Mr. Ainsworth: I beg to move amendment No. 190, in page 67, line 33, leave out 'an amount not exceeding'.
Mr. Grieve: I assume that the Minister is right to move the amendment. It takes the Committee back to similar points that were raised by the hon. Member for Orkney and Shetland.
My mind might be getting befogged by looking at too many clauses, but is it not the case that, under the England and Wales part, it was still possible for the confiscation order to be an amount ''not exceeding'', rather than having to be exactly that amount? Are we not in danger of getting rid of even the England and Wales discretion, or have I misunderstood the position, or is my recollection at fault? I do not see that it is necessary to get rid of those words to bring the provisions north and south of the border in line, but I might be wrong about that. It strikes me that this is taking things too far.
Mr. Wilshire: My hon. Friend has raised a valid point. I do not see the objections to discretion within a mandatory system—which the system now is, although I accept the Ministers comments. The system is mandatory in Scotland, as well as in England. We have debated that. I raised the point about an amount ''not exceeding''. Why does this discretion need to go beyond what—or so I thought—is the English situation?
Mr. Ainsworth: I assure hon. Members that we are not going any further than the English system. This may be complicated because of the amount of amendments, but we are bringing the Scottish provisions in line with English provisions. We do not intend to move further towards a mandatory system in Scotland than in England. We have flagged up those passages of part 3 that differ from the English system, and subsection (1) is not one of them. I assure the hon. Gentleman that that is the case.
Amendment agreed to.
Amendments made: No. 191, in page 68, line 7, leave out 'unless the order has' and insert 'and has not'.
No. 192, in page 68, line 10, at end insert—
'(c) any order which has been made against him in respect of the offence (or any of the offences) concerned under section 249 of the Procedure Act.'.
No. 193, in page 68, line 10, at end insert—
'(4A) But in deciding what is just the court must not have regard to an order falling within subsection (4)(c) if a court has made a direction under section 100(6).'.—[Mr. Ainsworth.]
Clause 110, as amended, ordered to stand part of the Bill.
Inadequacy of available amount
Mr. Bob Ainsworth: I beg to move amendment No. 194, in page 68, line 16, leave out 'or discharge'.
The Chairman: With this it will be convenient to take the following: Government amendment 195.
Clause stand part.
Government amendments Nos. 261 and 262.
Government new clause 7—Inadequacy of available amount: discharge of order (No. 2).
Mr. Ainsworth: The clause ensures that when the courts have made a confiscation order and it transpires that the available amount is insufficient to pay it, the accused or the prosecutor can apply to the court to have the order varied or discharged. It would be more appropriate to have separate clauses to deal with variation and discharge, as is provided in part 2 by clauses 24 and 25.
The clause is not drafted as clearly as it might be. The amendments would leave no doubt as to which provisions apply to the variation, and which to the discharge. Amendments Nos. 194 and 195 amend the clause so that it deals only with variation. Amendments Nos. 261 and 262 are drafting amendments. New clause 7 has a similar effect to clause 25, in part 2.
Mr. Wilshire: I am a little perplexed. When we discussed amendment No. 190, it was argued that there should be no discretionary powers, and the provision should be mandatory. Amendment No. 195 has caught my eye. It states:
''vary the order by substituting for the amount required to be paid such smaller amount as the court believes is just.''
That may bring the Scottish provisions in line with those for England, but if the argument for amendment No. 190 was that we should not have the flexibility to vary the amount, why are we now asked to allow the court to order
''such smaller amount as the court believes is just''?
Amendment No. 195 will make the amount adjustable, and that is the opposite effect to that of amendment No. 190. I am curious about that difference.
Mr. Grieve: I hazard the suggestion—although I should be interested to hear from the Minister—that the Scottish system was very simple. As that system was discretionary, legislation did not spell out what the courts could do in the same detail as south of the border. It is interesting how ponderous the clauses have become now that the Minister has decided to move away from the discretionary system. He has had to amend clause 111 and introduce new clause 7—which my hon. Friends may need to consider—in order to set down rigorously what the court may do when carrying out a variation or discharge. The amendments show that if something is to be made mandatory, it is necessary to expend much more time, effort and words on it.
Mr. Wilshire: I am most grateful to my hon. Friend. If he perseveres, he will make a lawyer of me yet.
Mr. Ainsworth: He may also make you less perplexed.
Mr. Carmichael: On new clause 7, will the Minister explain what is meant in new subsection (2)? I would—
It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at half-past Two o'clock.
The following Members attended the Committee:
O'Brien, Mr. Bill (Chairman)
Ainsworth, Mr. Bob
Clark, Mrs. Helen
Field, Mr. Mark
Harris, Mr. Tom
Johnson, Mr. Boris