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Mr. David Wilshire (Spelthorne): I can be brief because virtually all the points that I wanted to make have been made, but I wish to add to something said by my right hon. Friend the Member for Wokingham (Mr. Redwood).
In Committee, Ministers went out of their way—at least, I think they did—to say that we need not worry because the protections exist already. They may be right or they may be wrong, but I do not think that matters. The Government have said that the protection offered in Scotland is right and that we have it in England already. All we are saying, however, is that the new clauses underline what the Government say already exists in England. If I understand that correctly, I cannot understand why they wish to resist the provision because the new clauses merely provide what already exists.
The only way to resolve the problem is for the Government to say that they agree with what we are trying to achieve. Where is the harm in saying that all over again to make certain that there is no doubt whatsoever? The Minister did not argue in Committee, and I hope that he will not argue tonight, that the protection should not be available in England. That is not the issue; everyone agrees that the protection should be available. The new clauses would ensure that it is, and I do not understand the Government's problem.
7 pm
Mr. Garnier: I, too, will be brief because much of what I wanted to say has been said, not least by my hon. Friend the Member for Beaconsfield (Mr. Grieve), my right hon. Friend the Member for Wokingham (Mr. Redwood) and the hon. Member for Redcar (Vera Baird).
We are under a special duty to get the legislation right. I declare an interest to the extent that I might have to apply the law that we are passing when I sit as a recorder in the Crown court in England. During the past four or five years that I have sat as a recorder, it has occurred to me that most of the people who come before the Crown court are little people; they are not the Mr. Bigs. I dare say that the Government intend to catch the Mr. Bigs, but most of them are sensible enough not to come within our jurisdiction. It is the mules and the smaller fry in the criminal chain who get caught. We must concentrate on them and their families, because that is what happens in real life in the conveyor belt that comes before the Crown court.
The hon. Member for Redcar said that she represents people who live in fairly inexpensive houses. They are the very people who are likely to get caught because their husbands or wives will be accessible to the police and therefore to the criminal justice system. The families will be the unwitting victims of this well-intended Bill. Once they have lost their houses or whatever chattel may be confiscated, they will fall upon the state. It is unwise of the state to take with one hand for a good and sensible criminal deterrent purpose and to give to the family of that defendant with the other.
I understand that the procedures under part 2 are compulsory. I may be wrong, and no doubt others who have studied the Bill in more detail will be able to tell me whether it is mandatory on the director to make an application in all circumstances in which the facts fit. If there is a mandatory requirement to apply part 2, we must be all the more careful to ensure that the Human Rights Act 1998 is properly respected.
Mr. Grieve: The prosecutor does have a discretion to ask the court to proceed. Once he has done that, the wheels grind into motion. The noteworthy aspect is that at that stage there are few exceptions to getting out of the process, apart from the possibility of the court not coming to a final decision because of the serious risk of injustice. As I see it, that relates to the circumstances of the defendant, not the innocent people who may be affected by the eventual decision.
Mr. Garnier: My hon. Friend allows me to bring my remarks to a swift conclusion.
The simple point is that we are all interested in deterrence and in inhibiting those who benefit from crime. However, I should also like to think that we are interested in justice. If we can do anything during the deliberative process to bring justice to the Bill while achieving its sensible consequences, this is the time for the Government to pause and think.
Mr. Bob Ainsworth: I shall begin by setting out the background to the different situations in the jurisdictions as they relate to the matrimonial home before I turn to the substantial issues, such as devolution, time to pay, representations and the jurisdiction of England and Wales.
The difference between parts 2 and 4 and part 3 is one of policy. The same policy difference is found in legislation that covers the three jurisdictions. Courts in England and Northern Ireland enjoy a discretion in the decision to exercise their restraint and receivership powers, but that must always be used to satisfy a confiscation order. I was accused of governing by soundbite. It is an honour to be accused of that. I never thought that that was a strong part of my political armoury, so that accusation is interesting to say the least. The policy difference exists in legislation that was passed by a Conservative Government. There is no provision in legislation that covers England or Northern Ireland to permit the family home not being realised.
Part 3 reflects the long-standing provision in Scottish legislation that gives Scottish courts the power ultimately to refuse the realisation of the family home when satisfying a confiscation order. The provision replicates earlier confiscation legislation for Scotland contained in the Proceeds of Crime (Scotland) Act 1995. That developed a briefer provision that was set out along the same lines in the Criminal Justice (Scotland) Act 1987. So the difference in the two jurisdictions has been around for a long time.
The confiscation legislation in the three jurisdictions is different because Scottish law adopts a different approach to the occupancy rights of spouses in general. The Matrimonial Homes (Family Protection) (Scotland) Act 1981 gives the right to occupy the matrimonial home to spouses who are not owners or tenants and provides for the protection of occupancy rights. There is no equivalent
legislation in England and Wales or Northern Ireland, so the general legal framework against which the confiscation legislation operates is different in the three jurisdictions.There are arguments in favour of both positions. What is the justification for allowing someone to retain the proceeds of crime? People say that we are insensitive or, perhaps, ridiculous, and that although we are after the Mr. Bigs we will catch the little people. Let me give a couple of examples to justify the situation in England and Wales. I accept that things are different in Scotland, but that is its choice.
If we allow the Bill to contain loopholes, the serious criminal will ensure that the overwhelming majority of the proceeds of crime that are visible and retained by him are sunk in the matrimonial home to give him protection. We must make no mistake about that. That is what happens now and it will happen to an increasing extent. People with large homes in Surrey, with their swimming pools and the rest, will say that they are not subject to the legislation if it involves their matrimonial home.
I love it when Conservatives become concerned about the little person. Let us imagine two little people living side by side in a street of terraced houses in any one of our constituencies. Such people turn up at our surgeries all the time, do they not? One person has lost his job and is unable to pay the mortgage, but there is no discretion for the court to prevent the mortgage company from taking away his home. Such people are not criminals, and their husbands and wives are not criminals. Yet they wind up in our surgeries, having lost their matrimonial home because they are unable to pay their debts. That happens to all of us, all the time. Those cases are heart-rending, and local authority social services and the welfare state do their best to rescue the situation, using whatever power they have.
Next door to the family who have lost their home because they were unable to pay their mortgage live a couple, one of whom is a drug dealer. He has paid for his home, entirely and beyond doubt from the proceeds of crime. Are we saying that those people should not face the same situation as the honest family next door? It is not only big people that we are talking about; the Bill may affect small people too. We have never been prepared to give to ordinary people who fall on hard times and lose their matrimonial home the protection that some Members claim should apply to people whose home has been paid for with the proceeds of crime and of the misery inflicted on the community in which they live.
Mr. Ainsworth: I give way to the hon. and learned Member for Harborough (Mr. Garnier).
Mr. Garnier: The examples given by the Minister have an attraction, but only a spurious attraction. As often as not, in the civil cases in which people cannot pay their mortgage, both partners will be aware of what is going on and will be able to make their own arrangements with the building society or mortgage lender. I accept that some circumstances will be different, but that will be the case, by and large. Whether or not their actions are effective,
they will at least be able to take part in a process. In the second example, the spouse or partner may be wholly ignorant of any criminal activities. The Minister may not like my response to his argument, but that is my response.
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