With this we may discuss the following amendments: No. 27, in page 8, line 4, leave out `two years' and insert `six months'.
No. 104, in page 8, line 4, leave out `two years' and insert `three months'.
I have spoken to the hon. Member for Lewes (Mr. Baker), and with your leave, Mr. O'Brien, he will speak to amendment No. 27 in a moment. I shall speak to amendment No. 103.
I know that all members of the Committee are in confessional mode about our legal background, or otherwise, and I stand here with trepidation, as I am sure that I am about to incur the wrath of the hon. Member for Glasgow, Pollok (Mr. Davidson).
I admit that my legal career was somewhat less glorious than those of a few other hon. Members who are present—I am looking, with great admiration, at the hon. Member for Redcar, who may even be a Queen's Counsel, and who has, no doubt, spent many years practising at the Bar. I spent four years practising law—two years as a trainee solicitor, followed by two years working as a corporate lawyer with Freshfields, one of the big City of London practices, before I determined that the world would not be a much worse place if there were one lawyer less, and escaped to go and run my own business. [Hon. Members: ``Hear, hear.''] That is, I am sure, the highest compliment that I could possibly receive from Labour Members.
As for the clause, I know how difficult it is to draft from first principles. There are more barristers than solicitors present in the Committee, and they probably have a low regard for solicitors' drafting skills. In my experience, current legal education does not accord such skills a high enough priority. This is a large Bill, and I do not wish to be unkind to the Treasury's solicitors, who have no doubt gone to great trouble at short notice to draft it, but, to take up a point that my hon. Friend the Member for Spelthorne made, clause 15 is confusing.
With regard to subsection (3) and the amendment under discussion, what might be the ``exceptional circumstances''? I am unsure. Indeed, the entire issue of postponement is confusing, if one ponders each of the other subsections. It is evident that clause 6 and the whole issue of confiscation orders are referred to. Mention is made of the trigger point, which is the conviction, and a period of up to two years, which is the permitted period, and there is confusion about the postponement going beyond that, which does not seem entirely logical. However, subsection (3) says that there are exceptional circumstances that could rule that out. Will the Minister explain what those exceptional circumstances might be? I hope to reserve the right to discuss what might flow from that explanation.
I am grateful to my hon. Friend. He has illustrated how useful it is for members of Committees such as this to have a variety of experience, regardless of the party that they might represent.
As my hon. Friend has explained, his opinions on the matter are informed by two aspects of his experience. He worked in a leading City solicitor's firm. Labour Members are often happy to criticise lawyers, but—as a lawyer who sits on the Government Benches but is not a member of the Committee recently said to me—they tend to forget the huge contribution made to the United Kingdom's invisible earnings by firms such as Freshfields, Slaughter and May, and Linklaters. The best commercial legal firms in the world are in the City of London, and they make a vast contribution to the nation's wealth. When people are considering where they want their commercial disputes to be settled, and on whom they wish to rely, if they are representing a company in South America trading with a country in Africa, or a company in the former Soviet Union or the former Warsaw pact countries trading with a company in Canada, they do not tend to choose their own legal systems. They tend to want everything to be decided by English law, and to be resolved by firms in the City of London. That is the commercial reality.
If that was the case, I apologise, Mr. O'Brien. I was responding to the comments of my hon. Friend the Member for Cities of London and Westminster about his own experience, which had led him to feel that insufficient concentration was put on training people to perform tasks such as drafting. Nevertheless, I hope that Labour Members, who tend to be anti-lawyer, will bear that in mind, given its contribution to UK plc.
My hon. Friend the Member for Cities of London and Westminster was right to say that we must ensure that the drafting is precise. I look forward to the Minister's response to my hon. Friend's valid points and I hope that he will respond sensibly to the amendments. They are intended to be constructive. They would not weaken the Bill.
I hope that the hon. Gentleman will forgive me if I say that his contribution was almost as obscure as the provision to which he was referring. However, I am sure that he has made a well argued point.
I confess that amendment No. 27 is merely a way to get the Minister to justify the period of two years. It seems a long time, and could lead to a hiatus, which is not good for the prosecution authorities or for the defendant. Ideally, it would be better if the period were shorter.
The overall effect of the amendments would be to reduce the period for which confiscation proceedings may be postponed. The first and third amendments must be read together. Amendment No. 103 would prevent any postponement for longer than the specific maximum period even if there were exceptional circumstances. Amendment No. 104 would reduce the maximum postponement period to three months. Amendment No. 27 would reduce the normal maximum postponement period from two years to six months.
The current legislation permits an extension of up to six months in normal circumstances and allows for an unlimited extension in exceptional circumstances. The definition of whether the circumstances are exceptional is to be decided by the courts. I remind members of the Committee who want to give courts the discretion to decide such issues that it will be for the courts to decide, on application, whether the circumstances are exceptional and whether an extension is justified. Any reason could be considered, such as there being property overseas and difficulty in obtaining information. If the prosecutor could not convince the court that he had just and valid reasons, and exceptional circumstances applied, the court would not allow the extension. We are giving courts the freedom to listen to an argument when exceptional circumstances apply and to allow an extended period when it accepts that that is so.
The hon. Gentleman must allow me to respond to the amendment about exceptional circumstances and to his own amendment, which would curtail time. The current arrangements for the postponement of confiscation hearings were examined carefully in the performance and innovation unit's report. That was the origin of the Bill. It examined how the current legislation was working, and its shortcomings. The PIU report examined the length of time allowed under the current legislation, which is where the proposal came from for the change under the Bill.
The defects of those arrangements are discussed in full in the PIU report, paragraph 8.22 of which concluded that the short six-month deadline meant that some
``confiscation orders cannot be obtained . . . due to simple administrative delay. For example, lack of court time, unavailability of counsel, trial judge, or defendant, or the ongoing trial of a co-defendant''.
Those have been identified as reasons why confiscation has been lost under the current legislation.
In line with the repeated assurances of hon. Gentlemen that they do not wish to prevent the confiscation of the proceeds of crime, I ask them to accept that that six-month period has effectively prevented us from confiscating the proceeds of crime. That is the basic reason why we are seeking a longer period.
I am grateful for that explanation. On that basis, I do not wish to pursue my amendment. However, if the problem is that the courts are taking too long to deal with such matters, or that judges are not turning up, I hope that the Government will try to deal with that.
I would like to think that we could sharpen up the court process all around. We tried to do that, and we have had considerable success with regard to youth offending. It was part of our manifesto, and we have managed to cut the time considerably. These are matters of justice, and problems arise from time to time. If we impose an unreasonable time limit on postponement, people will in effect be allowed to avoid confiscation and maintain their ill-gotten gains. We would not want defendants to be able to frustrate the purposes of confiscation by stalling in the hope that the six-month period will expire. That point was highlighted in the PIU report. With that background in mind, we view amendments Nos. 103 and 104 with trepidation, because they would take us back to the position that currently applies, and, in one case, further shorten the period allowed. I therefore ask hon. Gentlemen not to press their amendments.
Clearly, in the light of what has been said, and on the basis that our proposed time limit is even shorter than that suggested by the hon. Member for Lewes, we will be happy not to press amendment No. 104 to a vote. However, this matter raises serious questions about the administration of justice in this country, given that a six-month limit is thought to be too short, and a two-year limit is thought necessary. I hope that the Committee's concerns about that will be passed back. All of us appreciate that, at times, confiscation matters are complex, and involve the tracing of significant assets overseas. Equally, however, the individuals involved will no doubt have been subject to long-standing investigation. Those matters are of great concern.
We will withdraw the amendment about exceptional circumstances. We have been comforted in part by what we have heard from the Minister—but the problem relates back to the issue of slack and loose drafting. Anyone who has seen American legal documents, as I did when I worked in international law in the early 1990s, will know that one of the joys of working with large contracts is the belt and braces approach in every sub-clause. The sloppy drafting in clause 15 is not isolated, and we may find more elsewhere. A belt and braces approach is necessary, for some of the reasons that have been set out. Equally, it is confusing to see how it is put together—
I genuinely do not understand why the hon. Gentleman introduces the issue of drafting. It will be for the court to decide whether to allow a postponement. The court will, of course, not allow a postponement that is absolutely unnecessary and unjustified; it will decide whether a postponement is justified. The court will hear a case that suggests that there are exceptional circumstances that would apply beyond two years. In normal circumstances, it will not allow a postponement beyond two years. That is what the Bill says. It extends the current provisions—for good and proper reasons—and I do not understand how drafting comes into it.
The lack of logic at the heart of the process is that there is to be a permitted period that can be exceeded before the postponement period knocks in, notwithstanding the exceptional circumstances referred to in subsection (3).
Something must have been put into the water today. Conservative Members have become much tougher, and the hon. Gentleman will be pleased that today's discussions show that we are not as soft on crime—or, more to the point, on criminals—as may have been implied during the past two or three sittings.
My hon. Friend may have forgotten that the hon. Member for Glasgow, Pollok, for entirely understandable reasons, was unable to be with us for the early part of this morning—
I want to raise one point and receive the Minister's guidance on a matter that arises from the explanatory notes. I have been critical of many of the Government's changes to Parliament, but explanatory notes have been helpful. I know that they have no statutory force but they can alert hon. Members to particular points, especially if the Bill is big and complex and provisions are new. Paragraph 37 of the notes, which relates to subsection (7), mentions
``a new provision which provides that if an application for extension is made before the end of the period of postponement, it does not matter if the court makes a decision on the application after the end of the period of postponement. This deals with the situation where an application is made in time but, because of listing difficulties, the court cannot hear and make a decision on the application before the existing period of postponement expires.''
All hon. Members who practised in the criminal courts understand listing difficulties, which do not often enter the ambit of those who are not lawyers. It is a professional problem for court clerks, judges, barristers and solicitors. However, that brings us back to a question that I asked the Minister of State, Scotland Office about the way in which the Bill may impact on the court service and cause additional difficulties. I raise the matter now because if the reason for subsection (7) is, as the explanatory notes say, because listing difficulties are anticipated on occasions—we all know that the criminal courts are busy—that reinforces the point that was pooh-poohed and dismissed by both Ministers, but especially the Scotland Office Minister, when we asked for details of how the Government and their advisers thought that the Bill would affect the courts' burden of work. I confess that I did not spot this in a previous debate, but now we have a new provision to take account of listing difficulties.
The point is not huge, but I thought that it was worth getting it on the record and hearing the Minister's comments. I do not suggest that the provisions should not take account of listing difficulties, but what we are doing is new, and clearly the Bill greatly extends the law. We think that it will make extra work, perhaps more than the Government want to suggest.
The more effective the Bill is at stopping Mr. Big keeping his ill-gotten gains, the more applications there will be under the provisions. How does the Minister think clause 15 will operate as a whole? Will he refer to subsection (7) in particular?
Subsection (7) is technical. It will ensure that listing and the other problems that the hon. Gentleman described do not become an issue. It was not thought necessary because of any burden that the Bill would place on court proceedings. I cannot remember the extent to which he accused us of pooh-poohing his previous comments, although I think that it was when he suggested that we were creating another Child Support Agency.
I have told the Committee about our thoughts on the level of confiscation orders and civil recovery issues as well as the use of taxation powers. The hon. Gentleman may be right in that the legislation could be used more widely, but subsection (7) was not drafted because we thought that a crazy system would be imposed on the courts. It was included in the Bill only, as he recognised, because of the problem of listings. It was not felt that those problems should rule out a postponement.
We consulted the Lord Chancellor's Department about court time. It is obviously aware of the Bill and of our assessment of the extent to which its powers will be used. The hon. Gentleman thought that they would be used far more widely than we had suggested. I cannot prove that he is wrong; I can only say that I think he is wrong.
The Minister is being helpful. I appreciate that he has rightly consulted the Lord Chancellor's Department. I did not say that such a system would impose crazy burdens on the courts. I do not disagree with him to that extent, and so far I am pleased with his response. However, in addition to consulting the Lord Chancellor's Department, which is sensible, has the Home Office consulted circuit judges? If the hon. Gentleman thinks that that would not be appropriate, will he check whether the Lord Chancellor has consulted the circuit judges who are at the sharp end?
We consulted widely on the provisions in the Bill, but I cannot say whether the Lord Chancellor's Department consulted widely on the potential impact of the Bill and its burden on the court system. I shall check and let him know.
At the risk of trying the Minister's patience, I should like him to clarify something.. I may have misunderstood clause 15 and its timing of postponements for permitted periods. Is there any point at which the action to recover the proceeds may not go ahead? As I understand it, such proceedings could continue after the permitted period and, in exceptional circumstances, sine die. When will it all end for the poor miscreant?
How could I possibly lose patience with the hon. Gentleman? As he said, in normal circumstances the process will end within two years, and that gives guidance to the courts about how quickly the director or prosecutor should be able to put the case together. It will continue beyond two years only if the court accepts that exceptional circumstances justify a postponement. I do not know whether it is right to say that a court would not under any circumstances say that the case should last for a certain time. Only if the prosecutor or the director can convince the court that there are exceptional circumstances that justify postponement for longer than two years will cases be postponed for that time.
I am tempted to join the discussion because of the hon. Gentleman's use of the phrase ``sine die''. In the west of Scotland, that is more commonly pronounced ``sign dye''—or ``sign dye, ya bass'' on occasions. It would be helpful if we had conversations in English—
If the hon. Gentleman spells it for me, I will certainly add it.
I missed some of the debate this morning because of medical reasons. As some hon. Members are aware, I am occasionally breathless because I have only one lung—the other side is all heart, Mr. O'Brien, and I was having some of it hardened against lawyers this morning.
The hon. Gentleman will find out what this is about in a moment.
I had reason to see the nurse this afternoon, as I had several symptoms related to this Committee. I described them as lethargy, hopelessness and despair. She said to me, ``Are you in the Committee with the Member for Beaconsfield and the Member for Surrey Heath, because we've had a number of members of that Committee here with those symptoms.'' She said that it would be okay for me to return to the Committee this afternoon—but only on the understanding that the hon. Member for Beaconsfield would be absent. She thought that I would be able to survive the hon. Member for Surrey Heath, even if he was complemented by the hon. Member for Lewes, who was a little equivocal earlier in telling the hon. Member for Surrey Heath what he thought of him.
I am sorry that I missed the beginning of the hon. Gentleman's speech, but I thought that I should warn him—in case he was in danger of having a relapse into whatever he had this morning—that my hon. Friend the Member for Beaconsfield will be back soon, so he might want to finish his speech and leave sooner rather than later.
Mr. Davidson rose—
I was looking out of the window, as I have on several occasions, to check whether flying pigs were going by—I understand that the House authorities have had these windows specially strengthened to stop Members on the Government side of the Committee throwing themselves out—and at that point the hon. Member for Beaconsfield arrived.
When thinking of the hon. Member for Beaconsfield, the word ``brief'' is not one that springs to mind.
To return to the clause, will the Minister clarify the intention behind the wording? Do I take it that the intention is to give the courts the maximum flexibility so that those who deserve punishment receive it, and what should be confiscated is confiscated? The amendments that have been floated, especially by the hon. Member for Surrey Heath, would make it easier for malefactors to escape justice.
Question put and agreed to.
Clause 15 ordered to stand part of the Bill.