110 Clause 251, page 148, line 29, at beginning insert "Subject to section (Proceedings brought under section 251: defence of respondent),"
The Commons disagreed to this amendment for the following reason:
110A Because it is not appropriate to provide any such exceptions, the House having reached its decision without the opportunity for debate.
rose to move that this House do not insist on their Amendment No. 110 to which the Commons have disagreed for their reason numbered 110A but do propose the following amendment in lieu thereof—
110BClause 2, page 2, line 21, at end insert—
"(6) The guidance must indicate that the reduction in crime is in general best secured by means of criminal investigations and criminal proceedings."
My Lords, with these amendments I shall speak also to your Lordships' Amendment No. 113 to which the Commons have disagreed for their reason numbered 113A.
These amendments go to the heart of the civil recovery scheme contained in Part 5 of the Bill. The amendments made by this House were discussed fully on Report and at Third Reading in this House. Although the specific amendments were not in the event discussed in the other place—as reflected in the reasons for disagreement—the civil recovery scheme had been discussed there at some length previously.
As specified in the reasons, the other place considers—although not with the benefit of debate on the point—that it would not be appropriate to provide the kind of exception to the civil recovery scheme that would result from the amendments.
The noble and learned Lord, Lord Lloyd of Berwick, has on other occasions explained in detail his concerns about the civil recovery scheme contained in the Bill and his reasons for proposing the amendments. For my part, I have made it clear, also in previous debates, that the Government do not share his views. We do not agree that civil recovery proceedings are analogous to a criminal trial. We therefore do not accept that there is an inevitable conflict with the European Convention on Human Rights.
We are clear that the amendments proposed by the noble and learned Lord, Lord Lloyd, and supported by the opposition parties, would make the civil recovery scheme set out in Part 5 of the Bill unworkable. They would not improve the scheme. They would also certainly not make it less vulnerable to challenge in ECHR terms.
Amendments Nos. 110 and 113 would prevent civil recovery proceedings being taken against any person whose own unlawful conduct was alleged to have generated the recoverable property at issue. This would be because such a person would have a right to demand a trial in the Crown Court. However, as civil recovery proceedings will not be brought unless criminal proceedings are not appropriate—or have failed—the amendments would have an unacceptable effect in terms of some of the key intended targets of civil recovery.
The amendments would also introduce into the civil recovery proceedings a focus on the guilt of an individual rather than the origins of the property, contrary to the intention of this part of the proposed legislation. However, we appreciate the concern of this House that the bringing of criminal prosecutions is to be preferred where the normal evidential and public interest tests are satisfied. We have stressed at all stages of the passage of the Bill that prosecution will remain the priority, and that the director will pursue civil recovery or taxation only where a prosecution is not appropriate. We accept, however, that there has been nothing on the face of the Bill to this effect. We therefore believe that Amendment No. 110B—an amendment to Clause 2 which we have proposed in lieu of Lords Amendments Nos. 110 and 113—will provide an important safeguard in this regard.
The amendment will ensure that the guidance given to the director by the Secretary of State will make it clear that criminal investigations and criminal prosecutions will—in general—best secure the reduction of crime. This will, I hope, allay any concerns that civil recovery might be used in cases where criminal proceedings should properly be brought. That is a significant confirmation of the position and one that I trust will recommend itself to the House. I beg to move.
My Lords, I rather wondered why the Attorney-General was on the Front Bench and whether it suggested that the noble and learned Lord, Lord Falconer, was not capable of making these points. As the Attorney-General continued, however, I understood that he was trying to tell us what should have been said in another place about why they would not accept your Lordships' amendment.
I am left wondering on a point not so much of law but of good manners—which do not always carry the day in another place. I wonder why those in the other place should have included as a reason for not accepting your Lordships' amendment the statement,
"Because it is not appropriate to provide any . . . exceptions".
All right; that might be an argument. However, they go on to say:
"the House having reached its decision without the opportunity for debate".
The procedures in another place show that it has quite voluntarily cut down on the time that it is prepared to expend on legislation. Unhappily, the Government are not following such a precept at all. They are bombarding Parliament and the country with a cascade of legislation which has rarely been equalled.
We now have this plain statement, which I cannot construe in any other way:
"the House having reached its decision without the opportunity for debate".
In other words, the other place cares not a rat for any argument that may be put forward here; such argument is not worth our spending time on; they will just reject it.
I very much hope that the Attorney-General will be able to explain. He has already explained the legal reasons for not wishing to accept your Lordships' amendment. However, if those in another place had to reject it, I think that they might have done so in slightly less rude and abrasive terms. Perhaps the Attorney-General will apply his mind to that.
My Lords, I follow very much what has just been said by the noble Lord, Lord Peyton. I am not so well versed in the procedure of this House as other noble Lords, certainly not with the procedure that should be followed when this House is considering amendments passed by this House but disagreed to by the other place. In the Companion, at paragraph 6.153, I read that the Commons are required to give their reasons for disagreeing with a Lords amendment. That does not surprise me in the least. I have spent my life in the law, and it is elementary that all courts, high or low, are required to give reasons for their decisions, simply so that the parties can know where they are. That duty to give reasons is part of what we understand by "a fair trial".
As has been said on many occasions, the reasons given must be proper reasons. They must be adequate and, above all, they must be intelligible. That applies not only to courts required to give reasons; it applies also to Ministers who are required to give reasons and, indeed, to all who are required either by law or by custom to give reasons for their decisions. I assume that it applies equally to the Commons when they are giving their reasons for disagreeing with our amendments.
So one looks to see what the reasons are for disagreeing with Amendments Nos. 110 and 113. But what does one find? It is said that to make "exceptions"—which are the exceptions covered by the two amendments—would be "inappropriate". That is a word that is always being used in many different contexts. It seems to me a word of very little meaning. However, whatever it means, it certainly does not import a reason for disagreeing with the Lords amendments. It is a conclusion; it is not a reason. It means, "We do not like the Lords amendments and we therefore propose to disagree with them". If one is permitted to quote Latin in this House—one is not allowed under the Woolf reforms to quote Latin in the law courts any more—I would remind noble Lords what was said, in Roman times, by Juvenal: Sic pro ratione voluntas; let my will stand in place of reasoned judgment. That appears to be the line being taken.
So one looks further, and what does one find? Why is it said that the amendments are inappropriate? The answer is: "Because we did not have time to consider them". As a reason for not agreeing to our amendments, that is simply unintelligible; it makes no sense. It is not a reason at all. It is at most an excuse. It is not a reason. How can we consider—as we are supposed to be doing on this occasion—the Commons reasons for disagreeing with our amendments unless we know what those reasons are? All we know is that they voted apparently without any consideration at all.
We are often told that this House performs a valuable function as a revising Chamber, and I believe that to be true. It is all the more important, as has also been emphasised, that we should perform that function as scrupulously as we can when we are faced every year with a new flood of criminal legislation. I cannot remember whether at the last count that amounted to 10 new criminal justice Acts in as many years. I may be out of date; there may be more.
As it happens, I am strongly in favour of the Proceeds of Crime Bill. I have made that clear from the very start. However, Part 5 contains something entirely new; that is, provisions which in my opinion are capable of causing grave injustice as well as provisions which are clearly incompatible with the Human Rights Act. It was to eradicate those injustices that I drafted and moved Amendments Nos. 110 and 113. I am afraid that I explained my reasons in four speeches in your Lordships' House, each of which was probably much too long. In the course of the Third Reading debate your Lordships ultimately decided by a majority of 149 to 132 that those reasons were sound. They have now been disagreed to by the Commons without any reasons being given, save only one reason which is wholly unintelligible. I find that profoundly unsatisfactory and not the way in which one would have thought that communication should be conducted between the two Houses.
I suggest that the proper course now is for this House to send back Amendments Nos. 110 and 113 with a request that they be reconsidered, or perhaps I should say considered for the first time, and, if rejected, or if disagreed to, that proper intelligible reasons be given which we can then consider. We cannot consider the reasons today because they are not available. We can guess what they may be—we have heard the Attorney-General on three or four occasions so we may guess them—but the reasons we want to be given are the Commons reasons.
It may be said that I ought to have put down my thoughts in the form of a Motion. I do not know whether or not I should have done so. I am afraid that I only saw the Motion late last night but the circumstances in any event are peculiar because the noble and learned Lord's Motion is itself clearly defective. It asks us not to insist on an amendment to which the Commons have disagreed for certain reasons. However, when one examines the matter, those reasons are not provided. For those reasons I shall vote against the Motion.
My Lords, far be it for me to do anything as improper as to criticise or cast aspersions upon the proceedings of another place. But had I emerged from Mars and was not aware of the doctrine that the Commons could do no wrong, I might find it somewhat surprising that one part of the legislature rejected without debate an amendment passed in this House, having been moved by a Lord of Appeal in Ordinary and supported on all sides of the House by experienced and learned persons, without giving any reasons. But, of course, within the conventions of the House, that Martian would be entirely wrong because the Commons can do no wrong.
Turning to the substance of the matter and the points made by the noble and learned Lord the Attorney-General, who is, I believe, called Lord Goldsmith rather than Lord Goodhart, as he knows, I have sympathy with part of his points. I agree that one cannot always require criminal proceedings partly because some of the offences in question may be committed abroad and are not triable in this country and partly because what is considered here is general unlawful conduct rather than a particular crime. However, I am perturbed that a judge trying such a matter can come to the conclusion that someone is guilty of very serious crimes, and do so upon the civil burden of proof. The noble and learned Lord the Attorney-General told us that the judge would, in accordance with the rules, take the matter seriously and would require the balance of probabilities to be well pressed down. However, that is not the same as saying that he should be satisfied beyond reasonable doubt. I do not see why the judge trying the matter should not be required to be satisfied beyond reasonable doubt that the person in question had been guilty of unlawful conduct. I suggest that it would go some way to meet the noble and learned Lord's concern if the Government, even at this late stage, accepted that the judge in question had to decide the matter of unlawful conduct on the basis of its being beyond reasonable doubt.
I accept, of course, that that is not a matter which is before the House at the moment. The noble and learned Lord may accept the suggestion of the noble and learned Lord, Lord Lloyd of Berwick, that the matter should not be pressed at the moment. Or, if the House decides to reject the Commons reasons and send the measure back, I urge the Government to consider, when it goes back to the Commons, whether they could not go some way towards meeting the noble and learned Lord's concern by saying that the burden of proof of deciding whether there had been unlawful conduct should be that of beyond reasonable doubt.
My Lords, I, too, feel obliged to support the noble and learned Lord, Lord Lloyd of Berwick, as my noble friend has done and as the noble Viscount, who has just spoken, has done. I am sorry to have to say that it seems to me that the Government have failed to apply a well established practice of the constitution. We in your Lordships' House have the right to ask the Members of another place to think again and to change any amendments we have passed. Surely, in doing so, it is not sufficient to deal with the matter in the way that it has been dealt with in this case.
I refer to House of Commons Hansard of 18th July at col. 530 which concerns Lords Amendment No. 110. That was the paving amendment moved by the noble and learned Lord at Third Reading. It is merely stated at col. 530 of Commons Hansard:
"Motion made, and Question put, That this House disagrees with the Lords in the said amendment".
No reasons are given there; there is no prior discussion whatever giving reasons. The result of the Division is set out. In the Commons reasons for disagreeing to certain Lords amendments the Government have put forward a statement which Hansard does not support, stating that,
"The Commons disagree to this amendment for the following Reason—
Because it is not appropriate to provide any such exceptions".
That was not mentioned in the House of Commons and not mentioned by the Government and not, so far as I know, put forward in any document that the Commons had to consider. As the noble and learned Lord pointed out, the reason continues,
"the House having reached its decision without the opportunity for debate".
That ignores a well-established practice of our constitution.
Of course, Members of the House of Commons have the last word but we have the right to ask them to think again—although not again and again—so long as they give their reasons. On this occasion no such reason has been given. That applies to both the paving amendment and the amendment of substance put forward by the noble and learned Lord. Therefore, I most earnestly support the plea made by him and by the noble Viscount, Lord Bledisloe. Instead of asking your Lordships merely to endorse what the Government have done—Members of another place have not been asked to consider the reasons—let the matter go back to the Members of another place to see what they decide.
My Lords, like my noble friend, I was struck by the repetition by the noble and learned Lord the Attorney-General of the second half of the Commons reason. He was sitting next to his noble and learned friend Lord Falconer when he said earlier that of course we pay regard to what noble Lords say. I emphasise the word "say". By extension, one assumes that this Government listen to what Members of another place say. Again, I stress the word "say".
In this House, when discussing reasons for disagreeing to an amendment from another place, the main protagonists get into a little huddle, usually in the Prince's Chamber, and thrash out such a reason. It beggars belief that that procedure was followed in this case in another place. I cannot think of any little huddle coming up with such a crazy reason.
My Lords, what I find objectionable is that reason 110A is not true. The other place had plenty of time for debate. It simply chose not to take advantage of that. Members of another place could have debated the issue for as long as they wished. It was not that they did not have the opportunity; they did not take the opportunity for debate. They passed a guillotine Motion which stopped them from having that debate. That reason is not the view of the House of Commons but of the Whips' Office of the House of Commons.
I was interested to hear the noble and learned Lord the Attorney-General give his reasons why we should not stand by the amendment we had made. It was very interesting. But those were not the reasons which impressed another place because Members did not hear them. The issue was not debated. Indeed, it might just as well have been said that this was agreed to by another place because it did not have the opportunity for debate. We do not know what Members of another place would have done had they listened to a debate. This place has a tradition that it listens to debate. It was because the debate was listened to in this Chamber that the Government lost in the proceedings. Perhaps the same would have happened in another place. We should not think so badly of them—that they always simply accept what the Whips tell them. Just occasionally, Members might rebel. Let us give them the chance.
My Lords, the danger of the reason given is that it sets a precedent. It introduces the guillotine into this House. It means that if ever anything is left undebated in another place, that is a sufficient reason for disregarding any consideration that this House may give. Whatever may happen in relation to the amendment proposed by the noble and learned Lord, this is a disgraceful procedure which should never be repeated.
My Lords, many years ago, when I was quite new to the Chamber, I remember towards the end of the Session that Whips on both sides colluded to get through a clearly defective clause in a Bill. They considered that it was not that important; it did not matter; and they would let it through.
With pressure of time—another place is about to rise—there is a danger that we shall allow through potentially defective legislation. We say that Members of another place are democratically elected. But when the executive control another place, is there any democratic control? The situation is dangerous. I have experienced such a situation once before.
My Lords, after some hesitation in Committee, the Opposition supported strongly the noble and learned Lord, Lord Lloyd, on Report and at Third Reading. After the noble and learned Lord's victory in your Lordships' House, I assumed that, when the amendment returned to another place, it would be duly reversed and return again to your Lordships' House—as indeed has been the case.
I imagined that I would then stand before noble Lords saying that, although I deeply regretted the vote of another place, there were two reasons why your Lordships should say that our constitutional arrangements have taken their course. First, sooner or later the Judicial Committee of your Lordships' House would have an opportunity to take a view on Part 5. Secondly, the task, constitutionally, of your Lordships' House is to ask another place to think again. Had another place thought again, and had the matter returned to your Lordships, I think we would have been prepared to accept that we had done our duty.
However, as so many noble Lords and noble and learned Lords have said during the past 10 minutes, another place has not thought again. Indeed, another place has not thought at all. Another place has not fulfilled its constitutional duty. That is particularly grave when the matter before it was not a party political matter; it was a constitutional matter raised by a noble and learned Lord from your Lordships' Cross Benches.
With great respect to the noble and learned Lord the Attorney-General, I think he owes noble Lords a very convincing explanation as to why another place was not prepared to think about this matter and return it after careful consideration.
My Lords, having listened to noble Lords, I agree that it is necessary to explain how we are in this situation.
A programme Motion was agreed with the Opposition in another place before the debate took place. It was an agreed programme Motion, not Government insisting on or forcing it. The programme Motion allowed three hours, if I correctly understand, to consider Lords amendments. That time was taken up with those matters which Members of another place wished to debate. Your Lordships have considered some of those other amendments today. When the guillotine Motion was put, it was not voted against so that matters of timing proceeded by way of agreement in another place. As it happens, which is plain from the reasons, this particular amendment was not debated. What happened thereafter, as those of your Lordships who have been in the other place will know, such as the noble Lords, Lord Renton and Lord Tebbit, the Reasons Committee will have been charged with the job of assigning a reason as best it understood it as to why the amendment had not been accepted.
The principal reason, which is both a proper and a good one, is:
"Because it is not appropriate to provide any such exceptions".
That is the first half of the reason given. The noble and learned Lord, Lord Lloyd of Berwick, will agree that that was submitted on behalf of the Government when I dealt with the matter at length both on Report and at Third Reading. There is nothing surprising or wrong about the proposition that the reason why the amendment is not acceptable is:
"Because it is not appropriate to provide any such exceptions".
It is right to say, too, that the other place debated Part 5 of the Bill at some length prior to the proceedings in your Lordships' House. Its view on the provisions was formed at that time and the provisions did not include any exceptions.
My Lords, if the Government were to go to court on judicial review proceedings and gave as their reason for a decision that it was not appropriate to do something else, does the noble and learned Lord believe that that would stand up for a second? Why, therefore, should it stand up in these circumstances?
My Lords, this part of the reason is no more brief than other reasons assigned by the Commons. For example, the reason in Lords Amendment No. 99 is:
"Because it is not appropriate to create a preference for unsecured creditors, which would be open to abuse by criminals".
Again, the same formulation of words, that it is not appropriate to provide exceptions, is used. Any Member of the House who listened or participated on Report and at Third Reading will know that whether it is appropriate to provide an exception is at the heart of the disagreement between the Government and the noble and learned Lord, Lord Lloyd of Berwick.
Let me develop what the exception would be. Someone who is said to be the perpetrator of unlawful conduct that gives rise to the property should not be subject to Part 5 if the person says that he wants to be tried in the Crown Court, and such a trial does not take place, or it takes place but does not result in a conviction.
That is an enormous exception, which is at the heart of the disagreement between us. While I regret the situation that has resulted from the points made by your Lordships today, but which will be studied with great care, the fact remains that there is a fundamental difference between what the noble and learned Lord proposed and what the Commons had previously agreed, which was a civil recovery procedure scheme that did not carve out a very important exception.
My Lords, I apologise to the noble and learned Lord and thank him for giving way again. In view of what he said about the matter having been considered, how is it that the Government Motion refers to
"the House having reached its decision without the opportunity for debate"?
My Lords, I am not sure whether I am in order, but I should like to ask the noble and learned Lord a question. When he said that the Reasons Committee assigned reasons, surely such reasons can only be assigned on the basis of a discussion having taken place, which in this case was the original amendment proposed by the noble and learned Lord Lloyd of Berwick. Would it be more accurate to say that the reason was invented?
My Lords, I do not think that that would be right. Nor, is it right for us to inquire into what happened in the Reasons Committee. One must assume that the Reasons Committee, which is the procedure in another place, did its best to assign a reason knowing the view of the House. I entirely accept what the noble Lord, Lord Renton, said, about the other place not debating the issue. No one is trying to hide that. I cannot stress enough that the reason was put forward by the Reasons Committee. It is not the Government's language but that of the Reasons Committee.
My Lords, with the benefit of having the noble Lord, Lord Weatherill, next to me, I shall ask the noble and learned Lord the Minister, about the other place, which is a little tough on him as he has never been there. Is it not the duty of the Reasons Committee to analyse the reasons given in the debate and then decide how to put them into a neat sentence? It is not its duty to invent reasons that are, in fact, the Government's reasons? They cannot be the reasons of the House because the House did not debate the amendment. The Reasons Committee is there not to make its own reasons but to analyse the debate and codify it.
My Lords, I have not been in the other place, but I have next to me my noble friend Lord Davies, who has. I understand that it is the duty of the Reasons Committee to assign a reason divining as best it can the will of the House. Sadly there was no debate on this occasion, but when a debate has taken place, I imagine that the Reasons Committee knows the will of the House from that. In the absence of a debate, when a programme Motion has been agreed to—not forced on the Opposition—the Reasons Committee has to find what it believes the will of the House to be. The strong argument against the amendment proposed by the noble and learned Lord, Lord Lloyd of Berwick, is that it would produce an exception that was not appropriate. Therefore, the reason that has been assigned is entirely appropriate.
My Lords, with respect, the noble Lord ignores the fact that the other place had debated the Bill substantially before it came to this House and is able, from that, to know what the will of the House is in relation to this particularly important part of the Bill. This part of the Bill provides for a new form of civil recovery, which was supported in another place by all parties and in this place at Second Reading. The noble and learned Lord, Lord Lloyd of Berwick, proposed an amendment to create an exception—a major exception—which the Government believe, as I have explained at great length on Report and at Third Reading, would make this part of the Bill unworkable.
My Lords, the noble and learned Lord comes to the issue with the clarity of mind of a lawyer and he comes fresh not to the Bill but to the issue of the proceedings in another place. Would he be so kind as to tell us how long the debate was in the Reasons Committee? Did it discuss the amendment of the noble and learned Lord, Lord Lloyd? It had to have some reason; it had not got anything out of the debate in the Commons because that debate did not take place.
I do not, my Lords; I am being perfectly frank with the noble Lord, Lord Tebbit. I suggest that we should draw a line under the reasons why a properly constituted committee of another place reached the conclusion that it did. It has assigned its reasons. I entirely understand and appreciate that your Lordships' House regards this as a matter of discourtesy. I have indicated that people will have to look carefully at what has been said.
However, the point before noble Lords is that, having debated the matter fully on other occasions, another place was of the view that Part 5 was an important part of the effort to produce a system that would prevent the proceeds of crime fuelling further crime in this country; that it was necessary to approach that by way of the new civil recovery process; and that it was necessary to prevent the corrosive effect of the proceeds of crime, as the noble Lord, Lord Kingsland, described it, from continuing drug trafficking, human trafficking, money laundering, bank robbery and serious organised crime. It is an important part. Everybody has accepted, with few exceptions—the noble and learned Lord, Lord Lloyd, was one of them—that Part 5 involves the right approach. Lords Amendment No. 110 would produce an exception—a huge exception—and would make this part of the Bill unworkable.
I have done the best that I can to deal with what is, from my point of view, a difficulty. The fact remains that the other place knew what the Bill was about and debated it at length. I have no reason to think that the Reasons Committee would not fully have understood what the will of the House was in relation to this particular exception. In those circumstances, I therefore invite noble Lords to accept the alternative amendment—the amendment in lieu proposed by the Government—and not to insist on Amendment No. 110.
My Lords, I almost cannot believe that this discussion is taking place in this way. The noble and learned Lord is producing a total "Alice in Wonderland" situation here. He is asking us to accept things that make a mockery of this House and of comity between the Houses. If this had happened in my days as Chief Whip, I should have advised my noble and learned friend who would have been on the Government Benches to take the matter away and to think it over again. I really do not think that we should have a Division on this. It should be taken back. That is the proper thing for the noble and learned Lord to do in these circumstances.
My Lords, I hear the noble Lord's proposal. It is known that the other place is about to rise, before this House. I urge noble Lords to consider the underlying merits of the situation. The fact is that another place is of the view that Part 5 is an important part of the Bill. The debate on it—the noble and learned Lord, Lord Lloyd, would probably agree—was largely between him and me. Few others in this House participated in that debate; the noble Lord, Lord Renton, was an exception, as was the noble Viscount, Lord Bledisloe.
My Lords, I interrupt the noble and learned Lord to say that I also participated in that debate. I intervene not to raise that point but to refer to his suggestion a moment ago that the noble and learned Lord, Lord Lloyd of Berwick, was on his own or with very few others. Did the Reasons Committee in another place not take into account the fact that the amendment of the noble and learned Lord was passed and supported by noble Lords on all sides of the House?
My Lords, I should make clear what I was going to say. It was not that the amendment has not been agreed and supported by the House; it plainly was, as the noble Lord said. My point was rather narrower: that during the earlier stages of the Bill, the noble and learned Lord, Lord Lloyd, was among the very few who objected to the concept of Part 5; others had supported it. The Government say now, and we said then, that with that exception, Part 5 would become unworkable. It is therefore inappropriate to have the exception in the Bill. I was not suggesting for a moment that the noble Lord, Lord Thomas, had not spoken on this matter; he did so briefly at Third Reading.
In the end, there is an exception, which the Reasons Committee said is inappropriate. That, ultimately, is the reason that lies behind the disagreement of the Commons to the amendment. I invite noble Lords not to insist on Amendment No. 110.
On Question, That the House do not insist on their Amendment No. 110 to which the Commons have disagreed for their reason numbered 110A but do propose Amendment No. 110B in lieu thereof?