| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Lord Goldsmith moved Amendment No. 34:
- Page 270, line 16, at end insert—
2A An offence under section 56 of the Terrorism Act 2000 (c.11) (directing the activities of a terrorist organisation)."
On Question, amendment agreed to.
Clause 84 [Property: general provisions]:
[Amendments Nos. 35 and 36 not moved.]
Lord Kingsland moved Amendment No. 37:
On Question, amendment agreed to.
[Amendments Nos. 38 to 40 not moved.]
Clause 94 [Accused's benefit]:
Lord Falconer of Thoroton moved Amendments Nos. 41 and 42:
On Question, amendments agreed to.
Lord Goodhart moved Amendment No. 43:
On Question, amendment agreed to.
Clause 96 [Assumptions to be made in case of criminal lifestyle]:
Lord Falconer of Thoroton moved Amendment No. 44:
On Question, amendment agreed to.
Clause 98 [Disposal of family home]:
The Earl of Mar and Kellie moved Amendment No. 45:
The noble Earl said: My Lords, Amendments Nos. 45 to 49 return us to the Scottish issue of who should have the right to be heard and to have their circumstances taken into account by the court when it considers the confiscation of the family home.
I have tabled the amendments again because the brief debate in Committee was inconclusive on the question of how the Bill might be amended after enactment. I also believe that the substance of the amendments—extending the range of residents to be considered—continues to be relevant.
I want to make two points: the first is substantive and the second procedural. The amendments would extend consideration to a more viable and practical range of related residents. The Bill allows consideration to be given to spouses, ex-spouses, children, step-children and grandchildren. The thinking behind the Bill is too conventional. The amendments would recognise brothers, sisters, parents, grandparents, aunts and uncles, and also partners of either sex of more than six months' continuous relationship.
In Committee, the noble Lord, Lord Rooker, told us that the Bill's limited range of accepted relatives was drawn from the Bankruptcy (Scotland) Act 1985 and from the Proceeds of Crime (Scotland) Act 1995. He argued that the Bill should stick to the same formula as those two Scottish Acts. He then told the Committee that the Scottish Executive planned to bring forward a draft family law Bill to be based on the Scottish Law Commission's report of as long ago as 1992.
The question is: should we wait for that possibility or should we give a lead? When the Scottish Parliament passed its Sewel motion, it granted complete and unrestricted consent to this Parliament to legislate for Scotland in this normally devolved area. In this instance, we should ignore this Parliament's residual right to legislate for Scotland without the Scottish Parliament's consent. It would be helpful if the Bill included a wider range of relatives whose home may be under threat. The two Scottish Acts could subsequently be amended once the Bill had shown the way.
My second point concerns how the Bill when enacted might be amended by the Scottish Parliament, given that it is a United Kingdom Bill. The amendment would be necessary if the draft family law Bill were enacted by the Scottish Parliament. I suspect that the Scottish clauses of this Bill will be automatically devolved on Royal Assent, so amendments of any such future Act would be the work of the Scottish Parliament. That could be done through a further Criminal Justice (Scotland) Bill or by secondary legislation.
I should be grateful to hear whether the noble and learned Lord agrees with me about the Scottish Parliament's future powers over the Bill. If I am wrong—and I am happy to be wrong—perhaps he would identify what would be the procedure. I beg to move.
Lord Falconer of Thoroton: My Lords, as the noble Earl said, the amendments have previously been debated. We made clear that the Government and the Scottish Executive believe that any changes to that area of law should be made not in a piecemeal way but, rather, as part of a coherent consideration of all of the issues involved. The noble Earl said that my noble friend Lord Rooker said that the Scottish Executive intended to issue a draft Bill based on the Scottish Law Commission's 1992 report on family law.
The noble Earl asked how Clause 98 might subsequently be amended, if, in due course, the Scottish Parliament enacted further legislation in this area. I have taken advice on the matter. The noble Earl will appreciate that the subject matter of the Bill covers areas that are devolved to the Scottish Parliament and some that are reserved to the Westminster Parliament. If any changes to Clause 98 were proposed as a result of wider changes to family law in Scotland and if they related to areas that fell wholly within the devolved competence of the Scottish Parliament, the Scottish Parliament would be able to amend the clause accordingly. However, if it were also proposed that the law relating to reserved matters should be changed, the Westminster Parliament would have to make the changes.
The noble Earl will appreciate that it is not possible to determine whether such changes would be devolved or reserved until the exact detail was known. Nevertheless, I hope that he will be reassured that, one way or another, Clause 98 could subsequently be amended. I hope that, in the light of those assurances, the noble Earl will withdraw the amendment.
The Earl of Mar and Kellie: My Lords, I am grateful to the Minister for that clarification. He certainly dealt with my second point. I was, more or less, right that the Scottish Parliament would be able to deal with Clause 98, which relates to an obviously devolved matter. I cannot say that I am very happy about having to wait until such time as a draft Bill may be introduced in the Scottish Parliament. However, I got half of it right, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 46 to 49 not moved.]
Clause 99 [Postponement]:
Page 55, line 35, at end insert "unless it is of the opinion that there are exceptional circumstances which justify its not doing so"
Page 57, line 7, at end insert—
"(2A) Subsection (2B) applies if—
(a) the conduct concerned is general criminal conduct,
(b) a confiscation order mentioned in subsection (3) has at an earlier time been made against the accused, and
(c) his benefit for the purposes of that order was benefit from his general criminal conduct.
(2B) His benefit found at the time the last confiscation order mentioned in subsection (2A)(c) was made against him must be taken for the purposes of this section to be his benefit from his general criminal conduct at that time."
Page 57, line 23, at end insert—
"(4) But subsection (3) does not apply to an amount which has been taken into account for the purposes of a deduction under that subsection on any earlier occasion.
(5) The reference to general criminal conduct in the case of a confiscation order made under any of the provisions listed in subsection (3)(b) is a reference to conduct in respect of which a court is required or entitled to make one or more assumptions for the purpose of assessing a person's benefit from the conduct."
After Clause 95, insert the following new clause—
"COMPENSATION OF CREDITORS
(1) Any person who was a creditor of the defendant at the time when the confiscation order was made may, within one year of the date of the order, make an application to the court for compensation.
(2) The court may require the enforcement authority to pay compensation to the applicant if it is satisfied that—
(a) as a result of the making of the order the defendant is wholly or in part unable to repay the debt;
(b) the debt was incurred for full consideration; and
(c) at the time the debt was incurred the applicant had no reason to believe that a confiscation order could be made against the defendant."
Page 58, line 31, at end insert—
"(8A) But if a confiscation order mentioned in section 94(2A)(c) has been made against the accused at any time during the period mentioned in subsection (8)—
(a) the relevant day is the day when the accused's benefit was calculated for the purposes of the last such confiscation order, and
(b) the second assumption does not apply to any property which was held by him on or before the relevant day."
Page 59, line 35, 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, had so lived with the person concerned until the person was so remanded;"
6.45 p.m.
Next Section
Back to Table of Contents
Lords Hansard Home Page