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Mr. Foulkes: How shall I respond to that? I think that I shall ignore it.
I return to amendment No. 237, and this time I shall get it right. As it stands, clause 430 provides for the exchange of information between the Lord Advocate and the Scottish Ministers in connection with their respective functions under parts 3 and 5 of the Bill. However, clause 433 already provides that the Lord Advocate and the Scottish Ministers may disclose information to each other for the purposes of their functions under parts 3 and 5. As most of clause 430 is already covered by clause 433, our intention is to delete clause 430 and amendment No. 237 would achieve that.
Mr. Hawkins: I am grateful to the Minister for giving way. We have some sympathy with the complexity of the Minister's brief, but what just happened to him reminds me of the newsreader who announced, "The time is 7 pm Greenwich. Meantime, here is the news."
Mr. Foulkes: I am sure that I will find another, more appropriate occasion to use that.
There is only one aspect that is not currently covered by clause 433. Clause 430 provides that the Lord Advocate can disclose to the Scottish Ministers information that he has obtained in connection with the exercise of his functions under chapter 3 of part 5 of the Bill. That chapter deals with the recovery of cash and that the procurator fiscal has a role in the initial detention of the cash. If there is not to be a criminal prosecution, the matter passes to the Scottish Ministers to consider forfeiture. It is clearly important that any information the Lord Advocate has obtained in the first stages of the cash seizure be disclosed to the Scottish Ministers so that they can consider forfeiture. Amendment No. 243 therefore adds an appropriate reference to clause 433.
Amendments Nos. 238. 240 to 242, 244 and 245, are purely drafting amendments. I could explain what each of them does, but in view of the time that would not be sensible.
After the intervention by the hon. Member for Angus (Mr. Weir) about Sewel motions, I suddenly realised why yesterday's exchange was so unfruitful. The hon.
Gentleman completely misunderstands the nature of Sewel motions. He seems to think that once a Sewel motion is passed, and the Scottish Parliament knows what is in the draft Bill that is agreed on Second Reading, that is that, and there can be no further changes and that once it has been approved by the Scottish Parliament, a Bill is immutable.Surely the whole purpose of a Sewel motion is to return to Westminster the power to legislate on devolved areas. That implies that when provisions are considered in Committee and on Report, particularly in relation to Scottish matters, amendments can be considered and, if necessary, agreed to. That is inherent in the nature of the exercise.
Mr. Carmichael: I understand the Minister's analysis of Sewel motions. Does he agree, however, that the process raises some difficulties, particularly in view of the consequences? It is important that we should not be left with unamended and improperly considered legislation. Of course amendments should be made in Committee, but that raises difficulties. Will the Minister return to the point that we need some mechanism whereby we can have proper dialogue between parliamentary scrutiny here and the Executive functions in Edinburgh?
Mr. Foulkes: I agree. Of course there needs to be dialogue. I was saying simply that we need the flexibility to consider amendments in Committee and on Report.
Mr. Weir: Will the Minister give way?
Mr. Foulkes: I am still replying to the hon. Member for Orkney and Shetland (Mr. Carmichael).
After yesterday's exchange, I discussed the matter with my right hon. Friend the Secretary of State. We are looking again at the way in which Sewel motions work, we shall discuss it with the Scottish Executive and no doubt we shall have an opportunity to report back to the House. I hope that that will be helpful.
Mr. Weir: I thank the Minister for giving way, but I think that it is he who misunderstood the point. If he reads the minutes of the meeting of the Select Committee on Scottish Affairs last November when we discussed the matter in great detail, he will find that I made the same point that I repeated yesterday—that if there are substantial amendments, the Bill should go back to the Scottish Parliament. The Minister agreed with me in November. I asked him yesterday when he had changed his mind and he still has not answered that question. What he is saying today does not change anything. I never argued that Westminster could not change legislation, but whether major changes should go back to the Scottish Parliament.
Mr. Foulkes: The hon. Gentleman is a nitpicker even when there are no nits to pick—[Interruption.]
Mr. Deputy Speaker: Order. The Minister gave the hon. Gentleman the opportunity to pick the nit.
Mr. Foulkes: You are absolutely right, Mr. Deputy Speaker, and I shall take your advice and be very careful in future.
I have answered the hon. Gentleman's question on two previous occasions. It does not need to be answered a third time. I am glad that I made my positive and substantive points in response to a Liberal Democrat Member rather than to one of these awful interventions from the SNP.
I invite hon. Members not to press amendments Nos. 69 and 70 in view of my explanation and support new clause 10 and amendments Nos. 237 to 250, 252 and 254.
Mr. Grieve: I greatly welcome the Minister's remarks about our amendments Nos. 69 and 70 to which I shall return in a moment. I also welcome new clause 10, which provides a measure of definition about what can be disclosed for overseas purposes on a subject which caused quite a lot of anxiety in Committee, as the Minister will recollect.
Reading the particular clause of the Anti-terrorism, Crime and Security Act 2001, I am not entirely persuaded that it lays down any criteria about the danger of an exchange of information in the circumstances that we discussed in Committee, where it might be used for purposes that were highly prejudicial to the individual concerned and where, for instance, the right to a fair trial might not be obtainable. I hope that the Minister understands my point. That may be something that can properly be the subject of guidelines and codes of practice.
I also appreciate that it is difficult for Parliament to legislate a framework that will stand the test of time. Some countries might slip in and out of the levels of acceptability that we would expect in terms of their judicial procedures, for instance, but I hope that the Minister will take on board that there is a legitimate area of anxiety that in exchanging information the director must have regard to the rights of the individual whose confidential information he is handing over to a foreign authority.
Of course, in the desire to seize assets that is a perfectly acceptable activity, but it will not become so, and the whole framework will be brought into disrepute, if there is any suggestion that that information is not really being used for a legitimate purpose but, potentially, to persecute the individual in terms of his private wealth and finances in that country. This is a serious problem and one to which the director will have to be alive. I raise it because amendments Nos. 69 and 70 would have prevented disclosure to a foreign power in terms of criminal investigations elsewhere so it dovetails slightly with Government new clause 10. The two issues are linked and have been correctly grouped by the Clerk.
I certainly will not press amendments Nos. 69 and 70 as the Minister has given some important assurances which I shall not repeat. He has clearly completely understood the point that was made in Committee that we are giving the director substantial powers, which in many respects appear much wider than those of any ordinary law enforcement agency. The purpose of that—as the Minister rightly said—is to seize the proceeds of crime, not to prosecute people. If a situation arises in which that information is handed over to another Government law enforcement agency for the purpose of prosecution, where that information would not have been available to it under its ordinary powers, there is an important issue.
8 pm
Although I accept the Minister's point that the way in which the legislation is framed could not make the director the poodle of that other law enforcement agency—because the director's powers are circumscribed to the obtaining of information for his own purposes; nevertheless it is likely that in the course of obtaining information for his purposes the ARA could obtain information that might be used for the purposes of a criminal prosecution.
I realise that that raises a difficult issue. It is legitimate for people to say that if the information shows the commission of serious crime and if it could be useful for the prosecution of an offender, it should be used—no matter how it was obtained. However, that gives rise to an important point. In those circumstances, is it proper to hand over information when Parliament has not seen fit to provide similar powers to the law enforcement agency—which is likely to be the police or the Customs—in the course of the agency's own inquiries? The guidelines will have to be considered carefully and amendments may have to be made in another place. However, mindful of the Minister's assurance, I shall not press the amendments to a vote.
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