Proceeds of Crime Bill

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Mr. Stinchcombe: I support the Minister; he has made a persuasive case. As someone who spoke, powerfully, I hope, in favour of the Human Rights Act on its Second Reading—the hon. Member for Beaconsfield also contributed to that debate— I believe that the Minister is right. The Human Rights Act for which I voted is one of comprehensive application, designed to enable litigants in the United Kingdom to take full advantage of the substantive protections in our courts, without having to go to Strasbourg. It meant that thereafter we would not have to cherry-pick various statutory applications of human rights protections, because we had already voted for the greater substantive protection to come in from Europe.

It would be positively dangerous to go down the route advocated by the hon. Member for Lewes—to ask each Government in respect of each piece of legislation that might impact on any of the substantive rights protected by the Human Rights Act to set out different tests, which the courts could then interpret differently. The whole point of the Human Rights Act protections—which have comprehensive application according to the facts of each case by virtue of the test of proportionality—is that the court can decide the appropriate protection in each case.

In this case, the protection afforded by the Human Rights Act may well be better, bigger and more substantive than the protection afforded by the old statutory formulation. The Minister said that he could not guarantee that, and neither can I, but it is qualitatively different. Under the formulation in previous legislation, which Conservative Members, supported by the Liberals, believe should be reproduced, the judge would have to have no more than reasonable grounds for believing that there might be some proportionate effect. Under the formulation more normally applied in human rights law, as summarised in the explanatory notes, judges under the Human Rights Act would have to decide for themselves whether there was proportionality.

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Mr. Grieve: I am not sure whether I agree. Presumably the judiciary would have had to interpret the existing legislation, which would include the caveat about the public interest. I would have expected that in those circumstances, the judiciary would initially examine what the statute said, consider the public interest, and then consider whether, notwithstanding the fact that the public interest test was satisfied, the criteria of the Human Rights Act were fulfilled. If there were any incompatibility between them, the Human Rights Act would take precedence.

I acknowledge that there might be an argument for claiming that the amendment would add an excessive, extra and unnecessary test to the system, but I fail to understand how it could be claimed that that addition would defeat the Human Rights Act in any way.

Mr. Stinchcombe: Although I have some sympathy for the hon. Gentleman's point of view, it offers a less desirable approach, as it invites Parliament to try to specify, through different formulations of words and phrases, the appropriate protections for each potential breach of a substantive human right. He might think that appropriate, but I do not. His approach presumes that hon. Members can imagine all those breaches, and all the different impacts that they might have on individuals, and that we can then define the appropriate tests to meet all the possible circumstances, whenever they arise, and whenever they may go before a court.

The alternative approach acknowledges that it is not Parliament's job to do that. Parliament has already decided to allow the judges to develop their own test, according to the binding parameters of European convention law.

Even in the old days, one could have enjoyed the advantage of those substantive human rights protections by going to Strasbourg, but since the introduction of the Human Rights Act, people who wish to enjoy that advantage no longer have to go to Strasbourg, wait five years and spend £40,000. They can enjoy it here and now. That is not only in conformity with the Bill that I voted for—and which, I believe, the hon. Member for Beaconsfield spoke in favour of but did not vote for. It is also the proper application of that Bill, and it is the right way to proceed if we are to develop real human rights protections in this country.

My argument might be wrong, as I am speaking intuitively after considering the matter only briefly, but the Minister's case appears to be powerful.

Vera Baird: I have not heard all the arguments—but why should I let that stop me from contributing to the debate?

I want to make a general point about application. The Human Rights Act has to be read into all legislation, regardless of whether it was passed before or after the enactment of that legislation. However, those who draft legislation after its enactment should consider whether it is good enough simply to draft it in broad terms and then say, ''We don't have to worry

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about the detail, because the Human Rights Act implies it anyway.'' If they did that, the details of the law would not be disclosed to many members of the public, because very few people have mastered the Human Rights Act, and if someone wanted to be sure about a detail of law, it is likely that, at the very best, they would merely take a look at the relevant piece of legislation.

With regard to the public interest, therefore, it would be preferable if the Human Rights Act tests implied in each section of future legislation were specified. That would also have the advantage of being foolproof, because even if a draftsman who was trying to put the Human Rights Act into a piece of legislation were inadvertently to narrow its ambit, one would then fall back on the Human Rights Act itself, and that would widen it again, so that the statutory provisions were consistent with the Act. I do not disagree with the Minister's argument, but I take this opportunity to ring a bell of caution about new legislation that fails to follow that preferable course of action.

Mr. Grieve: This has been an interesting discussion, and I am conscious of the potential shortcomings of amending the Bill as I have proposed, but the issue still troubles me. If the Government were to adopt the hon. Lady's approach, there would be a good reason—because there would be something in the Bill—why I should not be worried about the disappearance of the old statutory protection. I shall press the amendment to a Division, not because I think that I will succeed, but because it is important to flag up the issue. It may provide a stimulus to the Government to think further, possibly on Report, about this and other legislation. This is an important issue.

Stephen Hesford: As the hon. Gentleman intends to press the matter to a Division, will he tell us whether there is a difficulty in any case law under the old legislation that would be addressed by the amendment? I know that he has ''Archbold'' with him, and it would be helpful if he could refer to a case that might be decided differently if the amendment were not successful.

Mr. Grieve: Reading chunks of ''Archbold'' to the Committee may not be the most rewarding of activities. I have not looked at the case law, but I am fairly sure that cases have turned on that issue. I cannot immediately see an ''Archbold'' footnote that might assist the Committee, although there might be one on page 26. If I find one I shall tell the hon. Gentleman about it. I do not see the harm in pressing the amendment to a Division.

As for my exchange with the hon. Member for Wellingborough, in view of the primacy of the Human Rights Act, I do not see that reinserting the public interest provision in the Bill would have any downside for civil liberties. In so far as that is insufficient or incompatible with the Human Rights Act, the Act will triumph—but the provision may provide better protection than the Human Rights Act, and if it does, the court will interpret that. The fact that the Minister

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has, quite properly, told the Committee that he cannot vouch for the identical nature of the two protections reinforces my view.

Mr. Stinchcombe: There is one worry that I have particularly in mind. If, as the hon. Gentleman recommends, there is a statutory formulation—and the Minister certifies that it is compatible with the Human Rights Act—the courts may be reluctant to go beyond that particular statutory test to find greater protection.

Mr. Grieve: I do not think that that can be right. Under the Drug Trafficking Act 1994 a person can go before the judge and ask for the public interest test. The judge may refuse, and the defendant can say, ''There is also the proportionality test, and my argument is that it goes further.'' That could happen today without any interference as a result of those words being put back into the statute, and I therefore cannot see the disadvantage. The only possible question is whether we are making too big a meal of the issue. I am prepared to accept that that is a valid argument, but on balance, I do not think that it is such a big meal that I am not prepared to try to eat it.

Norman Baker: I support the hon. Gentleman. He is not making too big a meal of this important point. What worries me about the Government's response is that they are arguing that because the Human Rights Act exists, there is now less need to put safeguards in legislation. Therefore, in a way, legislation will become less compatible with human rights than it was before.

Mr. Grieve: I sympathise with everything that the hon. Gentleman has said—[Interruption.]. The hon. Member for Wrexham (Ian Lucas) wishes to intervene.

Ian Lucas (Wrexham): In the interests of clarity, and in the interests of the general public, is it not better to have a single test of general application, rather than having a two-stage test of the type that the hon. Gentleman envisages?

 
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