Proceeds of Crime Bill

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Mr. Davidson: Although I am prepared to concede the point about legal expertise, I must make the point that I have a much larger majority than the hon. Member for Orkney and Shetland. I prefer the vote of the people to legal expertise.

Mr. Grieve: I am very respectful of the will of the Scottish people as expressed in setting up the Scottish Parliament. Until I am persuaded that we are doing the will of the Scottish Parliament—

Mr. Davidson: For or against?

Mr. Grieve: I shall oppose the amendments.

Mr. Carmichael: The hon. Member for Beaconsfield has accused me of making uncalled-for remarks. I merely observe that if I were less generous, I might express pleasure and relief that he had decided to be brief today—but of course, Liberals are far too nice to make such a cheap point; I leave that to the likes of the hon. Member for Glasgow, Pollok.

The Scottish Parliament was perfectly aware of the procedure that would be followed in the House when it made the decision to pass a Sewel motion. It knew that the Bill would be scrutinised. Indeed, I expect that the Scottish Parliament would want the Bill to be scrutinised in Committee and would want a full discussion of amendments. It would want the Committee to make necessary amendments, as it would have done if it had dealt with the matter itself.

My understanding is that a Sewel motion is not for ever—perhaps the Minister will confirm that later. The motion merely relates to this one Bill. If the end result is fundamentally at variance with the will of the Scottish Parliament, it could always pass further legislation to amend what we produce.

I have a mandate from a Scottish constituency, and so do some Labour Members—and we are entitled to express views about the Bill in this place. There is a degree of opportunism in the Conservatives' position both here today and as it is reported to us from the Scottish Parliament. If the hon. Member for Beaconsfield still has the Official Report of the Scottish Parliament debate on the Sewel motion on 24 October in front of him, he may be able to tell us whether Lord James Douglas-Hamilton or Phil Gallie thought that the issue was of such fundamental importance that they raised it in the debate.

Mr. Grieve: I explained earlier that the question about the differences between the Scottish and English regimes predated the Bill, which extends the principles that gave the Scottish judiciary a greater measure of discretion. As I think the hon. Gentleman will accept, he commended that greater discretion to the Committee in previous debates. Those principles were not touched on, and there is no reason why they should have been, as the difference was clearly set out in the Bill, and nobody said that the Bill should not be different in respect of Scotland and England.

Mr. Carmichael: No, but if the principles were considered to be so important, one would have expected Conservative Members of the Scottish Parliament to feel it necessary to highlight them. They did not do so.

Mr. Hawkins: The hon. Gentleman's point does not stand up if one analyses it logically. If a particular piece of legislation simply extends an existing regime, and nobody from the Government side says that that regime is about to be changed, why on earth should Opposition Members, in any legislature, talk about something that they regard simply as a continuation of the existing regime, especially as the hon. Gentleman himself has praised the discretionary principle in this Committee?

Mr. Carmichael: As might have been said to Captain Kirk of the Starship Enterprise, ''It's logic, Jim, but not as we know it.'' If the principle was considered important, one would have expected Conservative Members to raise it. They did not do so. The fact that they are now seeking to make hay on this point smacks of opportunism; I put it no stronger than that.

Mr. Grieve: The hon. Gentleman has asked a specific question about what was said in the debate. There was an intervention by David McLetchie about compatibility with the European convention on human rights. He pointed out that in Scotland, if a Bill is incompatible with the ECHR it can be struck down by the courts, whereas that is not the case with legislation passed at Westminster. When one considers the exchange with Iain Gray, it is apparent that one of the anxieties being flagged up by my Scottish colleagues was whether the legislation was ECHR-compatible, and if it were not, the possibility that that would cause problems that Scotland would have to deal with later. Therefore, the matters of principle that we discussed in our earlier debates were touched on.

Mr. Carmichael: That may be a point of principle, but it is completely different from the one that we are discussing at the moment. The hon. Gentleman has already referred to the fact that when we discussed the provisions in relation to England and Wales, I was clearly in favour of the courts having discretion. I remain of that view. It is necessary for the courts to have discretion in such matters.

Not only did we not demur on Second Reading, I specifically raised the point in an intervention on the Minister at the conclusion of the Second Reading debate, and during the course of the contribution made by the hon. Member for Edinburgh, North and Leith. I think that I am right on this matter, and that others are profoundly wrong. If Ministers in the Scottish Parliament have been persuaded that no discretion should be given to the court, they too are wrong. However, we have had that debate, and I lost it. There is now a strong argument to be made for uniformity of provision throughout the United Kingdom; I make no bones about that.

I think that it was the hon. Member for Beaconsfield who, rightly, said that we should respect the wishes of the Scottish Parliament. I believe that he also used the phrase, ''institutional significance.'' If a fundamental point of institutional significance were at stake—if, for example, a decision about which court might deal with certain matters were involved, or a proposal for the creation of a new species of court, or judge—I would be prepared to tell the Scottish Parliament that we would look at the issue again. However, that is not what we are dealing with. We are dealing with whether a court has discretion. That is the sort of matter that arises almost routinely with regard to legislation, so we should not be prepared to die in a ditch for the sake of it.

I am in favour of the courts having discretion, but I have not decided how I will vote if the hon. Gentleman pushes the matter to a Division. I might abstain because, although I disagree with the broad thrust of his argument, I am not prepared to accept that the discretion of the court should be diminished.

9.45 am

Mr. Grieve: In view of the principled positions that the hon. Gentleman has previously taken, I understand why he might feel delicately situated with regard to the matter under discussion. As he is a Scots lawyer, I ask him: is it not the case that the way in which the existing clauses are worded is compatible with the sort of practice that one would expect to find in the Scottish courts, in terms of the discretion given to the judiciary?

Mr. Carmichael: Yes—and the amendment will change that. However, given that this will be a United Kingdom piece of legislation, and there will be a very different regime south of the border, there is a strong argument for uniformity of provision.

It ill behoves people outwith the Committee, particularly members of the Scottish National party, who made no effort to join it and endure the work load that those of us who have joined it have endured—when I say ''endured'', I mean endured—to criticise the Committee for taking a different position, or the Scottish Executive for changing its initial position.

Mr. Mark Field (Cities of London and Westminster): I wish to discuss a couple of issues of principle. It has been decided that the Committee will address such matters at this juncture, rather than during the rest of today's proceedings.

I endorse the remarks of my hon. Friend the Member for Beaconsfield. He has hit the nail on the head. I understand the reasons behind the Sewel motion, and why we are looking at it: there is a wish to avoid loopholes, and to think about whether there should be subtle or fundamental differences between the regimes in England and Scotland.

I also take on board the comments of the hon. Member for Glasgow, Cathcart (Mr. Harris)—

Mr. Foulkes: The hon. Gentleman is talking about differences between England and Scotland, but he should be talking about differences between England, Wales and Northern Ireland—three parts of the United Kingdom—and Scotland.

Mr. Field: I am happy to stand corrected on such constitutional matters.

Mr. Foulkes: This is important.

Mr. Field: I understand that. Perhaps I should have said, ''between the two sovereign Parliaments.''

The hon. Member for Glasgow, Cathcart talked about loopholes. There are loopholes with regard to matters such as student funding, and care for the elderly, to which nobody on the Government Benches seems greatly to object. However, a fundamental issue is at stake. I believe that further Bills will be introduced—

Mr. Harris: Does the hon. Gentleman believe that Scottish society is as much at threat from the prospect of an exodus of English pensioners heading north as from an exodus of English criminals?

Mr. Field: My insider-dealing taxpayers in London will have to subsidise that additional expenditure in Scotland, through the Barnett formula and other measures.

Mr. Davidson: Will the hon. Gentleman clarify how many of his insider-dealing taxpayers—

The Chairman: Order. We are discussing confiscation orders for Scotland under part 3 of the Bill and the very narrow amendments tabled to it. I ask hon. Members to stick to the amendments.

Mr. Field: Thank you, Mr. O'Brien. We are considering issues of principle. Clearly, we are in a destabilised state within the United Kingdom. I greatly regret that, but we may have many more Bills coming through this way. It is regrettable that the Scottish Parliament has not taken it upon itself to deal with such amendments, although I understand the intention, which is to ensure that there is a uniform pattern within both Parliaments. We will discuss that in some detail—although I have the same reservations as my hon. Friend the Member for Beaconsfield, and I wonder whether it is our place to discuss those matters in any detail, particularly as we are unaware of what Members of the Scottish Parliament had in mind when they passed the responsibility down. Later in the debate I may return to one or two specific matters, but at this juncture we should simply touch on issues of principle.

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