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Mr. Alex Salmond (Banff and Buchan): Such is the lack of confidence in the Liberal Whips Office and its representation of minority parties that not only the SNP but Plaid Cymru, all the Unionist parties, the SDLP and every other minority party have defected from the
Liberals as representatives and are now being represented by the Government Whips, because the Liberal party consistently filched our places on Standing Committees.
Mr. Carmichael: Had the hon. Members for Angus (Mr. Weir) or for Perth (Annabelle Ewing) asked our Whips Office, they would have been more than welcome.
Mr. Deputy Speaker: Order. I have heard enough of this argument, which is quite outside the terms of the amendment. Let us get on with the substance of the amendment.
Mr. Carmichael: I take your point, Mr. Deputy Speaker.
The amendment is not of massive significance, but I urge the Minister to consider it seriously. The functions of the director of the Assets Recovery Agency that are to be executed north of the border—primarily taxation functions—should be incorporated in a plan. Plans are being outlined for the rest of the country, and I do not see why there should be any difference for Scotland.
Likewise, in connection with amendment No. 228, it must be remembered that the Bill comes before this House as a result of a Sewel motion. Much has been made during the Bill's passage through the House of the virtue of uniformity of provision throughout the United Kingdom. As drafted, the Bill provides that the director of the ARA would be excluded from membership of both this House and the Northern Ireland Assembly. Given that the director has some functions in Scotland and Wales, it seems only sensible that the exclusion should apply there also.
More significant is new clause 1. The Bill will require the director of the ARA to make reports to this House. New clause 1(1) would mean that the Scottish Parliament would benefit from the same level of reporting, from the Lord Advocate. The general point is that the Lord Advocate and the ARA director will have nearly identical roles. Therefore, the Scottish Parliament should be able to subject the actions of the Lord Advocate in the performance of his functions under the Bill to the same degree of scrutiny as this House will be able to bring to bear on the performance of the ARA director. Proposed new subsection (2) deals with the execution by other Scottish Ministers of their functions under the Bill.
Proposed new subsections (3) and (4) are based on the assumption that at some time in the future there will be a Scottish ARA. In Committee, I expressed concern that the Lord Advocate's significant range of functions under the Bill could give rise to a conflict of interests with those functions that he currently executes, either by statute or by common law, in relation to the investigation and prosecution of crime in Scotland. There is a fairly strong argument for saying that, in light of the nature of the powers to be given to the Lord Advocate or executed by the state under the Bill, a new body should be created. That body would physically distinguish the new powers from the Lord Advocate's prosecution functions, which are all based in the Crown Office.
On balance, I am persuaded that the relatively small nature of the operation north of the border means that the creation of a special ARA for Scotland would lead merely to an unnecessary—and possibly unwieldy and less effective—layer of bureaucracy. However, the option
should be kept open. Once we see how the functions—especially with regard to confiscation—are carried out when the Bill is enacted, we should be able to consider whether it is necessary to establish an equivalent agency to operate independently in Scotland.There is a danger of cross-contamination between some of the confiscation and subsequent civil recovery proceedings, and the investigation and prosecution of crime. It seems to me appropriate that the position should be properly assessed after a couple of years, and that the Scottish Parliament should be able to revisit the matter in the light of experience.
The only other matter on which I wish to comment at this stage is amendment No. 229. I am prepared, on balance, to support the Scottish National party on the amendment. It highlights an important issue in relation to the conduct of legislation through this House subsequent to the passing of a Sewel motion by the Scottish Parliament. I have gone on record before as saying that it is important to have proper scrutiny by Parliament of the Executive on legislation coming here under a Sewel motion. That is currently problematic.
The SNP's amendment would at least require an order to be brought before the Scottish Parliament and would allow Members of the Scottish Parliament to have the final say on whether they were happy with what we have done in this place. That is very little in the way of parliamentary scrutiny but it is preferable to none at all, which appears to be the situation at present.
I understand that the Scottish nationalists may divide the House on the amendment. They will have the support—albeit grudging—of Liberal Democrat Members.
Annabelle Ewing: I rise to support amendment No. 226, tabled by the Liberal Democrats and the SNP-Plaid Cymru group. I should also like to speak to amendment No. 229 which, as the hon. Member for Orkney and Shetland (Mr. Carmichael) pointed out, has been tabled by that group.
The SNP-Plaid Cymru group is broadly supportive of this important Bill's objectives. It is about time that the drugs barons and their like accepted that they are not above the law. There are many good provisions in the Bill that will, I hope, secure the Bill's objectives.
Amendment No. 229 is of fundamental constitutional importance, because it seeks to ensure that the spirit of the Scotland Act 1998 is respected. The hon. Member for Orkney and Shetland pointed out that the Bill was referred by the Scots Parliament by way of a Sewel motion, passed on 24 October last year. That was necessary because the Bill covers not only reserved matters but also many matters devolved to the Scots Parliament.
At the time of the debate in the Scots Parliament in October, my SNP colleagues in Edinburgh supported the procedure proposed by the Scottish Executive on that occasion, although we have grave concerns about the ever-increasing recourse to Sewel motions put forward by the Labour-Liberal Scottish Executive in the Scots Parliament. There have been some 30 Sewel motions since May 1999. Let me put that in context by saying that there have been only 30 substantive Acts passed by the Scots Parliament in that time.
This matter was passed to Westminster in the sense that it was the original Bill that was approved by the Scots Parliament, including my SNP colleagues. However, there have been many major and substantial changes to the Bill, particularly to part 3, which deals with confiscation orders in Scotland.
5.45 pm
Mr. Davidson: The hon. Lady says that some 30 Sewel motions have been passed in the Scottish Parliament, compared with the 30 or so Acts that have also been passed. Is she saying that in these circumstances, the business in Sewel motions should have been held back? Is it the position of the SNP that the Bill should not have been dealt with by Westminster and that the measures to be taken against drugs barons should have been delayed until such time as the Scottish Parliament had the space to deal with them?
Annabelle Ewing: I have already addressed that point; perhaps the hon. Gentleman was not listening. I said that on that occasion, my SNP colleagues supported the Sewel motion on the Bill. That is a matter of record, if the hon. Gentleman should ever read the minutes of the Scots Parliament.
Mr. Grieve: The hon. Lady might wish to acknowledge that when the complete rewriting of the Scottish parts of the Bill took place in Committee, the opposition to that taking place without further reference to the Scottish Parliament came principally from the Conservative Opposition.
Annabelle Ewing: On the basis that the hon. Member for Galloway and Upper Nithsdale (Mr. Duncan) is not even here, notwithstanding that we are dealing with major changes to Scots law, nothing surprises me about the Conservatives.
The amended Bill involves major and substantive changes to Scots law, particularly in dealing with the mandatory rather than discretionary powers of the sheriff or the High Court judge to consider whether to proceed with a confiscation order hearing. That represents a major change to Scots law and it should be dealt with in the proper forum—the Scots Parliament. The Scots Parliament was presented with a Bill that did not contain this provision. This is a substantial amendment, and it must surely be in the interests of the democratic process that the Scots Parliament reviews whether it wishes to proceed with such a significant change to Scots law.
John Robertson: I have been looking at amendment No. 229. Can the hon. Lady explain why she wishes to incorporate clause 446 into the Bill, which is already drafted?
Annabelle Ewing: We are seeking to ensure that key changes to the Bill concerning part 3 are referred back to the Scots Parliament for proper debate. If there is a Division and the amendment is passed, that is what the amendment will achieve. That is clearly what it states; perhaps the hon. Gentleman would like to reflect further on the text. It is the democratic way to proceed.
If the Government do not concede the point, I am pleased that we will have the support of Liberal Democrat Members in a Division. I wonder, however, what the position of Mr. Jim Wallace, the Liberal Democrat Minister for Justice in the Scots Parliament, would be.
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