ENFORCEMENT OF NORTHERN IRELAND ORDER IN SCOTLAND (Hansard, 16 June 1988)

Mr. Patten
I beg to move, That the clause be read a Second time.

§ Mr. Deputy Speaker
With this it will be convenient to discuss Government amendments Nos. 54 and 55.

Mr. Patten
Hon. Members, particularly those who served on the Committee, will be aware of the provisions in part VI of the Bill which enable courts to confiscate the proceeds of crime and which have been widely welcomed. We want to ensure that confiscation orders are enforceable throughout the United Kingdom, regardless of the jurisdiction in which they were made. We propose to bring forward legislation in due course to enable confiscation orders to be made and to be enforced in Northern Ireland. Clause 93 already contains a power to enable Northern Ireland orders to be enforceable in England and Wales, but we shall need an equivalent power to enable them to be enforced in Scotland, too.
That is the simple purpose of new clause 79 and of Government amendments Nos. 54 and 55, which I commend to the House.

§ Mr. Donald Dewar (Glasgow, Garscadden)
I thank the Minister for his helpful introduction which has answered one or two of the questions that I might otherwise have asked. However, I intervene briefly, in a fairly tentative spirit and with a touch of embarrassment because, as the Minister will recognise, I have not been involved, in even the most peripheral way, with this Bill. I regret that in a sense, because, as the House knows, we in Scotland are a little sensitive about our tangential appearances in Bills that are largely the concern of Ministries whose writ does not run north of the border. The Bill contains matters of real substance and importance which are difficult to scrutinise and do not come up in this new clause and will therefore have to remain unscrutinised.
For example, I wish to refer—I shall do so only in passing so as not to strain your patience, Mr. Deputy Speaker— to clause 122 which deals with the detention of 644 young offenders in Scotland and is a major and important reform. The Minister may not be aware of the background to that, but it is a case of Ministers eating humble pie because the first Criminal Justice (Scotland) Bill, which was introduced in 1978, but failed at the general election, contained some Labour amendments very much along the lines of this clause. They were derided at the time and, when the Tories came in, they went for a different system in the Criminal Justice Bill which then reached the statute book.
If I could, I should like to spend some time speaking about such matters, but that pleasure is denied to me and the Minister on this occasion. I cannot vouch personally for the Minister's reputation, as I have never had to deal with him in an official capacity, but his reputation suggests that there might be a wide measure of agreement and that the tone might be constructive. I hope that it does not depress him to hear that I have heard good things said about him. I am not smearing him; I am simply welcoming him to the human race so far as penal matters are concerned, and I am delighted to do so.
New clause 79 is a rather odd clause in the sense that it refers to Northern Ireland and to the enforcement of a Northern Ireland order in Scotland. The provision applies to Scotland, but is introduced by the Home Secretary who has responsibility only for what happens in England and Wales. A little while ago I took the precaution of phoning the Scottish Office to ask for an explanation of the new clause. My call created a little confusion, although the Under-Secretary of State for Scotland, who is noted for his courtesy, came across personally with a note for me which set out in skeleton fashion the Scottish Office's understanding of the significance of the new clause. The Scottish Office is relying on the simplistic explanation that the new clause is necessary and includes enforcement provisions. The explanation does not go very much beyond that.
We are dealing with a matter with which I am totally unfamiliar. As I understand the Minister, we are considering a possible future order which may be laid extending to Northern Ireland similar powers to the provisions in the Bill for England and Wales. It is important to stress that we are talking about the enforcement of English orders. As the Minister will know from his general background and no doubt wide-ranging interest in the subject, we do not have similar orders in Scotland.
The history of this matter is interesting. The Scots looked long and hard at confiscation powers and decided that they did not want to go down that road, at least in the immediate future. We had a very odd piece of legislation which introduced heavy and punitive fines for drug trafficking in Scotland. I remember spending many happy hours in Committee trying to persuade Scottish Office Ministers to explain the criteria that the courts would apply when deciding what was appropriate in quantifying the fines.
Those measures were introduced a few years ago in the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 on the basis that we did not want confiscation orders in Scotland. However, fashion and populism are powerful drugs. That is an unfortunate simile when we are talking about drug trafficking. Shortly after the introduction of that Act, the Criminal Justice (Scotland) Act 1987 was passed which departed from fines for drug trafficking which were meant to cream off illegal profits. It introduced 645 straight confiscation. Again, that was specifically limited to drug trafficking. The Scottish Office was careful to say that it did not, at least at that stage, intend to follow its English counterpart by introducing confiscation with regard to serious crime generally which has happened for England and Wales in this Bill. That does not apply in Scotland.
If the Minister is going to introduce a Northern Ireland order which the new clause will allow to be enforced in Scotland, there will be broader powers for confiscating the profits from serious crime in England and Wales. The same provision will apply in Northern Ireland, but those powers will not apply in Scotland, although there will be a specific exception for those who profit from the abhorrent trade of drug trafficking. That is a rather strange patchwork.
I assume that the order for Northern Ireland is imminent, although it may be naive of me to say that. I suppose that the fact that this proposal has not been included in the Bill at this late stage is a fail-safe device in case it is thought appropriate in future. I presume that the order is more than a gleam in the Minister's eye. I presume that there is at least a draft on his desk and that it will be produced in the not too distant future. No doubt the Minister will be able to say a word or two about its timing and framework.
This is apparently a single order and not a clutch of orders. My experience in Scotland is that orders come in clutches, droves and plagues under this Government. It is quite encouraging that there is only one order on this occasion.
No doubt this may be a reflection of my naivety—perhaps that is being a little unfair on myself, rather a reflection on my inexperience of Northern Ireland affairs—but, as a refugee from the legal profession, may I say that there appears to be a rather odd exhibit here. We are told that Her Majesty—I believe that that is something of a constitutional convention—must judge what appears to correspond to this part of the Act with regard to the English confiscation powers. Presumably that will apply in terms of the aim of any Northern Ireland order.
We are talking about an order that we have not seen which effectively allows the Executive to decide what corresponds in different provisions. I am not very clear about how loosely we are introducing this matter into Scottish law. I am not very clear about Orders in Council, but I will not ask the Minister to go into that. I am used to statutory instruments, regulations and variants of that kind. I understand that there are special considerations in Northern Ireland, and I accept that that must be so, given the present difficult circumstances.
I took the trouble to look out the most obvious and recent parallel to this provision. It is to be found in the Drug Trafficking Offences Act 1986 which applies English orders for drug trafficking in Scotland and allows them to be enforced in Scotland. The Minister will remember that the pertinent section of that Act is section 20. I presume that the general provisions in sections 20 to 23 are very similar to the provision in new clause 79 in terms of the Northern Ireland provision. I presume that new clause 79 is an exact parallel and the powers are the same.
646 I raised that point out of curiosity. I notice that section 20(4) of the Drug Trafficking Offences Act 1986 deals with the enforcement of English orders in Scotland and states: Nothing in this section enables any provision of an order which empowers a receiver to do anything in Scotland under section 11(3)(a) of this Act to have effect in the law of Scotland. It took me a minute or two to understand that. I went back to section 1l(3)(a), as anyone would in the circumstances. That dealt with the realisation of property and it referred me to section 9 in the Act. As so often happens, it became something of a paper chase. Section 9 deals with the Charging orders in respect of land, securities etc. I do not expect the Minister to say anything about the "etc." However, as he seemed to assent to my proposition that the machinery for enforcement in section 20 of the 1986 Act is an exact parallel to the enforcement provisions for Scotland of English confiscation orders in this Bill, and as we are making similar arrangements for Northern Ireland in this new clause, if we have a Northern Ireland order in future, I wonder whether the Minister will say a word or two about the powers in section 11(3)(a). I should have thought that those powers would be available to the receiver under this Bill in the English provisions, but they were excluded in the 1986 Act. I hope he will tell us whether there are similar provisions in the clutch of clauses that we are considering at the moment.
We could spend some time on this matter if we were in Committee. I recognise that we are not in Committee and it would probably be wrong to detain the House for too long on these matters. However, we need some general assurances about the likely fate of the order. We need to know when it will appear, whether it will be exact in point or whether we will stretch the matter of correspondence. We need to know more about its similarity and comparability with existing provisions in the Bill for England. We also need to know to what extent this will be a standard provision.
8.30 pm
I am genuinely sorry that we have not been given an opportunity to examine the merits of those provisions, because I sometimes find to my chagrin that what happens in the Home Office foreshadows what happens in Scotland. Funnily enough, we are sensitive about being used as guinea pigs in respect of such matters as the poll tax, although I certainly cannot go into that.
Very often the opposite applies. We went for confiscation in drug trafficking largely on the ground that cross-border harmony is important, at the time when the Scottish Office specifically indicated that it would not be going down that road. At present, the Scottish Office is again stoutly maintaining that it has no immediate plans to introduce confiscation orders in the wider range of serious crime. However, the Scottish Law Commission is examining that matter and we await a report of its investigations.
I suspect that, whatever it may come up with, we are probably committed to going down that road simply because the Minister and his colleagues in the Home Office have already decided to do so. The Minister will recognise that we have more than a passing interest in the way in which this aspect is handled and its operation. We shall certainly watch for early signs of activity in the courts. I may be over-cynical, but some of the machinery appears complicated and clumsy, as are some of the concepts relating to confiscation. Also, some of the morality 647 involved in terms of third parties raises some difficult issues, which we have debated in another context and will continue to discuss at greater length on a future occasion. Perhaps the Minister owes the House a few more words about this minor but interesting new clause which he has produced for our inspection.

§ Mr. John Patten
The hon. Member for Glasgow, Garscadden (Mr. Dewar) need not fear that some of the issues that he raised were not closely examined in the Standing Committee, because we had the benefit of his hon. Friend the Member for Clydebank and Milngavie (Mr. Worthington), who lucidly pressed home many of them. I can flatter the hon. Member for Clydebank and Milngavie, because he is not in the Chamber, but I hope that it will not do him any damage with his general management committee. He was consistently impressive in probing the Government in Committee, and I hope that he will soon be on the Labour Front Bench. I understand that it is rather the thing now to have hon. Members from Scotland on the Labour Front Bench, and I am sure that it will not be long before the hon. Member for Clydebank and Milngavie is there. For example, the point made by the hon. Member for Garscaden about young offenders was typical of those impressively made by his hon. Friend in Committee.
The hon. Member for Garscadden asked many pertinent questions. The Criminal Justice (Scotland) Act 1987 contains powers of confiscation corresponding to those enacted for England and Wales in the Drug Trafficking Offences Act 1986. The hon. Gentleman is right in saying that my right hon. and learned Friend the Secretary of State for Scotland has asked the Scottish Law Commission to consider what powers of confiscation should be available to Scottish Courts for offences other than drug trafficking, and the commission is currently considering that matter.
The Northern Ireland order—if and when it passes through the House—will allow court orders to be made. We hope to lay that order before the House in the next Session. I hope that the hon. Member for Garscadden will be pleased to hear that an Order in Council made under new clause 79 will be subject to affirmative resolution. That assurance will provide the hon. Gentleman with an opportunity to make his further comments. Without that provision there would be a real risk—which the hon. Gentleman, as a Scotsman, would not welcome—that the proceeds of crimes committed in Northern Ireland could cross what is, after all, a narrow strip of water in some places and find a haven in Scotland. That is not a situation that we could countenance with anything like equanimity.