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Mr. Foulkes: It would take up the whole morning and afternoon if I were to say that for every amendment, as there are 140 of them.
Mr. Wilshire: That is why we do not have much time to consider them.
Mr. Foulkes: The hon. Gentleman says that we do not have enough time, but he agreed the allocation of time motion. We are getting bogged down on this issue. I have my own understanding of the significant differences, and I intend to speak and enlighten the Committee on those. I hope that the Opposition spokesman, if not his Whip, respects that fact and allows us to spend our time—let us not talk about how we decided the timetable—on issues of interest and importance in which Scotland differs from England, Wales and Northern Ireland.
Mr. Grieve: May I suggest to the Minister that it might be useful if, when we adjourn, he flag up with any member of the Committee which clauses and amendments he thinks sufficiently important for him to address the Committee on. Then we would be forewarned about them. A brief outline of that sort would be helpful.
The Minister must understand the Opposition's anxieties. We do not have the assistance of officials and have to read all the amendments that are presented to us. We worry about whether we might let something that we should have debated go through. If that happened, the Committee would not be doing its job properly. History has consistently shown that Standing Committees let through all sorts of legislation that they should not have.
The Chairman: Order. The procedure is that when the amendment is moved, anyone who wants to speak on the amendment has to opportunity to do so. The same is true of stand part debates and new clauses.
Amendment agreed to.
Clause 94, as amended, ordered to stand part of the Bill.
Clause 95
Time for making order
Question proposed, That the clause stand part of the Bill.
The Chairman: With this it will be convenient to take Government new clause 6—Time for making order.
Mr. Wilshire: I should like some clarification. We are debating clause 95 and new clause 6. I have found Government amendment No. 282 on the amendment paper. Could the Minister, or you, Mr. O'Brien—
The Chairman: The amendment was not selected.
Mr. Wilshire: It is, however, still on the amendment paper, and can therefore be debated. I want the Government to tell the Committee whether they plan to withdraw it, because I am mystified: on the one hand we are being asked to approve the clause, but on the other hand the Government were trying to get an amendment selected that would delete it. I am baffled about what is going on.
The Chairman: The amendment was not selected. However, the Clerk has advised me that the principle behind it can be referred to in the clause stand part debate.
Mr. Wilshire: I am grateful for that advice, Mr. O'Brien.
At one stage, the Government were seeking to scrap the clause, but now—for a reason that has not been revealed—they wish to keep it in. The Minister should explain the reason to the Committee.
The Chairman: The amendment proposed to leave out the clause. The Government will make their decision when the Question is put. However, we are currently engaged in the clause stand part debate.
Mr. Field: My hon. Friend's comments lead me to assume that nothing of great importance is contained in the clause, or in the Government's new clause. However, I wish the Minister to explain why initially the entire clause was deleted, and subsequently new bits were inserted.
Mr. Foulkes: I think that you have explained the procedure to Opposition Members, Mr. O'Brien. I wish to explain the new clause.
New clause 6 brings clause 95 into line with clause 7 in part 2. It is, however, qualified by clause 103, which allows the court to proceed to sentence the accused when the confiscation proceedings have been postponed. Although a court is empowered to make a confiscation order before it passes any other sentence, the normal practice will continue to be for the court to postpone consideration of a confiscation application until such time as all the necessary information is available and the parties are in a position to proceed to a final hearing.
However, even when a confiscation hearing is postponed, the court cannot impose a fine or make a compensation order until the amount of the order is determined. The new clause makes it clear that a confiscation order must be made before an accused is sentenced, in a case where there is no postponement under clauses 102 and 103. Thus, the court will make the confiscation order before imposing a fine on the accused, or any other order involving payment, other than a compensation order. That will ensure that a confiscation order takes priority over any other financial punishment, except the payment of a compensation order to a victim.
The Committee will have to vote against clause stand part, so that the new clause can be inserted in its place.
Mr. Wilshire: I am even more mystified now. The Minister said that I now understand the procedure, but it was not the procedure that was concerning me—it was why this is happening. I am halfway towards understanding what is going on, but perhaps I am in the wrong frame of mind, because I seek further clarification. Is it the case that, although the amendment has not been selected, the Government are inviting us to do what the amendment says? If that is the case, it is a most peculiar way of going about business.
Mr. Grieve: The clause allows for a mechanism to prevent the making of the confiscation order before the imposition of a fine or the making of an order involving a payment. The Government decided to take that out, but subsequently changed their mind. Instead, they substituted new clause 6, which I assume will be tagged on to the end of clause 95—although we have not been told about that.
Mr. Carmichael: That was my understanding until the Minister said that he would be inviting the Committee to vote against clause stand part. I am now as bamboozled as the hon. Gentleman.
10.30 am
Mr. Grieve: It may be that the Minister intends to invite us to get rid of clause 95 and substitute new clause 6. If that is so, I do not understand why the Government did not substitute new clause 6 for the clause in the first place. Perhaps such matters are procedural and must be dealt with by the Clerks, which is why the problem has arisen. However, it has caused confusion.
The Chairman: I am advised that the Government wish to remove the clause and introduce a new one at a later stage. It is a matter of procedure. They are saying that the Question will be put on clause stand part. Is any further clarification needed?
Mr. Wilshire: On a point of order, Mr. O'Brien. I thank you for explaining what the Government are doing, given that they do not seem to be able to explain their actions themselves.
The Chairman: I have the advantage of being advised by the Clerk.
Mr. Foulkes: The Government are perfectly aware of what they are doing, but I am not sure about the technicalities and procedures in Standing Committees. Thank goodness we have excellent Clerks to advise excellent Chairmen on how to proceed.
Question put and negatived.
Clause 95 disagreed to.
Clause 96
Recoverable amount
Amendment made: No. 148, in page 56, line 32, at end insert—
'(2A) But if section 94(6A) applies the recoverable amount is such amount as—
(a) the court believes is just, but
(b) does not exceed the amount found under subsection (1) or (2) (as the case may be).'.—[Mr. Foulkes.]
Mr. Foulkes: I beg to move amendment No. 149, in page 56, line 36, after '297', insert '(2)'.
Mr. Carmichael: On a point of order, Mr. O'Brien. I seek your guidance. I heard you refer to amendment No. 148. I understood that that was an amendment to clause 94, with which we have already dealt.
The Chairman: We debated Government amendment No. 148 with Government amendment No. 145, but it amends clause 96. It has already been debated, so I called it formally and it has been approved. We come now to amendment No. 149.
Mr. Foulkes: This is a technical amendment that is designed to ensure that the correct cross-reference is to clause 297(2), which deals with the forfeiture of cash.
Amendment agreed to.
Clause 96, as amended, ordered to stand part of the Bill.
Clause 97 ordered to stand part of the Bill.
Clause 98
Available amount
Mr. Foulkes: I beg to move amendment No. 302, in page 57, line 38, leave out from 'date' to end of line 41.
The amendment deletes an unnecessary provision and brings clause 98 into line with clause 10 under part 2. Sufficient safeguard for secured creditors is provided for under clauses 123 and 134(3)(a).
Amendment agreed to.
Clause 98, as amended, ordered to stand part of the Bill.
Clause 99
Assumptions as to benefit from
general criminal conduct
Mr. Foulkes: I beg to move amendment No. 150, in page 58, line 3, leave out 'may' and insert 'must'.
The Chairman: With this it will be convenient to take the following: Government amendments Nos. 151 and 152.
Clause stand part.
Government amendments Nos. 161, 162, 173, 179 and 185.
Mr. Foulkes: Amendment No. 150 places a requirement on the court to make the various assumptions set out under the clause as to benefit from general criminal conduct. Amendment No. 152, however, makes it clear that the court must not make the assumptions if there would be a serious risk of injustice if it did so.
Amendments Nos. 161 and 162 place an obligation on the prosecutor when he or she believes that there would be a serious risk of injustice if the court made an assumption under the clause to provide information that he or she believes is necessary to enable the court to decide on the matter. That reflects the provision in clause 17.
Amendment No. 173 imposes a requirement on the court to proceed under clause 94 in respect of reconsidering a case when no order was originally made. That reflects the provision in clause 20.
Amendments Nos. 179 and 185 respectively impose a requirement on the court on the application of the prosecutor to reconsider benefit if no application has been made under clause 95, and to reconsider benefit when an order has been made but more benefit has come to light.
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