Proceeds of Crime Bill

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Mr. Grieve: That is a big point, and one to which it may be difficult to do justice during our proceedings. When I participated in the debates on the Human Rights Act, my let-out clause—for I did not vote for it—was the Henry VIII clauses, which I did not like. Interestingly, they come close to the relationship between the judiciary and Parliament. We had many discussions about how the legislation would apply. I had always accepted that the Act, a little like our membership of the European Union—I am not saying that there is an equivalence—was along the lines of Lord Denning's words when he referred to the tide that comes up our rivers and creeks, in that it had primacy, unless specifically excluded.

Nevertheless, that is not a good reason why Parliament should suddenly wash its hands—and its brains—of the checks and balances under other legislation that it considers should be in place to safeguard the rights of the individual. If it creates safeguards that are greater than those under the Human Rights Act, which is easy to do, I regard that as positive action to take, while if it places lesser

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safeguards in Bills, those in the Act will kick in, to emphasise the primacy of the convention and our need to observe it. That is how I thought we would proceed, and it has come as a slight surprise that, in this Bill and others, it has been vacuously said, ''Oh well, the Human Rights Act deals with such matters, so we need not concern ourselves about them any more.''

Stephen Hesford: As the clause stands, are we not in the same position? The Government have introduced certain safeguards that may not cover every eventuality, but that has been done in the context of the human rights legislation. If we add other safeguards under the Bill, we will not necessarily cover every eventuality, and as the hon. Gentleman said, we will always be reliant on the Human Rights Act as a backstop. We have nothing that takes us further forward.

Mr. Grieve: Back in 1994—I suppose that the hon. Gentleman would describe that period as the bad old days of authoritarian and illiberal Conservative government—those who drafted the Drug Trafficking Act 1994 were conscious that it constituted a considerable infringement of human rights. They were worried about it. The convention existed then, and there was always the possibility of taking such issues to Strasbourg, but it is noteworthy that, when drafting the orders for production, the draftsmen—presumably acting on the policy directive of authoritarian Conservative Ministers who were only too happy to grind the poor citizen into the dust—put in a considerable range of tests and safeguards on when production should be ordered, given the unusual nature of the legislation.

One of those safeguards was the issue of public interest balanced against other matters that had to be taken into consideration. It seemed that someone was whispering into the ears of those authoritarian Ministers, saying, ''Remember the poor, downtrodden people who may be affected by the legislation.'' I, being a good Conservative—with a small ''c'', as well as a big ''C''—am loth to depart from that.

11.45 am

Mr. Ainsworth: I am not sure that the hon. Gentleman is a good historian, even if he is a good Conservative. I always thought that the high tide of the authoritarianism that he describes occurred about 1983 to 1989, rather than 1994. It had come slightly off the boil by then, perhaps for internal reasons in the Conservative party.

Two separate arguments seem to be involved. If Parliament wanted to give additional protection to a measure, over and above that provided by the ECHR, we are free to do that, and we would say so. However, the hon. Gentleman and the hon. Member for Lewes seem to be saying that, even when the intention is to go no further than the ECHR, and despite the incorporation of the ECHR and the comprehensive

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way in which that legislation works, we must name individual instances not only in every Bill but in every clause.

I do not know what the hon. Gentleman is trying to achieve. Is it additional rights? If the policy objective is to give additional rights, we are, as I said, free to do that. Is he trying to create a total mess with our legislation, and a lawyers' playground, in which people apply two different sets of thinking subsequently, and can mess around and charge for so doing?

Mr. Grieve: I hope that the Minister will not take this unkindly. I can promise him that the incorporation of the ECHR into English law has created a lawyers' playground mark 1—and big time. One of the reasons is that it introduced—I do not disagree with this, but criticisms were correctly made when it was incorporated—a series of concepts in a fairly broadly written convention that is subject to judicial interpretation over the years and capable of being evolved by judicial interpretation and gives infinite scope for lawyers to present detailed arguments. Indeed, the Prime Minister's wife—this is not a criticism—has made a career of doing exactly that, often to the detriment of the Government headed by her husband. Many other lawyers, too, some of whom may be sitting in this Room, have been quite successful in that field.

Mr. Ainsworth: That is all good stuff, but what is the hon. Gentleman trying to achieve? Is he suggesting a higher test for production orders? If so, that is a matter of policy. I do not believe that a lower test applies. Is he, as I can only imagine, suggesting that we should duplicate the provisions in every case for which we want the test to be the same?

Mr. Grieve: I am trying to do two things. I listened carefully to the Minister's comments. He was unable—this is not a criticism; indeed, I am grateful for his candour—to give me the assurance that the two exactly dovetail into each other such that further protections could not be provided by the public interest test that might not be covered under the ECHR. First, therefore, I am loth to get rid of a possible safeguard in such circumstances when I am not persuaded of its downside.

Secondly, I accept that—this is a more difficult argument—on the whole, if saving provisions narrow a power that has been specified in a measure, for the sake of clarity it is always much more desirable for that to appear in the Bill as Parliament's intention, even if the option remains open for the individual to go to court—as it would, because of human rights compatibility—in order to test whether Parliament's intention, however laudable, really complies with the evolving corpus of judicial decisions under the Human Rights Act. That was exactly what I thought that the Human Rights Act would do. The difference was that that would be allowed in our courts rather than the poor person having to go to Strasbourg to get his redress. That is what I would like to happen.

As an issue of principle, I do not like Parliament to abdicate safeguards, with the Minister and his officials saying, ''It's all right, you can leave that to the Human

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Rights Act. We've looked at that and the convention, and there doesn't seem to be an incompatibility.'' There have been several instances in which Ministers have been only too happy to pop their imprimatur on the front of legislation, but subsequently serious doubts have arisen about its compatibility. That does not apply to the Bill, but it is a point of principle.

Mr. Hawkins rose—

The Chairman: Order. Before the hon. Gentleman intervenes, I advise the Committee that we are repeating a lot of points. I want new initiatives, and I hope that we will get them, because keep going around the same circuit.

Mr. Hawkins: Following your helpful ruling, Mr. O'Brien, I hope that my contribution extends the point.

The Minister said that it is unnecessary to have other safeguards, and my hon. Friend the Member for Beaconsfield pointed out that there have been several occasions when Ministers have given blithe expressions of confidence that legislation is compatible with the Human Rights Act 1998.

Do my hon. Friends agree that a classic example of that happened during consideration of the recent Anti-terrorism, Crime and Security Bill? The Home Secretary was more or less forced to withdraw huge chunks of it because he had to accept human rights concerns expressed in both Houses, especially by Conservatives and by my hon. Friend the Member for West Dorset (Mr. Letwin), the shadow Home Secretary, in particular.

As my hon. Friend the Member for Beaconsfield said, a further valid point is that many lawyers are pursuing human rights points in the courts. I expressed such worries when I was shadow spokesman for the Lord Chancellor's Department and I said that the huge cost of the Human Rights Act was greatly underestimated.

Mr. Grieve: My hon. Friend is correct. His point about the Anti-terrorism, Crime and Security Bill is especially pertinent. There are further examples. The House pushed through anti-terrorism legislation after the Omagh bombing that, mercifully, would never be used, but that would not stand up for five minutes to the scrutiny of the Human Rights Act, although the stamp is on its front cover. That legislation caused me great worry when it was introduced. It enjoyed great cross-party support, but I did not like it.

The Minister of State, Scotland Office (Mr. George Foulkes): When the hon. Gentleman agreed to this morning's programme motion, was that to allow us to discuss substantive points, or to continue a political polemic?

Mr. Grieve: I was almost on the point of sitting down about 15 minutes ago. There have been several interventions, each of which has called for a response. A feature of the Committee has been a willingness to cross-examine hon. Members who make points, which is very healthy. I am sorry if I have taken longer than I wished, but I do not want to exclude anyone who

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wishes to speak. I shall give way to the hon. Member for Lewes, and I hope that we can then bring our discussion to a conclusion. I have simply tried to answer points that have been raised.

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