|Proceeds of Crime Bill
Mr. Grieve: The Minister is right to say that an Anton Piller order is regarded as a draconian power, but at least when it is granted it identifies the premises that will be searched. It does not give the receiver power to enter any premises in the United Kingdom in the course of his search. It identifies the premises, justifies the search to the court, and then the search takes place. The comparison with an Anton Piller order therefore seems rather odd.
Mr. Ainsworth: If at the time the powers are sought under clause 252 the interim receiver wishes to justify the need for wider search powers, he will have to do that. He will have to convince the court that those are necessary in the case that he intends to pursue. The court will not grant wide-ranging and general powers, willy-nilly, without being absolutely convinced that they will be necessary to enable the interim receiver to pursue the case.
Mr. Hawkins: The Minister is right to say that under clause 252—clause 260, with regard to Scotland—the interim receiver has to go to the court. However, once he has that power, all of schedule 3 kicks in, and the power in paragraph 3 is incredibly wide. We are debating the wording of the Bill, which refers to ''any premises''. That is far too wide. An extra safeguard is needed to provide something similar to an Anton Piller order.
Mr. Ainsworth: It is fairly clear that Opposition Members intend that every time the interim receiver intends to use the powers conferred on him by the court, he must return to the court to obtain prior permission to do so. The Government do not accept that such an amendment would be desirable. It would involve the court in the minutiae of the interim receiver's activities and the use of powers that the court has already authorised. If the court wishes to exercise such scrutiny, it is free to do so. It could have done so in the first place. It can impose whatever restrictions and report-back provisions on the interim receiver that it chooses.
Clause 254 provides for the court to give specific directions to an interim receiver about the exercise of his functions at the application of the respondent, the interim receiver or anyone else who is affected by the actions of the receiver. That important protection could be relevant to the use of entry, search and seizure powers. I therefore suggest that Opposition Members are proposing a massively over-bureaucratic provision.
Mr. Carmichael: I invite the Minister to consider a different but not unrelated point. Whenever I see such a wide power, my immediate question is: how can it be abused? With that in mind, will he clarify what the position would be if the administrator undertook a fishing exercise that produced something which could be used as evidence in another matter, whether civil or criminal? Would such evidence be admissible in those other proceedings? Is there not a danger that because of the scope of the powers, a much more general back-door power will be given to the state?
Mr. Ainsworth: Hon. Gentlemen are worried that the power is too broad. They say that the court has to give an interim receiver a power that he is free to exercise in a way that is not wanted. I am unable to convince them that such powers are not necessarily broad. The provision will make them broad only when the court considers such breadth of powers necessary. The court will not automatically grant broad powers to an interim receiver to do dreadful things. It will decide the breadth of the power that it confers on the interim receiver.
Stephen Hesford: Is it not right to say that the power exercised under schedule 3 will not become more broad or draconian than the order that the court originally gives the interim receiver? Moreover, if the respondent perceives a problem, clause 254 will come to the rescue.
Mr. Ainsworth: My hon. Friend is right. The powers will be those that were granted under the original application, having been justified by that application. They can be broadened only if the interim receiver makes a subsequent case and asks for them to be broadened. Clause 254 gives the reverse of such power, so any other person who is affected, or who considers that he will be affected, can go back to the court and ask for the powers to be narrowed. Those powers will have been granted by the court; they cannot be widened by anyone other than the court, having received representations from one side or the other. It is not within the realm of the interim receiver to broaden the powers himself.
Mr. Stinchcombe: Is not the burden of the Opposition's case that, although on previous occasions they wanted us to give the court discretion, on this occasion we have given the court discretion? Now they want us to oblige the court to exercise that discretion successively before anything can be done.
Mr. Ainsworth: My hon. Friend is absolutely right; I have made that point myself. I do not know to what extent the amendment is intended to be a wrecking amendment that would allow a person subjected to such an order to go back many times to prevent the necessary investigations.
Mr. Carmichael: I accept a lot of what the Minister says. Will he, in turn, say that elements of the powers granted under paragraph 3 go beyond those that are currently given? In particular, I hate to keep harking back but I draw the Minister's attention to paragraph 3(2)(c), which refers to the power
Mr. Ainsworth: What is the hon. Gentleman asking us to do? This is the statute; it is not the power itself. The court has the discretion to decide the breadth of the power. Is he asking us to say in statute that the court cannot give broad powers in any circumstances? He has said that he does not accept the Conservatives' amendment, which says that every time there is an alteration of the use of the powers, they must be re-submitted to the court for further justification. That could extend to the minutiae. The hon. Gentleman appears to be suggesting that there should be a narrowing of what the court's discretion can allow, irrespective of the arguments in favour of broad powers.
Mr. Carmichael: I am asking for a recognition that in some circumstances it will be inappropriate to exercise the power as generally as the Bill would allow, and that it will sometimes be necessary to have a specific order of the court, relating to specific goods. That does not seem to be envisaged, so I want more clarification.
Mr. Ainsworth: The hon. Gentleman says that there may be circumstances in which it would not be appropriate for the full breadth of the powers to be applied to a particular case. He is right—but who should decide that? Should we decide here that the full breadth of the powers should not be available to the court, or should the court listen to arguments about the case and decide about the circumstances, and then say to the interim receiver, ''No, the powers you are asking for are not necessary to do the job in the case that you are presenting''?
Mr. Grieve: A certain circularity seems to be entering the argument. Our amendment is designed only to ensure that it is made clear, following the mere granting of the receivership with the powers, that if circumstances change and new evidence is supplied or new premises must be searched, the receiver must go back to the court to ensure that it is apprised of the way in which the search is developing and of what is occurring. I accept that the original order could be circumscribed, but the way in which schedule 3 is drafted suggests that it will not be, and that the court will ordinarily grant an unfettered power. We are complaining about the unfettered nature of that power. There must be a mechanism to control the power adequately, and it is Parliament's job to ensure that that happens.
Mr. Ainsworth rose—
Mr. Ian Davidson (Glasgow, Pollok): Will the Minister give way?
Mr. Ainsworth: Not yet.
If there is a certain circularity, it is because I am effectively dealing with two solutions. One is that we narrow the breadth of discretion that the courts are allowed, and the other is that we insist on repeated returns to the court for justification of every use of the powers. If the hon. Gentleman is saying that if an interim receiver begins to use the powers that the court has given him in ways that were not originally intended he ought to be obliged to go back to the court, I have some sympathy with the logic of his argument. However, the receiver is not precluded from doing that.
The hon. Gentleman knows that if we include the kind of provision that he wants, not only will that have an impact on cases in which substantial issues have arisen that the interim receiver feels might not have been covered by the original power, but every time he seeks to exercise his powers he will be challenged and all the minutiae will be pored over. He will be required to go back to the court in order to arrive at premises not only with the power originally granted to him by the court order but with the subsequent power that gives him the specific ability to do exactly what he proposes to do, at the time of day when he proposes to do it.
Mr. Grieve: The Minister is exaggerating the problem. I expect that when the original power is granted, the receiver may say to the judge that he believes that certain premises must be searched, and the original power will grant that. If the receiver subsequently feels that further premises need to be searched, he will have to go back to the court for the authority to do that—as he also will with regard to evidence.
I do not expect the receiver to have to make separate applications for each individual search. He may apply for groups of premises to be searched, but I expect the premises to be identified. The wording of the schedule strongly suggests that at the outset of the granting of the receivers' powers, courts will be invited to give a general power. If that were not the case, the schedule would not have been drafted in that way.
|©Parliamentary copyright 2001||Prepared 18 December 2001|