Third Standing Committee on Statutory Instruments, &c.


Wednesday 24 February 1988



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The Committee consisted of the following Members:

Chairman: Mr. Donald Coleman

Abbott, Mrs. Diane (Hackney, North and Stoke Newington)

Bell, Mr. Stuart (Middlesbrough)

Brandon-Bravo, Mr. Martin M.(Nottingham, South)

Campbell, Mr. Menzies (Fife, North-East)

Dorrell, Mr. Stephen (Loughborough)

Flynn, Mr. Paul (Newport, West)

Hicks, Mrs. Maureen (Wolverhampton, North-East)

Hill, Mr. James (Southampton, Test)

Jack, Mr. Michael (Fylde)

John, Mr. Brynmor (Pontypridd)

Johnson Smith, Sir Geoffrey (Wealden)

Kellett-Bowman, Dame Elaine (Lancaster)

Lester, Mr. Jim (Broxtowe)

McNair-Wilson, Mr. Patrick (New Forest)

Madden, Mr. Max (Bradford, West)

Maples, Mr. John (Lewisham, West)

Patten, Mr. John (The Minister of State, Home Office)

Taylor, Mrs. Ann (Dewsbury)

Miss. P. A. Helme, Committee Clerk

3 Third Standing Committee on Statutory Instruments, &c. Wednesday 24 February 1988

[MR. DONALD COLEMAN in the Chair]

Draft Drug Trafficking Offences (Enforcement in England and Wales) Order 1988

10.30 am

The Minister of State, Home Office (Mr. John Patten): I beg to move, That the Committee has considered the draft Drug Trafficking Offences (Enforcement in England and Wales) Order 1988. It is very nice to be under your eye this morning, Mr. Coleman. The order has an important purpose, which is to complete the arrangements by which courts are able to recover the proceeds of drug trafficking throughout England, Wales and Scotland. The Drug Trafficking Offences Act 1986 was the first comprehensive legislation passed by Parliament to enable convicted drug traffickers to be deprived of their unlawful gains. It had widespread assent in the House for what it set out to do. The Act contained the powers necessary to trace, freeze and eventually confiscate assets, and was warmly and generously welcomed throughout the House. I commend the order to the Committee. If approved and made, it completes the arrangements whereby court orders for the restraint and confiscation of the proceeds of drug trafficking will be effective throughout Great Britain—that is the most important point—no matter whether the order was made originally in England, Wales, or now in Scotland. That is a desirable and important objective, which I commend to the Committee.

10.32 am

Mrs. Ann Taylor (Dewsbury): I do not expect any scope for disagreement in the Committee, either about the basic purpose of the statutory instrument or about its detailed provisions. As the Minister said, the basic legislation which the statutory instrument completes had widespread assent throughout the House, and the Opposition do not wish to raise objections at this stage. We are all very much aware that the drug problem is important and appalling. It is a destructive habit that devastates families, many of whom feel that their children are normal and pure, yet who still have the underlying fear that the drug culture will somehow attract them, and that they may get into this habit which causes so many problems and tragedies. Unfortunately, it is an increasing problem which is difficult to quantify. The aspects which we know may be only the tip of the iceberg. We all welcome any steps that can be taken to deal harshly and properly with those who deal in drugs and who traffic in drugs in this country, no matter what part of it. It is eminently 4 sensible that the legislation should cover all parts of the country equally. It would be foolish if we had any other type of provision. Drug trafficking is, unfortunately, one of the growth areas in recent years—one which some of us who are old enough to have missed out on the drug culture find difficult to comprehend. It is difficult to understand the prevalence of the problem and the attraction of drugs. Much of it is cultural, but the role of the drug trafficker and drug pusher in all this cannot be ignored, and it is one of the most obnoxious roles that anybody in our society can perform at present. There is no disagreement about what is required. We might argue on another occasion about some of the underlying reasons why young people take to drugs, and some of the pressures on them. That is not an issue for the Committee today. But there are three questions that I wish to ask the Minister, as there are some areas where there may be problems. We all agree with the basic objective, which is that the person dealing in drugs should not benefit from his ill-gotten gains. The first question is, how shall we assess the proceeds which the offender has obtained from drug trafficking, and how can we separate his assets from that source from any other assets that he has? In the discussions in the Scottish Grand Committee, the Solicitor-General for Scotland found it difficult to define this exactly. He said clearly that profits from other crimes should be separate from profits related to drug trafficking, and that only those profits from drug trafficking could be confiscated. That will lead to some grey areas and significant difficulties over how we define what type of profits come from what type of activity. That is a point which the Minister must have considered, and perhaps he will clarify it. As I read the legislation, the onus is on the offender to show which assets he has legitimately acquired, and that again may lead to difficulty. My second question is, how are we to ensure that innocent members of the offender's family do not suffer from a confiscation order? It is clear that the offender should not benefit; but what about the innocent spouse or children? The family home may have been bought by an offender, part of the money to pay for it having come from drug trafficking. That again is a grey area where it will be difficult to define exactly what money has been used to pay for what. If an innocent family is involved who may have dissociated themselves from the offender, what will be done to protect the needs and the rights of the innocent spouse and children? My final question is no how the provisions in this legislation tie in with the Criminal Justice Bill, which we are still discussing and in which we shall soon reach the clause on confiscation. If the Minister can clarify those three points, it will be of great assistance to the Committee.

10.38 am

Dame Elaine Kellett-Bowman (Lancaster): May I say how very welcome the order is to my constituency, because we are athwart the M6? We are therefore on the direct road to Scotland, and it is important to us that court orders be effective throughout Great Britain, in Scotland as well as in England, so that 5 nobody falls through the net. Far too many drug traffickers come up our motorway, and we shall be only too delighted to see them, instead of staying in gaol and contemplating a life of luxury, when they come out, contemplating having no money at all, having lost their liberty and their gains. We are much in favour of the order.

10.39 am

Mr. James Hill (Southampton, Test): As my hon. Friend the Minister will know, I am on the legal affairs committee of the Council of Europe, where we have been discussing many similar problems. I had the pleasure of being on the Standing Committee in 1986 that discussed this subject fully. One of the provisos that I made in my speech then was the ineffectual controls on transferring currency abroad. I quote in particular the American system, under which, if a bank's customer deposits a large number of dollars, a form must be filled up explaining of where that large sum—anything over $10,000—has come from. Is there any way in which the Council of Ministers can discuss the harmonisation of suspicious monetary movements, and the harmonisation of a law which covers the 21 countries of the council to make sure that Europe's banking system is also taking part in this control?

10.40 am

Mr. John Patten: I shall deal first with the interesting point raised by my hon. Friend the Member for Southampton, Test (Mr. Hill). There will be a meeting in June of Council of Europe justice Ministers in Lisbon, which I shall attend. This matter could come up in discussion, at least in the margins of that meeting. My hon. Friend may be aware that we are seeking to make a series of bilateral treaties between ourselves and third countries. A few weeks ago, my right hon. Friends the Foreign and Commonwealth Secretary and the Home Secretary and his Excellency the United States Ambassador to the Court of St. James signed an agreement to make possible mutual confiscation of the proceeds of crime. There are another 13 stages of negotiation that the Foreign and Commonwealth Office is undertaking. These bilateral treaties will help to pick off the problem, but they take a long time to negotiate. Multilateralism is a better idea to make it happen. Funnily enough, my hon. Friend the Member for Southampton, Test has echoed some discussions that are going on in the Home Office about how to get greater multilateral agreement within the EEC countries to achieve this. It is one of the matters that I shall be seeking to put on the agenda of the Council of Europe meeting of justice Ministers that I shall attend on behalf of my right hon. Friend the Secretary of State for the Home Department. My hon. Friend has made an interesting point. I agree that we must press ahead. The United Kingdom has been in the lead in international confiscation. As the hon. Member for Dewsbury (Mrs. Taylor) and my hon. Friend the Member for Warrington, South (Mr. Butler), who is serving on the Committee considering the Criminal Justice Bill, are aware, in the consideration of that Bill the Committee is discussing ways to 6 improve international co-operation in the pursuit of crime. There have been some lively debates. Hon. Members have not agreed on every aspect, but they have agreed that the United Kingdom is at the forefront in considering how to move towards greater mutual assistance between countries in tracking down the proceeds of international crime—not just drug offences, but all kinds of offences. I greatly welcome the point made by my hon. Friend the Member for Lancaster (Dame E. Kellett-Bow-man). I thank her for her warm appreciation of the provision. I turn to the three points made by the hon. Member for Dewsbury in the order in which she made them. She raised, first, the important issue of the assessment of proceeds. This will cost us a great deal of money in professional fees and take up a great deal of professional time. There will be profits from the seizures but they willl not be as large as one might expect. But that is not the point; we are in the business of trying to confiscate the assets of people that have been gained, as the hon. Member for Dewsbury rightly said, from the appalling scourge of the drug culture, from people who are the motor in the drug culture. They are the people who have been making the proceeds. They have to be tracked down. Accountants and others will advise on the procedure. The Drug Trafficking Offences Act 1986 and the Criminal Justice (Scotland) Act 1987 enable the courts to ensure that all the proceeds of a convicted drug trafficker's crimes which come from drug trafficking are assumed to come from drug trafficking, putting the burden, as the hon. Member for Dewsbury said, on the defendant to show otherwise. In other words, it is the reverse of the burden of proof. Few members of the Committee would have much sympathy with the constitutional argument that this was an awful breach of the long established English convention that the burden of proof is on the prosecution, not on the accused. In the case of drug traffickers, it is up to them to prove that they have not gained their assets—their houses and property—from the proceeds of crime. These provisions of the 1986 Act are working pretty well so far. Speaking from memory—I may not be up to date, as my memory is about two weeks old—thus far we have put a stop on assets of about £7 million under the 1986 Act. It is a substantial sum. These assets have been frozen. There was a well publicised case at the Old Bailey in recent weeks. A confiscation order was made on assets of one convicted drug trader of £450,000. We are slowly moving away from putting a stop on assets to seizing them on conviction. It is a complex matter that requires much professional work to sort out. On the hon. Lady's second point, we shall not allow anyone to benefit from the proceeds of drug trafficking. That is where we start. We are concerned about third parties, innocent wives, children and dependants, as we must be. The legislation enables the powers to be used to recover the assets of third paries but only if they have received gifts from the offender. I draw the attention of the Committee to article 5 of the statutory instrument. This ensures that the important safeguards governing the Court of Session's powers in Scotland to restrain and realise property will also apply when those powers are given effect in England and Wales. The High court will be bound by 7 the principles set out in section 23 of the Criminal Justice (Scotland) Act 1987. Those principles require the power to be exercised with a view to securing the satisfaction of a confiscation order and in relation to third parties who have received gifts from the defendant in a drug trafficking case, realising from them no more than the value of the gifts that they have received. I hope that will help the hon. Lady's argument.

Mrs. Ann Taylor: I am grateful for the Minister's clarification so far. I can see why he says that third party assets should be liable if they are direct gifts from a drugs offender. I was really referring to the house or the matrimonial home of children. The Minister has already said in answer to my earlier question that the timescale might be prolonged. Very detailed, professional inquiries will have to be made. If there has been a breakdown in the marriage or a completely innocent spouse and her dependent children are unfortunately caught up in the tangled web of assets, part of which, unbeknown to them, come from drug trafficking, the timescale may make life very difficult for the innocent members of that family.

Mr. Patten: These are very difficult issues, all the more so where the wife does not have, in a legal sense, a share in the home because her name is not on the deeds of the house. My wife decided, quite properly, a few years ago that, as she works full-time, she wanted to be part owner of our home.

Mrs. Taylor: She should have that whether she is working or not.

Mr. Patten: Indeed, but I remember resenting greatly the formidable sums of money that I had to pay to my right hon. Friend the Chancellor of the Exchequer in stamp duty to effect this innocent activity designed to bring peace to the matrimonial home. The High Court is by statute bound to consider representations made by third parties about the confiscation of their assets. I recognise that that does not quite deal with the hon. Lady's point, because she is talking about the interweaving of people's interests in a home or another asset which helps the mother or the children, who may be totally innocent parties and unaware. The trouble with making exceptions for hardship suffered by families is that it will be a very obvious loophole for a sophisticated criminal to exploit. The 8 High Court must hear representations, including those from the wife, family and dependants—from an elderly mother, for example—before confiscation orders are made. I think that we have the right balance, which is making clear that there is no loophole that a sophisticated drug trafficker could use—all his assets being in the name of his wife or child—while on the other hand balancing the perfectly proper interests of the family, by making sure that the High Court is bound to receive representations in deciding how much to confiscate of a drug trafficker's assets. With its characteristic sensitivity the High Court would get the balance right. I hope that that meets the hon. Lady's point. The hon. Lady's final question was about how the instrument that we are considering interrelated with the provisions of the Criminal Justice Bill currently going through its Committee stage. I commend its discussions to any member of this Committee who has nothing better to do in the mornings or afternoons on Tuesdays and Thursdays. Some fine speeches are coming from hon. Members on both sides of the Committee. That Committee is considering extending the confiscation provisions beyond drug trafficking into the confiscation of assets of those who have gained considerable sums of money from serious crime. This is welcomed by both sides of the Committee. Hon. Members do not want those people who are involved in serious crime or City fraud to gain at all. They want to make it impossible under the legislation before the Standing Committee for this to happen. The Drug Trafficking Offences Act 1986 and the Criminal Justice (Scotland) Act 1987 apply only to drug trafficking offences. In England and Wales, however, to answer the hon. Lady's question directly, part VI of the Criminal Justice Bill will extend the confiscation to other serious crimes. The Standing Committee will move on to part VI fairly soon and there will be an opportunity to discuss these issues. It does not cover Scotland, but the Scottish Law Commission has been asked to consider the possibility of similar legislation for Scotland. My right hon. and learned Friend the Secretary of State for Scotland will consider the recommendations of the Scottish Law Commission in due course.

Question put and agreed to.

Resolved, That the Committee has considered the draft Drug Trafficking Offences (Enforcement in England and Wales) Order 1988.

Committee rose at eight minutes to Eleven o'clock.



Coleman, Mr. Donald (Chairman)

Bell, Mr.

Brandon-Bravo, Mr.

Dorrell, Mr.

Hicks, Mrs.

Hill, Mr.

Jack, Mr.

Kellett-Bowman, Dame Elaine

NcNair-Wilson, Mr. Patrick

Patten, Mr. John

Taylor, Mrs. Ann

The following also attended, pursuant to Standing Order No. 101(2):

Butler, Mr. Crish (Warrington, South)

Patnick, Mr. Irvine (Sheffield, Hallam)