Proceeds of Crime Bill

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Mr. Carmichael: I absolutely agree. I have first-hand experience of the importance of cross-border co-operation in the enforcement of warrants and orders, and I commend the Government on introducing subsections (1), (2) and (3), which I believe will bring that about. However, is the Minister telling us that legislation will be amended retrospectively by statutory instrument? If the loophole exists, it will be plugged only for future cases, not for any problems that may be highlighted.

Mr. Foulkes: As I understand it, the purpose of the order is not to be retrospective, but to give flexibility. That is sensible, so that we do not have to return time and again for more primary legislation. A degree of flexibility is important. The purpose of the Bill is to provide strong legislation that is as effective as possible. Legislation will not be amended retrospectively. We need to see how the new system introduced by the Bill beds down. I hope that that will convince some Opposition Members.

Mr. Carmichael: Why, then, should future amendments to legislation not be subject to the sort of scrutiny that we have endured through the past 39 sittings of this Committee?

Mr. Stephen McCabe (Birmingham, Hall Green): Mercy.

Mr. Foulkes: I understand that the hon. Member for Spelthorne thinks that I do not do any work in this Parliament, and wants to abolish me. Having gone through 39 sittings, doing the occasional bit of work, I am not sure that our successors should have to exercise such scrutiny unless it is necessary. If primary legislation is necessary we should consider it, but a degree of flexibility—with strict constraints in relation to subsections (1) to (3), which would severely limit any power—is also necessary.

11 am

Mr. Grieve: The debate has been interesting, and I am grateful to the Minister for having provided an illustration of how the powers were used under legislation in the 1980s. The purpose of the clause is commendable: there must be a mechanism by which Orders in Council can be made to ensure that rules apply in all parts of the United Kingdom. I also accept that the example of the use of the power that the Minister offered made the idea of the orders under subsection (4)—which our amendment seeks to delete—seem innocuous and reasonable.

However, I have concerns. As the hon. Member for Wellingborough pointed out, the power is sweeping, even if it is confined to the circumstances covered by the clause, because it allows for the amendment of other legislation by Order in Council. That may indeed have been done before—but I have frequently expressed dismay about the extent to which previous Governments have eroded Parliament's role. That erosion has been increasing exponentially over the past 40 or 50 years. The present Government are responsible for a stratospheric quantum leap in the

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rate of erosion, but I am also prepared to blame previous Conservative Governments. What appears to be tidy and simple for the purposes of the Government is not necessarily beneficial for legislative scrutiny. This is a Committee of the House of Commons, and it ought to be concerned about that. That is why I have an objection in principle to subsection (4).

As I have said to the Minister—and I suspect that we will return to the subject on clause stand part—the subsection is about more than merely orders for enforcement, because issues concerning the powers and functions of individuals are linked with that. I accept that they are linked with enforcement, rather than with the more general powers, but there is an issue at stake that goes beyond the mere administrative convenience of mutual enforcement in different jurisdictions within the UK.

Although I do not expect to persuade the Committee to agree to the amendment, I am inclined to press it to a Division, because an issue needs to be flagged up. We will discuss affirmative and negative resolutions shortly, and it appears that this extensive power will be dealt with by negative resolution procedure. That concerns me. To anticipate the arguments that I will put forward later, I can say that if the measure were subject to an affirmative resolution, that would go some way towards dealing with the issue. That is a possible third way.

Mr. Foulkes: A third way!

Mr. Wilshire: We shall get to the wreckers in a moment.

Mr. Grieve: I will press the amendment to a Division, because I will support it until I am persuaded that the provision can operate correctly, and that we have put in as many safeguards as possible. As a matter of principle, I dislike provisions that give power to the Executive, by Order in Council, to amend any piece of primary legislation that has been passed by the House.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 11.

Division No. 51]

Brooke, Annette Carmichael, Mr. Alistair Field, Mr. Mark
Grieve, Mr. Dominic Johnson, Mr. Boris Wilshire, Mr. David

Ainsworth, Mr. Bob Baird, Vera David, Mr. Wayne Foulkes, Mr. George Harris, Mr. Tom Hesford, Stephen
Lazarowicz, Mr. Mark Lucas, Ian McCabe, Mr. Stephen McGuire, Mrs. Anne Stinchcombe, Mr. Paul

Question accordingly negatived.

The Chairman: Because of the leniency of the Chair, the Committee has already discussed subsections (1), (2), (3) and (4) of clause 428 on the amendment, but if any hon. Member is ingenious enough to find something that we have not already discussed, I am willing to entertain the idea of a stand part debate.

Question proposed, That the clause stand part of the Bill.

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Mr. Grieve: I should be grateful for a more ample explanation. I deliberately refrained from going into too much detail on the amendment about the one power under the clause that gave me slight cause for concern. It was about conferring and imposing functions on the prosecutor and director. I am sure that the Minister can reassure me, but those functions could be exercised only in the context of enforcement under subsections (1) and (2). It would be helpful if the hon. Gentleman spelled that out in Committee; otherwise, the clause could enable new and separate functions, which we have not debated, to be conferred on the prosecutor and the director. The Minister said that he would return to such matters, but if he can provide guidance to the Committee now I shall be grateful.

Mr. Wilshire: One or two matters have not been touched on, the first of which arises from the fact that, unlike the lawyers in the Committee, I have not been round the course before. Can the Minister explain why Orders in Council are the preferred route to writing such powers into the Bill? For example, when discussing part 2, we spent a long time talking about confiscation in England and Wales. As a layman, I am mystified about why there was not a provision saying that what was decided about England and Wales under part 2 could be enforced in Scotland and Northern Ireland. That seems by far the simplest route. I am sure that others who have been far more involved in the details of legislation and the working of the courts may have a simple answer to the problem, and I should like to hear it. The same applies to subsection (1)(b), (c), (d) and (e) of clause 428.

My arguments also apply to the powers of the receiver and administrator in subsection (2). Surely when the Bill set up such posts in various parts of the United Kingdom it could have stated that although they are acting in one part of the UK, their powers can be exercised elsewhere. Again, I should like an explanation. My hon. Friend the Member for Beaconsfield referred to subsection (3), and it would be helpful to have in the Hansard record the fact that such functions relate to enforcement. However, I should prefer that to be stated in the Bill, so that there could be no doubt about it and we would not have to refer back to previous sittings.

We have spent an enormous amount of time discussing the functions of the prosecutor.

Ian Lucas (Wrexham): With due respect to the hon. Gentleman, may I point out that the clause is headed, ''Enforcement in different parts of the United Kingdom'', so enforcement is referred to in the Bill?

Mr. Wilshire: That may well appear somewhere, but I can only go on what subsection (3) says, which is:

    An Order under this section may include . . . provision conferring and imposing functions on the prosecutor and the Director.

We spent a lot of time discussing what the functions and powers should be, but after getting this far down the track, we find that we must have a procedure by which we may add to them. That is peculiar, and I would be grateful for an explanation.

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My other worry is about subsection (3)(c), which says that an order may include a

    provision allowing directions to be given in one part of the United Kingdom about the enforcement there of an order made or warrant issued in another part.

That seems to invite a court in one part of the United Kingdom to interpret what a court in another part of the country intended. It is unwise to allow that. If there is doubt about what must be done, the matter should be referred back to the court or jurisdiction in which the original order was made. It is a mystery why a court in one part of the country will have its say if something is done in another part of the country. Will the Minister tell us why he wants that process rather than a reference back in the case of any doubt?

Mr. Foulkes: May I first address the question asked by the hon. Member for Beaconsfield? He is right to say that we should underline exactly what we mean by conferring the functions on the prosecutor. I am grateful to my hon. Friend the Member for Wrexham (Ian Lucas), who pointed out that the heading clearly spells out that the clause is about ''Enforcement in different parts of the United Kingdom''.

I confirm that that is our intention. The clause is drafted in such a way that we may confer functions on prosecutors only for cross-border enforcement. I hope that that reassures the hon. Members for Beaconsfield and for Spelthorne.

The hon. Member for Spelthorne asked about subsection (3). All it means is that we will be able to make provision to give the director the power to enforce Scottish and Northern Ireland confiscation orders.

The hon. Gentleman also raised an important question about the use of Orders in Council. We propose that arrangements for the enforcement of one jurisdiction's orders or warrants in another should be made by Order in Council. Our experience of producing similar orders under current legislation suggests that for cross-border enforcement, very detailed procedures would be required. Of necessity, those would be highly technical, and they are liable to be of significant length. Therefore, the use of secondary legislation is most appropriate for such an exercise.

The hon. Gentleman also asked about the negative procedure. By virtue of clause 441(4)(c) and (5)(b), orders made under clause 428 will be subject to the negative procedure unless they relate solely to the enforcement of orders and warrants in Scotland. In those cases, they will be subject to annulment in pursuance of a resolution of the Scottish Parliament.

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