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Mr. Tom Harris: The right hon. and learned Gentleman said that a court should be able to decide "for one reason or another" not to proceed. That phrase strikes fear and terror into my heart and it is one of the reasons that the amendment is wrong.

Mr. Hogg: In fact, I was advocating a looser power than that provided for in the Lords amendment. The Lords amendment confines the judicial discretion to exceptional

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circumstances. I have many criticisms to make of the judiciary from time to time; none the less, in this case I would give the judiciary a wider discretion than that contemplated in the Lords amendment.

Mr. Bob Ainsworth: The right hon. and learned Gentleman is right to say that he has a great deal of experience in practising in the courts. He has another kind of experience as well: he was a member of the previous Government in various capacities. It is perturbing that it has been said that the present Government fear the discretion of the judges. The right hon. and learned Gentleman will know that mandatory assumptions were applied not by this Government, but a long time ago. Can he can give us an insight into why it was considered necessary for those mandatory assumptions to be applied by the Government of which he was a member some years ago? Can he, because of his wide experience, give us any indication where an injustice has occurred since those mandatory assumptions have been in place?

Mr. Hogg: Basically, I am against mandatory sentences. Yesterday, I put to the Home Secretary a proposal that judges in murder cases should have the right to impose determinate sentences, not life sentences. I have always been extremely cautious about mandatory sentences, because I believe that they do not address the particular circumstances of individual cases.

That general point, however, goes rather outwith the narrow point that I am making today, which is that in an area where the standard of proof is the relatively low one, and where the decision to trigger the process can be made at a relatively low level, the court should, in exceptional circumstances, have a power to stop the procedure. That seems to be consistent, not inconsistent, with the present framework of clause 6, and I very much hope that my hon. Friend the Member for Beaconsfield (Mr. Grieve) will press this matter to a Division.

Mr. Tom Harris: I start by disagreeing with my hon. Friend the Member for Glasgow, Pollok (Mr. Davidson). I do not believe that the hon. Members for Beaconsfield (Mr. Grieve) or for Orkney and Shetland (Mr. Carmichael) can be described as friends of the criminal. I accept that, coming from legal backgrounds, they genuinely want to improve the Bill. I do not doubt their personal sincerity on that score.

When the hon. Member for Beaconsfield intervened on my hon. Friend the Member for Glasgow, Pollok, he used the word "intention". He has used that word frequently in the House and in Committee. He has made clear his intention time and again in supporting various amendments, but he has not explained the effect of the amendments. I accept that his intentions are true, but he has to accept, whether he likes it or not, that the effect of the Lords amendment will be to undermine the purpose of the Bill.

Mr. Grieve: I am grateful to the hon. Gentleman for his comments, but the intention of the Lords amendment is to introduce a safeguard that I would expect to be used extremely rarely and only in clear cases where it is apparent to the judge that a decision by the prosecutor to seek to initiate proceedings is plainly wrong, and that is it. That is the intention.

Mr. Harris: The hon. Gentleman has, once again, proved my point. I accept that that is his intention.

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We agree on that, but I have to disagree about the effect, which will be to follow the path of previous legislation by being far too cautious and not achieving the intended aim.

The right hon. Member for Chingford and Woodford Green (Mr. Duncan Smith) said yesterday in talking about the Bill:

Why was there not an asterisk at that point in Hansard, leading to a footnote saying, "Subject to the following conditions"? There is no point in saying one thing and doing another.

Mr. Hawkins: When Members say that they support legislation, it does not mean that they support every dot and comma in the Government's proposals. If the Conservative party did not vote against a Bill on Second Reading, Third Reading or in another place, but simply wished to scrutinise it, to improve it and propose amendments that affected only small parts of it, it is entirely right for my right hon. Friend the Member for Chingford and Woodford Green (Mr. Duncan Smith) to say that we supported it. That has always been the practice of the House in such matters.

Mr. Harris: The hon. Gentleman obviously has a lot more experience in the House than I do. I bow to his greater experience, but I find it slightly unfair that the Conservative party can say, "Yes, of course we support the Bill. We believe in confiscating criminals' assets", and issue a press release saying as much, while in Committee voting time and again against the very heart of the Bill. Conservative Members tabled many amendments, and on every possible occasion they forced a vote on any measure to emasculate the Bill.

The hon. Gentleman may or may not admit this, but the original point of the Bill was not to emulate previous legislation, but to introduce a brand new principle into English and Scots law. So, whether he likes it or not, discretion, which is what we need, will be available to courts. He has every right to disagree with that view, but that is what the Bill is about. He cannot say that he supports it, and then try to undermine the very heart of it.

In Committee, the Conservative party moved a very similar amendment to clause 6, and it was pressed to a Division. The amendment has returned from the Lords in a slightly different form, but it will achieve the same. The Conservative party has lost the vote once already, and it should respect the democracy of the House and accept that we have already made up our minds. I hope that it will not press this issue to the vote.

4.45 pm

Mr. Boris Johnson (Henley): Can the hon. Gentleman imagine a single circumstance in which a judge who sees a low-life drug dealer of the kind described by the hon. Member for Glasgow, Pollok (Mr. Davidson) and who has the opportunity to confiscate the assets of that criminal might decide not to proceed to do so unless he felt that an injustice might occur?

Mr. Harris: That is an excellent question, and the answer is no. I cannot imagine any judge looking at a

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down-and-out drug dealer from Glasgow and saying, "No, I'm not going to confiscate your assets." What I can imagine is a judge seeing a well-to-do business man standing before him in the dock and suddenly thinking, "There is a respectable gent. Surely he can't possibly be involved in drugs." That is the point of the Bill. I am sorry, but the hon. Gentleman has to do a wee bit better than that if he is to justify his party's position.

Ian Lucas: Can my hon. Friend also imagine that an exceptional body of case law would develop on what precisely could be defined as exceptional circumstances? There would be many cases of doubt about that phrase, and many people who made money from death in their communities would benefit from the Lords amendment.

Mr. Harris: I completely agree with my hon. Friend, who also has a legal background, although I certainly would not hold that against him. The point about the phrase "exceptional circumstances" is very similar to the point made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg). How can we define that phrase, other than through many years of legislation? Certain people in our society hope that that phrase will be inserted into the Bill. Let us make no mistake about the fact that certain people working in this country's criminal undergrowth are desperate for the Lord amendments to remain in the Bill.

The hon. Member for Beaconsfield made a very good point during our very interesting debates in Committee. He said that previous Governments—Conservative and Labour—had tried time and again to introduce effective legislation to deal with drug dealers once and for all. Obviously, they wanted to use such legislation to fight the drugs menace. He said in his contribution that none of the Acts had been as effective as the Government of the day had intended. He was absolutely right. If the Lords amendment stays in the Bill, exactly that fate will befall this legislation.

Frankly, having been involved in 39 Standing Committee sittings, I will not suddenly change my mind and want the Bill to be enacted without the powers to do what desperately needs to be done for the sake of this country, my constituency, those of my hon. Friends and, I hope, those of Opposition Members.

Annabelle Ewing: I rise to speak to these Lords amendments in so far as they apply to Scotland. I believe that an important constitutional issue is raised because, as we have heard, the Lords amendment would reintroduce an element of discretion in making confiscation orders in Scotland. Although there is a valid debate to be had about mandatory versus discretionary powers of sheriff or High Court judge in making such confiscation orders, the fact is that Westminster is not the appropriate forum in which to discuss that matter because jurisdiction over Scots law is devolved to the Scots Parliament.

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