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With this it will be convenient to take the following amendments: No. 14, in page 3, line 38, leave out `must'.
No. 15, in page 3, line 39, after `(a)', insert `must'.
No. 9, in page 3, line 40, after `(b)', insert `may'.
No. 10, in page 3, line 40, after `pay', insert `a sum not exceeding'.
This is one of the most important clauses. It is the first clause of part 2 and covers the making of confiscation orders. It may be helpful if I briefly go through all the amendments in the group before turning to their background purpose. However, I have the impression that the Minister wants to say something.
I thank the Opposition spokesman and you, Mr. O'Brien. It may assist the Committee and the Opposition spokespersons from both parties in their consideration of part 2 if I inform them of the Government's discussions with the Scottish Executive on the confiscation provisions in part 3.
My hon. Friend the Under-Secretary and I have taken note with our colleagues in the Scottish Executive of the comments made on Second Reading about the discrepancy in the Bill between the discretionary scheme for Scotland and the mandatory scheme envisaged for the remainder of the United Kingdom. Concern was expressed by a number of Members of the Scottish Parliament that the proposed confiscation arrangements for Scotland are insufficiently robust. I have discussed the matter again with Jim Wallace, the Deputy First Minister, Colin Boyd, the Law Advocate, and Iain Gray, the Deputy Minister for Justice in Scotland. The Executive have always shared the Government's view of the importance of ensuring that confiscation is pursued in every appropriate case and are mindful that the judiciary in Scotland has regularly imposed confiscation orders under the current discretionary system. Nevertheless, our colleagues on the Executive have decided that there is a strong case for ensuring consistency of approach in this matter throughout the United Kingdom. Therefore, the Government are reviewing the discretionary approach set out in part 3 and I hope to inform the Committee of our conclusions in the near future.
I am grateful to the Minister for that exposition and for giving me a few seconds' notice of what he intended to say. I had intended to champion the liberal constitutional proprieties of the Scots compared with the tyrannous approach this side of the border. I am sorry that, again, it seems that the high road to England is attractive to Scots as they seem to be only too willing to follow the same route.
It is only fair that those of us who have seats in Scotland express our gratitude to the hon. Gentleman. It was his intervention in my speech on Second Reading that provided a degree of urgency that had not previously existed. He may not win anything else in the Bill, but he can be assured that that intervention brought about harmonisation.
I remember the hon. Gentleman's comment on Second Reading—I almost fell off the Bench. Having highlighted what I thought was a sensible area in which the Scots wished to retain their own practice, I found him both angry at the revelation and only too enthusiastic to jump on the bandwagon of mandatory confiscation.
Amendment No. 8 would give the court discretion not to proceed even if the two conditions in subsections (2) and (3) were satisfied. The discretion would be general and would mean that if the court did not want to take that route, it would not have to. That mirrors the existing Scottish provisions.
Amendment No. 14 would allow the court not to decide on the recoverable amount to make in an order, even if it believed that the defendant had benefited from his conduct. There is element of overlap between the discretions and I tabled the amendments so that we can examine each possibility, as well as considering them together.
Amendment No. 9 would allow the court not to make an order even if it decided on a recoverable amount.
Amendment No. 10 would allow the court to decide that a lesser sum than that which had been deemed to be recoverable should be paid. Again, that mirrors, to some extent, the current practice in Scotland.
In a nutshell, the purpose of the amendments is to remove or diminish what at present could be seen to be a mandatory and oppressive form of administrative diktat. Historically in England--I am not qualified to speak about Scots law, but I suspect from reading the Scottish provisions that the principles are identical--judicial discretion always applies to prevent injustice. The Government introduced the Human Rights Act, but are now busy criticising the judiciary for implementing it in the way that it would obviously be implemented--
Indeed we did.
The Government are again showing clear signs that they do not trust the judiciary to be able to make reasoned judgments.
Without the amendments, and certainly without amendment No. 8, the prosecutor will be able to tell the court what to do. That is inherent in subsection (3)(a). Moreover, the director of the Assets Recovery Agency will be able to tell the court what to do. I find that aspect even more troubling, because the prosecutor has always had an independent role in trying to ensure that justice is achieved. Those of us who have practised as criminal prosecutors will know that that sometimes means saying to those who have instructed us—again, I am sure that the same applies in Scotland—that we are not prepared to take a certain course of action even though the prosecuting authority might wish us to do so. Under the Bill, action can be taken not only at the prosecutor's but at the director's discretion. In truth, it is being turned into a confiscatory administrative mechanism, wholly controlled by the director of the Assets Recovery Agency. That should be a source of concern to those who wish asset recovery to be an instrument of justice and not of oppression.
That lack of discretion brings me back to the speech that I intended to make—and I shall still make it, notwithstanding the comments of the Minister of State. I contrast that lack of discretion with the fact that the Government appear to be content with the drafting of the Scottish clauses in part 3.
I know that the hon. Gentleman might find it difficult to change horses in midstream, but he ought to take cognisance of the fact that the Government clearly want mandatory procedures in Scotland, and that we are now working on further amendments. He can no longer draw on that argument, however much he may wish to do so.
The Minister misses the point. The purpose of the Committee stage is first to scrutinise the Bill line by line and secondly to allow an informed discussion of the principles that underlie it. In some haste and with considerable immediacy, he informed me seconds before the Committee started that, acting on representations made on Second Reading by a number of Members of Parliament with Scottish seats, the Government decided to discuss the Bill with the Scottish Executive and that, hey presto, the discrepancy between the Scottish and English confiscation regimes will now disappear.
On the question of haste, I shall not mention the fact that the hon. Gentleman arrived only a couple of minutes before today's sitting, because it is irrelevant. As he knows, we got through the Bill on Tuesday rather more quickly than expected. I had hoped that we would not reach clause 6 until next Tuesday, which would have given us time to be more courteous and to have given him more notice. Then he might not have gone through arguments that are no longer relevant.
The Minister misunderstands on several counts. He was not discourteous. Indeed, he was very courteous in telling me of the changes before the sitting. I have no problem with that. I was here only two minutes before the Committee started because the Home Office intends to introduce a great raft of emergency legislation next week, and I had to spend a considerable part of last night poring over it and then discussing it with colleagues before coming here. That glut is not of my making. I am here only to scrutinise the Bill.
I understand what the Minister says. It is abundantly clear that, acting apparently on representations made on Second Reading by Back Benchers, he spoke to the Scottish Executive and is now able to inform the Committee that the Scottish clauses will be amended to bring them in line with those for England and Wales. That, however, raises a number of important points.
First, I would like to know from either Minister—I am sure that they can tell us—why the Scottish Executive initially wanted a different regime from England and Wales that would provide a much greater measure of judicial discretion. I can hazard some guesses, but given our discussions we are entitled to a full answer. I shall make some assumptions. The Minister can shoot them down, but my first guess is that the Scottish Executive may have considered that the proposals, as drafted for Scotland, are capable of meeting the objectives sought by the Government, so there would be no public policy issue that the legislation would not bite if judicial discretion were provided.
My second guess is that the legal advisers to the Scottish Executive may have been concerned when they read what the Government proposed originally for England and Wales. They may have been worried about its draconian nature and considered that there was a need to retain those judicial discretions that are often regarded as important for the liberty and rights of the individual. That is especially so given the most unusual power that is being conferred on the Government of being able to confiscate assets that may not be linked directly to a specific crime, on the grounds of criminal lifestyle.
We must have an informed discussion about the policy decisions that underlay the original decision to have a different regime in Scotland from that in England. When we discuss the parts of the Bill that relate to Scotland, I shall want a detailed explanation of why the Scottish Executive have changed their mind in light of the comments that were made on Second Reading. At that time, the Bill was presented by the Government as being competent and capable of performing certain functions, yet they have now changed their mind. Was that a cosmetic decision? Has there been some characteristic arm twisting of the Scottish Executive by Westminster—something that has happened in the past and may happen in the future?
I am listening with great interest to my hon. Friend. I urge him not to be bludgeoned by the Minister of State. He is raising an important point, not least concerning why parliamentary draftsmen did not spot such matters, given that the Bill has been in preparation for so long. How could two countries in the United Kingdom have radically different procedures? My hon. Friend is a distinguished barrister and the points that he has raised are valid. The Government must explain why they got it wrong in the first place.
I assure both hon. Gentlemen that the matter in question is not one of draftsmanship or of the wording being changed for legal reasons. It is a clear policy decision. The Government keep being accused by Opposition Members of pressing ahead without listening to the people. We listened to those Back Benchers who made reasonable comments on Second Reading, and that is democratic and sensible action, which I commend to Opposition Members. Indeed, if they had paid attention to representations made to them in the past, they might not have been the Opposition now.
The Minister is really helpful. He explained that the issue was one not of drafting but of policy. Given that he has been in post for some time, even though the Bill may also have been in gestation for some time, too, he must have had some role to play in deciding the policy that originally produced the Scottish part and its discretionary powers for confiscation. I look forward to hearing in detail from the Minister all the principles that underlay his policy decision and that of his colleagues on the Scottish Executive to draft the Scottish clauses on confiscation in a way that was so radically different, and better—although the wording is similar—from the way in which the clauses were drafted for England and Wales.
How can the Minister claim that he is clear about the situation when there has obviously been confusion in the back room? It is because there were two separate proposals. Is this not the first crack in the unity of Labour Members? I congratulate my hon. Friend on managing to create the fissure in the so-called unity. I must be careful about parliamentary language, but I do not believe that the word ``disingenuous'' would have to be withdrawn. It seems strange that we have unearthed the discrepancy so early in our proceedings, and it has had to be put right straight away. How can the Minister, who has been a Member for many years, say that matters are crystal clear when clearly they have been obscure?
My hon. Friend is right. We will have to wait with bated breath to hear what the Minister has to say about how the policy decisions were originally made and how the policy changes were subsequently made.
I return to the impact that the amendments would have. We have tackled the Minister of State about why the Scottish provisions were initially different. Will the Under-Secretary—or whichever of the two in the double act that I am dealing with this morning—say why there is such an objection to providing judicial discretion in the clause in England and Wales?
What is the Minister so worried about? What have his officials told him might happen if we were to insert the word ``may'' and remove the word ``must''?
Now may be the proper time to give an example—given to me by my hon. Friends the Members for Glasgow, Pollok (Mr. Davidson) and for Glasgow, Anniesland (John Robertson)—of one of the problems that has been caused by the existing system, under which the Crown Office in Scotland has discretionary powers. Several months ago, Strathclyde police sought a confiscation order for a convicted drug dealer in Glasgow and took £75,000 from him. A few weeks after that, the same investigating officers discovered that the same gentleman had an endowment policy that was about to pay out £50,000. The police contacted the Crown Office to point this out and to seek a confiscation order for the endowment policy. The response from the Crown Office was, ``Give the guy a break. You've already taken £75,000 from him. Why do you want to take any more?'' The case was dropped. If—
I listened carefully to the hon. Gentleman's comments. The discussion of the Bill on Second Reading was illuminating. Hon. Members, and especially those who represent constituencies—a substantial number are north of the border, particularly in the Glasgow area—where there are serious crime issues relating to drugs and drug trafficking, cited examples of the local Mr. Big, driving around in his 4x4, whose community recognises that he has substantial assets that are believed to have been acquired through crime. They stressed that such situations cause communities real social and political concern, and expressed their desire to do something about it.
My constituency may be very wealthy, but nearby Slough has the lowest street price for heroin in the United Kingdom, so we are not immune to such problems. In some places, the social fabric has been torn apart by the sort of criminality that hon. Members mentioned on Second Reading. We made it clear in that debate that we support the Government's intentions, but we should not throw out the baby with the bathwater.
We must accept that our liberties and freedoms can be preserved only if we constantly question those who try to get rid of provisions that afford people protection. Historically, we have done that by giving the judiciary a measure of discretion. The clause removes those discretionary powers almost completely, although further on in the clause there are provisions that may allow the exercise of some discretion. Not only are we effectively removing those powers, we are introducing some unusual judicial tests on assumptions. Later, we shall discuss the standard of proof required to establish those tests.
I am not saying that the Bill is wrong to remove judicial discretion, but before we go down that road we must have a detailed explanation of the reasoning behind the wording. The wording at the beginning of part 3, which relates to Scotland, is different. That highlights the different approaches taken in part 2 and part 3, and it is legitimate for the Committee to focus on that issue, even if we conclude that the Minister may be right. I have not yet passed judgment on the matter—I have simply highlighted my concerns. I believe that the amendment can help us to achieve our aims, and can also provide the residual judicial discretion that is so important in ensuring that no injustice is caused.
I certainly accept that the previous system had some flaws, but it is sometimes difficult to decide where those flaws lie. As a practitioner, I had experience of applications under the Drug Trafficking Offences Act 1986, although I have not made such an application for six or seven years now; I last did so in the early 1990s. One feature of such cases was how rough and ready some of the calculations were. I do not mean to criticise the judges, but that was how it happened. Information was often scanty. A wonderful innovation has been introduced that bases the sentence of those convicted on the street value of the drugs. The street value of drugs is one of those fascinating issues that beg the question how long is a piece of string. Up comes an officer and says that the street value of the drugs is £1 million, but we are sure usually that it was not £1 million that ended up in the pocket of the defendant just convicted. That is why the system was changed to basing the assessment for sentencing on weight.
I make that point because one problem in the early 1990s was that judges were presented with enormously high figures for the benefit from drug trafficking that turned out to be unrealistic. The money was never found. That system may not have worked properly, but I am not convinced that this legislation will improve it.
Has not the hon. Gentleman presented a cogent argument for, first, the creation of an assets recovery agency with the specific job of dealing with the problem and, secondly, making the order governed by clause 6 compulsory rather than discretionary, so the prosecuting authorities and the Assets Recovery Agency would know that they have to deal with the matter. The disadvantage of the current system is that it has been a back of the envelope job. It is dependent on conviction, which will still remain, and the discretion of the court on whether the matter proceeds. If the prosecuting authorities know that the matter is certain to proceed, they will make a detailed preparation of the case.
The hon. Gentleman makes one point with which I do not disagree. The idea of creating a recovery agency with a dedicated remit has much to commend it. I am sure that he heard my speech on Second Reading and he will know that the official Opposition do not object to such an agency. However, the powers given to the director need close scrutiny. My gut feeling and experience is that, if we do not make allowance for the unusual and exceptional, there is a strong risk of ending up with an injustice. Having judicial discretion goes a long way towards meeting that problem. What does the Minister fear about the discretionary word in our amendment that makes him so determined that it should not be added? It is incumbent on him to justify the mandatory aspect, not the other way round.
Under the previous system, most of which was governed by legislation passed by the previous Government and supported by Labour Members—although I did not have the honour of taking part—there was an inconsistency and insufficiency of approach. Putting the issues together as a package, the new system is designed to make a consistent and sufficient approach that will achieve the aims shared by Labour and most Opposition Members.
I do not see anything inconsistent in an approach that allows a greater measure of judicial discretion about whether to embark on the process. I appreciate the hon. Gentleman's fears that judges may decide that they do not want to go through the process or may be sympathetic to the defendant for some reason. However, as the judiciary shares the concerns of the rest of humanity about the suppression of crime and preventing people from benefiting from its proceeds, I do not share the strange distrust that judges will sit back and say, ``We're not having anything to do with this; we're not going to embark on this process''. I could foresee that happening only when the circumstances surrounding a conviction are such that a judge, applying a common-sense approach and examining all the facts, says that it is a completely pointless or unfair exercise.
Hon. Members may shake their heads, but that is the great Moloch of the state that will come trundling down the road to swallow people up.
I listened carefully to my hon. Friend's arguments. I was almost distracted from what I was going to say by Molochs and molluscs. As someone who has experience of diving, I must warn my hon. Friend that if he ever gets a flipper near a giant clam, he would want to be sure that he has a buddy with some buddy-breathing arrangements nearby, because the giant clam is renowned for seizing the feet of those who venture on the bottom without noticing it. You may be tempted to call me to order, Mr. O'Brien, so I shall not pursue that any further.
My hon. Friend the Member for Beaconsfield (Mr. Grieve) has presented a strong case for carefully considering discretion. As a Member who is not a barrister, I would find it helpful if he gave more examples of why the mandatory proposals are at variance with what currently exists in the United Kingdom. He has argued that Labour Members should provide a better explanation, so it would be helpful if he explained, based on his experience, why we should address that seriously.
Mr. Grieve rose—
I confess that I shook my head earlier. In my experience of the courts in the early 1990s, confiscation orders were too often seen as an afterthought at the end of a long trial, and the prosecuting authorities and the courts were often not sufficiently concerned about them. That is the real purpose of this part of the Bill, and the reason why Labour Members want the matter to remain mandatory.
The hon. Gentleman makes a good point. Speaking from personal experience, there is some force in that argument. When taking part in a six-week trial on a drug importation case, there is nothing worse than getting to the end, reaching a verdict, exhausting everyone, and suddenly—hey presto—one has to enter an investigation as set out in the Drug Trafficking Offences Act 1986. I commend the hon. Gentleman and agree with him. However, it does not follow logically that we should automatically remove judicial discretion.
I am grateful to my hon. Friend and to the hon. Member for Wrexham (Ian Lucas). They, along with myself, are among the several Committee members who have experience of those matters. However, it would be unwise for any Government—and certainly for Parliament—to accept the argument that says something must be done, this is something, therefore we must do it. That is the flaw in the argument of the hon. Member for Wrexham. The purpose of parliamentary scrutiny is not to agree that there should be change, because we agree that something should be done, but to decide whether the Government propose the right and most effective something. My hon. Friend argues for something better.
I agree—that is the principle of my approach.
I was asked for examples. I do not wish to detain the Committee or stray from the point, but we must consider the entirety of the clause. There would be more merit in the argument for a mandatory approach, which the hon. Member for Wrexham advanced, if subsection (2) were confined to offences or proceedings before the Crown court only. All the extraordinary aspects of the Bill are interlinked, which is why it is so difficult to consider one set of amendments without thinking through the implications of others down the road. If we consider subsection (2), which in turn requires consideration of clause 70, we realise the absolute catch-all nature of the sort of criminal conviction that could trigger the process. We will want to consider that aspect independently. I accept that one can argue that we should leave in the mandatory aspect of subsection (1), but let us remove some of the extreme criteria that could trigger the confiscation mechanism.
As was pointed out on Second Reading, subject to the Secretary of State's power under statutory instrument, it is possible for virtually any criminal offence in which there has been a benefit to be sufficient to act as a trigger. I referred to a road haulier who committed a series of three tachograph offences in six years. The Government want to extend the net very widely as they cast it upon the waters, which reinforces the desirability of a mechanism enabling the judiciary to exercise discretion and say, ``Don't be so stupid.'' That is the basic reason for a discretionary test.
In a moment.
We could approach the matter differently and make only certain aspects mandatory. The really extraordinary aspect of the Bill is its all-encompassing nature and the powers that it farms out right, left and centre. It—
I do not want to get bogged down in curious examples. Frankly, I did not understand the tachograph example when it was given on Second Reading by the shadow Home Secretary, the hon. Member for West Dorset (Mr. Letwin). Leaving the tachograph aside, let us consider clause 7, which also has a mandatory element, with the word ``must''. I note that no amendment has been tabled that would remove that mandatory provision. If Opposition Members want to be consistent about judicial discretion, why is there no such amendment?
On that basis, I shall refrain from speaking about clause 7 until we reach it, but it is obvious why we have not yet tinkered with it.
Let me explain the point about the tachograph. We are talking about crimes from which people can be shown to benefit. Someone who allows his driver to overstep the tachograph regulation hours can be shown to have had a financial benefit from that crime. Arguably, the same applies to a health and safety offence, because the provision is so widely drawn.
I understand the hon. Gentleman's point about the all-encompassing nature of some powers. However, other amendments address summary offences directly, so is it his intention to cause confusion and cast smoke around his arguments? The hon. Member for Bosworth (Mr. Tredinnick) asked why his proposed changes were necessary. We need a cogent explanation why amendments that would make all the powers discretionary are necessary.
The Committee system operates in such a way that we do not have the luxury of being able to examine large groups of amendments together.
Amendments can achieve a similar goal in different ways. Later amendments will deal with, for example, the removal of certain categories of offence. Other amendments are intended to probe. Their purpose is to improve the Bill in its totality. One way of achieving that is to give a general discretion. If the Under-Secretary is saying that the Government wish the Bill to be all-encompassing in terms of the range of offences covered, there is a compelling argument for giving the general discretion. If he says that he has reflected on the matter—and the Minister of State has also been through reflective processes as the Bill has progressed—and that he has decided that certain categories of offences might be deleted, and that the Secretary of State's powers under statutory instrument to specify offences will be removed, I would be less worried, and I might press the amendments less hard. However, I cannot predict what might happen further on in our proceedings, which is why it is important to focus on the provisions that mirror those that were thought to be acceptable for Scotland, which give a general judicial discretion about whether to embark on the process.
My hon. Friend's argument is strengthened by the movement that has been apparent not only what the Minister of State has told us but in the Government's tone in the brief period between Second Reading and Committee stage. On Second Reading, almost all of the speakers from the Government Back Benches—some of whom are present—dismissed the shadow Home Secretary's arguments about tachograph offences as trivial and irrelevant, but now the Minister is saying that he accepts that an important point is being debated. There is a huge difference in tone between the Labour party's Back Benches and its Front Bench, and the Minister's attitude seems to have changed between Second Reading and Committee stage.
I am interested in the point about the tachograph, and the arguments about compulsion and discretion.
Clause 6 ensures that, before it would be possible to go down the route that has been described, the prosecutor or director would have to ask the court to proceed, or the court would have to believe that it would be appropriate to do so, and in any event the court would have to be satisfied that there was a criminal lifestyle, as defined in clause 75.
Sometimes, it is a pleasure to listen to the hon. Gentleman. With regard to his argument about tachographs, there is a pearl in his mollusc. I am heartened to learn that people can be prosecuted for tachograph offences under the legislation, because constituents of mine have been killed by lorry drivers who have broken the tachograph regulations—and some drivers have been forced to do so on pain of dismissal.
Many Labour Members' past record in consideration of serious cases, especially when they were in opposition during the early 1990s—I hope that they have not completely lost their fire—showed their belief in civil liberties and anxiety about individual cases. They championed cases in which the individual had been treated badly. I want to ensure that such cases are minimised, which is the reason for tabling the amendments. Of course, it is serious if a person commits even a tachograph offence. However, there is a difference between committing an offence that is serious in itself and an offence that justifies the confiscation of a person's assets. Most people may not associate such offences with a criminal lifestyle.
I have spoken at greater length than I intended, largely because of interruptions. Perhaps I should be grateful for those—they are what a Committee is all about. I am pleased that we have initiated a discussion. I look forward to the Minister's full response and participation from other members of the Committee who may enlighten me about their views and persuade me that I am wrong. However, at the moment, I believe that the amendments would do much to improve the Bill.
I welcome you to the Chair, Mr. O'Brien.
The past 45 minutes have been interesting, and the contribution of the hon. Member for Beaconsfield was important and raised matters—almost of philosophy—that deserve to be considered by the Committee. Although the amendments are modest, their implication and importance go beyond the lines in the Bill to which they relate. They deserve to be taken seriously, and my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael) and I have subscribed to amendment No. 8.
On Second Reading, I raised a matter that is relevant to the amendments. We must strike a balance between putting a system in place that makes it impossible for a criminal to escape when undertaking activities that we wish to see curtailed and constrained and, on the other hand, having a system that limits the power of independent voices outside the prosecution authorities and has the capacity to entrap people because of its escape-free nature. No member of the Committee would want people to be entrapped in that way, so we must ensure that sufficient safeguards are in place. Legislation always strikes such a balance. Traditionally, in our country, we have sought to ensure that safeguards are prominent. If that means that a person who we want convicted escapes the net, that is a price worth paying, should the alternative be that innocent people are caught in the net and wrongly convicted. We must strike that balance.
I am worried about the proposed removal of judicial discretion. In our unwritten constitution, judicial discretion is an important counterweight to the Executive's power, which is exercised through a House of Commons in which the majority party at any time is elected with a minority of votes from a minority even of those who choose to turn up at the polling stations. The Government may railroad through huge amounts of controversial legislation under that system, as happened with the poll tax. In such circumstances, an independent judiciary with powers is important. Otherwise, mistakes that a Government make may not be corrected.
I question why the power is being removed in this case. It is almost as though the Government are saying that they do not trust a judiciary to do the right thing, and are therefore removing from it the discretion to consider the matter. I hope that that is not so, but an element of that is involved. We are dealing with a balance. In a democratic society, the opportunity to exercise power must be spread—throughout the United Kingdom with devolution, down to local level through councils, and shared between the Government and the judiciary. I am worried that we are witnessing a move towards the concentration of power in one element of our constitution in order to push through an objective that I am sure that we all share but are nevertheless worried about how it is being achieved.
A different tension is involved, too, which the amendment and the Minister's comments raise—that between devolution, to which the Government and my party are strongly committed, and a desire to have a United Kingdom solution imposed on the Bill. Of course, these matters are properly devolved matters for the Scottish Parliament, which has agreed to allow a Bill to be introduced on a UK basis to deal with them. However, that does not mean that any differences between the practices proposed for England, Wales and Scotland must be eliminated and that we must have a uniform approach throughout the United Kingdom. As the hon. Member for Glasgow, Pollok has previously, and rightly, said, we do not want criminals to have the opportunity to play one end of the country against the other. If anything in the Bill allows that to happen, we want to ensure that it is supported. However, that does not mean that if the judiciary is given slightly different powers in England from those for Scotland it will necessarily allow criminals to have that opportunity.
For clarification, the hon. Gentleman, who makes an extremely important and serious point, may have inadvertently made a mistake. He said in response to the anxieties expressed by the hon. Member for Glasgow, Pollok that it was important not to have criminals playing one end of the country against the other. He went on to say that if anything in the Bill does that it should be supported. I think he meant to say that if anything in the Bill does that it should be rejected.
The hon. Gentleman voiced a suspicion that Labour Members are afraid that the courts may not take appropriate action. I wonder whether that is right. Under clause 6(3), the court has the power, if it believes it appropriate to do so, to satisfy that condition. It is given the discretion to trigger the provisions. The only additional provision is that the prosecutor or the director also has the power to trigger that condition being satisfied. Does the hon. Gentleman not trust the prosecutor or the director?
I do not suggest that the Bill entirely removes all freedom from the judiciary. Nor do I suggest that an amendment should be introduced to give the judiciary absolute control over what happens and that the director of the Assets Recovery Agency should be left with nothing. However, it is a question of individual powers and balance. That is what I am trying to draw attention to through the amendment.
I am a strong supporter of devolution. Many of the Bill's provisions take account of different procedures in Scotland and allow the Lord Advocate to carry out functions that in England and Wales will be the Assets Recovery Agency's responsibility. On the policy issue, it is, as the hon. Gentleman said, important that criminals have nowhere to hide, anywhere in the United Kingdom, and that we have the same policy in pursuing them. This mandatory provision is an important policy issue throughout the United Kingdom. We respect the position of the Scottish Executive and had detailed consultation with them before agreeing to a policy change.
I absolutely accept that point and that, rightly, differences exist between the Scottish provisions and those for England and Wales. I also accept that if measures are necessary, on a UK basis, to prevent criminals from escaping to other countries, they should be supported. I am not yet convinced—we have not heard much from the Minister this morning—that the flexibility proposed in the amendment would have the undesirable result about which the Minister is worried. Perhaps the Minister will convince the Committee later. I do not want to overplay this point, but the wish to have devolution creates a tension. It will necessarily lead to a different approach, in a range of areas, up and down the country, which many of us welcome. That was an argument for devolution—what may be appropriate in Aberdeen may not be appropriate in Penzance. Sometimes, there is a wish to undo that in certain respects, and say, ``Here is a UK solution.'' We need to be careful to bear in mind the rights of the Scottish people to have their say to the Scottish Parliament, and not necessarily say, ``This is what we think in Westminster, we should try to persuade other people to do the same.''
I welcome the fact that the Minister has listened to his Back Benchers, which is the reason for the policy change this morning. I look forward to Ministers listening to Back Benchers even more, as they seem to show a great deal of common sense on matters such as the private finance initiative, Railtrack, privatisation of air traffic control, fox hunting and many other matters. I look forward to more influence from Labour Back Benchers in the future.
The hon. Member for Beaconsfield has raised important philosophical issues, which I have tried to amplify. I hope that the Minister will respond to those serious points.
I was highly interested by the points made by the hon. Member for Beaconsfield, who used to be my Member of Parliament, and by the hon. Member for Lewes. However, I do not quite follow their argument. They seem to have missed the point that the provision is mandatory, but conditional. One of the conditions is that the court believes it appropriate for the process to be undertaken, which provides exactly the discretion sought. An alternative condition is that the prosecutor or the director asks the court so to proceed.
The whole point, surely, is that it is an alternative condition. If the director asks the court so to proceed, the second condition—whether the court believes it appropriate—is irrelevant. As I understand it, the Opposition's anxiety is that, although the director may be a wonderful fellow—we all hold criminals in contempt and want their assets to be removed—the mandatory nature of the clause will remove an extra safeguard, which is the ability of the judge to apply common sense, as my hon. Friend the Member for Beaconsfield described.
I am obliged to the hon. Gentleman for that contribution, which focuses the attention of the Committee on exactly the philosophical point at issue. The issue is not the lack of discretion vested in the judge, as that discretion is preserved; it is the alternative additional provision that enables the prosecutor or director to ask the court whether to proceed under the clause. The contributions from Opposition Members seem to beg the question of whether we trust the director or the prosecutor to act sensibly in those circumstances. If the hon. Member for Beaconsfield is right, and sentences might otherwise bite under clause 75, the director may want to proceed in the circumstances mentioned by my hon. Friend the Member for Glasgow, Pollok, in which a series of offences had been committed that showed absolute disregard for safety and were only for profit. Alternatively, he may not want to proceed. If he thought it sensible not to proceed, he would not do so.
I entirely understand the hon. Gentleman's point. However, he will also understand that the purpose of the Committee's scrutiny is to establish whether it is appropriate for the enacted Bill to contain provisions that are absolutely compulsive in their effect. We are not trying to undermine trust in a future director using his judgment; it is a question of the balance between Acts of Parliament removing judicial discretion, and whether to keep a traditional balance through the separation of powers—as the hon. Gentleman, who is a qualified barrister, well knows—whereby the courts have some discretion and are not constantly being railroaded by Parliament in every dot and comma.
I disagree profoundly with that interesting contribution. Discretion to act when the judge thinks that it is appropriate is preserved. As the hon. Member for Henley (Mr. Johnson) said, we seek only to supplement that with discretion for the prosecutor or the director. To go through the process of setting up the agency and creating the post of director, and then to undermine it from the outset by not affording that person the discretion to exercise such power in appropriate circumstances would be absurd.
The hon. Gentleman said something earlier that is important and may be useful to the Committee. He spoke about the need for the director to have this discretion, but are we not considering two separate ways of recovering assets? We are considering a civil route, which is aimed particularly at those people who do not have convictions, and we are considering a confiscatory route, in which the burden upon the defendant is exceptionally heavy.
In the case of the tachograph offence, does the hon. Gentleman not think that common sense might dictate, not that the assets are not recovered, but that the judge would say that, if assets are to be recovered on the basis of three tachograph offences in six years, the civil recovery route should be taken, in which the defences available to the individual are different and of a better quality?
I understand the hon. Gentleman's interesting point but will not deal with it directly at this stage, because it raises questions that affect the remainder of the Bill; however, the clause simply gives to certain parties the discretion to trigger proceedings if other conditions are satisfied related to the commission of serious offences. To give that discretionary trigger to both a judge and the director whose post we are establishing seems entirely appropriate. It is not railroading, or Moloch eating up the civil liberties of the nation, but creating a post and vesting it with discretion to supplement the discretion of the court in an entirely proper way.
On the point made by the hon. Member for Wellingborough (Mr. Stinchcombe), it strikes me that the entire Bill is driven by the idea of recovering money. In a sense, justice and liberty have been put to one side; I addressed that on Second Reading. Hence, I can see why there is a mandatory provision: it triggers the process, which is about trying to get money as quickly as possible.
I have taken on board the comments of the hon. Member for Glasgow, Pollok in the debate on Second Reading and the comments today of the hon. Members for Wrexham and for Glasgow, Cathcart (Mr. Harris). We know about the appalling state of affairs, particularly in relation to drugs, in which individuals who illegally earn enormous amounts of money flaunt their wealth. Clearly, there is concern in many communities that individuals are able to get off scot free—that is not a reference to the constituencies that I just mentioned; we have many Scottish Members on the Committee.
I fully understand the anger in many communities that have been undermined by drugs. However, we must maintain the safeguards to which my hon. Friend the Member for Beaconsfield referred if we are to find a sensible way forward. If we have a mandatory approach in clause 6, which is a crucial clause—obviously, there are other issues about criminal lifestyle in subsection (4), which we will discuss later—and if the process is then driven by getting money from individuals on the basis that the police or other authorities know that someone is guilty, we are taking a dangerous path.
Perhaps I should describe myself as the hon. Member for Glasgow, Moloch, for which I credit my hon. Friend the Member for Dartford (Dr. Stoate).
Fund raising has a valuable, important and significant role—I hope that much of the money will come to my constituency—but the principal function is to impose penalties on malefactors and to act as a deterrent. It distorts the position to suggest that the proposal is some sort of stealth tax, whether that suggestion was made accidentally or deliberately.
I was not suggesting that it was just a stealth tax, but fundamental safeguards are needed. I was about to say that some self-serving arguments are advanced by those in favour of civil liberties which we were prepared to stand up against when we were in Government. However, I have grave concerns about Bills of this kind; in essence, the more that we allow the Home Secretary to appoint a director who has full, untrammelled rights to proceed and who can say to the court, ``You must do this, you must do that,'' the more it breaks down the concept of an independent judiciary, which is fundamental to our rule of law. Where this Bill leads, others will follow. Instinctively, I would say that in 99 per cent. of cases it seems to me to be entirely justified, because nothing is worse than seeing criminals getting away with it. But I refer again to what the hon. Member for Lewes said: one or two guilty people may get away with the proceeds of their crime if there is a discretionary approach, but that will ensure that many innocent people can rely upon essential freedoms.
I want to be clear that the hon. Gentleman is saying that in 99 per cent. of cases the proposal is justified and there is nothing worse than seeing the criminal get away with it. What freedom is he protecting?
The freedom to give the discretion to the court. The division between the Executive and the judicial system is, correctly, protected and enshrined in our rule of law. Measures such as this, which propose mandatory impositions on the courts, start the slide down a dangerous slope, and that is why my hon. Friend the Member for Beaconsfield tabled the amendments. I hope, therefore, that the Minister will take note of at least some of the issues that we raised.
It is imperative that the clause be couched so as to require the court to have regard to the issue of taking away the benefit of crime. It is also imperative that the proposal make it clear to anyone considering embarking on criminal activity that if they fit the criteria of having benefited from such activity, their assets will be taken away. It is three quarters of the purpose of the Bill, as the hon. Member for Beaconsfield observed at the previous sitting, to reduce crime. The clause is an important part of that aim.
It is nonsense for Opposition Members to suggest that judicial discretion is eroded by compelling the judge to embark on such a process. Clauses 2, 3 and 4 have built-in decisions on fact finding, and discretionary paths for the judge to take.
I, too, fall back on my experience as a member of the Bar, which is rather more up to date than that of the hon. Member for Beaconsfield. The Drug Trafficking Offences Act 1986 has been repealed.
We appreciate that the hon. Lady and some of her colleagues have the relevant experience. My hon. Friend and I are aware of the repeal of the Act; my hon. Friend was pointing out that he was dealing with such matters when the previous powers existed. That experience is most relevant, as the hon. Lady will concede. She is in severe danger in stating so boldly that there is no problem with judicial discretion. She must bear in mind that in another place some extremely distinguished lawyers, not least the Law Lords, may have serious problems with that. As a new Member, she should be careful about being so positive about what she says.
I regard my hon. Friends in the Committee as the most distinguished group of lawyers with whom I have been acquainted with for some time. I have no difficulty in relying on their judgment—or, indeed, on my own.
I shall relate some of my own experience to the hon. Gentleman—briefly, I promise, Mr. O'Brien. I have been involved in several cases in which apparently serious drug dealers were on the verge of being brought to book. The evidence against them has been strong. The decision of whether to plead guilty in many such cases has, in my experience, not been markedly influenced by guilt or innocence—perish the thought—or by a factor that one would have thought highly important: the considerable discount on sentence that one can earn by pleading guilty at the outset. That issue, too, is often on the back burner for such defendants. The question that they ask themselves is, ``If I plead guilty, to what extent will the Drug Trafficking Act bite on my boat and my house in the Caribbean, on my daughter's house in Hampshire, and on my own home? The judge is under pressure to get results in terms of trial turnover and so on, so can I persuade him that what he needs to slip to me to convince me to take the honourable course of pleading guilty, is to say that the Act will not bite on aspects a, b, c, and d?'' That is an appalling position into which to put a member of the judiciary. The bigger the Mr. Bigs—the ultimate targets of the legislation—the more danger there is of that occurring. In future the judge will be saved from that dilemma, because the clause requires him to proceed in the reasoned way set out and consider exactly the right course in terms of taking assets. He has no choice; he must embark on that process. However, the process also gives him an internal discretion which allows him to do justice. The clause provides an excellent balance.
I ask Opposition Members what is wrong or illiberal about sending out a clear message that if a person is convicted of crime, the court will have an obligation to consider removing all that it finds to have been the profits of that crime?
The hon. Member for Cities of London and Westminster (Mr. Field) said something interesting. He referred to innocent people being affected by the Bill, and in particular the clause. That is the key misunderstanding. Opposition Members do not seem to have registered the fact that the legislation deals with people who have been convicted of serious offences. It is entirely proper that the rigorous provisions should kick in.
I have had some experience in the field—like that of the hon. Member for Beaconsfield, mine was some time ago. It is important that we as legislators accept that we have a legitimate role in the area. It is right that judges have their role in our constitutional system, but we must learn from our constituents that there is a real perception that drugs legislation has failed in the past. It is our responsibility to improve the present system. That is what the legislation is about. It is clear that the discretionary provisions that previously existed have not addressed the drugs problem, which has got worse over the years. That is why I am grateful to my hon.—and undoubtedly learned—Friend the Member for Redcar (Vera Baird) for making it clear that the compulsory element in the legislation is crucial because the deterrent is crucial. It must be clear from the outset that the Bill is about deterring people from committing serious criminal offences that affect our constituents.
I do not want to labour the point, but this is all about what counts as serious offences. As we said earlier, the clauses are wide ranging. Unless the Government want to change the sort of offences dealt with in this part of the Bill, the provision will remain a complete catch-all, which would cover tachograph and health and safety offences as well.
I do not accept that. My hon.—and very learned—Friend the Member for Wellingborough referred to inherent provisions within the Bill that will prevent the tachograph case from reaching the stage that the hon. Gentleman fears. We are concerned with serious crime that gravely affects our communities. That is why the message of deterrence must be sent out. The mandatory element is crucial; removing it would undercut the legislation at its first stage.
I did not originally intend to make a speech, as opposed to an intervention, at this stage. However, I have been provoked into doing so by the previous two contributions from Government Members, and I shall briefly mention two important points in response to them both.
The hon. Member for Wrexham misses the crucial point that it is Parliament's job to ensure that legislation is precise and right. If the Bill were restricted to the ``serious offences'' that the hon. Gentleman spoke about—several of our later amendments are designed to be more precise about which offences are relevant—his argument might have greater force. However, our job as Members of Parliament is to deal with Government proposals as drafted. At present, the provisions could in practice cover many non-serious offences. If those on the Government Front Bench were to accept our later amendments, the Bill might end up as an Act that achieved what the hon. Gentleman said it would. At the moment, however, the Bill would not achieve that, and it is not good enough for Government Members to say, ``It'll be all right on the night. The director will sort it out and use his discretion.'' It is the job of Parliament to ensure that any potential injustice is dealt with as we work through a Bill line by line.
I will not give way to the hon. Lady, because she did not give way to me earlier. [Hon. Members: ``Oh.''] I pay tribute to the fact that the hon. Lady and the hon. Member for Wrexham are both experienced lawyers, but they are also both new Members of Parliament. When they have been in the House longer, they will realise that it is unwise to make such positive statements about what judges will do. The people scrutinising legislation in another place are the most distinguished judges in the country. The Law Lords will have strong views, which may differ markedly from the hon. Lady's. As I say, it is unwise for anyone at any level in the House—whether they be on the Front Bench or the Back Benches—and of any party to prognosticate about what judges will do.
I have been listening to my hon. Friend, mindful of the remarks of the hon. Member for Redcar. If I understood correctly, it was argued that the Act had to be mandatory because criminals would threaten judges, and I was reflecting on whether that is the right approach. Can my hon. Friend expand on that?
I will give way to the hon. Gentleman in a moment. First, I will respond to my hon. Friend's point about the hon. Member for Redcar. She said that there were no civil liberties concerns, but she must recognise that the Government, and many Back Benchers, have received details of the serious concerns of two leading civil liberties organisations. During my time in the House, I have listened to intervention after intervention from Labour Members recommending amendments because Liberty says, or Justice says, that we need them. Liberty and Justice, two of the organisations beloved of Labour Members in the past, have expressed serious concerns about the Bill. The Government and Labour Back Benchers dismiss that now, simply because it is a Labour Government who are introducing the Bill.
In a moment. The hon. Lady doubts whether the Bill poses civil liberties issues, but she should acknowledge the serious concerns of civil liberties organisations.
I am delighted to wave in public the representations made by Justice—of which I, too, am the proud owner. They do not raise the concern expressed by the hon. Gentleman. They do not suggest that this should be discretionary.
The hon. Lady may have seen only the first Justice brief and not the two subsequent ones that my hon. Friend and I received. However, Liberty—throughout the 26 pages of amendments faxed to us—undoubtedly makes exactly that point. Labour Members should take that fact seriously.
I have great respect for those distinguished lawyers in the House of Lords who will comment in due course on the Bill. They may have presided over boards that deal with related issues—but knocking on doors in constituencies affected by the drug problem is not one of their areas of experience. At the moment the system does not work and does not have the deterrent effect that we want. We must act to improve the system, and the mandatory element is an essential part of the Bill.
The hon. Gentleman argues in a measured way and explains the difference between us. He knows, as does the Minister, that a judgment must be formed. My hon. Friend and I have made our judgment; the hon. Gentleman has made another. That is a rational approach, but we will stick to our guns.
Members from Scottish constituencies must be mindful of the fact that much of the Bill comes to this House by virtue of a Sewel motion passed by the Scottish Parliament, so we should take cognisance of anything that comes from the Scottish Parliament on that point.
I raised a point with the Minister on the Scottish Affairs Committee, and again on Second Reading, about the accountability of Scottish Ministers. Today's position highlights the difficulty that I had previously identified. The hon. Member for Beaconsfield asked the Minister of State several pertinent questions. I understand why he did, but it was unfair, because the Minister cannot answer them. The person who can answer them is the Minister for Justice in the Scottish Executive. The Scottish Parliament has passed a Sewel motion, but a Special Standing Committee should consider the legislation. That would allow Ministers who are not Members of this House to give evidence.
The Minister's position is that we have a review, and it would be wrong to prejudge its outcome. I remain optimistic that he may be persuaded in some damascene way of the force of Opposition Members' arguments in favour of retaining a degree of judicial discretion. However, I accept that there is a pressing need for uniformity of provision, and while I bow to no one in maintaining the importance of an independent and distinctive Scottish legal system, I will not be party to seeing distinctions created merely for their own sake. Whichever decision is made on whether there is to be discretion, no particularly fundamental tenet of the Scottish legal system requires us to have a different position.
The hon. Member for Glasgow, Cathcart, who unfortunately is no longer here, gave an interesting example that related more to the conduct of the Crown Office than to the exercise of judicial discretion. I declare my particular interest, in that I was one of the Crown Office staff who dealt with proceeds of crime legislation. We do not lay too much stress on gossip from Strathclyde police. As a prosecutor and as a defence agent, I have dined in sufficient numbers of police canteens to know that they have different standards of evidence in such matters—evidence that does not meet the requirement for proof beyond reasonable doubt.
Listening to contributions from Government Members suggesting that there is a degree of discretion, and now things are going one step further, one could be forgiven for thinking that we were almost saying that the court must not proceed. All we are saying is that in a very few possible cases, in which there is a risk of injustice, the court should have the final discretion as to whether it will apply the tests. I do not understand why it is so important that judicial discretion be removed.
The hon. Member for Wellingborough made an interesting point, and I agree with much of the force of what he said. However, there is an important distinction, to which he has not given sufficient consideration. He referred to the discretion invested in the prosecuting authorities and in the director of the agency when he or she is appointed. Those are arms of the Executive. The judiciary is independent of the Executive. That is why it is important that the judiciary be given an equal measure of discretion.
There are problems with the exercise of judicial discretion. Anyone who has practised in the courts, especially the criminal courts, will be aware of that. I have the scars to bear testimony to it. One does not cure the difficulties with the judiciary by removing or fettering their discretion, but by considering how they are appointed and trained, and giving them proper guidance. I invite the Minister to think carefully before he throws the baby out with the bathwater.
I rise to speak with almost an apology for the fact that I am not a lawyer; I feel a bit guilty for intruding on some sort of private argument—but perhaps it would be valuable for a real person who is not a lawyer to contribute to the debate.
I must make it clear that the proposal is not a money-raising measure. It is designed to penalise offenders and act as a deterrent. I listened with interest—well, with partial interest—to the argument advanced by the hon. Member for Beaconsfield about the word ``may''. The corollary of ``may'' is ``may not''. Who is it that the hon. Gentleman does not want to be pursued by judges or the courts? I have some Library statistics that show what percentage of offenders were ordered to pay confiscation orders for drug trafficking offences in various years in England and Wales. In the last year for which there are figures, confiscation orders were made for only 15 per cent. of those sentenced. That means that 85 per cent. of people convicted of drug trafficking offences were not pursued for their resources.
Perhaps I am a simple soul, but I am in favour of pursuing drug dealers. That 15 per cent. seems a sadly low figure, but the hon. Member for Orkney and Shetland would presumably argue that as it is due to judicial discretion, then it is okay.
Before lawyers attack me, I shall finish my point. In the previous year, 18 per cent. of offenders were ordered to pay confiscation orders. The year before that, the figure was 21 per cent. Before that, it was 25 per cent., and in 1994 it was 26 per cent. A mathematician—or at least, someone with more fingers than I have, could say whether such a rate of decline, if things were left to the discretion of the courts, would in two decades result in no confiscation orders at all. That is not in line with the general mood of the country.
Several hon. Members rose—
The hon. Gentleman is right to say that the declining number of confiscation orders is a matter for concern, but it has occurred because the system has been brought into disrepute, as it was not possible to match the figure written on the court order with the value of the assets recovered. Although the Bill will make the process mandatory, there is no evidence that assets recovery will match expectations any better now than it did then. That is the major reason why the system failed and was not invoked.
That is a fascinating point, but unfortunately it has little to do with the points that I made. The hon. Gentleman argues that the system did not work and that there was a discrepancy between the assets that the court wanted to recover and those recovered. That is not the point that the statistics demonstrate; they show that no confiscation orders were made in 85 per cent. of cases. How could there be a discrepancy between the amount ordered and the amount received if those 85 per cent. never received confiscation orders? That escapes me.
Mr. Grieve rose—
I shall finish my point, and then I shall let the hon. Gentleman respond. Some 682 confiscation orders were made for sums of less than £1,000. That is a relatively modest sum. In 85 per cent. of cases, the courts did not even try to recover a sum less than £1,000. That seems to be a misuse of the system.
I assure the hon. Gentleman that I will not attack him, as it is my duty as a lawyer to help people. In that spirit, I suggest that the hon. Gentleman made a good point, but it is not affected by the question of judicial discretion. The fact is that the prosecuting authority—the Crown Office unit— would have to take the initiative to bring the matter before the court. When I was there, the fraud and special services unit had two full-time solicitors, a senior solicitor and a trainee solicitor. How much should we expect to be done by three fully qualified people and one trainee? It is a matter of resources. The question of judicial discretion does not impact on the statistics that the hon. Gentleman helpfully brings before the Committee.
That was a constructive point. I have already raised the matter of resourcing—although I must confess that when I heard the hon. Gentleman say that a lawyer's job was to help people, I looked out of the window and saw three flying pigs—[Interruption.] I know that there is a difference between pigs and molluscs, but I shall not digress. The question is whether we are being unfair to molluscs.
The hon. Gentleman may not have heard the extremely helpful suggestion made by the hon. Member for Orkney and Shetland, so I shall repeat it for him: he asked whether the flying pigs were committing tachograph offences.
Some useful points were made by the hon. Member for Beaconsfield about why the original provision for Scotland was different, and why the adaptations that we now suggest are unnecessary. In my view, the Scottish legal advice that was given to Ministers—and the way in which it was worded—was insufficiently tuned to the public mood. I always thought that the Scottish legal establishment, particularly those parts of it now working for the Scottish Executive, was out of touch with the mood of the people. Opinion in Scotland is better reflected by Labour Back Benchers. I am glad that the Minister has recognised that fact and that, in due course, the Moloch amendment—I would prefer to call the Davidson amendment—will allow Scotland to say ``must'' rather than ``may''.
Some speakers, particularly Opposition Members, ought to reflect on the fact that in Scotland—and to a great extent in England, although my experience here is not so great—have the strong feeling that judges are out of touch with life on the streets, and that they do not fully understand the impact of crime, particularly drug-related crime and its ramifications, and its effect on the lives of real people. Judges are also thought to be too indulgent towards white-collar offenders. As the Committee might have expected, it has long been my view that the legal establishment is not necessarily on the side of the people, and that the justice system in Scotland is more of a game, with rules that do not correspond with reality. The system needs changing, and if we have to do that with mandatory provisions, so be it.
I agree with some of the reservations expressed by the hon. Member for Glasgow, Pollok about judges. Their schooling and their background is narrow, and many of them know nothing about popular culture. However, that is not a reason for excluding them from the process; it is a reason for reforming them.
Yes, but life is short. I personally take the view that Scotland will not be modernised until we have abolished public schools, segregated schools, the monarch and a number of other things, but I do not expect that to happen before the Committee rises—unless the hon. Member for Beaconsfield speaks for much longer than he has today. Modernisation in a number of areas would be welcomed, but that is not an argument for not making this particular improvement.
I appreciate that the hon. Gentleman has strongly held views, and we have discussed this on many occasions outside the Committee as well as in relation to legislation. Many people who sit as recorders, dealing with day-to-day drugs cases, have been the victim of serious crime in their private lives. There have been celebrated cases recently: one thinks of the judge who was beaten up by a group of yobs who attacked travellers at railways stations to fund their drug habit. Does the hon. Gentleman not agree that one strength of our judicial system is that it contains many people who are aware of real life? If he is not aware of that, will it not be useful for him to meet those who practise as barristers and sit as recorders? If he met them, he would change his views on how aware they are of real life.
I am prepared to accept that there are some in the legal profession who, through particular incidents, have experienced the bad effects of drugs. If he is arguing that all judges should be beaten up regularly, as a valuable learning experience, that is a proposal that I will reflect on. I might move an amendment on it later.
The hon. Gentleman is missing the point about the effect of crime in communities such as my own. It is not about individual incidents, but about the cumulative, corrosive effect day in, day out. It is about people being confined to their homes after 5 o'clock. It is about mothers telling me that they must go out to the shops before 1 o'clock because a horde of yobs get out of their beds at lunchtime and start rampaging through the streets. If people do not get their shopping done by then, they might not get home with any change—or, sometimes, with any of their shopping. It is a cumulative effect, and I do not believe that any judge or person high up in the legal system lives in such circumstances. If the hon. Gentleman can come up with one, I shall be happy to meet him or her.
I agree that Labour Back Benchers are more in touch with what is happening on the ground than some of the judiciary are. However, our change of policy is not meant in any way to be a criticism of the Scottish judiciary, which has consistently pursued confiscation orders. We took that into account at the start. We thought it more important to have a consistent policy throughout the United Kingdom that would send a clear message to people who might be tempted to get involved in drug trafficking or other offences. There should not be any criticism of our legal draftspersons, who only carried out Minister's instructions. Not be just one amendment but many amendments—I am happy for them to be called the Davidson amendments—will be drafted by those diligent people who have to change the Bill at our request, responding to different representations.
I should correct myself and make it clear that our draftsmen are undoubtedly the most wonderful people that we employ. I hope that they get the Davidson amendments correct. The Minister may have a more generous view of Scottish judges than I, but we shall not pursue that today.
There is a difficulty with the arguments put forward by the Opposition. I welcome the fact that they have substantially retreated from their ideological opposition to ``must'' to the argument that they are probing only for the exercise and the Government's good. I recognise that lawyers are experienced in arguing things that they do not believe, but as a more simple soul I believe that it would be helpful if we had more honesty from the Conservatives and they told us whether they are in favour of gutting the Bill or keeping it tough.
As we said on Second Reading, we support the recovery of assets of criminals who have benefited from their criminality. We are much more dubious about the possibility of the net being cast to recover assets from large numbers of people who have committed relatively petty crime, under an onerous confiscatory system that seems to shift the burden substantially against those people and which could give rise to injustice. That is why we want to explore all the possibilities, of which the amendment is one, to try to prevent that from happening.
I have never said that this is the central, vital amendment. As I explained earlier, the problem could be approached in other ways. However, I say to the Minister that, having listened to all that has been said, I am not optimistic about future amendments and that is why I shall stick to this one—if not like a mollusc, like a limpet.
Despite the hon. Gentleman's eloquent pleading, I still believe that he is soft on such matters. I do not find that particularly surprising because I understand that his family has past form in dishonesty. His ancestors were cattle and sheep thieves in the borders, from where my family comes. I suppose that cattle and sheep thieving does not these days provide a great deal of money, which must be why he became a lawyer. My ancestors were too poor to have cattle and sheep.
That is right. Those were the days before the invention of cardboard and so we did not even have a cardboard box to put in the middle of the road. Indeed, we were too poor to have roads.
I pick up the point that one of my hon. Friends made about inconsistency and insufficiency. The existing system is clearly unsatisfactory. I was distressed when the hon. Member for Beaconsfield said that pursuing some criminals for their assets would be, if I remember correctly, completely pointless. I would welcome clarification from the hon. Gentleman about which criminals he believes it would be completely pointless to pursue for assets.
I confess that I was also shocked and disappointed—though it is always a helpful experience because it confirms some of my prejudices—when the hon. Gentleman said that he had been spending time on a six or seven-week drugs case and that, if I heard correctly, the prospect of discussion and debate about investigating and seizing assets would be too much to thole.
Mr. Grieve rose—
We confiscated £1.5 million in the case with which I was involved. Whatever we may have felt at the conclusion of that six or seven-week case, I as the prosecutor, and those instructing me, did the job that was required to recover those assets. I have never discovered whether the full £1.5 million was ever seized, which brings me back to the point about sometimes having doubts about matching the sums and the reality.
I assure the hon. Gentleman that I was not making a point about my own participation in that, but I accepted the point made by another hon. Member that the exercise sometimes seemed time-consuming. I said earlier that the return from the exercise is perceived as much less than it could be and that fact may have made people more reluctant to embark on it. However, in the case that I was citing, we were successful and, on paper, £1.5 million was due to be seized and recovered.
The hon. Gentleman is rowing back a bit from what I understood him to say earlier, although he still gives the impression that the case was a bit of a chore. I am in favour of penalties and deterrents, whether or not they are time-consuming, because of the impact that the drug problem has on my community. The hon. Gentleman would do well to be of that mind. I do not know whether he has ever stood for election in a constituency such as mine or whether Beaconsfield was his first go at an election. I have not had time to read about him.
I stood for Norwood in 1987, where I was vice-chairman of the police community consultative group. That seat took in the whole of the front line—Railton road, Coldharbour lane and most of the area in which the major drug dealing in south London took place.
How can a man have had so much opportunity and learnt so little? If the hon. Gentleman saw all those things, I find it surprising that he did not learn anything from them.
I too lived in Beaconsfield and my children used to go to school there. One difference between that constituency and the one that I now represent—where I live and where my children go to school—can be summarised by explaining that when I recently visited a primary school in my constituency, every child aged between six and 10 to whom I spoke had found needles on their estate.
That was a valuable contribution.
Opposition Members criticise the fact that we have a catch-all procedure. Presumably, the alternative to that is a do-not-catch-all procedure. May I have clarification of the people who should not be caught? Who should we not pursue? [Interruption.] I shall come to tachographs in a moment.
The hon. Gentleman needs to reflect on how some of the matters to which he referred rose. When my hon. Friend the Member for Beaconsfield referred to his experience, he was responding to one of the hon. Gentleman's hon. Friends who, as Hansard will show, originally raised the matter of the cumbersome existing procedure. The matter was not raised only by Opposition Members, because Labour Members said it.
The hon. Gentleman asked who should not be caught. We should try to catch everybody. However, there are difficulties with having draconian procedures that may lead to serious worries about civil liberties for people who such anti-drugs legislation was not intended to target.
This is the tachograph case, as I understand it. I reiterate a point that I made earlier. I am greatly heartened at the prospect of people who commit tachograph offences being caught by the Bill because, as I mentioned, some of my constituents have been killed by drivers who drove beyond their permitted hours. They were under pressure from their employers so that more money could be made from the equipment that the employer purchased at enormous cost—I understand the commercial pressures. Therefore, the drivers were driven to commit offences by their employers. The penalties that were imposed on the lorry owners were utterly derisory. If there was the prospect of the seizure of the lorry, employers would be more inclined to ensure that tachograph rules are obeyed. That is a valuable point, and I hope that it will be incorporated in the Bill.
What the hon. Gentleman says about businesses encouraging drivers to work longer hours may be valid. However, when the tachograph system was introduced, the unions opposed it on behalf of the drivers, who wanted to work longer hours in order to make more money. The problem does not concern only employers, but employees.
That is an interesting point. I opposed the producer interest on that matter and I thought that the unions were wrong, although I understood their reasons. However, the current pressure on drivers to break the tachograph rules comes directly from employers rather than drivers. If an employer is decent, penalties will be imposed on any driver who wishes to increase his or her hours by driving additional miles.
I am sorry. I had reached the end of the road about tachographs.
I mention the key matter of health and safety. If the Bill allows courts to act against building employers whose neglect of health and safety results in the death of employees, that is an unexpected bonus. As I said on Second Reading, ``Thank you, God'' for Conservative Members' speeches.
Let me offer an example that is more from the real world than that of the tachograph, which Conservative Members offered. I invite the hon. Gentleman to consider the position of an habitual shoplifter who has obtained goods of substantial accumulative value as a result of crime and is prosecuted in the summary courts. That person will be leading a wholly chaotic lifestyle and will almost certainly be shoplifting to finance an addictive habit.
As the legislation stands, the agency's director and the prosecuting authorities can bring proceedings against such a person. Is it not right that, if the agencies of the state abuse in the way that has been described the authority given to them by the House, it should be open to the courts to say, ``No, you're not on''?
Again, that is a helpful and constructive contribution. I wonder whether the hon. Gentleman is really a Liberal or whether he would like to join those of us on the Labour Benches in future. I look forward to more constructive comments from him as the debate progresses.
Let me deal with the question of civil liberties. I cannot be the only Member who finds it ironic that the Conservatives are raising the flag of civil liberties.
Not necessarily. The point was well made, but I have very little experience on the issue. As my hon. Friend the Minister says when he does not have an answer, I shall go away and reflect on the point that has been made. No doubt I shall raise another point in future—and you may or may not rule me out of order, Mr. O'Brien, depending on whether it is relevant.
Civil liberties are about balance. Some members of the civil liberties lobby do not fully recognise that the world has moved on from the time when I and many others were first active in the movement, with which I am still involved. In those days, the scale of poverty, crime and misery caused by drug addiction and all its consequential effects was not what it is now.
The existing system has been shown to be unable to cope with the pressures on it, so changes must be made. I shall make a point that has been made before: the civil liberties of people in my area who are effectively under house arrest after 5 o'clock or even noon must also be taken into account and a balance struck. The Bill is all about attacking the Mr. Bigs, many of whom I suspect live in areas such as Beaconsfield rather than mine.
I spoke earlier about the judiciary and the courts. This country has almost a tradition of leniency on white-collar crime. I am thinking back to people such as Ernest Saunders and the subsequent amazing cure of his Alzheimer's disease. People involved in such offences have not been pursued as vigorously as they should have been by the courts. That is part of the reason why I have no confidence in them and why we must have mandatory rather than discretionary provision.
Before I finish, I give Opposition Members the opportunity to raise any point that I have missed.
The Committee will be enormously grateful to you for allowing such a wide-ranging debate, Mr. O'Brien, because this is the trigger clause for the confiscation procedures. I am enormously grateful for the contributions of my hon. Friends, some of whom have direct experience of operating in the legal system, who bring an expertise and knowledge to the Committee that I do not have. I want to stick up for the non-lawyers, too, and I am grateful for the points raised by my hon. Friends the Members for Wrexham and for Glasgow, Pollok. My hon. Friends raised issues that go to the heart of the situation.
The Minister maligns me; as Hansard recorded only yesterday, I have huge respect for him.
Some of the Minister's hon. Friends have valuable legal experience that informs their contributions, but their arguments are at odds with the views of his hon. Friend the Member for Glasgow, Pollok, who starts from the a priori position that every lawyer and every Tory is the incarnation of evil. The hon. Members who have experience in the matter take a different view of the proposal. Which of those two conflicting views does the Minister prefer?
If my hon. Friend the Member for Glasgow, Pollok said that every lawyer and every Tory is inevitably evil, I would only go part of the way with him.
May I take up the point raised by the hon. Member for Surrey Heath about an a priori position? We were too poor to have Latin, never mind a cardboard box, and I should prefer it if the hon. Gentleman spoke in English for the benefit of those of us who are not lawyers.
We shall leave that matter and move on to the substantive point.
The contributions of the hon. Member for Beaconsfield and other Opposition Members ranged far and wide and I wonder why they did so. It was justified in large part as this is a triggering clause, but I suspect that they did so partly to confuse and to avoid the ramifications of their important amendments.
I shall discuss two main issues: first, our original position in relation to Scotland and our position now and, secondly, the allegations made by the Opposition about the draconian measures that the Labour Governments are about to introduce, which will rip up our traditions or worse.
The amendments would fundamentally alter the confiscation scheme proposed for England and Wales and, possibly, Scotland. By changing from a mandatory procedure to a discretionary procedure all five amendments would apply when the prosecutor had asked the court to go through confiscation procedures. Amendment No. 8 would leave it to the court's discretion to initiate a confiscation procedure. If the court decided to go through the confiscation procedures, amendments Nos. 9, 14 and 15 would give the court the discretion to make the confiscation order regardless of the circumstances of the case. The court could refuse an order even if it found that the defendant had benefited from his criminal conduct and had realisable assets.
Tones of horror have also emanated from the hon. Gentleman. Two matters need to be explained to the Committee—why our original position in relation to Scotland has changed, and the substantive issues raised by the amendments. The hon. Member for Beaconsfield tried to draw attention to one of those matters to get away from the other. Let us be absolutely sure that all members of the Committee and those outside know what the Conservative party is proposing. The hon. Gentleman trailed his coat in different directions, but as my hon. Friend the Member for Glasgow, Pollok noticed, the thrust of the hon. Gentleman's argument today has not been that the proposal is a probing amendment. Perhaps the hon. Gentleman will clarify whether it is a probing amendment before we decide whether to vote on it. For the moment, let us stick to its consequences and not allow him to confuse us and dive off in different directions to escape from the argument.
If the court decided to make a confiscation order, amendment No. 10 would permit it to make an order for less than the defendant's benefit and realisable assets. Confiscation proceedings in England and Wales are currently mandatory in their entirety. In drug and non-drug convictions, the court must authorise confiscation proceedings at the prosecutor's request. It must make a confiscation order if the defendant benefited from the offence of which he has been convicted in the current proceedings and, in some cases, if he benefited from other criminal conduct. The court must set the value of the order at the value of the benefit or of the realisable assets, whichever is the smaller.
Such legislation was carried through not by a draconian Labour Government bulldozing their way through the traditions of our legal procedures, but by a Conservative Government supported by the hon. Member for Beaconsfield, who has now tabled amendments to remove the word ``must'' from such proposals. He must explain why.
I had hoped that our debate on Second Reading and the philosophy underlying the Bill made the position clear. The regime is not about confiscation in relation to specific offences, but about confiscation based on a finding that will have to be examined, and the amazing matter of a criminal lifestyle or particular criminal conduct. If the proposal were confined to particular criminal conduct, I would have fewer anxieties about the Bill. However, it is designed to get at people who have that wonderful thing called a criminal lifestyle, which makes the Bill so wide-ranging. We should provide protections before it starts to bite.
No, no, no. Let us return to the amendments. Triggers and the threshold for assumptions are set out in the Bill and there are opportunities to amend them. The amendments would make discretionary the entire confiscation procedure. The hon. Gentleman knows that. He has, once again, dived into the issue of assumptions. He is proposing that we retreat from the mandatory use of confiscation procedures. That is the purpose of his amendments.
My hon. Friend the Member for Beaconsfield has not dived into anything. The two matters are inextricably linked. As the Minister conceded, we are discussing trigger provisions. The Government are proposing a new regime, based on new concepts of what constitutes a criminal lifestyle—the Committee will debate them in due course—and that is why the proposals are so draconian.
The Minister referred to the previous legislation, which was introduced by a Conservative Government. Has he read the Hansard record of the debates about those provisions? It is revealing to discover what speakers from his party's Front and Back Benches said about them. They were briefed by organisations such as Justice and Liberty. What has led the Minister to reverse at least a 30-year tradition of Labour views on such matters?
I am glad that the hon. Gentleman has raised the matter of responses to previous legislation.
The House holds to one tradition that ought to be broken with. It was encapsulated by my hon. Friend the Member for Wrexham, and it was also mentioned by my hon. Friend the Member for Glasgow, Pollok. It is the tradition of going through the motions by proposing legislation to address a massive problem, but only pretending that it will make a massive difference. However, in this instance, the Government are trying hard tomake a real difference, and I hope that the hon. Member for Surrey Heath will embrace that. We are trying to bring in legislation that will do what it is intended to do: we are not proposing yet another Proceeds of Crime Bill that will not achieve its purpose of allowing courts to remove the assets of convicted criminals.
When I consult Hansard, I read the contributions of past Home Office Ministers—the ones who were far more distinguished than I. Recently, I alighted on the comments of the Home Secretary in 1986, Mr. Douglas Hurd. He said:
``Our strategy is effectively overseen and co-ordinated by the interdepartmental ministerial group''.
He was explaining his strategy to deal with drugs. We, too, have an inter-departmental ministerial group. I have boasted in the Chamber about how we have tried to achieve effective inter-departmental, inter-agency working relationships to tackle drugs. Such an inter-departmental ministerial group existed in 1986.
Mr. Hurd also said that the Drug Trafficking Offences Bill
``fits firmly into our strategy. By attacking the profits made from drug trafficking, we intend to make it much less attractive to enter the trade. We intend to help guard against the possibility that the profits from one trafficking operation will be used to finance others, and, not least, to remove the sense of injury which ordinary people are bound to feel at the idea of traffickers, who may have ruined the lives of children, having the benefit of the profits that they have made from doing so.''—[Official Report, 21 January 1986; Vol. 90, c.241-42.]
I said something very similar on Second Reading.
Are hon. Members in the business of increasing the public's cynicism about our ability to tackle the important issues that make an impact on people's lives? Do we wish merely to go through the motions by introducing legislation that will make no discernable difference, or are we going to do something about the problem that we are discussing? For more than a generation, Ministers have stood up in the House and claimed that they would do something about it. I ask Opposition Members to consider that, because their amendments threaten to cut the heart out of the Bill.
The Minister speaks with passion, and rightly so. I agree that we must get to the heart of the problem, and he should not think that we wish to undermine the aim of the Bill. However, he will be the first to concede that, unless we are here simply to rubber-stamp, the purpose of Parliament is to get legislation right. The Minister knows that the reason that we have line-by-line and word-by-word scrutiny is so that serious issues such as these are thought through properly. As the Minister rightly said when he discussed triggering provisions, we must get it right. We will not give in until the Government get it right.
A responsible and loyal Opposition, concerned for the interests of people on precisely the hard estates that the hon. Member for Glasgow, Pollok described earlier—I and my hon. Friend the Member for Beaconsfield know those estates well, despite the hon. Gentleman's suspicions—would want to get the legislation right and ensure that it is effective. However, it must not be overly draconian; if it is, the law will be brought into disrepute.
The hon. Gentleman says that, and the hon. Member for Beaconsfield said it on Second Reading. I am trying to hang on to the thought that the Opposition are working to make the legislation more effective. I hope that my good faith is justified and that that is what they are doing. My hon. Friends have cast aspersions about their motives, and I find it difficult to see how the central amendments on the confiscation proceedings would improve the legislation; they appear to be an attempt to retreat. The proposals would send a message that we were moving backwards from a mandatory to a discretionary provision with respect to confiscation of the proceeds of crime.
Several hon. Members rose—
We share the objective of making the Bill effective—for example, we want drug dealers brought to justice and their assets seized—and my honest perception is that the Conservatives genuinely want that as well. Thus, it is not fair for the Minister to portray the debate as a battle between those who want the Bill to work and those who do not. That is overstating the case.
The amendments are about the extent to which safeguards in the Bill ensure that those who are innocent are protected. To what extent is it appropriate to bring in judicial discretion? Perhaps it would be helpful to concentrate on that issue, rather than assuming that we or the Conservative Members have poor motives.
I did not throw that allegation at the hon. Gentleman; he has not signed the amendments that we are discussing. Other amendments might be better targeted at some of the issues that he raises. I can only address the amendments before us, which change the mandatory confiscation regime to a discretionary one. That is the effect, and it takes us backwards rather than forwards in dealing with a problem in relation to which we all, supposedly, accept that we have been ineffective. I do not see the justification for that.
The Minister understandably concentrates his attention on amendments Nos. 14, 15, 9 and 10, which are Conservative amendments. I see why he would be tempted to do that, as he might be on stronger ground there. However, I draw his attention to amendment No. 8, to which my hon. Friend the Member for Lewes and I have appended our names, and I invite him to consider the example that I offered to the hon. Member for Glasgow, Pollok, which he continues to deflect. Is not a provision essential that would allow the courts to serve as a backstop—a catch, perhaps—if executive agencies of the state abuse the discretion given to them? Can he address that point without considering the remaining four amendments?
The hon. Member for Orkney and Shetland made a pertinent point about the group of amendments, which may be helpful to the Minister. I hope that I made it clear when I opened the debate that some of the amendments overlap massively; for instance, if amendment No. 8 were accepted, the others could be ignored. If it were not accepted and the Minister had an alternative approach, some of the other amendments might be significant. There is always a danger in the blunderbuss approach, and there is no way of avoiding it when considering a series of amendments such as those before us. The hon. Member for Orkney and Shetland was right to focus on amendment No. 8 as the backstop to prevent injustice.
Let us examine what the hon. Member for Orkney and Shetland is trying to achieve with his backstop. There is a backstop built into the assumptions, because proceeds that are not the proceeds of crime should not be recovered, and the court can refuse to use the assumptions when that would lead to injustice. There is already a backstop, and the hon. Gentleman wants to introduce another to cover the whole of the confiscation procedure. He wants a backstop in cases in which someone has been taken to court and found guilty of an offence, so that some or all of the proceeds of crime cannot be confiscated.
Yes, because occasionally it might be oppressive to pursue the proceeds of crime. If executive agencies of the state choose to act oppressively, we must have protection from the courts. Why is the Minister not prepared to give us that?
In what circumstances would confiscation of the proceeds of crime be oppressive? I genuinely want to know. Conservative Members raised the issue of the tachograph--[Interruption.] Indeed; shoplifters, too, have been mentioned. It has been said that the person concerned might have a chaotic lifestyle, and that it might be inappropriate to confiscate the proceeds of crime. I accept that someone in such circumstances might have a chaotic lifestyle, but it is being suggested that we might deal with that chaotic lifestyle by allowing the ill-gotten gains to be retained. What is being suggested, if not that? If someone has a chaotic lifestyle, society should try to help that person to come off that chaotic lifestyle. I hope that the thrust of legislation supported by the hon. Gentleman's party and mine would include measures to help someone to come off that chaotic lifestyle. How can provisions to allow people to retain their ill-gotten gains help them to come off their chaotic lifestyle?
When someone has a chaotic lifestyle, identification of the proceeds of crime can be next to impossible, but the assumptions mean that that will have to be done.
No. The hon. Gentleman is diving off again, to use my non-lawyer phrase. He is asking for a backstop because he thinks that one is necessary. I have said that there is a backstop in the use of the assumptions. The amendment would introduce a backstop that goes wider than the assumptions, and the hon. Gentleman uses the issue of assumptions to justify his desire for a backstop.
I am not a lawyer and perhaps I do not use the precise language of lawyers, but we are introducing a backstop that applies not to assumptions, but to confiscation.
Is it not the case that amendment No. 8 would not provide a backstop? It would provide a filter or block to stop specific sorts of cases going down the route of the backstop provisions. The only cases that it would block would be those in which the prosecutor or director asked the court to proceed. Does not that suggest that the Opposition simply do not believe that the prosecutor or director would ask for that in reasonable circumstances?
My hon. Friend is right. I do not see the necessity to introduce yet another backstop into the Bill--
It being twenty-five minutes past Eleven o'clock, THE CHAIRMAN adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at half-past Two o'clock.