Baker: I shall try again. The Minister seems to be arguing that it is not necessary to insert in legislation the safeguards that were hitherto there—and which, in the absence of the Human Rights Act, the Government would presumably have inserted in this Bill, too. He says that it is not necessary to insert those safeguards because of the existence of a further piece of legislation external to the Bill—the Human Rights Act—which, he believes, in the absence of safeguards in this Bill, will provide the necessary

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protection. If that is what the Minister is saying, the statement on the front of the Bill is clearly inaccurate. The test being applied to compatibility is contained not in pages 1 to 284 of this Bill alone, but in pages 1 to 284 of this Bill in conjunction with the Human Rights Act.

Mr. Ainsworth: I do not see the point. We have incorporated the Human Rights Act. All our judicial proceedings are required to be compatible, and there is a statement on the front of the Bill that it is compatible. Therefore the safeguards are in both this individual legislation and the incorporation that has taken place. It is clear that the production order cannot be issued in breach of the European convention on human rights. I honestly do not understand the hon. Gentleman's point.

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