Mr. Hawkins: At an earlier stage in the debate, the Under-Secretary quoted some of the discussions when the original legislation was being debated in 1986. The Minister asked why such issues were not raised then. I have had the benefit of reading Hansard and of reminding myself of the Second Reading debate in 1986. I direct the Minister to the comments about protecting the innocent made then by Lord Corbett of Castle Vale, who, as the Minister knows, was the Chairman of the Home Affairs Select Committee until the general election. On 21 January 1986 he expressed his worries about the measure's accidental effects on the innocent, as we are doing this afternoon. His speech appears in Hansard in column 246 onwards.
Mr. Foulkes: Since 1986, when my good friend Robin expressed those fears, there has been no evidence of the innocent being affected. That is my key point: it has not happened.
The hon. Member for Lewes and some Conservatives have pleaded with me to be helpful, flexible and kind. I hope that members of the Committee will agree that we have been. We took account of what was said on Second Reading and we are altering the arrangements for Scotland. We debated the appropriateness of the term ``criminal lifestyle''. Arguments were made and we agreed to have another look: incidentally, no more acceptable or accurate alternative has yet been suggested. We also agreed to re-examine other issues. As on Second Reading, if convincing arguments are advanced, we will consider them. I said so earlier today when we debated clause 7, and I acknowledged that a reference to clauses 15 and 16 might be useful. I therefore repeat that we have been flexible. Indeed, my hard-hearted hon. Friend the Member for Glasgow, Pollok earlier accused me of being Mr. Softy. On this occasion, however, I honestly have not found any of the other side's arguments convincingthough I have found my own arguments very convincing!
Mr. Hawkins: You always do.
Mr. Foulkes: And I hope that my hon. Friends do, too. In practical terms, the amendment would have a deleterious effect on the operation of the confiscation laws, while making little contribution to reducing the financial risk, which inevitably forms part of the context within which lenders and service providers must operate. It would undermine the provision substantially. Accordingly, I urge hon. Gentlemen to withdraw the amendment. If they are not willing to do so in the light of our overwhelming arguments, I invite my hon. Friends to vote against it.
Mr. Davidson: Before Mr. Softysorry, I mean my hon. Friend the Ministerfinishes his speech, I would like to ask him about the possibility for amendment if the measure causes difficulty. If we find ourselves besieged by greengrocers, or anyone else, is there a mechanism to amend the provision?
Mr. Foulkes: This Parliament is supreme, and it is always possible to alter legislation through a subsequent Bill. As I understand it, there is no specific provision within the Bill to allow this legislation to be amended. The hon. Member for Beaconsfield invited private Members' legislation on the subject, and further Government legislation is always possible. However, as I said, the Bill has no specific mechanism to provide for automatic review or reconsideration of this issue.
Mr. Davidson: In that case may I ask the Minister, who is in an agreeable mood this afternoon, whether he would consider taking this matter away for further consideration? I specifically mentioned it on Second Reading. Since the will of Parliament is liable to be thwarted by lawyers or judges finding loopholes or making laws of their own contrary to our intentions, could we notperhaps through the Chancellor's annual budget proceduremake minor amendments to alleviate inadvertent difficulties or close those loopholes? I hope that the Minister will be prepared to look further into that possibility.
The Chairman: Order. This is miles off the amendment, and the clause. The Bill is still proceeding through the House. How it is dealt with in Committee is connected with how it can be dealt with on Report, and it must go to another place that can also consider it. That is the simple answer.
Mr. Foulkes: You are right, Mr. McWilliam; indeed, it is redundant of me to say so. It is always open to my hon. Friend and to Opposition Members to raise further amendments during discussion of the Bill, and for amendments to be considered in another place. However, I urge my hon. Friend to support the clause. It would not be appropriate to support the amendment, which would seriously undermine the provisions. If my hon. Friend wants to pursue his suggestion, there are better and more effective ways of doing so, and at more appropriate times.
Question put, That the amendment be made:
The Committee divided: Ayes 5, Noes 13.
Division No. 3]
Field, Mr. Mark
Grieve, Mr. Dominic
Hawkins, Mr. Nick
Wilshire, Mr. David
Ainsworth, Mr. Bob
David, Mr. Wayne
Davidson, Mr. Ian
Foulkes, Mr. George
Harris, Mr. Tom
Lazarowicz, Mr. Mark
McCabe, Mr. Stephen
McGuire, Mrs. Anne
Stinchcombe, Mr. Paul
Watson, Mr. Tom
Question accordingly negatived.
The Chairman: As I have already suggested, the principle of the clause has been well exposed by the debate; indeed, some Members were even encroaching on the next clause. Therefore I do not intend to call a stand part debate.
Clause 10 ordered to stand part of the Bill.
Assumptions to be made in case of criminal lifestyle
Norman Baker: I beg to move amendment No. 24, in page 5, line 37, leave out `must' and insert `may'.
The Chairman: With this it will be convenient to take the following amendments: No. 51, in page 5, line 37, leave out
`make the following four assumptions'
`follow the following four criteria'.
No. 52, in page 5, line 41, leave out `assumption' and insert `criterion'.
No. 53, page 6, line 1, leave out `assumption' and insert `criterion'.
No. 54, page 6, line 5, leave out `assumption' and insert `criterion'.
No. 55, page 6, line 8, leave out `assumption' and insert `criterion'.
No. 56, page 6, line 11, leave out `make a required assumption' and insert `follow any such criterion'.
No. 57, page 6, line 13, leave out
`assumption is shown to be incorrect'
`criterion is shown to be inapplicable'.
No. 58, page 6, line 14, leave out `assumption were made' and insert `criterion were followed'.
No. 59, page 6, line 15, leave out from `not' to `it' and insert
`follow one or more of such criteria'.
Norman Baker: As the hon. Member for Beaconsfield said earlier, it is difficult to predict how Committees will go. I imagined that we might get to clause 11 earlier, but in the event we had a useful discussion on clause 10.
Clause 11 is one of the most important clauses, along with clauses 6 and 75. The amendment in my name, in those of my colleagues and in those of the Conservatives, raises important issues. Yet again, we have an amendment that would replace ``must'' with ``may'' and would build in some discretion for the judicial process. No doubt the Minister will characterise that as weakening the Bill. That charge can unconsciously be made, but there is always a balance to be struck between ensuring that legislation is effective and attains the aims that the Government wish and that Members of all parties share, and ensuring that sufficient safeguards are in place to prevent miscarriages of justice or inappropriate behaviour that cannot be challenged. The Committee will frequently discuss that key balance. It is dealt with in the amendment, although there are alternative places in the clauseand in the Billwhere it would be possible to build in safeguards.
Mr. Mark Lazarowicz (Edinburgh, North and Leith): The hon. Gentleman said that the clause allows no discretion to the court, but subsection (6)(b) states that the court is allowed not to make an acquired assumption if
``there would be a serious risk of injustice if the assumption were made.''
Does that not offer the court the type of discretion that the hon. Gentleman seeks?
Norman Baker: For the record, I did not say that there was no discretion. I said that a balance needed to be struck.
That subsection is, in many ways, the nub of the clause, and I will remark on it later. However, I have tabled an amendment to that subsection, which will be considered later on this afternoon, and I do not wish to be ruled out of order by discussing the issue now.
The Chairman: The amendments are grouped, so hon. Members can be relaxed about such matters. However, amendment No. 26 is in the last group, and we will address the point that has been raised when we discuss that group. The hon. Gentleman is right not to try to persuade other hon. Members into territory that is intended to be discussed in a different debate.
Norman Baker: Thank you, Mr. McWilliam. Sometimes, it is difficult to separate the amendments out.
There are different ways of securing safeguardswe are discussing them one at a time, but there are other ways.
As is stated in the helpful notes that the Minister and his colleagues have provided, clause 11
``applies where the court has decided that the defendant has a criminal lifestyle and it is, accordingly, considering the defendant's benefit from general criminal conduct.''
The clause states that the court assessing the defendant's benefits of crime must make four assumptions unless one of two safeguardssuch as they areapply. The first safeguard is if
``an assumption is shown to be incorrect''.
The burden of proof for that lies with the defendant. The second safeguard is if
``there would be a serious risk of injustice''.
When the Committee discusses amendment No. 26, I will argue that those are high tests to meet. That is one reason why I have tabled amendment No. 24, which would give flexibility to the judicial process by replacing ``must'' with ``may''.
It could be argued that the Bill, in common with the legislation that it replaces, makes it possible to impose confiscation orders on defendants whose levels of criminality differ widely, particularly when the prosecution relies on accusations of criminal conduct or criminal lifestyle.
Given the wider nature of the Bill, I wonder whether the Minister and his colleagues have considered whether the requirement of proportionality is likely to be met in all cases that do not involve drug trafficking, and in which there would be a duty to make a confiscation order. It is important that that question is asked in advance, and it is germane to the amendment. That is a wider issue than it was previously, so it is legitimate to ask whether the mechanisms in place are as valid and appropriate for current legislation as they were when they were framed.
With regard to assumptions, the inherent danger is that the court might deem it necessary to grant confiscation orders when the evidence might not be sufficient to support that. That might lead to property being confiscated that might have been acquired innocently.
I support the intention of clause 11. However, although I understand why it has been framed in the way that it has, and I am open to persuasion that the amendment is not appropriate, I felt that it was important to have a debate on the flexibility that the court has to see whether it strikes the right balance between ensuring that those who are guilty of inappropriately receiving the proceeds of crime are dealt with appropriately and ensuring that those who are innocent are not caught up in the process. Inserting ``may'' instead of ``must'' would give the court the necessary flexibility to consider that more carefully and, in extreme circumstances, show the flexibility that the clause would not allow. I will be interested to hear the Minister's comments.