Proceeds of Crime Bill

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Mr. Grieve: I have a feeling that we are getting into flights of fantasy. The Minister knows my belief in the Union of the United Kingdom and my belief in making devolution work, which has been a personal matter over the past four years in Parliament. I do not take kindly to remarks that associate me with the SNP. Unless devolution is seen to work fairly and transparently, it will play into the hands of the nationalists who wish to destroy its success.

Mr. Foulkes: I understand that. The hon. Gentleman objected to my allusion but I object—my hon. Friends will support me—to his earlier assertion that we made a backroom deal. We could not have been more open and upfront about the matter. I have made statements, held discussions and issued press releases. I do not know whether he sees the Scottish newspapers now that he is no longer a Scottish spokesman, but they have contained details of the change. No one objects to it. I have not received floods of objections from MSPs, except from SNP Members for purely nationalistic reasons. Devolution is about dialogue, partnership and trust between two Parliaments. We are building trust, and consultation with Scottish Ministers is part of that process.

I hope that I have answered the points that have been made. We have dealt with the matter in an open and upfront way and consulted with our colleagues in the Scottish Executive. They want us to move in this direction and there are no objections. The people of Scotland who are represented by my colleagues and me want us to move in this direction. We want a unified system throughout the United Kingdom with no hiding place for drug dealers. That is why the word ''may'' must be changed to ''must''.

Question put, That the amendment be made:—

The Committee divided: Ayes 12, Noes 5.

Division No. 14]

Ainsworth, Mr. Bob Baird, Vera Clark, Mrs. Helen David, Mr. Wayne Davidson, Mr. Ian Foulkes, Mr. George
Lazarowicz, Mr. Mark McCabe, Mr. Stephen McGuire, Mrs. Anne Robertson, John Stinchcombe, Mr. Paul Stoate, Dr. Howard

Field, Mr. Mark Grieve, Mr. Dominic Johnson, Mr. Boris
Tredinnick, Mr. David Wilshire, Mr. David

Question accordingly agreed to.

Amendment made: No. 142, in page 55, line 22, leave out 'if' and insert 'where'.—[Mr. Foulkes.]

Amendment proposed: No. 143, in page 55, line 31, leave out

    'at any time before the accused is sentenced'.—[Mr. Foulkes.]

Mr. Wilshire: I am a little puzzled. I had hoped that we would receive an explanation of the amendment, rather than simply being asked to rubber-stamp it. As an Englishman, I would like to know what is going on in Scotland, as I am asked to approve it.

Mr. Foulkes: This is simply a tidying-up amendment to bring clause 94 in line with clause 6.

Amendment agreed to.

Amendment made: No. 144, in page 56, line 4, leave out 'may' and insert 'must'.—[Mr. Foulkes.]

Mr. Foulkes: I beg to move amendment No. 145, in page 56, line 5, at end insert—

    '(6A) But the court must treat the duty in subsection (6) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the accused in respect of loss, injury or damage sustained in connection with the conduct.'.

The Chairman: With this it will be convenient to take Government amendment No. 148.

Mr. Foulkes: The amendments modify the mandatory scheme by making provision for the protection of victims who are pursuing a claim for damages and reflect the provision in clause 6.

Amendment agreed to.

Amendment proposed: No. 146, in page 56, line 10, leave out 'standard applicable in civil proceedings' and insert

    'balance of probabilities'.—[Mr. Foulkes.]

Mr. Grieve: I appreciate that the Government are trying to bring the Scottish regime in line with that south of the border, so I do not wish to discuss that principle. However, the amendment raises a slightly different issue about tests and the civil standard of proof.

I am not an expert in Scots law and defer to the hon. Members who are, but before we rubber-stamp the amendment, the Committee should know a little more about whether ''balance of probabilities'' is a phrase in common use in Scotland. Does the Minister think that the change of wording will have the same effect as the amendment to the English version, which we have discussed? He may remember that we had strong views on the subject, and I believe that the civil standard, not the balance of probabilities, is the correct test. I should like to hear more from him on that point.

Mr. Wilshire: I want to raise a further matter of principle. Again, this amendment was moved formally. I want the Committee to consider matters properly. It is no disgrace to be an Englishman rather than a lawyer and not to understand the matter. However, I would be grateful if each time the Minister moves an amendment he would do us the courtesy to explain what he wants to change, why he wants that and what it will do, rather than asking us to be rubber stamps. I do not want to raise this point every time we consider an amendment. I hope that raising it this second time will be the last time that it is necessary.

10.15 am

Mr. Foulkes: On Tuesday, I remember that the hon. Gentleman got very agitated—he seems to be getting agitated again—because he implied that I was telling the Opposition how to conduct their business. I am happy to explain anything, but I do not want to waste your time, Mr. O'Brien, or the Committee's. As I explained at the start, about 135 or 136 of the 140 amendments are exactly the same provisions that we have discussed previously at length. I am happy to go through them all again, but that would waste the Committee's time and be boring and repetitive. If Conservative Members want me to make an explanation on specific occasions, I shall do so. However, I do not want to do it automatically, like a machine.

The hon. Member for Beaconsfield—the Opposition spokesman—asked for an explanation on this occasion. The amendment will bring clause 94 in line with clause 6. In a previous debate, my hon. Friend the Under-Secretary explained brilliantly why the test must be used to determine whether the accused has a criminal lifestyle. The phrase ''a criminal lifestyle'' applies to Scotland, and I understand that the meaning of ''balance of probabilities'' and ''beyond reasonable doubt'' are the same in Scotland as in England, so I did not think that I needed to explain that. I respect the hon. Gentleman's position, and if he wants detail at any time, I am happy to give him that.

The House will soon discuss the modernisation of Parliament, which I believe in very strongly, having been a Member for 22 years. Tactics such as filibustering and asking daft questions must be set aside. I respect the hon. Member for Beaconsfield asking sensible questions and I will give him sensible answers.

Mr. Carmichael: Perhaps when the Minister replies, he may confirm my understanding that, apart from in some obscure areas, the standard of proof for civil proceedings in Scottish law is always the balance of probabilities, unless we are dealing with interdict, in which case there may be interdict on the balance of convenience. However, that would not apply to subsections (5) or (6). Does anything in the Minister's brief contradict that?

Mr. Foulkes: No, I can confirm that. In some civil proceedings, such as proceedings for contempt, the standard of proof is beyond reasonable doubt. We want to make it clear that that does not apply to confiscation proceedings.

Mr. Carmichael: Presumably, the point about contempt was made because of the quasi-criminal nature of a finding of contempt, and it would not apply to subsections (5) or (6).

Mr. Foulkes: My hon. Friend—yes, let us be friendly—is absolutely right.

Mr. Grieve: I agree with the Minister that we should not filibuster or make senseless speeches. However, does this situation illustrate the value of stopping and pausing on individual clauses? It appears, from what the hon. Member for Orkney and Shetland said, that the widening of the civil test in English law has not happened to the same extent in Scottish law. That may be a compelling argument for having the words ''balance of probabilities'' in the Scots version, although I had firm views that we should use the civil standard of proof in the version for England and Wales.

It was mentioned that contempt proceedings use different wording on the standard of proof. Surely we are considering something akin to a criminal proceeding, so the wording should be akin to that used in contempt proceedings.

Mr. Foulkes: I agree with the point on procedure. I am happy to enter into dialogues and take interventions, but it is the Opposition's role to determine when it is sensible to do so. We should not have to discuss matters merely as a matter of rote.

I do not want to say, ''This is a technical amendment,'' or ''This would enact similar provisions to those made for England,'' again and again. We are dealing with more than 60 clauses and 140 amendments in one day. It would be sensible—for the Opposition as well as the Government—to concentrate debate on passages in which there are significant differences between Scotland and England and passages that raise issues. I have answered the hon. Member for Orkney and Shetland, who raised that point, and I would be happy to do so again.

Mr. Wilshire: I hear what the Minister says about repeating the same thing time and again. I am not arguing that he should give lengthy, or even medium-length, explanations, but when an amendment is moved it is reasonable to tell us that, for example, the amendment brings provisions into line with each other. I do not believe that that is repetitive: it is sensible, and will help those of us who are not lawyers and not Scots to understand what is going on. If the Minister moves formally and says nothing else, how do we know what the amendment is about?

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