Mr Alistair Carmichael (Orkney & Shetland, Liberal Democrat)

I take your point, Mr. Deputy Speaker.

The amendment is not of massive significance, but I urge the Minister to consider it seriously. The functions of the director of the Assets Recovery Agency that are to be executed north of the border—primarily taxation functions—should be incorporated in a plan. Plans are being outlined for the rest of the country, and I do not see why there should be any difference for Scotland.

Likewise, in connection with amendment No. 228, it must be remembered that the Bill comes before this House as a result of a Sewel motion. Much has been made during the Bill's passage through the House of the virtue of uniformity of provision throughout the United Kingdom. As drafted, the Bill provides that the director of the ARA would be excluded from membership of both this House and the Northern Ireland Assembly. Given that the director has some functions in Scotland and Wales, it seems only sensible that the exclusion should apply there also.

More significant is new clause 1. The Bill will require the director of the ARA to make reports to this House. New clause 1(1) would mean that the Scottish Parliament would benefit from the same level of reporting, from the Lord Advocate. The general point is that the Lord Advocate and the ARA director will have nearly identical roles. Therefore, the Scottish Parliament should be able to subject the actions of the Lord Advocate in the performance of his functions under the Bill to the same degree of scrutiny as this House will be able to bring to bear on the performance of the ARA director. Proposed new subsection (2) deals with the execution by other Scottish Ministers of their functions under the Bill.

Proposed new subsections (3) and (4) are based on the assumption that at some time in the future there will be a Scottish ARA. In Committee, I expressed concern that the Lord Advocate's significant range of functions under the Bill could give rise to a conflict of interests with those functions that he currently executes, either by statute or by common law, in relation to the investigation and prosecution of crime in Scotland. There is a fairly strong argument for saying that, in light of the nature of the powers to be given to the Lord Advocate or executed by the state under the Bill, a new body should be created. That body would physically distinguish the new powers from the Lord Advocate's prosecution functions, which are all based in the Crown Office.

On balance, I am persuaded that the relatively small nature of the operation north of the border means that the creation of a special ARA for Scotland would lead merely to an unnecessary—and possibly unwieldy and less effective—layer of bureaucracy. However, the option should be kept open. Once we see how the functions—especially with regard to confiscation—are carried out when the Bill is enacted, we should be able to consider whether it is necessary to establish an equivalent agency to operate independently in Scotland.

There is a danger of cross-contamination between some of the confiscation and subsequent civil recovery proceedings, and the investigation and prosecution of crime. It seems to me appropriate that the position should be properly assessed after a couple of years, and that the Scottish Parliament should be able to revisit the matter in the light of experience.

The only other matter on which I wish to comment at this stage is amendment No. 229. I am prepared, on balance, to support the Scottish National party on the amendment. It highlights an important issue in relation to the conduct of legislation through this House subsequent to the passing of a Sewel motion by the Scottish Parliament. I have gone on record before as saying that it is important to have proper scrutiny by Parliament of the Executive on legislation coming here under a Sewel motion. That is currently problematic.

The SNP's amendment would at least require an order to be brought before the Scottish Parliament and would allow Members of the Scottish Parliament to have the final say on whether they were happy with what we have done in this place. That is very little in the way of parliamentary scrutiny but it is preferable to none at all, which appears to be the situation at present.

I understand that the Scottish nationalists may divide the House on the amendment. They will have the support—albeit grudging—of Liberal Democrat Members.

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