Mr David Heath (Somerton & Frome, Liberal Democrat)

I beg to move amendment No. 136, in

clause 25, page 14, line 27, leave out 'may' and insert 'must'.

The clause is a puzzlement to me. I hope that the Minister will be able to help me. It deals with the release of evidence that has been held under the order. Subsection (1) states that

''the nominated court may authorise the release of any evidence retained by a constable under section 24 if, in its opinion—

the condition in section 21(6) or (7) is met, or

the overseas freezing order has ceased to have effect in the participating country.''

I refer the Committee back to the condition under clause 21(6) or (7), which concern the circumstances in which the person who is the subject of the freezing order would be entitled to be discharged under any rule of law relating to previous acquittal or conviction. In other words, that person cannot be convicted of the offence to which the investigation and the evidence relates.

The second condition described under subsection (7) refers to

''giving effect to the overseas freezing order would be incompatible with any of the Convention rights (within the meaning of the Human Rights Act 1998''.

Surely to goodness if either of those conditions apply, there should not be a discretion about whether the court releases evidence that is properly the property of the person in question. It must release it.

The second condition under 25(1)(b) is if

''the overseas freezing order has ceased to have effect in the participating country.''

Again, there is no case to answer. Therefore, what are the circumstances in which a court may hold that it is lawful for a constable to retain evidence on the basis of an order, which was shown either to have been extinguished, which was improper because it related to an offence to which the supposed defendant was entitled to be acquitted, or was a breach of convention rights under the Human Rights Act 1998? There is no potential doubt about the matter. The court must release the property. Not to release the property would be a contravention of the Human Rights Act, in that that person is entitled to peaceful enjoyment of his property.

Unless I have grievously misread the clause, the Minister must accept this amendment or give a very good reason why it will not be accepted, because I fail to understand in what circumstances the court would retain—or cause the constable to retain—such evidence without challenging the law, which would be improper.

Mr Nick Hawkins (Surrey Heath, Conservative)

Once again, it is a pleasure to support the hon. Member for Somerton and Frome (Mr. Heath). I am sure that the Minister will accuse us of having a new Lib-Con pact, as he did before lunch. However, on a serious point, the hon. Member for Somerton and Frome is right: I cannot envisage any situation in which this information could possibly not be handed over, and the clause would be much better if ''may'' was replaced by ''must''. I am hopeful that on this occasion the Minister will surprise us all by saying that he accepts the amendment and supports what the Liberal Democrats are trying to do.

Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)

Mr. Hurst, you were not in the Chair this morning, so I have to say to you that I never started this. It was Lib-Labbery to start off with, and I only ever did what I often do, which was to retaliate a bit. I was provoked.

The hon. Member for Somerton and Frome makes his case very well, but I cannot at the moment give the

Committee what he asks for, which is an instance when the court might not authorise such a release. Where the European convention on human rights was being infringed, that would be apparent to the court, and it would comply, and release the information. The issue is whether we compel the court to do that or rely on it to do so.

If we cannot think of any reason why there should be some discretion in this area, we will give some consideration to the amendment. If the hon. Gentleman withdraws the amendment, we will reflect on it and return to it on Report, with a view to justifying the discretion in the Bill or to considering a similar amendment.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I am grateful to the Minister for that. As a parting shot, I draw his attention to the fact that ''must'' is used in line 41 of page 14. Therefore, the idea of a discussion being available at all levels is not true.

Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)

The hon. Gentleman should not seek to capitalise on his position. The word ''may'' is used in many places in the Bill.

Mr David Heath (Somerton & Frome, Liberal Democrat)

Yes, but this use of ''must'' is in the same clause as that which the amendment addresses, and it has the same intention of providing for the release of evidence held under an order that is no longer valid. I was seeking to help the Minister's consideration of this matter, rather than score additional points.

On the basis of the assurance that he has just given, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put and agreed to.

Clause 25 ordered to stand part of the Bill.

Clause 26 ordered to stand part of the Bill.