Standing Committee B
Thursday 6 December 2001
[Mr. Bill O'Brien in the Chair]
Making of order
The Minister of State, Scotland Office (Mr. George Foulkes): I beg to move amendment No. 141, in page 55, line 22, leave out 'may' and insert 'must'.
The Chairman: With this it will be convenient to take Government amendments Nos. 142, 144, 172, 306 and 307.
Mr. Foulkes: The amendments before us are the first of a large number of amendments that we have tabled to make the confiscation regime in Scotland mandatory on the courts in the same way as the regime in England and Wales under part 2 of the Bill. My colleagues will recall that, under the Proceeds of Crime (Scotland) Act 1995, the courts in Scotland have the discretion, first, whether to employ the confiscation order, secondly, whether the confiscation order should be for the total amount of the accused's benefit and, thirdly, whether to make an assumption about the benefit from general criminal conduct.
As I have said before in the Committee, the judiciary in Scotland has always exercised its discretion to employ confiscation orders. The Government have no criticism of the Scottish judiciary in that respect. Nevertheless, several of my hon. Friends and others expressed concern, both on Second Reading and elsewhere, about the discrepancy between the mandatory regime for England and Wales under part 2 of the Bill and for Northern Ireland under part 4, and the discretionary regime in respect of Scotland under part 3.
I have had detailed discussions with my colleagues in the Scottish Executive, who are responsible for such matters in Scotland. Both Jim Wallace and the Lord Advocate shared my view and that of many of my colleagues that it was essential for the confiscation arrangements for Scotland to be sufficiently robust, and for confiscation to be pursued in all appropriate cases. We also want to ensure that there are no gaps or loopholes between the regimes north and south of the border through which the criminal can avoid having a confiscation order imposed on him.
Mr. Dominic Grieve (Beaconsfield): The Minister has said that the origin of the amendments lies in his discussions with Jim Wallace and the Lord Advocate. Will he confirm that, and explain the basis on which the Committee is seized of the matter? Is not the basis of our authority to proceed with the parts of the Bill that concern reserved matters in Edinburgh the Sewel motion that was passed by the Scottish Parliament? That took place on 24 October, when the Scottish Parliament had in front of it the Bill as it was drafted. What consultation has taken place with the Scottish Parliament, as opposed to members of the Scottish Executive, about rewriting the Bill in such a fashion?
Mr. Foulkes: The hon. Gentleman is absolutely right about what happened; his work in the Library last night was not in vain. I am glad that he is taking the matter so seriously. On 24 October I was listening to the debate in the Scottish Parliament, so I have not had to read the proceedings as he has had to do. The position is clear. My responsibility, which I have undertaken on behalf of Her Majesty's Government, was to consult the appropriate Ministers—[Interruption.] The Opposition spokesman does not seem to be interested in my answer to his question. My duty is to consult the Ministers in the Scottish Parliament who have such a responsibility, and they must judge whether it is necessary for them to consult the Scottish Parliament before agreeing to my request and our proceeding in that direction.
The constitutional position, however, is that, once the Sewel motion has been passed, this Parliament has absolute authority to legislate in the areas covered by the motion. What I did was a courtesy, and I believe that it was the right courtesy. It was establishing a precedent, and I believe that it was the right precedent. It is, however, up to Scottish Ministers to decide whether they think that it is necessary to consult the Scottish Parliament.
Mr. Grieve: I am grateful to the Minister for that clarification. I apologise if I was momentarily distracted when he was speaking earlier. Will he confirm the position? Let us suppose that a Bill is placed before the Scottish Parliament, which then votes on a Sewel motion, but that the Bill is subsequently completely transformed by this Committee. Is the Minister saying that in those circumstances, absolute authority has been surrendered? Is he saying that we can do exactly what we like, including imposing on Scotland a Bill wholly different from that originally intended, and that the Scottish Parliament has no further powers in respect of it?
Mr. Foulkes: No. I was saying that when a Sewel motion has been passed on the devolved areas of the Bill, there is no problem about the reserved matters. This Parliament is supreme. On devolved matters, this Parliament—the supreme Parliament—has devolved legislative powers to the Scottish Parliament. If the Scottish Parliament adjudge it appropriate for such matters be dealt with by the United Kingdom Parliament, the Sewel motion is passed to return to us the power to legislate in devolved matters.
If the Scottish Parliament gives us that power, and the Bill is then considered in Committee, it would be ridiculous to suggest that we cannot amend it, because we have the power to do so. The Committee must discuss and analyse the Bill in detail. It is up to United Kingdom Ministers to judge whether an amendment is of such magnitude that we need to consult Scottish Ministers. If that is the case, we should do so.
For drafting or technical amendments, there would be no need to take such action. In fact, there are some amendments on the amendment paper today on which we would not consult, nor would we contemplate doing so. If an amendment were of sufficient magnitude, then obviously we would consult Scottish Ministers. It is then up to them to decide whether they think that the amendment is of sufficient magnitude to return it to the Scottish Parliament for consideration. If, for example—as I think has been suggested, if not in this Committee then outside it—the Assets Recovery Agency were extended to Scotland, it, rather than the Lord Advocate, would carry out certain functions. Perhaps then Scottish Ministers would consider that the amendment was of sufficient magnitude to go back to the Scottish Parliament. That must be their judgment, not ours.
Mr. Alistair Carmichael (Orkney and Shetland): Will the Minister confirm that if the form in which the Bill becomes an Act is unacceptable to the Scottish Parliament, it is always open to the Scottish Parliament to pass amending legislation if it chooses?
Mr. Foulkes: I think that that is right. The hon. Gentleman is a lawyer, and although I know a lot about the Scotland Act 1998 and my Department is responsible for it, to be absolutely sure, I will check.
I say to both hon. Gentlemen that we are discussing new matters. We have not had a devolved legislature like the Scottish Parliament in mainland Great Britain for 300 years. In fact, there has been nothing like it before, because the previous legislature was somewhat different—[Interruption.] It was not democratic, either. We are establishing precedents and have to be careful and thoughtful about them. While maintaining the rights and responsibilities of the Scottish Parliament, we must also think of the practicalities of considering legislation in Parliament, and in Committee in particular, when a Sewel motion is passed. I think that we have got the balance right, and that the Scottish Ministers' judgment is right. They considered the matter carefully and thought that we were moving in the right direction. They thought that there was no need to consult the Scottish Parliament.
Mr. David Tredinnick (Bosworth): The Minister began his remarks by saying that he had acted from courtesy, and set a precedent—I think that I quote him correctly. I am not a lawyer, but I am concerned about that, and would like confirmation that he has not ceded any authority. I understand that he turned to the Scottish Parliament, in good faith, for a greater understanding of what it hoped to achieve through us. Will he confirm that the courtesy that he extended and the precedent that he has set have not reduced our authority?
Mr. Foulkes: Ultimately, this is the sovereign Parliament of the United Kingdom, and it has devolved power to the Scottish Parliament. If a Bill on a devolved matter covers substantial areas relevant to Scotland, it is expedient for the Scottish Parliament either to consider legislating on that subject or to decide to accept UK legislation and pass a Sewel motion, which returns legislative power to this Parliament.
All these provisions are relatively new, but I am breaking new ground in Committee by thinking it appropriate to consult Scottish Ministers. It is right to do so when a substantial change is suggested. That probably creates a precedent, but we are in uncharted waters on this subject, which is very interesting constitutionally. We could talk about it at greater length on a more appropriate occasion.
The Lord Advocate, Jim Wallace and I concluded that it would be right to bring Scottish legislation into line with that in England and Wales and make the confiscation regimes mandatory on both sides of the border. By doing so, we are signalling to the courts, and above all to criminals and potential criminals, our determination to confiscate the ill-gotten gains from those who are convicted. That is an important message, and the Government have tabled a number of amendments to achieve those aims.
The hon. Member for Beaconsfield (Mr. Grieve)—because of his knowledge and because of the part that he took in debates on part 2—will recognise better than anyone that the Government amendments are mostly exactly the same as those that we discussed in relation to part 2, although a few are particular to Scotland.
Amendments Nos. 141, 142 and 144 require the courts to make a confiscation order if the conditions set out in subsections (2), (3) and (4) are met. The conditions reflect the provisions in clause 6. Amendment No. 172 requires the courts to proceed under clause 94 when reconsidering a case in which no order was made. The provisions reflect those in clause 20, in part 2. Amendments Nos. 306 and 307 require the court to proceed under clause 94 when a person who has been convicted is unlawfully at large, or—as stated in clause 113—if the accused is unlawfully at large and has been neither convicted nor acquitted.