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Lord McIntosh of Haringey: I had understood that the Minister would respond in particular to the powerful speech made by the noble Lord, Lord Jenkin, and would discuss consultation with local authorities.
Lord Mackay of Ardbrecknish: I thought I had responded to my noble friend. I will be responding to him again later on, but I confirmed, as my noble friend was told by Mr. David Curry this morning, that the next meeting between the Department of the Environment, the Department of Health and local authorities is scheduled for 20th May. We hope to make progress towards seeing a result by the Summer Recess. Those consultations are going on and that is the assurance that my noble friend was asking me to put on record, establishing what the costs are for the various local authorities.
I feel that I responded to my noble friend, and perhaps the noble Lord, Lord McIntosh, will accept that. But as I am on my feet, perhaps I can say that my figures in relation to rough sleepers have been questioned twice by the noble Earl, who obviously suspects that government apparatchiks have gone out at night and made this count. Of course, they do not quite see double; they only see in halves because they do not want the count to be very high. However, the rough sleepers count that I mentioned was made by the voluntary organisations which support rough sleepers. If the noble Earl does not
The noble Baroness said: My Lords, the purpose of this order is to strengthen the measures available to deprive convicted criminals of the profits of their criminal activity. It will provide more effective powers at all stages of the confiscation process--enhanced investigation powers, more effective confiscation procedures in the courts and improvements to the enforcement powers once a confiscation order has been made.
The proposed order will update and restate Northern Ireland's legislation relating to the confiscation of the proceeds of drug trafficking and other serious crime. It seeks to bring Northern Ireland broadly into line with the rest of the United Kingdom by introducing provisions already in force in England and Wales by the enactment of the Criminal Justice Act 1993 and the Proceeds of Crime Act 1995. The order will also introduce additional investigation powers into the proceeds of crime which are not generally available in other parts of the UK.
As your Lordships will appreciate, many of the provisions in this order either re-enact provisions already in force in the Criminal Justice (Confiscation) (NI) Order 1990 or replicate measures which are already in operation in England and Wales. I shall therefore comment briefly only on the main changes to the law in Northern Ireland which this order will introduce. Those include: an obligation on the court to confiscate the proceeds of offences where that is requested by the prosecution; an obligation on the court to assume that all property in the possession of the convicted drug
The order will also ensure that a convicted criminal cannot satisfy a confiscation order by opting to serve a prison sentence instead of paying the amount due. Other changes will be to give the court the power to reconsider making a confiscation order in a case where it did not previously do so or to revise its original assessment of an offender's proceeds of criminal conduct within six years of a conviction. The court will also have power to make a confiscation order against the estate of a convicted criminal who has died or against a defendant who has absconded. In addition, the order will extend to general criminal conduct the investigative powers currently available only in drug trafficking cases.
The order also provides for additional powers of investigation which are not generally available elsewhere in the UK. Under Article 49 of the order the court is empowered to appoint a financial investigator to assist the police in specific inquiries where it is considered that the investigation could be more effectively carried out with the involvement of specialist assistance. It is the Government's view that those powers are necessary in Northern Ireland due to the existence of a racketeering problem which is different in nature and extent to that which exists elsewhere in the UK.
Much of the racketeering which goes on in Northern Ireland involves terrorist organisations or persons linked to them. That activity includes armed robberies, drug dealing, extortion, protection rackets and counterfeit goods and money. The Northern Ireland (Emergency Provisions) Act 1991 contains additional powers of investigation--the authorised investigator provisions--into the finances of terrorism. Similar additional powers of investigation in relation to the proceeds of crime, whether or not it is connected to terrorism, are now proposed in this order. These provisions will be at least as wide as the existing terrorist finance powers which they will replace when the current EPA is repealed.
In conclusion, the measures contained in this draft order are designed to provide a more effective system for depriving convicted criminals of their profits. As some noble Lords will be aware, honourable members on all sides in the other place gave this proposed order a warm welcome. I hope that your Lordships will see it in a similar light. I beg to move.
Lord Prys-Davies: My Lords, I speak from the Dispatch Box as my noble friend Lord Williams of Mostyn, who, as noble Lords will know, speaks from these Benches on Northern Ireland matters and is unable to be with us this evening.
I am grateful to the noble Baroness, Lady Denton, for identifying and explaining the key new provisions of this complex and extremely important order which was promised by the noble Baroness in the course of the Second Reading debate of the Northern Ireland (Emergency Provisions) Bill on 21st March. I have also benefited considerably from reading the debate on the order which took place in the Fifth Standing Committee on Delegated Legislation in the House of Commons on 2nd May when, as the noble Baroness has said, it was not challenged. On the contrary, it was warmly welcomed.
While the order re-enacts some provisions of existing law which are to be found in three different pieces of Northern Ireland legislation, it more importantly brings Northern Ireland law broadly into line with that of the rest of the United Kingdom and also introduces the significant new powers which the Minister has outlined. It should therefore provide a powerful weapon in the fight against serious crime referred to by the Minister and the investigation of the proceeds of such crimes and their confiscation. It meets a very important need. I am aware that there has been a particular sense of outrage at the present state of affairs which seemed to allow paramilitary organisations and international organisations in Northern Ireland and the shadowy figures associated with them too easily to enjoy the financial proceeds of serious crime.
Among the other important provisions, the order empowers the court to confiscate benefits--whether they be large or small--acquired in consequence of crime. The basis on which that power rests is not novel. I recall that almost 60 years ago the distinguished Law Lord, Lord Atkin of Aberdovey, a part of the country I know well, ruled that public policy requires that,
I have one question of detail that I wish to raise with the Minister. I tried to follow her speech very carefully. Would she be good enough to clarify whether the court can make a confiscation order where the prosecutor has not asked for such an order under Article 8?
I now turn to a point which has fuelled some concern. Will a confiscation order made under this legislation be legally enforceable against assets overseas? Legal rules differ between jurisdictions. The Minister will be aware that anxiety has been expressed that the recovery provisions contained in the order may not always be enforceable where the assets are situated in some countries overseas. This is a difficult and taxing matter. The Ministerial colleague of the noble Baroness, Lady Denton, in the standing committee in another place said, when questioned on this issue, that the matter went,
Although the order is uncontroversial, I should put down a marker for a point that is potentially controversial. We are aware that some people of unblemished character are much concerned that the burden of proof on the prosecution in confiscation proceedings against a convicted drug trafficker has been shifted from guilt beyond reasonable doubt to that of the balance of probabilities. That is a significant shift. They would argue that even in the context of Northern Ireland the fundamental human right of the presumption of innocence should prevail. That may present a moral question and it may present also a legal question. I do not wish to press the point too hard but I would mention that before very long it may well be the subject of comment and possibly censure in the Strasbourg court. However, to my own mind--not that my personal view is relevant--the need for this provision is of sufficient importance in the context of Northern Ireland to warrant overriding a fundamental human right of the individual living in a democratic society.