Mr. Wilshire: I remain concerned about amendment No. 152. Every time I come across the phrase ''serious risk of injustice'', I get nervous. Either we are in favour of injustice or we are against it, whether it is serious or minor. Will someone on the Government Benches explain why it is permissible to allow minor acts of injustice in Scotland, whereas serious injustices are not to be allowed? The word ''serious'' should not be included. It should read ''a risk of injustice''.
Mr. Grieve: My hon. Friend is right. In earlier debates, the question whether the word ''serious'' should appear was one of the matters that was discussed.
Mr. Wilshire: I am aware of that, and I was nervous about it at that stage. I am not sure that people in Scotland would be pleased to know that, just because somebody has decided that Scots law needs to conform, they will be lumbered with a situation in which minor injustices are to be ignored and tolerated.
Mr. Carmichael: I respectfully suggest to the hon. Gentleman that he should read the amendment again. It refers to a serious risk of injustice not a risk of serious injustice, which is what he appears to be talking about.
Mr. Wilshire: If I am talking about two separate things, I am against both of them. I do not understand why the word ''serious'' should appear anywhere. I simply make the point that I do not believe that, if the Scots people were consulted on the matter, they would want minor injustice to be tolerated in Scotland for the sake of conformity with the rest of the country. Just because it is tolerated in England does not mean that we must foist it on Scotland.
Mr. Mark Field: I wonder whether my hon. Friend might have some thoughts, as he may know more about the Scottish legal process than I do, on whether there is a potential difference in the meaning. I appreciate that many of these debates are about the real meaning of words. Given that there is a not proven verdict in criminal law in Scotland, does that have an impact on the use of the word ''serious'', which we should investigate in more detail?
Mr. Wilshire: There are few certainties in this world, but one is that I know less about Scots law, or any law, than my hon. Friend. I would not therefore presume to go down that route. No doubt there is a Scots lawyer here who might be able to help.
Mr. Carmichael: I do not think that the not proven verdict has any bearing on the question of serious risk of injustice or risk of serious injustice. I share some of the concerns that the hon. Gentleman seeks to articulate, but I reiterate that we are talking about the risk being serious rather than the injustice. He keeps talking about minor injustice and serious injustice, but that is not what the amendment says.
Mr. Wilshire: I take the hon. Gentleman's point. I have made my point. Equally, we should be discussing any risk, not serious or minor injustice. Either way, the word ''serious'' should not appear. I will be interested to hear the Minister's response.
Mr. Foulkes: This matter was discussed extensively under part 2. The hon. Member for Beaconsfield powerfully—if not convincingly—made many points to which my hon. Friend the Under-Secretary responded. I understood that earlier in our proceedings the hon. Gentleman wisely said that he did not intend to revisit matters that were extensively discussed in part 2. However, as the Opposition Whip has raised the matter, I should say that the word ''serious'' means exactly the same in Scotland as in England.
Mr. Grieve: The Minister is right that I do not wish to revisit the matter. In any case, I would hardly oppose the amendment to clause 99 because that would remove the only safeguard in the legislation after we have changed from the discretionary to the mandatory system. We will address the matter on Report when we revisit it across England, Wales, Scotland and, if necessary, Northern Ireland.
Amendment agreed to.
Amendments made: No. 151, in page 58, line 22, after 'if', insert '(a)'.
No. 152, in page 58, line 23, at end insert
Clause 99, as amended, ordered to stand part of the Bill.
Effect of order on court's other powers
Amendment proposed: No. 153, in page 58, line 43, after 'Act', insert '(compensation orders)'.—[Mr. Foulkes.]
The Chairman: With this it will be convenient to take Government amendment No. 154.
Mr. Wilshire: I am sorry, Mr. O'Brien, but I still do not consider that moving the amendments formally is adequate or acceptable. Will the Minister tell us what the amendments are about?
Mr. Foulkes: The amendments are purely technical, and add the appropriate description of the statutory provision to the Bill.
Amendment agreed to.
Amendment made: No. 154, in page 59, line 4, after '(c.43)', insert '(forfeiture orders)'.—[Mr. Foulkes.]
Clause 100, as amended, ordered to stand part of the Bill.
Disposal of family home
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.