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The Scots Parliament voted to refer the Bill to Westminster under a Sewel motion on 24 October last year. The Scottish National party supported that move, but if one reads the report of the debate in the Scots Parliament
The key point is that the Bill has undergone substantial and major changes in relation to its provisions that are applicable to Scotland. In particular, the original Bill did not propose any amendment to the current and traditional discretionary powers of the sheriff or High Court judge. Even the right hon. Member for Carrick, Cumnock and Doon Valley (Mr. Foulkes), the then Minister in the Scotland Office, speaking to the Scottish Affairs Committee on 7 November last year, agreed that there would be a political imperative to refer the Bill back were there substantial or major changes. Unfortunately, the then Minister seems subsequently to have changed his view. When the SNP group called a Division on Report on an amendment that would have secured the referral of part 3 of the Billwhich includes this grouping of amendmentsback to the Scots Parliament, although we managed to gain support from all parties in the House amounting to 172 votes, we received no votes whatever from new Labour Members.
Mrs. McGuire: Will the hon. Lady please explain the inconsistency in her argument given that the Scottish Parliament gave the power under the Sewel motion to legislate in this area? As far as I and, I am sure, every Member of the House is aware, it has not asked for that Bill to be sent back. It must be happy with what is happening.
Annabelle Ewing: I fear that the Under-Secretary has not been listening to what I said. The key point is that a substantial change has been made to the Bill. The right hon. Member for Carrick, Cumnock and Doon Valley agreed that there would be a political imperative to refer the Bill back to the Scottish Parliament if there had been substantial changes to it. Perhaps the Under-Secretary does not agree with the right hon. Gentleman.
Mr. Deputy Speaker: Order. We cannot have a substantive debate on this matter. I was prepared to allow the hon. Lady to refer to it as a prologue to anything that she might wish to say about the substance of the amendment. The question of whether it is a proper matter for the House, however, has already been decided.
Rev. Martin Smyth: I support the Bill, and I am very glad to see it moving forward, but some of the extravagant language that has been used, both for and against the Bill, has left me wondering. The heart of the Bill would be torpedoed. I do not believe that the effects would even be of the order of the injury to David Beckham's foot, and he recovered in time for the World cup.
We must be realistic. When the Minister referred to mandatory provisions to avoid plea bargaining, my mind went back to the early 1970s when the then Northern Ireland Government set a mandatory six-month sentence for those who were involved in disorderly behaviour. A young man walking down the Antrim road, whistling, suddenly discovered that he was in a riot situation. He was scooped up, brought before the magistrates court, and a charge of drunk and disorderly was read out, at which point, he was asked, "How do you plead?" He replied, "Not guilty, I don't drink." The solicitor asked whether he could approach his client. He came over to the young man, and said, "I can get you off on drunk and disorderly. A six-month sentence is mandatory for disorderly behaviour." The young man got off, but he now has a record of being drunk and disorderly.
My point is that I started out as sympathetic to the position manifested in the Bill. I have come to wonder, however, whether we are losing the thread of the argument because we are introducing aspects that are wrong. At least an understanding should be given that the court might make a judgment, in the light of the evidence in front of it, as to whether, at that stage, to proceed accordingly.
Mr. Bob Ainsworth: We may have got off to a bad start in this debate. The Opposition are clearly so upset at the allegations made by my right hon. Friend the Prime Minister that, subsequently, they are desperate to suggest that the amendment is of no significance. I do not believe that it is; and I do not believe that the records shows that. It is an issue, as some of my hon. Friends have said, that caused considerable lively debate in Committee. No matter how much anybody tries to dress it up, the Lords amendment is of great significance. It moves us back in the direction of a discretionary scheme in which more discretion is granted to the courts in relation to whether they ought to get into the area of confiscation.
I asked a couple of questions of the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg). Those who listened will recognise that I received an answer to neither of them. I asked him whether he could shed some light on why the previous Government, of whom he was a part, felt that there was a need to introduce mandatory powers in this regard.
Mr. Ainsworth: I shall do so in a minute, when I have completed referring to the right hon. and learned Gentleman. I also asked him, based on his considerable experience, which I do not have, whether he has any
Mr. Hogg: In fact, I did give the Under-Secretary an answer. The answer is that I am against mandatory powers, and I always have been. I illustrated that by saying to you, Mr. Deputy Speaker, yesterday, that the mandatory life sentence for murder should be done away with, and that judges should be given the option of imposing a determinate sentence. I am against mandatory sentences.
Mr. Ainsworth: The right hon. and learned Gentleman is absolutely right. He did say that, and I heard him say it, but it was not an answer to the question that I asked. He knows that. I asked him whether he could shed any light on the decision that was taken. All I have to refer to is Hansard, which I have read to the House. The Minister, who is now in another place, referred to the fact that, over the previous six years, the courts had not been prepared to use confiscation as was envisaged, and that there was a need to go down the mandatory route. All I have to refer to is the public position of the Government; the right hon. and learned Gentleman has the inside story. He could give us an insight into why it was felt that a mandatory route should be followed. He has not done so; he has chosen to answer another question.
Mr. Ainsworth: Many other Membersone of whom is trying to intervene nowhave experience of practising in the courts. I do not know how long the hon. Member for Orkney and Shetland (Mr. Carmichael) has practised in the courts, but he and others could give us examples of how the mandatory nature of confiscation has led to the kind of injustices that people are saying will arise now. I have not heard such an example. What I have said consistently in Committee and on the Floor of the House is that all the evidence suggests that confiscation is under-used in this country. The powers need to be improved and built on; they do not need to be retreated from. If the hon. Gentleman can give an example of an injustice having occurred, we would all be grateful to listen to it.
Mr. Carmichael: The Minister is well aware that whenever power is given to the Executive, that power is open to abuse. It is therefore necessary to provide protections so that that does not happening. However, does it not cause him even the merest flicker of embarrassment to stand at the Dispatch Box as a Labour Minister justifying his Government's actions by saying, "We're doing exactly the same thing as the Tories"?