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Mr. Grieve: I do not see anything inconsistent in an approach that allows a greater measure of judicial discretion about whether to embark on the process. I appreciate the hon. Gentleman's fears that judges may decide that they do not want to go through the process or may be sympathetic to the defendant for some reason. However, as the judiciary shares the concerns of the rest of humanity about the suppression of crime and preventing people from benefiting from its proceeds, I do not share the strange distrust that judges will sit back and say, ``We're not having anything to do with this; we're not going to embark on this process''. I could foresee that happening only when the circumstances surrounding a conviction are such that a judge, applying a common-sense approach and examining all the facts, says that it is a completely pointless or unfair exercise. Hon. Members may shake their heads, but that is the great Moloch of the state that will come trundling down the road to swallow people up. Mr. Foulkes: Mollusc? Mr. Grieve: Moloch. The prospect of being swallowed up by a mollusc—some large clams may do that—was not the allusion that I was trying to make.
9.30 amMr. Wilshire: Several people here are probably as ignorant as me, but I am prepared to stand up and ask what a Moloch is. Mr. Grieve: A monstrous being. Mr. Tredinnick: I listened carefully to my hon. Friend's arguments. I was almost distracted from what I was going to say by Molochs and molluscs. As someone who has experience of diving, I must warn my hon. Friend that if he ever gets a flipper near a giant clam, he would want to be sure that he has a buddy with some buddy-breathing arrangements nearby, because the giant clam is renowned for seizing the feet of those who venture on the bottom without noticing it. You may be tempted to call me to order, Mr. O'Brien, so I shall not pursue that any further. My hon. Friend the Member for Beaconsfield (Mr. Grieve) has presented a strong case for carefully considering discretion. As a Member who is not a barrister, I would find it helpful if he gave more examples of why the mandatory proposals are at variance with what currently exists in the United Kingdom. He has argued that Labour Members should provide a better explanation, so it would be helpful if he explained, based on his experience, why we should address that seriously. Mr. Grieve rose—
Ian Lucas: Will the hon. Gentleman give way before he starts? Mr. Grieve: I seem to be in demand. The hon. Gentleman's intervention may be helpful. Ian Lucas: I confess that I shook my head earlier. In my experience of the courts in the early 1990s, confiscation orders were too often seen as an afterthought at the end of a long trial, and the prosecuting authorities and the courts were often not sufficiently concerned about them. That is the real purpose of this part of the Bill, and the reason why Labour Members want the matter to remain mandatory. Mr. Grieve: The hon. Gentleman makes a good point. Speaking from personal experience, there is some force in that argument. When taking part in a six-week trial on a drug importation case, there is nothing worse than getting to the end, reaching a verdict, exhausting everyone, and suddenly—hey presto—one has to enter an investigation as set out in the Drug Trafficking Offences Act 1986. I commend the hon. Gentleman and agree with him. However, it does not follow logically that we should automatically remove judicial discretion. Mr. Hawkins: I am grateful to my hon. Friend and to the hon. Member for Wrexham (Ian Lucas). They, along with myself, are among the several Committee members who have experience of those matters. However, it would be unwise for any Government—and certainly for Parliament—to accept the argument that says something must be done, this is something, therefore we must do it. That is the flaw in the argument of the hon. Member for Wrexham. The purpose of parliamentary scrutiny is not to agree that there should be change, because we agree that something should be done, but to decide whether the Government propose the right and most effective something. My hon. Friend argues for something better. Mr. Grieve: I agree—that is the principle of my approach. I was asked for examples. I do not wish to detain the Committee or stray from the point, but we must consider the entirety of the clause. There would be more merit in the argument for a mandatory approach, which the hon. Member for Wrexham advanced, if subsection (2) were confined to offences or proceedings before the Crown court only. All the extraordinary aspects of the Bill are interlinked, which is why it is so difficult to consider one set of amendments without thinking through the implications of others down the road. If we consider subsection (2), which in turn requires consideration of clause 70, we realise the absolute catch-all nature of the sort of criminal conviction that could trigger the process. We will want to consider that aspect independently. I accept that one can argue that we should leave in the mandatory aspect of subsection (1), but let us remove some of the extreme criteria that could trigger the confiscation mechanism. As was pointed out on Second Reading, subject to the Secretary of State's power under statutory instrument, it is possible for virtually any criminal offence in which there has been a benefit to be sufficient to act as a trigger. I referred to a road haulier who committed a series of three tachograph offences in six years. The Government want to extend the net very widely as they cast it upon the waters, which reinforces the desirability of a mechanism enabling the judiciary to exercise discretion and say, ``Don't be so stupid.'' That is the basic reason for a discretionary test. The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): Will the hon. Gentleman give way? Mr. Grieve: In a moment. We could approach the matter differently and make only certain aspects mandatory. The really extraordinary aspect of the Bill is its all-encompassing nature and the powers that it farms out right, left and centre. It— The Chairman: Order. I accept that the measure is all-encompassing, but I ask the hon. Gentleman to stick to the amendments before us. These are matters for amendment No. 23, which is coming up shortly. Mr. Grieve: Thank you, Mr. O'Brien. Perhaps the Minister would like to get in now. Mr. Ainsworth: Mr. O'Brien has just done what I was going to do in another way. Stephen Hesford: I do not want to get bogged down in curious examples. Frankly, I did not understand the tachograph example when it was given on Second Reading by the shadow Home Secretary, the hon. Member for West Dorset (Mr. Letwin). Leaving the tachograph aside, let us consider clause 7, which also has a mandatory element, with the word ``must''. I note that no amendment has been tabled that would remove that mandatory provision. If Opposition Members want to be consistent about judicial discretion, why is there no such amendment? The Chairman: Order. I hope that we are not discussing clause 7. Hon. Members should stick to the amendments before us. Mr. Grieve: On that basis, I shall refrain from speaking about clause 7 until we reach it, but it is obvious why we have not yet tinkered with it. Let me explain the point about the tachograph. We are talking about crimes from which people can be shown to benefit. Someone who allows his driver to overstep the tachograph regulation hours can be shown to have had a financial benefit from that crime. Arguably, the same applies to a health and safety offence, because the provision is so widely drawn. Mr. Ainsworth: I understand the hon. Gentleman's point about the all-encompassing nature of some powers. However, other amendments address summary offences directly, so is it his intention to cause confusion and cast smoke around his arguments? The hon. Member for Bosworth (Mr. Tredinnick) asked why his proposed changes were necessary. We need a cogent explanation why amendments that would make all the powers discretionary are necessary. Mr. Grieve: The Committee system operates in such a way that we do not have the luxury of being able to examine large groups of amendments together. Amendments can achieve a similar goal in different ways. Later amendments will deal with, for example, the removal of certain categories of offence. Other amendments are intended to probe. Their purpose is to improve the Bill in its totality. One way of achieving that is to give a general discretion. If the Under-Secretary is saying that the Government wish the Bill to be all-encompassing in terms of the range of offences covered, there is a compelling argument for giving the general discretion. If he says that he has reflected on the matter—and the Minister of State has also been through reflective processes as the Bill has progressed—and that he has decided that certain categories of offences might be deleted, and that the Secretary of State's powers under statutory instrument to specify offences will be removed, I would be less worried, and I might press the amendments less hard. However, I cannot predict what might happen further on in our proceedings, which is why it is important to focus on the provisions that mirror those that were thought to be acceptable for Scotland, which give a general judicial discretion about whether to embark on the process. Mr. Hawkins: My hon. Friend's argument is strengthened by the movement that has been apparent not only what the Minister of State has told us but in the Government's tone in the brief period between Second Reading and Committee stage. On Second Reading, almost all of the speakers from the Government Back Benches—some of whom are present—dismissed the shadow Home Secretary's arguments about tachograph offences as trivial and irrelevant, but now the Minister is saying that he accepts that an important point is being debated. There is a huge difference in tone between the Labour party's Back Benches and its Front Bench, and the Minister's attitude seems to have changed between Second Reading and Committee stage.
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| ©Parliamentary copyright 2001 | Prepared 15 November 2001 |
