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Clause 32

Counter-Terrorism Bill – in a Public Bill Committee at 3:30 pm on 8th May 2008.

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Forfeiture: terrorist property offences

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I beg to move amendment No. 170, in clause 32, page 22, line 1, leave out from ‘used’ to ‘for’ in line 2.

Photo of John Bercow John Bercow Conservative, Buckingham

With this it will be convenient to discuss the following amendments: No. 130, in clause 32, page 22, line 5, leave out ‘or under their control’.

No. 171, in clause 32, page 22, line 8, leave out

‘or had reasonable cause to suspect’.

No. 131, in clause 32, page 22, line 9, leave out ‘or might’.

No. 172, in clause 32, page 22, line 21, leave out

‘or had reasonable cause to suspect’.

No. 132, in clause 32, page 22, line 22, leave out ‘or might’.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The clause deals with the forfeiture of terrorist property. I wish to make it clear to the Minister that I have no objection in principle to the idea that terrorist property should be forfeited. However, we perceive that a problem arises about whether the wording of the clause is too wide. It states:

“Where a person is convicted of an offence under section 15(1) or (2) or 16, the court may order the forfeiture of any money or other property which, at the time of the offence, the person had in their possession or under their control and which—

(a) had been used for the purposes of terrorism, or

(b) they intended should be used, or had reasonable cause to suspect might be used, for those purposes.”

In what circumstances should I have a reasonable cause to suspect that money might be used for a terrorist purpose?

For example, a large number of organisations in this country, some of which are registered charities, raise money for the relief of destitution, poverty and misery in the middle east, particularly the occupied west bank. From time to time, there are reports in national newspapers that one or other of those organisations is not fulfilling its charitable purposes, and that it is possible that money given by donors in this country is ending up in the hands of those who are promoting violence, and that they are using it to fund that violence. Seeing the generic nature of the anxiety that had been expressed, it must at least be the case that, if confronted with an organisation that seems to be a registered charity in this country and that otherwise has bona fides, I might have to say to myself, “I cannot say that I don’t have cause to suspect that it might be used, even though I have no evidence that it will be used as such at all.” I put it to the Minister that that illustrates my point better than any more of my speech making would do. I am worried that we might be extending the net too far through our wording.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 3:45 pm, 8th May 2008

Perhaps an even more serious problem can arise, although my hon. and learned Friend has identified a proper point. Let us consider circumstances in which,  for example, the person is the owner of a garage. He is in possession of a car that is owned by a third party. The third party is entirely innocent, but the garage proprietor suspects that the car will be used in a terrorist offence. The property owned by the innocent third party is subject to forfeiture. If the Minister would be good enough to look at clause 34, he will see that, although there is a right for the innocent third party to make representations, there is no clear guidance as to the criteria that the court should observe when determining whether to make an order that will have a serious effect on the innocent third party.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My right hon. and learned Friend makes an extremely important point that we might cover a little more closely when we reach clause 34. However, it is a point that the Minister should answer during our discussions.

As the Minister will appreciate, the purpose of the group of amendments is to amend the clause not, I hope, to negate its efficacity in forfeiting terrorist property.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The right hon. Gentleman is probably right.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

We must ensure that the net is not cast too widely.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

May I reinforce the point that I have just made by way of an intervention because it does raise rather an important issue. We could often have a situation in which the convicted person is essentially a bailee, if I can use that technical word. He is a custodian. Let us suppose that the convicted person is in the business of repairing a car. That is the best possible example because cars can readily be used in terrorist attacks, either as the vehicle for the bomb, for transport or whatever. He has the property of another in his possession and under his control. We could think of almost any property that would fall into that category.

On that person’s conviction, the property belonging to the third party is subject to forfeiture. I acknowledge at once that a provision under clause 34—proposed new section 23B—enables a person, other than the convicted person who claims to be the owner or otherwise interested, to make representations, but nothing in that proposed new section sets out the rights of that innocent third party, if I may characterise the person as such. All he can do is to make representations. The provision does not explain the person’s rights if the court was satisfied that he was wholly innocent—“What is the standard of proof”, I say in parenthesis. What are his rights? They seem to be at large, and I find it difficult to believe that that can be right.

To be truthful, I have not had time to table amendments to clause 34. I make no complaint about that. It is my responsibility to do so. However, we must address such an issue because innocent third parties should not have their property forfeited because the bailee is guilty of an offence. I hope that the right hon. Gentleman will reflect on the provision because, as I suggest to my hon. and learned Friend, we shall need to return to it on Report as it concerns a serious issue of third party rights.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

I am following on precisely from that point. I am sure that the Minister will help us in a minute. What has been foreseen under clause 34 is a similar or more robust procedure that applied under the Police (Property) Act 1997—that both sides would be heard properly and a decision arrived at. I agree that the procedure must be robust, open and easily accessible to an innocent party who may lay claim to the property.

The hon. and learned Member for Beaconsfield said that we must be careful not to cast the net too widely. No one in the Committee or elsewhere would say that it is wrong in principle to forfeit money or property that might have been involved in terrorist activity. I can advise the Committee of a case—I shall not name it because it is current and was decided in the last few days—of someone who has been convicted of theft of property worth less than £4,000. All the property was recovered, and he was sent down for a matter of weeks. He came out of prison to face one of these procedures. He had £7,000 in the bank and could prove precisely where the money had come from, but the judge was helpless and had to take the money from the offender. The net is already too wide, and we should apply care. I have no regard for any terrorist, and we must ensure that anything that is used in terrorism is properly taken away. There is no doubt about that, but we must be careful in this part of the Bill.

Photo of David Davies David Davies Conservative, Monmouth

This will be a short speech, because it is completely unprepared. I strongly disagree with the last point, because it is not just about money that might be used for terrorism. It is about removing from people who have been convicted of terrorist acts the means to perpetrate further acts of terrorism, regardless of whether the money used for doing so was gained lawfully or not. Frankly, I have no sympathy whatever for terrorists, burglars or anyone else who is convicted of an offence. Once that conviction has been made, the gloves should come off.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

The problem is when that person is in possession of the property of third parties in particular. For example, in matrimonial situations a terrorist could share property with a wholly innocent wife. I would find it difficult and I hope that my hon. Friend would find it difficult to say that the property of a wholly innocent wife should automatically be taken away.

Photo of David Davies David Davies Conservative, Monmouth

I would indeed, and I was perhaps responding more to the comments made by the hon. Member for Meirionnydd Nant Conwy than to those of my right hon. and learned Friend. If it can be proved that money or goods belong to someone convicted of  terrorist offences, regardless of whether they were used to carry out the offences or were simply there, the authorities should have every reason to try to remove them from the convicted person.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I was quite surprised by what the hon. Member for Monmouth said—not the substance, but the notion that at some other times he prepares his speeches.

I defend entirely the hon. and learned Member for Beaconsfield who sent me a note stating rightly that efficacitÃ(c) is French and that he had slipped into French. We know how erudite he is in the English language, and I am sure that he is just as erudite in French, but it ain’t an English word, and I am happy to upbraid him for passing off efficacitÃ(c) as English when it is not.

Photo of David Davies David Davies Conservative, Monmouth

On a point of order, Mr. Bercow. Is it not the case that medieval French is still allowed in the House, although Welsh is not, and that my hon. and learned Friend was within his rights?

Photo of John Bercow John Bercow Conservative, Buckingham

My response to that is that I understand that French is allowed for the purpose of Royal Assent, but for that purpose alone. I am grateful to the hon. Member for Monmouth for his point of order, which I am sure was illuminating for the Committee.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

Without prolonging the point, I am pretty sure that efficacitÃ(c) is not medieval French, or Norman French.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

In his defence, I am sure that it was a minor slip.

I freely accept that the thrust of the amendments is not to wreck or undermine what we seek to do—they are perfectly valid. Strangely, however, the hon. Member for Monmouth had half a point, because the mens rea for the measures is “had reasonable cause to suspect”. Notwithstanding the hon. Gentleman’s point about third parties and the ownership of property, or the points about the European convention on human rights—about article 8, on the right to respect for private and family life, and article 1 of the first protocol, about the right to peaceful enjoyment of one’s possessions—there is, incumbent on every individual, a notion that they are responsible for their actions.

The principle applies even in the examples that the hon. and learned Member for Beaconsfield quoted, as there might be a reasonable suspicion that some of the bona fide charities working in the west bank, or anywhere else, have clear terrorist intent. Indeed, Members present could name such organisations. If one makes a donation to such an organisation—if one’s assets are aligned with them or are utilised by them in any way—and one does not fulfil one’s responsibility to put oneself in a position in which that is not the case, it is appropriate that the forfeiture regime should apply. It has to be applied carefully and there must be all sorts of safeguards, but the Bill  provides greater safeguards than are provided in the 2000 Act, not least new section 23B, to which I think the right hon. and learned Member for Sleaford and North Hykeham referred. New section 23B(2) provides that the court must have regard to the “value of the property” and to the

“financial and other effects on the convicted person of making the order”.

I reiterate that we start from the premise that no one thinks that what the measure does is other than a good thing. The concern is about whether it has been drawn too wide, but there are appropriate safeguards. The amendments would lessen the import and strength of the measures, which is why I shall ultimately ask the Committee to resist them if they are not withdrawn.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Let us take an entirely fictional person called Mr. McNulty, who has a car. He gives his car to a garage to be repaired, but, unfortunately, the owner of the garage happens to be a terrorist. The proprietor of the garage uses the car for terrorism purposes, and is subsequently convicted. May I ask where in the Bill, or in any other legislation, the interests of the wholly fictional Mr. McNulty are properly protected, because they are not protected by clause 34 or new section 23B?

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I contend that they are protected by the whole limb of “reasonable cause to suspect”. If the fictional Mr. McNulty had no reason whatever to suspect the person with whom he left his car at the garage, who was probably going to rip him off, he would be entirely free from the provisions.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I have a feeling that the right hon. Gentleman is misreading the Bill. I understand that the phrase “reasonable cause to suspect” would apply to the garage proprietor, not to the fictional Mr. McNulty, who gives his car in good faith to the garage proprietor, who happens to be a terrorist. Where in the Bill are Mr. McNulty’s interests protected?

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

There is no cause to protect the fictional Mr. McNulty in the Bill because he is not the focus. In the example, the right hon. and learned Gentleman was querying the rights of the third party, the fictional Mr. McNulty, over his car. These clauses would have no impact on Mr. McNulty. To the extent that he needs to be covered, that will be done elsewhere, not just by the ECHR, but under other legislation.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 4:00 pm, 8th May 2008

My right hon. and learned Friend the Member for Sleaford and North Hykeham has a perfectly valid point. The architecture, as set out in proposed new section 23B on forfeiture, clearly envisages the forfeiture of property in the possession or control of the individual at the time of conviction. The individual is the person who has committed the offence. That does not provide for an individual to make representations to the court that the property that has been used in the course of terrorism is his and has been used in circumstances about which he had no idea or reasonable call to suspect were happening. It may be that the Minister can provide reassurance that a  safeguard exists elsewhere in the Bill, in statute or in court rules. I think that my right hon. and learned Friend makes a perfectly good point.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I do not agree, not least because section 6 of the Human Rights Act 1998 says that everything we do should be ECHR compatible. Someone cannot forfeit wholly innocent property and remain within the context of the ECHR. If there are any disputes, the provisions in the Bill offer greater safeguards than in the original Bill. As was indicated, the Police (Property) Act 1997 also covers this point.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

It is not an adequate safeguard to say that a person who finds that their property has been confiscated by the court because it happens to have been under the control of a terrorist on the date of conviction should have to rely on article 6 of the ECHR to assert their right to recover it. They might well be able to do so, but in legislation of this kind, I would ordinarily expect the Government to make provision for that individual to make representations. I was heavily involved, sitting in this room at one stage, with scrutinising the Proceeds of Crime Bill, which made exactly that sort of provision. I wonder if this is not simply an omission that can be corrected by the Government before Report stage.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

No, I did not say article 6, but section 6 of the Human Rights Act 1998, which says that everything that we do must be ECHR compliant and therefore compliant with the key provisions of article 1 and the right to property in article 8. I alluded to that as the background architecture. As the right hon. and learned Member for Sleaford and North Hykeham has already mentioned, clause 34, which will insert section 23B in the Terrorism Act 2000, says very clearly:

“Before making an order under section 23 or 23A, a court must give an opportunity to be heard to any person, other than the convicted person, who claims to be the owner or otherwise interested in anything which can be forfeited under that section.”

That is the belt and braces and the right hon. and learned Gentleman has referred to it already. That is entirely proper. As I have said, the way we are amending the architecture of the 2000 Act and all that it says on forfeiture will make the safeguards stronger. The points that have been made are covered in the Bill.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I am sorry to press this matter, but I think that it is important. The Under-Secretary of State for the Home Department, the hon. Member for Gedling, may remember that when we were scrutinising a different Bill last year, I raised the confiscation powers in the Proceeds of Crime Act 2002 and we debated this subject. I think that the Minister is uncharacteristically misunderstanding the case.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

The right hon. and learned Gentleman’s fictional Mr. McNulty is covered by the amendments to the 2000 Act contained in clause 34. Any other individual who, for whatever reason, has their property captured under a forfeiture order, but who has due rights and legal ownership and can justify that, can get due process from the courts. Your  Mr. McNulty can waddle up to the court—if he is anything like me—present himself and the documents that say that it is his car that has been captured by the garage owner who happens to be a terrorist and, under the amendments in new section 23B to the Terrorism Act 2000, can also get due process from the courts.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Although I would like to think that the Minister is right in his interpretation of statutory language, I fear that he is not. Let us go back to the starting point. We are dealing with a fictional Mr. McNulty who gives his car to a garage. The garage proprietor uses or intends to use the car for terrorist purposes and is convicted. At that point, Mr. McNulty’s car is forfeited. What are Mr. McNulty’s rights? They are set out in clause 34, particularly in new section 23B. Mr. McNulty has a right to go to the court that made the confiscation order, claiming to be the owner or to be otherwise interested in anything that was forfeited. He has a right to go to the court, but what is the court to do? Subsection (2) of new section 23B states:

“In considering whether to make an order under section 23 or 23A in respect of any property, a court shall have regard to”— only two criteria—

“the value of the property”,

which is Mr. McNulty’s car, and

“the likely financial and other effects on the convicted person”,

who is the garage proprietor,

“of the making of the order”,

taken together with any other order that the court contemplates making. There is absolutely nothing in the clause that gives the court a duty to consider the interests of the fictional Mr. McNulty—nothing whatever. That is the objection.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

That is because the duty is afforded under new section 23B(1). New section 23B(2) relates to the remaining property where it has already been determined that it belongs to the defendant and is about to be forfeited. It has nothing to do with claims by third-party owners who are only interested in whether their property is being swept up in the forfeiture order. I think that that is very clear.

Photo of John Bercow John Bercow Conservative, Buckingham

Order. I was not entirely sure whether the right hon. and learned Member for Sleaford and North Hykeham had finished his speech or was taking an intervention.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I was giving way. Even if the Minister is correct in his interpretation of subsection (2), he is not right in his interpretation of subsection (1). All that subsection (1) does is enable Mr. McNulty to claim to be the owner. It says nothing about the burden of proof or what the court has to determine before deciding whether or not the car should be forfeited. I am saying that there is insufficient protection built into that provision for the Mr. McNultys of the world. If the Minister thinks about the Proceeds of Crime Act 2002 or the point made by the hon. Member for Meirionnydd Nant Conwy about the Police (Property) Act 1997, he will know that there are criteria in other legislation that touch precisely on that matter.

I am perfectly willing to accept that the Minister, at this stage, is not in a position to say, “All right, the right hon. and learned Member is of course right”, but he is in a position to say that he will think seriously about the matter. I will be entirely reassured, because he is a perfectly sensible chap, if he will say that he will give the matter serious thought before Report, because I can tell him that we will.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

In that spirit, I shall happily look at it, but I am pretty clear that I am right, without pre-empting my dispassionate reflection on how the two clauses interact.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I simply canvas this as a possibility: it is quite clear from the amendments that will be made to section 23 of the Terrorism Act 2000 that it is envisaged that forfeiture will extend to property that is more than just owned by an individual. That is why clause 34 states that at the time of the offence the property was

“in their possession or under their control”.

I also agree with the Minster that in clause 34, there is a clear provision for a person to make representations to the court that they are in fact the owner or otherwise have an interest in anything that is going to be forfeited. What is not expressly spelled out is how the court is to reconcile those two matters. If, for example, a person can establish ownership, but it is quite clear that the articles were not under the possession and control of the person at the time that they were used for terrorism, are they to be confiscated? What is the situation in terms of forfeiture where it is quite clear that the property does not belong to the individual, but nobody has ever come forward to say it is theirs? Is such property automatically confiscated? If the owner hears about it six months later, is it too late to come along and reclaim it? Or does it remain their property?

I hope that the Minister will forgive me. I suspect that these are matters which can be cleared up quite easily, but I think there is, in the drafting of these two  new sections, a degree of incompatibility or, at least, a lack of clarity which it might be useful to resolve.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

If, after the reflection that I have promised, that is the case, we will have a look. Many of these provisions, however, simply replicate, in the same language, the core of what has already been in force since 2000 and which has not, in its language at least, been problematic. The hon. and learned Gentleman will know that issues around asset seizures have been reported in the press in very recent times, but they are more to do with asset freezing than with seizures.

I am very happy, in the spirit that the hon. and learned Gentleman offered his point, to take it away and look at the interaction between the amendments to the 2000 Act. If there are concerns that have been around since 2000 that we have not alighted upon, then I will have a look. I am being very, very clear, as the hon. and learned Gentleman said at the start, that this is not about trying to block, impinge or do anything other than have the most efficacious set of principles to do what we all, collectively, want to do, which is to make sure that the assets of individuals involved in terrorism are duly forfeited.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am grateful to the Minister for his explanations. I hope that he will take what has been said in good part. It may well be, as so often happens when we consider Bills, that those tabling amendments have got it wrong. I do, however, think there is an issue here, and the fact that the provisions date from 2000 does not necessarily mean that the issue was resolved at that time. It would be very useful if the Minister could provide some clarification before Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32 ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Campbell.]

Adjourned accordingly at thirteen minutes past Four o’clock until Tuesday 13 May at half-past Ten o’clock.