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6.30 pm

Of course, if that specific trigger arises, no protection will be afforded under the Scottish provisions to the wife, former spouse or the children who live in the house. However, if that trigger cannot be fulfilled, there is no reverse burden on the defendant at that point and the court may be able to consider all the circumstances set out in clause 101 in relation to Scotland. The court can postpone seizure or decide that in no circumstances would it be reasonable to allow the family home to be seized at any time. That seems to be a sensible and compelling safeguard, which could ultimately lead to the removal of serious risks of injustice and the perception of injustice. Clearly, that has been thought a very sensible measure in the Scottish jurisdiction, which is why it was introduced with other confiscatory mechanisms in the mid-1990s.

The more I consider the issue, the more convinced I become that no similar safeguard will exist under current rules in England and Wales or in Northern Ireland. I have become increasingly concerned that we shall end up with a system that diverges considerably north and south of the border—the very thing that the Minister said when arguing on the provisions for Scotland he wanted to get rid of; he wanted to produce uniformity. Also, we run the risk of it being said that the system in England and Wales is unjust. I have to tell the Minister, bluntly, that I cannot help thinking that the other possible outcome is that a far greater burden will be placed on the state through the social security system than might otherwise be the case.

The more I have thought about the issue, the more convinced I have become that there is every reason to include similar safeguards for the wife, former spouse or child in England and Wales and in Northern Ireland to those that exist in Scotland. I am prepared to be talked out of my position if the Minister can persuade me that similar safeguards that would have the same result exist south of the border. I do not wish to take up too much time because there is a lot of other business to discuss, but that is a very important point. I am sorry that we did not have more time to focus on this issue in Committee.

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This shows that, however carefully legislation is considered, there is always a further opportunity to find something else to do when we consider it again. Perhaps this matter can be dealt with in the other place if the new clauses and amendments that I have tabled are not sufficient.

Mr. Edward Garnier (Harborough): Would new clause 2 or the Bill allow the director to apply to the court for a charge on the matrimonial property that can hang there while the wife, spouse or any children need the house?

Mr. Grieve: The answer to my hon. and learned Friend's question is no, because the purpose of the provision is to produce a mandatory ratchet system, by which, when the assumptions have been arrived at, confiscation must follow. There is one possible caveat: confiscation may not take place if there is a serious risk of injustice. I am always a little anxious about what that term means. In any event, I am not 100 per cent. certain that it relates to the status of the spouse, former spouse or child. The Minister may choose to correct me if I am wrong, but that term seems to relate to the possibility that the asset may have been wrongly identified as resulting from criminal conduct and thus should not be seized.

The Minister may be able to provide some reassurance about that, but I have to tell my hon. and learned Friend that I do not find the issue at all clear because we are, in fact, dealing with legislation that relates to the confiscation of criminal assets. So such a safeguard may exist, and it may be possible to beef it up even further by going down the road proposed by the Human Rights Committee, which suggests that we should use the term "real risk of injustice" instead of the term "serious risk of injustice". All those things are interconnected in reality.

In short, I need to hear some compelling reasons why England and Wales should not have the same protection as that which the Government have been happy to provide north of the border. They should accept new clause 2, which I have adapted, I hope correctly, to make it sensible in English, rather than Scots, law. I wait to hear from the Minister on this important issue.

Mr. Carmichael: I have a broad degree of sympathy with the hon. Member for Beaconsfield (Mr. Grieve) on new clause 2. It would be ungenerous if we did not afford to the English the same protection as that given to the Scots, although that is often the case in any event. However, I do not know enough about English property law to comment on new clause 2 in any great depth, so I merely seek to bring to the House's attention amendments Nos. 207 to 211, tabled by my hon. Friends the Members for Lewes (Norman Baker) and for Mid-Dorset and North Poole (Mrs. Brooke) and myself.

Under amendment No. 207, which has the greatest substance—the other amendments are essentially consequential—we would afford to third parties who are in same-sex relationships the same protection as that given to spouses, former spouses and siblings who may have lived in the family home of the person against whom the confiscation order is made. There may be circumstances in which it is necessary to consider the needs and financial resources of the other members of the

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family who have resided with the accused in the family home. For example, siblings could have resided together in a house that is owned jointly, and it would be inappropriate to disregard the needs or interests of one party because the other is subject to confiscation proceedings under the Bill.

The point that I seek to make is one of general policy and principle. In 2002, there seems to be no good reason why the rights and interests in law of people in same-sex relationships should not be afforded the same protection in relation to their family homes as that given to spouses and former spouses. Of course, I readily concede that there are some difficulties with the definition of the relationships that might qualify.

I fully accept that six months is essentially an arbitrary choice, and other hon. Members may disagree about whether it is appropriate. It may be felt to be too short, but I remind the House that the court will still need to be satisfied that there is proof that the relationship exists and is worthy of the envisaged protection. The less time that the relationship has existed, the greater the difficulty in proving in court that it has existed. I draw a parallel with the Scots view on marriage by cohabitation with habit and repute, which has established a substantial case history in which it has been found that such relationships exist in law in some circumstances, but not in others. A general theme throughout the Bill, on which the Liberal Democrats have been happy to support the Government, is that fairly significant curtailments will take place of what would otherwise be regarded as civil liberties and human rights. If the Bill is to be effective and maintain public sympathy and support—which is crucial to the broader aims of the Bill in terms of the prosecution of crime and the promotion of law and order—it is particularly important that the interests of all third parties should be protected. We have identified a classification gap in relation to people who will not be protected.

John Robertson: Does the hon. Gentleman agree that amendment No. 207 might have fitted better if it were inserted into subsection (3)(a), which refers to spouses and former spouses? Perhaps the word "partner" might have been added. Although I support the hon. Gentleman's intention, that might have been a better approach.

Mr. Carmichael: That would be an option. Without proper consideration, I would not like to say, on the hoof, whether the amendment would fit as neatly where the hon. Gentleman suggests as it does in its current place. However, I welcome his support for the broad principle of our proposal. I reiterate that what is important is that we are seen to give equal credence to the rights of those in same-sex relationships. By taking a more imaginative and bolder step, we might set precedents for the reform of other aspects of property law, particularly in relation to providing protection for people who are in abusive and violent relationships, which can be same-sex as well as mixed-sex relationships. If we are seen to take seriously the rights of every group that stands to be disadvantaged, the Bill will be much better regarded by the community.

Vera Baird (Redcar): When a home is not part of the proceeds of crime and the family are innocent of all crime, there should simply be a power for a court to protect them from confiscation by refusing or postponing its sale,

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if that is just. I echo what the hon. Member for Beaconsfield (Mr. Grieve) said about the absence of any other kind of protection in English land law if the Bill provides no protection. I, too, have thought long and hard about whether the Government's statement that there was no need for such protection was accurate. However, I cannot find any way in which the rights of innocent families can be protected unless it is expressed in this statute.

I accept totally that it is right to seize the expensive mansion with swimming pool in the home counties that is owned by a man who has a dog called Brinks and another called Mat. I also accept entirely the right to confiscate cheap houses—the only type of house available in Redcar—as drug dealers live in them, and they should not be subsidised by their lifestyle. Nobody suggests that that power should not exist and should not be strong; it exists and it will remain.

However, a house is not just a piece of property; it is a home. There may be children between the ages of one and five living there, who do not have a clue that their father is a criminal. What is the difficulty in obliging authorities to obtain the court's sanction to sell in such a situation, therefore obliging the court to balance the interests of the family? If the interests of the family require the court to postpone the sale or outlaw it altogether, it does not diminish one iota the power of the statute to take the proceeds of crime away. It is a way of entrusting a decision to the judiciary. The judiciary will not allow the power to be abused—it makes decisions in other important areas of this Bill so why should it not do so in this one?

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