Mr. Foulkes: That is an interesting question, and as the hon. Gentleman was raising it, I was thinking about it. In England and Wales, we have changed the wording. The old legislation was the same as the Scottish legislation and referred to the consideration. I ask him to think about the matter. The denominator is the value of the consideration provided by the accused. What if he stole it?
Mr. Grieve: Precisely.
Mr. Foulkes: So if we say the denominator is the value of the property when the accused obtained it, we still have the value, even if it was obtained without his providing a consideration.
Mr. Grieve: The Minister is right. That is why, when prefacing my remarks, I said that the English system may be preferable. I accept that some criminal property may have been obtained for no consideration whatever. However, in cases when consideration had been paid, the possibility arises for a defendant to pay what he considers to be the genuine market value, which may differs from an external valuer's valuation, so that there are two different figures. I am not aware of the Scottish system, as reflected in the clause, having previously caused problems for the courts. It was a probing amendment, especially in the light of the wider issues in respect of the valuation of tainted gifts.
Mr. Davidson rose—
Mr. Grieve: I cannot give way. I am making an intervention.
Mr. Foulkes: The new wording is better than the old wording. I am glad that the hon. Gentleman raised that matter, because it has livened up a dull Thursday afternoon.
Mr. Davidson: The point that I had hoped to raise in an intervention relates to the price paid and the valuation. I am thinking about Sotheby's, which is particularly appropriate at the moment. On Tuesday, the hon. Member for Beaconsfield advertised Sotheby's. He said:
''A defendant obtains £1 million as the proceeds of crime. On the advice of Sotheby's, he purchases a painting that he believes is worth £1 million.''—[Official Report, Standing Committee B, 4 December 2001; c. 478.]
Was the hon. Gentleman aware that a member of Sotheby's staff currently faces jail over a commission-fixing scandal? Would that affect his view whether—
The Chairman: Order. The hon. Gentleman made an interesting point but it is irrelevant to this part of the Bill. As far as I am aware, the gentleman concerned is not resident in Scotland.
Amendment agreed to.
Amendments made: No. 254, in page 88, line 23, leave out '(8)' and insert '(9)'.
No. 255, in page 88, line 26, leave out '(8)' and insert '(9)'.
No. 256, in page 88, line 27, leave out 'consideration provided by the accused' and insert
'property at the time the accused obtained it'.—[Mr. Foulkes.]
Value: the basic rule
Amendment made: No. 257, in page 88, line 37, after 'time' insert
'ignoring any charging order under a provision listed in subsection (3A).
(3A) The provisions are—
(a) section 9 of the Drug Trafficking Offences Act 1986 (c.32);
(b) section 78 of the Criminal Justice Act 1988 (c.33);
(c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 199/2588 (N.I. 17));
(d) section 27 of the Drug Trafficking Act 1994 (c.37);
Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).'.—[Mr. Foulkes.]
Clause 145, as amended, ordered to stand part of the Bill.
Clause 146 ordered to stand part of the Bill.
Value of tainted gifts
Mr. Foulkes: I beg to move amendment No. 258, in page 89, line 28, leave out subsections (3) and (4).
Clause 147 deals with the value of tainted gifts. The amendment will delete subsections (3) and (4) because they are inconsistent with the rules about the value of tainted gifts in subsections (1) and (2). It will bring clause 147 in line with clause 81 in part 2.
Mr. Grieve: Perhaps I will not talk as quickly as the Minister. The subject is of legitimate wider interest to the Committee and I am intrigued about the way in which the Scottish system operated. The situation is rather like looking at a priceless work of literature that is about to be burned and wondering whether there is any use that can be derived from it before it goes and we would have to go into the deep archives to resurrect it. [Interruption.]
The Chairman: Order. Conversation is breaking out in the Committee. Some hon. Members are getting demob happy. I tell the hon. Member for Beaconsfield that I have read more interesting priceless works of literature than this Bill.
Mr. Grieve: Subsection (3) states:
''Where the recipient of a tainted gift of money shows, on the balance of probabilities, that all or any part of the money has not been used to purchase goods or services or to earn interest or any other return, the value of the gift or, as the case may be, that part of it is to be taken as the face value of the money or part of the money.''
Although that is bizarrely worded, it suggests that the Scots have a system in which, if a person received a tainted gift—we discussed this matter at great length on Tuesday—they would not to have to make good the shortfall at the time that the gift was handed back. I may be wrong about that, but it would happen if subsection (3) were not deleted. Could that assist us when we consider ways in which to improve the Bill, which the Minister has undertaken to do?
[Mr. Ian Davidson in the Chair]
Similarly, subsection (4) states:
''In deciding the value of a tainted gift the court may disregard the amount, or part of the amount, of the gift if it considers it improbable that the amount or part could be realised.''
That is an added protection for the recipient of a tainted gift when a valuation is made.
I ask the Ministers to consider whether this little bit of Scottishness that is about to be disposed of could assist us in examining how we may temper the full force and rigour of the law on tainted gifts. I am conscious that I may not have fully understood the purpose of subsections (3) and (4). However, it would be useful for us to pause and consider the matter before the subsections disappear.
Mr. Hawkins: I simply follow up what my hon. Friend said. I have compared clauses 81 and 147. When the Minister responds, will he expand on what he said when he moved the amendment?
[Mr. John McWilliam in the Chair]
The Minister said that subsections (3) and (4) must be removed because they are inconsistent with subsections (1) and (2). If that is the case, I do not understand what subsections (3) and (4) were doing in the Bill in the first place. If they were already inconsistent with subsections (1) and (2), we are not simply tidying up, and nor are we moving the Scottish system back towards the English system. He seems to be saying that subsections (3) and (4) should never have been in the Bill in the first place. There are no equivalent subsections in clause 81, either. Either subsections (3) and (4) should never have been included, or there is a more expansive explanation than the one that the Minister has given. My hon. Friend the Member for Beaconsfield is right to think that there is more to the matter than mere inconsistency; we may be about to lose what my hon. Friend rightly calls a little piece of Scottishness. [Interruption.]
Mr. Davidson: I really do not know why the Chairman allowed you to speak on this subject. You seem to be belabouring the point about Scottishness that the hon. Member for Beaconsfield made so much work of earlier. The fact that the Scottish legal system was written so strongly into the Act of Union is one of the earliest and best examples of the self-interest of the Scottish lawyers who determine public policy. That is not necessarily something to be commended.
Mr. Hawkins: The hon. Gentleman has, unwisely, repeatedly referred to the Chairman. He probably meant me, not the Chairman, when he used the word ''you''.
The Chairman: Order. I think that the hon. Gentleman was referring to himself.
Mr. Hawkins: He said that he did not know why the Chairman allowed me to speak, and subsequently referred to ''you''. I think that he was referring to me then, and not to you, Mr. McWilliam. In a sedentary comment, my hon. Friend the Member for Beaconsfield rightly said just now that the hon. Member for Glasgow, Pollok (Mr. Davidson) could be described as a little piece of Scottishness himself.
Mr. Foulkes: The previous few exchanges were almost as confusing as the reason why the content of subsections (3) and (4) is included in clause 147 but not in clause 81. We are certainly not burning books. In fact, as Christmas is approaching I was delighted to see that the hon. Member for Henley is signing copies of his book. I hope that there will be presents for all of us.
Mr. Field: I fear that if my hon. Friend were to give all of us copies, he would have to double the print requirement.
Mr. Foulkes rose—
Mr. Hawkins: Will the Minister give way?
Mr. Foulkes: If the hon. Gentleman can better that intervention, I shall certainly give way to him.
Mr. Hawkins: On a visit to my local bookshop in Camberley, I noticed that there was only one copy left of the excellent book written by my hon. Friend the Member for Henley. On a second visit, even that last copy had gone. Contrary to the belief of my hon. Friend the Member for Cities of London and Westminster, my hon. Friend's great work is undoubtedly becoming a bestseller.
The Chairman: Order. For the sake of clarity, is the hon. Gentleman telling the Committee that he did not buy the book himself?
Mr. Foulkes: We hope that if we do receive the books, they will not be tainted gifts—I said that just to prove that the discussion is in order, Mr. McWilliam.
Mr. Davidson: I hope that the hon. Member for Henley is not signing his books before he colours them in.