New Clause

Orders of the Day — Proceeds of Crime Bill – in the House of Commons at 5:06 pm on 18th July 2002.

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Votes in this debate

Lords amendment: No. 9, after clause 10, to insert the following new clause—Compensation of creditors

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

I beg to move, That this House
disagrees with the Lords in the said amendment.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to consider Lords amendments Nos. 30, 47, 66, 78, 99 and 166 and the Government motions to disagree thereto.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department 5:30 pm, 18th July 2002

In moving on to compensation for creditors with regard to the confiscation system, I should like to make it clear to the House that, in discussing Lords amendment No. 4 and the associated group of amendments, I hope that I said nothing to detract from the understanding that confiscation applies to a very wide range of offenders—far wider than that which was covered previously. My hon. Friend Hugh Bayley raised an issue in respect of international bribery and corruption, about which I know he is concerned. I am sure that he will be pleased to hear me confirm that the Bill enables criminal confiscation orders to be made in relation to such offences and allows restraint of assets that are the proceeds of such offences.

The amendments cover a territory that should be very familiar to the House. We discussed the issue with which they deal at considerable length in Committee on 20 November last year. I should also make it clear to the House that the provisions that the amendments would overturn have been a settled feature of the tough confiscation legislation that the Conservative party introduced in 1986 and 1988. Mr. Carmichael is not present, but I am not the slightest bit embarrassed to say that we are trying to build on that tough legislation.

Given the degree of earlier discussion about the issues, I should like briefly to describe the amendments, which all relate to the position of unsecured creditors who have outstanding loans. The effect of amendments Nos. 9, 47 and 78 would be to make the enforcement authorities liable to pay the unsecured debts of any person whom the defendant was unable to repay because of the making of a confiscation order. Amendments Nos. 30, 66 and 99 would allow restrained assets to be used to pay any debts of the defendant that were incurred before the restraint order was made. Amendment No. 166 would have a similar effect in relation to part 5 as amendments Nos. 9, 47 and 78. It would empower to court to require the enforcement authority to pay compensation to any person whom the respondent was unable to pay because of the making of a civil recovery order. The requirement could be placed on the enforcement authority if the debt was incurred for full consideration and the debtor had no reason to expect that the recovery order could be made against the respondent.

I shall speak first to the amendments affecting parts 2, 3 and 4. The amendments would undermine the confiscation scheme so completely as to render it inoperable. As I indicated, they would make the enforcement authorities liable to pay any unsecured creditor of the defendant at the time when the confiscation order was made.

The amendments state that such payments would be a matter for the courts; the creditor would make an application to the court and it would be for the court to decide who should pay. This raises the question of how such applications would be defended. The defendant to the action would be the enforcement authority involved in obtaining the confiscation order—it might be the Crown Prosecution Service, Her Majesty's Customs and Excise, or the director of the Assets Recovery Agency. It would fall to those authorities to defend such actions. I would personally prefer the CPS, Customs and the director of the agency that we envisage arising from the Bill to spend their time carrying out their proper functions, rather than defending actions against them in the courts from persons claiming to be the unsecured creditors of criminals.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Will the Minister be good enough to tell the House the difference in principle between protecting under clause 310 an innocent purchaser for value of what would otherwise be recoverable property and a bona fide supplier of goods such as the local plumber?

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

I think that it is quite clear what the difference is. The powers in the Bill give us various abilities to trace the proceeds of crime or that which has come to represent the proceeds of crime. To do that, we need to be able to trace it through the many transactions that might take place, some of which will be the quite genuine transactions that people enter into throughout their lives, while others will be transactions designed to hide the proceeds of crime.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

I have to tell the hon. Gentleman that I cannot respond to two Members at once.

In giving the powers to trace the eventual representation of the proceeds of crime, we need to protect the genuine, bona fide purchaser for value, but I do not believe that the state needs to take on the responsibility for compensating the unsecured creditors of criminals. I am not sure that the right hon. and learned Gentleman has ever argued that position in the past, and he should think very seriously about some of the results that might flow from that proposition.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

The Minister said, if am not misquoting him, that he believed that the Lords amendments would undermine the confiscation procedures. Is it not the case, however, that those who have ill-gotten gains will still lose them, and that the only questions are: what will happen to those ill-gotten gains, and should genuine creditors be able to reclaim their money?

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

If I thought that that was the case, I would give serious consideration to the amendments. I do not believe, however, that members of the criminal fraternity are so naive that—if we put these proposals into the Bill—they would not be able to conjure up situations in which they owed all sorts of people money, to ensure that, if a confiscation order were made against them, they would have no effective assets that were not owed to whoever—their wife, perhaps, or Joe up the road. In that way, they would make sure that the state could not get its hands on the proceeds of crime.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I understand the Minister's argument. Does he accept, however, that there will be many occasions on which innocent tradesmen and others—many of whom will be adversely affected by the provisions in the Bill—will be genuinely innocent victims? Is he saying that, if such people have to suffer, that is a price that must be paid for the greater good?

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

There will be such occasions, but I ask the hon. Gentleman to consider this argument. When people become unsecured creditors of other individuals, it is a decision that they take for themselves, and a risk that they take upon themselves. There are many circumstances in which they effectively forfeit what they have loaned to the individual concerned. If someone owed tax, for example, and had no other means, would the hon. Gentleman suggest that the Inland Revenue should not collect the tax, and that the unsecured creditors should be paid instead, coming ahead of the tax man?

Would the hon. Gentleman suggest that, if a fine were imposed by the court on someone as a result of his criminality, the payment of the fine ought to come lower down the list than the payment of an unsecured creditor in relation to the call on that person's assets?

There are lots of circumstances in bankruptcy, court and other proceedings in which people do not come at the top of the list because they are unsecured creditors. I see no reason for their coming top of the list with regard to confiscation. My real problem—I hope that the hon. Gentleman accepts this—is that the scope for abuse is absolutely phenomenal—to the point where it would render confiscation inoperable.

Photo of Mark Field Mark Field Conservative, Cities of London and Westminster

I appreciate that there is scope for abuse, and the Minister is right to refer to it. Equally, there is the issue of commercial certainty and common sense. In answering Norman Baker, the Minister referred to the real point on insolvency. However, does he not appreciate that there is an inconsistency between the Government's position in that regard and the new Enterprise Bill, under which, of course, the Crown preference is being done away with? It is therefore now understood that the Crown—be it some tax authority or other—would not necessarily have preference in such circumstances when an insolvency occurred.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

Let me continue with the notes that I had planned to read to the House. Insolvency will be picked up and, I hope, dealt with satisfactorily. If not, we may wind up differing on the issue.

As I was saying, the enforcement authorities would be in the front line of implementing the amendments, so I asked my officials to ask them what they think. [Interruption.] Mr. Hogg has evidently lost all interest in the Bill.

We asked those who would wind up defending such arrangements—Customs and the CPS, for example—what the practical effect of the amendments would be. They told us that it would be highly detrimental to the operation of an effective confiscation system. They consider, as we have always argued, that the amendments would provoke a flood of bogus applications from alleged creditors, who are often the criminal's associates, based on spurious documents purporting to show that debts occurred before the relevant date, when in reality they did not.

The amendments would also encourage defendants to defeat the confiscation process by running up legitimate debts, safe in the knowledge that the authorities would be left out of pocket at the end of any confiscation proceedings. That would deter the authorities from taking on cases in the first place.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

Now that the right hon. and learned Gentleman has decided to pay attention to the proceedings, I give way to him.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I know that the Minister is concerned about the position of employees. Will he please tell the House the answer to this question? If a bona fide person is employed by the person against whom the confiscation order is made and the effect of the confiscation order is to prevent the person against whom it is made from paying his employees, will the employee have any claim as a secured creditor, or is he simply out of pocket?

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

Let me ask the right hon. and learned Gentleman to think about the issue that he raises. I do not know whether he is suggesting that, because somebody is an employer, that protects them against the power to confiscate the proceeds of crime.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

I am talking about the employer. I do not believe that employers should be put in any special position where they are protected because they are employers and allowed to continue to keep the profits of crime.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

Employees have statutory protection in many, many circumstances. I see no measures in the Bill that would decrease the protections given to employees in many circumstances in which they find themselves on the receiving end of the demise of their employer.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

Someone who is owed wages, but has not yet been paid, simply becomes yet another unsecured creditor—is that not true? The Minister may not fully understand the implications of his own legislation, but there is no doubt that owed wages would simply disappear if the confiscation order were made. Then there would be no security for the person who was owed.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department 5:45 pm, 18th July 2002

As I think I have told the hon. Gentleman, I do not believe that because someone is an employer—

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

It is the point. Will the hon. Gentleman listen for just a minute? I do not believe that because someone is an employer and therefore has the responsibilities of an employer, a separate set of regulations should govern what that employer should get away with in terms of profits from crime. Furthermore, I do not think any measures in the Bill are detrimental to the statutory protections offered to employees in the many other circumstances in which their employer's demise may take place.

Photo of Rob Marris Rob Marris Labour, Wolverhampton South West

It appears that the Opposition want to put the employee of someone subject to such an order in a better position than the employee of a company that goes bust. In the latter case, the holders of fixed charges and floating charges would in many instances take all the money. The discharged employees would have recourse only to the Secretary of State's redundancy fund, which would apply following a restraint order against, say, a drug-dealing employer.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

My hon. Friend is right. It is being suggested that employees of a criminal employer would enjoy greater protection than those of a legitimate business enterprise. I do not know whether Conservative Members believe that that ought to be the case, but if they want to advance such an argument they can wait until I sit down. It would certainly be interesting to hear what they had to say.

Photo of Ms Annabelle Ewing Ms Annabelle Ewing Scottish National Party, Perth

I do not think such an instance will arise, but in what other circumstances—under Scotland, England and Wales or Northern Ireland law—are creditors put in such a preferential position?

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

I do not pretend to be an expert. I never come to the Dispatch Box and claim to be an expert on insolvency, contract law, commercial law or anything else of that nature. But I know of no circumstances in which people are given such preferential treatment, which is why I have raised the issue of tax that is owed and the issue of fines. In neither of those circumstances are creditors given preferential treatment in the case of unsecured loans, but that is now being proposed in relation to confiscation.

As I have said, the amendments would encourage defendants to defeat the confiscation process by running up legitimate debts, safe in the knowledge that the authorities would be left out of pocket at the end of the proceedings. That would strongly deter the authorities from initiating cases, and would put a significant weapon in the hands of criminals seeking to disrupt their activities. We also consider the amendments wrong in principle, for a number of reasons. As we said in Committee, they have implications for a wide range of other debts to the Crown, such as unpaid taxes and fines. Although it was argued in another place that it was possible to distinguish between such disposals, there is no difference between them: they are debts to the Crown.

We have yet to hear a satisfactory explanation of how that objection can be overcome. The logical consequence of the amendments, if they are accepted, is the Government's establishing a scheme to transfer unpaid taxes, fines and other obligations to the creditors of those with outstanding loans which, as a result of an obligation, the debtor is unable to repay. We feel that no Government would ever accept such a principle. Nor is it clear to us why the enforcement authorities should be liable for the debts, given that the defendant's liability for a private debt is unaffected by the making of a confiscation order. The defendant should be obliged to pay the confiscation order and to honour the debt, which is what the Bill provides for.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

It seemed that the Minister answered his own question as he went along. He mentioned taxes and fines, and said that we should not contemplate the idea of taxes and fines being paid to a creditor, but I am sure that he will agree that we are not concerned in this case with taxes and fines. This is a completely new regime. The money that is being taken by the state is not being taken either as a tax or a fine. Indeed, in the civil context, it is a novel concept.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

The fact that it is a new concept hardly makes the hon. Gentleman's case. These are the proceeds of criminality. He appears to suggest that the proceeds of crime should be used to pay creditors. If someone were to steal my car, they should not use the proceeds to pay their debts, or be allowed to do so. Why on earth does he think that someone should be allowed to use the proceeds of crime to pay their debts?

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

The Minister is being disingenuous. If his car is stolen and the money is used by a person, he will have a prior claim on that money. We have discussed this in Committee; we went round and round in circles. The point is that no one has a prior claim to a great many of the assets that are being confiscated. They are not a debt owing to the state. They are not a tax. They are not a fine. They are moneys that may have been acquired by a tremendous amount of sweat and labour by the person concerned. It just happens to have been tainted by criminality. That is the distinction. When implementing the new regime, we should have regard to the victims, who will be the unsecured creditors in this case.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

As I have said, the problem, which I hope the hon. Gentleman acknowledges, is that it would be easy to fabricate such situations, but I am not suggesting that the creditors are criminal in those circumstances. We do not encourage people to thieve to pay their debts, so why on earth should we allow people to pay their debts from property that they have stolen? I simply do not see the point. That is my fundamental objection in principle.

If the hon. Gentleman is to persuade the House to support the amendments from the other place, he will have to explain in great detail how on earth we would guard against the kind of abuses that would inevitably arise, rendering confiscation ineffective. Here is a second opportunity for the Opposition to prove the Prime Minister wrong and to support the Government on these much needed measures, which go to the heart of the Bill.

Photo of Ian Davidson Ian Davidson Labour/Co-operative, Glasgow Pollok

I would be grateful if the Minister clarified what the effect of the Opposition proposals would be. Am I right in thinking that, if someone were charged but not detained on offences, and they would be likely to know whether they were guilty, they could easily decline to pay any credit card bills that they had outstanding and incur all sorts of expenditure? If the Lords amendment were passed, would that expenditure be met out of assets that would otherwise be seized? Is that the way in which the provision would operate? Surely there would be a perverse incentive to waste money—to spend money on meals and drink?

Photo of Ian Davidson Ian Davidson Labour/Co-operative, Glasgow Pollok

If they bought a Rolls-Royce, the Rolls-Royce would then be an asset that could be seized, but it would be difficult to get a meal or drink back. It is difficult to get a drink out of some of my colleagues at the best of times. After it had been consumed, it would be even more difficult.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

I do not know whether my hon. Friend falls into this category, but there are people who, for many different reasons, live constantly in a state of credit and debt.

There would be so many ways round the legislation if we accepted the amendments. If, because of the activities that they knew they were involved in, people had any suspicion that they might be threatened with a restraint order, they could ensure that their debts were always more than their assets, and so be free from any threat of confiscation. Alternatively, they could manufacture unsecured creditors after the fact, and it would be extremely difficult and massively time-consuming to prove that those creditors were not bona fide.

Earlier in the debate hon. Members complained that the Assets Recovery Agency ought to be two or three times the size that we envisage, and Members from Northern Ireland want there to be a substantial office over there. Is this what we want the Assets Recovery Agency to do? Do we want it to spend half its time trying to prove in court that creditors are not bona fide, or do we want it to get on with confiscating the proceeds of crime? I suggest the latter, so I ask hon. Members to vote against the Lords amendments.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

We on the Conservative Benches feel that in part the Minister and his colleagues genuinely misunderstand the purpose of the Lords amendments, and in part, as we heard in the later part of the Minister's speech, they are overstating their response. May I make it clear, especially to Government Back Benchers, that the purpose of the amendments is only to prevent the creation of more entirely innocent victims of the Bill? To those who are worried about the idea of protecting the innocent little man, I shall quote from what Lord Goodhart said in response to the Minister in another place:

"As the Minister says, the Bill protects the rights of secured creditors. That means banks and building societies. They are the big boys, who always come out well on this sort of occasion. However, the small people—the unsecured creditors—lose out."

In an extraordinary exchange between the Minister in another place—Lord Falconer of Thoroton—and the Opposition spokesmen there, the Minister suggested that innocent people could protect themselves from the legislation by "getting security", and putting themselves in the position of secured creditors. To his credit, the Under-Secretary has not argued that this afternoon. Both my noble Friend Baroness Buscombe and Lord Goodhart pointed out that it was ridiculous to expect small builders or plumbers to get security.

We are talking about the entirely innocent bona fide person with no knowledge that the small amount of building or plumbing work that he is doing might be for somebody who, although they appeared legitimate, later turned out to be on the receiving end of a confiscation order.

When these matters were being debated in another place—the amendments were eventually carried by a substantial majority—Lord Goodhart said:

"Obviously, we do not wish to enable bogus debts and artificially created debts to be used, as I have said, to extract money. So the existence of full consideration provided by the creditor must be shown. Thirdly, the creditor must have no reason to believe that a confiscation order or a civil recovery order is likely to be made so that if the creditor is aware of the possibility of an order then he is on notice of the existence of the risk. We accept that in those circumstances it is proper that he should bear that risk".—[Hansard, House of Lords, 25 June 2002; Vol. 636, c. 1231-37.]

We accept entirely the Minister's case against the creation of bogus debts, but if he consults those who advise him, he should accept that the courts are well used to analysing whether debts are bogus. If it is made clear, as was the intention when the amendments were agreed to in another place, that their purpose is only to protect the entirely innocent, such as the small builder or small plumber that I have talked about—

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 6:00 pm, 18th July 2002

My hon. Friend points out that the courts have experience in determining whether or not a claimant is bogus. Will he also point out to the Under-Secretary that clause 310 and related clauses make provision for exactly that process?

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

As my right hon. and learned Friend points out, certain other parts of the Bill are inconsistent with this one. In our lengthy debates in Committee, we tried very hard to ensure that, so far as other aspects of the Bill were concerned, those who are bona fide are protected. The Government have accepted our argument in other parts of the Bill and in their own provisions, and we find it difficult to understand why they have not accepted the same logic here.

Photo of Stephen Hesford Stephen Hesford Labour, Wirral West

Will the hon. Gentleman address the point that was made earlier? The principal reason why Labour Members will reject the amendments is that sham creditors could be put forward by drug dealers, for example, and it would take for ever to get the compensation orders through the courts. The hon. Gentleman has not mentioned that point, and he should deal with it.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

The hon. Gentleman is mistaken—that is precisely what I have been talking about. Indeed, I quoted Lord Goodhart, who explained that the purpose of the amendments is to prevent the creation of bogus debts. The hon. Gentleman should know from his own professional expertise that in bankruptcy cases, courts frequently have to deal with supposedly legitimate debts that turn out to be bogus. Courts therefore have enormous expertise in such matters.

We are talking about trying to prevent entirely innocent people from being caught by these provisions as a side wind. It is a question of introducing not loopholes for employers, but protection for employees and small traders.

Photo of Stephen Hesford Stephen Hesford Labour, Wirral West

For the benefit of the House, will the hon. Gentleman explain what will happen if drug dealers know that they can gum up the works? My hon. Friend the Minister mentioned staffing the agency in respect of Northern Ireland and other places. If drug dealers know that they can gum up the works with all this nonsense, they will do so, and the Assets Recovery Agency will spend its time gazing at its own navel.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

My point is that the works would not be gummed up because the courts have great expertise in showing easily what is bogus and what is not; indeed, that process is already commonplace in insolvency cases. These amendments were put forward in another place on the basis of making it clear, specifically and in terms, that there is no intention of opening a loophole for bogus claims.

Several hon. Members:

rose

Photo of Tom Harris Tom Harris Labour, Glasgow Cathcart

Perhaps the hon. Gentleman can deal with a specific example of what Labour Members are worried might happen if the amendment were accepted. What if it emerged that a suspected drug dealer who is appearing before the courts owes hundreds of thousands of pounds to, for example, the much maligned sauna parlour or tanning shop? Indeed, we discussed such an example at length in Committee. Such premises are often owned by relatives or friends of drug dealers. With a good accountant, it would be very easy to wrap up such a process interminably—to the extent that such confiscation orders would mean absolutely nothing.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I am afraid that the hon. Gentleman is mistaken in thinking that it is easy to wrap up these matters interminably. Given the existing expertise in our courts, I do not accept that it would be at all difficult to disentangle the bogus from the genuine. That happens all the time—day in, day out, week in, week out. It would not gum up the works.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

The hon. Gentleman says that it happens all the time and that that is the reality of life, but let us consider that reality. He talks about trying to protect the little man, but he will surely accept that small business people have to protect themselves from default every single day of the week. When was the last time he managed to get a double glazing firm to fit windows without its receiving some money up front? How much work has he ever got a plumber to do without providing some kind of credit first? He is a Member of Parliament who is clearly not going to rush off, yet such people still seek to protect themselves. As he well knows, that is the reality of life as it affects the little man now.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

I do not accept that that is common practice for small firms. It is not easy to obtain security for small debts. Lord Falconer of Thoroton repeated the argument that that is the way of the world. However, in reply, Lord Goodhart said that

"even the most distinguished and successful of barristers sometimes has to appear to advance a totally indefensible argument. I must say that I have rarely, if ever, heard such an indefensible argument as that put forward by the noble and learned Lord this afternoon.

For a start, he said that the enforcement authority would be an agent paying off the unsecured debts of the criminal . . . he then said that what we are asking for would be 'stunning' protection. What is stunning about this is the Government's claim to take away an innocent person's property. That is, among other things, contrary to the first protocol of the European Convention on Human Rights.

In the case of the builder that we have suggested, the Government are claiming money twice because the state gets the improved value of the defendant's building without having to pay" the trader

"for the cost of the improvement. That is clearly double counting."—[Hansard, House of Lords, 25 June 2002; Vol. 636, c. 1237.]

Photo of Vera Baird Vera Baird Labour, Redcar

I intervene in a genuine search for enlightenment. The point has already been made by several hon. Members, but all we are really concerned about is a situation in which someone is forced into bankruptcy or insolvency. If the director takes away part of that person's assets but he still has some left, he pays his own debts. If he is forced into bankruptcy or insolvency, the hon. Gentleman wants to protect the little man from that situation; but why should the little man in that situation be in any better position because the criminal has been forced into bankruptcy by this legislation as opposed to by the VAT man, the tax man, his mortgagees or anyone else? [Interruption.]

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

The simplest answer—as my hon. Friend Mr. Grieve has just pointed out from a sedentary position—is that in this situation there is no debt. That is what makes it different from the conventional bankruptcy. The hon. and learned Lady shakes her head, but I hope that the Minister will accept our good will. We are not trying to drive a coach and horses through the legislation: we are trying to protect entirely innocent people. The Minister knows that and we discussed the issue at length in Committee.

The debate will not improve by repetition, but when the Minister responds I hope that he will accept that when Baroness Buscombe and Lord Goodhart proposed the amendment in the other place, they were supported by many peers, of all parties and none, including Law Lords who understand the significance of the point that we are making. This is not simply a matter of removing the assets of the criminals: it is ensuring that no more innocent victims are accidentally caught in the side wind from the Bill.

Photo of Vera Baird Vera Baird Labour, Redcar

Much of what I intended to say has already been said, so I shall be brief. Unsecured creditors, by definition, do not have security for their debts. They are hostages to whatever befalls their debtor. He may run away and go overseas, and if they cannot get their money, that is hard luck. If the debtor becomes insolvent or bankrupt, again the creditors might not be able to get their money. That is not a new situation, nor is it unexpected. In business, that sort of thing needs to be taken in one's stride.

I do not accept the argument put vicariously by Mr. Hawkins, for Mr. Grieve, that the order does not constitute a debt to the state. Once an order has been made, there could be no more acute debt to the state. Why should particular protection be given in such cases?

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I disagree with the hon. and learned Lady. Generally speaking, in civil litigation or even in tax there is a legal obligation of money owing by one person to another. In this case, although I fully support the institution of the new regime, there will be no debt owing. The money will be taken not because it is owed as a legal debt, but because its origin is tainted. That is a distinct state of affairs and that is why it would be proper to look to the other victims of the offender, which would include the small creditors.

Photo of Vera Baird Vera Baird Labour, Redcar

That intervention does not make sense. Once the order has been made, there is a debt to the state. It is as simple as that, and no alternative argument can alter the matter. The order will push the defendant into bankruptcy, at which point the debt becomes a debt to the state. It is at that point that a person owed money by the defendant will get into difficulties.

Photo of Boris Johnson Boris Johnson Conservative, Henley

The hon. and learned Lady may be right that, in her legalistic phrase, it is a debt to the state, but does not the state also owe a duty to the innocent people who will be caught up in this expropriation of money?

Photo of Vera Baird Vera Baird Labour, Redcar

That takes me neatly to my next point. I repeat that there is no justification for putting victims of bankruptcy caused by this Bill into a separate category from those who are victims of other types of bankruptcy.

No Conservative Member has offered a convincing argument for that. However, if such an argument had been made, there would need to be a value judgment about whether it was more important to protect unsecured creditors or to seize criminals' assets for the state's use. At least part of what is seized will be given to the local police force, for use on local policing needs such as the detection of crime and the prevention of future crime. The proceeds would be used to save people in my constituency and others like it from the disorder that wrecks their lives every day. My value judgment would place confiscation above the protection of unsecured creditors

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

May I offer a couple of other examples? If a house is seized whose value has been improved by a local builder to the tune of £25,000, the state acquires the benefit but the builder does not get compensated for the money that he has put in. Again, what happens if a car that has not been fully paid for is seized? The state takes the car, but the person who sold the car is left with nothing because he is not secured. Surely that is the justification for the amendment that the hon. and learned Lady seeks?

Photo of Vera Baird Vera Baird Labour, Redcar

I repeat that that is exactly the same as what happens when a person goes bankrupt for any other reason. We are concerned not with what happens when a person has enough money to pay his debts, but with what happens when the order renders that person bankrupt. A bankrupt is bankrupt, regardless of who caused it, and a creditor should not be left in a better position because the bankrupt happens to be a criminal. There is no sense in that argument.

Photo of Mark Lazarowicz Mark Lazarowicz Labour/Co-operative, Edinburgh North and Leith

Does not my hon. and learned Friend agree that a creditor in this situation would enjoy a benefit that is not available to others? He would benefit from what is in effect a state guarantee service, which would pay the debt. No other type of creditor has access to such a service.

Photo of Vera Baird Vera Baird Labour, Redcar

Creditors in the situation that has been described would either get the cast-iron benefit of the state-backed guarantee company, or there would be intolerably long arguments in court about who owed what to whom, and about what was or was not a justifiable debt. I do not accept what the hon. Member for Surrey Heath said about courts arriving at quick and simple decisions.

Do Opposition Members really think that the courts should spend time deciding whether claims are bogus, when the only people with real information about that will be the parties to the claim—that is, the gangster and his best friend, or the gangster and some remote acquaintance arranged through that best friend? How will a court be able to get to the bottom of that puzzle simply and easily?

Moreover, a debt might be genuine but there could be a problem with the goods—how would the court deal with that? Let us say that the police find a computer supposedly worth £10,000 in a criminal's house, but discover that it is not fit for its purpose and does not work: is there then to be a long civil trial to determine whether the goods were defective and whether the debt is really owed? The proposal is guaranteed to gum up the works.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

The hon. and learned Lady will be familiar with clause 310, where she knows full well the Bill provides that a property does not come within the class of recoverable property if it was disposed of in good faith and without notice. Those are precisely the issues that we are discussing. Is the hon. and learned Lady saying that the court cannot discharge the function under clause 310?

Photo of Vera Baird Vera Baird Labour, Redcar 6:15 pm, 18th July 2002

No, I am not saying that. I am saying that what is suggested is a recipe for gumming up the works. It offers to the criminal an opportunity to do everything that he can, as soon as he feels the scent getting closer, to generate as much debt as possible.

It is likely, is it not, that such debts which are unsecured will be small ones? It will not necessarily be the normal case that seizing a criminal's assets under the Bill will make him go bankrupt or insolvent. We are speaking of a small number of small debts which the amendment would assist. The balance of opinion in all parts of the House is clearly against the amendment, which would open the floodgates to abuse.

Photo of Mr Nick Hawkins Mr Nick Hawkins Conservative, Surrey Heath

Will the hon. and learned Lady consider the possibility that if the Bill becomes law in its current form, a year or so after it has come into force she may be faced in her constituency surgery in Redcar one day by a small builder who comes along and says, "I want you to take this up. I am £1,000 out of pocket for work that I did in all good faith for somebody who I had no idea was a criminal, but who has been the subject of a confiscation order under the Act." Will the hon. and learned Lady say to her constituent the builder, "I am terribly sorry. My value judgment is that it is far more important that the state should grab the money than that the innocent builder should have his £1,000"?

Photo of Vera Baird Vera Baird Labour, Redcar

I have explained the realities of the position, which are not as the hon. Gentleman is, I fear, pretending that they are.

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

We heard from the Home Secretary this week how important it was that the victim should come first under the new criminal justice regime that the Government want to create. Great stress was put on that. We were told that for too long, the victims of crime had been neglected and the criminals had got away with it. Yet this afternoon, I hear many siren voices from the Government Benches clamouring to get hold of the guilty, and not very many who are keen to speak up for the innocent, and there are innocent people—

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I have barely started, so I shall wait until I have made some progress before I give way.

As the Minister was generous enough to accept when I intervened on him, some innocent people will be caught up and will suffer as a consequence of the Bill. For reasons that I entirely understand, the Minister fears that if the amendment were passed, it would open the floodgates to people gumming up the works—that is the phrase that has been used—and that the effect of the Bill would be diminished.

I understand that point, and we in the Opposition must address it. Equally, the Minister must address the point that innocent people will be caught up. It is not satisfactory to brush that aside and say, "If a few bystanders are caught up in the process, that's tough." In the House, if nowhere else, we must ensure that the innocent are protected. That is a basic point of justice, which we operate in our democracy. It is no good acting as though the innocent do not count; they do count.

How does the proposal differ from the existing situation? Let me deal with some of the points that Labour Members have made. The first difference is one of scale. The Minister said, in response to a comment from one of his colleagues, that confiscation will apply to a wide range of offenders. Indeed, the Bill is designed to be far reaching and to ensure that the proceeds of crime will be picked up wherever they can be found. Of course my colleagues and I support that principle, as do the Conservatives. So the scale of possible injustice will be greater because the scale of confiscation will be greater. That is the first point.

The second point is about predictability. The Minister said that small builders and others who enter into arrangements with other people ought to have their eyes open and be prepared for eventualities that are unhelpful to them, and they are to some degree. However, the difference is that it will be more difficult for the small builder or another individual to pick up the fact that a calamity is about to befall him and that the debt will somehow be unsecured because the very purpose of the legislation is to catch not simply the low-life drug dealers that Mr. Johnson talked about and whom people in the community may well know. [Interruption.] Did the hon. Gentleman say that there were such people in Henley?

Photo of Ian Lucas Ian Lucas Labour, Wrexham

The hon. Gentleman said, "High life".

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

Oh, high life. The people who undertake tasks or perform services for those people probably know that they may well have question marks over their heads, that they are identified in the community and therefore that there is a risk. However, the Bill is designed to deal with the people whom Mr. Davidson wants dealt with. They are the sort of people who are City business types, who are respectable types, who have a nice house in Esher and who appear to be the pinnacle of respectability. They are the kind of people who the hon. Gentleman wants to get at. They are the kind of people who may well have a criminal lifestyle, and they will be caught for the first time. It is very good that we catch those people, but how can a small builder have a suspicion when he undertakes a massive job for a landowner with a big house in Esher that suddenly, before his very eyes, all the money will be seized because, for the first time, we have a legislative framework that will allow that to happen? He will have no way of knowing that.

Photo of Ms Annabelle Ewing Ms Annabelle Ewing Scottish National Party, Perth

I do not want to go over the same ground again, but the small builder in the hon. Gentleman's scenario would be at exactly the same risk as if he were to treat with a landowner whose assets were sequestrated. What is the difference?

Photo of Norman Baker Norman Baker Liberal Democrat, Lewes

I am trying to explain the difference, and I am running through a list of points that show the difference. I have dealt with two main differences so far—scale and predictability.

The third point is that the fact that the Minister sought to draw inappropriate parallels in responding to my intervention. He referred to the Inland Revenue and tax liabilities. He also referred to the possibility of imposing fines. I understand why he makes those points, but, with respect to the Minister, they are not appropriate analogies to make.

First, the Inland Revenue involves a debt. We are not talking about debts, except in the purely legalistic and slight odd way in which Vera Baird did so. What we are talking about is not the same as a tax debt. Indeed, I think that Mr. Field intervened earlier to make to the point that the Enterprise Bill will diminish Crown preference, so the Government are doing away with the idea that the state can automatically grab something.

Except in extremely rare circumstances, fines are not of a magnitude to confiscate people's assets entirely. Fines involve an element of people's assets. It is an odd fine that says, "Pay over everything you have." We do not have such fines, but such confiscation may have that effect in law. So it is not fair to draw that parallel and to say that we are talking about fines.

It has been argued that those in the enforcement authorities would be distracted because dealing with such issues is not the main part of their job. I accept that there may well be a time consequence and that it may well be significant, but that is no reason to allow a few innocent people to suffer as a consequence. I do not recognise that equation as being in any way just or appropriate in a democracy. If the Minister wants to ensure justice, he should ensure that provision is made for justice. That is a red herring, and it is wholly inappropriate for the Minister to raise that issue.

The Minister made a serious point. He and his hon. Friends are concerned that the Lords amendment will let criminals off the hook. Other bits and pieces around the edges have been mentioned so far, but that is the nub of his argument. If someone has their Rolls-Royce seized, it will still be seized. The argument about whether the state has the benefit of that Rolls-Royce or the builder who has undertaken the work has the benefit of it will take place afterwards. For the person whose assets have been seized, that Rolls-Royce still goes. There is no benefit to him from that arrangement. Those who benefit from the proceeds of crime will still lose those proceeds under the amendment.

It would also be possible, were the Under-Secretary concerned about the matter, to put in place a system that put an onus on the creditors to prove what was owed to them. Creditors would therefore have to bring forward to the court—were the Under-Secretary more comfortable with such an arrangement—proof that they are owed money. They would have to do that in any case, but some of the onus should be taken off the Assets Recovery Agency. They should at least have a chance, however, to say, "I have incurred work, I have put half my life over the last six months into this house", or whatever it happens to be. They should at least have a chance of saying in court or elsewhere, "I've just lost everything I had because of something that I knew nothing about. This guy has assets that you are not letting me get hold of."

If the Under-Secretary is not happy with the amendments in their current form because he feels that they will lead to criminals using their friends or their relatives, the onus should be changed. We could examine the hurdles, consider when the provision might kick in, and perhaps limit it to one-person businesses. Let us do something at least to ensure that those innocent victims—of which there will be some under this Bill—are not affected. It cannot be beyond the wit of the Under- Secretary and his officials to construct a scenario in which the criminal is not given gaping holes through which to walk, but in which, at the same time, the innocent are not persecuted and deprived of what is rightfully theirs.

Photo of Ian Davidson Ian Davidson Labour/Co-operative, Glasgow Pollok

I want to raise the question of whether this proposal is genuinely being put forward by the criminal's friends. We should judge that on the basis of whether, if the proposal were passed, criminals would be more or less likely to enjoy their ill-gotten assets, and whether they would be more or less likely to be able to hold on to some of them.

It seems perfectly clear that the thrust of the proposal would benefit the criminals whom we seek to pursue. I have been impressed by the way in which the lawyers among the Opposition have been able to find loopholes through which people can hide money away. That seems to be the role of the lawyer in these circumstances. As was indicated earlier, money could be hidden in a variety of ingenious ways, which are almost deliberately designed to clog up the machinery.

I heard from the Opposition some tears of grief for innocent tradesmen, which I had not thought was generally typical of them. Will they clarify what is a small creditor? We have heard no such definition. What worries me is that it is not just the man who is owed money for a couple of bottles of milk. We have already heard reference to building contractors; indeed, Norman Baker commented on the possibility of massive building work being included. Clearly, the door that the Opposition are seeking to open for small creditors could easily be opened widely to encompass almost any creditor. The Opposition's case is greatly diminished by the lack of mention of a maximum figure. Nor have they mentioned or acknowledged the potential for abuse.

I accept that it is possible—

Photo of Ian Davidson Ian Davidson Labour/Co-operative, Glasgow Pollok

I would prefer not to take interventions, as we have had two major statements this afternoon. We are therefore left without much time to debate these matters.

I accept that there is a difference between bogus and artificially created debts. It is entirely possible, however, for debts to be created that are not artificial and bogus but are the product of spending sprees undertaken by people who know that they are likely to be found guilty, and who know that they are likely to have all their assets seized. Those debts would be genuine, but, none the less, they are created in a way that is deliberately designed to thwart the means of this Bill.

As I said, it is a matter of going out on spending sprees, buying consumables and clothes and giving away presents. Some of those could be chased up at great personal expense, but none the less it gives a green light to abuses. Although some innocent people might be damaged by the measure, I cannot think of any other proposal that will not be abused by lawyers to clog up the machinery and to benefit the criminals. I hope that the House rejects the Lords amendment.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 6:30 pm, 18th July 2002

The fact that we are hurrying on with the debate and many of the amendments will not be discussed shows the evil associated with timetable motions.

My right hon. and hon. Friends are on the side of the victim this time. Yesterday the Home Secretary told us that the criminal justice system should be attuned to take account of the interests of the victim. That is what the Lords amendment would do and it is what my hon. Friends, supported by the Liberal Democrats, want to achieve. The question is where the loss should fall in the event of a confiscation order being made. We are being asked to prefer the interests of the state to the interests of the innocent supplier of goods and services. In all conscience, I cannot understand why the interests of the state should be preferred to the interests of the innocent supplier. Indeed, that protection is enshrined in the Bill and other legislation.

Clause 310 protects an innocent acquirer of property for value. Vera Baird asked why we should preserve the little person. The answer is that the innocent purchaser is preserved under clause 310. She also said—although I had difficulty understanding her argument, coming from an accomplished lawyer, as I am sure she is—that courts could not distinguish the bogus from the genuine. Yet the courts have to do that in a large number of cases. Indeed, they are expected to do that under clause 310 and its statutory predecessors.

Photo of Mark Lazarowicz Mark Lazarowicz Labour/Co-operative, Edinburgh North and Leith

Surely the point is the extent to which the state should protect the innocent or the bogus creditor when that individual would not obtain such assistance in any other respect from the state. If a confiscation order of, say, £10,000 is made against an accused and convicted person, the court might make compensation orders of perhaps £5,000 against that individual. If it transpires that the amount stipulated in the confiscation order cannot be collected, the state will end up paying out a greater sum in compensation than it recovers from confiscated assets. Does not that give those creditors an unfair advantage?

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

That point was covered when my hon. Friend Mr. Grieve intervened on the hon. and learned Member for Redcar. What happens when a builder comes to the hon. Gentleman and says, "Look. I cannot recover the charges I want to make for repairing the plumbing because a compensation order has been made and there is no money available"? I do not suppose he will say, "Tough luck. I thought that decision was in the strategic interest of the country." Indeed, what he will say is, "I am extraordinarily sorry. I will write to the Minister and do what I can to help."

I can give another example that is little closer to the Labour party. My hon. Friend Mr. Johnson referred to Maxwell's pensioners. He was right. Those pensioners could have claimed against Mr. Maxwell for fraud. A confiscation order could have been made against Mr. Maxwell which would have precluded him from paying the pensioners. I do not suppose that the Labour party would be saying to each and every one of the pensioners, "I am so sorry that you cannot be paid because all of the money has gone to the state." That would be the consequence of the amendment. We are saying that the little man should be protected against the state. Labour Members are saying that the state should be preferred to the little man. I know on which side I am.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

Mr. Hogg is obsessed with comparisons with clause 310. If he reads the Bill carefully, I hope that he will recognise that that clause deals with people who are already in possession of property that they bought for full value. I do not know whether in his dealings with the law he has ever come across a situation where people are seriously suggesting that unsecured creditors should be dealt with in the same way and given the same level of protection as the possessors of property. I do not know whether the right hon. and learned Gentleman has ever argued that in a court of law. However, that is not the position of unsecured creditors, and he knows that. His attempts to make comparisons with clause 310 are fallacious for that reason. The Bill protects victims, and it also protects the victims of crime. As hon. Members know, we changed the Bill so that we could pay compensation orders ahead of confiscation orders.

There is little doubt that there are two fundamental issues. Mr. Hawkins almost begs me to accept that his intentions are wholly honourable and that he is trying only to protect the innocent. Yet he failed entirely to deal with the issue, as did Norman Baker. The issue is how we protect ourselves from abuse. The creditor and the debtor would be able to collude in the fabrication of evidence that a debt existed. It would be in the interest of both of them to do so. Yet Opposition Members suggest that there is a simple way in which we could protect ourselves from that situation. There is not such a solution. It would be massively difficult so to protect ourselves. Confiscation proceedings would be rendered impossible to operate.

Let us say that the hon. Member for Surrey Heath loans me money. If I clear off to South Africa he will lose it, and that is all right. However, if it is proved that I am a serial criminal and the money is confiscated, it is being argued that the money should be returned to him. I do not see much difference between the two situations.

Opposition Members have failed to address fundamental difficulties. How could we protect ourselves from abuse? There are risks that unsecured creditors have to protect themselves from every working day of their lives.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

Is the Minister's only objection the practical one of fear of collusion? Is there not some further issue of principle, which seemed to be hinted at by Vera Baird? I understand the hon. Gentleman's point, but I did not understand the hon. and learned Lady's. For instance, in the Scottish provision, there is protection for wives, which the Government were happy to leave in the Bill. On that basis, I assume that the Minister did not have a philosophical objection. I found it extremely unpleasant that the state had to come first in such circumstances. Is that not in itself a recognition that we are not dealing with ordinary indebtedness, taxation or anything of the kind, but a completely new system? That is why the Government should listen on this issue.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

I have made it clear that I have two objections. I fail to see that there is a fundamental difference that applies to many people in many circumstances. I say to the hon. Members for Surrey Heath and for Beaconsfield (Mr. Grieve), but not as eloquently as would my hon. and learned Friend Vera Baird, that if they loan me money and I go to South Africa, they will not get their money back from me but they think that somebody else should cover the debt if I end up having it confiscated.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

No. I will not give way again. The big problem—the Opposition know that this is the truth—is that their proposal would wreck this part of the Bill. It is therefore quite justifiable, despite the doe eyes that the hon. Member for Surrey Heath is making, to say that this is a wrecking amendment, and I ask my hon. Friends to reject it.

Question put, That this House disagrees with the Lords in the said amendment:—

The House divided: Ayes 253, Noes 136.

Division number 313 Orders of the Day — Proceeds of Crime Bill — New Clause

Aye: 253 MPs

No: 136 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly agreed to.

Lords amendment disagreed to.

Lords Amendments Nos. 10 to 17 agreed to.