Proceeds of Crime

Dominic Raab Excerpts

Tuesday 12th June 2012 Commons Chamber

[Mr Dominic Raab (Esher and Walton) (Con)]

I support the motion, and I commend the Minister and the Home Secretary for taking a wise decision. I wish to speak briefly because after years of our sleepwalking into many mindless EU regulations, we are at last getting some substantive scrutiny of and rigour in how we take these decisions under this Government and in this Parliament. I also wish to commend the European Scrutiny Committee and, in particular, my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). That Committee has become the nightwatchman for Parliament on these matters, and on this directive in particular.

This draft EU directive is flawed. The Minister has explained one of the specific law enforcement problems with it, but beyond that there are six reasons why Britain should not opt in. The first of those is the basic issue of principle: the directive empowers the state to freeze assets without a court order being obtained first, and that extraordinary proposal is contrary to the fundamental tenets of justice in this country. Given the exponential increase in security legislation in this country since 9/11 and the many examples of broad powers being expansively interpreted by law enforcement agencies, whether inadvertently or otherwise, under the Regulation of Investigatory Powers Act 2000 and elsewhere, the retention of judicial oversight before making such an order is vital.

Those who want to make a practical rather than ideological argument in favour of opting in should note that in the UK a court can be asked to issue a property freezing order at any time and, if necessary, without notice to the affected party. The risk that assets might be moved if a court order was first sought are not a good reason for us to legislate along these lines. The decision to deprive an individual of their property should always require a judge’s consent.

[Mark Reckless]

Although the Labour Chair of the Home Affairs Committee took a different view, how does my hon. Friend react to Her Majesty’s Opposition apparently, in principle, supporting opting into this directive, despite the issue of principle, to which he refers, of the state taking away a private citizen’s assets—freezing them—without any reference to a court?

[Mr Raab]

I thank my hon. Friend for that. I think we saw a classic piece of fence-sitting. There is a clear contradiction in the position set out by the shadow Minister, which I shall refer to briefly in due course.

The second argument against opting in is, as the explanatory memorandum explains, that there has been no formal domestic consultation yet, so the House does not have the official and formal views, based on operational law enforcement experience, of the police, SOCA, the intelligence agencies and other departments, let alone external experts and groups, on the need for and the practicability of what is being proposed. The Government are therefore right to be cautious and not to be bounced into signing up to a broad new law with far-reaching implications that have not been properly thought through. I noted that the shadow Minister has explicitly requested some gist, explanation or consultation in respect of the nature, character and substance of those submissions, yet without having seen them, he would be happy to opt in anyway. I respectfully suggest to him that the ideological view in this debate and in this House is his, in favour of more JHA integration, irrespective of the scrutiny of the merits and the substance.

The third argument against opting in relates to the costs associated with this directive. Those remain unquantified, but they could well be substantial. The directive will require changes to UK primary legislation. It would introduce new data collection requirements, specifically for evaluation purposes at the EU level. Those would create a pointless administrative burden for UK authorities and lead to an additional bureaucratic tier of EU monitoring of our practices. In addition, as has been said and as the explanatory memorandum explains, the directive’s insistence on effective remedies could add to the legal aid bill, just as we are taking difficult decisions to reduce it which require uncomfortable sacrifices at home.

The fourth objection is that the UK already has ample powers in the area of asset confiscation and freezing. The Government’s explanatory memorandum states:

“We believe that the UK exceeds many of the minimum requirements and so we do not foresee that it would have an impact on the number of cases.”

If anything, those powers have become too broad in the post-9/11 era. The amount of money confiscated by the UK authorities rose by more than 500% between 2003 and 2009, which is scarcely the symptom of a weak regime. The reality is that the directive is neither necessary nor desirable.

Under the Proceeds of Crime Act 2002, the UK framework for dealing with the confiscation and freezing of assets is perfectly robust. Let us be honest about this—I think that the shadow Minister should be honest about it: by legislating on this matter in Brussels, we would be legislating for the failings of other EU member states whose regimes are criticised by the Commission as “underdeveloped and underutilised”. In other words, we are expected to sign up to this blunt EU directive to try to encourage other EU states to pull their socks up. That is not a satisfactory basis for legislation in this country. For one thing, most of the failings in other member states arise less from legislative defects and more from deficiencies in operational law enforcement capabilities. The statement from the Commission suggests that the problem is less one of legislation and more one of law enforcement.

The Home Office recognised that point in its explanatory memorandum, which states:

“The UK does not consider that non-legislative options have been fully considered”.

That is the fifth objection to opting in. If there are alternatives to legislation, why have they not been thoroughly and properly examined by the Commission before it rushed to churn out yet another intrusive and in certain respects draconian directive?

The final objection is the impact on the UK’s 2014 opt-out decision on crime and policing, which has already been mentioned. Every time the UK opts in to one of the 130 or so measures that are subject to our block opt-out, that measure is removed from the list of laws that the UK will have the chance to repatriate by 2014. In other words, if we opt in we will automatically become subject to the jurisdiction and interpretation of the Commission and European Court of Justice. Given that Brussels will be assuming competence over broad and, for the UK, unprecedented security powers, that is not an ideological issue but a major constitutional one.

The directive is in part draconian, but it is in whole costly and unnecessary. It conflicts with basic principles of British justice and would undermine Britain’s opportunity to wrest back democratic control of justice and home affairs legislation. There is no good reason why Britain should opt in—the Opposition have not advanced one—and for principled and practical reasons, we should remain out. I commend the Home Secretary and the Minister for their rigour in reaching this decision based on the substance and merits of the matter.

[James Brokenshire]

rose—