It is, however, still on the amendment paper, and can therefore be debated. I want the Government to tell the Committee whether they plan to withdraw it, because I am mystified: on the one hand we are being asked to approve the clause, but on the other hand the Government were trying to get an amendment selected that would delete it. I am baffled about what is going on.
New clause 6 brings clause 95 into line with clause 7 in part 2. It is, however, qualified by clause 103, which allows the court to proceed to sentence the accused when the confiscation proceedings have been postponed. Although a court is empowered to make a confiscation order before it passes any other sentence, the normal practice will continue to be for the court to postpone consideration of a confiscation application until such time as all the necessary information is available and the parties are in a position to proceed to a final hearing.
However, even when a confiscation hearing is postponed, the court cannot impose a fine or make a compensation order until the amount of the order is determined. The new clause makes it clear that a confiscation order must be made before an accused is sentenced, in a case where there is no postponement under clauses 102 and 103. Thus, the court will make the confiscation order before imposing a fine on the accused, or any other order involving payment, other than a compensation order. That will ensure that a confiscation order takes priority over any other financial punishment, except the payment of a compensation order to a victim.
The Committee will have to vote against clause stand part, so that the new clause can be inserted in its place.
I am even more mystified now. The Minister said that I now understand the procedure, but it was not the procedure that was concerning me—it was why this is happening. I am halfway towards understanding what is going on, but perhaps I am in the wrong frame of mind, because I seek further clarification. Is it the case that, although the amendment has not been selected, the Government are inviting us to do what the amendment says? If that is the case, it is a most peculiar way of going about business.
The clause allows for a mechanism to prevent the making of the confiscation order before the imposition of a fine or the making of an order involving a payment. The Government decided to take that out, but subsequently changed their mind. Instead, they substituted new clause 6, which I assume will be tagged on to the end of clause 95—although we have not been told about that.
It may be that the Minister intends to invite us to get rid of clause 95 and substitute new clause 6. If that is so, I do not understand why the Government did not substitute new clause 6 for the clause in the first place. Perhaps such matters are procedural and must be dealt with by the Clerks, which is why the problem has arisen. However, it has caused confusion.
On a point of order, Mr. O'Brien. I thank you for explaining what the Government are doing, given that they do not seem to be able to explain their actions themselves.
The Government are perfectly aware of what they are doing, but I am not sure about the technicalities and procedures in Standing Committees. Thank goodness we have excellent Clerks to advise excellent Chairmen on how to proceed.
Question put and negatived.
Clause 95 disagreed to.Clause 96Recoverable amount