Clause 27
Serious Crime Bill [Lords]
12:30 pm
Douglas Hogg (Sleaford and North Hykeham, Conservative)
I beg to move amendment No. 128.
This may be quite an important amendment. It is an amendment to the forfeiture powers contained in the clause. I draw two specific facts to the attention of the Committee. Subsection (2) makes it plain that an order can have an effect in respect to a property in which a third party has an interest. When one approaches the clause, one assumes that the only person who has an interest in the property which is capable of being forfeited is the person who has committed the substantive offence under clause 26. Clearly and inevitably, one must recognise that other people may have an interest. They may be partial owners or have an equitable interest and so on. They may be a hire purchase company, for example. Therefore, third parties can have an interest in property which is the subject of the forfeiture order.
Subsection (5) states that the forfeited property can be destroyed, and that is a pretty permanent outcome. Therefore, a property that is subject of a third party claim can be destroyed under the forfeiture order. That is the background, which is quite serious. One looks at the forfeiture powers in the clause to see if one can find any guidance over the approach that the courts will adopt. I have heard the Minister many times say, “Don’t worry, Mr. Hogg, it is all in the convention.” I have in front of me the Human Rights Act 1998 and, in particular, the convention. I suspect that the Minister will say it is covered by article 1 of the first protocol, which provides that
“every natural legal person is entitled to the peaceful enjoyment of his possessions.”
So far, so good. It goes on to say:
“No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
That is motherhood and apple pie. The article continues:
“The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
That is pretty general stuff. If I were a person whose interest in property would be affected by a forfeiture order, I would not draw much comfort from the article; I would have some difficulty in spelling out the approach that the court would adopt. We are saying of and to the courts, “You are going to be the legislators, because by your interpretation of this article, you are going to provide the safeguards that Parliament has not provided.”
That is deeply offensive; it is the business of Parliament to spell out in legislation the criteria that the court should adopt in the context of such matters. In any event, such protection as is afforded in article 1 and elsewhere in the convention is so much in the hands of the court that it leads me to think that, unless we put the provisions that I contemplate in the amendment into the Bill, we are neither providing proper protection nor doing our duty.
I am perfectly willing for the Minister to say that the language of the amendment is defective. So it may be, and we can talk about that, but the concept of “just, necessary and proportionate” should appear in the Bill.