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Rob Marris (Wolverhampton, South-West): I note with interest what the hon. Gentleman has said about placing checks and balances on the power of the Executive, but is not judicial review precisely that? It is designed to redress any irrational or unreasonable exercise of discretion by the Executive.
Mr. Carmichael: My understanding is that the decision could not be reviewed. In Scotland, the decision to initiate proceedings would not be open to judicial review. However, I welcome the hon. Gentleman's suggestion that it is important that the judiciary should be able to place a check on the powers exercised by the forces of the state.
If the Government reject the Lords amendments, a dangerous precedent will be set. The powers given to the different parts of the criminal justice system will be out of balance. My experience is that the system works best when people concentrate on their own jobs and do not try to second guess what others are going to do. Each part of the system must exercise an appropriate and responsible measure of power, but the power has to be given in the first place, and that is what the amendment would do.
Mr. Davidson: This is a key debate on a key amendment. For the first time, the Tories are boldly attempting to water down some of the Bill's proposals. They endorse the Lords amendment, the effect of which would be to allow some criminals to keep their assets, who otherwise would have those assets seized.
Mr. Grieve: The amendment would do no such thing. Its purpose is to ensure that proceedings are not brought
Mr. Davidson: I accept what my hon. Friend the Minister saidthat the Bill already contains enough safeguards to make sure that that did not happen. I shall say more about the danger posed by the amendment in a moment.
We should remember that this is not an arcane or abstruse debate between lawyers. We are discussing how our decisions affect real people in the real community outside the House. We are talking about crime and drug abuse, about people making millions out of selling drugs to their victims, and about communities and lives being wrecked. We must make sure that that is at the forefront of our minds.
It struck me that Conservative Members were protesting somewhat too much about their good intentions. It is clear that, as so often, the words of my right hon. Friend the Prime Minister struck them to the heart. What he said was absolutely trueand I am not slow to criticise my right hon. Friend when he disagrees with me and gets things wrong. However, what he said on this matter was absolutely correct, and I enjoyed seeing the Tories squirm.
We were not far short of the mark when we described the Tories as the criminals' friends. They have consistently acted to water down the Bill, in a way that would allow some people to escape justice who otherwise would not. The only people in the Standing Committee less supportive of the police and criminal authorities were the nationalists, and that was because they did not attend, as they did not apply for membership of the Committee. Liberal Democrat, Tory and Labour Members were there for hours and hours, week after week, but not one nationalist took part.
Mr. Davidson: I am glad to see one bob up now.
Annabelle Ewing: I thank the hon. Gentleman for giving way. He is probably not surprised that I should want to intervene on this fascinating matter, on which I think he is wasting the House's precious time. The hon. Gentleman should note that only three Labour Back Benchers from Scotland are participating in this important debate.
Mr. Deputy Speaker: Order. I have heard equal views on this matter, which is outside the scope of the amendment.
Mr. Davidson: Having noted the absence of nationalists from the Standing Committee, I shall not refer to it again in this contribution.
There is a difference between mandatory and discretionary powers, and there is a danger that giving courts the discretion to apply the measures set out in the Bill will result in something resembling a plea-bargaining process. A recent murder case in my constituency was downgraded to culpable homicide, and it is clear that that
I do not want that to happen. It is true that some of us have less confidence than we should have in the judicial system, and that we want to restrict the judiciary's flexibility in these matters.
I listened to the points made by the hon. Member for Orkney and Shetland (Mr. Carmichael) about reform of the judicial system, university admissions and all the rest of itthe doctrine of the unripe time: we should not change the system now; we should do it at some other time in some other way. Discussing access to university law studies as a means of reforming the judiciary seems too long term, even for the Liberals. We might have a Liberal Government in power by that time, but I doubt it. My constituents and I want action now on these matters. The clearest message that we can send is that we want to fetter the discretion of the judiciary; we want mandatory provisions.
Mr. Carmichael: I take the hon. Gentleman back to the parallel that he drew with plea bargaining. That has no bearing on the judiciary having a measure of discretion. Under the Bill, it is open to the prosecutor to decide not to take confiscation proceedings. That is where any plea bargaining between the prosecutor and the defence would come in. There is no safeguard against that, as the Bill stands.
Mr. Davidson: I understand that, but we ought not to remove all discretion from the prosecutor. There is some merit in what the hon. Gentleman says, but I do not want to extend the discretion, lest it waters down the mandatory aspect.
This is not an arcane debate about the law. It is about how the law impacts on real people, real lives and real communities, which we are sent to this place to represent. We are talking not about Jeffrey Archer or Jonathan Aitken, but about major league criminals. [Interruption.] All right, I concede that former Conservative Members were in a more major league than I have given them credit for.
We can discuss whether the terms of the Bill should have applied to Jeffrey Archer, Jonathan Aitken or any other Conservative MP, present or future, who comes into that category, but we should bear in mind that we are dealing with major issueslife and death for our communities. I should like to see some stiffening and some support for the Bill from the Conservative Benches, rather than the mealy-mouthed self-justification that we have heard up to now.
Mr. Hogg: I rise to try to ensure that the House addresses the real possibility of an injustice. Unlike, I suspect, any other Member, I have been involved in litigation arising out of legislation such as the Bill. In the Republic of Ireland, the Criminal Assets Bureau legislation contains powers very similar to those contemplated in the Bill, and I have acted in the courts of Dublin on behalf of people who have been the subject of procedures against them, so I have a certain amount of professional experience of what can happen in such cases.
That makes me cautious and anxious to identify areas where we can reinforce legal and civil rights. We should welcome the amendment from the other place. The Under-Secretary said that there were two interpretations of the effect of the amendment. The second one might be theoretically possible, but the first one is clearly the intended one, which is to give to the court the power to disapply the procedure in a limited number of circumstances.
Ian Lucas (Wrexham): Does the right hon. and learned Gentleman accept that the Bill as it stands, without the amendment, already gives the court a great deal of discretionthe very point that he made earlier in the debate?
Mr. Hogg: That is true, as far as it goes.
I am in favour of giving the court the power to disapply the process. That is consistent with the framework of this part of the Bill. A careful analysis of clause 6 indicates that there are two areas in which the court already has an important discretion. The first is the one that I drew to the attention of the Under-Secretary.
The initiating process provided under, I think, clause 6(3) arises in one of two circumstances. Either the Crown or the prosecutor applies for the process to start, or the Crown or the prosecutor does not and the court has an initiating power. At that point, the court has a discretion.
But the court has a discretion otherwise in this part of the Bill. Under clause 6(6), in certain circumstancesfor example, if a victim is taking recovery procedurethe obligation to take action under subsection (5) becomes not a duty, but a discretion. So already, within this part of the Bill, one finds two clear examples where the court has a discretion.
If it be right to provide the court a discretion in the two circumstances that the Bill provides, what is the objection in principle to providing the court with a discretion in those circumstances where the Crown or the prosecutor applies to institute the process, but the court, for one reason or another, thinks it unfair to proceed?
There are two points that reinforce in my mind the importance of that. Let us be clear that the decision of the Crown or the prosecutor to initiate the process might well be made at a very junior level. The House must not assume that such decisions will be made by the Director of Public Prosecutions in person, Mr. Calvert-Smith. They will not. They will probably be made by a relatively junior official. It is important that the court should have the power to put restrictions on a decision made at a fairly junior level, if the court considers that appropriate.
The second point is that the process that arrives at the conclusion that a confiscation order is made is on the low standard of proofthe civil standard of proof, not the criminal standard of proof.