Clause 14 - Effect of order on court's other powers

Proceeds of Crime Bill – in a Public Bill Committee am 2:30 pm ar 22 Tachwedd 2001.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath 2:30, 22 Tachwedd 2001

I beg to move amendment No. 60, in page 7, line 35, leave out subsection (7).

This is a probing amendment, and I do not want to hear any remarks from the Government Back Benches that it is intended to wreck the Bill.

We are puzzled—in much the same way as my hon. Friend the Member for Spelthorne was puzzled about clause 13. My hon. Friend the Member for Beaconsfield (Mr. Grieve) has apologised for his absence from the Committee, but he will return soon. He and I independently came to the same conclusion about subsection (7): it is, to be kind, inelegantly drafted—or, to be critical, it is extremely confusing. It is almost circular in how it operates. If the writers of ``Yes, Minister'' were writing today and wanted to give Sir Humphrey, in one of their famous scripts, a long paragraph to read out that left the Minister, the fictitious Jim Hacker, completely confused, they would choose something just like subsection (7). Hon. Members need only read it to themselves quietly, as I hope they, including Labour Members, are now doing, to realise that it is the sort of thing that baffles ordinary mortals.

I am sure that in a moment the Minister will come up with some good reasons why the Bill must include something along those lines. As I said in relation to a probing amendment, we are not trying to attack the intention in either subsection (7) or clause 14 as a whole. As the Government have made clear, the Bill hugely extends the Government's powers to stop the Mr. Bigs, in particular, as we have all called them—the serious drug dealers—from hanging on to their ill-gotten gains. Undoubtedly such a Bill should contain a clause that is designed to set out the effect on the court's other powers. We have no problem with the basic intention of clause 14, but we believe that there must be a simpler way, and one that would be easier to understand, to set out the point in subsection (7).

My hon. Friend the Member for Beaconsfield and I came separately to that conclusion. As the Minister and, by now, other Committee members know, we both spent many years in the courts dealing with both criminal law and complex civil matters and are therefore used to abstruse legal drafting. Long before I entered the House in 1992 and my hon. Friend the Member for Beaconsfield entered it in 1997, we often used to find that judges would ask, ``What on earth did Parliament mean when it introduced something as complicated as that?'' Members of the Bar and solicitors are familiar with being puzzled about that.

Following a much more recent decision that was not in force when I did the vast majority of my work in the courts, Pepper v. Hart, judges may now look at what Ministers say in debates in Committee in order to understand what Parliament intended. We must therefore be especially careful in our drafting and in what we say in Committee in order to ensure that points are refined. This is a Pepper v. Hart point.

Photo of Tom Harris Tom Harris Llafur, Glasgow Cathcart 2:45, 22 Tachwedd 2001

As the hon. Gentleman advised, I read the provision silently to myself. Not being legally trained, I, too, look forward to the Minister's comments. If the hon. Gentleman believes that the provision, whatever it says, is worthy of inclusion in the Bill, can he explain why his only amendment is to leave it out completely rather than frame a new form of words?

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

The hon. Gentleman makes a valid point. I am especially glad to hear from him because he and I have just spent an extremely enjoyable lunch attacking the media in general and the BBC in particular. I thoroughly agreed with everything that he said, and I believe from what he said that he agreed with some of what I said over lunch.

Had my hon. Friend and I had more time, and had we not been under pressure to table a lot of other amendments, some of which related to very substantive matters and involved a real party political battle, we would have liked to try to redraft subsection (7). The hon. Gentleman makes a serious point, and the answer to his question is that if we had civil servants helping us, or more time, we would certainly have had a go at redrafting the provision. However, we had so little time to table our amendments on the big issues, such as clauses 70, 75, 11 and 6 and the civil recovery procedures—there are five areas where the major thrust had to be—that we simply ran out of time. I would have loved to do a redraft.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Llafur, Wellingborough

What does the hon. Gentleman believe that the subsection means? Does he, like me, believe that it means that making a confiscation order does not restrict other sentencing powers?

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

The hon. Gentleman may have suggested a good redraft to the Minister. That probably is what it means. That was certainly a summary that I had in my mind when I read it, and I hope that when the Minister replies we shall find that the hon. Gentleman and I are right about that. As a barrister, like me, with some experience of such matters, he will probably agree—whether he is prepared to say so on record is another matter; he may not want to upset his Whip—that it is not the most wonderful piece of drafting ever. He may think that recorders—one of whom he will probably be before long—and judges will wonder why on earth it was phrased in such a confusing, circular way.

I shall not bore the Committee by going on a great length. I have made the point, which is probing, and I hope that the Minister will tell us not only what the provision is about but that he is prepared to take it away and consider whether it could be redrafted.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

As a layman, I shall try to be helpful to the lawyers—and I promise that I will not submit an invoice or ask for a fee. Occasionally, the common sense of the ignorant layman can throw light on such matters. I have read the relevant passage, and it would be an injustice to associate Mr. Hacker, Sir Humphrey—or even the Clerk's Department—with such a drafting. I want to test whether I can assist the Committee, and whether I understand it correctly. Subsection (7) states:

``No enactment restricting the power of a court dealing with an offender''— in good, simple English, I think that means an Act that says that one cannot do something. It continues:

``in a particular way from dealing with him also in any other way''—

I take that to mean that one can do it in another way. Am I therefore to understand that if an Act says that one cannot do something, one can do anything else that one likes? If that is correct, the Bill, which already goes round and round in circles, is in utter confusion. Subsection (7) then says that the order should not

``restrict the court from dealing with an offender in any way''.

The Bill therefore says, ``But actually, you can do it in the first way if you like.''

Photo of Vera Baird Vera Baird Llafur, Redcar

The hon. Gentleman's bill will not be paid.

I agree with the sentiments that have been expressed. Would it not be relatively easy to establish the operating framework if the subsection started with the penultimate line? I am not suggesting that it would be the perfect drafting, but the wording might then be something like this: ``The making of a confiscation order shall not restrict the court from dealing with an offender in addition in any other way it believes appropriate in respect of the offence.''

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

That is the first time I have heard a barrister offering free advice. It is probably sensible. I had no intention of sending in a bill for my advice, but I would still like to know from the Minister whether the Bill is saying, ``If an Act says you can't do that, you can't do it, but you can do anything else, and if that isn't adequate, you can do the first thing anyway, which we said you couldn't do.'' That is how I understand it.

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

Before I give the Committee the justification for subsection (7), I assure the hon. Member for Surrey Heath (Mr. Hawkins) and my hon. Friends that I have read it not only quietly but loudly, and I have tried putting the emphasis in different places. I have even read it to other people. At one point, in referring to the subsection, my ministerial brief says that ``it makes it clear''. [Laughter.] I thought that I should say that before giving the Committee the reasons why we want to keep the subsection in the Bill.

The effect of the amendment would be to create doubt as to whether the presence of a confiscation order inhibits the court from the exercise of its sentencing powers. The provision has featured in criminal confiscation legislation from the outset. Clause 14 sets out what effect a confiscation order has on the court's other powers to impose a sentence on a defendant on conviction. For example, subsection (2) states that

``The court must take account of the confiscation order before—

(a) it imposes a fine'', or any other type of specified order, on the defendant. Subsection (4) makes it clear that

``the court must leave the confiscation order out of account in deciding the appropriate sentence for the defendant.''

That is subject to subsection (2).

Subsection (7)—this is where my brief says it makes it clear—makes it clear that if the court has the power to combine two or more sentencing disposals, the presence of a confiscation order cannot prevent the court from doing so. Under subsection (7), a confiscation order does not restrict any of the other disposals that a court may have. The wording has formed part of the law relating to confiscation since the Drug Trafficking Offences Act 1986. We considered the subsection's function and whether it was removable. If the hon. Member for Surrey Heath has spare time over his Christmas break, or if my hon. Friends would like to spend their time thinking of a suitable way to rephrase the passage, they would do the whole criminal justice system a favour.

We are advised that the contents of subsection (7) are understood and have been used for some time. Its removal would create uncertainty. For those reasons, notwithstanding my suggestion that the hon. Gentleman should formulate a better phrase, I ask him to withdraw the amendment and allow subsection (7) to remain part of the Bill.

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

The Minister obviously had his tongue firmly in his cheek at the outset of his remarks. I was grateful to learn that he had problems with subsection (7), just as we did. He described how he went through the passage several times, putting the stress in different places. One can picture the Minister staying up into the small hours with a wet towel around his head, trying to make sense of it. The subsection is not easy to understand, and the hon. Members for Redcar (Vera Baird) and for Wellingborough (Mr. Stinchcombe) have come up with other ways of phrasing it that might address the problem.

The Minister has been very reasonable, and is reverting to the side of him with which we deal most often. I find that he is most reasonable when dealing with statutory instruments, rather than operating in strict accordance with Government briefs that criticise the Opposition. He is now in his normal mode as a reasonable and rational man. I am happy to accept his assurance that he is prepared to look at the matter again. Now that his officials have heard from the hon. Members for Redcar and for Wellingborough, they will do the same, and we may find that a Government amendment on the subject is introduced later.

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

I absolutely did not say that I wanted to look at subsection (7) again; I invited the hon. Gentleman, and my hon. Friends, to look at it again, if they so wished.

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

The Minister reinforces his point wittily. I shall rephrase what I said: the Minister accepts that his officials should reconsider subsection (7) in the light of the helpful suggestions of his hon. Friends. We may find that a Government amendment is introduced that suggests something simpler and less like the work of Sir Humphrey. As the Minister has said that the passage must be reconsidered, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

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

I shall not detain the Committee. When I moved amendment No. 60, I said that we accepted that such provisions are needed in the Bill, and it seems only sensible that the Bill should contain something like clause 14. When the Minister responds, I should like him to say whether he is satisfied that subsection (3), which mentions the Powers of Criminal Courts (Sentencing) Act 2000, the Misuse of Drugs Act 1971 and the Terrorism Act 2000, covers all the ground.

I know that the Minister must read from a brief that says that everything is covered under subsection (3), but when considering such a large Bill, it is important to get something on the record about the cross-referencing between different pieces of legislation. Throughout the Committee, the Minister has said—quite rightly—that the Bill updates and extends existing law. I want to ensure that it is on the record that the Minister and his advisers are confident nothing has been missed. I do not know whether my hon. Friend the Member for Cities of London and Westminster, from his experience in the City, has been approached by any slightly worried organisations. Although I have pressed companies such as the British Bankers Association and individual banks to respond, I have not received details, although I have tabled amendments following contact with the Chartered Institute of Taxation.

I want this on the record because, as hon. Members will know, in Committee we sometimes find that we receive a brief that refers to the whole Bill, including matters that have already been debated when considering previous amendments and clauses.

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

I know that my hon. Friend has extensive experience of such matters.

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

My hon. Friend makes a valid point. Many members of the Committee will have received briefs from a variety of professional and public bodies. Nothing would be more of a crying shame than either lacunae or too much overlap. Such briefs provide opportunities, and with your leave, Mr. O'Brien, I hope that we could return to issues should we receive representations.

As my hon. Friend said, I have received briefings from organisations in the City which, although they—like the Conservative party—were positive about the overriding aspects of the Bill, nevertheless examined it clause by clause. Therefore, I endorse my hon. Friend's comments.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath 3:00, 22 Tachwedd 2001

The only chance that we will have to revisit the matter in this House will be on Report. That is why I want the Minister to comment on the whole clause, especially subsection (3). I am sure that he will have had briefing from his officials about its importance.

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

The clause is technical. It sets out the basic relationship between confiscation orders and other orders that may be made following conviction. It makes it clear that confiscation orders are not to be drawn into the global sentencing process. It also reproduces the effect of existing legislation. The hon. Member for Cities of London and Westminster asked a reasonable question, but we are not aware of any lacunae—to use his word. He will see that subsection (5) deliberately draws out compensation orders and proposes to deal with those differently.

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

I am grateful to the Minister for that explanation. He simply says that the clause is technical, but will he give us further information about the way in which it will operate? I do not wish to delay the Committee, as I am sure the Minister appreciates, but it would be helpful if he could give us further details about the technical aspects of the clause, which I am sure he has been given.

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

As the hon. Gentleman knows, the clause is an attempt to set out the order in which we proceed, the point at which confiscation orders come in, and what must be taken account of before an order is made and what must not. I do not know what further information the hon. Gentleman wants. What are his worries, apart from the fact that we may not have covered everything? We believe that everything is covered, and we have reproduced provisions from existing legislation.

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

I understand that the Minister has gone as far as he feels he can, and I am happy to leave it there.

Question put and agreed to.

Clause 14 ordered to stand part of the Bill.