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I beg to move amendment No. 141, in page 55, line 22, leave out 'may' and insert 'must'.
The amendments before us are the first of a large number of amendments that we have tabled to make the confiscation regime in Scotland mandatory on the courts in the same way as the regime in England and Wales under part 2 of the Bill. My colleagues will recall that, under the Proceeds of Crime (Scotland) Act 1995, the courts in Scotland have the discretion, first, whether to employ the confiscation order, secondly, whether the confiscation order should be for the total amount of the accused's benefit and, thirdly, whether to make an assumption about the benefit from general criminal conduct.
As I have said before in the Committee, the judiciary in Scotland has always exercised its discretion to employ confiscation orders. The Government have no criticism of the Scottish judiciary in that respect. Nevertheless, several of my hon. Friends and others expressed concern, both on Second Reading and elsewhere, about the discrepancy between the mandatory regime for England and Wales under part 2 of the Bill and for Northern Ireland under part 4, and the discretionary regime in respect of Scotland under part 3.
I have had detailed discussions with my colleagues in the Scottish Executive, who are responsible for such matters in Scotland. Both Jim Wallace and the Lord Advocate shared my view and that of many of my colleagues that it was essential for the confiscation arrangements for Scotland to be sufficiently robust, and for confiscation to be pursued in all appropriate cases. We also want to ensure that there are no gaps or loopholes between the regimes north and south of the border through which the criminal can avoid having a confiscation order imposed on him.
The Minister has said that the origin of the amendments lies in his discussions with Jim Wallace and the Lord Advocate. Will he confirm that, and explain the basis on which the Committee is seized of the matter? Is not the basis of our authority to proceed with the parts of the Bill that concern reserved matters in Edinburgh the Sewel motion that was passed by the Scottish Parliament? That took place on 24 October, when the Scottish Parliament had in front of it the Bill as it was drafted. What consultation has taken place with the Scottish Parliament, as opposed to members of the Scottish Executive, about rewriting the Bill in such a fashion?
The hon. Gentleman is absolutely right about what happened; his work in the Library last night was not in vain. I am glad that he is taking the matter so seriously. On 24 October I was listening to the debate in the Scottish Parliament, so I have not had to read the proceedings as he has had to do. The position is clear. My responsibility, which I have undertaken on behalf of Her Majesty's Government, was to consult the appropriate Ministers—[Interruption.] The Opposition spokesman does not seem to be interested in my answer to his question. My duty is to consult the Ministers in the Scottish Parliament who have such a responsibility, and they must judge whether it is necessary for them to consult the Scottish Parliament before agreeing to my request and our proceeding in that direction.
The constitutional position, however, is that, once the Sewel motion has been passed, this Parliament has absolute authority to legislate in the areas covered by the motion. What I did was a courtesy, and I believe that it was the right courtesy. It was establishing a precedent, and I believe that it was the right precedent. It is, however, up to Scottish Ministers to decide whether they think that it is necessary to consult the Scottish Parliament.
I am grateful to the Minister for that clarification. I apologise if I was momentarily distracted when he was speaking earlier. Will he confirm the position? Let us suppose that a Bill is placed before the Scottish Parliament, which then votes on a Sewel motion, but that the Bill is subsequently completely transformed by this Committee. Is the Minister saying that in those circumstances, absolute authority has been surrendered? Is he saying that we can do exactly what we like, including imposing on Scotland a Bill wholly different from that originally intended, and that the Scottish Parliament has no further powers in respect of it?
No. I was saying that when a Sewel motion has been passed on the devolved areas of the Bill, there is no problem about the reserved matters. This Parliament is supreme. On devolved matters, this Parliament—the supreme Parliament—has devolved legislative powers to the Scottish Parliament. If the Scottish Parliament adjudge it appropriate for such matters be dealt with by the United Kingdom Parliament, the Sewel motion is passed to return to us the power to legislate in devolved matters.
If the Scottish Parliament gives us that power, and the Bill is then considered in Committee, it would be ridiculous to suggest that we cannot amend it, because we have the power to do so. The Committee must discuss and analyse the Bill in detail. It is up to United Kingdom Ministers to judge whether an amendment is of such magnitude that we need to consult Scottish Ministers. If that is the case, we should do so.
For drafting or technical amendments, there would be no need to take such action. In fact, there are some amendments on the amendment paper today on which we would not consult, nor would we contemplate doing so. If an amendment were of sufficient magnitude, then obviously we would consult Scottish Ministers. It is then up to them to decide whether they think that the amendment is of sufficient magnitude to return it to the Scottish Parliament for consideration. If, for example—as I think has been suggested, if not in this Committee then outside it—the Assets Recovery Agency were extended to Scotland, it, rather than the Lord Advocate, would carry out certain functions. Perhaps then Scottish Ministers would consider that the amendment was of sufficient magnitude to go back to the Scottish Parliament. That must be their judgment, not ours.
Will the Minister confirm that if the form in which the Bill becomes an Act is unacceptable to the Scottish Parliament, it is always open to the Scottish Parliament to pass amending legislation if it chooses?
I think that that is right. The hon. Gentleman is a lawyer, and although I know a lot about the Scotland Act 1998 and my Department is responsible for it, to be absolutely sure, I will check.
I say to both hon. Gentlemen that we are discussing new matters. We have not had a devolved legislature like the Scottish Parliament in mainland Great Britain for 300 years. In fact, there has been nothing like it before, because the previous legislature was somewhat different—[Interruption.] It was not democratic, either. We are establishing precedents and have to be careful and thoughtful about them. While maintaining the rights and responsibilities of the Scottish Parliament, we must also think of the practicalities of considering legislation in Parliament, and in Committee in particular, when a Sewel motion is passed. I think that we have got the balance right, and that the Scottish Ministers' judgment is right. They considered the matter carefully and thought that we were moving in the right direction. They thought that there was no need to consult the Scottish Parliament.
The Minister began his remarks by saying that he had acted from courtesy, and set a precedent—I think that I quote him correctly. I am not a lawyer, but I am concerned about that, and would like confirmation that he has not ceded any authority. I understand that he turned to the Scottish Parliament, in good faith, for a greater understanding of what it hoped to achieve through us. Will he confirm that the courtesy that he extended and the precedent that he has set have not reduced our authority?
Ultimately, this is the sovereign Parliament of the United Kingdom, and it has devolved power to the Scottish Parliament. If a Bill on a devolved matter covers substantial areas relevant to Scotland, it is expedient for the Scottish Parliament either to consider legislating on that subject or to decide to accept UK legislation and pass a Sewel motion, which returns legislative power to this Parliament.
All these provisions are relatively new, but I am breaking new ground in Committee by thinking it appropriate to consult Scottish Ministers. It is right to do so when a substantial change is suggested. That probably creates a precedent, but we are in uncharted waters on this subject, which is very interesting constitutionally. We could talk about it at greater length on a more appropriate occasion.
The Lord Advocate, Jim Wallace and I concluded that it would be right to bring Scottish legislation into line with that in England and Wales and make the confiscation regimes mandatory on both sides of the border. By doing so, we are signalling to the courts, and above all to criminals and potential criminals, our determination to confiscate the ill-gotten gains from those who are convicted. That is an important message, and the Government have tabled a number of amendments to achieve those aims.
The hon. Member for Beaconsfield (Mr. Grieve)—because of his knowledge and because of the part that he took in debates on part 2—will recognise better than anyone that the Government amendments are mostly exactly the same as those that we discussed in relation to part 2, although a few are particular to Scotland.
Amendments Nos. 141, 142 and 144 require the courts to make a confiscation order if the conditions set out in subsections (2), (3) and (4) are met. The conditions reflect the provisions in clause 6. Amendment No. 172 requires the courts to proceed under clause 94 when reconsidering a case in which no order was made. The provisions reflect those in clause 20, in part 2. Amendments Nos. 306 and 307 require the court to proceed under clause 94 when a person who has been convicted is unlawfully at large, or—as stated in clause 113—if the accused is unlawfully at large and has been neither convicted nor acquitted.
I am grateful to the Minister for his clear exposition of the numerous amendments, and for his prefacing remarks. He is right to say that the bulk of the amendments mirror issues that we have discussed earlier. I certainly do not wish to exploit that situation, and we will not go over old ground the principles of which we have already debated. None the less, we need to examine the principles on which this part of the Bill is about to be rewritten. I am mindful of what the Minister said, but I am not as completely comfortable with what we are doing as he plainly is. I shall take a moment or two of the Committee's time to explain why.
The Minister knows that I was once the Opposition spokesman on Scotland. During that time, I tried to ensure that devolution worked. Although my party had objections in principle to the concept, once devolution had come about, it was obvious that it had to function well. The mechanism through which we are operating is a device that was set up under the Scotland Act 1998 to ensure that devolution could function properly. I do not have a problem with the concept that the Scottish Parliament can say that it is more sensible for the United Kingdom Parliament to legislate on a certain devolved area because the legislation concerns matters that are part devolved and part reserved. I agree with the Minister that it would be ludicrous for the Committee to be fettered to the precise text of the Bill, rather than being able to examine it and make sensible amendments.
We are about to carry out a rewriting of the Bill, albeit in small ways because in many cases the critical change is replacing the word ''may'' with the word ''must''. Nevertheless, that will alter radically the powers of the judiciary in relation to the way in which the Bill, and thus the law, may be applied in Scotland. It is a moot point what difference that will make in practice, because, as was said earlier, it was suggested that the existing discretionary powers in Scotland that mirror the Scottish model have never interfered with the successful confiscation of assets. The Minister will remember that that was an argument that I put forward to support rewriting the parts of the Bill that apply to England and Wales, because the discretionary power was innocuous, but might have allowed the prevention of injustice in some circumstances.
Before the hon. Gentleman pursues his interesting point at great length, it would be helpful for the Committee to know whether it is of anything more than theoretical interest. Will he advise us whether he knows of any parties in the Scottish Parliament that oppose the change proposed by the amendment? Are the hon. Gentleman's political colleagues in the Scottish Parliament likely to take his apparent line of being soft on the confiscation of the proceeds of crime?
If the hon. Gentleman bears with me, I will move on to those topics, and he will understand my points more fully.
As the Minister and the hon. Gentleman know, the matter was debated in the Scottish Parliament on 24 October under the Sewel motion procedure. It is noteworthy that the debate was short and the Presiding Officer, Sir David Steel, said that he hoped the debate would be short so as to allow time for a subsequent debate. Therefore, it was a procedural matter. During the debate, the Deputy First Minister and Minister for Justice, and the Deputy Minister for Justice, gave the Parliament an outline of how the Bill is supposed to work. I shall quote some of what was said.
Let me make some progress first.
Mr. Gray said:
''The provisions relate to a complex mix of devolved and reserved issues. That is the basis for taking the Sewel motion approach and asking the UK Parliament to legislate on Scotland's behalf. It is incumbent on us to say that there are protections for Scotland, Scotland's people and this Parliament. The bill is fully aligned to Scots law and procedure. It has separate clauses where necessary and takes fully into account the different institutional arrangements in Scotland.''
Mr. Gray went on to say:
''The Lord Advocate will remain responsible for criminal confiscation in Scotland''.—[Scottish Parliament Official Report, 24 October 2001; Vol. 3, c. 3258–59.]
He then referred to civil recovery.
We know why the Bill was drafted as it was with regard to Scotland. My understanding was that it was drafted in a way that respected and reflected the different Scots law and procedure, and how they have evolved—and in particular, the fact that in the earlier legislation, which this Bill has in some ways extended, the Scots legal principle gave the Scottish judiciary greater discretion than existed south of the border. Mr. Gray was addressing that subject.
I have made inquiries, and Conservative Members of the Scottish Parliament understood that the Bill would maintain the discretionary principle. I hope that that answers the question asked by the hon. Member for Edinburgh, North and Leith (Mr. Lazarowicz),
I have consulted Iain Gray, and he referred to two topics—Scots law and procedure, and the role of the Lord Advocate. Both of those will be protected and preserved. The legislation does not change them in any way.
We are discussing discretionary and mandatory powers. Before the hon. Gentleman challenges our proposals, he should consult the Conservative spokesperson in the Scottish Parliament, and some of the Conservative Back Benchers. If he does, he will find that they wanted tougher measures.
In the course of the Sewel motion debate, many comments were made that reflected the remarks that hon. Members made on Second Reading. For example, the hon. Member for Glasgow, Pollok (Mr. Davidson) expressed a desire for a tough regime.
I suspect that the Minister has gone off and read about what was said in the Sewel motion debate. If he had not, he would not be doing his job properly.
He was there. In that case, he will agree with me that there was no questioning during that debate. Nobody asked, ''Why does the Scottish confiscation regime give greater discretion to the Scottish judiciary, and ought we not to get rid of that?'' Therefore, the Minister in Scotland could not respond by saying, ''That is a very interesting point, but we can safely leave it to the United Kingdom Parliament at Westminster.''
That debate did not address such issues. It was assumed that the Scottish Executive, Scottish Ministers and the Scottish Parliament were satisfied with the existing safeguards under Scots law and principles, as reflected in the discretionary provisions, which are different from those south of the border.
Is it the hon. Gentleman's position that, in the event of a Sewel motion being moved in the Scottish Parliament, the Westminster Parliament, having been given the power to legislate on devolved issues, should not legislate—that it should not make any amendments? Surely the point of the Sewel motion is that we are given the power to legislate, and that includes the power to make amendments.
That is not my position. I made that clear when I referred to the fact that we have the right to amend the legislation.
However, either our discussion is an exercise in nothingness, because it will all make no difference, or there is a good reason why the Government have decided to amend the legislation in a way that has important implications. We discussed them under the England and Wales parts of the Bill , when I suggested that the model for England and Wales was better than that for Scotland.
I am prompted to speak by the hon. Gentleman's mention of an exercise in nothingness. One of the advantages of the Scottish Parliament, as I understand it, is that the new legislature has determined that it will be less ponderous and less repetitious. If the hon. Member for Beaconsfield did not discover all this until last night, that shows that he had not been doing his homework beforehand. It is about time he decided to put up or shut up. Either he is against this or he is not. If he is not, what he is saying is just self-indulgence. We want to make progress and put the legislation into action, and I am clear that the Scottish Parliament has been persuaded by the dialogue that has taken place with our Ministers, and has reflected on the matter. It recognises that the point on which it had agreed could be improved. That is the process of dialogue. It seems perfectly reasonable that that should occur. As the Minister said, that dialogue has been taking place between our hon. Friends and others—I am not sure exactly what the two categories are, but I am sure that we can all decide to place ourselves in one or the other of them.
I would have greater confidence in what the hon. Gentleman said, were it not for the fact that the Minister raised the matter with me about a fortnight ago, and courteously warned me that in trying to pursue the idea of incorporating the Scottish model into the England and Wales model, I might be going off the rails, because the Scottish model was about to be changed. He will not be surprised to hear that I made inquiries of my colleagues in the Scottish Parliament about what was going on. Those colleagues included some who had spoken in the debate on the Sewel motion—and there was a bit of a gap before I was able to speak to them. Yet I was surprised to discover that no one knew that the change was about to be implemented—that there had been an agreement between the Government, the Minister and his Scottish counterparts. It had certainly not been debated in Scotland—
I was in no way surprised. I, too, had had discussions with my colleagues north of the border, and was well aware of what the Minister was going to say. I remind the hon. Gentleman that the Minister very properly made a full statement about the Government's intentions and the review that was under way. If his colleagues in the Scottish Parliament are not sufficiently interested in the course of the legislation to take proper cognisance of statements made in public in this Committee, that reflects badly on no one but them.
The hon. Gentleman's comments are uncalled for. I say that to the Minister, too. First, I remember the hon. Gentleman's startled surprise at finding out about what the Deputy First Minister had done, as he had been saying in the Committee that he thought that the Scottish model was better. I was grateful to him for supporting the arguments that I advanced about changing the model for England and Wales to provide the measure of judicial discretion that existed in Scotland. First, I assumed that he would not have done that unless he fundamentally believed that that was the case—I listened carefully to his arguments, as he has a knowledge of Scots law to which I cannot aspire without a great deal of training and passing of exams, and I am past the stage in life at which I want to take more exams. Secondly, I assumed that when he made those comments, he believed that that was also the position of the Scottish Executive, and that the Scottish Executive, including a member of his party who fulfils the role of Deputy First Minister and Minister for Justice, was happy with that position.
I am not aware of any statement being made in the Scottish Parliament to alert it to the fact that the change was about to take place. [Interruption.] May I make some progress? I do not want to take up too much of the Committee's time on an issue of principle. I have strongly held beliefs about devolution. When discussing clauses in respect of Scotland and devolved matters, if the Minister said that a particular amendment was desired by the Scottish Parliament, I would not vote against it, even if I did not much care for it. It would be wrong to do so because that amendment would concern devolved matters. Although clearly we must apply our judgment to such matters, if devolution is to work we must respect the views of the Scottish Parliament.
I assure the hon. Gentleman that the greatest disservice that the Committee could do to the Scottish Parliament and the Scottish legal system would be to allow a loophole that made the legislation north of the border less stringent than that for England and Wales. As a Scottish representative in Committee, I can say that our constituents would be extremely unhappy if we allowed the legal system in Scotland to be any less strict with criminals than it is in England and Wales.
I appreciate what the hon. Gentleman says, and I understand his desire to ensure that he provides legislation that is fit for such purposes in Scotland. As a result of devolution, however—unless a Sewel motion is passed—he has no authority to legislate on devolved matters relating to criminal law. Nor have I. We have given away such a power. The Sewel motion handed it back to us for the purposes of the Bill, on the basis of its having been presented before the Scottish Parliament, and the comments of the Scottish Ministers when the motion was discussed. I am worried about rewriting the Bill as the Minister proposes when I have no evidence that the Scottish Parliament has had an opportunity to consider the rewrite. If I had such evidence, I would have no difficulty, and we could proceed quickly through the Bill.
I disagree. There would be nothing to prevent the Scottish Minister, Mr. Wallace, from making a short statement to the Scottish Parliament about what is being proposed. He can say that he has discussed matters with Ministers in London, that such a conclusion had been reached, and that he trusts that he has the approval of the Scottish Parliament. The Minister is shaking his head. It seems that the Sewel mechanism is not working well. Does he wish me to give way?
Ian Lucas rose—
The purpose of the Sewel motion was to empower the House to legislate on mixed matters of law—part reserved, part devolved—because the Scottish Parliament was satisfied that, having seen a draft of the Bill, we should take such action. That is the critical issue. We are not rewriting individual clauses or tinkering with detail, but making a fundamental shift, at the request of hon. Members such as the hon. Member for Glasgow, Pollok. Although I respect his role as a Member of Parliament for a Scottish constituency, he does not, apart from under the Sewel motion, have legislative functions in relation to devolved criminal matters.
I am sorry to tell the Minister that there is an issue of principle. I do not blame him in any way because I am mindful that this is the first time the procedure has been used in this form. However, while trying to be respectful of the devolution settlement, I still find it difficult to rewrite the Bill in the manner proposed without a clear indication that that is what the Scottish Parliament—not the Scottish Executive—wants.
It is all very well to hear from the Government that everyone is in agreement about the matter. I have no idea whether the Scottish Labour party agrees.
Order. I must draw the hon. Gentleman's attention to the fact that we are discussing the amendment, rather than what happened in the Scottish Parliament. I accept that a reference may be required as a preamble, but he is drifting away from what we are discussing.
I am mindful of that, Mr. O'Brien. I tried to indicate to you before the Committee began that I proposed to confine my remarks on the principle to our debate on the first amendment. Thereafter, I will not seek to reopen the matter on every amendment that we discuss. The first amendment encapsulates the issue of changing the word ''may'' to the word ''must''.
I have followed the debate with considerable interest, and Labour Members seem to miss the importance of the timing. Is my hon. Friend's concern that if the Government had envisaged the change of regime from discretionary to mandatory at the time, one would have expected the Minister for Justice to tell the Scottish Parliament that so that the debate could proceed on that basis? It was odd timing that that statement was not made before the debate in the Scottish Parliament.
I agree entirely with my hon. Friend. As we discussed in Committee at the time of the Minister's announcement, it appears that the decision to rewrite this part of the Bill was taken between Second Reading and the start of the Committee. In fairness to the Minister, he was concerned that we should be informed at the earliest opportunity about what had gone on behind the scenes, but we had received no forewarning until the Minister told me outside the Committee Room and told the Committee five minutes later. I suppose that the only forewarning was the fact that on Second Reading the hon. Member for Glasgow, Pollok expressed deep dissatisfaction with the discretionary system in Scotland. In fairness to the Government, I must say that I do not remember their agreeing with that on Second Reading. Clearly there was a lot of backroom activity, as happens in the political world. Backroom activity does not bother me, so long as transparent front-room decisions are taken at some stage—and I have not seen those.
I will listen carefully to the Minister's response and I am, of course, open to persuasion. Whatever happens, I do not intend to repeat this wide-ranging discussion when we consider subsequent amendments and clauses. However, my approach to the amendments is coloured because, on principle, I am not prepared to support amendments that completely rewrite the Bill for Scotland if the procedure envisaged in the devolution settlement has not been followed in the manner that I would expect. [Interruption.] As the hon. Member for Glasgow, Pollok is intervening from a sedentary position, he can stand up and speak out loud.
I thank the hon. Gentleman for that invitation to make an intervention, which I am glad to do.
Despite the best efforts of the hon. Member for Surrey Heath (Mr. Hawkins) to assist his apprentice, the hon. Member for Beaconsfield is missing the point. In the drawing rooms of Pollock, people are not exercised about Sewel motions. They want the legislation to go through. If that does not persuade the hon. Gentleman and he is still unhappy, let him vote against the idea—and then let him see what we do to the Conservatives in Scotland.
We have made it clear that we support extending the confiscation regime north of the border. That is compatible with the remarks made in debate in the Scottish Parliament by Lord James Douglas-Hamilton and my colleague Phil Gallie. I read what they had to say. We are as one on the issue, but we should not rewrite legislation for Scotland, which is a devolved country, unless—[Interruption.] The Minister says that that is the 15th time I have said that—but I simply I took an intervention; no one need intervene if they do not wish to do so. I assume that we are attempting a dialogue. I try as best I can to listen carefully and answer any point made to me by hon. Members.
Let the Minister persuade me that the amendment is compatible with the way in which devolution was designed to operate, and is not a backstairs deal. I support any amendment compatible with human rights that the Scottish Parliament says it wants. I have not yet received such an indication, and in view of that I invite the Committee to oppose the amendments, which would remove the discretionary principles embodied in Scots law and practice.
No Liberal Democrat Member questioned the discretionary principles on Second Reading, and only the hon. Member for Glasgow, Pollok opposed them. If I had to prefer either the legal expertise of the hon. Member for Glasgow, Pollok or that of the hon. Member for Orkney and Shetland (Mr. Carmichael), on the whole I should prefer the latter.
I am very respectful of the will of the Scottish people as expressed in setting up the Scottish Parliament. Until I am persuaded that we are doing the will of the Scottish Parliament—
The hon. Member for Beaconsfield has accused me of making uncalled-for remarks. I merely observe that if I were less generous, I might express pleasure and relief that he had decided to be brief today—but of course, Liberals are far too nice to make such a cheap point; I leave that to the likes of the hon. Member for Glasgow, Pollok.
The Scottish Parliament was perfectly aware of the procedure that would be followed in the House when it made the decision to pass a Sewel motion. It knew that the Bill would be scrutinised. Indeed, I expect that the Scottish Parliament would want the Bill to be scrutinised in Committee and would want a full discussion of amendments. It would want the Committee to make necessary amendments, as it would have done if it had dealt with the matter itself.
My understanding is that a Sewel motion is not for ever—perhaps the Minister will confirm that later. The motion merely relates to this one Bill. If the end result is fundamentally at variance with the will of the Scottish Parliament, it could always pass further legislation to amend what we produce.
I have a mandate from a Scottish constituency, and so do some Labour Members—and we are entitled to express views about the Bill in this place. There is a degree of opportunism in the Conservatives' position both here today and as it is reported to us from the Scottish Parliament. If the hon. Member for Beaconsfield still has the Official Report of the Scottish Parliament debate on the Sewel motion on 24 October in front of him, he may be able to tell us whether Lord James Douglas-Hamilton or Phil Gallie thought that the issue was of such fundamental importance that they raised it in the debate.
I explained earlier that the question about the differences between the Scottish and English regimes predated the Bill, which extends the principles that gave the Scottish judiciary a greater measure of discretion. As I think the hon. Gentleman will accept, he commended that greater discretion to the Committee in previous debates. Those principles were not touched on, and there is no reason why they should have been, as the difference was clearly set out in the Bill, and nobody said that the Bill should not be different in respect of Scotland and England.
No, but if the principles were considered to be so important, one would have expected Conservative Members of the Scottish Parliament to feel it necessary to highlight them. They did not do so.
The hon. Gentleman's point does not stand up if one analyses it logically. If a particular piece of legislation simply extends an existing regime, and nobody from the Government side says that that regime is about to be changed, why on earth should Opposition Members, in any legislature, talk about something that they regard simply as a continuation of the existing regime, especially as the hon. Gentleman himself has praised the discretionary principle in this Committee?
As might have been said to Captain Kirk of the Starship Enterprise, ''It's logic, Jim, but not as we know it.'' If the principle was considered important, one would have expected Conservative Members to raise it. They did not do so. The fact that they are now seeking to make hay on this point smacks of opportunism; I put it no stronger than that.
The hon. Gentleman has asked a specific question about what was said in the debate. There was an intervention by David McLetchie about compatibility with the European convention on human rights. He pointed out that in Scotland, if a Bill is incompatible with the ECHR it can be struck down by the courts, whereas that is not the case with legislation passed at Westminster. When one considers the exchange with Iain Gray, it is apparent that one of the anxieties being flagged up by my Scottish colleagues was whether the legislation was ECHR-compatible, and if it were not, the possibility that that would cause problems that Scotland would have to deal with later. Therefore, the matters of principle that we discussed in our earlier debates were touched on.
That may be a point of principle, but it is completely different from the one that we are discussing at the moment. The hon. Gentleman has already referred to the fact that when we discussed the provisions in relation to England and Wales, I was clearly in favour of the courts having discretion. I remain of that view. It is necessary for the courts to have discretion in such matters.
Not only did we not demur on Second Reading, I specifically raised the point in an intervention on the Minister at the conclusion of the Second Reading debate, and during the course of the contribution made by the hon. Member for Edinburgh, North and Leith. I think that I am right on this matter, and that others are profoundly wrong. If Ministers in the Scottish Parliament have been persuaded that no discretion should be given to the court, they too are wrong. However, we have had that debate, and I lost it. There is now a strong argument to be made for uniformity of provision throughout the United Kingdom; I make no bones about that.
I think that it was the hon. Member for Beaconsfield who, rightly, said that we should respect the wishes of the Scottish Parliament. I believe that he also used the phrase, ''institutional significance.'' If a fundamental point of institutional significance were at stake—if, for example, a decision about which court might deal with certain matters were involved, or a proposal for the creation of a new species of court, or judge—I would be prepared to tell the Scottish Parliament that we would look at the issue again. However, that is not what we are dealing with. We are dealing with whether a court has discretion. That is the sort of matter that arises almost routinely with regard to legislation, so we should not be prepared to die in a ditch for the sake of it.
I am in favour of the courts having discretion, but I have not decided how I will vote if the hon. Gentleman pushes the matter to a Division. I might abstain because, although I disagree with the broad thrust of his argument, I am not prepared to accept that the discretion of the court should be diminished.
In view of the principled positions that the hon. Gentleman has previously taken, I understand why he might feel delicately situated with regard to the matter under discussion. As he is a Scots lawyer, I ask him: is it not the case that the way in which the existing clauses are worded is compatible with the sort of practice that one would expect to find in the Scottish courts, in terms of the discretion given to the judiciary?
Yes—and the amendment will change that. However, given that this will be a United Kingdom piece of legislation, and there will be a very different regime south of the border, there is a strong argument for uniformity of provision.
It ill behoves people outwith the Committee, particularly members of the Scottish National party, who made no effort to join it and endure the work load that those of us who have joined it have endured—when I say ''endured'', I mean endured—to criticise the Committee for taking a different position, or the Scottish Executive for changing its initial position.
I wish to discuss a couple of issues of principle. It has been decided that the Committee will address such matters at this juncture, rather than during the rest of today's proceedings.
I endorse the remarks of my hon. Friend the Member for Beaconsfield. He has hit the nail on the head. I understand the reasons behind the Sewel motion, and why we are looking at it: there is a wish to avoid loopholes, and to think about whether there should be subtle or fundamental differences between the regimes in England and Scotland.
I also take on board the comments of the hon. Member for Glasgow, Cathcart (Mr. Harris)—
The hon. Gentleman is talking about differences between England and Scotland, but he should be talking about differences between England, Wales and Northern Ireland—three parts of the United Kingdom—and Scotland.
I understand that. Perhaps I should have said, ''between the two sovereign Parliaments.''
The hon. Member for Glasgow, Cathcart talked about loopholes. There are loopholes with regard to matters such as student funding, and care for the elderly, to which nobody on the Government Benches seems greatly to object. However, a fundamental issue is at stake. I believe that further Bills will be introduced—
Does the hon. Gentleman believe that Scottish society is as much at threat from the prospect of an exodus of English pensioners heading north as from an exodus of English criminals?
My insider-dealing taxpayers in London will have to subsidise that additional expenditure in Scotland, through the Barnett formula and other measures.
Order. We are discussing confiscation orders for Scotland under part 3 of the Bill and the very narrow amendments tabled to it. I ask hon. Members to stick to the amendments.
Thank you, Mr. O'Brien. We are considering issues of principle. Clearly, we are in a destabilised state within the United Kingdom. I greatly regret that, but we may have many more Bills coming through this way. It is regrettable that the Scottish Parliament has not taken it upon itself to deal with such amendments, although I understand the intention, which is to ensure that there is a uniform pattern within both Parliaments. We will discuss that in some detail—although I have the same reservations as my hon. Friend the Member for Beaconsfield, and I wonder whether it is our place to discuss those matters in any detail, particularly as we are unaware of what Members of the Scottish Parliament had in mind when they passed the responsibility down. Later in the debate I may return to one or two specific matters, but at this juncture we should simply touch on issues of principle.
I want to follow up what my hon. Friend the Member for Cities of London and Westminster (Mr. Field) said, and in particular his phrase ''the two sovereign Parliaments''. I am perplexed by the question of which Parliament is meant to be sovereign. We are told that under the Sewel motion, Ministers in Westminster are making law for the Scots on their behalf, and are changing the word ''may'' to the word ''must'' for them. If I understood correctly the Minister's answer to the good question asked by the hon. Member for Orkney and Shetland, the Scots can, if they choose, change it back. Ministers may point out that there is no appetite for such a change, and say that no one in the Scottish Parliament wants to return discretion to the courts, but that they want to impose the mandatory procedure and follow the draconian approach to life that the hon. Member for Glasgow, Pollok continually advocates.
My hon. Friend has made an important point. The hon. Member for Orkney and Shetland pointed out, in response to my hon. Friend the Member for Beaconsfield, that the discretionary regime was consistent with practice in the Scottish courts in related fields of law—until now. The change from ''may'' to ''must''—from discretionary to mandatory—was not foreshadowed by the Scottish Minister for Justice, so the Scottish Parliament has not yet debated it. Whatever Labour Members might say in Committee, we do not know whether the Scottish Parliament would want to change the wording back, to make it consistent with previous Scottish practice.
I rise to speak only because the hon. Gentleman referred to my ''draconian approach to life''. I do not take a draconian approach to life, but I do have a draconian approach to crime, particularly the crime that bedevils the lives of my constituents. My constituency is not full of insider-dealing taxpayers. Is the hon. Gentleman a turkey or a chicken? Is he a turkey that is going to vote for Christmas by opposing the amendment, or a chicken—
I speak for many people on this subject, and I take it unkindly that the hon. Member for Glasgow, Pollok continually casts aspersions on our toughness on crime. We are interested in justice, constitutional propriety and common sense. It is obvious that today's debate about the Sewel motion does not make sense. We will amend the Bill on behalf of the Scots, but if they so choose, they can change it back. Some Scots, such as the hon. Member for Orkney and Shetland who wants a discretionary regime, want to change it back. A future Scottish Parliament may want a discretionary regime, too. As I understand the position, it could override the will of Westminster, so what are we doing here? Why are we amending the Bill, when the Scots could change it back again?
The hon. Gentleman comes close to misrepresenting my position. I would not want to change back the measures for north of the border. I want a discretionary system throughout the United Kingdom, but the more important principle is that there should be uniformity.
In the happy event of the Westminster Parliament restoring the discretionary position, the hon. Gentleman would want a discretionary regime in Scotland, too. Given the appetite for a discretionary regime in Scotland that was substantiated by the hon. Member for Orkney and Shetland, the Scottish Parliament may in future want to vary the legislation. There would then be a ridiculous game of ping pong in which Westminster did one thing and the Scottish Parliament did another.
The possibility that the Scottish Parliament could change the Bill is theoretical. There could be legislation that had been passed here, but which would work only if it were changed. A further Sewel motion would be required to send it back to Westminster, which would not be needed if the Scottish Parliament had already decided to change the legislation. It is not ping pong; at worst, it is only ping.
I am slightly dismayed that the hon. Gentleman has resiled from his argument and admitted defeat so readily. We are discussing an important constitutional ambiguity, and I would be grateful if the Minister would focus his laser-like brain on that, and tell the Committee where authority ultimately resides.
As an unashamed Englishman, I wish to raise another matter of principle. I used to feel some trepidation about stepping into Scottish issues, but I have noticed that during our previous 14 sittings, the Scottish members of the Committee have not hesitated to step into English matters.
Mr. Davidson rose—
I shall not give way to the hon. Gentleman. He and others are anxious about what they regard as delays. Indeed, he has said that he wants to get the Bill on to the statute book rather than listen to Conservative Members. It was not my party that invited us to consider the Bill until early February, but the Government. I make no apologies for doing justice to the Bill and scrutinising it within the period set out by the Government. Delay is not a relevant issue.
I do not like saying this to the hon. Gentleman, but what he has said is not correct. The Government wanted to finish consideration of the Bill in Committee earlier, but we responded to the request of Opposition Members to extend its time in Committee. The hon. Gentleman should get his facts right.
Yes, Mr. O'Brien, but a matter of principle needs to be raised. The fact that we are substantially rewriting the Bill means that when it was discussed on Second Reading, hon. Members were not debating the same Bill that we are now considering. I do not want to talk about the programme resolution, other than to say that we have been allowed only two sittings to deal with what was originally a minor and fairly technical part of the Bill. The point of principle that I want to establish—once only in the course of the debate—is that that has changed from a small technical part of the Bill to a fundamental rewrite. If my maths is any good, we have 129 amendments, 64 clause stand part debates, five new clauses and one schedule to discuss. That is 199 items to be discussed in 300 minutes. The Government are suggesting that we are capable, on behalf of the people of England, the United Kingdom or Scotland—I do not mind which—of doing justice to a fundamental rewrite with one and half minutes to discuss each item.
No, I will not.
That is a dreadful flouting of democracy, and it should have been done differently. The Government should have said that in view of the fact that they are rewriting the Bill, they would extend the time available to deal with the 199 items.
I shall deal with that point first. Not only was agreement reached on extension of the timetable, but the Opposition agreed the splits, and thus the idea that we would only have two sittings for part 3. I am afraid that what the hon. Gentleman says is entirely wrong.
Now I shall turn my laser-like brain to the two fundamental issues under consideration today. We are grateful to you, Mr. O'Brien, for allowing just one debate. The first issue is changing the word ''may'' to the word ''must''. I make no apology for tabling the amendments. It is the right thing to do. We are determined to crack down on criminals, and we are determined that drug dealers should have no hiding place. We are also determined to send a uniform message throughout the whole of the United Kingdom, as the hon. Member for Orkney and Shetland said. If Conservative Members are going to move against that, as they are threatening to do, they must take the consequences. The Government—with Liberal Democrat support, I hope—want to send a uniform message to drug dealers, money launderers and all criminals throughout every part of the United Kingdom.
The Minister has returned to the wide argument that took place when we sought to amend the Bill in relation to England and Wales and include the discretionary principle. We stand by our view on that, which is wholly consistent with our approach. Although it is important to confiscate the assets of criminals, it is also important to maintain civil liberties.
We differ on that. We shall see whether a Division takes place.
The other point is how to operate Sewel motions. Some of the comments by Opposition Members, some of whom are no longer present, suggest that I may not have explained that properly. In response to the hon. Member for Beaconsfield, on Scots law and procedure, the role of the Lord Advocate, the peculiar systems of Scots law and its operation, and the prosecution service, the Bill treats Scotland differently from the rest of the United Kingdom. It respects the different structure of the legal system in Scotland, other aspects of which we shall discuss later.
On the specific change from ''may'' to ''must'' and how we deal with it, I was present in the Scottish Parliament when the Sewel motion was discussed. It is one of 24 Sewel motions that have been passed by the Parliament—we are developing the procedure and getting more used to it as time goes on. No one present on that occasion wanted a weaker regime. Those hon. Members who know Phil Gallie—I know him only too well, as he lives just down the road from me—will be aware that he is always calling for a tougher regime. Even the mild-mannered Lord James Douglas-Hamilton was calling for a tougher regime. Furthermore, the SNP spokesperson, although he had some concerns about Sewel motions, said that he wanted a tougher regime on drug dealers. That was absolutely clear.
Following that Sewel motion, the matter was discussed on Second Reading. Many hon. Members, notably my hon. Friend the Member for Glasgow, Pollok, said that the Government should consider a tougher regime. The Government are always told that they are control freaks and that they do not listen to what Back Benchers say. On this occasion, points were raised and my hon. Friend the Under-Secretary and I decided to examine whether we could do something to take account of the views that were expressed because worry appeared to be growing.
Consequently, I had discussions with the Minister for Justice, Jim Wallace, and the Deputy Minister for Justice, Iain Gray. I met the Lord Advocate in his chambers in Edinburgh and discussed the matter because I thought that the change was relatively substantial. Many changes have been discussed with respect to the Sewel motion. Every time we change a Bill's provisions in Committee, we cannot go back to Scottish Ministers, even, and it would not be correct to do so. As the hon. Member for Orkney and Shetland said, the purpose of a Sewel motion is to return the power to legislate to this Parliament. However, I thought that it was right to consult Scottish Ministers and allow them to consult their officials because the change was so major. Consequently, we tabled the amendments.
It was up to the Scottish Ministers to decide whether to make a statement or consult the Scottish Parliament. They decided, no doubt following consultation, that such a statement was not necessary. However, as the hon. Member for Orkney and Shetland mentioned, if the Tories read the proceedings and knew, therefore, that I had had such discussions, the hon. Member for Beaconsfield must have been aware of that. As yet, I have received no protests or indications that the Tories in the Scottish Parliament are unhappy with the way in which we are proceeding. Indeed, they think quite the reverse.
The only people who have protested are Scottish National party Members, which is not because they disagree with the stronger and stricter regime but because they are nationalists and do not like devolution. They dislike the United Kingdom Parliament and want to break up Britain. By colluding with the SNP, the hon. Member for Beaconsfield is going down a very dangerous road.
I have a feeling that we are getting into flights of fantasy. The Minister knows my belief in the Union of the United Kingdom and my belief in making devolution work, which has been a personal matter over the past four years in Parliament. I do not take kindly to remarks that associate me with the SNP. Unless devolution is seen to work fairly and transparently, it will play into the hands of the nationalists who wish to destroy its success.
I understand that. The hon. Gentleman objected to my allusion but I object—my hon. Friends will support me—to his earlier assertion that we made a backroom deal. We could not have been more open and upfront about the matter. I have made statements, held discussions and issued press releases. I do not know whether he sees the Scottish newspapers now that he is no longer a Scottish spokesman, but they have contained details of the change. No one objects to it. I have not received floods of objections from MSPs, except from SNP Members for purely nationalistic reasons. Devolution is about dialogue, partnership and trust between two Parliaments. We are building trust, and consultation with Scottish Ministers is part of that process.
I hope that I have answered the points that have been made. We have dealt with the matter in an open and upfront way and consulted with our colleagues in the Scottish Executive. They want us to move in this direction and there are no objections. The people of Scotland who are represented by my colleagues and me want us to move in this direction. We want a unified system throughout the United Kingdom with no hiding place for drug dealers. That is why the word ''may'' must be changed to ''must''.
Question put, That the amendment be made:—
The Committee divided: Ayes 12, Noes 5.
I beg to move amendment No. 145, in page 56, line 5, at end insert—
'(6A) But the court must treat the duty in subsection (6) as a power if it believes that any victim of the conduct has at any time started or intends to start proceedings against the accused in respect of loss, injury or damage sustained in connection with the conduct.'.
The amendments modify the mandatory scheme by making provision for the protection of victims who are pursuing a claim for damages and reflect the provision in clause 6.
Amendment agreed to.
Amendment proposed: No. 146, in page 56, line 10, leave out 'standard applicable in civil proceedings' and insert
'balance of probabilities'.—[Mr. Foulkes.]
I appreciate that the Government are trying to bring the Scottish regime in line with that south of the border, so I do not wish to discuss that principle. However, the amendment raises a slightly different issue about tests and the civil standard of proof.
I am not an expert in Scots law and defer to the hon. Members who are, but before we rubber-stamp the amendment, the Committee should know a little more about whether ''balance of probabilities'' is a phrase in common use in Scotland. Does the Minister think that the change of wording will have the same effect as the amendment to the English version, which we have discussed? He may remember that we had strong views on the subject, and I believe that the civil standard, not the balance of probabilities, is the correct test. I should like to hear more from him on that point.
I want to raise a further matter of principle. Again, this amendment was moved formally. I want the Committee to consider matters properly. It is no disgrace to be an Englishman rather than a lawyer and not to understand the matter. However, I would be grateful if each time the Minister moves an amendment he would do us the courtesy to explain what he wants to change, why he wants that and what it will do, rather than asking us to be rubber stamps. I do not want to raise this point every time we consider an amendment. I hope that raising it this second time will be the last time that it is necessary.
On Tuesday, I remember that the hon. Gentleman got very agitated—he seems to be getting agitated again—because he implied that I was telling the Opposition how to conduct their business. I am happy to explain anything, but I do not want to waste your time, Mr. O'Brien, or the Committee's. As I explained at the start, about 135 or 136 of the 140 amendments are exactly the same provisions that we have discussed previously at length. I am happy to go through them all again, but that would waste the Committee's time and be boring and repetitive. If Conservative Members want me to make an explanation on specific occasions, I shall do so. However, I do not want to do it automatically, like a machine.
The hon. Member for Beaconsfield—the Opposition spokesman—asked for an explanation on this occasion. The amendment will bring clause 94 in line with clause 6. In a previous debate, my hon. Friend the Under-Secretary explained brilliantly why the test must be used to determine whether the accused has a criminal lifestyle. The phrase ''a criminal lifestyle'' applies to Scotland, and I understand that the meaning of ''balance of probabilities'' and ''beyond reasonable doubt'' are the same in Scotland as in England, so I did not think that I needed to explain that. I respect the hon. Gentleman's position, and if he wants detail at any time, I am happy to give him that.
The House will soon discuss the modernisation of Parliament, which I believe in very strongly, having been a Member for 22 years. Tactics such as filibustering and asking daft questions must be set aside. I respect the hon. Member for Beaconsfield asking sensible questions and I will give him sensible answers.
Perhaps when the Minister replies, he may confirm my understanding that, apart from in some obscure areas, the standard of proof for civil proceedings in Scottish law is always the balance of probabilities, unless we are dealing with interdict, in which case there may be interdict on the balance of convenience. However, that would not apply to subsections (5) or (6). Does anything in the Minister's brief contradict that?
No, I can confirm that. In some civil proceedings, such as proceedings for contempt, the standard of proof is beyond reasonable doubt. We want to make it clear that that does not apply to confiscation proceedings.
Presumably, the point about contempt was made because of the quasi-criminal nature of a finding of contempt, and it would not apply to subsections (5) or (6).
I agree with the Minister that we should not filibuster or make senseless speeches. However, does this situation illustrate the value of stopping and pausing on individual clauses? It appears, from what the hon. Member for Orkney and Shetland said, that the widening of the civil test in English law has not happened to the same extent in Scottish law. That may be a compelling argument for having the words ''balance of probabilities'' in the Scots version, although I had firm views that we should use the civil standard of proof in the version for England and Wales.
It was mentioned that contempt proceedings use different wording on the standard of proof. Surely we are considering something akin to a criminal proceeding, so the wording should be akin to that used in contempt proceedings.
I agree with the point on procedure. I am happy to enter into dialogues and take interventions, but it is the Opposition's role to determine when it is sensible to do so. We should not have to discuss matters merely as a matter of rote.
I do not want to say, ''This is a technical amendment,'' or ''This would enact similar provisions to those made for England,'' again and again. We are dealing with more than 60 clauses and 140 amendments in one day. It would be sensible—for the Opposition as well as the Government—to concentrate debate on passages in which there are significant differences between Scotland and England and passages that raise issues. I have answered the hon. Member for Orkney and Shetland, who raised that point, and I would be happy to do so again.
I hear what the Minister says about repeating the same thing time and again. I am not arguing that he should give lengthy, or even medium-length, explanations, but when an amendment is moved it is reasonable to tell us that, for example, the amendment brings provisions into line with each other. I do not believe that that is repetitive: it is sensible, and will help those of us who are not lawyers and not Scots to understand what is going on. If the Minister moves formally and says nothing else, how do we know what the amendment is about?
It would take up the whole morning and afternoon if I were to say that for every amendment, as there are 140 of them.
The hon. Gentleman says that we do not have enough time, but he agreed the allocation of time motion. We are getting bogged down on this issue. I have my own understanding of the significant differences, and I intend to speak and enlighten the Committee on those. I hope that the Opposition spokesman, if not his Whip, respects that fact and allows us to spend our time—let us not talk about how we decided the timetable—on issues of interest and importance in which Scotland differs from England, Wales and Northern Ireland.
May I suggest to the Minister that it might be useful if, when we adjourn, he flag up with any member of the Committee which clauses and amendments he thinks sufficiently important for him to address the Committee on. Then we would be forewarned about them. A brief outline of that sort would be helpful.
The Minister must understand the Opposition's anxieties. We do not have the assistance of officials and have to read all the amendments that are presented to us. We worry about whether we might let something that we should have debated go through. If that happened, the Committee would not be doing its job properly. History has consistently shown that Standing Committees let through all sorts of legislation that they should not have.