Mr.
Heath: That was an interesting little debate. One must
assume that prosecutors will not listen to the Solicitor-General when
he says that the Government’s clear intention is to repeal the
law, because if they did they might become confused as to whether they
are to use the conspiracy to defraud provisions. As an aside, I think
that Damocles and Canute dealt wisely with people who got the wrong end
of the stick. In the case of Damocles, the concentration of the mind
was greatly enhanced by the provision of his simple memento
mori. I take seriously
what the Solicitor-General says on the matter, and he rightly says that
there are not great differences in the Committee on what we want to
see. I welcome the guidance, which carries a clear intimation that the
conspiracy common-law offence is no longer the preferred route for
prosecutions. I part with him on his view that it will be the lot of a
future Government to repeal the provision. In my experience,
Governments are not very good at repealing laws or removing offences.
They are very good at creating new offences and laws, which is why we
have criminal justice Bills
coming one after another like buses in the high street, but we do not
often have Bills that repeal existing offences or laws. That is one of
the difficulties of our system: it has a ratchet effect. We constantly
accrete new laws but we do not remove the old ones, thus ending up with
more confusion and a less comprehensible legal
system. There was a
great deal of merit in what the hon. Member for Beaconsfield said about
a sunset clause, but I understand why the Minister might be nervous
about that. To an extent it would take the matter out of his control,
meaning that he or his successor would have to take action to prevent
the law from being repealed. I concede that there is a possibility that
that might affect the view of prosecutors, as we approach the time of
the expiry of the offence, as to whether it is a proper offence to
prosecute. I do not think that that can possibly be true of the
commencement clause that I have suggested as an alternative device. It
is common for Government to put provisions in Bills and then not to
commence with them when the Bill comes into force. One of the reasons
why we have difficulties with conspiracy to defraud is the problem of
multiple counts, which we dealt with in a provision in the Domestic
Violence, Crime and Victims Act 2004 that the Government have not yet
brought into force because it has a delayed
commencement. This is
a perfectly normal way of dealing with things as far as this and other
Governments are concerned. Therefore, it is within the gift of future
Ministers never to commence this part of the Bill if the evidence is
that the conspiracy to defraud offence is still required to prosecute
certain cases. I do not accept that it shows any lack of clarity or
decisiveness on the part of the Government simply to provide the means
by which a future Government can take a decision without having to
start from scratch with primary legislation. I hope that my new clause
2 passes the drafting test, as it is lifted directly from the original
recommendations of the Law Commission, which is pretty good at drafting
such things.
I still believe that the
Government would be much better advised to include the provision now
and then to make a decision in three, four or five years’
time—at any time, in fact, as there is no time limit. My new
clause requires only that commencement should not be within three years
in order to accommodate the Solicitor-General’s reservations,
but it does not require him to take action at any stage unless he or
his successors are satisfied that the law is working properly. The new
clause would mean that we would not have to start with new primary
legislation. In
conclusion, I remind the Committee what the Law Commission had to say
about conspiracy to defraud. It
stated: “On any
view, the present position is anomalous and has no place in a coherent
criminal
law.” It
could not have been more damning of the use of this offence. The
purpose of the Bill is to replace it, and replace it it does.
Reservations are still expressed partly because we have not implemented
the multiple count provisions and partly because nobody is absolutely
sure that circumstances would not arise in which conspiracy to defraud
or something similar might be required. In three or four years’
time, we will know that. We will know whether there are any
circumstances in which it makes sense to retain a common law offence of
this sort. My suspicion is that there will not have been any such
circumstances, and my provision would make it easy for the Government
then to take a decision without wasting parliamentary time. I am still
hopeful that the Minister will reconsider that between now and
Report. If the hon.
Member for Torridge and West Devon is not planning to intervene on me
at this stage, I beg to ask leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Clause 15 ordered to stand
part of the Bill.
Clause 16 ordered to stand
part of the Bill.
Further consideration
adjourned.—[Mr.
Campbell.] Adjourned
accordingly at twenty-three minutes past Six o’clock till
Thursday 22 June at Nine
o’clock.
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