Clause 111 - Inadequacy of available amount

Proceeds of Crime Bill – in a Public Bill Committee at 11:15 am on 6 December 2001.

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Photo of Mr Bill O'Brien Mr Bill O'Brien Labour, Normanton

With this it will be convenient to take the following: Government amendment 195.

Clause stand part.

Government amendments Nos. 261 and 262.

Government new clause 7—Inadequacy of available amount: discharge of order (No. 2).

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

The clause ensures that when the courts have made a confiscation order and it transpires that the available amount is insufficient to pay it, the accused or the prosecutor can apply to the court to have the order varied or discharged. It would be more appropriate to have separate clauses to deal with variation and discharge, as is provided in part 2 by clauses 24 and 25.

The clause is not drafted as clearly as it might be. The amendments would leave no doubt as to which provisions apply to the variation, and which to the discharge. Amendments Nos. 194 and 195 amend the clause so that it deals only with variation. Amendments Nos. 261 and 262 are drafting amendments. New clause 7 has a similar effect to clause 25, in part 2.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

I am a little perplexed. When we discussed amendment No. 190, it was argued that there should be no discretionary powers, and the provision should be mandatory. Amendment No. 195 has caught my eye. It states:

''vary the order by substituting for the amount required to be paid such smaller amount as the court believes is just.''

That may bring the Scottish provisions in line with those for England, but if the argument for amendment No. 190 was that we should not have the flexibility to vary the amount, why are we now asked to allow the court to order

''such smaller amount as the court believes is just''?

Amendment No. 195 will make the amount adjustable, and that is the opposite effect to that of amendment No. 190. I am curious about that difference.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I hazard the suggestion—although I should be interested to hear from the Minister—that the Scottish system was very simple. As that system was discretionary, legislation did not spell out what the courts could do in the same detail as south of the border. It is interesting how ponderous the clauses have become now that the Minister has decided to move away from the discretionary system. He has had to amend clause 111 and introduce new clause 7—which my hon. Friends may need to consider—in order to set down rigorously what the court may do when carrying out a variation or discharge. The amendments show that if something is to be made mandatory, it is necessary to expend much more time, effort and words on it.

Photo of David Wilshire David Wilshire Conservative, Spelthorne

I am most grateful to my hon. Friend. If he perseveres, he will make a lawyer of me yet.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

On new clause 7, will the Minister explain what is meant in new subsection (2)? I would—

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.