Schedule 3

Proceeds of Crime Bill – in a Public Bill Committee at 10:30 am on 18 December 2001.

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Powers of interim receiver or administrator

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

I beg to move amendment No. 309, in page 262, line 20, leave out from 'may' to end of line 22 and insert

'not be used in evidence against him in criminal proceedings.

(3A) Sub-paragraph (3) does not apply—'.

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

With this it will be convenient to take the following:

Amendment No. 359, in page 262, line 27, leave out sub-paragraph (3)(c).

Amendment No. 360, in page 262, line 29, leave out sub-paragraph (4).

Government amendment No. 310.

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

Amendments Nos. 309 and 310 alter the provisions giving protection against self-incrimination under paragraph 2, which gives the interim receiver or administrator the power to obtain information or to require a person to answer a question. It is a significant power and may result in the person providing evidence against himself. Sub-paragraph (3) therefore makes provision as to the circumstances in which compelled answers can be used in legal proceedings.

As the schedule is currently drafted, compelled answers may be used only in civil recovery proceedings in a prosecution for perjury or for some other offence if, in giving evidence, the defendant makes a statement inconsistent with that, and the statement arises out of the defence case. We are clear in our mind that an answer should not be used in relation to criminal proceedings, except as described under the schedule.

We consider, however, that the provision in relation to the use of compelled answers in civil proceedings is currently too narrow. Sub-paragraph (3) will allow an answer to be used in relation to civil recovery proceedings, but not in any other civil proceedings. That is too restrictive. The restrictions under paragraph 2 of the schedule in relation to criminal proceedings reflect the Strasbourg case of Saunders v. United Kingdom, which has no relevance to civil proceedings. We therefore see no reason why an answer given in response to the exercise of the power under paragraph 2 should not be available for all civil proceedings.

Amendment No. 309 establishes that an answer may not be used in criminal proceedings except as provided for under the schedule. There is no change to the conditions under which it may be used. There is therefore no change to the position in criminal proceedings. The effect of the amendment is, however, that the answer can be used in all civil proceedings, not only in civil recovery proceedings. The amended provision will also be consistent with the self-incrimination provisions under clause 349, which relate to the use of statements made under disclosure orders.

Amendment No. 310 is consequential on amendment No. 309.

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

Given that the Minister approaches the matter from one direction while I approach it from another, our amendments touch on different issues. The hon. Gentleman is attempting to widen the use and scope of the evidence that has been given effectively under compulsion in civil proceedings. Our amendments, particularly No. 359, were tabled to see whether we should narrow the scope under which the information provided could be used in criminal proceedings. Amendment No. 360 is more of a probing amendment under which we want to explore the intention behind sub-paragraph (4), because we consider that it is slightly convoluted. I look forward to hearing the Minister's response.

I will deal first with the Minister's amendments. I understand that the reasoning behind the provision is to widen the replies and to allow their use in relation to civil procedures generally. However, given the unusual nature of the power, the clause should not be maintained as it stands. I shall be interested to hear from the hon. Gentleman how the intention to depart from the current practice was derived. There is currently a restriction on allowing such information to be adduced in civil proceedings. Is he seeking to widen the powers, when we should be going in the other direction? That said, if he can persuade me that there are good and sufficient reasons why such information—which is effectively supplied under compulsion for a specific purpose—should then be made available in civil litigation, I shall not press the amendment to a Division.

The matter raises other issues. When the receiver is carrying out the receiving, full proceedings may not have taken place. Indeed, the information supplied to the receiver will have been stored and may not lead to a successful civil recovery. In subsequent civil proceedings, individuals—I assume that, in respect of civil litigation, we are talking about litigation between individuals and corporations—may seek access to material that the receiver has obtained and held confidentially. How would that information be obtained from the receiver? Does the civil litigant make an application to the court and say, ''I believe that, in the course of an investigation, the receiver asked questions of an individual to which replies were given. May I have access to those replies?'' What are the criteria, in respect of confidentiality, that would be applied by the receiver and by the court to make that information available?

The Minister put forward a broad proposition. It should, in principle, be possible for information previously supplied to the receiver to be made available in civil litigation. How, in practice, would that be carried out? I worry about that. It would have been much simpler to retain the confidentiality provision, especially because the information that the receiver is obtaining is not necessarily linked to any wrongdoing by that individual. At the time that the receiver obtains the information, the wrongdoing will not have been proved.

I shall return to the Government amendments when I have heard the Minister's reply. I shall now discuss my amendments. In respect of the criminal law, is it correct that we should allow evidence to be adduced when, in giving evidence in the prosecution of some other offence, the defendant made a statement that was inconsistent with a statement that he had previously made to the receiver? In my experience, there are instances when statements or signed documents that were prepared during litigation were not made available to the court in criminal proceedings, even though they showed a contradiction.

I recall a case that I was prosecuting, in which a defendant in the witness box gave certain information about his finances that sounded extremely odd. When I looked at his legal aid application form, I found that he had signed a document that gave completely contradictory information. As the rules stood, even though that document was available to the court and I had seen it, I was not allowed to cross-examine the defendant about his legal aid application form because of its confidential nature. The principle is well established that, in some circumstances, even if a defendant in the witness box makes a statement that can be contradicted by other evidence that is available, it may not be possible to consider that evidence because of its nature in the circumstances in which it was originally supplied.

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

I am listening carefully to my hon. Friend. What he has just said about his professional experience reminds me of a not dissimilar case that further reinforces his point. The case involved not me but a colleague in chambers, who was in the embarrassing position of having been instructed by a client who had paid for solicitors and counsel privately, but, unbeknown to my colleague, had separately submitted a legal aid form with completely contradictory information about his finances. The matter could be examined only because the judge became aware of it. As my hon. Friend knows, if a judge becomes aware of a clear inconsistency relating to legal aid, he may make entirely separate inquiries. As a result, the solicitors and counsel had to withdraw from representing the client and the entire case had to be stopped and started again with fresh counsel, because the defendant had plainly deceived the legal aid authorities. However, it was not possible for any of the counsel to cross-examine, just as my hon. Friend describes.

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

Order. I remind hon. Members that interventions should be just that. That one was too long.

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

I am grateful to my hon. Friend the Member for Surrey Heath (Mr. Hawkins) for his intervention and for developing it at length to explain his recollection of a case that tallies exactly with my experience.

In my experience, it is not impossible or, indeed, unusual for material evidence to be available at a criminal trial on which the prosecution or defence counsel would not be allowed to rely even though it shows a material inconsistency with what a defendant has said in the course of giving evidence in the witness box. I wonder whether we should allow such evidence to be given in cross-examination.

As I said, amendment No. 360 is a probing amendment. I should like confirmation from the Minister that the wording provides, as I believe, merely that the defendant himself must adduce the evidence that can subsequently be rebutted. I note that because of the use of the phrase ''on his behalf''. Evidence can be submitted on someone's behalf in several ways. One is by another witness for the defence saying something in the witness box that is materially inconsistent with a document that the defendant has provided or a statement that the defendant has made to the receiver. Are such circumstances intended to be covered, or is the intention merely to cover circumstances in which the defendant makes a statement in the witness box that is inconsistent with a statement that he has made previously to the receiver, or—a second possibility—circumstances in which his counsel makes on his behalf a formal admission that is inconsistent with evidence given to the receiver? As long as only those two categories are involved, I am content with sub-paragraph (4) as it stands. If, however, the provision is being widened in scope to include evidence called on behalf of the defendant that is inconsistent with what the defendant has said to the receiver, I would have serious objections, for obvious reasons, as that would not be what the defendant himself said. I wait to hear from the Minister about the arguments that I have made about his amendments, and I hope that he will provide reassurance and comment on mine.

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

As the hon. Gentleman explained, if the amendments were accepted, under the powers, answers could be used only in a prosecution for perjury. It would no longer be possible to use an answer in other criminal proceedings if the person who gave the answer made a statement inconsistent with it when giving evidence and the defence brought up a matter relating to the answer.

The schedule makes it clear that self-incriminating evidence given under the receiver's coercive powers will not be admissible in criminal proceedings other than in certain restricted circumstances, which are set out in sub-paragraphs (3)(b) and (c) and sub-paragraph (4). These are standard exceptions to the rule against the admissibility of self-incriminating material.

I listened to what the hon. Gentleman and the hon. Member for Surrey Heath said about the circumstances that might arise in court, but I am told that the provision does not break new ground or establish a new principle. We want to provide protection against self-incrimination, but we do not want that protection to be abused.

With regard to amendment No. 360, the hon. Member for Beaconsfield (Mr. Grieve) is right to say that paragraph 2(4) is intended to apply to the defendant and the defendant's counsel, and not to a witness who could be perceived to speak on behalf of the defendant. We want the provision to cover what is said by the defendant and those who represent him in court. Sub-paragraph (3)(b) and (c) and sub-paragraph (4) contain standard exceptions to the rule on self-incriminatory material.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 10:45, 18 December 2001

I just want to be certain that paragraph 2(4) relates to what the defendant—or counsel acting on his behalf—says by way of formal admission, and that the defendant cannot be called in support of the defence. There is a distinction. It is what is said either with the defendant's mouth or on his authority that should be placed before the court, rather than what is said by a witness who is called on behalf of the defence. I do not interpret ''on his behalf'' as referring to such a witness.

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

The provisions are not intended to cover the latter category, in which witnesses make statements that can be presumed to be on the defendant's behalf. They cover what the defendant and his representatives say. That clearly and absolutely deals with the issue that the hon. Gentleman raised.

I reassure the hon. Gentleman that these are standard proceedings, not something that we have invented. For example, schedule 3 to the Youth Justice and Criminal Evidence Act 1999 includes similar provisions. The provisions reflect the decision of the European Court of Human Rights on the question of self-incrimination in Saunders v. United Kingdom. The hon. Gentleman's amendments would further restrict the circumstances in which the information could be used in criminal proceedings by deleting sub-paragraphs (3)(c) and (4). That would mean that information given in an answer could be used in a prosecution for perjury under sub-paragraph (3)(b), but not in any other criminal proceedings.

Sub-paragraph (3)(c) would allow an answer to be used if a person made a statement during a prosecution for an offence inconsistent with an answer that he gave to the interim receiver or administrator. Sub-paragraph (4) qualifies that, so that the answer may be used in the proceedings against that person only if evidence is adduced or a question is asked relating to an answer made by that person or those acting on his behalf—that is, those who represent him in the court proceedings. We believe that an answer should be available for use in criminal proceedings in the circumstances described in sub-paragraphs (3)(c) and (4). That will help to discourage people from changing their story to suit the circumstances. We see no reason why defendants should be free to do so.

The hon. Gentleman talked about his concern about the widening that our amendments propose, and suggested that we should leave matters as they are. The fundamental issue is that we protect people against the requirement to self-incriminate with regard to criminal proceedings. If our amendments were not made, any subsequent civil proceedings that are likely to be brought—by not the Government, but other individuals, such as victims—would not have access to or be able to use evidence that had been produced in proceedings against the defendant.

The hon. Gentleman asks how on earth the information would be discovered in the first place. Clause 258 gives a number of instances in which the interim receiver must inform not only the enforcement authority but the courts and the defendant. If the hon. Gentleman ploughs through the whole clause he will see that, by and large, the interim receiver must inform everyone concerned about everything that he finds at the time that he finds it. The interim receiver will not be forced to disclose information to a subsequent litigant. The information will have been disclosed at the time. If we do not widen the ability to use that information, it will be available on the record at the time of the case against the defendant, but a subsequent litigant would not be able to use it for his or her own case.

We do not believe that the amendment's proposal to allow other civil litigants to use information that has been obtained is a threat to self-incrimination. It would be strange and unnecessarily restrictive to prevent such litigants from doing so.

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

I have just glanced at clause 258, which is about reporting. I appreciate that that shows that the receiver has a duty to report information that he obtains to the court and the enforcement authority. I do not, however, follow how that information will be available to a personal or corporate litigant who decides to bring an action against the same person whom the receiver investigates. In reality, it is possible that during and before the conclusion of the proceedings, the information might come to light. However, it is equally possible that the information would never come to light, although it would be available to the receiver. I suspect that the operation would be slightly hit and miss.

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

I am not aware of a requirement in the Bill that obliges the interim receiver to make available to subsequent litigants information that he has provided to the court.

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

I go further. I tell the Minister that it would be a serious breach of the receiver's duty if he made material that he obtains under his powers during the receivership available to the public. That is why I raised the issue. Unless the receivership ends in recovery proceedings, in which case the matter will be very public and information will come to light, the material is unlikely ever to see the light of day unless there is a serious breach of confidentiality. I foresee fishing expeditions, in which litigants try to obtain access to the information that the receiver obtained confidentially. That raises important issues, including potential Human Rights Act issues.

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

The hon. Gentleman is absolutely right. There would not be the ability subsequently to reveal information that was not revealed at the time. At the time, the interim receiver would have been obliged to serve a copy of his report—and any subsequent reports—not only to the court and the defendant, but to anyone whom he is aware has been affected by the confiscation procedures. Therefore, the information might be known to victims who subsequently wish to pursue a case through civil proceedings. In those circumstances, we are, in effect, allowing them to use the information that they have gained from the report that was made at that time. However, we are not allowing them—or other people who were unaffected by the case—subsequently to interrogate the interim receiver, or to go on fishing expeditions. That is what the hon. Gentleman is worried about. It will not be allowed—but potential victims will be able to make use of the information that is reported.

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

The Minister has provided me with plenty of reassurance.

With regard to civil recovery, situations might arise in which there is a victim, in the sense that there is an individual who has lost an asset because it has been taken by the person against whom the civil recovery proceedings have been brought. Those proceedings might alert the victim to the discovery of that asset, and he might be grateful to be able to make use of the information that is supplied by the receiver. With regard to such circumstances, I understand the thrust of the Minister's argument.

I wish to explain, for the record, the problem that I identified—although it does not alter my view that my party should not oppose the amendment. I suspect that, when such a proceeding is brought, there will be a good chance that a large number of individuals will hover on the edge of the case who might not have lost an asset to the individual concerned, but who might believe that they have rights of action against that individual for a host of reasons—such as a tortious grievance, or a breach of contract. There might not be an identifiable asset that belongs to them, but they might believe that they have a right to sue for damages, in one form or another. They would, therefore, be interested in the material that the receiver obtains as he conducts the compulsory procedure, because although one can serve interrogatories—and there is a degree of compulsion involved in that, with regard to pleadings and civil litigation—it is not normally possible to sit someone down and submit him to a close examination, over a number of hours, in order to learn the details of his assets and trawl through them.

With regard to such cases, I suspect that there might be many interested people, and the provision that the Minister is introducing would make it possible for them to start expressing an interest to the court about the matter, even though they might not have been provided by the receiver with direct information. For example, they might say, ''We have discovered your Rembrandt painting—or a painting that might be your Rembrandt—in his cellar.'' However, although the provision might result in more complicated arguments than have been predicted, I do not find exception to the underlying principle, because in civil litigation—unlike criminal cases—there are rules that require people to answer questions because, if they do not, they will lose an action. Therefore, I will not oppose the amendment, although it might prove to be more complex than has been envisaged.

I shall now discuss my amendments. The Minister has provided me with reassurance about amendment No. 360, and I will not seek to press it. In respect of amendment No. 358, I am also grateful to the Minister. I see that there are arguments, in this instance, for that material to be made available, if it is something that comes directly from the defendant's mouth in the witness box, which is clearly contradicted by earlier statements that he has made to the receiver during his inquiries.

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon 11:00, 18 December 2001

Order. I remind Committee members that the use of the word ''you'' refers to me. I reassure the Committee that not only do I not have a Rembrandt or anything that looks like one, but I do not even have a cellar. I also note that there is a murmur of conversation in the Committee Room, which is disturbing when I am trying to concentrate on what a Member is saying. Hon. Members who want to have a conversation should go outside to have it.

Amendment agreed to.

Amendment made: No. 310, in page 262, line 29, leave out '(3)(c)' and insert '(3A)(c)'.—[Mr. Bob Ainsworth.]

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

I beg to move amendment No. 361, in page 262, line 35, after 'Power', insert

'with the prior authority of the court,'.

It is a pleasure to be under your chairmanship again, Mr. McWilliam. I was going to welcome back the hon. Member for Glasgow, Pollok (Mr. Davidson), because we missed him last week, but he has temporarily evaporated. No doubt he will return from the Corridor outside shortly, and we shall have the benefit of his trenchant views again.

Amendment No. 361 is not probing. We think that this is an extremely serious matter. My hon. Friend the Member for Beaconsfield and I, and other Opposition Members, were surprised that a Labour Government should suggest something as stark as the unfettered power in paragraph 3 of schedule 3. This is the same Labour party that used to make such an enormous fuss about stop-and-search powers and related issues, year after year, when we were in government and the Labour party were in opposition. My hon. Friends and I constantly heard Labour Members who are now on the Government Benches say that it was improper for any organ of the state, any part of the police, or any part of the prosecuting authorities to have any kind of unfettered powers. However, in paragraph 3 of schedule 3, the Labour Government are proposing draconian powers to

''enter any premises in the United Kingdom, and . . . take any of the following steps . . . to carry out a search for or inspection of anything described in the order . . . to make or obtain a copy, photograph or other record of anything so described . . . to remove anything which he is required to take possession of in pursuance of the order or which may be required as evidence in the proceedings under Chapter 2 of Part 5.''

Finally, the provision is made even wider:

''The order may describe anything generally, whether by reference to a class or otherwise.''

Anyone can see that those are astonishingly wide powers. It would be sensible and constitutionally important to introduce a safeguard by stipulating that those incredibly wide powers, which, in certain circumstances, may be necessary when dealing with the Mr. Bigs of this world—I should make it clear that we are not trying to water down the Bill, before any Labour Member accuses us of that—be introduced only with the prior authority of the court. If the Minister is not prepared to accept the need for such a safeguard, we hope that he will reflect seriously, with his colleagues and advisers, on whether the Government will table our amendment or a similar one on Report or in another place. The reasons for the gravity of our concerns will be understood. It is not right for any organ of the state to have unfettered powers—

Photo of Stephen Hesford Stephen Hesford Labour, Wirral West

Will the hon. Gentleman help me on this point? What is the difference in principle between exercise under paragraph 1 on seizure and paragraph 2 on information, which Conservative Members have not sought to amend, and exercise under paragraph 3? In effect, paragraph 3 simply exercises that which is already set out in paragraph 1.

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

I find the hon. Gentleman's intervention somewhat surprising. He may not agree with other Conservative Members and me that the idea that an Englishman's home is his castle is fundamentally important—that phrase has been hallowed through the years. Paragraph 3 refers to the power to break into a person's private property. We are not saying that there should not be safeguards—indeed, my hon. Friend the Member for Beaconsfield has sought to introduce safeguards, and has received reassurance from the Minister. Unlike the previous paragraphs in schedule 3, in relation to which the Minister was able to offer reassurance, thereby avoiding the need to press our amendments to a vote, the words of paragraph 3 are so stark and draconian that I defy any hon. Member in the Committee to describe them otherwise.

British citizens need protection. In any organisation, unfortunately, mistakes will be made. However careful the authorities are—and I am sure that they will try to ensure that they enter only properties that are appropriate—they will occasionally get it wrong. Sadly, and sometimes with the most appalling results, prosecuting and police authorities have got things wrong in the past. The case that springs most urgently to mind of such catastrophic error was of a person who was being kept under surveillance, and whom a police firearms unit supposed to be a serious criminal. In the end, however, it turned out that they had got the wrong man, but they found that out only after the wrong man had been shot and suffered potentially life-threatening wounds from police bullets.

Stephen Hesford indicated assent.

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

I see that the hon. Member for Wirral, West (Stephen Hesford) nods, so perhaps he remembers that case. Sadly, with the best will in the world, prosecuting authorities can get these things wrong.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Labour, Wellingborough

How does the hon. Gentleman's amendment fit with the provision in clause 260(1), which states:

''An interim administration order may authorise or require the interim administrator . . . to exercise any of the powers mentioned in Schedule 3''?

I do not necessarily ask the hon. Gentleman to deal with that point immediately, but there may be a dovetailing between the amendment and an existing provision in the Bill. Will the hon. Gentleman clarify how his amendment will bite on it, if at all?

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

There are two answers to the hon. Gentleman's point. First, we have not yet reached clause 260, and it would not be in order to have this debate again—you would rightly stop us, Mr. McWilliam. Therefore, this is the appropriate time to raise the issue. Secondly, the wording of clause 260(1)(a)—I accept that the hon. Gentleman asks a genuine question, and I have considered the matter—is

''to exercise any of the powers mentioned in Schedule 3''.

Therefore, we need to ensure that the schedule 3 powers are only those that are appropriate. We could, of course, introduce the same type of safeguard into clause 260(1). We could table an amendment stating that ''an interim administration order may only with the prior authority of the court authorise or require the interim administrator'', which would have the same effect. However, our business dictates that we discuss schedule 3 before clause 260, so it is important to introduce the safeguard at this point. I entirely accept that there may be other ways of skinning a cat, and better ways of drafting such an amendment. If a Minister either here or in another place said that although the Government accepted the principle of our amendment there was a better way in which to insert such a safeguard, my hon. Friend the Member for Beaconsfield and I might be happy with such a response. We are not saying that our drafting is necessarily perfect, but we would be uncomfortable if the Bill were enacted without the incorporation of a safeguard into such a draconian proposal.

Photo of Mr George Foulkes Mr George Foulkes Minister of State, Scottish Office, Minister of State (Scotland Office)

The hon. Gentleman has confused me. He referred to clause 260, which relates to Scotland.

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

I did so only because I was tempted down that road by the hon. Member for Wellingborough (Mr. Stinchcombe).

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

There is a similar clause that relates to England.

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

My hon. Friend says that a similar clause relates to England.

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

I do not think that I have ever fallen asleep in court.

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

Order. I am not asleep. That principle has already been dealt with under clause 252.

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

I give way to my hon. Friend the Member for Beaconsfield.

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

I was about to say to my hon. Friend that the hon. Member for Wellingborough referred to the principle under clause 260, which applies to Scotland. However, clause 252 is an identical provision and applies to England and Wales.

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

I am grateful to my hon. Friend. I am sorry that I was tempted down an inadvertent road by the hon. Member for Wellingborough. The principle remains the same. We need to insert a safeguard into schedule 3, because clause 252 refers also to that schedule.

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

Yes, but we are dealing with the matter now because schedule 3 is the appropriate place to insert the safeguard. The terms of that schedule are draconian. If the Under-Secretary were to say that the Government would insert the safeguard not into the schedule, but into clause 252, that would be fine by us. The powers are incredibly draconian; no Labour Member would dare to claim that they are not. A safeguard is needed. I am sure that other Conservative Members will want to reinforce that argument.

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

I share the concern of my hon. Friend the Member for Surrey Heath about the extent of the powers. It is not that I think it wrong that the receiver should be able to search a property in the United Kingdom or that I believe that the powers under the schedule should be circumscribed in some way. It should be necessary, however, before a receiver takes such action, for him to tell the court that appointed him that he intends to enter premises, explain the reason why and gain the court's approval for the individual instances when he takes such action.

The Committee may remember the current powers. If my house is burgled and my property is taken eight doors down the road, and I see the burglar disappearing through the door, I have no right to kick down the door to gain entry to recover my property. I must call on the services of a police officer to attend the scene and to exercise his powers to recover such property. If there were a sufficiently long interval for the causal chain to be broken, even the police officer could not enter the premises to recover the property; he would almost certainly have to obtain a search warrant from a magistrate.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change) 11:15, 18 December 2001

I am not without sympathy with the hon. Gentleman's argument, but we are dealing with the execution of an order of court that has already been granted. I offer him another example: if I obtained a decree against the hon. Gentleman in court, I could pass that to sheriff officers for enforcement. The powers of a sheriff officer are not massively removed from the power to enter, to pin and ultimately to remove and dispose of property under schedule 3.

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

I agree with the hon. Gentleman; such powers exist. Before he was elected to the House, the power to pin that exists in Scottish law tended to be condemned by Labour Members.

The power under discussion initially derives from the interim receiver's being appointed with power to seize property. That is a general power. As it is described in paragraph 3, it is an extensive power, because it is not confined to premises that belong to, or are connected with, the individual against whom the order has been made. Any premises can be entered. If the Government art fund had inadvertently acquired a painting that fell within those provisions, someone could roll up outside No. 10 Downing street and demand admission to take it off the wall of the Prime Minister's office. Given that such circumstances might arise, it might be wise for people to be required to go back to the court to get the warrant, or the authority, for a particular entry.

I accept the hon. Gentleman's point that if a general power to seize property had been granted against an individual, it might be a logical progression to assert that any premises connected with that individual could be searched. However, the provision currently allows any premises in the United Kingdom to be entered. Given that related property that is in the hands of innocent individuals might be involved, the power is far too unfettered. In fact, it is completely unfettered. Once appointed, the receiver can do anything that he likes, in relation to going around the country investigating assets. That could give rise to problems. The easy way of dealing with them would be to say to him, ''If you wish to enter premises in that form, go and get the authority of the court.''

I might be satisfied if the Minister were to come back to the Committee and say that he accepts that there is a valid underlying point, and that he believes that some redrafting could be done that would still give the receiver powers that would frequently not involve his having to go to the court, but that would also take into account circumstances where he should have to go to the court—such as if related property that was in the hands of another person was involved. The amendment was not intended to achieve our end in that way; we sought to take the easy course of saying, ''Get the court's authority.''

If the matter is left as it stands, the power will be too wide—particularly as it relates to people's homes. Parliament should be very careful about giving individuals the power, in effect, to break and enter property at will, and without giving a good or sufficient reason. Even the police do not have such powers—except in extraordinary circumstances—and neither should the receiver have them.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

In accordance with the best traditions of the Liberal Democrats, I have sympathy for both sides of the argument.

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

I am unsure whether the hon. Gentleman is right to say that that is one of his party's best traditions, but it is certainly a tradition—as both the Government and the Opposition well know.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

That might be fair comment. However, it is not a tradition about which I am particularly embarrassed.

I feel that the power described in schedule 3 is too draconian, and I do not think that it is quite as obnoxious as the hon. Members for Surrey Heath and for Beaconsfield would have us believe. Strong parallels can be drawn between these powers and powers given to the recovery agents under normal civil proceedings. It is reasonable and necessary to give the receiver, interim receiver or administrator the power described in paragraph 3(2)(a).

The power described in sub-paragraph (2)(b) seems closer to the power that would be given to an investigative authority during a criminal prosecution. It is appropriate that a warrant should be obtained from the court before the execution of that power. The same argument applies to sub-paragraph (2)(c). In my professional experience, I have never come across the power to recover property in this manner under civil proceedings. In Scotland, an applicant under civil proceedings is entitled to enlist a motion for commission and diligence to require the other party to the action to produce certain articles. However, that is well removed from the powers that are envisaged here. If we move on to sub-paragraph (3), the powers become so general that there is a significant risk of an adverse effect on third parties.

I cannot support the Conservative amendment as drafted because it restricts the power unnecessarily. However, I ask the Minister to return at a later stage and recognise that this is an issue in which one size will not fit all.

Photo of Boris Johnson Boris Johnson Conservative, Henley

I make a brief point not only to support what my hon. Friend the Member for Surrey Heath said about the draconian nature of the clause, but to express concern for the safety of the interim administrator or interim receiver—whoever he his. I understand that it is proposed that he or she should enter the property of the drugs dealer and, without explanation, start liberating various items from the property; for example, removing paintings from the walls. There may be circumstances in which unfortunate misunderstandings would occur between the interim administrator and the owner of the property.

Photo of Boris Johnson Boris Johnson Conservative, Henley

Exactly; my hon. Friend prompts me well. The owner of the property may think that ''interim administrator'' is a euphemism for burglar. It would be wise not only for the protection of the rights of an individual to his property, which all on this side of the argument support, but for the health and the safety of the interim administrator if he had the protection and authority of the court when he entered the property. That is why the amendment is thoroughly sensible.

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

I agree with the points made by—most recently—my hon. Friend the Member for Henley (Mr. Johnson) and my hon. Friends the Members for Surrey Heath and for Beaconsfield. It is perverse that we have a more draconian set of powers under civil recovery proceedings than those that the police have to deal with criminal offences. It was often said, perhaps with tongue in cheek, after the introduction of a set of draconian powers under the financial services Acts of the late 1980s and early 1990s, that if terrorists who committed bombings of the City of London and Canary wharf had been tried under insurance fraud provisions in financial regulations rather than under criminal law, the police would have had greater powers to sort out the crimes. It seems perverse that the police do not have such wide-ranging powers in criminal matters. If an interim receiver or administrator used such powers, high profile problems and concerns with the agency could get into the press. The Government will argue that Mr. Bigs deserve all that is coming to them, but I fear that it will lead to perversity if well funded Mr. Bigs decide to take their cases to the European Court of Human Rights.

I hope that the Minister will take on board some of the issues that I have raised, and consider whether the wording could be modified. The amendment is sensible and there should be some prior authority. I accept that that authority may have to be ex parte and may not come directly from open court, because of the sensitivity of some of the matters. I hope that the Minister will give the amendment serious attention.

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

One of the functions of an interim receiver is to investigate the origins of property that is subject to an interim receiving order and other property that might have been generated by the same unlawful conduct. Another main function is to look after and manage the property. The functions are set out in clause 252.

Schedule 3 specifies some of the more significant powers that a court may confer on the interim receiver. The hon. Member for Surrey Heath does Opposition Members an injustice by deceiving them—I can only speculate on the reason—by saying that the powers of the interim receiver are given no prior consent by the court. As a result, the hon. Member for Henley is overly concerned with the interim receiver's safety when entering premises, and says that the receiver should be protected by the court.

I assure the hon. Member for Henley that the receiver, however protected, will turn up on the premises with a court order in his hand. That order will state exactly what the receiver can do and will specify the powers conferred on him by the court. I do not know why the hon. Member for Surrey Heath led the hon. Member for Henley to think that that would not be the case, but the state of affairs appears to have arisen from the Opposition's inability or refusal to accept that the provisions deal with civil recovery proceedings. The hon. Member for Beaconsfield has said that the process is a strange animal and not civil recovery proceedings.

Opposition Members deny that such proceedings should exist and that they should follow the process used by other litigants. I was about to intervene on the hon. Member for Surrey Heath when the hon. Member for Orkney and Shetland (Mr. Carmichael) did so on my behalf, effectively, to say that of course the receiver could not kick down the door of a burglar up the road. However, if the receiver chose to pursue that burglar through civil recovery proceedings, for whatever reason, and had a court order against him, the receiver could send someone in on his behalf to recover the property.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

The Minister makes a good point. I can say that because it is the point that I made when I intervened on the hon. Member for Beaconsfield. Will the Minister move on to consider the power in sub-paragraph (2)(c), which mentions the ''pursuance of the order''? That is distinct and parallel to proceedings in which an order has already been obtained.

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

Let me try to reassure those who are prepared to be reassured that, under the schedule, the powers will be conferred when the court is of the opinion that they could, or should, be used in order for the interim receiver or the administrator to carry out his function effectively. We have had repeated discussions about words such as ''may'' and ''must''. The first line of clause 252 states:

''An interim receiving order may authorise or require the interim receiver''.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 11:30, 18 December 2001

The Minister is right. The court may use discretion, and need not give the interim receiver full powers as described in schedule 3. The oddity is that, if the court expressed the powers in sweeping terms, there would be no requirement for the interim receiver to return to the court for authorisation. If circumstances were to change, the scope of the receiver's inquiries could extend far beyond that which was originally envisaged. That is the issue. Provided the court keeps control, I shall be content. However, under the current drafting of the schedule, the court could easily lose control.

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

The hon. Gentleman is absolutely right, although the court would have to have been convinced of the powers required in the first place. He is right to say that, if the court had been convinced of the necessity for the powers required, there would be no requirement on the receiver subsequently to return to the court to have the powers renewed on every occasion that he sought to use them. That would be the effect of the amendment that the hon. Gentleman proposes. While clause 254 may not require the receiver to have his powers renewed by the court, the exercise of his functions can be challenged and taken back to the court at any point in the future. It is not the case that, having received the power, the interim receiver may go off and do whatever he likes, and that no one may return to the court and ask, ''Wait a minute, is this what was intended? Is it justified in the circumstances?''

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

The Minister is right. After the event, anyone may return to the court to seek directions. When speaking to the amendment, I postulated a situation in which the damage had already been done. Of course the interim receiver must obtain his original power. However, simply stating that that provision exists does not answer our concern about paragraph 3, because its terms are so wide. Once the interim receiver has obtained his general authority, he may enter any property. As I have explained, human nature being what it is, the receiver may kick down the door of the wrong property, and it would be too late for that innocent person to go to the court afterwards to seek directions.

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

The hon. Gentleman is right. That could be the case, but it need not necessarily be so. It would be possible for a person who became aware that the interim receiver was intending to exercise his powers, to object and ask the court to prevent him from doing so.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Labour, Wellingborough

The hon. Member for Surrey Heath postulates circumstances in which the administrator might kick down the door of a property to which he was not entitled to gain access. I understood that the powers afforded by paragraph 3 were limited to carrying out a search for, or inspection of, anything described in the order. Therefore, the properties that could be legitimately searched would be set out in the order. That action would be authorised and guaranteed under clauses 252 or 260.

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

My hon. Friend is right. The order would have to have been justified in the first place. The court would grant such powers only if it thought them necessary to establish whether the property that was the subject of the order was recoverable or associated property, or whether the property was recoverable in respect of the same unlawful conduct. It will not be a case of someone kicking down doors whenever they see fit. Prior authorisation will have to be given. If people want to challenge how the authorisation is amended or used, they may go back to the court. I accept what the hon. Member for Surrey Heath says. People need to know what is intended in the first place, but they can go back and stop the powers being used.

The Government accept that the powers are significant and may be intrusive, but it will be for the court to judge whether a particular power should be exercised in a particular case. That applies to the power to enter, search or seize as much as to any other power. The powers may be exercised only for the purpose of using or exercising the receiver's functions.

Under amendment No. 361, the powers of entry, search and seizure could not be used without the court's prior authority, which would change the position in the Bill. The prior authority of the court will have been given for the use of entry, search and seizure powers. An interim receiver or administrator would have to go back each time that he intended to use powers that he had already been authorised to use, in order to receive specific authority to use them in that case.

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

The Minister accurately summarises exactly what we want and why we want it. Under our law as traditionally set out, the police must have a search warrant to enter premises. That position has been hallowed by precedent for not merely 10 or 20 years but at least 100 years, to my certain knowledge. It is the basis of the belief that an Englishman's home is his castle, and it should remain.

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

I hope that the hon. Gentleman will stop and listen to what he has just said and compare it with the powers conferred under clause 252 and schedule 3. Before the police may enter my home, they must have a search warrant. The interim receiver will have had to go to court and obtain a court order before he can do so. The hon. Gentleman tries to suggest that the provision is something completely different and relates to search and related procedures without prior court approval, and he knows that that is not so.

Photo of Boris Johnson Boris Johnson Conservative, Henley

Will the court order apply to the specific premises involved? If such a bold interim administrator were to turn up at some premises without clear identification of the premises as a target of the operation to relieve a gangster of his property, not only injustice but, as I said, prejudice to the health and safety of that interim administrator might result. Will it be spelt out in the court order which premises are envisaged?

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

Opposition Members have repeatedly said during our proceedings that they have confidence in our court system and have effectively accused us of not having that confidence. The interim receiver will outline to the court the nature of the issue and the problem that he faces and will try to justify the powers that he requires in order to recover the proceeds of crime. If hon. Members are worried that the court will simply say, ''Oh, that's all right then'', and in any circumstances allow him to go away and do whatever he wants, that is a bit of a reversal of some of the allegations and accusations that they have thrown at us in previous debates.

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

The Minister makes a valiant and admirable attempt to bolster his argument. The point made by my hon. Friend the Member for Henley goes to the heart of the issue. There is nothing wrong with the provisions in clause 252 and, in the case of Scotland, clause 260, which we shall consider in due course, that cover the way in which the interim administrator acquires his initial power. However, it is a general power; it does not identify specific properties. The problem with paragraph 3 is that it provides that once the interim administrator has his general power he has an unfettered power to enter any premises. That is where the mischief lies, and a safeguard needs to be provided.

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

The court will not give the interim administrator the general power to do what he likes, when he likes and how he likes unless he has managed to convince it, in the particular case, that that is necessary. The court will apply whatever restrictions it feels to be appropriate, before it votes such powers.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Labour, Wellingborough

I simply do not recognise the breadth of the powers that the hon. Member for Surrey Heath asserts we are trying to establish. As I understand paragraph 3 of schedule 3, we are talking about a power to enter premises in the United Kingdom, and to undertake certain steps—[Interruption.] The word ''and'' is included. One does not simply enter; one enters in order to take any of the specified steps, such as

''to carry out a search for or inspection of anything described in the order''.

The order would therefore set out what one is entitled to search, and for what one is entitled to search.

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

My hon. Friend is absolutely right. Under the civil proceedings—

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I just want to remind the Minister that sub-paragraph (2)(c) goes beyond that, as it includes the words

''in pursuance of the order or which may be required as evidence in the proceedings under Chapter 2 of Part 5.''

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

The point being made is that this is not just a question of recovering property. It includes the right to obtain evidence—an even more extensive power than the recovery of property, which is the receiver's primary function.

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

Opposition Members know that, as has been said repeatedly, the powers granted under this part of the Bill are modelled on civil recovery procedures, which are already in force and operate with regard to the civil law. Many Committee members are far more knowledgeable than I on this subject, and they know better than I do that civil procedure rules, which were recently updated, allow for search orders—formerly known as Anton Piller orders, as they are named after the particular case that first led to their being laid down—requiring defendants in civil recovery proceedings to allow claimants to search their premises for specific property. The power in schedule 3 is not unfettered, because it can derive only from a court order made under clause 252.

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

The Minister is right to say that an Anton Piller order is regarded as a draconian power, but at least when it is granted it identifies the premises that will be searched. It does not give the receiver power to enter any premises in the United Kingdom in the course of his search. It identifies the premises, justifies the search to the court, and then the search takes place. The comparison with an Anton Piller order therefore seems rather odd.

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

If at the time the powers are sought under clause 252 the interim receiver wishes to justify the need for wider search powers, he will have to do that. He will have to convince the court that those are necessary in the case that he intends to pursue. The court will not grant wide-ranging and general powers, willy-nilly, without being absolutely convinced that they will be necessary to enable the interim receiver to pursue the case.

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

The Minister is right to say that under clause 252—clause 260, with regard to Scotland—the interim receiver has to go to the court. However, once he has that power, all of schedule 3 kicks in, and the power in paragraph 3 is incredibly wide. We are debating the wording of the Bill, which refers to ''any premises''. That is far too wide. An extra safeguard is needed to provide something similar to an Anton Piller order.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department 11:45, 18 December 2001

It is fairly clear that Opposition Members intend that every time the interim receiver intends to use the powers conferred on him by the court, he must return to the court to obtain prior permission to do so. The Government do not accept that such an amendment would be desirable. It would involve the court in the minutiae of the interim receiver's activities and the use of powers that the court has already authorised. If the court wishes to exercise such scrutiny, it is free to do so. It could have done so in the first place. It can impose whatever restrictions and report-back provisions on the interim receiver that it chooses.

Clause 254 provides for the court to give specific directions to an interim receiver about the exercise of his functions at the application of the respondent, the interim receiver or anyone else who is affected by the actions of the receiver. That important protection could be relevant to the use of entry, search and seizure powers. I therefore suggest that Opposition Members are proposing a massively over-bureaucratic provision.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I invite the Minister to consider a different but not unrelated point. Whenever I see such a wide power, my immediate question is: how can it be abused? With that in mind, will he clarify what the position would be if the administrator undertook a fishing exercise that produced something which could be used as evidence in another matter, whether civil or criminal? Would such evidence be admissible in those other proceedings? Is there not a danger that because of the scope of the powers, a much more general back-door power will be given to the state?

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

Hon. Gentlemen are worried that the power is too broad. They say that the court has to give an interim receiver a power that he is free to exercise in a way that is not wanted. I am unable to convince them that such powers are not necessarily broad. The provision will make them broad only when the court considers such breadth of powers necessary. The court will not automatically grant broad powers to an interim receiver to do dreadful things. It will decide the breadth of the power that it confers on the interim receiver.

Photo of Stephen Hesford Stephen Hesford Labour, Wirral West

Is it not right to say that the power exercised under schedule 3 will not become more broad or draconian than the order that the court originally gives the interim receiver? Moreover, if the respondent perceives a problem, clause 254 will come to the rescue.

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

My hon. Friend is right. The powers will be those that were granted under the original application, having been justified by that application. They can be broadened only if the interim receiver makes a subsequent case and asks for them to be broadened. Clause 254 gives the reverse of such power, so any other person who is affected, or who considers that he will be affected, can go back to the court and ask for the powers to be narrowed. Those powers will have been granted by the court; they cannot be widened by anyone other than the court, having received representations from one side or the other. It is not within the realm of the interim receiver to broaden the powers himself.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Labour, Wellingborough

Is not the burden of the Opposition's case that, although on previous occasions they wanted us to give the court discretion, on this occasion we have given the court discretion? Now they want us to oblige the court to exercise that discretion successively before anything can be done.

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

My hon. Friend is absolutely right; I have made that point myself. I do not know to what extent the amendment is intended to be a wrecking amendment that would allow a person subjected to such an order to go back many times to prevent the necessary investigations.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I accept a lot of what the Minister says. Will he, in turn, say that elements of the powers granted under paragraph 3 go beyond those that are currently given? In particular, I hate to keep harking back but I draw the Minister's attention to paragraph 3(2)(c), which refers to the power

''to remove anything . . . which may be required as evidence in the proceedings under Chapter 2 of Part 5.''

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

What is the hon. Gentleman asking us to do? This is the statute; it is not the power itself. The court has the discretion to decide the breadth of the power. Is he asking us to say in statute that the court cannot give broad powers in any circumstances? He has said that he does not accept the Conservatives' amendment, which says that every time there is an alteration of the use of the powers, they must be re-submitted to the court for further justification. That could extend to the minutiae. The hon. Gentleman appears to be suggesting that there should be a narrowing of what the court's discretion can allow, irrespective of the arguments in favour of broad powers.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I am asking for a recognition that in some circumstances it will be inappropriate to exercise the power as generally as the Bill would allow, and that it will sometimes be necessary to have a specific order of the court, relating to specific goods. That does not seem to be envisaged, so I want more clarification.

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

The hon. Gentleman says that there may be circumstances in which it would not be appropriate for the full breadth of the powers to be applied to a particular case. He is right—but who should decide that? Should we decide here that the full breadth of the powers should not be available to the court, or should the court listen to arguments about the case and decide about the circumstances, and then say to the interim receiver, ''No, the powers you are asking for are not necessary to do the job in the case that you are presenting''?

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

A certain circularity seems to be entering the argument. Our amendment is designed only to ensure that it is made clear, following the mere granting of the receivership with the powers, that if circumstances change and new evidence is supplied or new premises must be searched, the receiver must go back to the court to ensure that it is apprised of the way in which the search is developing and of what is occurring. I accept that the original order could be circumscribed, but the way in which schedule 3 is drafted suggests that it will not be, and that the court will ordinarily grant an unfettered power. We are complaining about the unfettered nature of that power. There must be a mechanism to control the power adequately, and it is Parliament's job to ensure that that happens.

Mr. Ainsworth rose—

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

Not yet.

If there is a certain circularity, it is because I am effectively dealing with two solutions. One is that we narrow the breadth of discretion that the courts are allowed, and the other is that we insist on repeated returns to the court for justification of every use of the powers. If the hon. Gentleman is saying that if an interim receiver begins to use the powers that the court has given him in ways that were not originally intended he ought to be obliged to go back to the court, I have some sympathy with the logic of his argument. However, the receiver is not precluded from doing that.

The hon. Gentleman knows that if we include the kind of provision that he wants, not only will that have an impact on cases in which substantial issues have arisen that the interim receiver feels might not have been covered by the original power, but every time he seeks to exercise his powers he will be challenged and all the minutiae will be pored over. He will be required to go back to the court in order to arrive at premises not only with the power originally granted to him by the court order but with the subsequent power that gives him the specific ability to do exactly what he proposes to do, at the time of day when he proposes to do it.

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

The Minister is exaggerating the problem. I expect that when the original power is granted, the receiver may say to the judge that he believes that certain premises must be searched, and the original power will grant that. If the receiver subsequently feels that further premises need to be searched, he will have to go back to the court for the authority to do that—as he also will with regard to evidence.

I do not expect the receiver to have to make separate applications for each individual search. He may apply for groups of premises to be searched, but I expect the premises to be identified. The wording of the schedule strongly suggests that at the outset of the granting of the receivers' powers, courts will be invited to give a general power. If that were not the case, the schedule would not have been drafted in that way.

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

It is not my understanding that an interim receiver would, in normal circumstances, be able to justify to the court being given a power that allowed him to break into any premises throughout the length and breadth of the United Kingdom. He would have to justify the extent of the power.

In all probability, the expected circumstances will apply: the receiver will go to the court, inform it about his investigations, and seek to persuade it that he should have the power to search premises A—or premises A, B, C, D, E, F and G. He will have to justify the powers that he is requesting.

Mr. Davidson rose—

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

I had better give way to my hon. Friend this time or he will be angry with me, and I dare not risk that before Christmas.

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

I am grateful to the Minister for giving way. I had hoped to speak myself, but on my return after an absence of a week, I found that members of the Committee were merely making a series of interventions on the Minister, so I thought that I had better swiftly make mine.

I was distressed by the mention of Anton Piller. I initially thought that that was a foreign language, but I now remember that Anton Piller was a second-rate centre half for Dundee in the 1980s—although I do not understand how he is relevant to the discussion.

Nothing has changed during my absence. The Conservatives are still behaving as the criminals' friend. They are attempting to make the pursuit of villains as difficult as possible—especially in circumstances such as those that have been mentioned, when speed might well be of the essence, and it might be essential that the prosecution, or the pursuers, should not have to go back to court, because that would cause an undue delay.

What would happen if during their investigation of a particular premises, the receiver and his colleagues discovered that there were other premises of which they had not previously been aware, which were relevant to the case? They should be able to go and pursue their investigations at those premises immediately; they should not have to go back to court. Is this not simply another instance of the Opposition saying that they support the Government's legislation, while seeking to make matters as difficult as possible?

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

Order. That was supposed to be an intervention, but it turned into a speech. I remind hon. Members that there is a rule about tedious repetition, because we are getting close to breaking it.

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

I was about to suggest that the two Anton Pillers might have been the same person—because perhaps anyone who plays for Dundee United should be subject to civil proceedings. But clearly that cannot be right, because apparently the other Anton Piller was a ship, not a person. We are talking about two different things.

More seriously, the hon. Gentleman suggested that the interim receiver would have the power to move on. As I understand it, the receiver would not have the power to move on. The court would have sought clear justification for the breadth of the powers asked for in the first place. Only in abnormal circumstances would the court give the receiver the massively wide powers needed to do the kind of things suggested by the Opposition and by my hon. Friend the Member for Glasgow, Pollok, such as that receivers would be allowed to go to a house up the street and search that, too. That would not be allowed. The breadth of the power would have been limited.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

How nice it is to have the hon. Member for Glasgow, Pollok back among us. It is good to see that whatever the other difficulties of the residents of Pollok, they seem to be enjoying a spell of good weather at the moment, judging by his appearance.

If the position is as the Minister suggests, could not paragraph 3(1)(a) be re-written to say something like, ''enter any premises in the United Kingdom to be named in the order''?

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

I am in serious danger of seeming to be far too consensual. I have little sympathy with the amendment because of the way in which it was worded and presented, but as an attempt to bridge the gap between us, I will reflect on the points that have been made. If it seems that there is some requirement or predisposition of the court to grant powers wider than those that I envisaged, I will consider whether the drafting needs to be improved. However, I have to say to the hon. Member for Orkney and Shetland that I do not think that that is a problem. It is clear that the court has the discretion to require a detailed justification of the powers requested, and it will do just that.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Labour, Wellingborough

Under the scheme that the Minister advocates, will the court have the discretion to specify, if it feels that that would be right, the premises to which the order applies, or will it be obliged to grant the power in the broadest possible terms?

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

There will be no obligation for the court to grant the power. The interim receiver will have to go to court and justify the powers that he requires to carry out his investigations, and the court will listen to his case before it decides on the breadth of the power.

Mr. Davidson rose—

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

I shall respond to those points in a moment.

Will the Minister clarify what will happen if, after premises have been investigated, new information is discovered about other premises? Will the powers cover a subsequent investigation, and if not, is it not right that they should? In a recent case involving money laundering, the police raided premises and found a mobile phone line connected to other premises of which they were unaware. It had been used to warn people in those other premises. The police immediately went round there, but just missed catching the people. We do not want to make the provision unduly cumbersome. If when premises are being investigated, it is found that other premises are directly connected, they should be investigated, too.

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

My hon. Friend seems to be endorsing something that I thought that he was protesting about a few moments ago. If new evidence becomes available to the interim receiver and he seeks further powers than he was granted by the court in the first place, he will have to go back to the court to obtain them. He will not be allowed to move up the road and follow his nose. The court hearing will be ex parte—goodness me, I am slipping into the language of lawyers. The interim receiver will receive such power without the prior knowledge of the person whose premises he intends to search, but he will not be able to take such action without going back to the court if it is outwith the powers that he first received.

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

Why not? Let us suppose that clear evidence is discovered, which will lead the interim receiver to other premises. I appreciate that it will sometimes be entirely reasonable to ask the court for additional powers. However, in other circumstances it may not be, because there will be a real danger that in the meantime, the property will be removed. Could it not then be justified under the Bill for action to be taken and justified subsequently? That subsequent justification would be the guarantee that the power would not be abused. I am not suggesting that the interim receiver wander up a street on a whim, but that he should do so when, and only when, there is clear evidence that the property for which he is searching has been moved elsewhere, and that the matter is urgent. Could not it be justifiable for the interim receiver to take action first and explain himself later?

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

Such issues may have been covered under the original power when it was granted. The interim receiver could seek a broadening of that power. An individual who considered that the interim receiver was using his power unreasonably could seek power from the court to narrow or restrict what was being asked for. The position is clear—but you were right, Mr. McWilliam: we are in danger of being tediously repetitious. I shall be happy to examine the matter raised by the hon. Member for Orkney and Shetland and check whether we are justifying the provision adequately. However, I am not enamoured of the amendment, and I will resist it. I do not want to give the Opposition the impression that we shall repeat our reaffirmation of the court order that will be given.

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

We shall press the amendment to a Division. I am disappointed by the Minister's response—but I shall not repeat our arguments, except to say that I had already welcomed back the bronzed hon. Member for Glasgow, Pollok, but he was out of the Room at the time.

The hon. Member for Glasgow, Pollok wants to go even further than the Bill. Will he consider seriously what his reaction would be if an entirely innocent constituent was affected by such draconian powers? In his entirely laudable attempt to hit the Mr. Bigs, he works on the assumption that the only people affected by the Bill will be the guilty. If we could be certain about that, there would be no problem. We are not trying to water down the Bill as he suggested, but to ensure that it does not adversely affect the innocent. The problem with the powers given under paragraph 3 to search any premises is that they are far too wide. We are trying to ensure that entirely innocent people are not at risk of having their doors suddenly kicked down by an interim administrator who has simply made an honest mistake about the wrong person in the wrong place. As the Minister is aware, human nature being what it is, mistakes are made.

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

The hon. Gentleman asked what would happen if entirely innocent people in my constituency had their doors kicked down. I would invite them to go with me into their drawing room and I would say to them, ''A mistake has been made. We are very sorry. Human nature being what it is, inevitably mistakes are made.'' I would be quite prepared to justify the existence of mistakes, and I believe that my constituents in general would accept them, because of the greater good being pursued. What worries me about my constituency is that doors are being kicked in on a regular basis, by dealers and by people with baseball bats and knives pursuing debts, and for robberies and the like. I mentioned earlier how some families in my constituency—

Photo of Mr John McWilliam Mr John McWilliam Labour, Blaydon

The hon. Gentleman should not catch his constituents' bad habits. That was too long for an intervention.

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

The hon. Gentleman's aim of hitting serious criminals is right, but I am sorry to say that we have a plain disagreement on the subject. Opposition Members believe that an Englishman's home is his castle. Perhaps a Scotsman in Glasgow, Pollock does not regard his home in that way.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

Is my hon. Friend aware that one of the hallmarks of fascist dictatorships is the knock on the door, which is subsequently bashed down? Another is the lack of justice. We must stand up for liberty—which does not mean that we are standing up for criminals.

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

My hon. Friend is right.

We would have no problem if clause 252—and, in the case of Scotland, clause 260—and schedule 3 were in the form that the Minister, in his usual reasonable way, suggests, and clause 252 had provided that when the interim administrator goes before the court to request his general power, he must have a specified list of premises, and would have to go back if he wanted to examine other premises. That is precisely the point that the hon. Members for Wellingborough and for Orkney and Shetland, as well as my hon. Friend the Member for Beaconsfield and I, have made. However, that is not what clause 252 provides. It does not have that reasonable drafting.

In due course, having considered the matter with his officials, the Minister may decide, rather than redrafting schedule 3, to redraft clauses 252 and 260 as he suggests that they are drafted but they are not. We might then find a way of solving the problem. However, as things stand, clause 252 gives the interim administrator a general power from the court. In effect, the hon. Member for Glasgow, Pollok has what he wants. The Minister may claim that he has not, but the interim administrator, having acquired his powers, has the power to enter any premises in the United Kingdom to take any of the steps specified, which I shall not tediously repeat. He does not have to go back to the court. That is why there is a problem.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Labour, Wellingborough 12:15, 18 December 2001

Does the hon. Gentleman not understand that the power is not given by the Bill? The Bill does not authorise the entering of any premises. That power is vested in the court in the exercise of its discretion, on whatever terms and with whatever limitations it believes appropriate, specifying whatever premises or property it is persuaded to specify.

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

The problem is that nothing in the Bill tells the court that in giving that power to the interim administrator it must specify a list of premises. Of course it might of its own volition do so, but we want to ensure that safeguards are provided to protect the innocent so that, as with a search warrant, if someone wants to search premises they must have the court's permission. We should not have an Act of Parliament that gives a person the power, after going to the court the first time for a general power—which need not be specific, because clause 252 does not force the court to make it specific—to search any premises in the United Kingdom.

We have a straight choice between preserving the rights of the innocent, which have been hallowed for generations in English law, and giving powers that are far too draconian. I wish to press the amendment.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 12.

Division number 19 Adults Abused in Childhood — Schedule 3

Aye: 6 MPs

No: 12 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

The Chairman, being of the opinion that the principle of the schedule and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That this schedule, as amended, be the Third schedule to the Bill.

Question agreed to.

Schedule 3, as amended, agreed to.

Clause 253 ordered to stand part of the Bill.