§ The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth)
I beg to move amendment No. 77, in page 260, line 23, leave out "a senior official" and insert—'an assistant to the Director'.
§ Mr. Deputy Speaker (Sir Alan Haselhurst)
With this it will be convenient to discuss the following amendments: Government amendment No. 78.
No. 174, in page 261, line 32, at end insert—'(3A) For the purposes of sub-paragraph (3), there shall be no more than 10 performance targets for any financial year and those targets shall relate specifically to the functions of the Agency.'.Government amendment No. 79.
No. 196, in clause 4, page 3, line 6, at end insert—'(1A) Such co-operation shall take place in accordance with the provisions of other enactments.'.Government amendment No. 89.
§ Mr. Ainsworth
In Committee, we discussed whether the title "senior official" was appropriate for the member of the agency who would be responsible for exercising the director's functions in Northern Ireland, and I agreed to reflect further on the issue. Amendment No. 77 is the result.
We were not attracted by the title "deputy director", which was suggested in Committee, as it would leave scope for confusion. The term "deputy" would imply that the person would act as a substitute for the director on the whole range of his functions. However, the title "assistant director" would avoid such confusion, while reflecting the importance of the agency's work in Northern Ireland. As I said in Committee, the director would have to consult the Secretary of State for Northern Ireland before making that appointment. Amendment No. 78 will include that commitment in the Bill.
Amendment No. 174, in the name of Conservative Members, would mean that the director's objectives could include no more than 10 performance targets, and those would have to relate specifically to the agency's functions. The performance targets in the agency's annual plan will be drawn up by the director and must be approved by the Secretary of State. I explained in Committee that the targets will take into account the assets recovery strategy and the wider work of the assets recovery committee.
It is too early to say with certainty what those targets will be, but I shall share with hon. Members, as I did in Committee, our latest thinking on the measures that we ought to apply to the agency's output. They are likely to include the number of confiscation orders obtained by the
587 agency and the value of those orders; the number of successful civil recovery actions and the amounts recovered through that route; the number of successful taxation cases and the amounts recovered; and the proceeds recovered as a percentage of the number of confiscation orders made, in respect of those cases for which the agency is responsible for enforcement. Some measure will need to be applied to international co-operation on confiscation matters, the performance of the centre of excellence and the agency's financial performance. We will also seek to include a measure of the agency's involvement with the Secretary of State's priorities and other Government priorities.
We do not want to restrict the director's ability to draw up targets. It is for the director to decide how many targets there should be, according to his priorities and what he thinks he and the agency will be able to deliver. To impose an artificial cap on the number or nature of targets at this point would be inappropriate.
I accept concerns expressed in Committee that the scope of clause 4(1)(b) is too broad. We concluded that everyone whom we would wish to be under a duty to co-operate with the director is already covered by subsection (1)(a), so Government amendment No. 79 proposes to delete subsection (1)(b); I hope that that deals with the points that were usefully made in Committee.
I do not know whether amendment No. 196, which was tabled by the Opposition, is the result of a misunderstanding of the Bill's intentions. The disclosure of information to the director will be governed by the provisions of part 10, so it is clear that clause 4 is not supposed to set out the rules on disclosure of information. The power in part 10 to disclose information to the director will be permissive; nobody will be required to disclose information. Anyone disclosing information can place restrictions on its further disclosure. The amendment would cause confusion about the extent of co-operation required under clause 4. We do not want people to be unsure about whether they can co-operate with the director; we do not want a conflict between the provisions of part 10 and other provisions on disclosure of information.
Government amendment No. 89 deals with clause 320's taxation powers, specifically inheritance tax appeals. All inheritance tax appeals are already reserved to the special commissioners, but the provisions of clause 320(2) and (3) on the assistance of expert assessors are not currently available for inheritance tax appeals. It would be highly desirable for the commissioners to have such assistance. The amendment would apply the same appeal system—specifically the potential for input from expert assessors—to all the director's tax functions.
I hope that that is sufficient, as I do not wish unnecessarily to prolong consideration of the amendments. I urge the House to accept Government amendments Nos. 77, 78, 79 and 89, and I hope that in the light of what I have said Opposition Members will not press amendments Nos. 174 and 196 to a vote.
§ Mr. Nick Hawkins (Surrey Heath)
Opposition Front Benchers welcome Government amendments Nos. 77, 78 and 79. As the Minister said, and as other Members mentioned in our recent discussions on the programme 588 motion, there was quite a lot of helpful and constructive co-operation between the Government and Opposition in Committee. It is fair to say that Government amendments Nos. 77, 78 and especially Government amendment No. 79, which deletes some inelegant phraseology, reflect that continuing co-operation. I am grateful to the Minister for accepting some of the arguments that we made in Committee.
We are disappointed, however, that the proposal in our amendment No. 174 was not included in the Government's further improvements to the Bill. As the Minister said, on 13 November last year we had a detailed debate in Committee about performance targets, which is recorded at columns 12 to 19 of the Official Report. Although he said that it may be premature to cap the number of performance targets, he may have forgotten what he said in Committee1 accept what the hon. Member for Surrey Heath (Mr. Hawkins) said about the number of targets and potential difficulties."—[Official Report, Standing Committee B, 13 November 2001; c. 14.]He went on to express some of his misgivings in that regard.
We have specifically suggested a limit of 10 performance targets; under other legislation, the Government have imposed ridiculous numbers of targets in other law and order fields. In Committee, I mentioned police forces as an example and pointed out that the Government were seeking to impose as many as 58 performance targets on my force in Surrey. As the chief constable told me, such a number is ridiculous: no sensible organisation has 58 separate performance targets. All that such a large number of targets will do is create huge amounts of bureaucracy. The Government listened to some of the Opposition's complaints about the number of targets imposed on chief constables and police authorities, but they reduced the number from 58 to only 43, which is still far too many.
Amendment No. 174 seeks to bring some common sense to bear. We cannot conceive of any sensible organisation having more than 10 performance targets. The point of such targets is that they should concentrate on the nitty-gritty of an organisation's work. We have, therefore, sought once again to persuade the Government to limit that number. I have no doubt that this matter will arise again in another place if they continue to argue that organisations should be encouraged to concentrate on the main issues only by something as formal as performance targets. That does not mean that there will not be other things beyond such targets that everybody will want an organisation to do well; none the less, it cannot be sensible for any organisation to have more than 10 formal performance targets. It must also be absolutely clear that, whatever the targets are, they should be central to that which is germane to the work of the organisation. Only then will we have a sensible organisation that is not over-bureaucratic.
I am disappointed that the Minister has not yet been persuaded of the argument—but I have hope, given the constructive way in which he has responded previously, not only by tabling some of the other amendments in the group but by accepting amendments tabled by my hon. Friend the Member for Beaconsfield (Mr. Grieve) and I in Committee. As we shall see, that has happened not least by the Government adding their names to Opposition amendments. They have tried to be constructive when they have felt able to do so, and I still hope that 589 amendment No. 174 will be yet another proposal on which they will accept in the end, perhaps in another place, that we have common sense on our side.
§ Mr. Ian Davidson (Glasgow, Pollok)
In his relatively brief speech, the hon. Gentleman has twice suggested that if he does not get his own way he will get the old boys along the Corridor to try to emasculate the Bill. Do the Conservatives intend to adopt that strategy throughout this process? If they do not get their own way here, will they try to block the Bill until they do so in another place?
§ Mr. Hawkins
The hon. Gentleman has perhaps forgotten that in Committee, in relation to a similar amendment, fie said:I support the thrust of the amendment, especially with regard to one subject."—[Official Report, Standing Committee B, 13 November 2001; c. 17.He went on to talk about its remit in relation to Scotland. I am rather disappointed to find that he seems to have changed his mind.
§ Mr. Hawkins
I shall give way in a moment, when I have finished my point. The hon. Gentleman's contributions in Committee informed and amused us throughout our proceedings. As tributes have been paid to others for their work in Committee, I pay my own tribute to him for those constructive contributions.
We have no intention of using what the hon. Gentleman describes as the old boys along the Corridor to block the Bill. As he will remember from Committee, we have said throughout discussions on the Bill that we support its broad thrust and are trying merely to improve it. I hope that he will return to what he helpfully said at column 17 on 13 November in expressing his support for the thrust of an Opposition amendment that was similar to amendment No. 174. If he still wants me to give way, I shall do so.
§ Mr. Davidson
How can I resist? The hon. Gentleman's compliments on my behaviour in Committee would have been much better received if I had not had to drag them out of him by intervening on him. As he has already twice mentioned the fact that he is going to take these matters to another place, and as the Conservatives raised this point consistently in Committee, may I take it that he is speaking on behalf of the hon. Member for Beaconsfield (Mr. Grieve) and himself when he says that it is not his intention to sabotage this measure in the Lords? Or is there a division on the Conservative Benches, as there was so often in Committee?
§ Mr. Hawkins
The hon. Gentleman's memory must be playing him false. There were no divisions between me and my hon. Friend, and we have no divisions on this point. As my hon. Friend has rightly said, we are concerned that the Government might have overloaded the programme for today, and I do not want to detain the House further on this matter. We hope, however, that the Government will continue to consider it in the responsible and constructive way in which they have considered many other issues.
§ John Robertson (Glasgow, Anniesland)
I pay tribute to the Opposition parties, and to how well they conducted 590 themselves in Committee. I also welcome the three members of the Scottish National party to our discussions; I hope that they might contribute something for a change.
§ Annabelle Ewing (Perth)
I am pleased that the hon. Gentleman has extended a special welcome to us today. The fact is, we have been involved in this matter. We were not on the Standing Committee because we were not awarded a place. We had no place on the Committee of Selection, and we had to rely on the good will or otherwise of the Liberals to secure a place on the Standing Committee. Of course, they preferred to have two places for themselves, although, from looking at their attendance record, I see that they both managed to miss 15 or 16 sittings apiece. Perhaps there was a wasted place, and if the Liberals had not sought to have two places for themselves, they could have allocated one to the SNP—
§ Mr. Deputy Speaker
Order. I think that we have a sufficiency of that matter on the record. May we please return to the amendment?
§ John Robertson
I am sure that my colleagues on the Liberal Benches will respond to the point made by the hon. Lady.
On amendment No. 174, the hon. Member for Surrey Heath (Mr. Hawkins) talked a great deal about targets. Although I have some sympathy with the Conservatives on targets—on many occasions, various bodies have to adhere to too many targets—limiting the number to 10 would cause different problems. Which 10 targets should we choose if there happened to be 12, or 20—who knows? Then again, there might only be five. If we talk about a specific number, such as 10, we might have to try to invent targets to get the total up to that number. I accept that the proposal was for a maximum of 10, but sometimes maximums have a habit of becoming actuals. That could be a problem.
Having read the Bill, I would have thought that the matter would be covered by schedule 1(8)(1), which requires the director to set an agenda for the year. That would involve targets. I would be inclined to consider a reduction in targets, rather than an increase, in circumstances in which the director would examine what was required for the year. The objectives themselves would become targets.
On amendment No. 196, tabled by the Liberals, I agree entirely with the Minister. I thought that the Liberals misunderstood the matter, and I found the issue very complicated. Then again, I found the whole Bill a bit complicated, not being a lawyer. That is the first time that that has been said in the debate, but it will be said many more times over the next two days.
I ask the Minister to look at the targets. I know that the situation is fluid and that it will change, but we should consider it in a better light, perhaps strengthen the director's objectives and make them part of the targets.
§ Norman Baker (Lewes)
First, may I briefly put it on record that we received no request from the SNP for a place on the Committee?
§ Mr. Deputy Speaker
Order. I appeal to the hon. Member for Lewes (Norman Baker). We do not want to go back down that track. Let us stick to the amendment, as there is an awful lot to cover today.
§ Norman Baker
I am sure that we would have given them a seat if they had wanted one.
I thank the Minister for listening to what was said in Committee and for the Government amendments, all of which we welcome, especially amendment No. 79. As he knows, it addresses a point of concern raised not just by Opposition Members, but by the hon. Member for Redcar (Vera Baird).
I want briefly to address our amendment No. 196. We shall not press it to a Division, but we want to tease out from the Minister, even at this stage, more information on how the co-operation will occur. Our motivation is the uncertainty that persists following the discussion in Committee, and I refer the Minister to columns 49 and 50 and the rest of that debate.
We want to ensure, first, that nothing a director does could jeopardise criminal proceedings by cutting across prosecution authorities and, secondly, that the director does not receive material that is passed to him unlawfully. Nor do we want him to be artificially hampered in respect of information that would help his work that has been collected and could be used by him. The amendment represents an attempt to clarify the legal position.
In Committee, I raised with the Minister the position regarding telephone taps and whether information from such sources could be passed to the director. In return, he referred me to the specific exemptions in part 10—the Data Protection Act 1998 and part 1 of the Regulation of Investigatory Powers Act 2000. We are clear on those, but, of course, other legislation is involved. For example, a collection of material relates to telephone communications—not taps, but records of numbers that have been dialled, which are not covered by the two Acts.
It is possible for information to be collected by a prosecution authority or, indeed, by the security services, which are not among the bodies set out in part 10. Therefore, there is doubt in my mind about whether they are included and what their role is. It is also possible for information to be collected by the security services that is intended for a prosecution. The judgment may be made that a prosecution would not be sustainable. In such circumstances, would it be permissible to pass information that had been collected to the director? If not, would the information be lost in respect of any subsequent action that may be taken by the Assets Recovery Agency
We are uncertain about those issues. I repeat that I do not want information that should be used for confiscation procedures to be collected but not passed on, but nor do I want anyone to be in a position where they are deemed to be passing information unlawfully. I think that our amendment helps to clarify the legal position, but the Minister clearly takes a different view. He must provide more clarification and, in particular, refer to the position 592 of the security services, which are not mentioned in clause 427(5), as other prosecution and law enforcement agencies are.
§ Ian Lucas (Wrexham)
I shall confine my remarks to amendment No. 174 and the question of the performance targets, which has already been raised. The hon. Member for Surrey Heath (Mr. Hawkins) may be labouring under a misapprehension. My reading of the Bill suggests that the performance targets will be set not by the Government, but by the director in the confines of the plan. Will the Minister confirm that? The Government are not imposing targets on the director, as the hon. Gentleman suggests; rather, the director, in managing his organisation, will decide to present performance targets in the confines of his own plan.
§ Mr. Paul Stinchcombe (Wellingborough)
Does it not strike my hon. Friend that the purpose of the Opposition's amendment is effectively to allow the Government to impose limitations on the director's discretion to set whatever targets he thinks appropriate?
§ Mr. Hawkins
Is the hon. Gentleman seriously suggesting that any director running a sensible organisation in the private sector would have more than 10 performance targets?
§ Ian Lucas
As one who ran a business in the private sector before coming here, I would certainly have more than 10—and my business was much smaller than the agency will be.
I think the Minister's point that Government should not fetter the director's management goals is the salient point, the one that carries real force. If the Minister can confirm that the director rather than the Government will impose the performance targets, the Opposition's argument must surely fall.
§ Mr. Stinchcombe
If the hon. Member for Surrey Heath (Mr. Hawkins) is right in saying that no sensible director would impose more than 10 targets, he has nothing to fear from the employment of—presumably—such a sensible person. We merely suggest that, rather than our dictating to him how he should exercise his powers and discretions, he should decide for himself.
§ Mr. Bob Ainsworth
I do not know what more I can say about disclosure, other than repeating the commitment I gave in Committee that part 10 will do nothing to authorise a disclosure prohibited by the Regulation of Investigatory Powers Act 2000, or cut across the provisions of the Data Protection Act 1998.
The hon. Member for Lewes (Norman Baker) asked whether the director would receive information that had been obtained illegally. In effect, the director is not an individual but a public body; certainly, he is a public person. All the usual restrictions involving operating within human rights legislation and other requirements will apply to him as they do to any other person.
593 The hon. Gentleman and I may differ on whether, and to what extent, the human rights legislation should be replicated in different parts of the Bill, but we think the restrictions in the Acts I have mentioned, along with the requirements of the Human Rights Act 1998, are sufficient to ensure that the director cannot act in any way that is inappropriate.
As for the possibility of the director's actions cutting across prosecutory authorities, I can only ask the hon. Gentleman to return to our debate about the hierarchy that we envisage. We do not want any of the powers in the Bill to impede the primary objective, which must be the prosecution and bringing to book of criminals by the ordinary prosecution authorities, and their ability to take such people to court if possible and, when appropriate, to lock them away. Nothing that the director does within any of the powers that we are giving him under the Bill ought to cut across the activities of the other law enforcement agencies, which should come as a first consideration in the hierarchy.
§ Norman Baker
Law enforcement agencies might collect information at an early stage with a view to prosecution that would then not be used. Can the Minister guarantee that information that is collected and which may be useful in subsequent proceedings undertaken by the Asset Recovery Agency will be passed on? Are there circumstances in which it will not be passed on?
§ Mr. Ainsworth
The hierarchy will work in such a way that the overwhelming majority of the information that comes to the director comes from the police authorities or the prosecution authorities. In most circumstances, that will occur where they have decided that prosecution is not viable or appropriate, for whatever reason. Of course the information, where appropriate, will be passed on to the director of the Asset Recovery Agency so that he can consider whether or not to pursue the issue through civil recovery, his taxation powers or whatever else is appropriate to him.
I can only repeat that the director will act as a public body. He is restrained by all the requirements that fall upon him under human rights and data protection legislation and the RIPA provisions. We feel that they are sufficient to make sure that information is passed on to the director appropriately.
We do not want to put any restrictions on people co-operating with the director; quite the reverse. We want people to co-operate with him and we want powers to recover the proceeds of crime used far more extensively in this country than they have been over many years. That has been the desire of Governments of all complexions for a long time, but our legislation has been woefully inadequate until this point. We can only hope that our provisions will rectify that and that we can attack those profits and dismantle some of those organisations by preventing them from doing what they exist in order to do, which is to generate money and proceeds.
§ Norman Baker
Can the Minister explain why, in part 10, MI5 in particular and the security services in general are not listed as permitted persons?
§ Mr. Ainsworth
The hon. Gentleman is right; the security services are not listed as bodies that are permitted 594 to disclose information to the director. Discussions are continuing as to whether it would be appropriate to list them. We had a discussion in Committee about this. When I am able to say something about it, I will try to make sure that Parliament is made aware of our conclusions. For the moment, the security services are not listed. We are continuing to examine whether they ought to be, and in what circumstances.
On the question of targets, my hon. Friends the Members for Wrexham (Mr. Lucas) and for Wellingborough (Mr. Stinchcombe) are absolutely right. There is widespread discussion about how many targets we impose on how many bodies and whether or not it is appropriate for us to do so. We had such a discussion in Committee. I ask Opposition Members to accept that while everyone complains about the number of targets that we require of them, let them try to remove one. The complaints come quickly that by removing the target, we are saying, in effect, that the activity concerned is not core or central and that we are not giving it sufficient prominence. Here, we are not talking about imposing targets on the director, as my hon. Friends have said. The director will draw up the targets. He will have to have the agreement of the Secretary of State.
§ Mr. Ainsworth
The hon. Gentleman says that we should not impose too many targets. Obviously, the director will want to manage the business that he has been given and he will need to decide on the level of the targets. The hon. Gentleman may be right, and the director may decide that the number should be far fewer than 10, but why cannot we leave it up to him to decide appropriately?
§ Mr. Dominic Grieve (Beaconsfield)
The Minister will recall that one of the anxieties expressed in Committee was about detailing targets for what could ultimately be the amount to be confiscated in any given year. The fear is that there could be a conflict between what is essentially an economic target for a Department and the interests of justice. I accept that no such target is set out, but it is a legitimate matter to raise and to express anxiety about.
§ Mr. Ainsworth
The hon. Gentleman is absolutely right. It would be ridiculous to require the director to involve himself in X number of confiscation proceedings, with no consideration of quality or added value or what return comes from those proceedings. The Bill is structured so as to allow him to draw up the targets. He will have to do that and seek the agreement of the Secretary of State. We do not need a numerical restriction.
I thank my hon. Friends the Members for Wrexham and for Wellingborough for their input, and I ask hon. Members to support the Government amendments and not to insist on theirs.
§ Amendment agreed to.
§ Amendment made: No. 78, in page 260, line 24, at end insert—
'(2) But the Director must not appoint a person under sub-paragraph (1)(b) unless he first consults the Secretary of State.'s.—[Mr. Bob Ainsworth.]595
§ Mr. Alistair Carmichael (Orkney and Shetland)
I beg to move amendment No. 226, in page 261, line 24, at end insert "and in Scotland.".
§ Mr. Deputy Speaker
With this it will be convenient to discuss the following amendments: No. 228, in page 262, line 20, at end insert—11 A In section 15 of the Scotland Act 1998 (disqualification from membership of the Parliament) insert in subsection (1)—(aa) he is the Director of the Assets Recovery Agency";11B In section 12 of the Government of Wales Act 1998 (disqualification from being an Assembly member), insert in subsection (1)—(e) he is the Director of the Assets Recovery Agency".'.Government new clause 13—Performance of functions of Scottish Ministers by constables in Scotland.
Government amendment No. 90.
Government new clause 14—Performance of functions of Scottish Ministers by constables in Scotland (No. 2).
Government amendment No. 285.
Amendment No. 229, in clause 447, page 258, line 29, leave out "or 431(6)" and insert ", 431(6) or 446".
Government new clause 6—Enactment.
New clause 1—Operation of the Act in Scotland: reports and review—
- '(1) The Lord Advocate must, as soon as possible after the end of each financial year, publish a report on how he has exercised his functions under Part 3 and under Chapter 3 of Part 5 during the financial year.
- (2) The Scottish Ministers must, as soon as possible after the end of each financial year, publish a report on how they have exercised their functions under Part 5 during the financial year.
- (3) Within a period of two years after the coming into force of Part 5 of this Act, the Lord Advocate and the Scottish Ministers must publish jointly a review of the operation of the Act (other than Part 6) in Scotland, including their opinions on the case for the establishment of a Scottish Assets Recovery Agency.
- (4) A report under subsection (1) or (2) or a review under subsection (3) must be laid before the Scottish Parliament.'.
§ Mr. Carmichael
associate myself with the remarks made earlier about the conduct of the legislation and our proceedings in Committee. This is the single largest piece of legislation from Scotland to go through the House since the Scotland Act 1998. In that context, I am pleased to welcome back to the debate Scottish National party Members. I am not given to defending my Whips Office, but I remind the House that Plaid Members, who are in the same position as Scottish National party Members, somehow managed, through my Whips Office, to get representation on Standing Committees. I fear that there is something slightly false in the self-righteous indignation that we hear from the SNP.
§ Mr. Alex Salmond (Banff and Buchan)
Such is the lack of confidence in the Liberal Whips Office and its representation of minority parties that not only the SNP but Plaid Cymru, all the Unionist parties, the SDLP and every other minority party have defected from the 596 Liberals as representatives and are now being represented by the Government Whips, because the Liberal party consistently filched our places on Standing Committees.
§ Mr. Carmichael
Had the hon. Members for Angus (Mr. Weir) or for Perth (Annabelle Ewing) asked our Whips Office, they would have been more than welcome.
§ Mr. Deputy Speaker
Order. I have heard enough of this argument, which is quite outside the terms of the amendment. Let us get on with the substance of the amendment.
§ Mr. Carmichael
I take your point, Mr. Deputy Speaker.
The amendment is not of massive significance, but I urge the Minister to consider it seriously. The functions of the director of the Assets Recovery Agency that are to be executed north of the border—primarily taxation functions—should be incorporated in a plan. Plans are being outlined for the rest of the country, and I do not see why there should be any difference for Scotland.
Likewise, in connection with amendment No. 228, it must be remembered that the Bill comes before this House as a result of a Sewel motion. Much has been made during the Bill's passage through the House of the virtue of uniformity of provision throughout the United Kingdom. As drafted, the Bill provides that the director of the ARA would be excluded from membership of both this House and the Northern Ireland Assembly. Given that the director has some functions in Scotland and Wales, it seems only sensible that the exclusion should apply there also.
More significant is new clause 1. The Bill will require the director of the ARA to make reports to this House. New clause 1(1) would mean that the Scottish Parliament would benefit from the same level of reporting, from the Lord Advocate. The general point is that the Lord Advocate and the ARA director will have nearly identical roles. Therefore, the Scottish Parliament should be able to subject the actions of the Lord Advocate in the performance of his functions under the Bill to the same degree of scrutiny as this House will be able to bring to bear on the performance of the ARA director. Proposed new subsection (2) deals with the execution by other Scottish Ministers of their functions under the Bill.
Proposed new subsections (3) and (4) are based on the assumption that at some time in the future there will be a Scottish ARA. In Committee, I expressed concern that the Lord Advocate's significant range of functions under the Bill could give rise to a conflict of interests with those functions that he currently executes, either by statute or by common law, in relation to the investigation and prosecution of crime in Scotland. There is a fairly strong argument for saying that, in light of the nature of the powers to be given to the Lord Advocate or executed by the state under the Bill, a new body should be created. That body would physically distinguish the new powers from the Lord Advocate's prosecution functions, which are all based in the Crown Office.
On balance, I am persuaded that the relatively small nature of the operation north of the border means that the creation of a special ARA for Scotland would lead merely to an unnecessary—and possibly unwieldy and less effective—layer of bureaucracy. However, the option 597 should be kept open. Once we see how the functions—especially with regard to confiscation—are carried out when the Bill is enacted, we should be able to consider whether it is necessary to establish an equivalent agency to operate independently in Scotland.
There is a danger of cross-contamination between some of the confiscation and subsequent civil recovery proceedings, and the investigation and prosecution of crime. It seems to me appropriate that the position should be properly assessed after a couple of years, and that the Scottish Parliament should be able to revisit the matter in the light of experience.
The only other matter on which I wish to comment at this stage is amendment No. 229. I am prepared, on balance, to support the Scottish National party on the amendment. It highlights an important issue in relation to the conduct of legislation through this House subsequent to the passing of a Sewel motion by the Scottish Parliament. I have gone on record before as saying that it is important to have proper scrutiny by Parliament of the Executive on legislation coming here under a Sewel motion. That is currently problematic.
The SNP's amendment would at least require an order to be brought before the Scottish Parliament and would allow Members of the Scottish Parliament to have the final say on whether they were happy with what we have done in this place. That is very little in the way of parliamentary scrutiny but it is preferable to none at all, which appears to be the situation at present.
I understand that the Scottish nationalists may divide the House on the amendment. They will have the support—albeit grudging—of Liberal Democrat Members.
§ Annabelle Ewing
I rise to support amendment No. 226, tabled by the Liberal Democrats and the SNP-Plaid Cymru group. I should also like to speak to amendment No. 229 which, as the hon. Member for Orkney and Shetland (Mr. Carmichael) pointed out, has been tabled by that group.
The SNP-Plaid Cymru group is broadly supportive of this important Bill's objectives. It is about time that the drugs barons and their like accepted that they are not above the law. There are many good provisions in the Bill that will, I hope, secure the Bill's objectives.
Amendment No. 229 is of fundamental constitutional importance, because it seeks to ensure that the spirit of the Scotland Act 1998 is respected. The hon. Member for Orkney and Shetland pointed out that the Bill was referred by the Scots Parliament by way of a Sewel motion, passed on 24 October last year. That was necessary because the Bill covers not only reserved matters but also many matters devolved to the Scots Parliament.
At the time of the debate in the Scots Parliament in October, my SNP colleagues in Edinburgh supported the procedure proposed by the Scottish Executive on that occasion, although we have grave concerns about the ever-increasing recourse to Sewel motions put forward by the Labour-Liberal Scottish Executive in the Scots Parliament. There have been some 30 Sewel motions since May 1999. Let me put that in context by saying that there have been only 30 substantive Acts passed by the Scots Parliament in that time.
598 This matter was passed to Westminster in the sense that it was the original Bill that was approved by the Scots Parliament, including my SNP colleagues. However, there have been many major and substantial changes to the Bill, particularly to part 3, which deals with confiscation orders in Scotland.
§ Mr. Davidson
The hon. Lady says that some 30 Sewel motions have been passed in the Scottish Parliament, compared with the 30 or so Acts that have also been passed. Is she saying that in these circumstances, the business in Sewel motions should have been held back? Is it the position of the SNP that the Bill should not have been dealt with by Westminster and that the measures to be taken against drugs barons should have been delayed until such time as the Scottish Parliament had the space to deal with them?
§ Annabelle Ewing
I have already addressed that point; perhaps the hon. Gentleman was not listening. I said that on that occasion, my SNP colleagues supported the Sewel motion on the Bill. That is a matter of record, if the hon. Gentleman should ever read the minutes of the Scots Parliament.
§ Mr. Grieve
The hon. Lady might wish to acknowledge that when the complete rewriting of the Scottish parts of the Bill took place in Committee, the opposition to that taking place without further reference to the Scottish Parliament came principally from the Conservative Opposition.
§ Annabelle Ewing
On the basis that the hon. Member for Galloway and Upper Nithsdale (Mr. Duncan) is not even here, notwithstanding that we are dealing with major changes to Scots law, nothing surprises me about the Conservatives.
The amended Bill involves major and substantive changes to Scots law, particularly in dealing with the mandatory rather than discretionary powers of the sheriff or the High Court judge to consider whether to proceed with a confiscation order hearing. That represents a major change to Scots law and it should be dealt with in the proper forum—the Scots Parliament. The Scots Parliament was presented with a Bill that did not contain this provision. This is a substantial amendment, and it must surely be in the interests of the democratic process that the Scots Parliament reviews whether it wishes to proceed with such a significant change to Scots law.
§ John Robertson
I have been looking at amendment No. 229. Can the hon. Lady explain why she wishes to incorporate clause 446 into the Bill, which is already drafted?
§ Annabelle Ewing
We are seeking to ensure that key changes to the Bill concerning part 3 are referred back to the Scots Parliament for proper debate. If there is a Division and the amendment is passed, that is what the amendment will achieve. That is clearly what it states; perhaps the hon. Gentleman would like to reflect further on the text. It is the democratic way to proceed.
599 If the Government do not concede the point, I am pleased that we will have the support of Liberal Democrat Members in a Division. I wonder, however, what the position of Mr. Jim Wallace, the Liberal Democrat Minister for Justice in the Scots Parliament, would be.
§ Mr. Carmichael
It is a particularly cheap shot, even from a Scottish nationalist, to attack someone who is no longer a Member of this House. Does the hon. Lady not understand and accept that Sewel motions do not last for ever? If there is any aspect of the Bill with which she or her colleagues in Edinburgh are not happy, it is open to them, when the Bill is enacted, to bring forward amending legislation in the Scottish Parliament. Surely that is what they should be doing—they should put up or shut up.
§ Annabelle Ewing
That is putting the cart before the horse. Surely the best time to deal with legislation is when it is going through its parliamentary stages, which is what we are seeking to do. That is better than adopting legislation and then going through a further procedure.
§ Annabelle Ewing
With respect to the hon. Lady, I think that I have given way quite a lot. I do not want to tie up the time of the House unduly.
Many hon. Members have argued in favour of extensive recourse to Sewel motions. However, in January 1998, the late Donald Dewar indicated that the Sewel motion would be used only in very rare circumstances. We in the SNP are trying to respect the spirit of the Scotland Act.
§ Annabelle Ewing
I have already given way to the hon. Gentleman.
We hope to get the support of the Minister on the amendment. I remind him that he stated in the Select Committee on Scottish Affairs on 7 November that although there may be no legal obligation to refer the matter back to the Scots Parliament, if there were substantial or major changes such as the mandatory rather than discretionary jurisdiction of the courts, there would be a political imperative to do so. I therefore ask the Minister to support the amendment, so that we do not need to divide. That is the democratic way to proceed.
I also support amendment No. 226, the argument for which was made eloquently by the hon. Member for Orkney and Shetland. To ensure consistency in the Bill, the director of the new agency, if he is to have a particular role in Northern Ireland, should also be required to explain in his annual plan how he intends to carry out his role in Scotland.
§ Mr. Hawkins
On hearing the meowing of the pussycats among the Liberal Democrats, the Scottish nationalists and Scottish Government Members, one feels, as a member of the Opposition Front Bench, as if one is intruding on private grief. We had an interesting debate on these matters in Committee on 6 December 2001. The hon. Member for Orkney and Shetland (Mr. Carmichael), whose contributions were otherwise able and distinguished, had to concede that he was doing something other than what one 600 of his spokesmen in the Scottish Parliament had asked him to do, and my hon. Friend the Member for Beaconsfield (Mr. Grieve) and I often felt that we were indeed intruding on the private grief of the other parties.
There are some serious points. As was noted in Committee, if the Government had envisaged the change from a discretionary to a mandatory regime at the time, one would have expected the Minister for Justice to inform the Scottish Parliament, so that the debate could proceed on that basis; the fact that such a statement was not made before the debate took place in the Scottish Parliament was very odd timing.
We acknowledge that, through this group of amendments, the Government have introduced some sensible changes. Government new clause 6, which will include Scottish Parliament Acts and Northern Ireland legislation, is a sensible clarification. Amendment No. 90, which amends clause 326, is also helpful. In deleting the phrasebut excluding a lease which is not a long lease",
it addresses a point that was raised in Committee. Through this group of amendments, the Government have adopted the same constructive approach that they adopted in the previous group. We await with interest to hear what the Minister has to say about the issues that have so exercised Government Back Benchers from Scotland, Scottish nationalists—I am never quite sure whether they are calling themselves the Scottish nationalist and Plaid Cymru group instead—and Liberal Democrat spokesmen.
We understand the point made by the Scottish National party in its short but none the less significant amendment No. 229. Given the overloading of amendments that we must consider in but two days, it remains to be seen whether we will have time to divide on that amendment. Although we are debating it now, it would be called for a Division not today but tomorrow, because it relates to a later part of the Bill. Once again, therefore, we might prove unable to finish discussing an important matter in this House, and it might have to be returned to in another place.
These are important matters and they will surely receive considerable attention in the Scottish Parliament. We will listen with interest to what the Minister has to say about them, and perhaps we can return to them tomorrow, or in another place at another time.
§ Mr. Davidson
am somewhat puzzled by the position of the nationalists. They seem to be against Sewel motions in principle, but in favour of every individual example thereof—such as the Proceeds of Crime Bill—because they are impossible to oppose. That position gives rise to a certain difficulty, particularly when they try to argue for their proposed new procedure.
As I understand it—the Minister will doubtless correct me if I have misunderstood—under the Sewel procedure the opportunity for amendment always exists. Indeed, that is the purpose of debate in Committee and at this level. I cannot understand why, in such circumstances, the SNP did not ask the Liberal Democrats for a place on the Committee. You have said, Mr. Deputy Speaker, that it is out of order to pursue that issue and I do not particularly want to do so, but we need to consider the procedure that should be followed.
If a party such as the SNP agrees to the Sewel mechanism, it should not then argue that legislation passed by this House must return to the Scottish 601 Parliament for further amendment. Under the Sewel mechanism, legislation should be amended in Committee, so the nationalists ought to have asked the Liberal Democrats—their bosses in respect of that procedure—for a place on the Committee. Three places were taken up by Liberal Democrats, but I presume that there was internal dissent, as they were never present at the same time.
§ Mr. Deputy Speaker
Order. The hon. Gentleman has made his point. I listened very carefully and he was quite ingenious, but I do not want to go back to the general issue. Has he concluded his remarks?
§ Mr. Davidson
No, there is plenty more. However, I take the point, Mr. Deputy Speaker, that I am not to mention again that the nationalists were not represented on the Committee, and I shall not discuss the fact that they declined to ask for a place.
We need to consider how such matters are dealt with and the question of the lack of scrutiny, which was raised by the Conservatives. On several occasions, the Conservatives have threatened us with the old codgers along the Corridor. They have suggested that if they do not get their way here, they will try to block the Bill in the other place. Although the Conservatives have engaged in a degree of constructive discussion, they have also indulged in an inordinate amount of piffle and waffle. It is clear that on some occasions they were deliberately delaying business to prevent further argument on the Floor of the House.
I realise that it is often difficult for a non-lawyer—many of my colleagues are also not lawyers—to distinguish between time-wasting and the normal language of lawyers. None the less, it was clear to those of us with open minds that the Conservatives were employing circular arguments—admittedly, they were ingenious on occasion—for no purpose other than delay. We must reject completely the strategy that anything that they cannot win here, they will try to win along the Corridor.[Interruption.] I am receiving signals from those on my Front Bench to keep going, but I shall draw my remarks to a close.
§ Mr. Deputy Speaker
Order. Let me assure the hon. Gentleman that he must not keep going on that subject. May I suggest that he speaks to the amendment? We have a very considerable agenda to get through today, and he will do a service to hon. Members throughout the House if he confines himself to remarks relevant to the amendment.
§ Mr. Davidson
In the light of that eloquent plea, Mr. Deputy Speaker, I shall not mention again the fact that the nationalists did not ask for a place on the Committee, and I draw my remarks to a close.
§ Mr. Salmond
Repeating an allegation does not make it any more true. I can well understand, having listened to that contribution, why the Committee stage on the Bill took so long. The hon. Member for Glasgow, Pollok (Mr. Davidson) is a one-person Committee. If only he would be as assiduous in the Chamber as he is in Committee, he would have a better chance of reselection in Glasgow.
602 6 pm
The hon. Member for Surrey Heath (Mr. Hawkins) attacked the SNP, the Liberals and the Government in turn, and he runs the risk of uniting us against him. Those parties share some common characteristics, one of them being that we do not necessarily pay much attention to Conservative Front Benchers. However, I hope to see the Conservatives in the right Division Lobby if the key amendment is called tomorrow.
The issue of the Sewel motion is a matter of principle. I know that the Minister will answer in that spirit, because when he appeared before the Scottish Affairs Committee on 7 November 2001 he specifically said that he could foresee considerable difficulties with legislation that was amended after a Sewel motion was passed. He said that it would be up to the Scottish Executive to go back to the Scottish Parliament. He continued:I think that there may be no legal obligation but I think that there may be a political imperative to do that, if there was a major change in relation to the principle. In relation to the question of mandatory/discretionary, that would be a major change.The Minister saw a difficulty in a significant change being made after a Sewel motion, without a procedure to refer the matter back to the Scottish Parliament.
I can tell the hon. Member for Glasgow, Pollok and others that the issue is not about the Sewel process. The issue is what happens if legislation is changed significantly after debate in the Scottish Parliament.
§ Mr. Grieve
At the risk of repeating the question that I put to the hon. Member for Perth (Annabelle Ewing)—to which I received an incoherent and ungracious answer—has the hon. Gentleman read the report of the 15th sitting of the Committee on Thursday 6 December 2001, and if so will he acknowledge that those constitutional points were made by the Conservatives?
§ Mr. Salmond
I am willing to reveal to the House that even the Conservative party can be caught telling the truth occasionally and the contributions from the hon. Gentleman and his colleagues in Committee were one such example.
In front of the Scottish Affairs Committee, the Minister acknowledged the real difficulty at issue in this debate. The merits of mandatory or discretionary powers for Scottish sheriffs are not at issue, because they will be addressed in a later amendment tabled by the Liberal Democrats. The debate tonight is about the principle of a significant change in legislation.
If the Minister will not be gracious enough to accept the amendment, at least he should tell us what he thinks is the answer to the question. I know that the Minister has enormous powers of persuasion and he may have convinced the Scottish Minister for Justice that the change is okay. However, it is a question not of the Scottish Executive being convinced, but of legislation passed by this House for the Scottish Parliament. Can the Minister tell us what he sees as the answer? Is it to place a rider in the legislation to the effect that if serious changes are made, the matter must go back to the Scottish Parliament to see if it meets with approval there?
§ Mr. Mark Field (Cities of London and Westminster)
I shall not speak at great length, because I appreciate that we have much more to deal with. I wish to associate 603 myself with the comments of my hon. Friend the Member for Surrey Heath (Mr. Hawkins), because I have enjoyed serving on what was a good-humoured Committee almost throughout its 39 sittings. The good humour broke down around the 36th sitting, but everything worked out well in the end. We had some useful debate during the three months and, as both my colleagues on the Front Bench have pointed out, some of it has germinated into Government amendments.
It is implicit in the fact that a Sewel motion has arisen that a Bill of this importance requires revision. The hon. Member for Glasgow, Pollok (Mr. Davidson) referred to that revision as being performed by the old codgers down the Corridor, but the fact that we have a second Chamber allows sensible and constructive revision to take place. I am sure that I speak for my fellow Conservatives in hoping that whatever revisions take place in the House of Lords they are constructive and do not destroy the intention of what is proposed. We all hope that the revisions are minor and that we can agree on them.
I have much sympathy with the hon. Members for Perth (Annabelle Ewing) and for Banff and Buchan (Mr. Salmond) and their points about Scottish democracy. On this Bill and others in the future, it will have to be decided how, after a Sewel motion has arisen, we can ensure that the right legislative changes have been made. That is one of the problems with the democratic system being thrown into the air after devolution, as we pointed out to the Government five years ago. The issue will remain to be determined in the years ahead.
I hope that the Scottish issue will not affect the main thrust of the Bill, which everyone on the Conservative Benches understands. We have several concerns that have been expressed in amendments that we will come to today or tomorrow. For example, I would be concerned if, in the provisions on money laundering, we were to have a separate English and Welsh track alongside a Scottish track. It might then be perceived that it was easier to launder money through one of the jurisdictions, and the Mr. Bigs—whom we all wish to catch—would be attracted to London or to Edinburgh to launder their funds. We need to take the issue seriously and that is why the Sewel motion has arisen. The Bill is complex and should be considered similarly throughout the UK.
§ The Minister of State, Scotland Office (Mr. George Foulkes)
In spite of occasional acrimony in the debate, I propose to be reasonably and perhaps untypically helpful. It was poetic irony that the spat between the SNP and the Liberal Democrats occurred when the hon. Member for Orkney and Shetland (Mr. Carmichael) was moving an amendment tabled by both parties. Amendment No. 226 would require that the director's annual plan set out how the director intends to exercise his functions in Scotland. However, the remit of the director will apply in Scotland only in relation to his taxation functions under part 6. As experts on the Scotland Act 1998 on both sides of the House will know, taxation is a reserved matter: it is not within the remit of Scottish Ministers or the Scottish Parliament.
The director's tax functions will be delegated from the Board of the Inland Revenue. That arrangement was made precisely because tax is a reserved matter, to preserve a unified tax system throughout the United Kingdom. We do not believe that it would be appropriate for the Scottish Ministers or the Scottish Parliament to become involved, 604 however indirectly, in the exercise of tax functions. We will therefore resist amendment No. 226. However, I shall be a little more helpful shortly.
Under paragraph 10 of schedule 1, the director cannot be a serving Member of Parliament or Member of the Northern Ireland Assembly while he is the holder of the post. Amendment No. 228 would mean that the director would also be disqualified from membership of the Scottish Parliament and the Welsh Assembly. We agree with the principle behind these amendments. There is no obvious reason why the director could become a member of the Scottish Parliament or the Welsh Assembly, when he could not be a Member of Parliament here or a member of the Northern Ireland Assembly. We do not propose to accept the amendments as drafted, but we will consider how their purpose is best achieved. If appropriate, we will propose amendments to the Bill in the other place—so graphically described by my hon. Friend the Member for Glasgow, Pollok (Mr. Davidson).
As new clauses 13 and 14 and Government amendment No. 285 affected Scotland, the Government consulted and were advised closely by Scottish Executive and Crown Office officials. They, in turn, consulted their Ministers. I pay tribute to the officials who advised me and my colleagues on the Bill.
Under part 5, the Scottish Ministers are responsible for civil recovery in Scotland. I am pleased to advise the House that we envisage the creation of a small, multidisciplinary civil recovery unit to assist them in their functions. That unit will be staffed by people with relevant skills, including lawyers, accountants and civilian financial investigators. I am sure that that will please many hon. Members, particularly those of my hon. Friends who have asked for it. That initiative will strengthen the arm of the Scottish Executive in the fight against drug barons and money laundering. It will provide what I hope will be an effective new unit.
In criminal cases, the Lord Advocate and the procurator fiscal will continue to pursue the proceeds of crime of accused and convicted criminals, but with the greatly strengthened powers of the Bill. We envisage that advantage will be gained from seconding to the unit from time to time police constables with experience in investigating the proceeds of crime. On secondment, officers will not take with them their police powers. That would not be appropriate to the civil nature of the part 5 scheme.
§ Mr. Menzies Campbell (North-East Fife)
In which Department in Scotland will that unit be located? Will it be among the responsibilities of the Lord Advocate, and therefore located in the Crown Office, or will it be a responsibility of the Minister for Justice, and therefore part of his Department?
§ Mr. Foulkes
The internal arrangements are a matter for the Scottish Parliament and Executive. Given all that has been said, far be it from me to determine such matters. The unit will, however, work closely with the National Criminal Intelligence Service and the Scottish Drug Enforcement Agency, representatives of both of which I recently met in Paisley.
605 Scottish Ministers have a number of functions under parts 5 and 8 that it would not be appropriate for seconded constables to exercise. The purpose of the two new clauses is to set out those functions for parts 5 and 8 respectively.
§ Mr. Davidson
I welcome the fact that a special unit is to be established. As the Minister rightly said, it comes about as a result of an initiative taken by me and my hon. Friends the Members for Glasgow, Cathcart (Mr. Harris) and for Glasgow, Anniesland (John Robertson) following discussions with Strathclyde police. Does the Minister agree that that, more than anything else that we have heard, demonstrates the advantage of participating in the Committee? Is not this the time to draw to the House's attention the fact that no SNP Member was ever present on that Committee?
§ Mr. Foulkes
That point may not have escaped the House, and it certainly would not escape Madam Deputy Speaker if I sought to make it again.
Amendment No. 90 relates to clause 326 and part 6. It is a drafting amendment to achieve consistency on the matter of the long lease, and I am glad to say that it has been welcomed by the hon. Member for Beaconsfield (Mr. Grieve).
Amendment No. 229 would require an affirmative resolution of the Scottish Parliament before Scottish Ministers could make a commencement order under part 3. The Scottish Parliament discussed that provision during a debate on the Sewel motion on 24 October. I attended that debate, which I do not believe is true of any of the four SNP Members who are here today. I must tell them that the SNP spokespeople who did attend that debate actually wanted the Bill to be strengthened. The move towards mandatory provision for Scotland takes account of the representations that those spokespeople made, and which were even more eloquently made by my hon. Friends in Committee. As my hon. Friend would doubtless wish to point out, they could have been made by others in Committee too.
When we decided to make that change I consulted the Deputy First Minister, who is Minister for Justice in Scotland, and the Lord Advocate. The change was then discussed within the Scottish Executive, and they agreed that we should proceed along the lines suggested. It was on the basis of that agreement that we did so.
May I say to the Tories, particularly the English Tories—we do not have the privilege of having the single Scottish Tory with us today—that they should not be fooled, as they were in Committee, by the apparently reasonable blandishments offered by the SNP? The SNP may talk about respecting and understanding the spirit of the Scotland Act 1998, but that is no part of its agenda. The SNP's agenda is to break up Britain, and every action that its members take is to that end. If the hon. Member for Beaconsfield does not understand that, he is more naive than he looks.
§ Mr. Grieve
As I said to the Minister in Committee, my party stands for the Union, but it also stands for the proper constitutional working of the devolution 606 settlement. That is central to our principles. That is why I expressed concern in Committee, notwithstanding the Sewel motion, which we fully understood, about substantially rewriting legislation without its having gone before the Scottish Parliament. I should add that that issue and the issue raised by amendment No. 229 are not identical, which is why I shall listen carefully to what the Minister has to say.
§ Mr. Foulkes
I am not responsible for bringing matters to the Scottish Parliament. My responsibility was to consult the Minister for Justice and the Lord Advocate, and I did so. On this occasion, they judged that because they knew the views of all parties in the Scottish Parliament, there was no need to consult it. At the time of the Sewel motion, effective unanimity had been expressed that we needed strong powers to deal with the drug barons. I think that their judgment was correct.
§ Mr. Michael Weir (Angus)
The Minister will recall that I raised that point in the Scottish Affairs Committee, and he said:I think that there may be no legal obligation but I think that there may be a political imperativeto take the matter back to the Parliament. The point was specifically canvassed in the Scottish Affairs Committee. I asked not about the Executive, but the Parliament. I made that point several times. When did the Minister change his mind?
§ Mr. Foulkes
I have not changed my mind, and the hon. Gentleman does not make his point any more effectively by shouting—[Interruption.] I shall hear no comments about pots and kettles. I said that there may, in certain circumstances, be a political imperative to consult the Scottish Parliament, but it is up to Scottish Ministers to decide when that is the case. In this case, they decided that it was not necessary, and I respect their decision
§ Mr. Foulkes
It was fairly obvious, was it not, Madam Deputy Speaker? You are quite right.
New clause 6 would ensure that where the Bill interacts with other pieces of legislation, it is clear beyond doubt that United Kingdom legislation, including that passed by devolved legislatures, is included within the definition of the enactment. In case hon. Members are curious about why there is an exemption for clause 448(1), that is intended to ensure that additional public money is made available only where it has been specifically provided for by Westminster. I hope that everyone will agree with that.
607 Finally, and I hope helpfully to the Liberal Democrats, I will deal with new clause 1. Its effect would be to require the Lord Advocate and the Scottish Ministers to publish separate annual reports and other items outlined by the hon. Member for Orkney and Shetland, which I shall not list again. Hon. Members, particularly the hon. Gentleman, have contrasted the position in Scotland with that of the director of the Assets Recovery Agency. They have pointed out that the director is required by schedule 1 to publish both an annual plan and an annual report. I stress that the difference between the director and the Lord Advocate and Scottish Ministers is that the agency is a statutory body. It is therefore quite correct for the Bill to make detailed provisions on the director's duties and responsibilities. With regard to the Lord Advocate's responsibilities under the Bill for confiscation and cash seizure, I can assure the House that appropriate details of how he has exercised his functions will be set out in the Crown Office annual report, which is laid before the Scottish Parliament. Similarly, appropriate information on how Scottish Ministers have exercised their civil recovery and cash seizure functions will also be published and made available to the Scottish Parliament.
§ Mr. Carmichael
I welcome the news that that information will be published as part of the Crown Office annual report. However, does the Minister accept that that is produced only because the current Lord Advocate and some of his predecessors have chosen to do so, not because any such obligations are placed on him? If any future Lord Advocate decided not to produce such an annual report, Scotland would be left in a significantly weaker position than the rest of the country.
§ Mr. Foulkes
I do not accept that, because it is up to the Scottish Parliament to require the Lord Advocate and Ministers to produce reports as appropriate, and no doubt they will take that up. The hon. Gentleman has one or two friends in the Scottish Parliament, and he can raise it with them. I shall be helpful to the hon. Gentleman, and had he been a little less impatient he would have been even more excited about what I am about to say.
The Government attach considerable importance to the Bill and are determined to ensure that they work effectively to deprive criminals and others of the proceeds of their crime. That applies equally to Scotland. I can therefore assure hon. Members that, as with all new policy initiatives, the effectiveness of the new provisions will be kept under regular review by the Lord Advocate and by Scottish Ministers. If they consider that further changes or improvements are required, they will not hesitate to bring them forward. We consider that keeping responsibility for confiscation in Scotland with the Lord Advocate and making the Scottish Ministers responsible for civil recovery is the most effective arrangement for Scotland. However, if that should turn out not to be the case, of course consideration will be given to other options, including the setting up of a Scottish Assets Recovery Agency. I hope that the hon. Member for Orkney and Shetland will welcome that assurance.
The Government are determined to ensure that the Bill works effectively to deprive criminals and their associates of their ill-gotten gains. It will also recycle substantial 608 amounts of the money recovered from the proceeds of crime to help the victims of crime. That is an important part of the Bill.
§ Mr. Carmichael
I am happy to welcome the Minister's assurances, but does he not accept that the difference between my proposal and his is that the Scottish Parliament, not the Scottish Executive, should be the ultimate arbiter of whether the system is working well?
§ Mr. Foulkes
Of course, the Scottish Executive is accountable to the Scottish Parliament. The hon. Gentleman has colleagues not only in the Scottish Parliament, but in the Scottish Executive. Indeed, he has a very close colleague there, and he should talk to him a bit more.
Given what I have said, I do not think it appropriate to tie Ministers' hands in the way that the amendment seeks to do. In particular, within two years may be too short a period in which to reach a proper assessment of the overall effectiveness of the Bill's arrangements. We do not know how many civil recovery cases there will be in Scotland, but Ministers will have the option of a Scottish agency if they think it appropriate.
In the light of the assurances that information on the exercise of Ministers' functions under the Bill will be published, and that the effectiveness of the Bill in Scotland will be kept under regular review, and given my reasonable and, I hope, eloquent reaction to the amendments, I invite hon. Members to withdraw the amendment and not to press the others.
§ Mr. Weir
I want to return to the point that I tried to pursue earlier by reminding the Minister that when he appeared with the Secretary of State for Scotland and the Advocate-General before the Scottish Affairs Committee on 7 November, the point about the position of the Scottish Executive and the Scottish Parliament was clearly canvassed. The Minister was specifically asked whether the Bill would go back to the Scottish Parliament if there was major change. He said:I think that there may be no legal obligation but I think that there may be a political imperative to do that,"—that is, to take it back to the Scottish Parliament—if there was a major change in relation to the principle. In relation to the question of mandatory/discretionary, that would be a major change".That major change has come to pass, so does he not agree that it should go back to the Scottish Parliament? The Bill as agreed by the Scottish Parliament and with the passing of the Sewel motion will now be substantially different from the Bill that will be passed in this place. The Minister spoke of it and was taken up on the point. The Bill should therefore go back to the Scottish Parliament.
§ Amendment negatived.