Standing Committee B
Thursday 15 November 2001
(Morning)
[Mr. Bill O'Brien in the Chair]
8.55 am
Mr. David Tredinnick (Bosworth): On a point of order, Mr. O'Brien. I seek your guidance because, at the start of our proceedings on Tuesday, your colleague, Mr. McWilliam, advised us that it was customary to seek the Chair's permission to remove jackets. I have served on previous Standing Committees in which matters were different and I wondered whether, before even thinking about removing our jackets, we should ask your permission. So that I do not transgress, unlike my Liberal Democrat colleague, the hon. Member for Lewes (Norman Baker)--I do not want to cause him any embarrassment at the start of our proceedings--would it be in order for us to remove our jackets this morning? I should be grateful for your guidance.
The Chairman: It is customary to seek the leave of the Chair and I have no objection if any hon. Members want to remove their jackets during our proceedings.
Mr. Tredinnick: I am sure that I speak for the whole Committee in saying that we are grateful.
Mr. David Wilshire (Spelthorne): Further to that point of order, Mr. O'Brien. As I do not like to waste time, will you tell us whether that permission covers only this sitting while you are chairing it, or all the sittings that you chair?
The Chairman: I cannot speak for my colleagues who may be in the Chair, but while I am in the Chair this morning, hon. Members are free to remove their jackets. It is for my colleagues to make their decision when they are in the Chair.
Clause 6
Making of order
Mr. Dominic Grieve (Beaconsfield): I beg to move amendment No. 8, in page 3, line 16, leave out `must' and insert `may'.
The Chairman: With this it will be convenient to take the following amendments: No. 14, in page 3, line 38, leave out `must'.
No. 15, in page 3, line 39, after `(a)', insert `must'.
No. 9, in page 3, line 40, after `(b)', insert `may'.
No. 10, in page 3, line 40, after `pay', insert `a sum not exceeding'.
Mr. Grieve: This is one of the most important clauses. It is the first clause of part 2 and covers the making of confiscation orders. It may be helpful if I briefly go through all the amendments in the group before turning to their background purpose. However, I have the impression that the Minister wants to say something.
The Minister of State, Scotland Office (Mr. George Foulkes): I thank the Opposition spokesman and you, Mr. O'Brien. It may assist the Committee and the Opposition spokespersons from both parties in their consideration of part 2 if I inform them of the Government's discussions with the Scottish Executive on the confiscation provisions in part 3.
My hon. Friend the Under-Secretary and I have taken note with our colleagues in the Scottish Executive of the comments made on Second Reading about the discrepancy in the Bill between the discretionary scheme for Scotland and the mandatory scheme envisaged for the remainder of the United Kingdom. Concern was expressed by a number of Members of the Scottish Parliament that the proposed confiscation arrangements for Scotland are insufficiently robust. I have discussed the matter again with Jim Wallace, the Deputy First Minister, Colin Boyd, the Law Advocate, and Iain Gray, the Deputy Minister for Justice in Scotland. The Executive have always shared the Government's view of the importance of ensuring that confiscation is pursued in every appropriate case and are mindful that the judiciary in Scotland has regularly imposed confiscation orders under the current discretionary system. Nevertheless, our colleagues on the Executive have decided that there is a strong case for ensuring consistency of approach in this matter throughout the United Kingdom. Therefore, the Government are reviewing the discretionary approach set out in part 3 and I hope to inform the Committee of our conclusions in the near future.
Mr. Grieve: I am grateful to the Minister for that exposition and for giving me a few seconds' notice of what he intended to say. I had intended to champion the liberal constitutional proprieties of the Scots compared with the tyrannous approach this side of the border. I am sorry that, again, it seems that the high road to England is attractive to Scots as they seem to be only too willing to follow the same route.
Mr. Ian Davidson (Glasgow, Pollok): It is only fair that those of us who have seats in Scotland express our gratitude to the hon. Gentleman. It was his intervention in my speech on Second Reading that provided a degree of urgency that had not previously existed. He may not win anything else in the Bill, but he can be assured that that intervention brought about harmonisation.
Mr. Grieve: I remember the hon. Gentleman's comment on Second Reading—I almost fell off the Bench. Having highlighted what I thought was a sensible area in which the Scots wished to retain their own practice, I found him both angry at the revelation and only too enthusiastic to jump on the bandwagon of mandatory confiscation.
Amendment No. 8 would give the court discretion not to proceed even if the two conditions in subsections (2) and (3) were satisfied. The discretion would be general and would mean that if the court did not want to take that route, it would not have to. That mirrors the existing Scottish provisions.
Amendment No. 14 would allow the court not to decide on the recoverable amount to make in an order, even if it believed that the defendant had benefited from his conduct. There is element of overlap between the discretions and I tabled the amendments so that we can examine each possibility, as well as considering them together.
Amendment No. 9 would allow the court not to make an order even if it decided on a recoverable amount.
Amendment No. 10 would allow the court to decide that a lesser sum than that which had been deemed to be recoverable should be paid. Again, that mirrors, to some extent, the current practice in Scotland.
In a nutshell, the purpose of the amendments is to remove or diminish what at present could be seen to be a mandatory and oppressive form of administrative diktat. Historically in England--I am not qualified to speak about Scots law, but I suspect from reading the Scottish provisions that the principles are identical--judicial discretion always applies to prevent injustice. The Government introduced the Human Rights Act, but are now busy criticising the judiciary for implementing it in the way that it would obviously be implemented--
Mr. Nick Hawkins (Surrey Heath): And we warned them.
Mr. Grieve: Indeed we did.
The Government are again showing clear signs that they do not trust the judiciary to be able to make reasoned judgments.
Without the amendments, and certainly without amendment No. 8, the prosecutor will be able to tell the court what to do. That is inherent in subsection (3)(a). Moreover, the director of the Assets Recovery Agency will be able to tell the court what to do. I find that aspect even more troubling, because the prosecutor has always had an independent role in trying to ensure that justice is achieved. Those of us who have practised as criminal prosecutors will know that that sometimes means saying to those who have instructed us—again, I am sure that the same applies in Scotland—that we are not prepared to take a certain course of action even though the prosecuting authority might wish us to do so. Under the Bill, action can be taken not only at the prosecutor's but at the director's discretion. In truth, it is being turned into a confiscatory administrative mechanism, wholly controlled by the director of the Assets Recovery Agency. That should be a source of concern to those who wish asset recovery to be an instrument of justice and not of oppression.
That lack of discretion brings me back to the speech that I intended to make—and I shall still make it, notwithstanding the comments of the Minister of State. I contrast that lack of discretion with the fact that the Government appear to be content with the drafting of the Scottish clauses in part 3.
Mr. Foulkes: I know that the hon. Gentleman might find it difficult to change horses in midstream, but he ought to take cognisance of the fact that the Government clearly want mandatory procedures in Scotland, and that we are now working on further amendments. He can no longer draw on that argument, however much he may wish to do so.
Mr. Grieve: The Minister misses the point. The purpose of the Committee stage is first to scrutinise the Bill line by line and secondly to allow an informed discussion of the principles that underlie it. In some haste and with considerable immediacy, he informed me seconds before the Committee started that, acting on representations made on Second Reading by a number of Members of Parliament with Scottish seats, the Government decided to discuss the Bill with the Scottish Executive and that, hey presto, the discrepancy between the Scottish and English confiscation regimes will now disappear.
Mr. Foulkes: On the question of haste, I shall not mention the fact that the hon. Gentleman arrived only a couple of minutes before today's sitting, because it is irrelevant. As he knows, we got through the Bill on Tuesday rather more quickly than expected. I had hoped that we would not reach clause 6 until next Tuesday, which would have given us time to be more courteous and to have given him more notice. Then he might not have gone through arguments that are no longer relevant.
Mr. Grieve: The Minister misunderstands on several counts. He was not discourteous. Indeed, he was very courteous in telling me of the changes before the sitting. I have no problem with that. I was here only two minutes before the Committee started because the Home Office intends to introduce a great raft of emergency legislation next week, and I had to spend a considerable part of last night poring over it and then discussing it with colleagues before coming here. That glut is not of my making. I am here only to scrutinise the Bill.
I understand what the Minister says. It is abundantly clear that, acting apparently on representations made on Second Reading by Back Benchers, he spoke to the Scottish Executive and is now able to inform the Committee that the Scottish clauses will be amended to bring them in line with those for England and Wales. That, however, raises a number of important points.
First, I would like to know from either Minister—I am sure that they can tell us—why the Scottish Executive initially wanted a different regime from England and Wales that would provide a much greater measure of judicial discretion. I can hazard some guesses, but given our discussions we are entitled to a full answer. I shall make some assumptions. The Minister can shoot them down, but my first guess is that the Scottish Executive may have considered that the proposals, as drafted for Scotland, are capable of meeting the objectives sought by the Government, so there would be no public policy issue that the legislation would not bite if judicial discretion were provided.
My second guess is that the legal advisers to the Scottish Executive may have been concerned when they read what the Government proposed originally for England and Wales. They may have been worried about its draconian nature and considered that there was a need to retain those judicial discretions that are often regarded as important for the liberty and rights of the individual. That is especially so given the most unusual power that is being conferred on the Government of being able to confiscate assets that may not be linked directly to a specific crime, on the grounds of criminal lifestyle.
We must have an informed discussion about the policy decisions that underlay the original decision to have a different regime in Scotland from that in England. When we discuss the parts of the Bill that relate to Scotland, I shall want a detailed explanation of why the Scottish Executive have changed their mind in light of the comments that were made on Second Reading. At that time, the Bill was presented by the Government as being competent and capable of performing certain functions, yet they have now changed their mind. Was that a cosmetic decision? Has there been some characteristic arm twisting of the Scottish Executive by Westminster—something that has happened in the past and may happen in the future?
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