Clause 101 - Disposal of family home

Proceeds of Crime Bill – in a Public Bill Committee at 10:30 am on 6 December 2001.

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Question proposed, That the clause stand part of the Bill.

Mr. Foulkes: I advise the hon. Member for Beaconsfield, although I may regret it, that this clause merits our attention, as do clauses 102 and 120—I am being really helpful now. Provided that I do not get asked to move at great length amendments that should be moved formally, we may have time to consider them.

Clause 101 provides some protection for the accused's family in relation to the family home. The clause applies when a confiscation order has been made but the prosecution has not satisfied the court that the accused's interest in his family home has been acquired as the benefit of criminal conduct. The clause replicates existing provisions in the Proceeds of Crime (Scotland) Act 1995. An administrator who has been appointed to ingather the estate of the accused in the terms of the confiscation order cannot dispose of the family home, as defined in subsection (5), without the consent of his spouse, former spouse or a relevant person with a child of the family. Where no consent is forthcoming, the administrator must apply to the court for authority to do so. Once the court has taken all the circumstances of the case into consideration, it may refuse to agree to the disposal of the family home or postpone it for up to 12 months.

Mr. Grieve: This is an interesting provision. How does it compare with existing safeguards in the England and Wales part of the Bill—if there are any? The answer is that—apart from the Crown court perhaps having some discretion about the way in which disposal took place—there were no safeguards under the England and Wales provisions. We should seek enlightenment from the Minister about it. He is content to leave that protection in Scotland. He may wish to remove the discretionary and mandatory provisions, but he has not tinkered with this provision. It is a matter on which uniformity has not been reached.

Obviously, it is too late to revisit the clauses on England and Wales, but if it is uniformity that is being sought, I should be interested to hear the philosophical justification for keeping the provision. If the clause is so desirable and ensures that no injustice is done should we not consider something similar for England and Wales when we come back to the matter on Report?

Mr. Mark Field: I, too, seek clarification from the Minister, with regard to unmarried partners. The provision refers to the spouse and to the former spouse and as a result the definition of a family home is fairly tightly couched. Clearly, other legislation in Westminster and, I suspect, in Scotland will be increasing the rights of unmarried couples in the years to come. There could be some injustice, in the broadest sense of the word, to children. A child born to parents out of wedlock, but who are in a stable relationship, would suffer under the proposal to dispose of the family home.

Mr. Carmichael: The Minister was, I take it, happy to have my support earlier today on the question of uniformity of provision. I associate myself with the remarks of the hon. Member for Beaconsfield on the desirability of affording to the people of England and Wales the same uniformity of protection as is quite properly given to the people of Scotland.

Mr. Foulkes: The hon. Members for Beaconsfield, for Cities of London and Westminster, and for Orkney and Shetland raised valid points. The answer is historical. Prior to the Proceeds of Crime (Scotland) Act 1995, the Scottish Law Commission made certain recommendations. It advised that some protection should be afforded to parties who may have an interest in the family home. On the question raised by the hon. Member for Cities of London and Westminster, for example, the cohabitee would be covered. The recommendation was set against the background of the Matrimonial Homes (Family Protection) (Scotland) Act 1981. It gave rights of occupancy to spouses and cohabitees, when the non-entitled spouse was not a joint proprietor.

The situation is different in Scotland from the rest of the United Kingdom. However, the English courts have discretion when the realisation of property is concerned, but their powers must be exercised with a view to the satisfaction of the confiscation order. There is no provision permitting the family home not to be realised in the current English legislation or in part 2. We would expect the courts to order realisation of the family home if it is necessary to satisfy a confiscation order. It is important to note that the Scottish legislation permits the realisation of a family home to be delayed, or prevented—the application for its sale may be refused—if it is not proven that the defendant's interest had been obtained with the proceeds of crime.

There are arguments in favour of both positions. On one hand, it may be argued that no one should be able to retain the proceeds of crime, and that a confiscation order should always be enforceable against any realisable property regardless of its nature. On the other hand, there is an argument that family circumstances may be so particular that the retention of the value of the proceeds of crime may be permissible. The provisions under parts 2, 3 and 4 reflect a policy difference between the existing legislation of the three jurisdictions. As the position is settled and is not thought to have given rise to practical problems, we have not thought it necessary to change it in the Bill.

Mr. Grieve: I am grateful to the Minister for that response. As I listened to him, I almost substituted the business of ''must'' and ''may'' for the subject under discussion, which he said had never given rise to practical difficulties. He said that he saw no reason to interfere with the provision. This is a matter in which uniformity will not be achieved.

I am happy to let clause 101 stand part of the Bill and shall not oppose it, but I ask the Minister to talk to the Under-Secretary about whether similar protection is required under law in England and Wales. That raises many complex issues, including the value of equitable shares and properties, subjects with which I am not familiar, even in English law. We certainly have not gone into those subjects. As this is probably our only opportunity to consider whether England and Wales should have the extra protection afforded by the clause, I hope that either the Under-Secretary or the Minister will assure us that some thought will be given to the matter before Report.

Mr. Foulkes: I do not think that the Opposition tabled an amendment to that effect, although I may be wrong.

Mr. Grieve: The Minister is absolutely right. The consideration of this Scottish clause has prompted my thought processes. One of the things that I enjoy about Committees is the way in which ideas develop in the course of discussion. Committees are not set pieces.

We may well have overlooked the issue when it arose earlier in the Bill. After all, there is a great deal of Bill to consider. There are differences between this clause and those that we considered earlier. As the clause seems desirable, and as uniformity is one of the Government's aims—an aim that has taken up a bit of the Committee's time today—I should be grateful for an assurance that some thought will be given to whether the English legal principles are satisfactory.

One reason why we did not table an amendment on the subject is that English courts, with their equitable jurisdiction, frequently resolve property disputes. The protection afforded to spouses in such disputes is well established. A spouse who has made contributions for 20 years may well have an equitable share in a property purchased with tainted money. I expect that, under English law, the court might have to respect that share, but I may be wrong. I claim no great expertise in that area of law, although I could discuss it with my wife this evening.

The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): In your drawing room.

Mr. Grieve: I shall not recite the poem by Lewis Carroll that says:

''I took to the law

And argued each case with my wife''.

I should simply like an assurance.

Mr. Mark Field: For clarification, I assume that my hon. Friend wishes to discuss the matter with his wife because she is a property law expert, not because she has plenty of tainted money.

Mr. Grieve: I am grateful to my hon. Friend for preventing the wrong impression from being given on the record. My wife is a specialist property lawyer. That is why it might be advantageous for me to consult her.

I will be grateful if the Minister will consider the points that have been raised.

Mr. Wilshire: I want to follow up what my hon. Friend has said, and perhaps further persuade the Minister. I do not criticise the provision—it seems very sensible. I did not spot the issue in advance and am sorry for that, because I could have raised it informally with the Minister.

If I heard correctly, the Minister said that there is a difference between the provision for Scotland and the status quo in England. I cannot understand the difference, but I hear that there is one. It seems that the clause offers more protection to Scotland than is available in England. We have talked about ensuring that the Scottish position is the same as the English one. On this occasion, there is a case for asking whether the English position should not be the same as the Scottish one.

The positions might not be the same. If that is the case, I do not expect the Minister to tell the Committee immediately how that will be put right. Eminent lawyers might conclude that it is impossible to achieve that, in English law. However, he should not merely undertake to discuss the matter. I want him to tell us that he believes that an important principle is at stake, and that he will try his best to make the English position the same as the Scottish one.

On that matter of principle, we could try to press the Minister now, so that he might, either on Report or when the legislation is discussed in another place, come up with wording that will bring the English situation into line with Scotland's better situation.

Mr. Foulkes: I am impressed that Opposition Members recognise when I am speaking from my brief—which is when they pay more attention.

I have also been contemplating the discussions that took place in the Grieve household about legal intricacies. It is clear that the members of his family did not have much of a discussion last night about the brilliance of Van Nistelrooy's goals for Manchester United—instead, they were discussing points of law.

There are differences between the three jurisdictions. The Committee has discussed uniformity: it debated the sending of a common message, throughout the entire United Kingdom, about the central thrust of the Bill, which is the confiscation of the proceeds of crime. That message must be clearly and forcefully communicated.

We are now debating a detail concerning uniformity, and the hon. Member for Beaconsfield would not expect my hon. Friend the Under-Secretary or me to give an immediate undertaking—to borrow the word that the hon. Member for Spelthorne used—about the matter. However, my hon. Friend has heard the arguments, and we will examine whether there should be common ground, and—if we decide that that is desirable—how it should be achieved. He will report back on that, at an appropriate time.

Mr. Wilshire: I thank the Minister for those remarks.

Question put and agreed to.

Clause 101 ordered to stand part of the Bill.