Proceeds of Crime

Mark Reckless Excerpts

Tuesday 12th June 2012 Commons Chamber

[Mr Hanson]

I have said to the Minister that we believe that the directive is a positive development, as the Minister in the other place also said, only two weeks ago, and we should look at it in a positive way. I will take at face value the concerns that the Minister has raised this evening about operability and the advice that he has received from the agencies, but if the hon. Gentleman thinks that we should not opt in because of a wave of anti-European sentiment, that is a very different matter indeed. I will certainly be a positive European. We should have co-operation. I want to see co-operation between states. I also want the European Union to take powers to take the assets of criminals abroad who are operating and making profits in this country. That would not be a bad thing. I would very much welcome further discussions with the Minister about the points that he has raised, but in principle I have no objection to a Europe-wide document helping to support this approach and enshrine improvements on what we currently have in British law.

[Mark Reckless (Rochester and Strood) (Con)]

Was that a yes?

[Mr Hanson]

For the anti-Europeans on the Government Benches, let me say that it is certainly a yes. I certainly wish to see co-operation on a Europe-wide basis to freeze terrorist and criminal assets and to repatriate them to this country. The hon. Gentleman can certainly take it as a yes. This evening I have listened to what the Minister has said, which indicates that he has had advice—which I have not seen—that says that there are difficulties with this measure. What I am saying to the Minister—and to his right hon. Friend the Home Secretary, who is in her place—is that my right hon. Friend the shadow Home Secretary and I would wish to have sight of that advice and to have further briefing on it, so that we can scrutinise the operation of the process by the Minister and how he intends to take forward discussions on the document as a whole. However, I sense that Government Members have objections to the very principle of such co-operation, rather than to the practice that the Minister has set out.

I would like to have some idea from the Minister—either now or after contributions from right hon. and hon. Members—of how he will take this matter forward. He has indicated that he has concerns about certain issues, but he has not yet shared with the House the details of what they are. What is his timetable for discussion with his European Union colleagues on these matters? Does he have a timetable to try to resolve the issues? Does he intend to return to the House at some point to sign up to the document, or has it been kicked into the long grass because he knows that, ultimately, Members such as, I suspect—with due respect—the hon. Member for Rochester and Strood (Mark Reckless) and others would vote against the measure, no matter what was brought forward, as a matter of principle? If that is the case, the Minister should be honest with the House, because we will certainly return to this matter in due course, when we have seen the advice that he has received, as far as he can share it with us. I sense that this is not just about the operation and practice of the measure; rather, I sense that there are certain elements on the Government Back Benches with a fundamental objection to the principle of such co-operation.

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[Keith Vaz]

I am sure that the Government are most grateful for the hon. Gentleman’s thanks.

Last night I was present at the launch of a document produced by the hon. Member for Bournemouth West (Conor Burns) about the operation of the European arrest warrant and what it has delivered over the last few years. I know that the hon. Member for Esher and Walton (Mr Raab) is a frequent commentator on its justice and home affairs implications for our country.

I think that we should be cautious in dealing with these matters. The EU document needs to be considered with great care. I am not one of those who believe that we need a directive in order to secure co-operation between EU partners, but I think that my right hon. Friend the Member for Delyn (Mr Hanson) deserves the explanation that he seeks. I think that he deserves to be told why the Minister in the other place was so enthusiastic about the directive, and why the Government have apparently changed their mind. Of course, if there is a valid explanation, and if the various agencies—the Serious Organised Crime Agency being one of them—make representations to the Government pointing out that this is going to create problems for our legislation, it is important that that advice is shared not only with the Minister, but with the House.

The hon. Member for South Ribble (Lorraine Fullbrook) and I recently returned from an official visit to Colombia as part of a Home Affairs Committee delegation, where we were looking at the drugs trade. We noted a very important fact: only 2.6% of the profits from the trade in cocaine remain in Colombia. Some 97% of cocaine profits are administered and laundered within the European Union—in our country and other countries of the EU. That means that our existing structures are not used appropriately enough to catch the people who are responsible for drugs having become the biggest illicit activity in the world.

Even though a directive would help, it will not provide the answer. The Government are right not to opt in unless and until there are further negotiations, therefore. We need to make sure that the structures that are in place in the various countries of the EU can work together to catch those responsible for laundering the profits from drugs. I hope that the Government will use the time that will be available to them as a result of their decision not to opt in constructively and productively, and that they look at the institutions and organisations and make sure that that co-operation is improved. There are, of course, organisations—such as Europol and Interpol—which can be used effectively. I do not think Europol is used enough. We have a very good British director of Europol, Rob Wainwright, who was trained at SOCA. We must co-operate much more closely, without legislation from Brussels being needed.

Drugs is one example. The other is human trafficking, which is the third biggest illicit activity in the world, with profits of £32 billion a year. Through our co-operation with the Romanian authorities in Operation Golf, we showed that it is possible to have mutual co-operation with other EU countries without having a further directive, if there is willingness on the part of our European partners to work with us to deal with illegal activity.

[Mark Reckless]

The right hon. Gentleman mentions Europol and the issue of trafficking. Does he recall that when the Home Affairs Committee visited the Greek-Turkish border, one of the issues we found was that the structures of Europol were not well designed to secure co-operation with Turkey? Very often, the European basis of Europol and the insistence on doing everything through that framework was getting in the way of practical co-operation.

[Keith Vaz]

I am happy to agree with the hon. Gentleman, who is also a fellow member of the Home Affairs Committee; he is absolutely right. The EU looks at these issues only within the confines of the EU. Because Turkey is not a member, it is not included in any aspects of co-operation. An example of that is the way the RABITs were deployed in Greece to deal with illegal immigration. Because the UK was not part of Schengen, we were not allowed to be a formal part of the activity of the RABITs. As a result, we were left marginalised.

Mr Speaker, I can see that you are about to tell me that I am out of order. [Interruption.] Oh, you are not. You were frowning, Mr Speaker, and I have known you long enough to know that a frown may have indicated that you were about to stop my flow. Let me go back to the original reason behind this debate. I was tempted along the other path by the hon. Member for Rochester and Strood (Mark Reckless).

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[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.