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Mr. Foulkes: I beg to move amendment No. 226, in page 76, line 14, leave out paragraph (b).
The Chairman: With this it will be convenient to take the following: Government amendments Nos. 227 and 228.
Clause stand part.
Government amendment No. 229.
Mr. Foulkes: This is a drafting amendment. Subsection (1)(b) is redundant, as there is no order-making power in clause 122(4). Amendment No. 227 is a drafting amendment designed to make it clear that any person who is affected by the order can apply to the court to have it recalled or varied. Such persons include not only the person against whom the order was made but also a third party who may not be specified in the restraint order. A third party might, for example, have a legitimate claim to property referred to in the restraint order and might be unable to gain access to it because of the restraint order.
Amendment No. 228 deletes subsection (11) because it is redundant, by virtue of the obligation placed on the prosecutor by subsection (3) to notify every person affected by a restraint order. Amendment No. 229 is similar to amendment No. 227, and amends clause 124 to make it clear that any person affected by a restraint order—not any person with an interest in it—can appeal to the Court of Session. I hope that that is clear.
3.30 pm
Mr. Hawkins: I have a brief, but important, point to make. My hon. Friend the Member for Beaconsfield and I, along with many other Committee members, argued for the protection of entirely innocent third parties when we dealt with earlier clauses relating to England and Wales—we will discuss Northern Ireland later. The Government ensured that those protections were voted down.
In recent debates, the Government have made a feature of trying to bring the procedures in Scotland in line, as much as possible, with those in England, Wales and Northern Ireland. That has been the Ministers' consistent theme, and they have been supported by their Back Benchers. The Government are now proposing provisions to protect innocent third parties. It would appear that they think that such third parties need protection in Scotland but not in England.
That is outrageous. Perhaps there is a connection with what the Minister was saying a short while ago about the number of Scottish Labour Committee members. I agree that entirely innocent third parties in Scotland should be protected, but why should not such people receive protection in England? It is outrageous that the Government spoke against—and even voted down—our proposals to protect innocent third parties south of the border.
It is incumbent on the Minister to reply to that point now and subsequently to write to me—and to other Committee members—to explain what possible justification there can be for providing protections for innocent third parties north of border, given that the Government voted us down when we sought to introduce them south of the border.
Mr. Foulkes: I do not understand that point. After the amendments are made—which I hope they will be—the situation in Scotland will be the same as in England and Wales.
Amendment agreed to.
Amendments made: No. 227, in page 76, line 19, leave out 'having an interest' and insert 'affected by the order'.
No. 228, in page 76, line 39, leave out subsection (11).—[Mr. Foulkes.]
Clause 123, as amended, ordered to stand part of the Bill.
Clause 124
Appeals
Amendment made: No. 229, in page 77, line 3, leave out 'having an interest' and insert 'affected by the order'.—[Mr. Foulkes.]
Mr. Foulkes: I beg to move amendment No. 303, in page 77, line 7, leave out subsections (3) and (4).
Subsections (3) and (4) are unnecessary. They are already covered by section 40 of the Court of Session Act 1998, which makes provision about the competency of appeals from the Inner House to the House of Lords.
Amendment agreed to.
Question proposed, That the clause stand part of the Bill.
Mr. Grieve: I wish to return to an important issue that was canvassed by my hon. Friend the Member for Surrey Heath. Is the change of wording to a person ''affected'' from one that has ''an interest'' simply a change in wording, or does it have an impact on the sort of person who could make the application?
We have addressed the matter before, but in this context it refers to appeals. One can imagine circumstances in which a person affected by the order, which is how they will be referred to in the clause, is more restricted than a person who has an interest in the property. Someone might have a contingent interest in the property, which means that, although the seizure of the property at the time of the restraint order did not affect him, he had an interest in it that would have enabled him to be heard under Scots law, but not now that we are changing to the English wording, which is more restrictive.
I assume that that is not the case. It would be useful if we could have an assurance from the Minister. Has he received advice that we are not restricting the sort of person who can apply, especially if we are moving away from an expression that is well known in Scots law to something that is not?
Mr. Foulkes: This is a genuine point and not just a matter of semantics. It might help the hon. Member for Surrey Heath if I make it clear that the amendment widens the category of person who can make an application, but the court will have to act in accordance with clause 134.
Mr. Hawkins: I am grateful that the Minister has moderated his tone since he responded on the previous group of amendments. I spoke about an amendment grouped under the previous clause but relating to this clause, and the Minister's reply was that he did not understand my point; I think that he does now. I am concerned to protect entirely innocent third parties. We should always consider the way in which legislation might accidentally affect entirely innocent third parties. That has been a concern of mine throughout our debates.
The Minister said earlier that the position would be absolutely the same north and south of the border. He asserts that, but the provisions for appeals in clause 124 necessarily relate to cases brought before the Court of Session, and we understand that Scots law is different. If he cannot answer in detail now, I would be grateful if he would be prepared to write to me—I do not know if other members of the Committee are interested—to set out exactly how innocent third parties will be affected by the procedure north and south of the border. That is not an unreasonable request, given that this is a Government amendment and that we are genuinely concerned about the rights of innocent third parties. I need to be reassured that my constituents will not be disadvantaged in comparison with people north of the border.
Mr. Foulkes: It is a genuine point, and it was also raised by the hon. Member for Orkney and Shetland. The intention is that the clause should operate in the same way north and south of the border. In the light of the repetition of the question by the hon. Member for Surrey Heath, I will double-check. If there is anything different from what I have said, I will write to him. If what I have said is confirmed, I hope that he will not mind if I just leave it at that.
Question put and agreed to.
Clause 124, as amended, ordered to stand part of the Bill.
Clause 125
Inhibition of property affected by order
Mr. Foulkes: I beg to move amendment No. 230, in page 77, line 17, leave out from ''order'' to end of line 18.
Amendment No. 230 is similar to amendment No. 226. It is a drafting amendment that removes clause 125(1)(b), which is redundant as there is no order-making power in clause 122(4).
Amendment agreed to.
Clause 125, as amended, ordered to stand part of the Bill.
Clause 126 ordered to stand part of the Bill.
Clause 127
Restraint orders: administrators
and seizure
Mr. Foulkes: I beg to move amendment No. 231, in page 78, line 36, leave out subsections (5) to (7).
The Chairman: With this it will be convenient to take the following:
Government amendment No. 232.
Clause stand part.
Clause 128 stand part.
Government amendments Nos. 233 to 239.
Clause 129 stand part.
Clause 130 stand part.
Government amendments Nos. 241 to 244.
Clause 131 stand part.
Government amendments Nos. 245 to 248.
Clause 132 stand part.
Clause 133 stand part.
Government amendment No. 249.
Clause 134 stand part.
Clause 135 stand part.
Government amendment No. 250.
Clause 136 stand part.
Clause 137 stand part.
Government amendments Nos. 268 and 305.
Schedule 2 be the Second Schedule.
Government amendment No. 304.
Clause 138 stand part.
Government amendment No. 257.
Government new clause 2—Seizure.
Government new clause 3—Recall and variation of order.
Government new clause 4—Appeals.
Mr. Foulkes: My hon. Friend the Member for Stirling (Mrs. McGuire) says little in Committee, but what she does say is welcomed, because she always moves the Adjournment of the Committee. When she read that list of clauses, Government new clauses and amendments and so on, she asked me whether the provisions were controversial or just complicated. I think that they are just complicated and I hope that I am not proved wrong by Opposition Members. Let us see whether we can deal with all the provisions together, because they are technical.
The main purpose of Government amendment No. 231 and Government new clause 2 is to provide a free-standing provision to enable constables to seize restrained property to prevent its removal from Scotland. The provisions of clause 127(5) and (6) are therefore set out in the new clause. Subsection (7) covers the right of a prosecutor or any other person affected by the appointment of an administrator to apply to the court to have the order recalled or varied. That has also been moved to a separate new clause—new clause 3.
Government amendment No. 232 sets out the powers to be given to management administrators. They manage property that is under a restraint order prior to a confiscation order being made. The amendment brings clause 127 into line with clause 49 in part 2, which deals with management receivers. We had a debate on that, as you will recall, Mr. McWilliam. Once a confiscation order has been made, enforcement passes to the enforcement administrator, provision for whom is made in clause 129. Schedule 2 sets out further provisions for management and enforcement administrators.
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