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The Earl of Mar and Kellie: Perhaps I could ask the noble Lord to go back to his answers on Amendments Nos. 13 and 14. They were aimed at establishing that forfeiture would be, certainly in Scotland, part of the civil law proceedings. I became slightly confused by what the noble Lord was saying. Can he confirm that forfeiture will be a civil matter?
Lord Rooker: Criminal proceedings and the scheme for the seizure of terrorist cash are two entirely separate processes. Therefore, we do not want a link between the two. We are dealing here with cash seizures which are preventive measures. They stand entirely independently of criminal proceedings. So the latter is simply not relevant to the seizure schemes. The key issue concerns terrorist cash. I hope that I have made that clear. Amendments Nos. 13 and 14 deal with civil procedures. Criminal procedures are prosecutions for acts of terrorism. They are quite separate. We should not make a link between the two.
Lord Williamson of Horton: I know that the Minister will return to Amendment No. 5. I specifically raised the point about the German currency. It is a very important currency. Huge amounts of money can be shifted in it. From 1st January the deutschmark will
Lord Rooker: I shall take further advice on that matter and come back to the noble Lord. Like most other sane people I have looked at what foreign currency I have been hanging on to having seen the list of dates by which some European currencies will not be legal tender. There is a gap with some currencies. They will cease to be legal tender but can still be paid in through the banking system. Therefore, it may be that there is a satisfactory answer so far as the deutschmark is concerned.
First, on Amendment No. 5 and legal tender, the Minister kindly said that he will reflect on the situation regarding Scottish banknotes. I trust that that applies also to the point made about German currency by the noble Lord, Lord Williamson of Horton.
The Minister said that he was content to rely on the criminal law in relation to counterfeit currency. I wonder whether that is the ideal approach. The specific procedure here is a civil procedure. In dealing with other amendments, the Minister has been at pains to emphasise the distinction between the civil and the criminal and the importance of limiting this part of the Bill to civil procedure. Yet, in his reply on Amendment No. 5, he admits that counterfeit funds are a matter for criminal law.
I do not want to make a cheap debating point, but that affects the logic of his position on the importance of civil procedure. Will he further consider the position of counterfeit funds before Report? The point is not just the distinction, in principle, between criminal and civil law but that the criminal rules in relation to counterfeit funds may not be as expeditious as are the civil rules laid down in the schedule.
Lord Kingsland: With the greatest possible respect to the Minister, that is true but beside the point. The Minister accepted that the present wording does not cover counterfeit money. He also told your Lordships that seizing funds is a civil law issue. I simply suggest to him that he may want to reflect on the matter before Report.
As to Amendment No. 13, which the noble Earl, Lord Mar and Kellie, seized after the Minister's reply, the Minister was at pains to say that the scheme was civil and had nothing to do with criminal law and criminal guilt. I draw the Minister's attention to Clause 1(1). That defines the circumstances in which cash can be seized in terms of terrorist acts, which are indisputably criminal. If the definition of the cash is itself intimately connected with the criminal law, is it not difficult to envisage how the two regimes will remain separate?
Lord Rooker: Schedule 1 sets up a scheme to deal with the cash. It is a stand-alone scheme. That is the whole point. The cash may be taken in pursuance of investigation before all the evidence is available. It is a stand-alone, civil scheme, and there is no connection between it and the terrorist activity that the cash may be thought to be funding.
Lord Kingsland: Whether or not the scheme, in any particular case, follows its logic through to the final act of forfeiture, the extent to which it moves down that route will depend on a judgment on whether a criminal act has been committed. The nature of that criminal act will be determined in the context of Clause 1(1). Perhaps the Minister will return to that point on Report.
Lord Rooker: I can help the noble Lord. By the way, it goes without saying that I shall reflect before Report on everything that is said in Committee. We must because of the process: issues will be raised that no one has contemplated. I shall be happy to reflect, but I shall read out the latest note that I have received from the Box, because it is helpful. It states:
I have two other reflections on the Minister's response. On Amendment No. 15, he rightly pointed out that the rules of procedure in our courts cover the issue raised by the amendment. Will the Ministereither now or latertell us whether that is also true of Scottish law?
Amendment No. 18 concerns the question of exceptional loss. The Minister rightly said that it covers matters other than the payment of interest, and went on to give an example in which, in effect, someone would have the right in law to damages. He was reluctant to state that in terms in the Bill, because he felt that that might act as a disincentive to those officers tasked with the act of seizure. Ought your Lordships to endorse a statement by the Minister to the effect that public officials would be influenced in that way?
Lord Rooker: Public officials making decisions under law are always aware that they must take account of consequences such as the cost of their actions and issues such as value for money. We do not want a lower test for compensation. There is a severe test for compensation, but we do not want to lower it.
I gave a couple of examples of wholly exceptional cases: a business deal and a house purchase. If money was withheld from someone and they were unable to conduct their deal or purchase, and the money was then returned because it was not terrorist cash, they would clearly have a good claim. That is fair; I accept that. We do not want to lower the test for compensation, as would the amendment, simply because officers taking decisions on the margin about an amount of cash and the circumstances might err on the side of being too cautious. We are in deep water in searching to obtain terrorist cash. The procedure is new and it would be wrong to lower the test.
Lord Kingsland: As regards human rights, I see the importance of officers being cautious. However, I suggest to the Minister that where an officer finds a legitimate set of circumstances for seizing cash, he should not be put off pursuing his duty by the fact that it might cost the Treasury a little more money than if the Bill were constrained by the current draft.
Finally, I turn to Amendment No. 18. The Minister's reply is a good illustration of why cash conversionthat is, the route it takes into other forms of property or activityshould be traced by a High Court judge and not by a magistrates' court. In the meantime, I beg leave to withdraw the amendment.