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Baroness Buscombe: I thank the Minister for his response which I accept with pleasure. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 100 not moved.]

Clause 94 agreed to.

Clause 95 [Time for making an order]:

On Question, whether Clause 95 shall stand part of the Bill?.

Lord Rooker: Later, I shall ask the House to delete this clause. Before doing so, I shall speak to Amendment No. 110A. This amendment and others mirror amendments already agreed to by your Lordships' House when we discussed Part 2 of the Bill. The equivalent of Clause 7 in Part 2 of the Bill has already been deleted and the related amendments arise out of concerns expressed in the other place about the drafting of the postponement provisions.

As presently drafted, Clause 95 states that a confiscation order must be made before sentence. However, that is subject to Clause 103, which makes it clear that if confiscation proceedings are postponed

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under Clause 102, a confiscation order may be made after sentence. In practice, confiscation proceedings are usually postponed and the sentence will normally be passed before a confiscation order is made. That implies that a confiscation order will normally be made before sentence and that confiscation proceedings will be postponed only exceptionally. The terms of Clause 95, as drafted, are extremely confusing.

The amendments are designed to improve the practical and flexible operation of the Bill and mirror the changes already made in Part 2 of the Bill.

Clause 95 negatived.

Clause 96 [Recoverable amount]:

[Amendment No. 101 not moved.]

Clause 96 agreed to.

Clauses 97 and 98 agreed to.

[Amendment No. 102 not moved]

Clause 99 [Assumptions to be made in case of criminal lifestyle]:

[Amendment Nos. 103 to 105 not moved.]

Clause 99 agreed to.

Clause 100 agreed to.

Clause 101 [Disposal of family home]:

The Earl of Mar and Kellie moved Amendment No. 106:


    Page 60, line 3, at end insert—


"(ba) the needs and financial resources of a person of the same sex as the person concerned, who is and has been for a period of not less than six months living with the person concerned in a relationship which has the characteristics, other than that the persons are of the same sex, of the relationship between husband and wife, or if the person concerned is in custody, had so lived with the person concerned until the person was so remanded;
(bb) the needs and financial resources of any member of the person concerned's family who is, and has been, for a period of not less than six months, living with the person concerned in the family home, or if the person concerned is in custody, has so lived with the person concerned was so remanded;"

The noble Earl said: This group of amendments apply the admired provisions for the treatment of the family home in Scotland. Amendments Nos. 106 and 108 are the substantive amendments; the remainder are consequential.

Amendment No. 106 seeks to extend the protection currently afforded to spouses, former spouses, children and grandchildren, to other members of the accused's family—for example, siblings—and also to same sex partners of at least six months' standing. Anyone for whom the dwelling is home ought to have such protection and a right of representation. Why should there not be equal treatment? All those who live in the dwelling should have their needs and financial resources considered before the decision to dispose of the home is taken. On the subject of same sex partners, I should point out that their relationship has been recognised in the Scottish Parliament's legislation under Section 87(2) of the Adults with Incapacity (Scotland) Act 2000.

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Amendment No. 108 would require the court to take into account any representation made to it by anyone for whom the dwelling in question is home. It would do so by widening the list of such people under subjection (3) of Clause 101. Elsewhere in the Bill, interested parties are expressly given the opportunity of representation—for example, under Clause 94, which deals with the making of a confiscation order, and under Clause 126, which relates to the protection of persons affected by any action taken by the administrator.

Given the consequences of the sale of a family home for anyone, it is only reasonable that all those involved should be treated equally. I beg to move.

Baroness Buscombe: I support the amendment moved by the noble Earl, Lord Mar and Kellie, to which I have attached my name. The amendment would extend the protections currently available to the spouse and children of the accused's family under Clause 101 to same sex partners of the accused who have been living with the latter for no fewer than six months; and to those members of the accused's family who have been residing with him or her for a similar period.

In expressing my support for the noble Earl, I must reiterate his reference to situations where it is most important to consider both the needs and financial resources of other members of the family who have been residing with the accused in the family home. Let us take, as an example, siblings who could have been residing together for a period of time in a house that is registered in joint names.

4.45 p.m.

Lord Rooker: In some ways, we return to some of the points made in a previous debate on this complicated area of the Bill dealing with rights to the family home. As the noble Earl said, Amendment No. 106 seeks to extend the protections available to the spouse, the former spouse, and the children and grandchildren of the accused's family under Clause 101 to same sex partners of the accused who have been living with the latter for no fewer than six months; and, indeed, to any member of the accused's family who has been residing with him or her for a similar period. As the noble Earl pointed out, some amendments in this group are consequential.

I took advice on this amendment, because my original notes did not indicate whether the matter had been raised in the other place. We are dealing with an important area of the legislation, and I make no complaints about the issue being raised again. However, Clause 101 provides a degree of protection to the accused's spouse, or former spouse, and to any child or grandchild of the accused against the disposal of the family home. That replicates the existing provisions in the Proceeds of Crime (Scotland) Act 1995, which, in turn, mirrors the provisions of Section 40 of the Bankruptcy (Scotland) Act 1985.

The Government and the Scottish Executive believe that any changes in this area of law should not be made in a piecemeal way—I do not mean that in a pejorative

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sense—but rather as part of a coherent consideration of all the issues involved. To that end, the Scottish Executive intends to issue a draft family law Bill, based on the 1992 report on family law of the Scottish Law Commission. I understand that the intention is to try to produce that draft around the end of this year.

For the convenience of the Committee, I should point out that the matter was raised on Report in another place on 26th February, at cols. 609 to 624 of the Official Report, when exactly the same point was made. We believe that this area of law should be considered in the round rather than in a piecemeal way by tagging it on to this Bill. We need to await a full and proper deliberation and consultation, based upon some draft legislation issued by the Scottish Executive. Given my explanation of the position, I hope that the noble Earl will feel able to withdraw his amendment.

The Earl of Mar and Kellie: I am grateful to the Minister for his response, which I shall certainly want to consider. My instincts are that the Bill is too narrowly drawn, although I take the point that other legislation is similarly narrow. However, if the report of the Scottish Law Commission recommends changes, we need to know whether that would automatically change this Bill. Indeed, when this Bill is enacted, can the Minister say how it can be subsequently changed?

Lord Rooker: For the avoidance of doubt, I should emphasise the fact that the Scottish Law Commission produced a report in 1992 on family law. The Scottish Executive intends to issue a draft family law Bill based upon that 1992 report. Legislation may, or may not, flow from that process. Obviously I cannot pre-empt a draft Bill to which I am not party and which has not yet been produced—and which, of course, would require consultation and parliamentary approval in Scotland. However, that would be the vehicle for change because it is primary legislation. That is the role of the Scottish Executive in relation to Scottish matters.

Lord Goodhart: Before the Minister concludes, am I right in thinking that there would perhaps be a problem with amending the legislation that will result from this Bill because we are dealing with a United Kingdom Act to which the Scottish Parliament would not be able to make consequential changes? Is there perhaps a case for introducing a power to amend this clause by way of secondary legislation to coincide with Scottish legislation?

Lord Rooker: I do not know the answer to the noble Lord's question. We are legislating here in respect of areas of Scottish law under the agreed devolution settlement proposals. The Scottish Executive agreed that we could deal with this legislation; in other words, we, the Westminster Parliament, are dealing with Scottish arrangements on behalf of the Scottish Executive. I do not know whether it is a two-way process, but, from a practical point of view, I suspect that is must be so. However, that is not a definitive answer.

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