Clause 429 - External requests and orders

Proceeds of Crime Bill – in a Public Bill Committee am 11:15 am ar 5 Chwefror 2002.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs) 11:15, 5 Chwefror 2002

I beg to move amendment No. 641, in page 249, line 43, at end insert—

'from a designated country'.

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

With this we may consider amendment. No. 643, in clause 432, page 251, line 37, leave out 'an' and insert 'a designated'.

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

The legislation is intended to form a part of an international regime for seizing the proceeds of crime—and I have no disagreement with that. It must provide for international co-operation, including the ability to enforce in this country orders that might been made abroad—and I do not object to that.

However, as I have stated in previous discussions, I am concerned that the legislation might not be acceptable if people who were being pursued by a foreign Government argued that that Government's standards of investigation and proof, or motives, fell short of what would be regarded as acceptable norms and standards in the United Kingdom.

Every Government have experienced that problem in a variety of circumstances; extradition is a classic example. Governments have been unwilling to extradite people unless they were totally satisfied that they would receive a fair trial in the country to which they were being extradited, and that the crime with which they were charged was comparable with a similar crime in the United Kingdom.

The legislation does not provide a list of designated countries with which, because the Government hold the view that those countries apply acceptable standards with regard to the investigation and seizure of the proceeds of crime, it is deemed acceptable to co-operate. In failing to provide such a list, it differs from its predecessor legislation. My amendments do not provide a designated list, because I have not sought to widen the discussion to address that subject, but it might be right to debate it on Report.

However, before the Bill leaves the Committee, we should discuss how the Government foresee the external request and orders regime working. If there is not to be a list of designated countries, what criteria will the Government apply in making decisions about which countries' requests are acceptable and which are not?

If we do not get that right, the international co-operation aspects of the Bill will bring the entire regime into disrepute. An endless series of Human Rights Act applications would come before our courts, with individuals claiming that orders should not be enforced because of the manner in which they were originally obtained, or the motives of the foreign Government—or enforcement authorities—seeking them.

The amendments are probing, and the references to designated countries are intended to stimulate discussion in the Committee—and a response from the Government—about how to ensure that the problems that I have described do not arise.

Photo of Mr Paul Stinchcombe Mr Paul Stinchcombe Llafur, Wellingborough

I do not follow the textual change proposed in amendment No. 643. I cannot find the words that it would delete in the line to which it refers.

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

On a point of order, Mr. Gale. I, too, would have been puzzled by the amendment as it now appears, but I imagine that there has been a printing error. I think that the amendment relates not to line 37 but to line 36, and it should possibly have proposed the deletion of the word ''another'', because I am not sure that it is possible to delete only the first two letters of a word. The amendment was designed to replace the word ''another'' with the words ''a designated'' in line 36. I hope that, if I am correct, that will solve the hon. Gentleman's puzzle.

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

That is probably a matter for the Chair. A typographical error has clearly been made, and we shall endeavour to unravel it while debate on the amendments continues.

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

I am grateful to the hon. Member for Wellingborough for having brought the matter to my attention. I confess that I had missed it. In my draft, the point at which I made the mark on the paper was in line 36, not line 37. In view of the nature of the amendment and the discussion that I am trying to stimulate, I hope that that will not prevent us from debating the principle, which is plainly enshrined in the first of the two amendments, No. 641.

I should be grateful for the Committee's and the Minister's view of how the provision will work. I am sure that the Minister will acknowledge that the merit of the old system was that the designated list could be discussed and scrutinised if lawyers, Members of Parliament or the House of Lords considered that circumstances were changing in a country, so that whereas previously its presence on the designated list was desirable, things were going wrong and it could not longer be relied on to operate a judicial and investigative system worthy of our respect, credence and enforcement.

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

What my hon. Friend the Member for Beaconsfield says about a designated list strikes me

as important in the context of the Home Secretary's certification that the Bill is compatible with the Human Rights Act 1998. As my hon. Friend said, there could be countries that no Committee member would regard as having acceptable codes of law and criminal justice—or, in the terminology often used in human rights law, acceptable norms and standards of justice.

I have no doubt that the Minister will try to reassure the Committee that the Government will not want to be hampered in their dealings with those who might be involved in money laundering, especially in relation to drugs, but equally, that they will not want to use the provisions against people whose human rights have been ignored in countries often now referred to as rogue, or failed, states. Unless a list, or another mechanism for dealing with my hon. Friend's point, is incorporated, we might have severe worries about whether the Home Secretary was right to certify that the Bill complies with the provisions of the Human Rights Act.

I am worried about an undifferentiated position whereby any other country, regardless of its human rights record, is regarded as appropriate. There are many countries that all of us, regardless of the party that we represent, would say did not look after the human rights of their citizens. We could all give our own list. I do not believe that it would be a profitable use of the Committee's time to do so, but we all know what the concern is.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

Not only is it important to have a discussion about designated countries, we should extend the list to include designated crimes with regard to particular countries. It is possible to express concerns about the standards of justice in a range of countries, and I certainly support what my hon. Friends have said. It is necessary to have a list of acceptable countries, but I fully accept that it would be unhelpful to write it into the Bill, because today's rogue state could be tomorrow's model of democracy and justice. It would therefore be better to have a definition of an unacceptable country.

It might be helpful to designate countries by the sorts of crimes that we would be prepared to consider. For example, none of us would dispute that we would do our level best to ensure that any provision we made to catch criminals involved in drug dealing applied to those doing the same in another country. Despite any reservations about the judicial system of that country, we would try to be as helpful as possible.

There are a couple of crimes that provide us with a way to make a list of designated countries. Corruption is a crime, and there are vast proceeds from corruption. Suppose the judiciary of Nigeria—if such a thing exists in a country like that—asked us about the proceeds of crime. What the Nigerians consider corruption may not be what we consider corruption, and vice versa. I would not put it past some countries to try to use their judicial system for corruption, and to get their hands on the proceeds of some crime or other. That would be a crime in itself. One would have to consider the honesty and integrity of a country's regime when deciding whether to designate it as a country with which we could do business.

Some would argue that confiscating or taking over land or property is a crime against the laws of their country, against the nature of their state. For example, it would be easy for this country, if it was not careful, to get bogged down in disputes between the Cypriots as to who owned what, and whether it was criminal for Turkish or Greek Cypriots to take over someone's land. Cypriots might argue that it was. If we were asked to use the powers in the Bill in a territorial dispute, I would be worried. As I understand this part of the Bill, it would be possible for a regime to try to involve us.

Photo of Vera Baird Vera Baird Llafur, Redcar

Is the hon. Gentleman not forgetting clause 432(6), which defines criminal conduct? For the purposes of initiating the procedures, ''criminal conduct'' is what constitutes an offence in this country—or rather, what would constitute an offence if it had been committed in this country. Is that not enough to put the hon. Gentleman's mind at rest on that point?

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

I do not think so. If that definition is specific to the provisions, it should say so in clause 429. None the less, I am grateful to the hon. Lady; she has given some reassurance, but not enough.

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

Is not the answer to the hon. Member for Redcar (Vera Baird) that, to take my hon. Friend's analogy, any Greek Cypriot could say that the invasion that led to Turkish Cypriots taking over a great deal of land belonging to Greek Cypriots in 1974 would have constituted an offence if it had occurred in this country? I think that my hon. Friend has given a good example, and clause 432(6) does not deal with it.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

I have not had the opportunity to consider clause 432 in that context, but my hon. Friend has, and I am grateful for his explanation, which I shall put alongside that offered by the hon. Lady. It reinforces my worry, because while much of our debate has been about drug dealing and money laundering, the Bill goes much wider than those particular crimes. We are presenting a blank cheque to foreign Governments who say, ''We are doing this within our jurisdiction, so would you please help us out?'' That is dangerous. It gives Secretaries of State in this country the power to choose whether they will allow that to happen. A list should be drawn up and kept up to date.

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

A thought has just occurred to me. There is a dangerous parallel with another recent provision with which my hon. Friend the Member for Henley (Mr. Johnson) and I were heavily involved when we argued with the Under-Secretary about the European arrest warrant. We said that an overseas court could make a decision that might not be recognised in this country, but that British police and the prosecution authorities would be instructed to arrest a British citizen, who would have no right to protest or have the matter investigated. The decision of the authorities overseas would be enough. The same problem would arise under this provision, and it is even more worrying because it would extend not only within the European Union but throughout the world.

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party 11:30, 5 Chwefror 2002

Order. That was a very long intervention. I appreciate that such issues are complex, but we are beginning to stray from the detail of the amendment.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

I am grateful for that ruling, Mr. Gale. At the outset of our proceedings I promised myself that I would not discuss the European Union or the euro. This is the 38th sitting, and so far I have resisted the temptation. I was about to say that although my hon. Friend the Member for Surrey Heath has made an interesting point about European arrest warrants, I would not rise to the bait. Even if I wanted to respond, I would not wish to spoil my good record.

The issue raised by my hon. Friend the Member for Surrey Heath is a general one, whether we think of it in terms of the European Union or not. I am sure that there are similar examples of different types of legal procedure in other parts of the world. I do not see it as a point about Europe. It is an issue of co-operation, and if we went down that route, severe difficulties about human rights could be involved.

The clause also raises other issues, which I would like to talk about later. However, for the purposes of our discussion of amendment No. 641, my hon. Friend the Member for Beaconsfield has made an important point. Safeguards are necessary, and designating particular countries would be one way of achieving them. I unhesitatingly support my hon. Friend, and will be fascinated to hear what the Minister has to say.

Photo of Roger Gale Roger Gale Vice-Chair, Conservative Party

Order. Before we move on, I must tell the Committee that I have had the opportunity to study the manuscript amendment that was originally handed in. It confirms that—although we may not need the exact details as it has not yet been moved—amendment No. 643 should read:

in clause 432, page 251, line 36, leave out ''an'' and insert ''a designated''.

That is now a matter of record.

Photo of Boris Johnson Boris Johnson Ceidwadwyr, Henley

I am inspired by my hon. Friend the Member for Spelthorne, and by the wisdom of the amendment. While reading the clause and the amendment, an idea popped into my head. The provision could relate not only to drugs crime and all the rest of it, but to artefacts and other such objects, which in other countries may be deemed to be the proceeds of crime, although we had thought that they were not. I will not mention the Elgin marbles, Mr. Gale, but it is clear that many things that are legitimately traded in London will be judged by the Governments of other countries, such as Iraq, to be the proceeds of crime. I can imagine that the Iraqi Government—I am sure that they study the text of our Bills in detail—will realise that they can make an external request.

Let us suppose that a posh dealer in Bond street—or Pollok, or anywhere else—has an effigy of the great Babylonian lawgiver, Hammurabi, who, hon. Members will remember, instructed the ancient peoples of Sumeria in public law, rather as the hon. Member for Wellingborough instructs us. Hammurabi

was the Solon of his day, a Mosaic figure like the hon. Gentleman—who, I am sorry to say, has shaved off his Hammurabiesque beard. Let us imagine that such an effigy was the subject of an external request from the Iraqi Government. They might say, ''This is the proceeds of crime. It was looted by Agatha Christie's husband''—or someone else—''back in the old days. Now it is in Bond street, and there should be a prohibition on dealing in that property.''

The Government would probably say that it was open to them to decide whether to accede to the Iraqi request and make an Order in Council forbidding dealing in such property. The Foreign and Commonwealth Office, always eager to propitiate this or that interest throughout the world, and seeking to make new inroads and alliances, might lean on the official responsible for the decision and make a dreadful utilitarian calculation. It might be decided that it was in the interests of the Government to accede to the Iraqi request and forbid the dealer from trading in the effigy of Hammurabi—or, indeed, of the hon. Member for Wellingborough. That would be a sad infringement of the dealer's human rights.

We should ensure that, as my hon. Friend the Member for Beaconsfield suggests, the Bill is amended. There should be designated countries from which we would view all such requests with scepticism. It is highly appropriate for us to ensure that some countries do not have an automatic right to make such requests. I shall be interested to hear the Minister's comments on this sensible and judicious amendment.

Mr. Ainsworth rose—

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

I cannot imagine how I can emulate either Hammurabi or my hon. Friend the Member for Wellingborough.

On a serious point, it is true that the current legislation requires the Secretary of State to designate countries for the purposes of co-operation concerning external requests and orders. The way in which part 11 is drafted intentionally removes the current requirement for countries with which co-operation is permitted to be designated by Order in Council.

Under the Criminal Justice Act 1988 and the Criminal Justice and Public Order Act 1994, assistance in seizing property and enforcing overseas confiscation orders may be granted only to countries and territories that have been ''designated'' for the purpose. That has meant that every time the United Kingdom has concluded an asset recovery agreement with a new country, or a new country has become a party to an international convention to which we belong and which includes asset recovery obligations, it has been necessary to table an Order in Council. When parliamentary time has proved difficult to find, the United Kingdom has been dilatory in putting itself in a position to honour its obligations.

Additionally, the designation procedure under the 1988 and 1994 Acts is outdated and anomalous. For example, it contrasts with the absence of any designation procedure in the Criminal Justice (International Co-operation) Act 1990, under which

applications can be made to our courts for search warrants and other coercive evidential measures at the request of foreign jurisdictions. Therefore, the Bill dispenses with the need for designation.

We have discussed this before, but just because a previous Government did something, there is no need for us to continue it. I continue to be amused by Conservative Members who find their conscience in opposition—it appeared to be lacking while they were in government.

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

I am not sure that I follow the Minister's argument. We established that the Bill's predecessor had a designation requirement. Although the Minister's example of non-designation might be questionable, it referred to obtaining evidential material, not to enforcing what might be substantial confiscatory penalties by confiscating the assets of an individual residing in this country.

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

The hon. Gentleman is right. The provision does not do that, but it does include the ability to undertake coercive investigation, which he was exercised about when we discussed previous clauses. However, it now seems that that is of no consequence for foreign jurisdiction, although confiscation is.

There are other practical matters that we must consider. I ask the hon. Gentleman to accept and reflect on the international nature of crime. I have mentioned repeatedly that the international dispersal of criminal assets is growing considerably, and the number of orders is not increasing to reflect that trend, because of the cumbersome nature of several of the arrangements. The Government—this is not a party political point, as I hope that any party in government would take this position—have played the role of trying to drive through higher international standards to address criminal assets and money laundering. We have encouraged other nations to increase their attack on criminal assets and actively fostered greater international co-operation in investigating and recovering criminal assets.

The hon. Gentleman asked for reassurance about how we would do that, and some of his colleagues gave examples of potential problems. As my hon. Friend the Member for Redcar spelled out, we are discussing how domestic provisions may apply to areas of co-operation with other countries. We are discussing definitions of criminality that apply in the United Kingdom but not in Iraq or Nigeria. We must be satisfied that such criminality is based on what would be a crime in this country. We would have to have a bilateral agreement or be party to a convention to which the requesting country was also a party. We would also want to consider case by case whether action was appropriate.

I ask the hon. Members for Henley and for Spelthorne, because one provoked the other's intervention, whether designation by country would deal with the issues that they raised. For example, is it not likely, at present—let us not try to prejudge the situation—that Iraq would not be a designated country? Therefore, the issues of Hammurabi images

might not arise. However, it would be likely that Greece would be a designated country, so issues of the Elgin marbles would arise, if they were covered. Designation would not deal in itself with the points that the hon. Gentlemen raised. As I said, there must be case-by-case consideration of the partner country's requests.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

I ask the Minister to clarify two things. He said that countries would have to be part of a convention. Will he give us examples of such conventions that he has in mind?

When I made my comments about designation, I suggested that I fully supported my hon. Friend the Member for Beaconsfield, but I also mentioned designated crimes. Although we may not want to designate Greece an alien country whose jurisdiction should not be trusted, we might want to exclude, for example, the Elgin marbles and the things that my hon. Friend the Member for Henley mentioned.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department 11:45, 5 Chwefror 2002

I do not know what designations of crimes the hon. Gentleman has in mind, but the Bill clearly states that such activities would have to be criminal in the context of the UK. Perhaps he wants to draw a lesser line and state that in the case of some UK crimes we should not co-operate with foreign jurisdictions but in the case of others it is okay for us to do so. We should stick with the definition that the activity must be criminal in the UK in order to trigger such co-operation.

The hon. Gentleman asks for an idea of the conventions involved. The Council of Europe convention on laundering, search, seizure and confiscation of the proceeds of crime, and the United Nations convention of 1998 against illicit drugs and psychotropic substances are among the international obligations to which other countries have signed up and on which they are prepared to co-operate with us. We have been at the forefront, as I hope we would continue to be, regardless of which party was in government, of seeking further international co-operation in such matters.

Photo of Boris Johnson Boris Johnson Ceidwadwyr, Henley

I am grateful to the hon. Member for Redcar for her elucidation of the point that the activity would have to constitute a criminal offence in the UK. The Iraqi Government would assert that theft of an effigy of Hammurabi would be criminal in any context, and that it was tantamount to taking Nelson from his column. I therefore do not believe that the Minister answered the point. The Iraqis would assert that such conduct was criminal in any context.

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

I hope that the hon. Gentleman did not misconstrue what I said. I was trying to say that designation of countries would not necessarily save us from that. As I said, Iraq would almost certainly not be designated, but the Greek Government, which the hon. Member for Spelthorne mentioned, almost certainly would. The amendment would not save us from such dilemmas.

The powers that we intend to operate in the UK under the Bill extend our ability to co-operate with others. The only way of guarding against that is case-by-case consideration of whether co-operation is appropriate. The Secretary of State will have to consider that, taking into account issues such as the public interest, national security and—the issue to which we return time and again in considering the Bill—ECHR compliance.

The hon. Member for Lewes (Norman Baker) wants spelled out in each clause the way in which it is ECHR compliant, but we may derive some benefits from having incorporated the ECHR into UK law. We can state that the Bill, like other measures, and ministerial considerations will have to be ECHR compliant.

An arrangement will have to be reached, whether through a multilateral convention or a bilateral agreement, and there will be case-by-case consideration of whether the particular co-operation being asked for fits in with the Bill and our domestic considerations and is appropriate in the circumstances.

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

If I understand correctly the process that the Government will go through, they will not allow enforcement unless there is a bilateral agreement or a signatory to the convention is involved, and the standards are satisfied. Surely when that general satisfaction was arrived at, creating a designated list would not place a great burden on the Government or the enforcement system. It would simply ensure that the public were aware of which countries are so designated and which are not. That would allow the opportunity for public debate. I am ignorant about all the countries with which we have bilateral agreements, as I suspect are most members of the Committee. Designation provides an openness that otherwise we shall not have.

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

I accept in principle the hon. Gentleman's point, but I do not want a cumbersome procedure whereby we are dilatory in carrying out our international obligations, and rather than being a driving force for change and improvement, we could be seen as a drag anchor because of the bureaucracy that we have imposed on ourselves.

The hon. Gentleman is right in so far that if we have such arrangements, be they bilateral or involving parties to conventions, there is no reason in principle why there should not be openness with those countries. I accept what he is saying and I shall reflect on whether that issue is currently covered. Treaties are laid before Parliament and parties to conventions are also made public by the Council of Europe and the United Nations. I do not know whether that is sufficient or if there is a way of drawing that process together to improve scrutiny of such arrangements without causing the bureaucratic procedures to which I referred. I am happy to give the matter some further thought.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

The Minister tried to reassure me that designation was not necessary by reference to conventions, which is why I asked him for examples. Unfortunately for him, one of his examples was a Council of Europe initiative. It is also unfortunate for

him that, until the previous election, I was a member of the delegation to the Assembly of the Council of Europe so I know a little about such matters. He may wish that I had stayed part of that delegation, which would have spared him some tedium. To say that a Council of Europe convention is an adequate argument for not wanting a designated country list does not stand up. I am well aware of some of the countries that sign up to Council of Europe conventions and I would be disturbed if being a signatory to a convention was an adequate justification for saying that the powers under the Bill could be used in favour of a foreign jurisdiction.

Let us take an example. Azerbaijan and Armenia are members of the Council of Europe and are signatories to all sorts of things. They are deeply involved in the disputes to which I have referred. It would be dangerous to say that, just because they had signed a convention, we could trade with them in such a way. Having been to Azerbaijan, I am not at all sure that I would wish to be involved in its court process. I have no confidence in it. I sincerely hope that we would not be using the powers of the British courts and those under the Bill to assist in disputes in that country.

Another example is territorial disputes and the confiscation, seizure and stealing of land. Cyprus may be among the list of countries that may be able to use the Council of Europe convention as an argument for allowing it to use our courts to further what are, in my judgment, political disagreements. The legislation is intended to stamp down on crime. We must guard against its being dragged into political or territorial disputes.

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

I acknowledge the hon. Gentleman's concerns about Azerbaijan. However, if someone similar to Abacha—who ripped off the state and laundered the money through British banks—were to rise to power in that country, surely the hon. Gentleman would want us to co-operate to deal with that? That would suggest the need not for designation but for examination case by case. Moreover, Azerbaijan would almost definitely be designated, so designation would not get around the problem that he raises, as I have tried to point out.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

There is a difference between our trying to get hold of money in another country, and another country trying to get hold of property in this country. The Minister also cited the United Nations convention. It is often thought that every nation state on the planet is a member of the UN, which is not the case, and that every country signs up to such conventions, which is also not the case. At the last count, the Vatican City was not a signatory to the UN charter—although I am unsure whether that is still the case. Do we wish to exclude the Vatican City, while including some of the signatories from parts of the world where dictators reign supreme?

For a long while, Switzerland chose not to join the UN, on grounds of neutrality. I have not checked whether that is still the case, but if it is, a weird situation would arise with regard to money laundering, as we would have dealings with some of the countries that belong to the UN, but not with some of the

countries that do not, even if many of the largest banks in the world are based there.

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

The discussion has been interesting. I take on board the Minister's remarks on the procedure that exists with regard to bilateral agreements and conventions, but I still have anxieties.

I am not greatly concerned about whether something is a crime in a foreign country, because the criminal conduct provision in clause 432 should ensure that that problem does not arise. I am more concerned about the standard of the legal system in foreign countries.

The Committee has debated at great length whether the legislation could be used in an oppressive way in the United Kingdom. I have considerable faith in our legislative system, but we know from some Court of Appeal decisions that things can go wrong. We all hope that, at the end of the day, justice is done, but all systems of justice are human, and therefore fallible. Mistakes can be made. A system that allows assets to be confiscated from individuals who have not necessarily been found to have previously committed a criminal offence, but who have, on a lesser standard, been considered to have been acting in a criminal manner, or to have a criminal lifestyle, could be open to monumental abuse.

Every country will adopt a slightly different regime. There is no reason why other regimes should be identical to ours, but I can easily understand that the system that is applied in some jurisdictions might give cause for serious concern in this country. As we are dealing with external requests for orders, we will have to be willing to enforce them. We may be asked—although I hope not—to enforce orders of which we are critical.

Of course, some of those criticisms may not be justified. I believe that criticisms of foreign legal systems are sometimes misplaced and show parochialism on our part. However, sometimes they are spot on. Those issues must be considered and debated openly if injustice is to be avoided; otherwise, we run the risk of being the executive arm of a foreign Government that has taken against a person. One can well imagine how easily that could happen.

To take a recent example with ramifications close to home, two British citizens of Indian origin—they may have had dual nationality—fell foul of the Indian Government. The consequences included the disappearance of a UK Secretary of State, because of certain telephone calls and other matters. The two alleged that, in India, they were the objects of a victimisation campaign, and they claimed that they had not received bribes in armaments deals. I give that example to show how the subject could become extremely contentious. Were an attempt made in India to confiscate their assets held here, huge issues would doubtless be raised. There would be applications under the Human Rights Act 1998, which I accept provides some safeguards for standards. My example illustrates how awkward the issues can be.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department 12:00, 5 Chwefror 2002

The hon. Gentleman is suggesting a solution that will not help the problem. He raises difficulties and concerns to do with a case in India. India may be party to many of the conventions to which we have signed up and may therefore have committed its judicial system to complying with minimum standards. I do not think that he is suggesting that we should not designate India, or in no circumstances co-operate with India on the return of criminal assets. I know that he does not believe that, and he is raising a genuine problem that will not be solved by the amendment. Such problems can be solved only by a case-by-case consideration of the issues.

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

The Minister makes a good point, but it worries me that Parliament—and after all, it is we who will enact the Bill—is marginalised from the system. I understand his logic. He envisages that the Government will first consider whether countries are signatories to an international convention. However, anyone can sign up to an international convention—we all know that the Soviet Union signed up to all sorts of human rights conventions and heaven knows what else, but that does not mean that it ever observed one jot of them.

The nature of the bilateral agreement is clearly important, too. When drawing up such an agreement, it is likely that our Government and another would have much official discussion to highlight areas of concern, and help in deciding exactly what is needed to achieve conformity with our standards. The foreign Government are likely to know what will be required if they want to proceed with the process.

There is a problem with bilateral agreements: by their nature, they involve potential advantage to both countries. I do mean to be critical of our, or any, Government, but once an agreement is in operation there is inevitably a slight tendency for the Government to think, ''If we don't honour this application to seize assets, we won't get the benefit of all the work we did to get it going, and it will die; and when we apply for something similar, they will get stroppy with us,'' because bilateralism implies give and take. I venture to suggest that that sometimes puts pressure on the Government to say, ''Well, we're not 100 per cent. happy with this, but we're 95 per cent. happy, so we'll go along with it.''

None of that process involves parliamentary scrutiny. If there was a designated list, Parliament would be able to examine it, and perhaps change it. Although I acknowledge that that may be cumbersome, and that the Minister is right to say that it could involve a delay that reflects badly on this country, that is a problem of this Parliament spending too much time doing things on which it should spend less time.

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

Listening to the hon. Member for Spelthorne, for example.

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

I hope that we will have an opportunity to examine one or two of the general principles before the Committee ends this afternoon.

Sometimes, our time is not used to best advantage, although I believe that that is curable. However, none of those opportunities for scrutiny will occur.

It would be possible for the Government to produce a designated list. Everybody would know about it and Parliament could stamp it and say, ''We're happy.'' The Government would not have to go along with every request because they could still exercise their discretion on odd requests by countries on the designated list. If one or two such requests were made, the Government could return to Parliament to remove the country from the list because they were dissatisfied. The Government have decided to do without that safeguard.

I appreciate what the Minister said about history and background. However, the matter is not about going off and gathering evidence at even the cost of getting a warrant and breaking into a person's house. Evidence is evidence: it is tangible material. We are discussing seizing people's assets and repatriating them back to a foreign Government at their behest.

We should have a designated list. I am grateful for the Minister's willingness to consider another option that does not involve parliamentary scrutiny but would ensure that there is a list to inform the public and to allow discussion in Parliament, if people were unhappy with the list. That goes someway towards allaying my concern, but it does not go far enough.

I shall press the amendment to a vote to put down a marker. We should have a designated list, because it would allow discussion and scrutiny to occur here. After all, parliamentarians have a duty to do that, rather than leaving it to the Executive.

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 12.

Rhif adran 52 Adults Abused in Childhood — Clause 429 - External requests and orders

Ie: 4 MPs

Na: 12 MPs

Ie: A-Z fesul cyfenw

Na: A-Z fesul cyfenw

Question accordingly negatived.

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

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

Several other matters should be considered. Subsection (1)(b) states that an order may

make provision for the realisation of property for the purpose of giving effect to an external order.

Given the reservations that we discussed—the Minister kindly said that he would consider some of the points made in the previous debate—there are clearly grounds for concern about the validity or fairness of external orders. We cannot return to that and debate it, but we can point out that anxiety has been expressed, and the possibilities of miscarriages of justice in foreign jurisdictions might be a great deal

higher than the chances of that happening in this country.

Subsection (1)(b) provides the power to make an order for the disposal, or ''realisation'', which I assume in layman's language means selling, of property in this country in order to satisfy an external order. Opposition Members expressed anxiety about the power to sell in this country, let alone abroad. If property is disposed of in this country in order to satisfy an external order, the proceeds of the sale—the money realised—will presumably follow the order and go abroad.

When we debated what would happen in this country if on appeal or subsequently the order was overturned and the person charged was ultimately found not to be involved, we had long discussions about how to ensure that justice is done and that the proceeds of the sale are refunded to the person involved.

In the event of an external order and a request to realise £1 million from the sale of something, as I understand the clause, that is realised and handed over to the external jurisdiction to say, ''There you are—we have done what you asked.'' We therefore lose control of the matter.

As we described when we discussed the matter in relation to this country, the order might be overturned on appeal or the person charged might be held to be the wrong person. The property seized in this country may have other, tangential owners. What guarantee have we under the provision that money sent abroad as a result of the sale of the property can ever be got back? My guess is that some jurisdictions would not give it back. In such circumstances, where is the provision for a remedy in the British system for the person who has suffered an injustice because the money has gone abroad? Where is the remedy in our jurisdiction for someone to say, ''You sold something of mine worth £1 million and sent it to some basket case abroad that now won't give it back. I am £1 million short, and I shouldn't have been, but it was the British courts that did it.'' Where will that money come from?

Moreover, some things might be disposed of in satisfaction of such an order that have more than a cash value. They may have heirloom value to the family involved or be irreplaceable. The person who owned the thing worth £1 million may have owned it partly because it was the only one in the world, and the £1 million in itself would not make that good. Does the Minister feel that some safeguards should be provided in this part of the Bill?

Subsection (2) states:

An Order under this section may include,

and goes on to list some provisions. It then states:

except Chapter 3.

I am curious why, given all those provisions, it is held to be necessary specifically to exclude chapter 3. Curiosity leads me to ask why that should be excluded. Why not exclude other things? Why list only some? I am concerned by that exclusion.

I am also concerned by subsection (3). Subsection (3)(e) appears to offer a safeguard for someone who is caught up in this process, in which things happen externally, by allowing them to make representations to a British court to find out what is going on, and to challenge the request for the order.

It is interesting that that safeguard is offered in clause 429, but not in clause 428. Clause 429(3) deals with authentication functions and the like. Clause 428 also deals with such matters. Why does the Minister consider the provision in subsection (3)(e) to be necessary in clause 429, but not in clause 428. What is it about clause 429 that so worries the Minister that he wishes to include in it a specific safeguard of this sort?

I also wish to know why someone who is caught up in this process can test or object to it only via a British court? I guess that that is because if one is in the United Kingdom, one can only go to a British court. However, some of the issues that will arise will be matters for a foreign jurisdiction. Therefore, how is a person in this country, who is offered the opportunity to address only a British court before a decision is taken, to get any sort of justice if he first needs to go to a court in a foreign jurisdiction to get evidence? If he does not do that, he will have to rely on what the British court tells him that it has discovered about the foreign request. That is a second-hand safeguard, rather than a direct one.

Those are important points. They raise issues about the functions of the Secretary of State, which the Committee has debated before, and I expect that the response that was given then will be given again now.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department 12:15, 5 Chwefror 2002

The hon. Gentleman is concerned that we are, potentially, confiscating money—and an obligation to hand it back in its entirety—to a foreign jurisdiction, because that is where the request initially came from. We will act in exactly the same way in response to an external request, as we would in response to the internal workings of the Bill. Therefore, any money that is confiscated or realised as a result of civil proceedings under part 5 will be paid, through the appropriate route, into the Consolidated Fund.

Any repatriation of money to a foreign country will be agreed between this country and the country concerned, within the framework of either the bilateral agreement or the convention under which it is being operated. There will not be automatic repatriation of every penny that has been seized: issues such as the costs of carrying out the proceedings in this country will have to be considered beforehand, and representations will be made before repatriation takes place, if anyone feels that an inappropriate amount has been seized. With regard to that, the same procedures would be followed as within the main body of the Bill. That person would have an opportunity to make representations that a certain item was not realisable or confiscatable.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

Those are helpful comments. Will safeguards and issues such as cost be considered at a later date, or will they form part of the Order in

Council? In the latter case, will Parliament have an opportunity to consider those safeguards, or do we have to take the hon. Gentleman's word for it that it would be an administrative decision?

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

They are not part of the Bill. The Bill gives us the power to use the procedures in response to an external request. They do not govern the international agreements between this country and others for the repatriation of all or part of the proceeds. The issue is not relevant to our deliberations. The provisions give us the ability to co-operate with external requests in exactly the same way as we would in respect of the internal workings of the Bill.

Chapter 3 of part 5 deals with summary confiscation of cash and that does not involve international co-operation. If a person is carrying a large amount of cash in this country, and that cash is either the proceeds of crime or intended for use in crime, it could be seized under chapter 3 of part 5. We do not presume that there will be an international dimension to those powers.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

I am puzzled by that answer, and wonder whether the Minister will reflect on it. If a statue or a picture is the proceeds of crime, it may be seized and sold, and the money sent abroad. Is he saying that, if a person has cash that is the proceeds of crime, it cannot be seized by a foreign jurisdiction? That is extraordinary, because cash, not a statue or a picture, is the most portable and obvious way in which to take the proceeds of crime from one country to another.

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

I understand what the hon. Gentleman is saying, but let me try to satisfy him. We need powers to respond to an external request in, say, chapter 2 of part 5. If there are considerable assets in this country that may be subject to civil recovery proceedings in, for example, the United States of America, an external request may be made, and we should be prepared to seize those assets. The issue of cash will be effectively dealt with, because cash that is discovered by a Customs and Excise officer or a police officer will be subject to the provisions under chapter 3 of part 5 and may be subject to court proceedings and civil recovery under part 3. That does not preclude the authorities in the United States of America from saying to the British Government at any time that the cash discovered at Heathrow airport belongs to that country and that we ought to consider whether any of it is recoverable.

We do not need powers under the Bill to be able to give that consideration. The powers are needed so that action can be taken against the person carrying the cash that is intended for use in crime, or is the proceeds of crime, under our bilateral arrangements with the USA. Whether some of the money is theirs or ours does not require to be established under the Bill.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

I am becoming more worried, not less. Let us take the example of cash at Heathrow airport. I have seen Customs officers opening suitcases full of cash, but no crime has been committed because

there are no restrictions on the amount of cash that can be brought into the United Kingdom. The provision is of no help if cash can be seized only when it is being brought into the country. Establishing whether a person should be subject to an external order will take some time—it cannot be done the moment that he has stepped off an aircraft at Heathrow with a suitcase full of $100 bills.

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

Despite the hon. Gentleman tempting me, I have no intention of reopening the safeguards and the circumstances in which cash can be seized in this country, which we discussed when dealing with chapter 3 of part 5. We do not envisage cash being seized or the need for a power to seize cash in response to an external request. That does not cut across an external request being made to this country to say that cash that had been seized was the property of that country.

The hon. Gentleman asked why the provisions under subsection (3)(e) are not needed under clause 428. I remind him that that clause is about internal cross-border co-operation within the United Kingdom and that clause 429 deals with people having the right to be heard in a British court in response to requests being made by a foreign country. Those circumstances are different. There is a need for subsection (3)(e) under clause 429 to protect people's right, but not under clause 428.

Question put and agreed to.

Clause 429 ordered to stand part of the Bill.