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With this it will be convenient to take the following: Amendment No. 279, in page 47, line 26, leave out paragraph (e).
Amendment No. 280, in page 47, line 28, after 'benefited', insert
'to a minimum of £5,000'.
Amendment No. 271, in page 47, line 30, after 'offences', insert
'punishable by imprisonment or a by a fine of or above level 2 on the standard scale'.
Clause stand part.
Amendment No. 272, in clause 76, page 48, line 5, after 'concerned', insert
'and which is punishable by imprisonment or a by a fine of or above level 2 on the standard scale'.
For the avoidance of doubt, it may be helpful if I clarify the scope of the debate. On 15 November, the Committee had a long debate about the desirability or otherwise of using the term ''criminal lifestyle'' to describe defendants who meet the condition set out in clause 75. The debate that we are now to have relates to the condition attached to the term ''criminal lifestyle'' and the definition of conduct that forms part of a course of criminal activity. I wish to make it clear at the outset that it will not be in order to refer to the desirability or otherwise of employing the term ''criminal lifestyle'' during this debate, because that matter has already been discussed and we have made a decision.
It has been acknowledged in previous discussions that this is a key clause in respect of the workings of the confiscation provisions. I shall obey your strictures, Mr. McWilliam, not to stray into a discussion about the desirability of the term ''criminal lifestyle''. We may even come up with a better term, but the detail of what constitutes such a lifestyle will be critical in respect of how the Bill works, whether unfairness may creep in, and whether the measure will cover the offences that most people expect it to or whether it will be widened to catch those who commit offences that most people may consider do not fall within the category of a criminal lifestyle.
''specified in regulations under this section by the Secretary of State''.
Amendment No. 271 would introduce the same restriction that we discussed last week about whether certain minor offences—those not punishable by imprisonment, but by a level 1 fine on the standard scale—should fall within the offences that constitute a criminal lifestyle. Amendment No. 272 is consequential and relates to clause 76.
I shall explain first amendment No. 270. The Bill defines what type of offence constitutes a criminal lifestyle. For the most part, the offences listed do not fully encapsulate the intention of the legislation. Subsection (2)(a) deals with drug trafficking offences. Subsection (2)(b) refers to money laundering offences. Subsection (2)(d) deals with
''conduct forming part of a course of criminal activity''.
Subsection (2)(e) concerns
''an offence committed over a period of at least six months''.
For the moment, we will leave aside the question whether paragraphs (d) and (e) are too widely drawn, in that they are capable of targeting offences that were not committed for gain. I am aware that such offences constitute one of the trigger provisions that bring people within the criminal lifestyle definition.
We are anxious about the provisions that might be specified in regulations made by the Secretary of State. The Minister has been helpful. He sent me a list—I am sure that other members of the Committee have received a copy—with examples of criminal conduct that the Government consider to be indicative of a criminal lifestyle. He has already set out along the path of defining the areas that the Government might deem necessary to regulate by statutory instrument.
Many of the offences listed are already covered under paragraphs (a), (b), (d) and (e), and do not require any further definition under paragraph (c). To demonstrate that, it may be helpful if I cite some examples from the list, which includes
''people trafficking, in the sense primarily of trafficking for sexual exploitation''.
Although it does not fall within paragraphs (a) and (b), the offence, by its nature, will be part of a course of criminal activity and would have been committed over a period of at least six months. The same would be true in the case of
''facilitation of immigration offences (including illegal working)''
''forgery of travel and other immigration-related documents''.
The list also refers to
''conspiracy to defraud the Crown (e.g. benefits, taxations, grants, etc), to arms trafficking and to
''involvement in counterfeit currency and counterfeit goods''.
The list is exhaustive, but under the example of conspiracy to defraud the Crown, will the defrauding of individual learning accounts be covered
under paragraphs (a) to (e)? Perhaps the Minister had it in mind under the all-embracing paragraph (c) to criminalise such minor offences?
My hon. Friend may be right. The list refers also to insider dealing, and in certain circumstances such an offence could fall outside the scope of paragraphs (a), (b), (d) and (e). In that case, the offence would have to have been committed within a short time. However, such an offence is likely to require some preparation and therefore to have taken place over the specified six-month period.
The list covers ''dealing in child pornography''. That may be an example of when a person could be arrested on the first offence and be able to show a shorter course of conduct. We may have to consider what the Minister means by
''it constitutes conduct forming part of a ... criminal activity''.
My understanding of the clause is that any of the tests must be satisfied. The conditions mentioned in paragraphs (d) and (e) need not be satisfied together, because (d) can be satisfied without satisfying (e) for the time over which the offence was committed.
I shall finish the list to ensure that it is on the record: pimping, brothel keeping, corruption and terrorist funding offences. I tell the Minister that if the list is designed to be exhaustive in so far as there may be categories of offences that the Government are concerned may fall outside the scope of paragraphs (a) to (e), the sensible thing would be to state and refer to such offences specifically by amending the Bill. Alternatively, if the occasions on which the Minister believes that the Assets Recovery Agency should be brought into play involve offences that are likely to be over a time frame of six months or more, I am struck that it is unnecessary to include paragraph (c) at all.
The Minister will understand the anxiety that hon. Members are bound to have about paragraph (c). We are giving unfettered power to the Secretary of State—subject to regulations—to classify any offence that he decides to incorporate. The legislation will apply retrospectively because a regulation that has been specified may refer to conduct that occurred prior to the legislation coming into effect. That is a more compelling reason why the Committee and Parliament should be wary of giving extensive powers, by regulation, to place within criminal lifestyle provisions categories of offence that Parliament and the public may have never imagined would be included in such provisions. I do not believe in giving excessive discretion to Ministers. Is there a compelling argument why the provision's inclusion is desirable?
May I suggest to you that the reason for giving Ministers almost unfettered discretion is that although the will of Parliament is clear, we are not confident that judges, courts and the legal system will act in line with what Parliament desires? Rather than giving judges and courts the scope to reinterpret what we want and take out measures that we want included, we give the Home Secretary the opportunity to amend the legislation to
ensure that what Parliament and the public want is achieved. Is this a further example of your looking for loopholes for crooks?
Order. The hon. Gentleman prefaced his remarks with ''you'', and ended up by accusing me of looking for loopholes for crooks. I assure the Committee that I am doing no such thing.
I think that I disagree with the hon. Gentleman. By virtue of discussions that we have had in earlier sittings, we are discussing mandatory provisions. The courts and judiciary will interpret them in the light of that. Parliament will provide that the judges shall deem that a defendant has a criminal lifestyle, and they will be obliged to do that. The question is not one of anxiety about judicial interpretation. The scope for judicial interpretation by judges to find a way out in a way that Parliament did not intend is non-existent.
Does my hon. Friend share my worry that various interventions—the most recent being made by the hon. Member for Glasgow, Pollok (Mr. Davidson)—show that Government Back Benchers in the Committee often want to give the Labour Home Secretary carte blanche to do anything that he wants, in which case what is the point of Parliament and scrutiny? We might just as well have electronic voting from hon. Members' constituencies. We could ignore the Committee process and just have the Home Secretary's rubber stamp.
My hon. Friend is right. We have the duty to decide what should fall under the term ''criminal lifestyle''. If we want to create an extensive list, we can do so. The hon. Member for Glasgow, Pollok will agree that there is nothing to prevent us from listing in the Bill all the offences that the Government consider indicative of a criminal lifestyle—the Minister could easily do that. Such a list might extend subsection (2) but would not cause any real harm.
We are not legislating: we are handing the Secretary of State the power to define ''criminal lifestyle'', and we know that the term will not be scrutinised adequately. I accept that there are circumstances in which it is reasonable to give a Secretary of State such executive power, because he has to take daily executive decisions that Parliament could not try to define. Nevertheless, as we are defining a new category of ''criminal conduct'', an offence that is punishable by confiscation of assets, it is incumbent on us to be careful about allowing him too much leeway.
If the Bill created a criminal offence where none had previously existed, it would be unusual and surprising for Parliament to give the Secretary of State the power to create any number of other criminal offences at will. Unfortunately, we do that too frequently with many
Euro directives, which we incorporate into our law through statutory instruments. It would be undesirable to give the Secretary of State those powers for such an important provision. I look to the Minister for a justification of the course of action adopted in subsection (2)(c), because I cannot find one.
We have already discussed the issues raised by amendment No. 271, but they should be considered further. The amendment would provide some small fetter on the extensive use that could be made of the power to decide what constitutes conduct that
''forms part of a course of criminal activity''.
I do not wish to repeat extensively the arguments made last week. I accept that this is a similar debate, albeit in a slightly different context. I simply signal that subsection (3) allows conduct that
''forms part of a course of criminal activity'' to apply to virtually any offence in which financial benefit is shown to have accrued. That could apply to an offence as far down the scale as a failure to have a rear light on a motor vehicle, as arguably a defendant could benefit from not replacing the light bulb. It is as simple as that.
Perhaps the Committee feels that we should include the provision that we have called the Al Capone'' or Al Capone principle, because it offers the state a powerful tool with which to find an excuse for bringing confiscation proceedings against someone who has never had anything more against him than such minor offences as any relatively law-abiding citizen might accrue in six years. The provision is an excuse to go after his assets through the confiscation procedure. Given that there is a civil recovery procedure in the Bill, there are powerful arguments, when one is dealing with such minor offences, to say that the burdens placed on the state, in respect of the civil recovery provisions, should not be arbitrarily removed to allow an excuse for confiscation. The debate, and the Minister's comments, have made it clear that the justification for including the confiscation provisions is that you already know, by virtue of a person's previous criminality, that he falls into a category whereby some of the protections that might be afforded to law-abiding people can properly be dispensed with.
Where do we draw the line? That is a question for the Committee to answer. However, if you decide that offences of level 1 on the standard scale should still be included within the trigger provisions, it could be argued that you are going too far. That is why I tabled amendment No. 271.
The Liberal Democrats propose a minimum limit of £5,000 in amendment No. 280. I will allow the hon. Member for Lewes (Norman Baker) to speak to that amendment, but I may seek to catch your eye, Mr. McWilliam, to comment on it. It would introduce a more powerful protection than amendment No. 270, and the Committee might wish to ponder those alternatives.
The hon. Member for Lewes also tabled amendment No. 279, which I shall comment on after he has spoken to it. However, leaving out subsection (2)(e) would be problematic, because it provides some protection, in
relation to the types and nature of offence. I assume that he wishes to remove it to strengthen the scope of the legislation, and I am interested to hear how that would operate.
With regard to amendment No. 270, the Minister must provide a careful justification of the power in subsection (2)(c). Definitions can be provided, and he has, helpfully, already done that. Why, therefore, should we give an unfettered discretion to the Secretary of State?
On a point of order, Mr. McWilliam. I apologise for breaking that rule. However, I have difficulty obeying it, because I use the word ''you'' rhetorically, and it is frequently used in that way in the Chamber. The alternative is to use ''one'' all the time, which is rather ponderous. That is why I use ''you'' when I am not addressing you personally. If the ruling is that we cannot use the word ''you'' rhetorically, I will seek to abide by that.
The ruling is exactly that. The fact that the enforcement of it in the Chamber has become relaxed does not alter the original ruling, which is that one uses the third person.
I am delighted that we have found some common ground, Mr. McWilliam.
I understand why the hon. Member for Beaconsfield (Mr. Grieve) tabled amendment No. 270. It is an important amendment. I look forward to the Minister's explanation of why the catch-all is required, when he has already given an indication of the sorts of offences that would be covered.
As the debate has progressed, and positions have been staked out, many hon. Members' views on the legislation have become more entrenched. That is certainly so in my case. The Government have the laudable objective of ensuring that nobody can escape from the legislation—that all those who have proceeds of crime are caught and have no way out. Who can argue with that concept? My difficulty is that sometimes I feel that the method employed to ensure that the doors are bolted, the lock is on, and there is an armed guard outside to make certain that no one escapes may mean that the innocent will be caught up or, more likely, those who have been guilty of minor offences will be swept up into the same category as those whom the Government and the rest of us really want to catch. That is a worry.
I was not entirely filled with confidence by the intervention from the hon. Member for Glasgow, Pollok, who seemed to articulate again that he has
little confidence in the judiciary, and that it should be excluded as far as possible from an unfettered opportunity to express its views on how the law should be interpreted. As a matter of principle, that is a worrying development. I do not want to reiterate arguments in relation to previous amendments, but trying to exclude the judiciary from processes is not the right way to deal with legislation in this country.
In respect of amendment No. 270, it would be helpful if the Minister were to explain why the relevant provision is necessary. It would also be helpful if he were to explain what safeguards there are to ensure that it is not abused. We do not hear the word ''safeguards'' being used much on the Government Benches, which worries me. The Minister may say that he, his colleagues and the Home Secretary intend to use the provision only in line with the views of the Committee and Parliament, in an entirely proper way that will command public support, and I tend to think that that is probably true. I have every faith that that is how he wants to approach the legislation. However, if we write into legislation such wide catch-all phrases, what will happen when we have a Home Secretary or a Government who do not want to respect the views of Members of Parliament or the way in which the Committee has formulated its opinions?
What will happen if a future Home Secretary says, ''I want to pull the levers that I have as far as they can go,'' and asks his civil servants and officials, ''How far can I go?'' When the answer comes back, ''You can go a great distance because, although they have not been used, huge powers are available,'' that Home Secretary will say, ''Great. Let's do it.'' If the Minister is in opposition, it will be difficult for him to criticise such a Home Secretary because he will have piloted through those powers in this Bill. If the Minister were to pay more attention to safeguards, I would have rather more confidence in the way in which the Government are proceeding. I am not criticising the intention of the legislation, which I support, or the intention of the clause, which I also support—it is absolutely right that people who are drug trafficking, money laundering, pursuing gain from prostitution and so on should have their assets seized—but we must ensure that innocent people and those who are guilty of only minor crimes are not caught up.
I merely want to seek the Minister's comments on amendment No. 279—I do not intend to push it too far. I accept that there may be a useful category of offence that is committed over a six-month period and that may not be caught by paragraphs (a) to (d), although it may be caught by paragraph (c) if it remains in place. What category of offence would be caught only by subsection (2)(e)? Why is it necessary? If it is covered by paragraphs (a) to (d), paragraph (e) is, by definition, superfluous. I am also concerned that subsection (2)(e) might, on occasions, enable minor criminal activity to be swept up into the same categories as major criminal activity.
Let us suppose that a person fiddles the office expenses or a local councillor claims for travelling from his house to the town hall over a period of six or seven months, and it transpires that he has been making false claims. The sum may amount to pennies, but such action would be caught by subsection (2)(e). I do not think that the Minister is interested in catching such people, but will they be caught? Should there not be a safeguard to ensure that the weight of the law is not brought down on them?
I hope that that is the case, but I seek clarification from the Minister about the effect of subsection (2)(e). In the Government's laudable intention to ensure that no one escapes the consequences, other people will be swept up by the provisions.
The hon. Member for Beaconsfield referred to amendment No. 280. It and a subsequent amendment are attempts to ensure that a de minimis arrangement applies. If the Minister wants to ensure that those who hitherto escaped justice are caught—something that the Liberal Democrats support—and wants to catch the Mr. Bigs, the pillars of society who have managed to evade justice because they employ accountants, lawyers and other paraphernalia that enable them to get round the law, he should have no objection to a de minimis level of £5,000. After all, the Mr. Bigs of this world are not interested in figures of less than that. That provision is an alternative to amendment No. 271, which uses slightly different terminology.
What is the objection to a de minimis level? The Bill is surely concerned with catching big criminals. To date, the Minister has not convinced me that such a provision is not required. He wants to make the provisions as wide as possible in the event that in circumstances that he cannot foresee someone may gain a sum of less than £5,000—a level 1 offence—and be swept up by the Bill. That is not good enough. I seek justification why a de minimis level is not appropriate.
Before I refer to the amendments and the clause, I wish to respond to the hon. Members for Beaconsfield and for Lewes. The underlying accusation that is thrown at us time and again is that we are not interested in safeguards in what is a complicated Bill with much cross-referencing. I remind the Committee that safeguards are in the Bill. I am willing to discuss whether they are adequate, but I want to stop the allegation that there are none.
There are two clear safeguards for the courts to use under the confiscation procedure. If there is a serious risk of injustice, assumptions should not be made. On the balance of probabilities—because we resisted attempts by the Opposition to lift the level of proof required —it is for the defendant to show that the cash or property concerned is not the proceeds of crime.
There are safeguards in the Bill. Let us have no nonsense about claims that there are none. Let us frame the allegations to ask whether those safeguards are adequate, because I find myself considering issues that are raised repeatedly on every clause, and many of the amendments and propositions that we have considered are attempts to supply not a safeguard but repeated safeguards.
Sometimes it seems that when Opposition Members raise issues about safeguards, they do not want belt and braces: they want belt and braces, locks, chains and chastity belts to ensure that the Bill is safe. I wonder whether they genuinely want the legislation to be effective.
For the record, I am not in favour of chastity belts. I did not say that there were no safeguards in the Bill—the Minister may check the Hansard record. I said that he does not talk much about safeguards, and that I would have more confidence if he did. I am delighted that he is now doing so.
Some of us wear our hearts on our sleeves, and some of us choose not to. There are safeguards in the Bill. We have discussed them, and any member of the Committee who has followed its proceedings knows what those safeguards are. I fear that if we gave into some of the proposals that are made repeatedly as we go through the Bill, we would wind up with a Bill that contains so many safeguards, and so many hoops through which any prosecuting authority must jump, as to be unworkable.
I appreciate that in the Minister's points about safeguards he was referring to the hon. Member for Lewes, but my hon. Friend for Beaconsfield and I—and other Opposition Members—are more concerned about the unfettered powers that subsection (2)(c) gives to the Home Secretary. I hope that he will deal with that separate point, which is not a safeguards point.
I want to return to the point about safeguards. Clearly, they are a matter of balance. I do not think that discussion on the subject should be confrontational. We have had a long debate about whether the word ''serious'' should be linked to ''risk of injustice''. Concerns about safeguards stand if there is a serious risk of injustice. That is probably what causes concerns. There are degrees of injustice that would be considered under the safeguards. Would the Minister like to comment on that?
The hon. Lady is absolutely right to say that we have had such a discussion. I am concerned that as we consider different issues in the Bill, hon. Members repeatedly try to build in safeguards. I think that I have adequately described my worries on that subject. If we provided a safeguard that was a very high hurdle for prosecuting authorities to get over,
that would have the same effect. That was the nature of our discussion about whether we should remove the word ''serious'' and say just ''risk of injustice''.
The courts are capable of considering the two safeguards in the Bill and making certain that confiscation does not occur if there is a serious risk of injustice or if the defendant shows that, on the balance of probabilities, his property is not the proceeds of crime. I have said that in previous conversations, and cannot say it differently or make it any clearer.
Perhaps I have never put the matter to the Minister in this form: I think that he agrees that the Bill excludes certain types of criminal offences—amazingly, I sometimes think, in the light of his comments. A single stealing offence, for instance, would not be sufficient to trigger the confiscation provisions. The Government must have had a reason for deciding that certain categories of offences should be excluded completely. We are not talking about safeguards but about whether we should widen the scope of the categories of offences that should be excluded completely. The Minister has surrendered the principle, because at present the Bill excludes such offences.
I do not really understand the hon. Gentleman's point. The Bill is fairly clear. Certain kinds of offences, some of which are in previous legislation, some of which we can readily identify now, and some of which we may not be able to identify now but may become apparent later, should, at the first occurrence, be considered to be an indication of a criminal lifestyle. I do not see any reason why Committee members cannot accept that arms trafficking, for instance, is an indication of a criminal lifestlyle. The Bill should include no requirement for the prosecution to be able to show that that arms trafficking has gone on over a six-month period or that there have been three or four different incidents of arms trafficking in order to accept that it is an indication of a criminal lifestyle.
I would like to take us back to the list that all Committee members received, which the hon. Member for Beaconsfield read out to us today, of the items that could trigger the definition of a criminal lifestyle. I would like to feel that officials would return to that list and extend it. In relation to child pornography, it is clearly right that that should be listed, but other aspects of pornography are equally criminal: snuff movies, bestiality and so on.
My hon. Friend is absolutely right. The reasons for giving the Committee the list were twofold. One was to try to reassure the Committee that we did not intend to include offences such as speeding as criminal lifestyle crimes, triggering the assumption on the first offence. The other was to enable the Committee to suggest possible omissions. I would welcome hon. Members' thoughts about crimes that should be added to the list. We are talking not necessarily about the seriousness of crimes but about the proceeds of acquisitive crime, so very serious
crimes that are not acquisitive should, rightly, not be included in the list. That does not detract from their seriousness.
I do not think that any of us would disagree that arms trafficking should be one of the crimes that is caught. However, I cannot see much difference between that and drug trafficking offences and money laundering offences, to which subsection (2)(a) and (b) refer specifically. If it is felt necessary to spell those out in the Bill rather than to do so by regulation, why is the Minister not willing to make specific reference to arms trafficking in the Bill?
I hope that the hon. Gentleman will accept that the burden of one of the amendments would be that, in order to define arms trafficking as a criminal lifestyle offence, wholly new primary legislation would be required. It would not allow such a crime to be defined by order, with parliamentary scrutiny, as a criminal lifestyle offence. I do not know whether he agrees with his Front Bench colleagues about the procedure that should be required in relation to such definition, but that certainly appears to be the suggestion.
Front-Bench spokesmen are not always suggesting that.
It appears that the Minister has not fully taken on board the point of my hon. Friend the Member for Beaconsfield. We would be happy to allow everything in the Minister's guidance list to be included in the clause. Arms trafficking could be added to the list. It is as generic a category as drug trafficking and money laundering. They are not specific offences—they are categories. As it has been a principle that has been established in English law for at least 300 years that the citizen should know what the law is, that should be set out in the Bill.
Conservative Members dislike the fact that the Government have repeatedly ignored that principle, and that they have tried to give the Secretary of State a blanket discretion to add whatever he likes—because that means that the citizen does not know what the law is. That is a bad principle in legislation.
As we go through the Bill, we will be able to show that that is not the case. I recall the comments of the hon. Member for Beaconsfield about the retrospective nature of the Bill. However, amendments have been tabled that will allow the Committee to explore whether it is retrospective. I believe that the hon. Gentleman's comments were not justified.
I wish to plough through this group of amendments to raise the key issues, so that hon. Members can discuss them, as I have kicked the general principle around for a long while.
The hon. Gentleman is saying that a definitive list must be drawn up now, and that there must not be any additions to it, so if it subsequently becomes obvious that a crime should be added, new primary legislation will be needed.
Until recently, it was not generally recognised that organised crime is heavily involved in people trafficking. However, we now know that it is heavily involved in the abuse of asylum, and that it shifts between drug trafficking and people trafficking, according to which activity is more profitable at any given time. The hon. Gentleman is suggesting that if such a situation were to arise again, new primary legislation would have to be introduced to deal with it, and that the Secretary of State should not be allowed, with Parliamentary scrutiny, to bring that within the compass of the regulations by order.
That is incorrect. Assuming that what the Minister describes as people trafficking is a criminal offence, will he explain why that would not be covered by subsection (2)(d)? I appreciate that, before he answers that question, he may wish to receive advice from his officials. However, if the Home Secretary's blanket discretion as laid out in subsection (2)(c) is excised, subsection (2)(d) would still be included, as would subsection (2)(e)—unless amendment No. 279, which was tabled by Liberal Democrat Members and with which I have some sympathy, is made. This is not a matter of, ''You have to have all of them.'' With regard to the way that the Bill is drafted, any of them will do.
The hon. Gentleman knows—or he ought to know, if he has read the Bill, as, unlike me, he is legally trained—that, to trigger paragraph (d), there would be a requirement to show that the person was not only involved in people trafficking on one occasion but had been involved in other criminal activity on more than one occasion. That is the difference between subsection (2)(d) and the list that would be included with the Bill of those crimes that would automatically trigger the assumption of a criminal lifestyle. As the hon. Gentleman knows that, I think that we are playing games.
I hope that I am not playing games. I wish to ask a question about the most obvious and serious criminal for gain, which is the hitman. Would a hitman fall within the definitions of the Bill or the list, if he were a hitman on only one occasion?
He certainly could be categorised as having committed an acquisitive crime, because I am sure that he would not have been a hitman merely for
the sake of hitting people—although, if that were the case, it would not be an acquisitive crime. If he were involved in a criminal gang that pursued profit, his activities would be associated with criminal gain and would therefore be within the definition of an acquisitive crime. I do not know whether a hitman would automatically trigger the assumptions. I will check that out and get back to my hon. Friend.
Mr. Grieve rose—
As the regulations are drafted, the hitman would not trigger the assumptions. He would trigger them only if he committed two other offences, such as not owning a television licence, during the previous six years and thus had committed three acquisitive crimes for gain during the six-year period, or if the prosecutor could demonstrate from other extraneous evidence that he was not a newly arrived hitman but had been in the criminal fraternity for at least six months. That is an exact example of the fettering that I assumed that the Government had considered and decided was legitimate for the sake of not casting the net too wide for all offences.
I am enormously pleased by the hon. Gentleman's comments because, as a hitman, he appears to have shot himself in the foot by proving the need for an order-making power to allow addition to the list of offences that indicate a criminal lifestyle.
Let us move on, otherwise we will be here all day.
Yes, but we would not be able to discuss other amendments, and we would be criticised for that by the hon. Gentleman, without his having to waste time.
Clause 75 sets out the criteria that govern whether a person has a criminal lifestyle. They are completely factual and therefore provide legal certainty. Under current legislation, drug trafficking, including drug money laundering, has always triggered assumptions. A conviction for any drug trafficking offence triggers an examination of the defendant's entire past drug trafficking and the mandatory application of assumptions.
Similarly, the Bill treats drug trafficking offences as conclusive of a criminal lifestyle and, in addition, subsection (2)(b) treats money laundering offences as offences that are always criminal lifestyle offences. Subsection (2)(c), as the hon. Member for Beaconsfield pointed out, enables the Secretary of State to specify by regulations other offences that are always criminal lifestyle offences. Such offences might include trafficking in arms. I have issued a list of offences but I do not understand how it can be conclusive, and that is why there is a need for paragraph (c).
I am puzzled that the Minister read from his brief that clause 75 provides legal certainty. He said that paragraph (c) gives the Secretary of State the power that we described, and that makes our point for us. There is no legal certainty because the scope is
opened for a future Home Secretary to prescribe whatever he likes. Legal certainty would be provided by the incorporation in the Bill of the Minister's guidance list and anything further that he wishes to add.
There are other amendments that deal with the part of the Bill that is retrospective. The Government do not intend to introduce legislation that draws in these offences retrospectively and brings an action that was committed by an individual, which was not known to him at the time to be a crime and may be legal in the future, within a criminal category. We will be able to demonstrate that when we discuss that particular issue. The hon. Gentleman will have the opportunity to prove his case, or otherwise, because of the amendments that he has tabled.
Amendment No. 270 would remove from the Secretary of State the ability to specify new criminal lifestyle offences. In that case, the only offences that would automatically lead to the assumption of a criminal lifestyle would be drug trafficking and money laundering offences. Subsection (2)(c) recognises that there will be other criminal lifestyle offences that may not yet exist when the Bill is enacted. There should be provision for such offences to be added.
That is a bad point. If we enact future legislation to create criminal offences, it would be easy to have a consequential amendment placing that particular category of offence within the confiscation provisions. It can be done routinely without any difficulty.
We are not doing anything out of the ordinary. The hon. Gentleman knows that certain principles should be laid out in primary legislation. There are certain order-making powers built into every Bill that enable Ministers to respond to changing circumstances. His suggestion that we are doing something extraordinary does not bear scrutiny. It should be clear from the list of conduct that I have circulated to members of the Committee that there is conduct other than drug trafficking and money laundering that is inherently indicative of a criminal lifestyle. Our initial consideration exposed a broad range of conduct that falls into that category. I am sure that the Committee will agree that arms trafficking, for example, is always indicative of a criminal lifestyle and should always expose the offender to a criminal lifestyle confiscation scheme without the need for further primary legislation. That is our reason for opposing the amendment.
Subsection (2)(e) states that a defendant has a criminal lifestyle if he has been convicted of any offence committed over a period of six months or more. It will thus be possible to confiscate the benefits from a defendant's entire past criminal conduct if he has been convicted of one offence of any nature. Unless the offence falls under subsection (2)(a) to (c), it must have been carried out over a period of six months or more. The removal of subsection (2)(e) would mean that a person who is charged with a single
offence of cheating the public revenue over a period of 10 years could not be treated as having a criminal lifestyle.
The hon. Member for Lewes talked about the individual who has fiddled his expenses over a period of six months and said that the proceeds of that conduct would amount to pennies, so those should not be the type of people whom we are trying to catch, but in many instances when a person has been involved in criminality for more than a six-month period, substantial amounts would be involved. In a case involving pennies, it is extremely doubtful that a prosecutor would wish to proceed. It would be easy for a defendant to show that there was a real risk of serious injustice. If the overwhelming majority of his property was legally gained, there would be no confiscation. The prosecutor would therefore know at the outset that he was about to waste a huge amount of resource pursuing something when he had absolutely no chance of gain.
That is helpful. The Minister has stated the aim that I believe to be appropriate: to pursue those who have secured a substantial sum over a long period. I have no wish to prevent that from happening, which is why I approached the amendment tentatively. He concedes that the provision to pursue people for pennies, although it would be unwise and unlikely to happen, will still be in the Bill. I therefore hope that he will consider the de minimis point, which I also raised.
The hon. Gentleman is right in theory. A prosecutor has the ability to pursue somebody for relatively small amounts gained by acquisitive crime if that crime has been committed over a six-month period. I do not regard that as a serious threat, for the reasons that I have just given, but it is possible in theory.
Our problem—I think that we have discussed this previously, and I am more than happy to listen to the hon. Gentleman's point of view—is how to build in a threshold that ensures that that does not happen, and satisfies Committee members that that will not happen, without providing a loophole through which the people whom we wish to capture can climb. If we genuinely want the legislation to be effective, we must make absolutely certain that the activities and capacity of the prosecuting agencies are not dissipated by chasing inappropriate people and inappropriate amounts. On that basis, we could consider how to build in some kind of threshold. However, I would need to be satisfied that we had not provided an easily exploitable loophole. Rest assured—the hon. Gentleman knows this—that there are lots of clever people in this world, who have clever representatives, who would climb through it without any hesitation whatever.
May I offer the Minister a way of doing that in a manner that is consistent with lots of other legislation? The kind of safeguard sought by the hon. Member for Lewes—with whom I agree on this matter—would be a provision whereby if the offence were purely summary only it would not fall within subsection (2)(e). That is a frequent feature of legislation, which does not provide a loophole—we are not seeking to water down the Bill—but does introduce a de minimis provision. I offer that to the Minister as the Hawkins amendment.
That presupposes that huge profits cannot be made by summary only offences, which we have also discussed previously. The severity of the offence is not necessarily an indication of the size of the profit that can be made. Whenever one starts to think of thresholds, those problems arise. I fully accept that Opposition Members' suggestions in relation to thresholds and de minimis amounts are for good and proper reasons, but they must bear it in mind that relatively minor offences can generate huge profits.
This discussion has been illuminating. Although the Minister is almost moving away from this now, it seemed that, in introducing confiscation provisions, the Government accepted that being a criminal did not, on its own, mean that one should be subject to confiscation, because that is draconian and reverses the burden of proof. The Government therefore introduced triggers through the criminal lifestyle clause. However, the logic of his arguments is that the Government would have liked a formula whereby any criminal offence makes one liable to confiscation. The civil procedure would have had to be retained for people who have not committed any offences at all. One is therefore left with an unpleasant feeling that the Government have felt constrained not to widen the scope, but are now trying to ratchet it back through the statutory instrument framework that they are introducing.
I assure the hon. Gentleman that that is not the intention. I do not know whether he listened to my explanation, but he has got it wrong. It is right that any acquisitive criminal activity triggers confiscation, but it does not trigger assumptions. We do not desire or intend to extend the list to include every criminal activity. I have tried to reassure the Committee by telling hon. Members what kind of offences we have so far identified that should automatically, on a single offence, trigger the assumptions. The Government do not intend to include crimes that differ dramatically from that kind of offence. A single offence of drug trafficking, people trafficking, arms trafficking or money laundering should be enough to trigger the assumptions, because of the nature of those offences.
I do not think that the Minister fully understands my hon. Friend's point. We have no difficulty with large-scale offences such as money laundering and drug trafficking. We have not sought to take out paragraphs (a) or (b). We have suggested
adding extra categories of more serious offences to those that he mentions. We are certainly not trying to water down the provisions.
The Minister cannot have it both ways. He may say that the draconian provisions are not intended to apply to anything other than serious crime. Summary offences, as has been decided in other legislation, are not serious crimes. I understand that large profits can be acquired through some summary offences, but it would be unusual for a summary offence to enable anyone to earn large profits. I hope that he understands our point. If he believes that the draconian provisions should automatically apply to only very serious crime, he should be prepared to insert a de minimis provision to restrict its application to summary offences.
We have, Mr. McWilliam.
I can only try to reassure the hon. Gentleman by saying that we do not intend to extend the list, by order, to summary offences. Summary offences can be brought into proceedings, and can thereby trigger the assumptions, if it is shown that they are part of a repeat pattern of offending. It is not our intention that a person's first conviction for a summary offence should automatically trigger the assumptions.
The hon. Gentleman asks us to say that we should have a definitive list, and asks that the Bill contain no provision to extend that list. I resist that, because it may become apparent to everybody that a certain category of crime should have been included, and we would then have to introduce primary legislation in order to include it.
I understand why the Minister has made that point. I do not want to preclude him from suddenly identifying a serious offence that must be included—he would be absolutely right to include such an offence—but the Anti-Terrorism, Crime and Security Bill, which was debated in the House only the week before last, took a different approach. For example, it listed in a schedule all the chemicals that it would be an offence to hoard, but it also gave the Government the power to amend that schedule by secondary legislation. That is a slightly different approach. As a halfway house, could the Minister include a schedule to the Bill that reserved the power to amend the provision?
I am not surprised that he has not. I am staggeringly impressed that he is able to delve into anti-terrorism legislation while delving into this Bill and doing God knows how many other things. I have not noticed anything in the Bill that is out of kilter with the anti-terrorism legislation. I do not have the hon. Gentleman's capacities.
The Minister assures us that the Government do not intend to bring summary offences within the scope of the Bill, but how can he
reassure us that that will not be the intention of future Home Secretaries, who might be less benign than the present incumbent? When the Bill is on the statute book, will it be possible to fetter the Home Secretary in the way that my hon. Friend the Member for Beaconsfield described?
When the hon. Member for Lewes attempted to frighten me with the bogeyman of a future Tory Home Secretary I could, at least, see where he was coming from. When the hon. Member for Henley (Mr. Johnson) tries to frighten me with such a prospect, all kinds of considerations are thrown up.
The matter is not out of kilter with the way in which current legislation is structured. Subsection (2)(c) gives a future Home Secretary the power to add to the list, but he will be subject to parliamentary scrutiny. If a future Home Secretary of any political complexion tried to include an offence that was totally out of line with those that are included, that would become a public issue and he would have to justify his actions to Parliament and to the court of public opinion.
I give some reassurance to the hon. Member for Henley. As the Bill is drafted, the negative procedure would be used. Any addition to the list would have to be prayed against by Opposition parties. If there is a lot of worry about the matter, I will consider whether the affirmative procedure should be used. That may alleviate hon. Members' fears.
I, too, am worried, and I offer the Minister an alternative way in which to help my hon. Friend the Member for Henley. I accept that the Government do not intend to use the powers in the way that we are worried about. Will he consider introducing a provision to make paragraph (c) lapse when the next general election is held? That would be a real way to demonstrate his commitment to prevent misuse of the power by any future Government.
I have never known a sunset clause to lapse not after one or five years, but at the next election. Perhaps we should wait and see who wins the next election, so that we can ensure that the provision lapses if we wind up with a potentially non-benign Home Secretary. The only matter on which I agree with the hon. Gentleman is that we should all help the hon. Member for Henley.
I suggest that the Minister considers seriously the point of the hon. Member for Spelthorne (Mr. Wilshire). I would like nothing more than to campaign during the next general election by saying that Labour will retain the list of specified crimes and that, presumably, the Tories favour its removal. I would be keen to say that the Tories are soft on crime and that we are determined to protect our people.
Clearly, clause 75 is of key importance. My hon. Friends the Members for Beaconsfield and for Surrey Heath (Mr. Hawkins) rightly said that the clause, as currently couched, adds an extra layer of uncertainty. Has consideration been given to reverting
subsection (2) to a list of offences that would not be caught? Would that be a more sensible way of proceeding? It would be easy, for example, to envisage the inversions of paragraphs (d) and (e). No doubt summary offences would be part and parcel of that. I hope that the Minister understands the genuine and principled concern of Conservative Members about a large and uncertain clause that could be added to on an ad hoc basis. Would the matter be easier if the clause was negative, rather than positive, listing the offences that would not be caught?
I know what the hon. Gentleman is trying to suggest, but it would be very difficult. We try to ensure that a positive list is comprehensive and argue about whether the Secretary of State should be able to extend that list. I hate to think how much time it would take to draw up a comprehensive negative list, how long and complex it would be, and how many worries would arise from it.
That is correct. Moreover, with regard to anything that was left off the list, the assumptions would be automatically triggered.
While my hon. Friend is slapping down that proposal by the hon. Member for Cities of London and Westminster, will he also bear in mind another of the hon. Gentleman's suggestions—which I strongly support—that insider dealing should be included in the list of offences that would trigger the mechanism? That is a constructive suggestion—and who better to advise the Committee on the seriousness of insider dealing than the Member who represents the Cities of London and Westminster?When the hon. Gentleman next walks along the streets of London and Westminster, he will be applauded by his constituents, who have obviously impressed upon him the need to do something about insider dealing. I say to the Minister, ''Don't be a softy; accept the suggestion by the Opposition Member, and call it 'the Field amendment.'''
I cannot remember whether the hon. Member for Cities of London and Westminster actually made that suggestion; perhaps he has been misrepresented. However, if my hon. Friend is confident that he did say that, he should ensure that the hon. Gentleman's constituents are aware of it, so that they can take it into account when they consider whether he is representing them properly.
We are having a bit of fun, but we are also dealing with a serious clause, and now we must try to address its key issues. Amendment No. 280 would require a defendant to have benefited from the combined triggering offences to the tune of £5,000. Part IV of the Criminal Justice Act 1988 instituted a £10,000
threshold, below which confiscation could not be considered. The effect of that threshold was to reassure criminals that their ill-gotten gains would be safe from confiscation if they hid all but £9,999 of them. Amendment No. 280 would have a similar effect—albeit at a lower threshold. It would reassure repeat acquisitive offenders that a criminal lifestyle action could not be taken against them if the authorities were unable to prove that the benefit was more than £5,000.
I recognise why hon. Members are concerned, and what they are trying to achieve. If a way could be found to achieve their aim without providing loopholes for serious criminals to climb through, I would want to consider it. However, as our discussions both inside and outside the Committee have indicated, there is a real danger that loopholes will be created. I will continue to consider whether something can be done, but I have real fears—which some hon. Members are not taking as seriously as they should—that if a proposal for a threshold were not properly thought through, it would, in practice, be wide open to abuse.
I hear what the Minister says, but £5,000 is a low figure—it is even lower than the threshold in the previous provisions to which he referred.
Concerns have been expressed about summary offences. Does the Minister not agree that dealing with a set figure addresses the problem that summary offences can also involve large sums of money? The amendment, by defining a low sum, would be a cleaner way of dealing with that—and the Minister is clearly sympathetic to it.
I am always staggered by the affluence of other hon. Members. The hon. Gentleman has stated that £5,000 is a low figure. If I had obtained £5,000 by committing a crime, I would not consider it to be a low amount.
I shall not say any more, except that I acknowledge that hon. Members are genuinely attempting to steer the legislation in the right direction. However, I cannot see how we could do that without providing escape routes for serious criminals. That is why I am not minded to do it. I do not want to give members of the Committee the impression that I would take such action.
The amendment would have a harmful impact on the practical effectiveness of confiscation. The sort of offender at whom confiscation is targeted often makes a small amount from an individual offence, but huge profits from repeat offences, such as selling pornographic videos. The offender's profit from a single offence of producing a video may be only £10, but he may have produced and distributed a quarter of a million videos in a month or six months and made substantial profits. Under the amendment, it would be possible to take into account only the offences on the charge sheet, or a single offence in the present proceedings and one offence on two previous occasions. Such a measure would go nowhere near the
£5,000 limit and we would have put the ill-gotten gains of wide range of offenders beyond the reach of confiscation.
Amendments Nos. 271 and 272 bring us back to last week's debate on clause 70. Under amendment No. 271, a repeat offender would not be deemed to have a criminal lifestyle if any of the offences of which he or she had been convicted was a level 1 offence that did not attract a term of imprisonment. Amendment No. 272 is related to amendment No. 271, and would mean that particular criminal conduct would not include any level 1 conduct that did not attract a term of imprisonment. The principle underlying the Bill is that a criminal lifestyle may be shown by repeat offending from which the offender has benefited. If we moved away from that principle, we would create difficulties.
I think that I have covered the points raised by the amendments and clause stand part. We cannot accept the amendments. They would provide unnecessary safeguards. Such practice would not be triggered and has not been so triggered under current legislation. The hon. Member for Beaconsfield says that we are widening the provisions, and I accept that we must think seriously about such points. However, I ask hon. Gentlemen to withdraw their amendments; if they do not, I shall ask my hon. Friends to vote against them.
I have listened carefully to the Minister. I hope that he can reassure me about our underlying concerns raised on the amendments and clause stand part. I do not want to lengthen the debate for the sake of it—I never do that. I accept that the hon. Gentleman has tried to be as helpful as he can, but sadly, he has not responded to my worries about the clause. The main point in his response was that there are safeguards in the Bill and our amendments would provide loopholes for the potential criminal. I accept that such thoughts are fashionable, but the more I have listened to the debate, the more I have reached the conclusion that the clause puts loopholes into the Bill for the benefit of the prosecution, not the defence.
I shall explain why. The Minister has made much of the fact that there are two overarching safeguards. He has repeatedly drawn our attention to the idea that there is a serious risk of injustice. That is helpful, except the provision already concerns a serious risk of injustice. I take it from that that the hon. Gentleman is happy to contemplate minor risks of injustice. I see this clause as providing loopholes so that the prosecution can say, ''This will catch that person, and the amount of injustice will not be serious; it will be minor.''
hoped that the Minister would deal. He suggested that subsection (2)(c) could safely remain, so that the Executive and the legislature could make their meaning crystal clear to the courts, and the courts would do precisely what they were told, irrespective of whether the legislation was drafted correctly or whether they interpreted it right. The Minister should have addressed such a fundamental point. The fact that he did not do so leads me to wonder whether the amendments need to be taken a great deal more seriously than the Minister appears to have taken them. The hon. Member for Glasgow, Pollok sought to undermine the key safeguard of the liberties of the British subject—the rule of law, for which he would substitute the diktat of Parliament, or of the Executive. If that is the purpose of the provision, it is wrong; it is not only bad legislation, but wrong.
Are we moving towards saying, ''The Home Secretary of the day will decide that the courts are wrong. Hard luck.'' If so, I do not mind which political party provides the Home Secretary—this is not an attack on a Labour Home Secretary, and I hope that I would have the guts to stand up and say exactly the same thing if my party were to give that kind of power to a Conservative Home Secretary—it should not be allowed. However much the Government say that they do not intend to misuse the power, it undermines the rule of law. I accept exactly what the Minister says, and I offered him a way of dealing with the matter—to say that the provision would be for the duration of this Parliament, or for as long as his party provides the Home Secretary. If you read your history books, Mr. McWilliam, I am sure that you will agree that history teaches us that if there is a power that somebody can abuse, sooner or later somebody will abuse it.
Order. I can reassure the hon. Gentleman that when I moved from Scotland to England 25 years ago, I did read my history books, because the kind of history that I was taught in Scotland is rather different from the kind of history that one is taught in England.
Yes, Mr. McWilliam, that is right. I would not claim to be a student of Scottish history, but I am sure that you would accept that it is not sufficient to say that because we are English or Scottish—or British—we would never do what other countries do and abuse the powers given to the Government of the day. We would be foolish to assume that we would never go down that route. It is therefore entirely wrong for the Bill to include a clause that says, in effect, ''This Act can mean whatever the Home Secretary says it means.'' Either the list that the Minister provided is included in the Bill as a further list of offences, or it does not ultimately mean anything. The Minister can give us all the assurances that he likes, but he could be replaced by somebody who will have no obligation whatever to stand by those assurances. He is wrong to reject amendment No. 270. I urge him to accept that more thought should be given, on Report or in another place, to extending the list of the items that are to be caught, so that the potential need to return to primary legislation is reduced to an absolute minimum. It is no
argument to say that we cannot afford to run the risk of needing primary legislation to close a loophole. Only last week, it was reported that human fertilisation and embryology were not covered by legislation. That was a rarity; in my 14 years in Parliament, that has not happened often—and the events of last week demonstrated that if something of that sort cropped up, we could deal with it.
If the list in the clause is sufficiently long and robust, there is only a small risk that Parliament will need to close a loophole through primary legislation. It would be worth taking that risk in order to counter the point made by the hon. Member for Glasgow, Pollok, who said that we were giving the Home Secretary the power to run the country by diktat.
The Minister did not respond to the question that he was repeatedly asked: why does the Home Secretary need this power, unless it applies only to legislation? We asked the Minister to tell us whether there was any other reason why the Home Secretary should have that power.
The Minister asked whether there were other ways to alleviate our concerns. I think that there are. If the Minister is determined to dragoon his Back Benchers into voting against the amendment, he should restrict the type of offence that the Home Secretary can introduce by diktat. We could specify that the Home Secretary's powers should cover only offences that carry a specified minimum term of imprisonment, or a fine of a specified minimum level. That is an alternative way of stopping the Home Secretary from catching whatever he likes.
I think that it was the Minister who said that the severity of the crime does not necessarily equate to the benefit derived from it. Clearly, he has thought about the fact that simple minor crimes could be used, but that is precisely what he suggests will not happen in this case.
Why does the Opposition Whip feel that he must intervene at such length? Does he believe that the Opposition's excellent spokesperson has not challenged the Government adequately? I think that the Opposition spokesperson is very good, and the hon. Gentleman should have more faith in him.
I would never presume to suggest how the Government should organise their business, and I hope that the Government will not tell us how to organise ours.
Mr. Foulkes rose—
When the issue of insider share dealing was first raised, I wondered whether I should raise a point of order—but I took the comment light-heartedly, and thought that I should let the matter run. Now that the issue has been raised again, I must say that I felt that the original intervention was perilously close to suggesting that my hon. Friend might somehow be involved in insider dealing. If that is the case, that suggestion should be rebutted.
Order. I, too, thought that there might be a point of order on that subject—and I almost raised it myself, because I got the impression that the constituents of the hon. Member for Cities of London and Westminster were being accused of insider dealing. Given that I still appear on the electoral roll for Cities of London and Westminster, it went through my mind that the hon. Member for Glasgow, Pollok might not be treating the Chair with the deference to which I am entitled.
I hear what you say, Mr. McWilliam. It is not only when we say ''you'' that you feel got at, but when we refer to certain issues. That is another good reason why the matter should be left alone. You can now sleep peacefully in your bed in the constituency of Cities of London and Westminster.
Subsection (2) states:
''The condition is that the offence (or any of the offences) concerned satisfies any of these tests''.
I take that to mean any one of the tests. It is important that that matter is clarified because it would give substance to some of the issues that flow from it. The clause refers to an offence having been
''committed over a period of at least six months''
Let us suppose that that was the only test.
I am sure that the English language aspect of the clause does not need to be clarified, but we need to know whether any one of the tests will be sufficient. The matter may seem trivial, but it puts in the frame someone who has been driving a car for more than six months with one of the brake lights not working, which had not been noticed by the police.
Yes, there are plenty of examples of the provision being a catch-all. That is why it is right to worry that it may provide loopholes for the prosecution rather than for the defence. Any minor activity that has been going on for six months is
sufficient to be caught by the Bill. I suggest to the Minister that some thought ought to be given to specifying the severity of the activity that has been going on for six months, so that we do not have to worry. Some may say that by raising such trivial points, I am lowering the debate to an absurd level—[Hon. Members: ''Hear, hear.''] I am grateful to Labour Members for confirming that, because it reinforces my worry.
If we give the Home Secretary power to do what he wants by diktat, and a provision allows him to catch rear lights or tachographs, there will come a day when a Home Secretary—who may not be Labour, Conservative, or even Liberal Democrat; who knows?—may use such a trivial point to tip the balance of justice so far in favour of the prosecution that serious, not minor, injustice is done by diktat. I ask the Minister to consider such matters.
Subsection (2)(d) refers to an offence that
''constitutes conduct forming part of a course of criminal activity''.
Will the Minister clarify whether the provision refers to a course of criminal activity in which convictions for each of the items of conduct are considered, or to a course of criminal activity about which the prosecution makes assumptions and says that because the person is a criminal, it should be assumed that his conduct was criminal activity? The critical question is whether that means conduct of which someone has been convicted, or conduct that someone is assumed to have been involved in.
I draw the Minister's attention to subsection (3)—[Interruption.]
As far as I knew, nothing did exist there, Mr. McWilliam, because I did not notice what was happening.
Subsection (3) refers to a person who benefits from certain conduct. I assume that the Government mean financial benefit, but it would help to have that clarified, for two reasons. If they mean financial benefit, we could argument for a de minimis figure—although whether the hon. Member for Lewes is correct to suggest £5,000 is not an argument that I wish to enter. We should specify a level below which a court will not waste its time by chasing the money, because—even for the Minister—a point is reached at which a sum becomes trivial. I accept that the sum is not £5,000 in the Minister's case—and probably not in mine, either.
We should be clear whether the Bill means benefit in kind rather than financial benefit. I shall give the Minister an example, which is not trivial and raises questions about how we should proceed. Last week, I raised on the Floor of the House a matter involving crimes of religious hatred. I will not debate that again, but the example involved an allegedly Christian cult that was involved in pornography and paedophilia. The cult's literature is prosecutable, and at the time of my investigations, the printer of the material was known. The police were not able to make a case, but it was clear that the printer in the midlands was not being rewarded financially. The material that he printed was prosecutable, so the crime was substantial. However, the printer, as a paedophile, was provided with young children from the sect to satisfy him in his base activities. Money did not change hands, but he received a benefit. The organisation owned large amounts of money.
Will the Minister explain whether ''benefited'' means benefited financially? If it means benefiting in kind as well, that should be in the Bill, to avoid doubt and to ensure that people who indulge in such disgusting activities, for whatever reason, know that they will be caught.
Subsection (3)(a) refers to other offences, and states that a person must have committed three such offences. My hon. Friend the Member for Beaconsfield said that that would exclude a single motoring offence. In my constituency, I am blessed—or otherwise—with the part of the M25 that is subject to compulsory speed limits. A person can drive on the M25 from home to Heathrow airport—quite possibly in order to indulge in substantial criminal activity—and, depending on the severity of the traffic, commit three motoring offences on the same morning by passing three separate speed cameras. That is a further reason to specify the minimum offence and to exclude speeding offences. Otherwise, we hand the prosecution a loophole it may be tempted to use against a person on whom a charge cannot be made to stick in any other way.
Subsection (3)(b) refers to convictions on two separate occasions. I mentioned the example of someone going to Heathrow airport to indulge in major criminal activity—after all, drug trafficking, money laundering and so on often takes place at that airport. That could occur on two separate occasions, and a person could rattle up three offences in one morning, go to Heathrow airport twice in the same week, and thus satisfy the conditions that the Minister tells us he does not intend to be a loophole to undermine the safeguards. The Minister did not address those genuine points the first time he spoke, so I invite him to do so when he responds now. If he does not, I hope that my hon. Friend will press the amendments.
I wish to speak on this matter, but I will refrain from making several points that I would have liked to make because I—unlike, I suspect, several other hon. Members—do not wish to avoid debating later clauses.
Several other offences should be included in the published list, in particular fraud and a variety of other white-collar crimes. The Minister should also include reset and its English and Welsh equivalents—and he should take more seriously the suggestion made by the hon. Member for Cities of London and Westminster, to which I shall return.
Does the hon. Gentleman agree with my party—rather than the Minister—that the provision would be more effective if there were a more comprehensive list? That is the implication of what he is saying. He is asking the Minister to add more offences; that is precisely what we are arguing for—and what the Minister is resisting.
The hon. Gentleman mentioned a term in Scots law that I have heard of, and its English and Welsh equivalents. It would be helpful to my hon. Friend the Member for Beaconsfield and me—and perhaps to other Committee members, too—if the hon. Gentleman would expand, in layman's terms, on how that offence is described and used in the Scots court.
I want the list to be expanded to include several offences that might otherwise be omitted. As for explaining terms in Scots law, I hold to the same view as the hon. Member for Surrey Heath, when he quotes Latin phrases—that people should find out for themselves.
I return to the proposal by the hon. Member for Cities of London and Westminster about insider dealing. I detect that there is a majority in the Committee in favour of the inclusion of that offence. We are certainly not suggesting that it is an offence committed by you, Mr. McWilliam, but given that it occurs most often in London and Westminster—although not necessarily committed by the constituents who live there—who better than the hon. Gentleman who represents that constituency to bring it to our attention?
The ''Field amendment'' should be included in the Bill. A helpful observation has been made by the hon. Member for somewhere or other, the Opposition Whip—[Interruption.] It was the hon. Member for Spelthorne. He said that Conservative Members were operating as a unified team. It is therefore reasonable for the Committee to assume that the proposal to include insider dealing as an offence has the support of the Conservative party not only in the Committee, but in the House as a whole. If that is not the case, it would be helpful if an Opposition spokesman stood up and said that they were in favour of being soft on insider dealing. I take the fact that no one has done so as confirmation that there is a clear majority in the Committee in favour of including that offence on the list.
It is helpful that that has been confirmed. Given that Conservative Members have raised the subject again, I hope that it will be promoted to the top of the list. I do not know whether it is in order to propose amendments to the order of the items on the list, but the Field amendment would lift insider dealing higher up the list.
That is an interesting suggestion, but I am prepared to allow the Minister to consider further. I—and, I suspect, several other hon. Members—have been slightly deceived by the Minister's approach. The mere fact that he was previously a Whip led me to believe that he was nothing more than a thug—but that is undoubtedly not the case.
I rest my case, Mr. McWilliam.
We have been joined for the moment by the hon. Member for Henley, so I am tempted to suggest that appearing on light entertainment programmes and making an arse of yourself might be considered an offence—but that is a technical expression, Mr. McWilliam.
That shows how grave a risk the Bill causes of misapprehension by the courts of people who are guilty of nothing except appearing on a programme and legitimately claiming £1,000. A future Secretary of State might well outlaw such an activity—or, indeed, anything else. That shows how grossly widely the Bill is drawn, and how inimical it is to the interests of innocent people.
I want to rebut a point that this chap from Glasgow, Pollok continually asserts—that is the will of the Opposition to frustrate the law and side with criminals. That is not our intention. We wish to see justice done. It is scandalous that so many Labour MPs, who came into politics to stick up for the underdog, should be rushing through such a Bill, which risks injustice for the little man.
Thank you; that is generous of you. Mr. McWilliam.
When including offences on the list, will the Minister consider whether it is possible—not having a legal background, I am not clear about this—to include being a lawyer or an accountant deemed to have helped criminals to hide their ill-gotten gains? It must be clear that those who help criminals hide their gains and find their way round the system, and who are found to have committed any offence, make all their own assets vulnerable. Many criminals, certainly those in my neck of the woods, could not survive and could not hide their assets, were they not receiving professional support from lawyers and accountants.
That raises a very serious point. Let us suppose that a professionally qualified person, be he an accountant or a lawyer—acting in his professional capacity and meeting all the requirements of integrity and honesty placed upon him by his profession—helps and advises a criminal or an alleged criminal who is then convicted. Is the hon. Gentleman seriously arguing that that professional, who is only doing his job, should put his livelihood at risk as well? If that what he is saying, it is monstrous.
No, I am not suggesting that a lawyer or an accountant who meets all the professional standards should be deemed to commit an offence. I am not suggesting that for a moment. However, it is widely believed that there are lawyers and accountants who help criminals. They are therefore not meeting all the professional standards required, and their own professional bodies are not adequately policing them. The ability of criminals to hide the gains from their activities would be greatly diminished if all lawyers and accountants obeyed the highest professional standards as laid down by their professional organisations—but anybody who believes that that is happening is living in a dream world. I do not believe that it is happening; and it is a major cause of difficulty that needs to be addressed.
We should reflect on why we are pursuing this matter, and on the scale of the problems faced in some constituencies. In the area covered by Strathclyde police, the number of deaths per year from drug overdoses is greater than the number of Conservative Members in the House of Commons. If we add to that other deaths related to criminal activities, at one
remove, there are probably twice as many. If we remember that we are probably here for a five-year Parliament—
I am prepared to accept that, Mr. McWilliam, but I thought that it was worth while to clarify why some hon. Members feel strongly about the matter.
To return to subsection (2)(c), we must take into account some of the offences that flow directly from drug dealing and associated activities. In many areas in my constituency, families cannot leave their homes unoccupied in case they are broken into, so they are unable to go on holiday. Burglars who break into those homes to seize assets to resell do so at the behest, effectively, of drug dealers. Consistent and aggravated burglary should therefore be included, along with reset—to clarify that term for the hon. Member for Surrey Heath, I should explain that it means the disposal of stolen property.
This is an essential part of the legislation, and I hope that the Minister, while resisting the temptation to specify every offence that would be caught, will none the less be prepared to expand the list to make it absolutely clear that the Government take a hard line on such matters, so as to protect the people whom we are elected to represent.
This has been an interesting debate. I always listen carefully, especially to the comments of the hon. Member for Glasgow, Pollok, who raised some of the background issues relating to the introduction of this legislation—such as the desire to curb certain types of crime—and talked about the impact on his constituents. I am always mindful of that, especially when the Minister says that we must be careful not to introduce too many loopholes, as criminals will climb through them. That is a legitimate point. However, it might be helpful to remind hon. Members of some of the general principles, of which it is terribly easy to lose sight when we spend our time reading the detail of the Bill.
One of the comments made earlier was about whether the hitman—or hitboy—who reached the age of 18 without having committed any offences, decided to become a hitman and committed one offence, might fall within the definition of having a criminal lifestyle. Under the Bill as drafted, unless the offence were included in regulations, the answer was no. I had the impression that one or two hon. Members were rather horrified by that. However, it is worth remembering that the Bill includes the power to confiscate in relation to ''particular criminal conduct''. The money that the hitman received for the hit would be confiscated under the clauses that relate to particular criminal conduct. It is not as though confiscation would not take place.
The Bill draws a distinction between particular criminal conduct and general criminal conduct. Under a consideration of general criminal conduct, the scope of the confiscation provision is massively widened. The court is then asked not to consider a defendant's
benefit from a crime, but to carry out a wide-ranging investigation of all his assets. Moreover, it must do so under a system in which assumptions can be made that reverse the burden of proof and impose on the defendant the fairly onerous task of proving that his assets are legitimate, and not wholly tainted with criminality.
The defendant may be able to show that some of his assets are his legitimate inheritance, but the burden to do so is placed on him. As the Bill covers such an extended period, he will not necessarily have records. In fairness to the Government, I must add that they plainly felt anxiety about the provision. Although there is a history for subsection (2)(a) and (b) on money laundering and drug trafficking, the provision is so wide-ranging that it raises issues about human rights and rights to property—matters that the Committee must consider carefully.
The Government's approach is founded on the procedure that was already available for two offences: drug trafficking and money laundering. That is why those offences feature in subsection (2)(a) and (b): they are simply repeated from earlier legislation, and we do not suggest that they should be removed from the Bill.
Two further categories of activity are listed in subsection (2)—I do not take issue with them, either. They include any offence that
''(d) ... constitutes conduct forming part of a course of criminal activity''
''(e) ... is an offence committed over a period of at least six months.''
That seems to cover what I would call the active criminal, rather than the one-off criminal. Those provisions enable us to catch many more criminals. In addition, subsection (3) defines
''a course of criminal activity''.
We have expressed anxiety about threshold offences, because one could cross the threshold by committing a minor offence. Perhaps we shall vote on that; I do not know whether the hon. Member for Lewes will press amendment No. 280.
That is already a wide net, but the Minister tells us that because of problems of definition, we must make it even wider by giving the Secretary of State power to introduce further categories of one-off offences—although possibly that will be by the affirmative rather than the negative procedure; I am grateful to the Minister for that concession.
I worry about the powers under subsection (2)(c). When we set out to scrutinise the Bill, there was a clear distinction between particular and general criminal conduct, which is in danger of becoming ever more blurred. I would far rather make an attempt at defining the offences than give the Secretary of State power to add further offences by statutory regulation. We must not allow progressive ratcheting, because that would allow any offence to lead to a general investigation using the assumptions about criminal lifestyle.
That was plainly not the Government's intention when they introduced the legislation, and Parliament should not take such a step. I have significant anxieties, especially because there is a civil recovery procedure later in the Bill, which is available against any person, be they criminal or non-criminal. I suspect that we will discuss that, but we do not have a philosophical objection because the burden of proof will remain on the prosecutor or director who brings the proceedings. I worry about reversing the burden of proof unless there are compelling reasons for doing so, such as because the evidence of criminality is so manifest. The danger of the procedure of adopting offences by statutory instrument is that crimes may be included in which the manifestation of general criminality ceases to be obvious to the public, or to us. Although I have listened carefully to the Minister—I am grateful to him, and I hope that he will indeed consider using the affirmative procedure—we are discussing an issue of principle that we intend to put to a vote.
I want to put on the record a slight worry that I have, which is not about subsection (2)(c). I see forcefully the case for the Secretary of State to have the power to create a further list of offences by regulation in certain circumstances, because there are fads in criminal conduct and different acts may arise in the future that cause serious worry. It would be wrong for the Secretary of State to be hampered and inhibited; it is right that he be empowered to deal with such changes.
We already have a draft schedule of serious criminal offences that the Home Office anticipates will be included in regulations. We have also heard suggestions of further serious offences for gain that are excluded from both the Bill and the draft schedule, such as murder for gain, armed robbery and aggravated burglary. I do not understand why such offences cannot now be included within a schedule, to direct future Secretaries of State when further ministerial discretion must be exercised. I am not worried about the existence of subsection (2)(c), but about why the offences that should fall within the ambit of the regulations are not currently specified.
I do not argue in principle with what my hon. Friend has said. However, the schedule must define the conduct and we must relate that to the offences. Offences such as those that he raised may have to be included. I do not think that there is a point of principle at all; my hon. Friend is just worried that we are not further along with the process, and we do intend to move in the direction that he suggests.
The hon. Member for Beaconsfield struck at the heart of the matter. We differ fundamentally if he insists that we should remove the power to add further offences to the list. Despite the different powers in the Bill that he expounded, we need that fallback provision in case something arises after the Bill has been enacted. We should not have to return and make more primary legislation. The hon. Gentleman made his point eloquently and succinctly, but we will not be able to agree.
I do not see the point in responding to many of the other comments, which have been made for many reasons. My hon. Friend the Member for Glasgow, Pollok wanted to put his points on the record. I am not dead sure about the motives of the hon. Member for Spelthorne, but I did not detect anything new in anything that he said.
Before we move to a vote, can the Minister confirm that he is willing to consider inserting into the Bill a schedule to formalise the crimes that he identified on the list that he circulated? Furthermore, will he consider whether the de minimis provisions can be drawn up in a way that does not produce loopholes?
I am not giving the hon. Gentleman assurances about thresholds. I recognise the advantages in such a proposal, but I also recognise the potential for huge problems. I would have to be absolutely convinced that loopholes would not be exploited. I am not positively thinking of such measures. As for exactly how we deal with the list and its expansion, I do not know. I shall think about it and let the Committee know how best it can be dealt with. As my hon. Friend the Member for Wellingborough (Mr. Stinchcombe) said, even if we had such an expanded list, the ability to add to that list would not be removed from the Bill. That is a point of principle with the hon. Member for Beaconsfield, and it is one about which we shall have to disagree.
Question put, That the amendment be made:—
The Committee divided: Ayes 4, Noes 10.