|Proceeds of Crime Bill
The Chairman: Before I call the hon. Member for Beaconsfield, let me make it clear that although this is a huge group, we shall vote on the amendments only when we reach the relevant part of the Bill.
Mr. Grieve: It may be useful to get to the root of the need for the amendment. I appreciate that the Government want a similar system to operate north and south of the border. As the Minister said, that goes beyond the question of discretionary or mandatory provisions. However, a question arises about how far down that road the Committee wants to go.
In fairness to the comments of the hon. Member for Glasgow, Pollok, he was vociferous about the differences between Scotland and England and Wales on Second Reading and when we considered part 2. He perceived that having discretionary provisions north of the border meant that there would be loopholes that criminals could exploit. As I understand it, that was his motive for saying that he did not like the system, and acting on those representations the Government went away to ensure that the Bill was brought into line north and south of the border.
However, it is apparent that we cannot do that in absolute terms, because if we went down that road, we would end up getting rid of the Scottish legal system, as I said. Oliver Cromwell would be triumphant at that, because I think that that is the only time in the history of these islands when Scotland and England have had an identical legal system. The Scots legal system was thrown out of the window. One reason why people are so concerned about that is that it was particularly protected under the Act of Union.
As the amendment is so complicated, it is difficult to extrapolate what its effect will be. Is it merely substituting the wording of the England and Wales legislation for that in Scotland or is its consequence to change how restraint orders are administered? If so, does it enhance the powers of the administrator or receiver, or does it diminish them in some way? It is extremely difficult, when one looks at amendments of this complexity, to know, in the absence of explanatory notes, what the impact will be. The Minister says that the amendment will make the procedure identical north and south of the border. I appreciate that, but the Committee should be in a position to know how, as a consequence, the original legislation for Scotland, as drafted, will be affected. I am not saying that we should not do it, but it would be useful to know the consequences.
Mr. Foulkes: As I said, amendment No. 232 sets out the powers given to management administrators. We already have two kinds of administrator in Scotland. One is appointed pre-confiscation order and the other post-confiscation order. Currently, however, we do not call them management and enforcement administrators. The purpose is to use the same nomenclature and make their respective roles clear. I hope that that makes things much more transparent and simple.
Mr. Grieve: The Minister gives a cogent argument for the amendments. If there is a common administration system, and administrators are likely to be moving north and south of the border, having the same system will make life much simpler. That is helpful. Will he also confirm the impact in terms of powers? If there is some change, what is it?
Mr. Foulkes: We will come to powers later in our discussion.
Mr. Hawkins: I want to ask the Minister a different question, although I suspect that he will give us an answer related to tidying up. It is in relation to new clause 2 and seizure. If there is a need for tidying up and making the procedure similar north and south of the border, why is there a need for a new clause specifically related to seizure? Should that point have been addressed when the Bill was originally drafted, and if so, was it simply missed? Alternatively, are the Government substantially increasing seizure powers? The wording of new clause 2 is extraordinarily wide:
Is there a specific definition already in Scots law for realisable property, or do those words have their normal and natural meaning in the English language? Subsection (2) of the new clause is straightforward: it merely says that the property needs to be dealt with under the direction of the court that makes the order.
Will the Minister explain the specific background to new clause 2? It is unlike many of the amendments in this large group, which are clearly consequential on each other, and which attempt to bring Scots law as near as possible to English law, although, as my hon. Friend the Member for Beaconsfield pointed out, that could not be done completely without abolishing the Scots legal system. It seems to me that new provisions in relation to seizure fall into a slightly different category.
Mr. Foulkes: So far, I have spoken only to amendments Nos. 231 and 232.
The Chairman: Order. We are dealing with all the amendments, new clauses and clause stand parts in the group. They are all about the same thing.
Mr. Foulkes: I cannot answer the hon. Gentleman's question in relation to new clause 2. I shall look into the matter. Perhaps I should deal with some of the other amendments in the group. I do not know whether that would be helpful.
Mr. Grieve: I appreciate the Minister's difficulty. There are a huge number of amendments. It may help that my earlier questions, and those of my hon. Friend the Member for Surrey Heath, go to the nub of the issues that we want him to clarify, unlike the amendments, which are rather technical. If that does not help him, I am happy to listen to everything that he has to say.
Mr. Foulkes rose—
Mr. Hawkins: On a point of order, Mr. McWilliam. The Minister has a vast pile of speaking notes, and even though there may be an unfortunate element of tedious repetition, my hon. Friend and I believe that he needs to go through them. Each note may not be very long, some provisions may be consequential to each other, and we do not want to delay the Committee. Equally, we do not want to absolve him of his responsibility to speak to the different amendments, because the Government have an obligation to explain what they are doing.
The Chairman: The amendments and new clauses are grouped together because, although they may relate to different clauses and add new ones, they deal with the same point. So, as is the custom, we grouped them so that we will have only one argument.
Mr. Foulkes: Thank you, Mr. McWilliam. That is much clearer. I am getting different messages from Opposition Members. The hon. Member for Surrey Heath picked up a refrain from the hon. Member for Spelthorne (Mr. Wilshire) that he wants me to bore the Committee by bringing up every detail and every point, which I have enough information to do. The hon. Member for Beaconsfield, understandably, and in this case rightly, wants me to concentrate on the important points that he and his hon. Friends raised.
Mr. Hawkins: On a point of order, Mr. McWilliam. I want to set the Minister's mind at rest. I said that I did not want to bore or delay the Committee, but he will have a speaking note on certain issues—for example, on new clause 2. My hon. Friend and I hope that whenever we raise a point that relates to an amendment or new clause in this group, he will respond to our concerns and use the relevant speaking notes.
The Chairman: I hope that the Minister does not do that. That would be tedious repetition, because the points are all the same.
Mr. Hawkins: I am trying to make the point that the Minister did not use his speaking notes at all in relation to new clause 2, because he was labouring under the misapprehension that we had not got to it. There is a separate point to be made about the new clause that he has not yet clarified.
The Chairman: Perhaps if we can get on with the discussion of this group the Minister might enlighten us further.
Mr. Foulkes: I am grateful, Mr. McWilliam. It would also be simpler if we did not have a scatter-gun attack of different messages from different Opposition spokesmen. I would not mind if the message was the same. I will deal with some of the substantial points that have been made.
As the hon. Member for Surrey Heath said, new clause 2 is the same clause in principle as clause 46 in part 2 for England and Wales, which we debated. Clause 49, also in part 2, introduces a new power for management receivers to sell property to preserve its value. We also discussed that. We are following suit for Scotland in clause 129(5). On seizure, we are simply reflecting existing Scottish provision. Realisable property is defined in clause 149. I hope that that helps the hon. Member for Beaconsfield.
Amendment agreed to.
Amendment made: No. 232, in page 78, line 36, at end insert—
(a) may order a person holding an interest in realisable property to which the restraint order applies to make to the administrator such payment as the court specifies in respect of a beneficial interest held by the accused or the recipient of a tainted gift;
(b) may (on the payment being made) by order transfer, grant or extinguish any interest in the property.
(6) The court must not—
(a) confer the power mentioned in subsection (1) to manage or otherwise deal with the property, or
(b) exercise the power conferred on it by subsection (5),
unless it gives persons holding interests in the property a reasonable opportunity to make representations to it.
(7) The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies.
(8) Managing or otherwise dealing with property includes—
(a) selling the property or any part of it or interest in it;
(b) carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property;
(c) incurring capital expenditure in respect of the property.
(9) Subsections (1)(b) and (5) do not apply to property for the time being subject to a charge under—
(a) section (9) of the Drug Trafficking Offences Act 1986 (c.32);
(b) section 78 of the Criminal Justice Act 1988 (c.33);
(c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17));
(d) section 27 of the Drug Trafficking Act 1994 (c.37);
(e) Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).'.—[Mr. Foulkes.]
Clause 127, as amended, ordered to stand part of the Bill.
Clause 128 ordered to stand part of the Bill.
|©Parliamentary copyright 2001||Prepared 6 December 2001|