I remind the Committee that with this we are taking the following amendments: No. 14, in page 3, line 38, leave out `must'.
No. 15, in page 3, line 39, after `(a)', insert `must'.
No. 9, in page 3, line 40, after `(b)', insert `may'.
No. 10, in page 3, line 40, after `pay', insert `a sum not exceeding'.
I understand that I tempted fate by daring to suggest that the Committee had made rapid progress during its first sitting on Tuesday. As a result, our proceedings have slowed down a little. However, I am sure that we can remedy that this afternoon.
I welcome you back to the Chair, Mr. Gale. You will be unaware that with you has come a slight increase in the temperature of the Room, which has made it more comfortable. I do not know whether that is a coincidence or whether it is the warm glow that you bring to our proceedings.
At the end of our sitting this morning, I was responding to a wide-ranging debate on the first set of amendments to clause 6. I was stopping up the holes down which Opposition Members were diving in order to move away from the consequences of the amendments. I shall continue stopping up the first hole, which was that such a draconian and unfair proposal was invented by the Labour Government without any precedent having been set for it. That is incorrect. A precedent was set by the Conservative Administration that Opposition Members supported.
Under the Drug Trafficking Offences Act 1986, the Crown court had to hold a confiscation hearing in each case in which a convicted drug trafficker appeared before it for sentence. However, assumptions were discretionary. That regime gave rise to many confiscation orders for small amounts. In the interests of the better targeting of resources, the Criminal Justice Act 1993 changed the scheme to make a confiscation hearing for drug trafficking mandatory on the application of the prosecutor, and made the assumptions mandatory, too. The changes were brought into force under the Drug Trafficking Act 1994, which remains in force.
For non-drug crime, confiscation hearings under the Criminal Justice Act 1988 have always been held on the application of the prosecutor. The 1988 Act originally gave the court the discretion to confiscate benefits from the offences of which the person was convicted in the current proceedings, and to take them into consideration for sentencing purposes. There were no assumptions. The Proceeds of Crime Act 1995 amended the 1988 Act to require the court to confiscate the proceeds of offences on the charge sheet, and it gave the court discretionary assumptions.
The principle underlying mandatory confiscation hearings is simple. The hon. Member for Beaconsfield (Mr. Grieve) must explain his justification for wanting to give the court the discretion to allow criminals to keep the proceeds of their crimes. In practical terms, a discretionary regime would without doubt significantly reduce the amounts that would be confiscated.
The Minister answered his own question—or at least part of it—as he read out the history of how such a power has developed. As he spoke about earlier legislation, it became clear that confiscation followed upon conviction. There was no need to make assumptions. I refer to a person who had just been convicted of a drug trafficking offence, when the assets that had been identified during the hearing as relating to that offence were seized. Does not the Minister realise the difference between that and what is being set up under the Bill—a system for the generalised seizure of assets, including those that may be unrelated to the criminal offence that has been committed? That is why—I repeat myself—judicial discretion might be valuable in such a case. We see the wider scope of the provisions that we will establish. I would not have a dispute with the Minister if the powers focussed on a specific offence. I concede that there is a reference to circumstances in the Bill—
We have gone over the fact that the hon. Gentleman's amendments apply to more than assumptions. They apply to the whole confiscation regime and would make that regime discretionary, whereas it was systematically mandatory under the previous Conservative Government. If that is not evidence that a person is attempting to be soft on crime and soft on the proceeds of crime—to paraphrase others—I do not know what is.
May I suggest that the hon. Member for Beaconsfield has a vested interest in the matter? I mentioned the nefarious past of the hon. Gentleman and his relatives. He is worried about the retention of the proceeds of crime. I quote a further extract from his maiden speech. He said:
``by the middle of the 18th century, my family had graduated from being cattle and sheep thieves to being prosperous farmers''.—[Official Report, 21 May 1997; Vol. 294, c. 789.]
That was easy, as they had a unique acquisitions policy, which could best be described as robust. Of course the hon. Gentleman is interested in allowing people to keep the proceeds of crime; otherwise he might be in a cardboard box.
My hon. Friend has done some research, which I shall not follow up because you, Mr. Gale, might be less kind to me than to him.
A further inference from the hon. Gentleman's comments about our proposals compared with those of previous Governments is that the earlier provisions were narrower and dealt with specific areas of crime, such as drugs and drug traffickers. However, we are casting the net wider and, consequently, he says that a different set of criteria should apply. I cannot prove that, but I return to what the then Home Secretary said on Second Reading of the Drug Trafficking Offences Bill in 1986. He discussed the massive problems of drugs and drug trafficking, and associated matters facing the country, and said:
``Those matters are urgent and imperative—and they stand at the top of our list of legislative priorities. Accordingly, the Bill deals only with drug trafficking offences and not with other profitable types of crime. There is, of course, a case for making corresponding provisions for other sorts of crime. Several hon. Members have already suggested to me that this Bill should do so. The 1984 report of the Howard League committee, chaired by Mr. Justice Hodgson, to which we are indebted for many of the ideas in the Bill, made recommendations''—[Official Report, 21 January 1986; Vol. 90, c. 242.] that it believed should be generally applied. The then Home Secretary added that we should return to such matters after dealing with the urgent problem of drugs.
That happened a long time ago, although the problem of drugs is still with us, and is, if anything, larger than it was in 1986. I cannot prove that if the then Home Secretary had done what he said he would and considered broader crime, he would not have said that everything should be discretionary because the power went far wider. There is clear evidence that the previous Administration not only considered the matter and set up a committee to examine it but intended to use such a power—or said that they intended to use such a power—far more widely than for the sort of crimes for which they did use it, and, because of problems subsequently encountered, went on to make confiscation mandatory. The allegations of the hon. Member for Beaconsfield that we plucked the measure off the shelf, and that it is appallingly draconian and has no precedent, simply do not hold water.
We return to the point that, as I recollect—1986 is a long time ago—under the regime of the Drug Trafficking Act 1994, the seizure of assets arising from a conviction for a drug trafficking offence involved seizing assets that were said to relate to or arise out of drug trafficking. Of course that could be extended to other offences, but surely the Minister understands that that is not our objective in this case.
By virtue of a trigger of a criminal conviction that can be very slight, assets of every description will be seized within a six-year preceding period and assumed to result from generalised, rather than specific, crime, unless the defendant in such circumstances can rebut. The matter is much wider not only in the sense of the nature of the offence but given the fact that the offence and the confiscation are not directly related.
The hon. Gentleman ignores the fact that in that debate the then Home Secretary said that we should consider the idea with regard to other sorts of profitable crime, and the then Conservative Government set up the committee. The committee's recommendations, which the then Home Secretary praised during his speech, do not relate to drugs alone. The committee set up and run under the auspices of the Howard League proposed wide-ranging confiscation procedures for profitable crime, as an alternative to prison. The hon. Gentleman suggests that at the time it was considering nothing but drugs, which is not true.
I do not want a misunderstanding to arise, and the Minister and other Labour Members to gain the impression that my hon. Friend and I, and other Opposition Members, in particular the hon. Member for Orkney and Shetland, who supports us on the matter, are trying to slash the heart out of the Bill. If the Minister retains his current office when the Bill is enacted, and if it is enacted in its current form, what will he say when a Labour Member, whether someone who served on this Committee or anyone else, tells him that a constituent has just had his entire assets and everything that he has transacted over the past six years taken away, which he believes to be an injustice, because his constituent is a law-abiding person? What will the Minister say when he encounters the first consequence of the powers being incorrectly used because they are too draconian?
Order. I will not tolerate private conversations in any quarter of the Room. If hon. Members want to have private conversations, they should do so outside. I thought that I had made that plain on Tuesday.
Thank you, Mr. Gale.
I am sure that when we discuss those other issues we shall explore in some detail whether what the hon. Gentleman suggests will happen.
The amendments would remove mandatory confiscation in its entirety. The genuine issue that has been raised is that confiscation should not take place when it would be ``pointless or unfair''—to use the hon. Gentleman's words—or give rise to injustice. The confiscation procedures will be used in two instances. They involve an assumption being made about a criminal lifestyle and a particular crime, and I cannot envisage circumstances in which it is pointless to confiscate the proceeds of a particular crime for which someone has just been convicted. Our conversation about shoplifters made my opinion on the matter clear. As for whether the use of the assumptions criteria might give rise to injustice or be pointless or unfair, we have made the provision that the assumptions criteria should not be used where it is pointless to use them, and where there are no proceeds of crime to be recovered; nor should they be used when that would give rise to injustice or be unfair.
Before Opposition Members respond on the subject of the amendment, I must say that I wonder about their motives. They raised the issue of the tachograph, although it was the hon. Member for Orkney and Shetland (Mr. Carmichael) who raised the issue of the shoplifter. I wonder how long it took Opposition Members to alight on an instance that allowed them to wrap a blue collar around someone's neck. Are they worried about white-collar crime? Do they worry that effective action will be taken against white-collar criminals, and the profits of their criminal activities will be taken away? I hope that I am wrong, but I have suspicions about how long it took Opposition Members to find that example.
The Minister is kind to give way to me again. Once my hon. Friend the Member for Beaconsfield and I looked at the provisions, it took five seconds for us to come up with the same offence—which the Minister characterises as a blue-collar one—as an example. This is an honest response; it was the first example that occurred to us when we looked at the provisions. Inevitably, because of our experiences of over-draconian powers, we look for ways in which the Government may have got it wrong, despite their understandable intentions.
I am pleased about that, and will remain less cynical about the hon. Gentleman's motives than some of my hon. Friends on the Back Benches are.
As for Scotland, I must explain why we first made the proposals as they were originally, and now propose to pull Scotland into line with England and Wales. We made that decision in consultation with the Scottish Executive. There is no history of mandatory confiscation north of the border—although the hon. Member for Orkney and Shetland is more of an expert than I am on the subject—but there is a long history of mandatory confiscation in England and Wales.
My hon. Friend the Minister of State, Scotland Office, made the point in an intervention that Scotland does not perceive that it has a problem as great as that perceived in England. Confiscation has been used more satisfactorily and more widely in Scotland than in England. The other reason for our original stance was that the Scots were less concerned than we were about inconsistencies in the way in which the courts dealt with those issues, because Scottish courts have a smaller jurisdiction and so have not had anything like the number of problems that we have had. For those reasons, the Scottish Executive said in consultations that there was no need for mandatory confiscation in Scotland.
The Scottish Executive are still less concerned than we are about inconsistencies, but they are taking on board some of the issues raised on Second Reading. We have tried to respond not only to my hon. Friends on the Back Benches, but to the method that the Opposition majored on. We did not want to create problems by having one system north of the border and another system south of the border. When my hon. Friend the Minister of State, Scotland Office responded to the Scottish Executive, they accepted that although they do not have a problem as great as ours, a discrepancy between what happens north and south of the border could cause difficulty. Since the Executive have no massive point of principle about mandatory confiscation, they are happy to close that loophole. That is the reason for the proposed change. There is no double-dyed methodology, and no one was put in a headlock, as was suggested by the hon. Member for Beaconsfield—I am far too new in the job to be able to do that. I ask the hon. Member for Beaconsfield to accept what I have said.
I was not suggesting that the Minister put a headlock on the Scottish Executive—although some of his colleagues might have done that.
I was struck by the Minister's remark that Scotland's discretionary regime has not caused problems with regard to the administration of justice. As I believe in civil liberties, that seems to me a good reason for importing the Scottish system to England, which has a mandatory system.
I would agree with the hon. Gentleman if I thought that the Scottish system was more effective because it was discretionary—or if Scottish Members told me that that was the case. However, I do not think that confiscation has been used more extensively in Scotland because its system is discretionary rather than mandatory—and neither, I suspect, does the hon. Gentleman, so his argument is merely a good debating point.
There is no need to get excited about the matter under discussion, as the Scottish Executive is allowed to change its mind—and someone has already said that it is also allowed to change its leader.
The hon. Member for Beaconsfield has made a good point. The Minister should reflect on the Hansard account of what he has said, because he was right to tell the Committee that the system works well north of the border. Why, therefore, can it not be kept? So far as I am aware, discretion has never been exercised to refuse the making of a confiscation order. The Minister of State can correct me if I am wrong.
If the Lord Advocate, or the officers of the Scottish Executive whom the Government consulted, thought that the hon. Gentleman was right, we would have received a different answer from them. They said that they did not object to the system being made mandatory. They would not have responded in that way if they felt that the discretionary nature of the Scottish system was what made it work, because they would not be willing to replace a system that worked with one that did not. That system works because of the history of the Scottish judiciary and legal system, and because of the small size of the judiciary and the way in which it operates.
I do not have the ability to read the mind of the Scottish Executive, but I believe that a significant reason why it was persuaded of the case for change was the need for uniformity of provision. I remind the Committee that it is discussing a review that has not yet reached a conclusion. It should first discuss the principle of whether there should be discretion, as the question of its wider application will flow out of that.
The hon. Gentleman has correctly stated one of the reasons why the Scottish Executive was persuaded of the case for change. However, he should reflect on the fact that it also went down that road because it shared the Government's desire to send a clear signal to the criminal fraternity that it was unacceptable for people to keep the proceeds of their crimes.
The Minister is in danger of praising the Scottish legal system too highly simply because it is less ineffective than the English system. That does not mean that it is incapable of improvement. A substantial body of opinion in Scotland recognises that it has done better than England in terms of the seizure of assets, but has not done well enough. The guidance to judges has been inadequate, because the pattern of decisions by judges in Scotland has varied considerably. Many of the political leaders in Scotland have shown too much deference to professional legal opinion, because in a small society such as Scotland many of the relationships are too cosy, and challenging the legal profession in Scotland is not done lightly.
It would be a foul slander to suggest that the Minister of State had placed the Scottish Executive in a headlock. None of us would use such a technique—although I understand that a supply of trouser locks is being moved north for use in the future.
I have no idea what my hon. Friend means by that.
Scottish Members would know far better than I whether the judiciary north of the border is closer to the communities that it represents than the judiciary south of the border. If so, perhaps that is why it has been successful. I do not know whether that is so, and I would not make such an allegation about the judiciary in England and Wales.
Every one of the amendments, including amendment No. 8, would weaken the current ability to confiscate the proceeds of many categories of crime. I am astonished that hon. Gentlemen have tabled such amendments in anything other than a probing manner. The hon. Member for Beaconsfield trailed his coat towards probing halfway through his explanation of the amendments, and I certainly hope that they are probing. Having explored the amendments, I ask him to withdraw them. If he does not do so, I ask my hon. Friends to reject them.
The longer the debate has continued, and the more I have listened to the Minister, the more concerned I have become. The amendments partly reflected the Opposition's anxieties about the civil liberties angle. However, they are certainly not articles of faith. What I find most troubling is the way in which the Minister seems to have latched on to the mandatory nature of the clause as an article of faith, and insisted that we should all sign up in blood or be consigned to perpetual damnation. Apart from anything else, I have never viewed it as an ``either/or'' matter. I simply pointed out to the Minister that the Scottish system, which worked as a discretionary system in the past, shows no sign whatever of having been less effective in relation to the specific offences at which it was targeted than the mandatory English system.
I claim no great knowledge of Scottish law, but I am aware that before devolution, there was much complaint in this House that the nature of legislation passing through this House meant that Scottish legislation and law reform was often put on the back burner, and did not get the attention that it deserved. Therefore, many areas of Scots law were not legislated on as was needed. That has now been remedied. However, the irony is that, especially in respect of the criminal justice system, Scotland has probably been spared some of the more draconian, authoritarian knee-jerk reactions—I confess that both parties, when in government, have been responsible for them—that have arisen in response to the continuous rise in the crime rate in this country over a long period. Over the years, that has not, unfortunately, resulted in reducing the crime rate a great deal, but only in eroding the kinds of civil liberties that would have been taken for granted by our forefathers, who would be turning in their graves if they could contemplate such a piece of legislation.
The hon. Gentleman should not ask my party to share the blame for meddling in that regard. All the subsequent changes that made it mandatory were made by the hon. Gentleman's party.
I am not sure that I agree with that. In the past three years, the Government have enacted plenty of criminal justice legislation that has made me raise my eyebrows. I do not know about past Conservative Governments, but it seems that the Government have not learned much of a lesson, to judge by how they are tackling the issue. It may be a sign of a gradually ageing Government: there is the sense of a wall being built, and the inability to engage in sensible dialogue.
Amendment No. 8 is designed to mirror and, as far as possible, put in place a system similar to that in Scotland. As we are widening the scope of confiscation orders, and in view of what the Minister acknowledged about how past Scottish regimes have worked, the amendment would be a useful safeguard with hardly any downside. It should therefore be considered.
I do not agree. What is so interesting about the debate is that the Bill has been elevated into an article of faith. It is not a matter of how effectively it is implemented. Apparently, what is of primary importance is the signal that the Government are sending out to miscreants. It is like having a public execution rather than a private one. The Minister wants the proposal to be a testament, a statement to which people must adhere, and that is where I part company with him. My view is that the measure will work if it works, regardless of the wording. We shall come in a moment to wording that I find absurd. It is part of the slightly populist element that has crept into what should be a carefully reasoned measure.
I hear the arch-populist on the Back Bench who is probably proud of it. One reason why I was elected to the House was to stand up for the rights of the individual. The amendment would do that in a way that does not detract from the thrust of the Bill which, as I said earlier, we are happy to support.
In view of what transpired in the debate I shall divide the Committee, as our views should be sought on the key amendment.
Question put, That the amendment be made:—
The Committee divided: Ayes 7, Noes 13.
I beg to move amendment No. 23, in page 3, leave out lines 22 to 26.
Flushed with the success of that moral victory—
Funnily enough, yes. As a Scottish football supporter and a Liberal Democrat, what else would I be expected to say?
That question is not only irrelevant but could prejudice my future political prospects, so I shall not answer it.
At the risk of finding myself hauled before the professional standards committee of the Law Society of Scotland, I shall be fairly brief in moving this amendment. When I was elected to the House I thought that my days of sitting listening to counsel going on and on and on were over, but I had a feeling of de''ja vu at times this morning.
The amendment would greatly limit the scope of the clause. I do not know the basis on which the Conservative spokesmen have signed up to it, but certainly in view of our extensive discussions on the previous amendments, particularly amendment No. 8, I offer it in a fairly robust probing manner. It is incumbent on the Minister to explain to the Committee exactly why such a wide range of criminal offences needs to be brought under the ambit of the confiscation provisions. Some of them have been referred to already: my example of an habitual shoplifter and, dare I say it, the tachograph in health and safety offences. Those are all legitimate public concerns.
If such a prescriptive approach is to be taken towards the court's discretion, or lack of it, the amendment is worthy of careful consideration as a means of strengthening the Bill. I say that advisedly, because if we proceed to stop up all the holes, as the Minister put it, there is a danger that the Bill will be seen by a wide range of people in society—those concerned with civil liberties and others—as being so draconian that it will be a significant threat to individual liberties. By effectively setting the balance more in favour of serious offences, rather than the full wide range of offences, there is a much stronger case for defending the wide range of measures that can be brought to bear on the individuals finding themselves the subject of the confiscation procedures.
Finally, I offer one practical consideration. The full range of offences that could trigger the confiscation procedures here is enormous. Any assets recovery agency or unit of the Crown Office in Scotland could be overwhelmed by the sheer variety of offences and cases that they may have to prosecute. I have not been particularly taken by the analogy with the Child Support Agency, but one of the big difficulties that the CSA encountered in its early days was the sheer volume of work that it was burdened with.
The hon. Gentleman is making a compelling case, which I hope that the Minister, his advisers and members of the Committee will take on board. He has come to the similarities between this new agency and the CSA. Does he agree that one of the problems that we found as parliamentarians when the CSA was introduced was that the Government—a Government of my party—had not anticipated the sheer volume of work that it would have? It was not just that huge volume, but that no one had expected it.
That is a perfectly legitimate point. I offer the amendment in the spirit of trying to strengthen the provision, and the early days are always the most important. If we create a new agency that must find its own way and set up its own procedures, it may be simply overwhelmed. That would risk dealing a fairly serious blow to the agency's credibility in the early days, which would be a great pity. Once the credibility of a public agency is affected as that of the Child Support Agency was, it is difficult ever to recover lost ground. I therefore invite the Committee to consider the amendment.
We support the amendment's intention. The issue may call for a momentary examination not only of the amendment but of the relationship between clauses 6 and 70.
The amendment would restrict the operation of the clause to persons who are convicted of offences in the Crown court. I suspect that anyone outside Parliament who is looking into the matter will have assumed that the people pursued under the confiscation mechanism will be serious criminals who should have gone to the Crown court in the first place, not petty criminals, as the hon. Member for Orkney and Shetland said.
The matter is even more odd. If confiscation were the only method of recovering criminals' assets, I would accept that there might be an argument according to what was described on Second Reading as the Al Capone principle—
Having heard the name of my constituency pronounced Beeconsfield rather than Beckonsfield, I must tell the hon. Gentleman that when I was a spokesman on Scotland, I was taken to task for my inability, certainly initially, to pronounce a variety of constituency names from north of the border. We shall talk about the Al Capone'' clause if it pleases him—and leave the Hansard staff to work out how to deal with the nuances.
Clearly, if confiscation under part 2 were the only method available for recovering criminals' assets, I could see an argument for the criminal who has fallen foul of some minute piece of legislation but whom everyone knows is Mr. Big being taken to the cleaners through that process. There would be a compelling argument for the Minister to say that the confiscation provision should be drawn so wide. However, as we shall find during later consideration of the Bill, there is an alternative method for recovering the assets of people suspected of crime, wrongdoing and the accumulation of unlawfully gained money: the civil procedure. The argument does not have much force, because an alternative exists.
I am troubled because, as we have discussed, the confiscation route is a draconian procedure. It is heavily weighted in favour of the director or prosecutor who decides to undertake it, on the basis that, after an individual has been convicted of a linked offence, it is right and proper that the usual protections of the burden of proof should be substantially reduced and transferred on to him to enable confiscation to take place.
However, the clause is so wide that it extends, admittedly at the magistrate's discretion, to virtually every criminal offence in the book where a benefit can be shown to have accrued to the person concerned. I do not know how the Minister envisages the legislation's implementation. Is it his view that the habitual and chaotic shoplifter, rightly alluded to by the hon. Member for Orkney and Shetland, should be taken through this process to have his probably derisory assets—perhaps what is left over from spending on his drug habit—removed, so that the battered old settee in the living room will be carted off, or is the provision targeted only at those who can be identified as having what a sensible outsider would view as substantial assets: a motor vehicle, a house or a bank account containing several thousands of pounds? If the latter, extending the confiscatory mechanism so widely to petty offences is pointless and will have practical consequences, one being the transfer of what should be a magistrates court case into the Crown court.
I am aware that the Government are considering various proposals for the reform of the criminal justice system. At present, magistrates courts handle a substantial burden of this country's crime. Clauses 70 and 71 suggest that the Crown courts will have a massive burden placed on them to sentence offenders for the most minute of offences if the prosecutor has decided that matters should be transferred there in respect of the asset position.
I look to the Minister for guidance. As he knows from Second Reading, I am troubled about clause 75, which allows the Secretary of State to specify a range of offences in relation to the assumption process. That also ties in with the great unfettered power conferred by the Bill. The amendments have much to commend them. What category of person do the provisions target?
Yes, but criminals come in all shapes and forms. There are not only chaotic shoplifters but, as I said on Second Reading, middle-aged shoplifters perhaps undergoing a nervous breakdown, which is not uncommon. Such people could fall within the provisions, but it is cryingly obvious that although they may have been convicted of an offence, its surrounding circumstances do not warrant any confiscation.
The Minister will say that the prosecutor and the director can exercise discretion and that if it is a summary only offence, the magistrates themselves can exercise discretion. The Minister will tell me if I am wrong. Under clause 70(2)(b), however, the magistrates court
``may commit him to the Crown Court in respect of any other offence falling within subsection (3)''.
I may have misunderstood it and the prosecutor could ask for committal to the Crown court irrespective of whether it is a summary only offence. Will the Minister clarify that? I noticed his look. If I have misunderstood it, the provisions are even wider than I had appreciated.
The Minister must focus on who exactly the provisions are aimed at. The Bill will not terrorise or deter the chaotic small-scale criminal. The deterrence will work on those tempted to carry out criminal conduct for gain because their gains can be latched on to for confiscation. The chaotic criminal would already have got rid of the proceeds of crime, long before he is brought to court, arrested or investigated.
With an eye to later debates, I should like to tell my hon. Friend that as soon as he mentioned criminals taking part in offences for gain, both Ministers started nodding vigorously. It was important to note that, in case my hon. Friend had not spotted it.
Will the hon. Gentleman advise the hon. Member for Surrey Heath (Mr. Hawkins) that when he looks at whether my head is nodding, he should also look at whether my eyes are open or closed?
I will follow the points made by the hon. Member for Orkney and Shetland on chaotic lifestyles. As I promised this morning, I have reflected—not repented—and I have some sympathy for people with chaotic lifestyles, because there are many in my constituency. Also, I have always believed that a tidy office is the sign of a sick mind.
I refer the hon. Gentleman to clause 8(2)(b), which seems to allow the court to select a nominal amount. The court will have discretion on how much it seeks to recover. Even when the amount of stolen money or property is not available, it can still make a charge, even if it is nominal. If I understood him correctly, that covers his point. On methods, does the Minister believe that there is anything in the fine collection system from which lessons can be learned? The National Audit Office and others are examining the fine collection system to see whether improvements could be made, so perhaps that could be applied to our circumstances. That might be helpful.
Finally, I now have a greater understanding of the difference between the Liberals and Conservatives. Earlier today, the Conservatives spoke to us in Latin and the Liberals spoke in French. Deja vu, as I understand it, is a house with an outlook across a deja. We have no dejas in Pollok, but clearly they are common in Orkney and Shetland.
It is important to recognise that the process is initiated by the prosecutor in a magistrates court. That prosecutor will examine the particular individual with whom he is dealing and then make a considered decision about whether the case is appropriate for committal to a Crown court for a confiscation order. It is unlikely that the prosecuting authorities would create a situation in which a vast number of cases are committed to the Crown court. The measure is appropriate because a relatively minor offence—although six months' imprisonment is a serious punishment, and is dispensed regularly by magistrates courts—may be committed by an individual who has committed a long series of offences over a substantial period and secured considerable criminal benefits.
The amendment would prevent a Crown court from making a confiscation order of any kind after a conviction in a magistrates court. Its effect would not be confined to preventing the use of the assumptions procedure for such a conviction. The Bill allows the Crown court to make a confiscation order when a person is committed by a magistrates court for sentence or committed for confiscation on the request of the prosecutor. If the amendment was accepted, the Crown court could make a confiscation order only where it had convicted a person for one or more indictable offences.
It would be helpful if I explained the important background to the clause. The issues are important because they reverberate through the Bill. As some members of the Committee will know, modern confiscation in this country began with the Hodgson report of 1984 on the proceeds of crime and their recovery. That committee operated under the auspices of the Howard League and its recommendations were given serious consideration by the Government of the day. It is worth recalling what that committee considered should be the scope of the confiscation power.
The committee obviously took account of serious crimes such as drug trafficking and other offences involving serious dishonesty or trading in prohibited goods. However, it was also particularly exercised about
``contraventions of regulations that involve little or no public obloquy but where the profits made from the offence far outweigh, in many cases, any penalty exacted.''
The report considered whether it would be possible to limit confiscation to serious crime but the committee rejected this view. It considered that a restriction to serious crime would exclude many profitable regulatory offences that it thought should be included. It went on to say that a consequence of its thinking was that the magistrates court should be able to commit cases for confiscation where the offence could at that time be tried only summarily.
Criminal confiscation of the proceeds of non-drug crime has always covered the proceeds of some purely summary offences. The Criminal Justice Act 1988 empowers the magistrates court to make a confiscation order following conviction for an offence specified in schedule 4 of the Act, including certain purely summary offences, and there is a power to add others to the schedule. The Government believe that a decision to move away from the coverage of summary offences would be a negative and retrograde step.
I find unacceptable in principle the exclusion from confiscation of any class of criminal conduct. Apart from the practical possibility of significant proceeds being derived from some summary offences, that would be tantamount to saying that we have no objection to offenders retaining the proceeds of their crimes.
I understand the Minister's argument. Will he reflect on the fact that all hon. Members who have had dealings with drug-ridden estates, whether as Members of Parliament, legally qualified people or in whatever role, know that three levels of people are broadly involved? First, there are the Mr. Bigs, who are almost never addicted themselves. Secondly, there are many people who, while themselves addicts, could also be prosecuted as drug traffickers because they are involved in the business as a way of funding their drug habit. Lastly, there are the pure addicts—the pure victims. Cannot the Minister understand that people who may have had only minor convictions for dishonesty and who have the kind of confused lifestyles that we are discussing may stand at risk of having their entire assets taken away under the Bill?
The hon. Gentleman must reflect on the words that he just used: ``stand at risk''. Surely he would accept that crime is massively interlinked. Traffickers of drugs do not confine themselves to trafficking drugs. Serious drug traffickers are not involved because they have a chaotic lifestyle or because they are paying for their own habit. They are in it for profit, and they turn their mind to any possible illegal profit. Evidence shows that they drift in and out of other types of criminality. The motive for the kind of people that we are after is profit.
I understand that the Minister is saying that we are after the Mr. Bigs. Much of the debate on Second Reading consisted of hon. Members, particularly from the Government Back Benches, saying that we are only interested in the Mr. Bigs, and that the Bill will deal with such people. However, the point that we constantly make—the hon. Member for Orkney and Shetland also made it—is that the wording of the Bill is vastly wider than that. The Minister has not convinced us that his draft of the Bill is specifically targeted at the Mr. Bigs and does not include other people. Parliament should not run the risk of catching a huge number of other people in the net as a result of the law of unintended consequences, just to catch the Mr. Bigs. That is bad law.
And the hon. Gentleman should reflect on the fact that, if we effectively limit the target to the Mr. Bigs, who are not stupid, they will find a way around the measures. Effectively, we would not target them at all. Yes, we must consider whether we might end up roping in people whom we did not intend to rope in, and swamping the system in the way that the Child Support Agency was swamped, with all the resulting problems, but we also have to consider whether providing loopholes means that people continually get away with retaining the proceeds of crime. There are two sides to the coin. I ask the hon. Gentleman to accept that we have thought seriously about how the legislation will be used and whether it should provide loopholes.
I find the idea of exclusion from confiscation of any class of criminal conduct unacceptable. Apart from the practical benefit of significant proceeds being derived from some summary offences, it would be tantamount to saying that we have no objection to offenders retaining the proceeds of their crimes. If conduct constitutes a criminal offence, which summary conduct does, the proceeds of it should be liable to confiscation.
Summary offences such as the possession of video recordings of unclassified work for the purposes of supply, the use of unlicensed premises for exhibitions that require a licence, and offences relating to sex establishments are capable of generating substantial proceeds, and we see no reason why the court should be prevented from confiscating them. Indeed, it is not prevented now from confiscating such proceeds, so we are not throwing the net wider. I ask the hon. Gentleman to consider the schedule under the Criminal Justice Act 1988, in which numerous summary offences are identified as being capable of attracting confiscation procedures.
We must also bear it in mind that the amendment does not deal with summary offences only but with any issue raised in a magistrates court. Loopholes would affect not only confiscation for summary offences that could attract considerable amounts of profit but far more. If a defendant pleads guilty or is convicted in a magistrates court, the magistrates court can send the defendant to be sentenced in the Crown court if it considers that its sentencing powers are not sufficient because of the seriousness of the offence or the need to protect the public from harm. However, as the law is structured, the magistrate will not be able to take into account the possibility of confiscation when it decides whether to refer the matter to the Crown court. If we accept the hon. Gentleman's amendment, it would allow people to plead guilty in certain circumstances—there are people who would be prepared to do that—and the magistrate will not be able to take into account, when he is deciding whether the crime is serious enough to be referred to the Crown court, the fact that considerable proceeds of crime could be confiscated. Lawyers who represent those people will almost have a duty to exploit that situation.
As I have said, there is an entire schedule of summary offences that attract confiscation under the Criminal Justice Act 1988. The hon. Gentleman may be able to imagine some of them: offences under the Copyright, Design and Patents Act 1988; criminal liability for making and dealing with infringing articles; criminal liability for making and dealing with used illicit recordings; offences related to the unauthorised use of trade marks; and offences relating to the operation of sex establishments. Currently, all those summary offences can result in confiscation of the proceeds of crime. If the amendment were accepted, they would no longer do so. Magistrates can also decide that the offence should be referred to the Crown court, but they will not be able to take into account the possibility of confiscation.
I want to make ensure that the hon. Gentleman understands that the prosecutor does not have the discretion to apply for confiscation. We are not talking about the magistrate's discretion. Before we discuss clause 70, we intend to provide the Committee with details of those offences and related issues.
We need to ensure that the system is not swamped, that the people targeted are those who have committed crimes that have clearly resulted in gain, and that the prosecutor does not have to apply for confiscation. Why would he or she have to do so when, as hon. Members have rightly said, other aspects of criminal law are available? The magistrate and the Crown court can sentence, and fine, the person. Why would the prosecutor go down the road of drawing up a confiscation order?
We all recognise that, even though in this country we are largely, and rightly, proud of our criminal justice system, not all prosecutors are perfect and not all decisions are absolutely right. Members on both sides of the Committee have been involved in cases in their professional lives that have involved substantial injustice. Perhaps with the best of motives, prosecutors sometimes make mistakes. Our concern is to try to ensure that the Bill is good law for the reasons that we have set out. I hope that the Minister accepts that there is a risk that the current draft risks mistakes being made by prosecutors.
I can only say that we are talking about people who have been found guilty. Yes, the prosecutor has the discretion to decide whether to go for confiscation. Prosecuting agencies will get involved in cases of very serious offences in which there are considerable proceeds to be confiscated, and where the usual prosecutors do not believe that they have the ability, wherewithal or resources to pursue the matter.
The Government are satisfied that the Bill has the right approach to the issue. As confiscation can be a complex and unfamiliar procedure to the magistrates court, it gives the power to make confiscation orders to the Crown court, which is accustomed to using it. It also extends the scope of confiscation. Any offence that the defendant has benefited from can attract confiscation. We will no longer confine confiscation for summary offences to those listed in a schedule. Instead, the test applied will be the one that matters—did the offender benefit from his offence?
I hope that the Committee understands that making the amendments would be a retrograde step and I hope that they will not be pressed to a vote.
I listened to the Minister with a growing sense of foreboding. To hear him trumpet the use of confiscation orders in cases of licensing offences bodes ill for the future. My words about the agency being swamped may be sadly prophetic.
I am grateful to the hon. Member for Glasgow, Pollok (Mr. Davidson) for his reflections. Had he reflected more quickly, I might not have pressed the earlier clause to a Division. His point has force, but he is not quite out of the woods. Subsection (2)(a) states:
``But if the defendant shows that the available amount is less than the recoverable amount is''.
That places an onus on the defendant, which he might find difficult if he has a chaotic lifestyle. I made that point earlier so I will not pursue it further.
The Minister's point about loopholes may have force. To be candid, it had not occurred to me, and I am grateful to him for raising it. He should recognise some of the observations made—especially in the future when the agency is set up and guidelines are issued. We must be careful: we do not want to see the agency fail because it is overburdened.
The hon. Gentleman made a valuable point about swamping—or the lack of it. The mechanism is self-regulating because the Secretary of State will give directions to the director in his annual plan. The Secretary of State will, therefore, decide which categories are pursued, beginning with a relatively small number, then rolling more out as the system develops. Rather than starting with the maximum number that could be caught in the trawl, we could build up to it, which would be welcome.
That may be the case but, for every scenario, the opposite is equally possible. The hon. Gentleman may feel differently in other circumstances, as it depends on the Secretary of State or the Minister of the day, with whom he may not always sympathise politically. He is inviting the Committee to second-guess what will happen, which is not an effective way of legislating. We must consider the regulatory framework only in the broadest sense. However, I am not minded to pursue the matter. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
With this it will be convenient to take the following amendments: No. 12, in page 3, line 33, leave out `has a criminal lifestyle' and insert
`is an habitual criminal for gain'.
No. 13, in page 3, line 35, leave out
`does not have a criminal lifestyle' and insert
`is not an habitual criminal for gain'.
No. 16, in clause 11, page 5, line 36, leave out `has a criminal lifestyle' and insert
`is an habitual criminal for gain'.
No. 17, in clause 17, page 9, line 26, leave out `has a criminal lifestyle' and insert
`is an habitual criminal for gain'.
No. 18, in clause 17, page 9, line 30, leave out `has a criminal lifestyle' and insert
`is an habitual criminal for gain'.
No. 19, in clause 17, page 9, line 41, leave out `has a criminal lifestyle' and insert
`is an habitual criminal for gain'.
No. 20, in clause 21, page 12, line 31, leave out `has a criminal lifestyle' and insert
`is an habitual criminal for gain'.
No. 21, in clause 21, page 12, line 33, leave out
`does not have a criminal lifestyle'
`is not an habitual criminal for gain'.
No. 22, in clause 75, page 47, line 18, leave out `has a criminal lifestyle' and insert
`is an habitual criminal for gain'.
Let me say at the outset that the amendments are substantive. The Committee will realise that the later amendments in the group are consequential on the earlier ones. My hon. Friend the Member for Beaconsfield and I have been through the Bill and I hope that we have not missed any consequential amendments. We are the first to say that our proposals are not absolutely perfect and the Minister and other members of the Committee may say that our wording is not right. However, the matter to which I am about to refer is one of enormous substance. The Minister will have to concede that the Government are introducing a novel concept into English law.
The concept that the courts will be asked to assess whether a defendant has a criminal lifestyle is something with which we are not familiar. The fact that such a provision has not existed before does not automatically mean that it is wrong. I am not one of those lawyers or politicians who says that, because something is hallowed by precedent and tradition, it must automatically be defended to the hilt, but many of our traditions under English law and British democracy are valuable and have survived for a long time because they work.
The Government will have substantial problems not only because organisations such as Justice and Liberty have expressed considerable reservations about the new concept, but because when the Bill goes to another place it will be subjected to substantial and sustained attack by Law Lords and Cross-Bench peers, as well as Conservative and Liberal Democrat peers. The Government will have to think carefully about such matters because I think that a catch-all provision such as ``a criminal lifestyle'' has not been used in any other legislation, although I await to hear from Ministers whether there is such an example.
On a point of order, Mr. Gale. I seek your advice because I shall reply to the debate to give my hon. Friend the Under-Secretary a well-earned rest. Do you intend to relate the debate to the criteria under clause 75, in which case the debate would be wide-ranging, or will you merely confine it to the semantics of ``criminal lifestyle'' versus
``an habitual criminal for gain''?
If we are to deal only with the semantics, the debate will be narrow, but if we extend it to the criteria it will be more wide-ranging. To enable me to be ready to reply and to advise the hon. Gentleman, it would be helpful to know your intentions.
Further to that point of order, Mr. Gale. I know that you will have a firm view, but we are happy to confine the debate quite narrowly. However, I felt that I had to set the scene because one of the amendments relates to clause 75. When we discuss that clause, we will have tabled other amendments that will lead to a wider debate. At present, I propose to confine my remarks to narrower matters.
I am grateful to you, Mr. Gale. I am glad that I second-guessed your response to the Minister. I pay tribute to my hon. Friend the Member for Beaconsfield because the amendments took much thought over a weekend. They did not take us only five seconds. We both racked our brains to find a better and more accurate way of drafting them. My hon. Friend came up with the words:
``is an habitual criminal for gain''.
We decided that that was the best form of wording because we feel that this and the related clauses need to concentrate on a concept with which the courts are familiar: looking at people who have criminal records for the kind of offences that should properly bring them within the ambit of such a new agency.
That is perhaps a way in which I can respond to the charges, which the Minister and the hon. Member for Glasgow, Pollok were starting to make, that we wanted to rip the heart out of this Bill when we debated some of the early amendments. We are not seeking to do that. We are not opposing the whole Bill because there is a case for legislation to continue a battle that, as the Minister reminded us, was started under Conservative Administrations in the 1980s. In that regard, I am grateful to the Minister for quoting my noble Friend Lord Hurd of Westwell when he was Home Secretary. Although we are worried about certain parts of the Bill and their consequences, we are not trying to undermine the whole Bill—we genuinely think that the suggested wording will target more precisely the measures that the new agency, its director and his staff will try to use.
We are worried about introducing such a new concept—I speak with the support of organisations such as Justice and Liberty, which have sent us detailed briefings. Not only is it novel and alien to the common law but it has all kinds of dangers. It is a kind of subjective test, which courts will find difficult to use, whereas using the words that my hon. Friend the Member for Beaconsfield suggested—
``an habitual criminal for gain''— will make it much easier for the courts to identify whom are the proper targets for the new agency.
Obviously, Mr. Gale, I am anxious to abide by your earlier warning and ruling, and I do not want my comments to range too widely. However, if the hon. Gentleman considers the change under discussion, and the wider amendments that we have tabled to later parts of the Bill, and considers how they dovetail together, he will recognise that the rest of our amendments would not work without the suggested change of wording. I can see him nodding his assent to that, but I do not want to go into that wider debate because of your ruling, Mr. Gale.
Because of the system in Committee, which is a good one, we must table amendments when we first discuss clauses that raise the issue of the wording and the way in which the concept is used, which is now. There is fairly wide agreement among Liberal Democrats, Conservative Members and perhaps even the Minister that certain clauses form the nub of the Bill—clauses 6, 11, 70 and 75—and part 5 will also raise many issues. There will, of course, be debates on other clauses, but those provisions will provide the biggest area of debate. I see the Under-Secretary nodding his assent to that. Inevitably, unless we have a consistent approach to clause 6 and the related clauses, including clause 75, to which one amendment in the group refers, we cannot get to the other half of our argument.
I hope that I have raised the issue in a sufficiently narrow compass—to some extent, it is semantics—while setting it in a context. This is not a probing matter. I will be asking for support from my hon. Friends, other Opposition Members, and even from independently minded Labour Members—
I have had an opportunity, as we have been in Committee for a couple of days, to examine some of the backgrounds of Labour Members on the Committee. Some of the lawyers on the Government Benches have been involved privately—
My hon. Friend will be aware that the Government business managers will have been doing everything that they can to stop them talking, in order to make progress with the Bill.
My hon. Friend may be right in his observation. He may have observed more than I have. However, I know that a number of people have an independent mind: the hon. Member for Glasgow, Pollok in particular has shown that. One or two Labour Members who are distinguished lawyers have been involved with organisations such as Justice and Liberty before and since entering Parliament. They may well be persuaded by those organisations' views.
Order. I will be grateful if hon. Members will confine their interventions to matters under discussion. It is clear that any hon. Member who wishes to catch my eye is at liberty to do so.
I understand entirely my hon. Friend's point.
We regard the matters as substantial, although they are tightly drawn on the amendments. I will invite hon. Members to support the amendments, which are not merely probing because they relate to highly significant matters. We will return to related issues when considering later clauses, particularly clauses 70 and 75.
The Minister is right that the matter involves semantics. I hope that he will accept that I would encourage the Committee to alter the words even if I had not tabled any further amendments.
Words matter because the way in which we define things colours our view of people. If part 2 has a purpose, it can be defined using words from the amendment: targeting habitual criminals for gain. In contrast, the definition of a criminal lifestyle is about as wide as is possible. I encourage the Committee to consider the wording if it were slightly altered and suppose that, instead of referring to a criminal lifestyle, the Bill stated that the court must decide whether the defendant is a nasty piece of work. I do not think that there is any difference between the definitions of ``a nasty piece of work'' and ``a criminal lifestyle''.
The hon. Gentleman reminds me of two things. It is possible to have a criminal lifestyle without being a criminal. I could take up residence in one of the outer suburbs of London in a large property with substantial electric gates, which are especially seen in parts of the Essex fringe. I could acquire two rottweilers called Ronnie and Reggie and buy a 4x4 for my wife—I think that the Vitara is the one that they go for—and a Range Rover for myself. I could wear shades throughout the year and have rings on my fingers that include large sovereigns. I could have small tattoos on my knuckles that are indicative of my general outlook. If I did that, it might be said that I had adopted a criminal lifestyle. However, that does not mean that I would be a criminal.
I might well be a fashion victim, but that would not make me a criminal. Although the Bill has been carefully thought through, it contains a definition of criminality that might brand innocent people as criminals. I am concerned by that. We should not go down the road of that kind of branding identification; it will turn into a slippery slope that will lead to sloppy thinking about what we are trying to do, and who we are trying to do it to.
I agree, although that might be unintentional. I would like to know which member of the Home Office drafting department dreamed up the phrase ``criminal lifestyle''. It is a lovely term, but it is unfortunate and unnecessary, because it is possible to define more accurately the people we should be targeting.
I thought about that matter over the weekend, and I came up with the phrase in the amendment, which neatly and precisely encapsulates the people we wish to target. Does the Committee agree that it would be preferable to have that definition in the Bill, rather than the current definition, which will raise eyebrows because it will create a new, and unnecessary, category of hate figure?
I suggest that the hon. Gentleman has settled on that phrase because he is a lawyer, and that it would not connect with the people to whom the legislation is addressed. The phrase ``criminal lifestyle'' means a lifestyle that is pursued by a criminal. It would be understood as such by the public, and it is an appropriate way of deterring the people whom the Bill is intended to target.
I disagree with the hon. Gentleman. The phrase ``criminal lifestyle'' refers to people who have the outward appearance of criminality.
The point that I am raising is not merely an exercise in semantics. I understand the comments of the hon. Member for Glasgow, Pollok and others that the communities that they represent deeply resent people with the outward and visible signs of criminality. However, such people might not be criminals, and I dislike the Bill's branding identification, especially as it is unnecessary. The Bill deals with people who engage in criminality for gain: indeed, those who do not engage in it for gain are not covered by the trigger mechanisms that start the confiscation.
Does the hon. Gentleman agree that a criminal lifestyle is correctly defined with regard not to tattoos, cars or taste in clothes, but to the inability to prove that the money spent on such luxuries was earned legally?
I am troubled by that comment, because it is clear that the court's task is to decide whether people are habitual criminals for gain, rather than whether they have a criminal lifestyle. That is why it is important to be precise.
Another correct response to the previous intervention, as well as to a couple of earlier ones, is that while we all might want to improve legislation—I have been a parliamentary sponsor of the Plain English Campaign—we must remember that the courts will have to interpret the Bill's language in serious criminal cases. We must ensure that the laws that we give to judges and the director of the new agency are precise and fit the system in a workable way. That is the problem. We cannot use terminology that is familiar to the tabloid press unless it works in court.
I simply repeat that ``criminal lifestyle'' is defined in clause 75, so a definition of the phrase already exists. The phrase is not left as an abstract one, although the definition is flexible and can be changed by the Secretary of State to include new offences. However, I understand that those new offences will always be those committed by what I have termed
``an habitual criminal for gain''.
If that is the case, we should spell that out, rather than use what ultimately boils down to a term of opprobrium.
First, it is lawyers, not juries, who will have to interpret the legislation: the judge will determine its meaning. Secondly, the man on the street would apply common sense, and could say that someone had a criminal lifestyle even if there was no evidence that he or she was a criminal. That is why the definition is worrying.
I have listened to Labour Members' well-meaning but misguided remarks about whether the phrase is suitable for lawyers. The Committee must find a phrase that is watertight in law, otherwise the proverbial coach and horses will be driven through the Bill when it is enacted.
The Minister dissents, but we must be very careful on the issue if the Bill is to be effective. We must be precise. This is no time for woolly definitions or emotive phrases that might be found in the tabloids. It is right that the legal beavers of the Committee should get the phraseology correct. Even humbler sorts who are not lawyers, such as me—looking at the list of Committee members, I see that we are in the minority—
I, too, shall bring my remarks to a close. I recall watching the late Ronnie Barker many years ago performing in a television show in which he put on bovver boots and dungarees—[Hon. Members: ``He is still alive.''] I am sorry. He arranged himself so that he appeared to have a shaved cranium, and he sang a song called ``I've got bad habits'' about his way of life. I do not think that any criminal offence was mentioned in the song—he was simply an unpleasant character. It was extremely funny.
Many people have bad habits. An outsider might think that such people have a criminal lifestyle, but that does not mean that they would fall under the category defined in clause 75. The Committee would do well to have a definition that meets what is intended, rather than a loose definition. That is why I commend the amendment to the Committee.
No, my hon. Friend was not prepared to put that in writing, although she did nod, and is smiling as much as it is possible for her to do, or perhaps it is just a lollipop stick—but I digress.
In a contribution that managed to offend everyone in Essex and the producers of Range Rovers, the hon. Member for Beaconsfield mentioned a Vitara for the wife, which seems like a fair swap to me, but I suppose that it depends on the age of both. He offended Ronnie Barker. What I thought especially brutal, and took personally, was the reference to people with apparently shaved craniums. He did not make much of a point. The real question relates to the word that he has chosen, ``habitual''. To demonstrate habituality, if such a word exists, it is necessary to demonstrate a course of action, whereas the existing proposal seems to relate to a single offence, which triggers the whole business. I worry whether, with a host of verbiage, he is again trying to water down the Bill so as to make it clear that the person would have to be caught several times before he was done for the offence.
To reassure the hon. Gentleman, my hon. Friend the Member for Beaconsfield and I debated at some length how to redraft the clause. I pointed out earlier that we do not suggest that our wording is perfect. One of the options that we considered was the form of words
``criminal for gain having committed a serious offence or offences''.
That is a much longer phrase, but it would include the hon. Gentleman's singular. I hope that that reassures him that we were not trying to water down the provision.
The Minister laughs, but in Saturday's rugby the hon. Gentleman initially played on the right wing, and I played on the left—[Interruption.] No, in both halves I played on the same wing—the one nearer the sandwiches and the crowds. There was method in my madness.
The hon. Gentleman's comments about ``habitual'' are erroneous. How can a habitual course of action be involved if is intended to apply to a single incident only? Another word is necessary, and I am prepared to accept his withdrawal.
I want the hon. Gentleman to understand that it was difficult to find a phrase that did not last an entire paragraph in order to achieve our objective. One of the issues on which we had to decide in tabling our amendment—we obviously had to decide on one variant—was whether to incorporate wording that could encapsulate one offence or more than one offence. I understand his point entirely. If he can replace ``criminal lifestyle'' with something that achieves the same object in a short phrase that takes us away from that alien concept, we are certainly prepared to consider his redrafting.
As I understand it, ``men'' includes women. If the hon. Gentleman can suggest a form of words that encapsulates that, I should be happy to consider supporting it—if the Whip will allow me to be sufficiently independent.
The word ``habitual'' seems to include the assumption that a consistent, proven course of action is involved. The reality is that in the case of many of those whom we would wish to catch, we shall be lucky if we catch them at all. However, if we get them once, that is when a ton of bricks should fall on them.
I do not particularly like the expression ``habitual criminal for gain''. It is a particularly inelegant way of expressing it. However, I am persuaded on balance that it is probably preferable to ``criminal lifestyle'' and I would be the first to admit that I cannot come up with anything better.
We must be sympathetic to the people who drafted the Bill. They were trying to get at those who are obviously living on the proceeds of crime and are criminals. It is a noxious and unpleasant thing to witness. What about saying that this person is living off the proceeds of crime? What could be simpler than that?
I do not know that I can fault the hon. Gentleman. There is a serious point to me made here among the jokes about Essex and the rest. That is certainly worthy of consideration. I hope that the Minister will take it on board.
If we vote on the amendment at the end of the debate, I am minded to support the Conservatives. There is something rather nebulous about saying ``criminal lifestyle''. When seen in the fuller context of the Bill it reminds me of the good Scots phrase, ``I kent his faither'', with the implication that to say ``We just know you are a criminal'' is sufficient. Looking at some of the other provisions that bring within the ambit of the Bill people who have not been convicted in a criminal court, a phrase like a ``criminal lifestyle'' serves simply to reinforce that impression.
The point that the hon. Member for Beaconsfield made about this being something that will have to be interpreted by lawyers is a good one. The ``habitual criminal for gain'' is someone who would be easily recognisable by lawyers. It is an expression that would fit in better with the whole jurisprudence of legal interpretation, unless the Ministers are prepared to accept the suggestion made by the hon. Member for Henley (Mr. Johnson), which still seems attractive the more I think about it.
The use of the word ``habitual'' has been criticised. It appeared to me that there had to be a habitual nature to fall within clause 75, either because of the previous convictions or because the very nature of the offences themselves when single offences were more than a one-off event.
Yes, the hon. Gentleman makes a good point. When the hon. Member for Glasgow, Pollok raised his objection it occurred to me that the solution to his point could be put into clause 75. There are severe problems with the term ``criminal lifestyle''. I invite the Minister to think again and in the meantime I am prepared to support the Conservative amendment.
I can assure the hon. Member for Glasgow, Mollusc that I have never lived in Essex, owned a Range Rover or met Ronnie Barker, but I suppose I must plead guilty to having a criminal lifestyle because I am a Conservative Member of Parliament. I do not want to excite him. I just let him know that. I am not a lawyer, either, as will become blindingly obvious to the Committee as the days turn into weeks and the weeks into months. Occasionally when lawyers gather together what is needed is a spot of lay common sense from the man or woman on the Clapham omnibus—I do not live in Clapham either, so the hon. Member for Glasgow, Mollusc does not need to ask me that. However, the views of the man on the Clapham omnibus occasionally add something to this sort of debate.
It was said earlier that it would be useful if Opposition Members could learn as things went along, just as some Labour Back Benchers were doing when a note came from the Whip to change their minds. Although I am a co-signatory to the amendment, I am prepared to begin to change my mind because, as a non-lawyer, I see a distinction between the principle that we are trying to establish and the use of the words that we are trying to use to do so.
I listened to the debate with an open mind, and I am convinced that the wording in the Bill is wrong. I am prepared for the Government to say that they accept that the wording in the Bill as drafted is not good, but that they do not like our amendment and will come back with something different, for the following reasons. The hon. Member for Glasgow, Pollok suggested that an alternative could be ``a bad man'', but that phrase encapsulates what bothers me about the Bill as drafted: it reminds me of the good Samaritan. If a person does not cross the road but goes by on the other side, he is presumably, by definition, a bad Samaritan, but he has not committed a criminal act by refusing to help his fellow man. For that reason, the phrase ``a bad man'' does not encapsulate the principle of the Bill.
Another example that is relevant to the concept of a criminal lifestyle is of someone I know who has adopted a homeless lifestyle. He has no need to be homeless, but he lives with the people in cardboard boxes in London, to try to get alongside them, although he is not homeless. Using a phrase that includes the word ``lifestyle'' is therefore to miss our point.
I have no difficulty with what the Government are saying; they are rightly trying to get at people who live off the proceeds of crime. My hon. Friend the Member for Henley nearly ruined my point by saying what I was going to say, but far better than I could have done. I believe—I will be corrected if I am wrong—that the Government mean someone who is living a lifestyle that is provided by the use of funds gained from criminal activity. The important distinction is between lifestyle and action; lifestyles can be mocked or taken seriously but they should not be subject to the criticism of the rest of us or to action in the courts.
I hope it will not sound as if I am digressing when I say that many years ago I spent a long time researching religious cults. I grappled with what was good and bad, right and wrong, and with what should be condemned or allowed. Having spent two or three years on the project, it occurred to me that to try to attack, criticise or codify someone's lifestyle would never work, because it would infringe their civil liberties and take away their right to believe and to do things which do not harm anyone else.
I well remember my hon. Friend's sterling efforts about 10 years ago when the House was worried about children being brainwashed by various religious groups. My hon. Friend is coming to the important issue of negative stereotyping; my hon. Friend the Member for Beaconsfield effectively portrayed the stereotype of a person whom he described as having gold rings on his fingers. In such a debate, it is difficult not to appear patronising, divisive or socially stuck in one box. However, there are people—my hon. Friend should expand on this—who, when they achieve a certain level of substance, like to demonstrate that, and good luck to them. If people have made it in life, why should they not show that and drive round in a Ford Scorpio? I have a little Honda Civic, but I am not jealous.
I am grateful for my hon. Friend's kind words. I shall elaborate on the point but remain within the confines of the debate. Suffice it to say that spending two or three years trying to sort out the difference between the harm done by people and what they actually believed brought home to me the clear distinction between someone's lifestyle and their actions.
If the Government persist with the word ``lifestyle'' in the Bill, they will open up a hornets' nest of debate. I do not know whether lawyers will see the distinction, but the public will, and there will be concern about sloppy legislation or legislation that threatens people. The word ``lifestyle'' involves a person's beliefs, because their beliefs create their lifestyle. People may also argue about a person's values system, because that determines their lifestyle. Worse still, a debate may be opened up, and misunderstanding created, about a person's ethics. The good versus the bad is not the same as the criminal versus the non-criminal.
Legislation that invokes beliefs, values and ethics is either bad or downright dangerous. I keep stressing that I do not disagree with the Government's aim, but the legislation needs to focus on an individual's actions, not the way in which they live.
Let me give another example. Some years ago, before I came to this place, I lived just outside Bath. At that time, quite a lot of people were convinced that someone living on top of Lansdowne hill outside Bath was a rogue. There was a great deal of comment about the company that he kept, the cars that he drove—that was not a humorous point—and where he came from in the London area. People felt even more strongly that the man was no good and that action should be taken against him when the police raided his property and found that he had a gold smelter in his shed. Some of the gold was traced back to the Brink's-Mat theft at Heathrow. Because of the man's affluent lifestyle, house, car, background, the company that he kept and the fact that he was smelting gold, virtually everyone, including the local police, considered him a criminal. The only snag was that a jury did not think so.
I hear what you say, Mr. Gale, and what the hon. Gentleman says, but I disagree with him. Clause 6 contains the word ``lifestyle''. Irrespective of what any other clause says, it is downright dangerous to leave the word ``lifestyle'' in that clause in any circumstances and with any qualification, when all we need to do—
I may have missed it, but I do not think that my hon. Friend explained what happened to the person with the gold smelter. He said that the jury found him not guilty, so will he explain the situation?
I am grateful to you, Mr. Gale, and it might become clear after the sitting why I am grateful, so I will not pursue the matter.
If the Government offered us an alternative that removed the word ``lifestyle'' from the clause, we would wrap up the whole debate. We are looking for the distinction between someone's lifestyle and actions, and my hon. Friend the Member for Henley had a neat way of doing that, as I would expect from someone who is a wordsmith. I am neither a lawyer nor a wordsmith, but I urge the Government to accept an alternative that reads something like the following suggestion. I have kept the word ``lifestyle'' in this, because I was trying to help the Government. My suggestion is: ``a lifestyle''—or whatever—``that is provided by the use of funds acquired by criminal acts''. Whatever the Government are trying to achieve, they can make the point that they object to acquiring funds from criminal activity. Surely to goodness, they can achieve what they want without inviting the Committee to debate beliefs, values and ethics.
Opposition Members, particularly those on the Front Bench, have made heavy weather of what is a relatively simple issue. We are talking about semantics, not interpretation. We are not trying to define a lifestyle or be rude about people from Essex because they have a particular lifestyle. That is irrelevant. We are not talking about a subjective test—the definition is in clause 75 and the courts will have no difficulty in applying it. Lawyers do not have to interpret the words ``criminal lifestyle''; they have to look at the interpretation in clause 75. All we are talking about is a description. We could call it a Tredinnick, a Wilshire or a Grieve, but each is equally ridiculous—[Laughter.] I meant that each description is equally ridiculous. I agree with one underlying premise of the argument, which is that we should try to find as accurate a description as possible. I accept that and have no quarrel there. However, there is a quarrel with the idea, put forward particularly by the hon. Member for Surrey Heath, that lawyers and courts will have to interpret the title. They will not; the interpretation is there for them in clause 75.
The amendment would take one expression and substitute it for another. The expression ``an habitual criminal for gain'' is unacceptable for two reasons. First, it is clumsy. Secondly, my hon. Friend the Member for Glasgow, Pollok was right: whatever Opposition Members say, the word ``habitual'' would demonstrate a tendency to require habituality, which might undermine some of the provisions that are defined in clause 75.
I put in the word ``habitual'' because I was concerned to follow as far as possible the interpretation in clause 75. If I was mistaken in that and the words ``criminal for gain'' were sufficient, I would not quarrel with that. However, the Minister must understand that what is sauce for the goose is sauce for the gander. He criticised my wording but said that ``criminal lifestyle'' is acceptable, despite the fact that it does not define criminality of any kind.
I said that the hon. Gentleman's wording is clumsy and tends to undermine our purpose, so let us address the phrase ``criminal lifestyle''. Hon. Members have only to look at me to realise that I am not a lifestyle person; I am not into all the modern, elegant things. However, the phrase ``criminal lifestyle'' is elegant and widely understood. We are not asking for a definition: the phrase is there and defined later. As my hon. Friend the Member for Glasgow, Cathcart said, it is clear and understandable to most people.
I fully take the Minister's point that the phrase is crisp and readily understandable. The problem is that it is misleading because it is possible to have a criminal lifestyle without being a criminal, just as it is possible to have an artistic lifestyle without being an artist and to have a thuggish appearance without being a thug. The phrase is inapposite and the Government would be wise to think of a substitute. It is already being widely misunderstood outside the House and it will cause trouble in the future.
I accept that it is possible to have an aristocratic lifestyle without being an aristocrat, or a muddled lifestyle without being—well, I will not go on.
Yes, I accept that from my hon. Friend, as he would be if we were in the Scottish Parliament.
My hon. Friend the Under-Secretary and I want to be as flexible and reasonable as possible. On Second Reading, several hon. Members asked about mandatory and discretionary elements with respect to Scotland and we examined the issue further. I am prepared to demonstrate flexibility again here: if we can find an equally elegant alternative, which does not undermine the purpose and is a better description of what we mean, and if the hon. Member for Henley, with his literary knowledge and style, can help us—
The Minister does me too much honour in respect of my literary qualities, but I draw attention once again to the crisp formulation of the Bill's title—Proceeds of Crime. What is wrong with the formulation ``if he decides that a person is living off, or from, the proceeds of crime''? I can think of nothing simpler and nothing more to the point.
It is unwise, however brilliant an individual member of the Committee. It is also impossible because no amendment to that effect has been tabled.
In common with my hon. Friend the Member for Pollok, the hon. Member for Spelthorne (Mr. Wilshire) and my fellow Minister, I am not a lawyer. I do not want to be rude to them, as some of my best friends are lawyers. Indeed, some of them are sitting behind me, so I had better be careful. I shall not adopt my hon. Friend's populist line on that.
I am trying to be helpful and flexible. The Government will try to formulate a better description and I invite the Opposition to do the same. If such a description is elegant, does not undermine the principles of the Bill and better describes the circumstances, we shall consider including it in later amendments. On that basis, I ask the hon. Gentleman not to press the amendment.
In his usual elegant ministerial style, the Minister has been realistic in acknowledging that the Government may not have got it right. I am genuinely grateful for his constructive approach. We may well have moved on from the position at the outset, but I stressed that Conservative Members feel strongly about this issue. We want to continue to negotiate and we shall certainly want to suggest an alternative wording—perhaps ``serious criminal for gain'', which removes the habitual element about which the hon. Member for Glasgow, Pollok is so worried.
To extend the thinking of my hon. Friend the Member for Beaconsfield, the Ministers and members of the Committee will recall that in a previous group of amendments I drew to my hon. Friend's attention the fact that when he mentioned ``for gain'', the Ministers were busy nodding. I did so deliberately, to get it into Hansard that the Ministers were nodding as my hon. Friend was using the phrase.
The hon. Gentleman cannot seriously suggest that he interprets a nod as acquiescence to any of the hon. Gentleman's ideas.
I hear what the Minister says but I thought that it was an indication that gave away a lot about what the Ministers really thought about the matter. Every member of the Committee who has spoken on this group of amendments has accepted their main target. Probably for the first time, the motivation behind our amendments has not been directly challenged. Even Government Members of the Committee accept that we are trying, in the same constructive spirit as the Minister showed in his response, to work our way towards wording that will make good law.
I want to make one other significant point about lifestyle, in response to the debate that we have just had, because it is important to get it on the record and it may help inform our debate. My hon. Friend the Member for Spelthorne talked about the case of someone he had encountered when he lived near Bath; that person's lifestyle had led to ordinary people drawing conclusions about the person. I did not know that he would raise that case, but it made me think of something that happened the year before I came into the House. I was working as a banking lawyer and I went to an extremely interesting presentation by one of the senior police officers who had been involved in the Brink's-Mat investigation. He described the surveillance of those who were suspected by some of the most senior police officers in the land of being involved in the robbery and the subsequent disposal of the proceeds. The senior police officer, I think a detective chief superintendent in the flying squad of the Met, told us all—many of us were involved in the banking industry, some as lawyers—that the real breakthrough came when they were keeping a house under surveillance. The wife who lived there came out onto the lawn one day to call in the two large dogs that patrolled the grounds; she shouted, ``Come in Brinks! Come in Mat!''
That story may seem amusing but I mention it to make a serious point. To the police officers carrying on the surveillance, it was the first direct link in the evidential chain that the people who were subsequently convicted were directly involved in that and it was a private joke to christen their dogs Brinks and Mat. I see the Minister nodding again; I do not want to read too much into his nods. The Minister clearly recognises that it is easy for ordinary people, perhaps particularly irresponsible journalists, to make assumptions about people's lifestyles.
To expand what my hon. Friend the Member for Beaconsfield said one stage further, something that has been heavily commented on in style magazines and tabloid newspapers in the past few years has been so-called gangster chic. There has been much reference to the fact that some of the most successful writers and film directors in the UK, particularly the husband of one of the world's biggest pop stars, like to associate with ex-gangsters, who make no secret of the fact that they have had a criminal lifestyle and have had pages of criminal convictions. People such as Mad Frankie Fraser go onto the nightclub circuit, delighted to bring in mass audiences to hear about their criminal careers. One of the most serious drug traffickers of recent years makes a huge amount of money, billing himself as Mr. Nice and appearing at different venues. One week a venue may host a pop group, and the next it is hosting a convicted drug trafficker who sells copies of his book, ``Mr. Nice'' and makes a huge amount of money. People who glory in their past criminal lifestyles may have put their crimes behind them, but they are still making money by appearing on the nightclub circuit. They would not be notorious, and people would not flock to hear them talk, if they were not part of the so-called gangster chic. I reject that, because when people are seen to be profiting from crime, it is an immoral lesson.
However, it is dangerous to go down the slippery slope of using the term ``criminal lifestyle''. That wording is inappropriate and we will return to the issue if the two Front Benches—
As my hon. Friend says, there are two and a half Front Benches. I said two because I am responding directly to the Minister, but all the main parties have a view. I hope that we decide on a phrase such as ``serious criminal for gain''. That avoids the concept of ``habituality'', and most of the courts understand that ``serious offences'' may mean indictable offences.
The hon. Gentleman does not seem to listen. He talks a lot, but he does not listen. The courts do not have to interpret the phrase. As my hon. Friend the Member for Wellingborough (Mr. Stinchcombe) said, the interpretation is in clause 75, and I explained it twice.
I accept what the Minister says, and I do not want to fall out with him. He has spoken with grace, and we want to work constructively to get the Bill right.
Having said how fundamental the matter was, and having had every intention of pressing it to a Division, in the light of the Minister's generous concession in his wind-up speech that the Government are not set on the wording and will consider improvements, I will reluctantly withdraw the amendment. However, we reserve the right to return to the matter.
Finally, I remember that just before the parliamentary recess, the hon. Member for Regent's Park and Kensington, North (Ms Buck) wrote an autobiographical piece for The House Magazine. She described her lifestyle, and said that she was proud that she used to wear white stilettos and dance around her handbag. We have reservations precisely because people should not be typecast in the criminal courts as having a particular lifestyle. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The amendments are mutually exclusive, and are so important that I hope that the Committee will consider them carefully. The Bill envisages that the important tests described in subsections (4) and (5) should be made on the ``balance of probabilities''. In modern legislation, that is a rather surprising expression. If the Government sought to apply the civil standard of proof in those circumstances, I would have expected them to use the expression ``civil standard of proof'', as in amendment No. 31:
``the standard applicable in civil proceedings''.
Alternatively, there may be arguments that the appropriate standard of proof should be criminal proof in view of the confiscatory nature of the proceedings, and the fact that the outcome of the proceedings, linked as they are to criminal proceedings, would result in a person clearly being identified as a miscreant and his assets being confiscated. That option is in amendment No. 30.
I stress that I want to canvass opinion on amendment No. 30. However, I am mindful, especially in view of what the Minister said and my understanding of the Bill, of the fact that in reality there may be compelling arguments why the civil standard of proof should be applied in the confiscation procedure. Nevertheless, the civil standard of proof and the balance of probabilities do not appear to be the same thing. I am especially troubled, because the original draft Bill specified the standard applicable in civil proceedings.
At some point, someone decided that they did not want that standard, but wanted the balance of probabilities instead. We do not have to go back far to decide why that is. It is apparent in previously decided case law that there is a growing divergence between the balance of probabilities and the standard of proof applicable in civil proceedings. Committee members may already be aware that, while the civil standard has always been expressed historically as the balance of probabilities, various court decisions that go back to the 1950s have emphasised that the more serious the matter to be decided, the more the civil standard of proof should not invariably mean a bare balance of probability. The civil standard is flexible, and should be applied with greater or lesser strictness according to the seriousness of what has to be proved and the implications of proof. I expected the standard proof in civil proceedings to be cited in the legislation, and I am anxious that it has been removed. Will the Minister tell the Committee why he did that?
There is one thing on which the Committee can agree. We are discussing serious matters, and a procedure is envisaged that would identify whether an individual falls within a category. If he does, unpleasant things can be done to him. Furthermore, the burden of proof will be reversed, so that the onus is on him to disprove the charges. If the procedure is intended to be a civil recovery procedure—and there is an argument that it should not be—the standard of proof should be the one that applies in civil proceedings, not the balance of probabilities.
In my professional experience, ``balance of probabilities'' is an old phrase, but one that is becoming increasingly qualified. I can only imagine that, by including that phrase, the Government were deliberately seeking to provide for as low a standard of proof as they could. The Committee needs to consider that matter carefully. I could amplify case law, but I do not think that that would be helpful, as I suspect that the Minister will already be familiar with the principles. However, the matter calls for comment.
On the criminal standard, there is an argument that such matters should be proved so that the court is sure, especially if confiscation is to take place. It has also been said that the civil and criminal standards in serious matters, in reality, almost dovetail one into another. Perhaps that is why I am less anxious about establishing a criminal standard of proof than a civil standard. However, a balance of probabilities, in bare form, affords the least possible protection to the individual faced with these proceedings.
The issue is simple, and I do not want to spend too much time introducing it. I hope that the debate will be one in which we have a dialogue rather than set speeches, because I am keen to find out whether other members of the Committee, irrespective of party, share my disquiet about the issue. I also hope that the Minister will give a detailed explanation—it may prompt interventions from me—of why the draft Bill was altered. That troubles me, and if the test is to be one of civil justice, I would be grateful if we can ensure that the Bill is in a form that is compatible with the ordinary principles of civil justice.
Before we proceed, I remind hon. Members that it is now three minutes to 5 o'clock. I suspect, from the feeling of the Cttee, that the debate may follow the lines of the previous one and that the Minister will wish to intervene fairly early on. If that is so, and if we can complete the debate by 5.30, so be it. However, the Chair has responsibility for the welfare of the Officers of the House as well as that of Members; if the debate is not completed by 5.30, it would be my intention to suspend the Committee for one hour.
Further debate adjourned—[Mrs. McGuire.]
Adjourned accordingly at three minutes to Five o'clock till Tuesday 20 November at half-past Ten o'clock.