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Mr. Tom Harris (Glasgow, Cathcart): Is the hon. Gentleman aware that, under the discretionary regime, a mere £750,000 of drug dealers' assets were confiscated in Scotland in the past year? That is an indictment of the discretionary regime.
Mr. Grieve: The hon. Gentleman asks me to comment on an individual decision, but I cannot do so. What is clear—the Under-Secretary and I agreed on this point in Committee, in the light of the evidence—is that earlier regimes showed signs of having started with massive confiscations, only for them to tail off rapidly. I suspect that that is far more a reflection of a lack of will on the part of those concerned rather than of a lack of means. If it was possible to make such confiscations when the system was introduced, I find it difficult to understand why it stopped being possible.
As the hon. Member for Glasgow, Cathcart (Mr. Harris) may know, I was involved with drug trafficking cases in my professional capacity, and I remember that there were some successes on the regime's introduction. However, one problem was that orders for confiscation were being made that proved impossible to enforce. The orders were there, but as it turned out, the amounts that the courts estimated as capable of being confiscated were simply never found. I do not know whether that was because they were secreted away, or because they never existed in the first place. However, in my view they have nothing to do with the question of having a mandatory or a discretionary regime.
The discussion in the other place took place between extremely reasonable people, and I commend the reading of the report of the proceedings to the Minister and other hon. Members. What was envisaged was as small a final stopgap—to ensure that injustice did not occur—as could be devised, and that was the phrase "exceptional
circumstances". What might constitute exceptional circumstances? It appears that one could become liable to a confiscation order for acts that, as the Minister knows, any right-thinking person would be amazed to learn came within the legislation. One example is the conviction on several occasions for not having a rear light on a pedal cycle. That would not normally be the signal to scrutinise someone for signs of a criminal lifestyle.However, it is because of such examples, and the absence of other safeguards—the Minister might wish to consider what other safeguards might be possible—that a residual right for a judge to stop the initiation of the process seems eminently sensible, and compatible with all our principles of justice and of common sense.
Mr. Hogg: If it is right to give the court power to initiate the process, it is also—almost by definition—right to give the court power not to proceed with the process.
Mr. Grieve: My right hon. and learned Friend is right, and that very point was made by Lord Carlisle of Bucklow in the other place. He expressed astonishment that given that the court had the discretion to initiate the process—and the Minister seemed apologetic when he had to accept that that existed—it should not have a residual power to stop it. The Minister clearly envisages that a judge might on occasion—notwithstanding the fact that a prosecutor did not wish to initiate the confiscation process—consider the case and say, "This is outrageous. The interests of justice demand confiscation." He is content to give judges that power. That is why it is bizarre that he has such distrust of the same judges to whom he is prepared to give that power that he will not give them the discretion to say that circumstances do not warrant initiating the confiscation process. That is the point at issue between us.
In the other place, Lord Goldsmith said that the legislation would apply only to "inherently acquisitive offences". I am sure that that is the intention and I assume that, because prosecutors are people of integrity, good standing, benevolence and propriety, that is what will happen. However, the House must always have regard to the possibility that power may be abused. When we give power to bureaucrats, however well intentioned they appear, it is right to consider what safeguards we can introduce to ensure that abuse does not occur. The normal safeguard that a sensible Parliament introduces is a judicial discretion. I do not share the Minister's sudden distrust of judicial discretion, especially when, as in this case, it would be so circumscribed and limited.
The Minister claimed that the amendment would wreck the purpose of the Bill. We will consider some amendments later that pose real difficulties, and I acknowledge that, but in this case the Minister is descending—I regret to say—to the sort of comments that the Prime Minister made. I do not know whether the Prime Minister was programmed by his spin doctors to make those comments—
Mr. Tom Harris: That is a stupid thing to say.
Mr. Grieve: The hon. Gentleman appears to be so well programmed that he tried to raise the issue as a bogus point of order yesterday. I greatly regretted that. I hope that we can continue to have a sensible discussion about the issue, and I hope that the Minister will accept the
sincerity of our views. I am confident that the Bill would survive the amendment and operate perfectly, but it would do so with the safeguard that the amendment would provide against possible abuse.4.15 pm
Hugh Bayley (City of York): I am concerned that the amendment could be used to give protection not only to people who fail to illuminate the rear light of their bicycles, but to people convicted of much more serious crimes. The Minister will be aware that I would like to see the confiscation and restraint orders applied to people charged with, or convicted of, the new offences of international bribery and corruption in the Anti-Terrorism, Crime and Security Act 2001. I have written to him on that point.
Mr. Hogg: I may have misunderstood or misheard the hon. Gentleman, but did he say that the provisions should apply to someone charged but not convicted?
Hugh Bayley: The provision for confiscation applies only to those who are convicted, but the restraint orders can be applied at an earlier stage.
If a UK citizen or company obtains a contract abroad as result of bribery, it is a crime under British law. Therefore, the benefits of that crime—the income derived from the contract—are the proceeds of crime and should be subject to restraint at the point of charging, or confiscation on conviction. If the House decides to disagree with the Lords amendment, is it the Government's intention that the Bill should be used in that way against those either charged or convicted of the new offences of international bribery and corruption?
Mr. Alistair Carmichael (Orkney and Shetland): Here we are again, going over well trodden ground. If the debate so far is any indication, it is not even very fertile ground. The words of the Minister filled me with sadness and disappointment in him. I had acquired tremendous respect for him in Committee, and on Report and Third Reading. To hear him describe the Lords amendment as a wrecking amendment beggars belief.
Mr. Tom Harris: It is a wrecking amendment.
Mr. Carmichael: Simply repeating that untruth does not make it true. It is an exceptionally modest amendment that is limited to exceptional circumstances. It would not give a general power of discretion to the court. The discretion would also only be exercised in circumstances in which a trial of some sort had occurred and the judge or sheriff in question was already familiar with the circumstances. In the event that the discretion was abused in the way warned of by Labour Members, it would be open to the prosecutor to remedy that on appeal. What constitutes exceptional circumstances would be easily capable of judicial definition.
The hon. Member for Glasgow, Cathcart (Mr. Harris) earlier intervened to criticise the discretionary regime that has existed hitherto in Scotland. He said that it produced only a few cases, but he did not make it clear that no case that has been subject to the discretionary scheme in Scotland has been refused. He risks misrepresenting the position, and misleading the House, when he suggests that
the discretionary system is the reason that few cases are brought in Scotland. He should consider instead the way in which the Crown Office has traditionally been structured and how it has operated, and the resources devoted to that office and to the police. He would improve the debate immensely if he concentrated on such matters instead of trying to misrepresent the current position.Regrettably, a recurring theme in the discussion of this Bill has been the fact that the Government have said that they will not trust the judges. That is very depressing, if true. Why have the Government said that? I accept that there are faults with the judiciary, but the proposals in the Bill are not the way to tackle the problems. They would be better addressed by looking at the way in which judges are appointed, and at how people who are not members of the Faculty of Advocates can work in the Court of Session as senators of the College of Justice. We should also bear in mind the people who are entering university to study law and begin the journey to judicial appointment. Picking away piecemeal at judicial discretion is no substitute for a proper and comprehensive overhaul.
The Government may say that a degree of discretion is given already to the prosecutor in Scotland and to the director in England. I remind the House that both are arms of the Executive. Any discretion given to the Executive requires that a counter-balancing discretion be given to the judiciary. Power exercised by the Executive is always open to abuse. If proceedings are raised that are oppressive—and I defy the Minister to say that that cannot happen—it is surely vital that some balancing discretion is given to the judiciary to redress the matter.
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