Proceeds of Crime Bill

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Mr. Carmichael: Will the hon. Gentleman give way?

Mr. Grieve: I will, but before I do so, I shall say that I was under the impression that even the hon. Gentleman himself had been surprised by what the Minister had to say on that matter.

Mr. Carmichael: 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.

Mr. Grieve: 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.

Mr. Harris: 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.

Mr. Grieve: 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.

Ian Lucas (Wrexham): Surely it is not possible for the Scottish Parliament to consider specific amendments to the Bill, because we are now seized of the matter.

Mr. Grieve: 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—

Mr. Foulkes: I am waiting patiently until the hon. Gentleman finishes his speech.

Mr. Grieve: Then I shall give way to the hon. Member for Wrexham (Ian Lucas).

Ian Lucas: Given the circumstances that the hon. Gentleman has described, what is the purpose of the Sewel motion?

Mr. Grieve: 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.

9.30 am

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.

The Chairman: 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.

Mr. Grieve: 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''.

Mr. Nick Hawkins (Surrey Heath): 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.

Mr. Grieve: 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.

Mr. Davidson: 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.

Mr. Grieve: 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.

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