Mr. Ainsworth: We had a brief conversation about that issue when we discussed part 2. A similar provision applies in England and Wales, where the interest rates may vary from time to time. They may vary from time to time in the Scottish system as well, and they are currently set at 8 per cent.
Amendment agreed to.
Clause 118, as amended, ordered to stand part of the Bill.
Interest on unpaid sums
Amendment made: No. 214, in page 72, line 28, at end insert—
'(2A) For the purposes of this section no amount is required to be paid under a confiscation order if—
(a) an application has been made under section 118(4);
(b) the application has not been determined by the court, and
(c) the period of 12 months starting with the day on which the confiscation order was made has not ended.'.—[Mr. Bob Ainsworth.]
Clause 119, as amended, ordered to stand part of the Bill.
Application of provisions
about fine enforcement
Mr. Foulkes: I beg to move amendment No. 215, in page 73, line 18, leave out '214(2)(b) of the Procedure Act' and insert '118'.
This is a drafting amendment. It replaces an obsolete reference to section 214(2)(b) of the Criminal Procedure (Scotland) Act 1995 with a correct reference to clause 118 of the Bill.
Mr. Grieve: I am intrigued by the obsolescence of the Procedure Act. It appears that the discretion it gives to a court in Scotland to extend time to pay is being replaced by a new statutory framework that is reliant on the wording of clause 118. I do not know much about the Procedure Act, which I assume relates to Scotland, but my first reaction was that I was intrigued to find out whether the discretion under section 214(2)(b) for allowing time to pay was greater or less than that allowed by clause 118. I raise that because the Government's intention, as we have discussed, is to bring Scotland in line with England, although not, I would have thought, to marry together the procedures as though they were identical. If that were the case, Scots law might as well be put in the bin.
The Minister said that the section was obsolete, which raised the possibility that section 214(2)(b) does not exist any more. I do not know whether that is true, but I am a little surprised to learn that a provision that no longer exists has been incorporated in a Bill that was published so recently. I assume that his use of the word ''obsolete'' referred to the fact that the Procedure Act was not necessary because the provisions in clause 118, which mirror those in part 2, can be used. If so, I would like reassurance that clause 118 is not more narrowly drafted than the provision on the power of the court under the Procedure Act. If it is more narrow, I want the Minister to justify introducing in this way procedural changes that bring Scots law in line with the Bill. That is different from the debating the question of ''must'' and ''may'', which goes to the heart of the legislation and is not procedural enforcement.
The Chairman: Before I call the Minister, I apologise for my lapse. Hon. Gentlemen may remove their jackets.
Mr. Foulkes: I have known you for 40 years now, Mr. McWilliam, but I did not know that I could read your mind. I can read your mind better than I can read some of these notes.
What I said earlier was not that the Procedure Act was obsolete, but that the reference was obsolete. A correct reference is to clause 118. Time for payment is open-ended under the Criminal Procedure (Scotland) Act 1995; the point of clause 120 is to tighten up the situation. I hope that that helps the hon. Gentleman.
Mr. Grieve: I hope that the Scottish Parliament and Scottish Members are aware of the extent to which, in the perfectly legitimate desire to introduce uniformity, we are not only tackling the substance of the legislation but interfering with procedural differences that may exist north and south of the border. It was right to point that out, and I will continue trying to notice when such changes occur during our scrutiny of part 2.
Mr. Hawkins: Does my hon. Friend agree that, but for his intervention, no one would have known that the Minister was introducing a substantive change. Had my hon. Friend not picked that up, we would have taken the Minister's words at face value, no doubt given to the Committee in all good conscience, that this was purely a tidying-up exercise to remove something that was obsolete. There was a substantial difference between the Minister's initial remarks and what he said after my hon. Friend had picked up the point.
Mr. Grieve: I agree with my hon. Friend. In fairness to the Minister, I suspect, as in the case of so many minor amendments, that he may not have been fully aware of the impact of the change in detail, and it was simply given to him as the way in which the two parts of the Bill were brought together. That highlights the need to pick things up as quickly as possible as we go through the Bill.
Mr. Foulkes: I am astonished that the hon. Gentleman thinks that I do not understand the impact of every one of the clauses in detail. Not all the amendments deal with the ''may'' or ''must'' issue: they do not all relate to bringing Scotland into line with England in terms of mandatory or discretionary. Many are tidying-up amendments, and we have taken the opportunity to table proposals to deal with several other issues.
I intend to say a few additional words that may help the hon. Gentleman on clause stand part.
Amendment agreed to.
Question proposed, That the clause stand part of the Bill.
Mr. Foulkes: The clause provides that confiscation orders shall be enforced in the same way as fines. As at present, enforcement will be carried out by the sheriff clerk—it is different in Scotland, as the hon. Gentleman will understand. Again, as at present, a term of imprisonment for default of payment of a confiscation order is served consecutively to any term of imprisonment for the offence itself.
The provisions are important elements in the confiscation order enforcement regime. To be helpful—it says here ''If pressed'', but I shall say it without being pressed—I recognise that the position is different in Scotland from the rest of the United Kingdom. We want to achieve consistency with the present fine enforcement regime in Scotland. If a person fails to pay a fine, he serves the alternative period of imprisonment. The courts treat a confiscation order in the same way as a fine in terms of the Criminal Procedure (Scotland) Act 1995 and accordingly at present the serving of a term of imprisonment extinguishes the liability to pay a confiscation order.
The different provisions in that respect in parts 2, 3 and 4 reflect settled legislation in the three jurisdictions.
Question put and agreed to.
Clause 120, as amended, ordered to stand part of the Bill.
Conditions for exercise of powers
Amendment made: No. 216, in page 75, line 6, leave out '(7)' and insert '(8)'.—[Mr. Foulkes.]
Clause 121, as amended, ordered to stand part of the Bill.
Restraint orders etc
Mr. Foulkes: I beg to move Government amendment No. 217, in clause 122, page 75, line 33, leave out 'in respect of which the order is made' and insert
'which falls within subsection (4A)'.
The Chairman: With this we may take Government amendments Nos. 218 to 225 and clause stand part.
Mr. Foulkes: Amendments Nos. 217 and 218 prevent funds that are under restraint from being released to pay legal expenses to defend the criminal charges in respect of which the restraint order is made or legal expenses incurred in the confiscation proceedings. Legal aid will be available in the normal way. The amendments bring clause 122 into line with clause 46 in part 2, on which we had an extensive discussion.
Amendment No. 219 is primarily a drafting amendment, and amendments Nos. 220 to 225 are mainly drafting amendments designed to tidy up subsection (7).
Mr. Grieve: I am grateful to the Minister for his explanation. This is another area where the Bill's Scottish and English components differed. On part 2, we discussed extending legal aid and whether someone should be allowed to draw down for legal aid the sums under restraint. That was not allowed and the Minister will remember that I argued that it should be; in the Scottish system, precisely what I argued for was allowed but is now being removed. I think that I have understood correctly that that is what he is saying. The regime was quite different, yet when the Bill was presented it was suggested that the Scottish system was perfectly viable, or the Government would not have gone along with it.
Mr. Hawkins: I know that we are not, at the moment, blessed with the presence of the hon. Member for Glasgow, Pollok—[Hon. Members: ''Oh yes we are.''] He has arrived on cue. You will recall, Mr. McWilliam, if you were in the Chair—and if you were not, I am sure that you will have read about it with interest in Hansard—that the hon. Gentleman was at pains to point out that no money should be spent on lawyers. He is no doubt pleased that the Minister has taken out the provisions that relate to reasonable living expenses and legal aid.
My hon. Friend the Member for Beaconsfield is right to point out that a traditional provision under Scots law is being removed. Have Members of the Scottish Parliament fully considered that provisions for reasonable living expenses and legal aid, which have existed in Scots law for many years, are being taken away? Has the Scottish Parliament been told that an English Minister—albeit one with a Scottish constituency—is planning to do that?
The Chairman: Order. I hope that the hon. Gentleman is not suggesting that the clauses under discussion are ultra vires to Parliament. I assure him that they are not.
Mr. Foulkes: Some 72 Members of Parliament represent Scotland. Some of them are members of the Committee. That is deliberate: it is no accident that there are so many Scottish Labour Members on the Committee. Following the general election, there is one Scottish Tory Member, but the Opposition have not put him on the Committee. Our discussions might have been improved if they had.
The amendment reflects the different legal aid systems in operation north and south of the border. The Bill takes account of that. Legal aid is available for restraint proceedings in Scotland. I hope that the hon. Member for Beaconsfield, at least, will understand the import of that.
Amendment agreed to.
Amendments made: No. 218, in page 75, line 35, at end insert—
'(4A) These offences fall within this subsection—
(a) the offence mentioned in section 121(2) or (3), if the first or second condition (as the case may be) is satisfied;
(b) the offence (or any of the offences) concerned, if the third, fourth or fifth condition is satisfied.'.
No. 219, in page 75, line 36, leave out subsections (5) and (6).
No. 220, in page 76, line 1, leave out from 'affect' to 'property' in line 2.
No. 221, in page 76, line 2, after 'under', insert
No. 222, in page 76, line 3, after '(c.32),', insert '(b)'.
No. 223, in page 76, line 3, after '(c.33),', insert '(c) Article 14 of'.
No. 224, in page 76, line 5, after '(N.I.17)', insert
'(d) section 27 of the Drug Trafficking Act 1994 (c.37)'.
No. 225, in page 76, line 5, after 'or', insert '(e) Article 32 of'.—[Mr. Foulkes.]
Clause 122, as amended, ordered to stand part of the Bill.
Application, recall and variation