Schedule 8 - Amendments

Proceeds of Crime Bill – in a Public Bill Committee am 5:30 pm ar 5 Chwefror 2002.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Mr John McWilliam Mr John McWilliam Llafur, Blaydon

With this it will be convenient to take Government amendments Nos. 658, 659, 661, 662, and 664 to 667.

Photo of Mr George Foulkes Mr George Foulkes Minister of State, Scottish Office, Minister of State (Scotland Office)

All the amendments make consequential amendments to existing legislation, principally to reflect the new provisions that are being introduced in part 3 as they affect Scotland. Parallel amendments have already been included in the schedule for England and Wales. With a little trepidation, I say that if hon. Members want a more detailed explanation of any of the amendments, I would be happy—I think that I shall say willing—to oblige.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

I did not manage to get the Minister to give way before he sat down so rapidly, but I suspect that he missed out the words ''If pressed'' that we know from past experience so often appear in ministerial briefs. He referred in an earlier debate to the fact that the brief was headed ''If pressed''. I am sure that this is such a case, and I therefore press him for an explanation.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

The issue requires some attention for the simple reason that my hon. Friend the Member for Beaconsfield put his finger on earlier. It is sometimes adequate for us to have notes on clauses, and the notes on schedule 8 are quite lengthy. As my hon. Friend pointed out, once we come to such amendments, there are no notes on them. I am prepared to admit that I have not been able to identify exactly what the detailed changes are—there are so many. It is a substantial rewrite. Why was the rewriting of so much of the schedule necessary? What are the amendments designed to achieve, and what presumable error in the original drafting do they put right?

The Minister cannot be allowed to get away with moving so great a change to the Bill. Where it says, ''If pressed'', I too am pressing him.

Photo of Mr George Foulkes Mr George Foulkes Minister of State, Scottish Office, Minister of State (Scotland Office) 5:45, 5 Chwefror 2002

It does not say ''If pressed'', or I would have said it. I can understand that the hon. Member for Spelthorne does not hear things when he is outside the Room, but I said when he was here that all the amendments make consequential amendment to existing legislation to reflect the new provisions as they affect Scotland—principally the new provisions in part 3, which we have discussed at length.

Parallel amendments have already been included in schedule 8 in respect of England and Wales. We have discussed the issue and agreed the principle. These are consequential amendments. We have passed them for England and Wales and now we are doing that for Scotland.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

I do not find that an adequate response. If the amendments are consequential, fine, but what has happened since the original drafting to make such amendments necessary? The need to change other legislation was known when the original Bill was written. At the first drafting, the consequential changes to the legislation were attempted. Something has happened subsequently to make these amendments to the original drafting necessary. All I am saying is, will the Minister tell us what has happened since the original drafting? The fact that we have had debates about other parts of the United Kingdom is fascinating, but it does not answer my question.

Photo of Mr George Foulkes Mr George Foulkes Minister of State, Scottish Office, Minister of State (Scotland Office)

I did explain. Nothing has happened other than that we have considered the Bill. The amendments are consequential amendments to existing legislation to reflect the Bill's new provisions in relation to Scotland. We have debated them in relation to England and Wales. If the hon. Gentleman has a specific question about any amendment, I am prepared to deal with that question on that particular amendment, or to deal with any specific amendment that may be puzzling him.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

It is the principle, not the detail, on which I cannot obtain an answer. The Minister said that the schedule, as originally drafted, was made necessary by the provisions requiring legislation to be changed. I accept that that is what the schedule does. I am trying to get to the bottom of what happened to the drafting of the original schedule, which does exactly what he said it would do, which is to make consequential changes to legislation. What has happened to render the schedule as originally drafted inadequate, so that it requires Government amendments?

The Minister shakes his head as though nothing has happened. If nothing has happened to make the amendments necessary, why are they there? There has to be a reason for amendments to change the schedule, which was doing what he claimed it was. He has not addressed that question.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

The hon. Member for Spelthorne has twice asked what has happened. The short answer to his question is that there have been 38 sittings of the Committee which have led to significant changes. As I understand it, these have now been reflected in the Bill in relation to Scotland. I am grateful, as we should all be, that they have been introduced in this way.

Given that this is our last sitting, this might be an appropriate point in the proceedings to place on the record the gratitude that Committee members feel to the staff who have supported us throughout the past 39 sittings, particularly to the Clerks and the Ministers' officials. My experience is that they have been courteous and helpful.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

I entirely echo the hon. Gentleman's tribute to the support staff. We should also add the thanks of all members of the Committee to our three Chairmen who, without fail, have been good-humoured, relaxed and skilful in their chairmanship.

Photo of Mr John McWilliam Mr John McWilliam Llafur, Blaydon

I have a problem relating this to schedule 8.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

There is no connection, but I thought that it was important to place those comments on the record.

Photo of Mr George Foulkes Mr George Foulkes Minister of State, Scottish Office, Minister of State (Scotland Office)

I agree, but there will be plenty of time later for such comments. However, I wish to say that officials from the Home Office, the Scottish Executive and the Crown Office have been very helpful.

Far be it from me to advise the hon. Member for Spelthorne on which questions to ask. However, if he had asked why there are additional changes to the legislation at this stage, the answer would have been that the exercise is highly technical and complex, it necessitated a thorough trawl through relevant legislation, and it was not possible to complete that before introduction of the Bill. During the time that the Committee has been sitting, we have been able to complete the trawl and table additional amendments. They are all consequential amendments concerning how the provisions of the Bill affect Scotland, in particular, in relation to part 3.

Photo of David Wilshire David Wilshire Ceidwadwyr, Spelthorne

As it is the time for expressing gratitude, may I express gratitude to the Minister for pointing out the questions that I should have asked,

and then answering them before I got around to asking them?

Amendment agreed to.

Amendments made: No. 658, in page 270, line 16, after '2' insert ', 3'.

No. 659, in page 270, line 16, at end insert—

'Immigration Act 1971 (c. 77)

(1) In section 28L of the Immigration Act 1971, in paragraph (c) for the words ''33 of the Criminal Law (Consolidation) Act 1995'' substitute ''397 of the Proceeds of Crime Act 2002''.'—[Mr. Bob Ainsworth.]

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I beg to move amendment No. 647, in page 270, leave out lines 17 to 30.

Photo of Mr John McWilliam Mr John McWilliam Llafur, Blaydon

With this it will be convenient to take Government amendment No. 516.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

The amendment relates to the provisions in schedule 8 for amending the Rehabilitation of Offenders Act 1974 and the Rehabilitation of Offenders (Northern Ireland) Order 1978. The two are linked to achieve the same thing. Paragraph 5 of schedule 8 says:

In section 1 of the Rehabilitation of Offenders Act 1974 (rehabilitated persons and spent convictions) after subsection (2A) insert—

''(2B) In subsection (2)(a) above the reference to a fine or other sum adjudged to be paid by or imposed on a conviction does not include a reference to an amount payable under a confiscation order made under Part 2 of the Proceeds of Crime Act 2001.''.

That is to be further amended by a Government amendment to relate it to part 3 as well, which is about Scottish confiscation provisions. The same provision applies in Northern Ireland and, as spelled out in the explanatory notes, the purpose of the amendment is that a failure to pay a confiscation order will prevent a person from being rehabilitated under the 1974 Act.

I shall wait with interest to hear the Minister's explanation. It may be that I have not fully thought through the matter and that he will satisfy me that that is the correct approach to adopt, but it raised several important points. For example, it is worth remembering that the confiscation provisions under part 2 are not in themselves about the commission of a criminal offence, although they may be linked to it. It is possible for a person to have his assets confiscated under part 2 and, although he would have to have had previous convictions, they need not necessarily be related to the offence in question. Of course, the standard of proof for those confiscations is the balance of probabilities, and the burden of proof is reversed.

When there has been a failure to pay, there are—unless I have misunderstood the position, in which case the Minister will correct me—penalties under the Bill. Therefore, it is puzzling that the policy decision is to remove from the provisions of the Rehabilitation of Offenders Act 1974 those people under a confiscation order who fail to pay the amount due. Surely, the time for which a person is subject to the provisions of the Rehabilitation of Offenders Act and would have to declare his conviction should follow on from the convictional period of imprisonment that was imposed in lieu of payment. Why is a failure to pay a confiscation order subject, per se, to being entirely removed from the Rehabilitation of Offenders Act?

That is slightly mysterious, but perhaps the Minister has a cogent and reasonable explanation.

On a matter of principle, I believe that the Rehabilitation of Offenders Act is good legislation. It is a feature of the criminal justice system in this country that, while we may not succeed in reforming the people whom we convict and sometimes sentence to long periods of imprisonment, we certainly succeed in imposing stigmas on them. Those stigmas can subsequently make it very difficult for them to gain employment, even many years after the commission of the original offence and despite the community's belief that they have been rehabilitated. Why, therefore, should those who fail to comply with a confiscation order be exempt from the protection afforded by the Rehabilitation of Offenders Act? That is my understanding of the explanatory notes and the Bill, and I will be grateful if the Minister will explain the position.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

My hon. Friend the Member for Beaconsfield has made some important points, with which I entirely agree. There is a further issue that I want the Minister to think about. The Committee will recall that in earlier sittings we talked about the fact that gangsterism is rife in Northern Ireland. All of us—especially the absent hon. Member for Glasgow, Pollok—have been at pains to point out that the Mr. Bigs are the main target of the Bill. Mr. Bigs are as prevalent in Ulster as they are in Pollok. They are, sadly, the type of people who are involved with terrorist violence, as well as with the gangsterism at which the Bill is aimed.

I want the Minister to think about whether provisions for the rehabilitation of offenders in Northern Ireland should be slightly different from those that affect the mainland. I agree that the Rehabilitation of Offenders Act has worked well on the mainland, but I am not convinced that it always works well in the Province of Ulster. Gangsterism is rife in Ulster, and I am worried about its connections with terrorism. Will the Minister address that point specifically? My hon. Friend the Member for Spelthorne and I have always taken a big interest in issues that relate to Ulster. I hope that we shall receive some reassurance. For the sake of probing, the amendment would delete lines 17 to 30, and that would affect Northern Ireland provisions, too.

Photo of Mr George Foulkes Mr George Foulkes Minister of State, Scottish Office, Minister of State (Scotland Office) 6:00, 5 Chwefror 2002

On a general note, I wish to say that I agree with the hon. Member for Beaconsfield about his approval of the Rehabilitation of Offenders Act 1974. That was a welcome Act. It was Labour legislation, too. It has been beneficial.

The amendment would enable offenders who fail to pay their confiscation orders to take advantage of that Act, which applies to England and Wales, and Scotland. It would have the same effect in Northern Ireland where the Rehabilitation of Offenders (Northern Ireland) Order 1978 applies. Others came to the same conclusion as I did when listening to the hon. Member for Surrey Heath. Perhaps I do not take as close an interest in the detail of Northern Ireland legislation as he and the hon. Member for Spelthorne

do, but I cannot see a policy justification for a difference between the jurisdictions on rehabilitation.

Confiscation legislation has always included a provision that prevents offenders who would otherwise be rehabilitated from becoming so if they fail to pay their confiscation orders. Such a policy is not new, but a continuation. The reason for the prohibition is straightforward. The recovery of the proceeds of crime is critical. There is another important point that I should stress. Unlike a confiscation order, the failure to pay a fine does not prevent an offender from being rehabilitated. However, there is a crucial difference between fines and confiscation orders. A confiscation order is based on the amount of property available for confiscation at the time that the order is made, and as such it can always be paid. A fine may, for example, take account of future earnings and different criteria may apply.

Offenders should be encouraged to repay their debt to society—a particularly apposite expression in the context of confiscation—and the provision will do precisely that. The new enforcement provisions are designed to speed up the enforcement. In most cases, we expect a confiscation order to have been met through restraint and receivership. The issue of rehabilitation should not really arise. The amendment would let offenders off the hook: something that I do not believe that Conservative Members would wish.

I ask Opposition Members to support Government amendment No. 516. The Rehabilitation of Offenders Act 1974 applies both to England and Wales and to Scotland. Accordingly, the restriction on rehabilitation should apply to Scottish confiscation orders under part 3 as well as to English confiscation orders under part 2. Similar provisions under the current legislation already apply to Scotland. I politely ask the hon. Member for Beaconsfield to consider withdrawing the amendment.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I am grateful to the Minister for his comments. I thought that he would say that previous legislation had incorporated such a provision. The distinction that I sought and that we discussed at some length under part 2 is that confiscation was linked originally to the money identified as being derived from a particular offence. We are now in a different environment in which, given the balance of probabilities with a reverse burden of proof, we will be confiscating money from individuals who have a criminal lifestyle that is not necessarily linked to the particular offence. Although the proceeding is differentiated from the civil recovery proceedings, it has elements of a civil or administrative law remedy that does not give rise to a criminal conviction. That is what is such an interesting aspect, although I accept that defaulting payment may give rise to a criminal sanction.

That is why I wondered whether this was an opportunity to revisit the issue. However, the Minister made a persuasive point that if the money is identified and available for payment, a refusal to pay seems extraordinary. In reality, that is unlikely to

occur, because the money would already have been seized. I suspect that the money would be available for the payment to be made.

Photo of Mr George Foulkes Mr George Foulkes Minister of State, Scottish Office, Minister of State (Scotland Office)

Alternatively, the money might be salted away overseas. I am sure that the hon. Gentleman would not want a person who salted a million quid overseas to be rehabilitated.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

The Minister makes a good point. For those reasons, I am content that the matter has been aired, and I shall withdraw the amendment. I am happy with the Government amendment, which extends the provisions to Scotland, although I suspect that the Committee expected that the provisions would be present in the first place. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 516, in page 270, line 23, after '2', insert 'or 3'.—[Mr. Foulkes.]

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

I beg to move amendment No. 343, in page 271, line 8, leave out from '3' to end of line 14 and insert—

'(courts of summary jurisdiction), after sub-paragraph (i) insert—

''(j) proceedings under sections 294, 296, 297, [Victims] and 300 of the Proceeds of Crime Act 2001''.'.

Photo of Mr John McWilliam Mr John McWilliam Llafur, Blaydon

With this it will be convenient to take Government amendments Nos. 651 to 654.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

This group of amendments is intended to make civil public funding available for certain proceedings under the Bill. I mentioned most of them to the Committee during our deliberations in December.

I shall begin with the main group relating to part 2. As members of the Committee know, the Bill transfers restraint, receivership and other High Court confiscation functions to the Crown court. These proceedings may affect both the defendant and a third party. They are currently classified as civil and automatically attract civil public funding on the standard conditions.

Criminal public funding is available to a defendant in the Crown court between the instigation and conclusion of proceedings. It is not available to third parties in the Crown court. Consequently, we must make civil public funding available to cover cases in which criminal public funding does not apply but in which the defendant and other parties may be affected by proceedings. We intend for the standard conditions to apply before funding is made available, as happens at present.

The meat is in amendment No. 654, which has three main effects on part 2. It will make civil public funding available to the defendant before proceedings have commenced. That is required because it will be possible to obtain a restraint order as soon as an investigation is under way.

Sitting suspended for a Division in the House.

On resuming—

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department 6:22, 5 Chwefror 2002

The second effect of amendment No. 654 is to make civil public funding available to the recipient of a tainted gift. The third is to make such funding available to other third parties affected by restraint or receivership proceedings.

We have spotted that compensation proceedings under clauses 72 and 73 have been transferred from the High Court to the Crown court. As a result, if a third party were, for example, to apply for compensation, criminal public funding would not be available, for reasons that I have already mentioned. Amendment No. 654 therefore also makes civil public funding available to cover applications for compensation. Amendment No. 343 makes equivalent provision for parties to cash forfeiture proceedings in Northern Ireland.

The recovery of cash scheme is set out in chapter 3 of part 5 and provides that such proceedings take place in the summary jurisdiction. We need to provide civil public funding in that criminal venue. In common with the amendments that relate to the confiscation proceedings, civil public funding will be made available to anyone who either makes an application to the magistrates court or becomes party to a connected hearing under the cash recovery scheme. Such parties could include the person from whom the cash was seized and a claimed owner of the cash.

In common with the confiscation scheme, the Bill prevents any person from drawing on detained cash for legal expenses once it has been seized. People will, of course, be required to meet the means and merits test before civil public funding is paid. The amendments are desirable. They provide a safety net for defendants, and I commend them to the Committee.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

I agree with the Minister, for once, as does my hon. Friend the Member for Beaconsfield. The amendments are helpful, and as the Minister rightly says, they provide a safety net. It is important that legal aid is made available. Does the fact that the Bill did not originally specify that and now, helpfully, will, alter the compliance cost assessment that the Minister made? I appreciate that he may not be able to write to me today, but if he will undertake to write to me and other Committee members about any extra cost to public funds of the further legal aid provision, I need not detain him.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

Our initial impression is that it does not, but we shall reflect on the matter, and if that is not true, I shall write to the hon. Gentleman.

Amendment agreed to.

Amendments made: No. 661, in page 271, line 19, after '2' insert ', 3'.

No. 662, in page 271, line 20, at end insert—

'Civic Government (Scotland) Act 1982 (c. 45)

(1) The Civic Government (Scotland) Act 1982 is amended as follows

(2) In section 86A(3) (application of Part VIIA) for ''sections 21(2) and 28(1) of the Proceeds of Crime (Scotland) Act 1995'' substitute ''section 21(2) of the Proceeds of Crime (Scotland) Act 1995 and Part 3 of the Proceeds of Crime Act 2002''

(3) In paragraph 8 of Schedule 2A (interpretation) for the definition of ''restraint order'' substitute—

''restraint order means a restraint order made under Part 3 of the Proceeds of Crime Act 2002''.'.

No. 601, in page 272, line 21, at end insert—

'Bankruptcy (Scotland) Act 1985 (c. 66)

11A. (1) The Bankruptcy (Scotland) Act 1985 is amended as follows

(2) In section 5(4) (meaning of ''qualified creditor'') for the words from ''has the meaning'' to ''1995'' substitute ''means a confiscation order under Part 2, 3 or 4 of the Proceeds of Crime Act 2002''.'

(3) In section 7(1) (meaning of ''apparent insolvency'') for the words from ''has the meaning assigned'' where second occurring to ''said Act of 1994'' where second occurring substitute '' ''confiscation order'' and ''restraint order'' mean a confiscation order or a restraint order made under Part 2, 3 or 4 of the Proceeds of Crime Act 2002''

(4) After section 31 (vesting of estate at date of sequestration) insert—

''31A Property subject to restraint order

(1) This section applies where—

(a) property is excluded from the debtor's estate by virtue of section 405(2)(a) of the Proceeds of Crime Act 2002 (property subject to a restraint order),

(b) an order under section 50, 52, 129, 201 or 203 of that Act has not been made in respect of the property, and

(c) the restraint order is discharged.

(2) On the discharge of the restraint order the property vests in the permanent trustee as part of the debtor's estate.

(3) But subsection (2) does not apply to the proceeds of property realised by a management receiver under section 49(2)(d) or 200(2)(d) of that Act (realisation of property to meet receiver's remuneration and expenses).

31B Property in respect of which receivership or administration order is made

(1) This section applies where—

(a) property is excluded from the debtor's estate by virtue of section 405(2)(b), (d) or (e) of the Proceeds of Crime Act 2002 (property in respect of which an order for the appointment of a receiver or administrator under certain provisions of that Act is in force), and

(b) a confiscation order is made under section 6, 94 or 158 of that Act,

(c) the amount payable under the confiscation order is fully paid, and

(d) any of the property remains in the hands of the receiver or administrator (as the case may be).

(2) The property vests in the permanent trustee as part of the debtor's estate.

31C Property subject to certain orders where confiscation order discharged or quashed

(1) This section applies where—

(a) property is excluded from the debtor's estate by virtue of section 405(2)(a), (b), (d) or (e) of the Proceeds of Crime Act 2002 (property in respect of which a restraint order or an order for the appointment of a receiver or administrator under that Act is in force),

(b) a confiscation order is made under section 6, 94 or 158 of that Act, and

(c) the confiscation order is discharged under section 31, 116 or 183 of that Act (as the case may be) or quashed under that Act or in pursuance of any enactment relating to appeals against conviction or sentence.

(2) Any property in the hands of a receiver appointed under Part 2 or 4 of that Act or an administrator appointed under Part 3 of that Act vests in the permanent trustee as part of the debtor's estate.

(3) But subsection (2) does not apply to the proceeds of property realised by a management receiver under section 49(2)(d) or 200(2)(d) of that Act (realisation of property to meet receiver's remuneration and expenses).''

(5) In section 55 (effect of discharge) after subsection (2) insert—

''(2A) In subsection (2)(a) above the reference to a fine or other penalty due to the Crown includes a reference to a confiscation order made under Part 2, 3 or 4 of the Proceeds of Crime Act 2002.''.'

No. 590, in page 272, leave out lines 23 to 26 and insert—

'12 (1) The Insolvency Act 1986 is amended as follows

(2) In section 281 (effect of discharge) after subsection (4) insert—

''(4A) In subsection (4) the reference to a fine includes a reference to a confiscation order under Part 2, 3 or 4 of the Proceeds of Crime Act 2002.''

(3) After section 306 insert—

''306A Property subject to restraint order

(1) This section applies where—

(a) property is excluded from the bankrupt's estate by virtue of section 402(2)(a) of the Proceeds of Crime Act 2002 (property subject to a restraint order),

(b) an order under section 50, 52, 129, 201 or 203 of that Act has not been made in respect of the property, and

(c) the restraint order is discharged.

(2) On the discharge of the restraint order the property vests in the trustee as part of the bankrupt's estate.

(3) But subsection (2) does not apply to the proceeds of property realised by a management receiver under section 49(2)(d) or 200(2)(d) of that Act (realisation of property to meet receiver's remuneration and expenses).

306B Property in respect of which receivership or administration order made

(1) This section applies where—

(a) property is excluded from the bankrupt's estate by virtue of section 402(2)(b), (d) or (e) of the Proceeds of Crime Act 2002 (property in respect of which an order for the appointment of a receiver or administrator under certain provisions of that Act is in force),

(b) a confiscation order is made under section 6, 94 or 158 of that Act,

(c) the amount payable under the confiscation order is fully paid, and

(d) any of the property remains in the hands of the receiver or administrator (as the case may be).

(2) The property vests in the trustee as part of the bankrupt's estate.

306C Property subject to certain orders where confiscation order discharged or quashed

(1) This section applies where—

(a) property is excluded from the bankrupt's estate by virtue of section 402(2)(a), (b), (d) or (e) of the Proceeds of Crime Act 2002 (property in respect of which a restraint order or an order for the appointment of a receiver or administrator under that Act is in force),

(b) a confiscation order is made under section 6, 94 or 158 of that Act, and

(c) he confiscation order is discharged under section 31, 116 or 183 of that Act (as the case may be) or quashed under that Act or in pursuance of any enactment relating to appeals against conviction or sentence.

(2) Any such property in the hands of a receiver appointed under Part 2 or 4 of that Act or an administrator appointed under Part 3 of that Act vests in the trustee as part of the bankrupt's estate.

(3) But subsection (2) does not apply to the proceeds of property realised by a management receiver under section 49(2)(d) or 200(2)(d) of that Act (realisation of property to meet receiver's remuneration and expenses).''.'.—[Mr. Bob Ainsworth.]

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath

I beg to move amendment No. 442, in page 272, line 26, at end insert—

'Legal Aid (Scotland) Act 1986 (c. 47)

12A In Part I of Schedule 2 to the Legal Aid (Scotland) Act 1986, in paragraph 1, at end add—

''( ) under section 94 of the Proceeds of Crime Act 2002 in relation to the making of a confiscation order where representations are made to the court by someone other than the accused;

( ) under section 101 of the Proceeds of Crime Act 2002 in relation to the disposal of the family home where representations are made to the court by someone other than the accused;

( ) under section 136 of the Proceeds of Crime Act 2002 in relation to action taken by the administrator where an application to the court has been made by a person specified in section 136(2) of that Act;

( ) under section 294 of the Proceeds of Crime Act 2002 in relation to the detention of seized cash;

( ) under section 297 of the Proceeds of Crime Act 2002 in relation to the forfeiture of cash detained under section 294 of that Act.''.'

Just as I and my hon. Friend the Member for Beaconsfield welcomed the Minister's last amendment, I hope that the Minister will be prepared, even if he cannot accept it today, to say that this amendment may have some merit. Once again, we are discussing legal aid.

The basis for the amendment is a suggestion from the Law Society of Scotland. Hon. Members will remember that we had a large group of amendments many weeks ago from the Law Society of Scotland. It seems, and indeed it probably is, many weeks since I last mentioned that distinguished professional body. One of the reasons for that is that several of the other amendments that it sent us in the intervening weeks were never reached, because a guillotine, or knife, fell. Happily, however, we have reached this one.

The Law Society of Scotland told my hon. Friend the Member for Beaconsfield and me that although it welcomes the express provision for third parties to make representations to the court, if the rights given to third parties are to be meaningful, provision should be made to enable them to secure effective representation. The amendment would achieve that by altering the references to the Legal Aid (Scotland) Act 1986.

I appreciate that the amendment may have cost implications. Perhaps when the Minister writes to me about the Government amendments, he could cover this amendment, too. We wanted to probe, because having read what the Law Society of Scotland said , we thought it sensible to explore the matter.

I have previously expressed reservations about whether it is a good idea for lots of third parties who were not originally part of the legal dispute to give their views to the court. However, that seems to be the trend that the Government have since 1997 moved in the direction of, giving increasingly more third parties the right to express a view to the court even though they are not parties to the dispute. If we are to move in that direction, however much I might have personal reservations about it, if people are to be represented they should have proper representation.

Photo of Mr George Foulkes Mr George Foulkes Minister of State, Scottish Office, Minister of State (Scotland Office)

I cannot accept the amendment, but I can say tantalisingly as we progress that I might be able to be a little kinder later.

Part I of schedule 2 to the Legal Aid (Scotland) Act 1986 details the various courts in Scotland and the United Kingdom in which civil legal aid is available. However, it does not specify particular proceedings for which civil legal aid is available.

The amendment would insert a number of detailed proceedings under the Bill into schedule 2 of the 1986 Act. It is unnecessary and inconsistent with schedule 2 of the 1986 Act. Assistance by way of representation—ABWOR—will be available for third parties who want to make representations about the making of a confiscation order under clause 94, as happens at present for proceedings under the Proceeds of Crime (Scotland) Act 1995.

The other clauses referred to in the amendment—clauses 101, 136, 294 and 297—deal with civil procedures. In Scotland, except for a small number of proceedings, such as simplified divorce and small claims, legal aid is available for all civil proceedings in the sheriff court and the Court of Session. That will continue to be the case and legal aid will therefore be available for the proceedings covered by the amendment. Given that, the amendment is unnecessary and I hope that the hon. Gentleman will withdraw it.

Photo of Mr Nick Hawkins Mr Nick Hawkins Ceidwadwyr, Surrey Heath 6:30, 5 Chwefror 2002

The Minister is tantalising me, and in light of what he said, I want to reach the amendments to which he is referring. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 664, in page 273, line 15, at end insert—

'(aa) for sub-paragraph (ii) substitute—

''(ii) any offence which by virtue of section 154 of the Proceeds of Crime Act 2002 is a drug trafficking offence for the purposes of Part 3 of that Act;

(iia) any offence which by virtue of section 155 of the Proceeds of Crime Act 2002 is a money laundering offence for the purposes of Part 3 of that Act;''.'

No. 665, in page 273, line 34, at end insert—

'(aa) for sub-paragraph (k) substitute—

''(k) any offence which by virtue of section 154 of the Proceeds of Crime Act 2002 is a drug trafficking offence for the purposes of Part 3 of that Act;

(ka) any offence which by virtue of section 155 of the Proceeds of Crime Act 2002 is a money laundering offence for the purposes of Part 3 of that Act;''.'.

No. 591, in page 274, leave out lines 30 to 33 and insert—

'16 (1) The Insolvency (Northern Ireland) Order 1989 is amended as follows

(2) In Article 255 (effect of discharge) after paragraph (4) insert—

''(4A) In paragraph (4) the reference to a fine includes a reference to a confiscation order under Part 2, 3 or 4 of the Proceeds of Crime Act 2002.''

(3) After Article 279 insert—

''279A Property subject to restraint order

(1) This Article applies where—

(a) property is excluded from the bankrupt's estate by virtue of section 408(2)(a) of the Proceeds of Crime Act 2002 (property subject to a restraint order),

(b) an order under section 50, 52, 129, 201 or 203 of that Act has not been made in respect of the property, and

(c) the restraint order is discharged.

(2) On the discharge of the restraint order the property vests in the trustee as part of the bankrupt's estate.

(3) But paragraph (2) does not apply to the proceeds of property realised by a management receiver under section 49(2)(d) or 200(2)(d) of that Act (realisation of property to meet receiver's remuneration and expenses).

279B Property in respect of which receivership or administration order made

(1) This Article applies where—

(a) property is excluded from the bankrupt's estate by virtue of section 408(2)(b), (d) or (e) of the Proceeds of Crime Act 2002 (property in respect of which an order for the appointment of a receiver or administrator under certain provisions of that Act is in force),

(b) a confiscation order is made under section 6, 94 or 158 of that Act,

(c) the amount payable under the confiscation order is fully paid, and

(d) any of the property remains in the hands of the receiver or administrator (as the case may be).

(2) The property vests in the trustee as part of the bankrupt's estate.

279C Property subject to certain orders where confiscation order discharged or quashed

(1) This Article applies where—

(a) property is excluded from the bankrupt's estate by virtue of section 408(2)(a), (b), (d) or (e) of the Proceeds of Crime Act 2002 (property in respect of which a restraint order or an order for the appointment of a receiver or administrator under that Act is in force),

(b) a confiscation order is made under section 6, 94 or 158 of that Act, and

(c) the confiscation order is discharged under section 31, 116 or 183 of that Act (as the case may be) or quashed under that Act or in pursuance of any enactment relating to appeals against conviction or sentence.

(2) Any such property in the hands of a receiver appointed under Part 2 or 4 of that Act or an administrator appointed under Part 3 of that Act vests in the trustee as part of the bankrupt's estate.

(3) But paragraph (2) does not apply to the proceeds of property realised by a management receiver under section 49(2)(d) or 200(2)(d) of that Act (realisation of property to meet receiver's remuneration and expenses).''.'.

No. 666, in page 274, line 37, after 'or' insert

'the Criminal Justice (Scotland) Act 1987'.

No. 667, in page 274, line 38, after '2' insert ', 3'.

No. 668, in page 274, line 39, at end insert—

'Criminal Justice and Public Order Act 1994 (c.31)

In section 139(12) of the Criminal Justice and Public Order Act 1994 (search powers) in paragraph (b) of the definition of ''items subject to legal privilege'' for ''section 40 of the Criminal Justice (Scotland) Act 1987'' substitute ''section 397 of the Proceeds of Crime Act 2002''.'—[Mr. Bob Ainsworth.]

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I beg to move amendment No. 648, in page 274, line 40, leave out from beginning to end of line 6 on page 276.

This is a probing amendment. The Drug Trafficking Act 1994 will be almost demolished by virtue of the Bill. All that will survive are sections 55 and 56, which concern investigations into drug trafficking, not the proceeds of drug trafficking. I highlight that for the Minister because it is an unsatisfactory state of affairs. The sooner the Government can remove those

provisions and put them somewhere else so that the Drug Trafficking Act 1994 dies a death, the better.

Photo of Bob Ainsworth Bob Ainsworth The Parliamentary Under-Secretary of State for the Home Department

Without overburdening the Committee, I wish to pick up on the point raised by the hon. Gentleman. The powers to investigate under the Drug Trafficking Act 1994 currently cover the investigation of the offence and the proceeds of drug trafficking. The provisions of the Bill that the amendment would delete preserve the powers in respect of investigations into the offence. However, the powers of investigation into the proceeds of crime provided under part 8 will cover and significantly extend the powers under the Drug Trafficking Act in respect of investigations into the benefit.

The overlap of powers would lead to confusion and uncertainty for no good reason. There is no reason to have two separate sets of powers for investigating the proceeds of drug crime. With regard to the investigation itself, it will only be necessary to preserve the Act inasmuch as it relates to offences of drug trafficking and the related powers to investigate such offences. Confiscation, cash recovery, money laundering and investigating powers in relation to benefit from drug trafficking have been consolidated into the Bill.

We cannot cover the offence itself, because that would extend the scope of the Bill. The issue must be addressed, and we will seek to rid ourselves of the Act in its entirety, in the most appropriate way.

Photo of Dominic Grieve Dominic Grieve Shadow Minister (Home Affairs)

I just wanted to highlight that unfortunate state of affairs. The Drug Trafficking Act 1994 should not be allowed to survive in this ghostlike form. It has little purpose left. The sooner its remaining powers are removed to somewhere else, the better. Unfortunately, the statute book is littered with examples of remnant legislation. That is especially the case in the criminal law. We talk about the need to simplify the criminal law, but that is not helped when this sort of situation arises.

However, I accept the Minister's explanation that he can do nothing about it in this legislation, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 669, in page 276, line 25, at end insert—

'Proceeds of Crime (Scotland) Act 1995 (c. 43)

(1) The Proceeds of Crime (Scotland) Act 1995 is amended as follows

(2) The following provisions in the Act shall cease to have effect—

(a) Part I, except section 2(7);

(b) in section 28, subsections (1)(a) and (2) and in subsection (5) the words ''(including a restraint order made under and within the meaning of the 1994 Act)'';

(c) section 29;

(d) in section 31, subsection (2) and in subsection (4) the words ''or (2)'';

(e) sections 35 to 39;

(f) in section 40, subsections (1)(a), (2) and (4);

(g) in section 42, subsections (1)(a) and (b);

(h) in section 43, in subsection (1) the words '', confiscation order'' and subsection (2);

(i) in section 45, subsection (1)(a);

(j) section 47;

(k) in section 49, in subsection (1) the definitions of ''the 1988 Act'', ''the 1994 Act'' and ''confiscation order'' and subsection (4);

(3) The following provisions in Schedule 1 to the Act shall cease to have effect—

(a) in paragraph 1(1)(b) the words ''or a confiscation order'', in paragraph 1(2)(a) the words ''subject to paragraph (b) below'', paragraph 1(2)(b) and in paragraph 1(3)(a)(i) the words ''or confiscation order'';

(b) in paragraph 2(1)(a) the words '', and if appointed (or empowered) under paragraph 1(1)(b) above where a confiscation order has been made'';

(c) paragraph 4;

(d) in paragraph 5(1) the words ''Part I of'';

(e) in paragraph 8(2) the words '', unless in a case where a confiscation order has been made there are sums available to be applied in payment of it under paragraph 4(4)(b) above,'';

(f) in paragraph 10(1) the words ''or the recipient of a gift caught by Part I of this Act or an implicative gift'' and paragraphs 10(2) and 10(3);

(g) in paragraph 12(1)(a) the words ''paragraph (a) or (b) of section 4(1) or'';

(4) The following provisions in Schedule 2 to the Act shall cease to have effect—

(a) in paragraph 1(2) the words ''and 35 to 38'';

(b) in paragraph 2, in sub-paragraph (1) the words ''realisable or'', in sub-paragraph (2) the words ''and 35 to 38'', sub-paragraph (5).

(c) in paragraph 3(2) the words ''and 35 to 38'' and paragraphs 3(4) and (5);

(d) in paragraph 4(2) the words ''and 35 to 38'';

(e) paragraph 6(2)(a).

(5) In section 28(9) (restraint orders) for ''Subsections (2)(a) and'' substitute ''Subsection''

(6) In section 42 (enforcement) in subsections (2)(a), (c) and (d) for ''Part I,'' substitute ''Part''

Criminal Procedure (Scotland) Act 1995 (c. 46)

(1) The Criminal Procedure (Scotland) Act 1995 is amended as follows

(2) In section 109(1) (intimation of appeal) for ''section 10 of the Proceeds of Crime (Scotland) Act 1995 (postponed confiscation orders)'' substitute ''section 102 of the Proceeds of Crime Act 2002 (postponement)''

(3) In section 205B(5) (minimum sentence for third drug trafficking offence) for the definition of ''drug trafficking offence'' substitute—

'' ''drug trafficking offence'' means an offence which by virtue of section 88, 154 or 239 of the Proceeds of Crime Act 2002 is a drug trafficking offence for the purposes of Part 2, 3 or 4 of that Act;''

(4) In section 219(8)(b) (fines: imprisonment for non-payment) for ''14(2) of the Proceeds of Crime (Scotland) Act 1995'' substitute ''120(2) of the Proceeds of Crime Act 2002''.'

No. 670, in page 279, line 16, at end insert—

'Crime and Punishment (Scotland) Act 1997 (c. 48)

The following provisions of the Crime and Punishment (Scotland) Act 1997 shall cease to have effect—

(a) section 15(3),

(b) in Schedule 1, paragraph 20.

Crime and Disorder Act 1998 (c. 37)

In Schedule 8 to the Crime and Disorder Act 1998 paragraphs 115 and 116 shall cease to have effect.'

No. 651, in page 279, line 18, leave out 'In'.

No. 652, in page 279, line 19, leave out from 'Service)' to end of line.

No. 653, in page 279, leave out lines 21 to 24 and insert—

'(2) In paragraph 2(2), after paragraph (d) insert ''or

(e) under the Proceeds of Crime Act 2002 to the extent specified in paragraph 3,''and omit the ''or'' at the end of paragraph (c).'.

No. 654, in page 279, line 30, at end insert—

'(4) After paragraph 2 insert—

''3 (1) These are the proceedings under the Proceeds of Crime Act 2002—

(a) an application under section 43(3) to vary or discharge a restraint order or an order under section 42(7);

(b) proceedings which relate to a direction under section 54(3) or 56(3) as to the distribution of funds in the hands of a receiver;

(c) an application under section 62 relating to action taken or proposed to be taken by a receiver;

(d) an application under section 63 to vary or discharge an order under any of sections 48 to 53 for the appointment of or conferring powers on a receiver;

(e) an application under section 72 or 73 for the payment of compensation;

(f) proceedings which relate to an order under section 297 for the forfeiture of cash;

(g) an application under section 340(3), 351(3), 358(3) or 364(3) to vary or discharge certain orders made under Part 8.

(2) But sub-paragraph (1) does not authorise the funding of the provision of services to a defendant (within the meaning of Part 1 of that Act) in relation to—

(a) proceedings mentioned in paragraph (b);

(b) an application under section 73 for the payment of compensation if the confiscation order was varied under section 30.''.'.

No. 671, in page 279, line 35, after '1994,' insert,

'the Proceeds of Crime (Scotland) Act 1995 or'.

No. 672, in page 279, line 36, after '88' insert 'or 154'.

No. 673, in page 279, line 37, after '2' insert 'or 3'.

No. 674, in page 280, line 21, after '1988' insert—

', Part I of the Proceeds of Crime (Scotland) Act 1995'.

No. 675, in page 280, line 22, after '2' insert 'or 3'.

No. 676, in page 281, line 6, after '2' insert 'or 3'.

No. 677, in page 281, line 27, after 'privilege'')' insert '—

(a) in subsection (1)(b) for the words ''33 of the Criminal Law (Consolidation) (Scotland) Act 1995 (c.39)'' substitute ''397 of the Proceeds of Crime Act 2002'';

(b)'.—[Mr. Bob Ainsworth.]

Schedule 8, as amended, agreed to.

Clause 439 ordered to stand part of the Bill.