Proceeds of Crime Bill

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Mr. Grieve: I am grateful to the Minister for his clear exposition of the numerous amendments, and for his prefacing remarks. He is right to say that the bulk of the amendments mirror issues that we have discussed earlier. I certainly do not wish to exploit that situation, and we will not go over old ground the principles of which we have already debated. None the less, we need to examine the principles on which this part of the Bill is about to be rewritten. I am mindful of what the Minister said, but I am not as completely comfortable with what we are doing as he plainly is. I shall take a moment or two of the Committee's time to explain why.

The Minister knows that I was once the Opposition spokesman on Scotland. During that time, I tried to ensure that devolution worked. Although my party had objections in principle to the concept, once devolution had come about, it was obvious that it had to function well. The mechanism through which we are operating is a device that was set up under the Scotland Act 1998 to ensure that devolution could function properly. I do not have a problem with the concept that the Scottish Parliament can say that it is more sensible for the United Kingdom Parliament to legislate on a certain devolved area because the legislation concerns matters that are part devolved and part reserved. I agree with the Minister that it would be ludicrous for the Committee to be fettered to the precise text of the Bill, rather than being able to examine it and make sensible amendments.

We are about to carry out a rewriting of the Bill, albeit in small ways because in many cases the critical change is replacing the word ''may'' with the word ''must''. Nevertheless, that will alter radically the powers of the judiciary in relation to the way in which the Bill, and thus the law, may be applied in Scotland. It is a moot point what difference that will make in practice, because, as was said earlier, it was suggested that the existing discretionary powers in Scotland that mirror the Scottish model have never interfered with the successful confiscation of assets. The Minister will remember that that was an argument that I put forward to support rewriting the parts of the Bill that apply to England and Wales, because the discretionary power was innocuous, but might have allowed the prevention of injustice in some circumstances.

Mr. Mark Lazarowicz (Edinburgh, North and Leith): Before the hon. Gentleman pursues his interesting point at great length, it would be helpful for the Committee to know whether it is of anything more than theoretical interest. Will he advise us whether he knows of any parties in the Scottish Parliament that oppose the change proposed by the amendment? Are the hon. Gentleman's political colleagues in the Scottish Parliament likely to take his apparent line of being soft on the confiscation of the proceeds of crime?

Mr. Grieve: If the hon. Gentleman bears with me, I will move on to those topics, and he will understand my points more fully.

As the Minister and the hon. Gentleman know, the matter was debated in the Scottish Parliament on 24 October under the Sewel motion procedure. It is noteworthy that the debate was short and the Presiding Officer, Sir David Steel, said that he hoped the debate would be short so as to allow time for a subsequent debate. Therefore, it was a procedural matter. During the debate, the Deputy First Minister and Minister for Justice, and the Deputy Minister for Justice, gave the Parliament an outline of how the Bill is supposed to work. I shall quote some of what was said.

Mr. Ian Davidson (Glasgow, Pollok): Will the hon. Gentleman give way?

Mr. Grieve: Let me make some progress first.

Mr. Gray said:

    ''The provisions relate to a complex mix of devolved and reserved issues. That is the basis for taking the Sewel motion approach and asking the UK Parliament to legislate on Scotland's behalf. It is incumbent on us to say that there are protections for Scotland, Scotland's people and this Parliament. The bill is fully aligned to Scots law and procedure. It has separate clauses where necessary and takes fully into account the different institutional arrangements in Scotland.''

Mr. Gray went on to say:

    ''The Lord Advocate will remain responsible for criminal confiscation in Scotland''.—[Scottish Parliament Official Report, 24 October 2001; Vol. 3, c. 3258–59.]

He then referred to civil recovery.

9.15 am

We know why the Bill was drafted as it was with regard to Scotland. My understanding was that it was drafted in a way that respected and reflected the different Scots law and procedure, and how they have evolved—and in particular, the fact that in the earlier legislation, which this Bill has in some ways extended, the Scots legal principle gave the Scottish judiciary greater discretion than existed south of the border. Mr. Gray was addressing that subject.

I have made inquiries, and Conservative Members of the Scottish Parliament understood that the Bill would maintain the discretionary principle. I hope that that answers the question asked by the hon. Member for Edinburgh, North and Leith (Mr. Lazarowicz),

Mr. Foulkes: I have consulted Iain Gray, and he referred to two topics—Scots law and procedure, and the role of the Lord Advocate. Both of those will be protected and preserved. The legislation does not change them in any way.

We are discussing discretionary and mandatory powers. Before the hon. Gentleman challenges our proposals, he should consult the Conservative spokesperson in the Scottish Parliament, and some of the Conservative Back Benchers. If he does, he will find that they wanted tougher measures.

Mr. Grieve: In the course of the Sewel motion debate, many comments were made that reflected the remarks that hon. Members made on Second Reading. For example, the hon. Member for Glasgow, Pollok (Mr. Davidson) expressed a desire for a tough regime.

I suspect that the Minister has gone off and read about what was said in the Sewel motion debate. If he had not, he would not be doing his job properly.

Mr. Foulkes: I was there.

Mr. Grieve: He was there. In that case, he will agree with me that there was no questioning during that debate. Nobody asked, ''Why does the Scottish confiscation regime give greater discretion to the Scottish judiciary, and ought we not to get rid of that?'' Therefore, the Minister in Scotland could not respond by saying, ''That is a very interesting point, but we can safely leave it to the United Kingdom Parliament at Westminster.''

That debate did not address such issues. It was assumed that the Scottish Executive, Scottish Ministers and the Scottish Parliament were satisfied with the existing safeguards under Scots law and principles, as reflected in the discretionary provisions, which are different from those south of the border.

Mr. Tom Harris (Glasgow, Cathcart): Is it the hon. Gentleman's position that, in the event of a Sewel motion being moved in the Scottish Parliament, the Westminster Parliament, having been given the power to legislate on devolved issues, should not legislate—that it should not make any amendments? Surely the point of the Sewel motion is that we are given the power to legislate, and that includes the power to make amendments.

Mr. Grieve: That is not my position. I made that clear when I referred to the fact that we have the right to amend the legislation.

However, either our discussion is an exercise in nothingness, because it will all make no difference, or there is a good reason why the Government have decided to amend the legislation in a way that has important implications. We discussed them under the England and Wales parts of the Bill , when I suggested that the model for England and Wales was better than that for Scotland.

Mr. Davidson: I am prompted to speak by the hon. Gentleman's mention of an exercise in nothingness. One of the advantages of the Scottish Parliament, as I understand it, is that the new legislature has determined that it will be less ponderous and less repetitious. If the hon. Member for Beaconsfield did not discover all this until last night, that shows that he had not been doing his homework beforehand. It is about time he decided to put up or shut up. Either he is against this or he is not. If he is not, what he is saying is just self-indulgence. We want to make progress and put the legislation into action, and I am clear that the Scottish Parliament has been persuaded by the dialogue that has taken place with our Ministers, and has reflected on the matter. It recognises that the point on which it had agreed could be improved. That is the process of dialogue. It seems perfectly reasonable that that should occur. As the Minister said, that dialogue has been taking place between our hon. Friends and others—I am not sure exactly what the two categories are, but I am sure that we can all decide to place ourselves in one or the other of them.

The Chairman: Order. This is an intervention.

Mr. Davidson: It is indeed, Mr. O'Brien—and a very good one, too.

Mr. Grieve: I would have greater confidence in what the hon. Gentleman said, were it not for the fact that the Minister raised the matter with me about a fortnight ago, and courteously warned me that in trying to pursue the idea of incorporating the Scottish model into the England and Wales model, I might be going off the rails, because the Scottish model was about to be changed. He will not be surprised to hear that I made inquiries of my colleagues in the Scottish Parliament about what was going on. Those colleagues included some who had spoken in the debate on the Sewel motion—and there was a bit of a gap before I was able to speak to them. Yet I was surprised to discover that no one knew that the change was about to be implemented—that there had been an agreement between the Government, the Minister and his Scottish counterparts. It had certainly not been debated in Scotland—

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Prepared 6 December 2001