HC Deb 14 October 2003 vol 411 cc34-9
Mr. Heath

I beg to move amendment No. 1, in page 2, line 25, after 'privileges', insert 'as a party or'.

Mr. Speaker

With this it will be convenient to take the following amendments: No. 35, in page 2, line 25, after 'a', insert 'party to proceedings or as a'. No. 2, in page 3, line 11 [Clause 3], at end insert— '() must be accompanied by any translation provided under subsection 3'. No. 3, in page 3, line 23 [Clause 4], leave out from 'Kingdom' to end of line 24 and insert 'by any method which is in accordance with Rules of Court'. No. 4, in page 4, line 19 [Clause 5], at end insert— '() must be accompanied by any translation provided under subsection 4'.

Mr. Heath

This group deals with three separate concepts, so I shall deal with each one separately.

The first relates to amendment No. 1. The more astute Member will notice that amendment No. 35 is extremely similar in effect, but my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael)—who, as we know, is learned in both Scots and Udal law—has suggested a variation that is in accord with the advice of the Law Society of Scotland. I am indebted to him for that, as it enables us to put two variations to the Minister. I hope that we will have more success than we had on previous occasions when we have discussed the matter.

The crux of the matter is that it is important to insert in this section of the Bill the concept of a party to proceedings as well as a witness. If I may remind the House, this provision deals with the service of overseas process in this country and the point of the clause is to ensure that the person on whom overseas notice is served is aware of the consequences of that.

Our difficulty is that the Government do not seem to recognise that there can be any category of a party to proceedings who is not a witness within the proceedings. That is self-evidently not the case. For example, it is clear that under this country's law and that of most countries, defendants cannot be compelled to give evidence as witnesses that would indicate their culpability. It is entirely possible that a defendant could be a party to a case but not a witness in that case. The same situation applies if spouses are accused of offences that also apply to their partners because the concept of spousal immunity is recognised by most legal systems in the relevant area.

The problem is that there are clearly specific privileges that would accrue to defendants or spouses as defendants in such circumstances so that they would not be witnesses. It simply could not be the case that the privileges of a witness could be considered to include the privileges of not being a witness. That is nonsense in the English language, let alone anything else. We disagree not with the Government's intent but with the Bill's drafting. Clause 2 should include a reference to the privileges of a party to proceedings.

Ministers have previously replied that such a provision is not necessary because anyone who is a party to proceedings is, by definition, a witness, but that is clearly not the case. Their second reply has been that clause 2(1) already deals with the situation, but it does not, because it simply identifies the area under discussion but does not apply to the process or the notice that should accompany that and the extent to which that covers the case.

I ask the Minister to think again even at this late stage because I want to get the Bill right, which it is not at the moment. The defence that the provision was lifted from previous legislation and that it has never caused any problems is no defence at all. The assertion that it has not caused any problems should be followed by the word "yet", because as sure as eggs is eggs, someone will eventually find that something has been done incorrectly because of a lacuna in the law. That will provide a great deal of employment for lawyers but will be of no advantage to any person who will be affected by the Bill.

The second and third concepts addressed by the amendments relate not to the service of overseas process—the heading of the group of amendments—but to the service of UK process overseas, which is the reciprocal, yet equally important, case. Amendments Nos. 2 and 4 relate to the translation that would be made available for a person who may be reasonably assumed not to speak English. There is no question about the Government's intent, but the Bill provides that whereas the court will be given a copy of the process in the relevant language, the person on whom the process is served will not. In a sensible world and in normal circumstances, the court would of course send the document to the person on whom the process had been served, but the Bill does not say that that must happen. It would be better if such a provision were included, which is all the amendments would do. Curiously enough, the provision applies elsewhere in the Bill. It is absurd that clause 3 states that a translation should be provided for the court yet includes no requirement for the translation to be provided to the one person involved in proceedings who does not understand the language in which the document was originally produced—English.

Amendment No. 3 deals with the process of serving a UK notice overseas when that cannot be done by post. Clause 4(1) simply says that that should be in accordance with arrangements made by the Secretary of State. As I said in Committee, that dangerously imprecise term allows the Secretary of State to make up almost anything that he or she considers a sensible process. The British legal system has clear rules on that. Rules of court maintain a serving process that is fair to all. It is axiomatic that there should equally be rules of court that allow for service overseas.

The Minister's objection in Committee was that such a provision could not be drafted to provide the flexibility for all the circumstances in which difficulties might be encountered in the serving process. I accept that we might make the terms more imprecise than the rules of court as they apply in the UK, by both definition and common consent, but the fact that the provision is not to be incorporated other than in guidance gives me cause for concern. Although the Minister has assured us that that will be forthcoming, it is not required by statute.

The Bill is not satisfactory. Rules of court should apply in an overseas context as they would in a domestic serving process. I hope that the Minister has a good reason why that should not be the case.

Mr. Paice

I endorse the remarks of the hon. Member for Somerton and Frome (Mr. Heath). I hope the Minister realises that all Opposition parties are intent on making the Bill understandable, as my hon. Friend the Member for Buckingham (Mr. Bercow) said, by those whom it affects, and comprehensive so that it addresses problems that may arise even if the Government think that they will not. The amendments, especially those on translation, are designed to do just that.

Those of us who have sat on both sides of the House have probably argued at one time or another both that it is necessary and that it is unnecessary to include something in a Bill. It is better to get legislation right first time rather than revisiting or correcting it later. I concur that the amendments are designed to get it right first time. They would not weaken the Bill or make it mean something else. They are simply designed to ensure that it is clearer and covers eventualities that may arise. I hope that the Minister will respond in a similar constructive vein and not simply read out the top line of her brief, which I have no doubt says, "Resist these amendments".

Caroline Flint

We have considered amendment No. 1 carefully and at length. We remain of the view that as a matter of law it is unnecessary. However, in the light of the concern about the issue, and because the amendment does not do any harm, we are prepared to accept it as drafted. We are satisfied that the amendment adds nothing to the clause as it is currently drafted and, indeed, will not result in a different position from that which currently exists under the Criminal Justice (International Co-operation) Act 1990. I am happy to go on the record stating that to be our considered view.

When a defendant takes the stand, he does so as a witness. That is the crucial point to keep in mind. There is no reason to read the word "witness" in clause 2(3)(c) as excluding the defendant. The meaning given to "witness" in the "Concise Oxford English Dictionary" is a person giving sworn testimony in a law court or for legal purposes". The word may be used in statutory provisions as including defendants. For example, section 51 of the Criminal Justice and Public Order Act 1994 governs intimidation of witnesses. The provision, of course, also covers the intimidation of defendants in respect of their evidence.

I see no reason why clause 2(3)(c) is any different. There is no reason why it should be read as not requiring a notice to be given to a defendant. The notice must be given to persons both where they appear as a party to the proceedings and where they attend as a witness. That is because subsection (1) provides that subsections (2) and (3) apply to both parties and witnesses. Therefore, a notice will always be given to a party to the proceedings, as well as to a witness. However, we need refer to a witness in subsection (3) only because—I stress this point again—when a defendant takes the stand, he does so as a witness in the proceedings.

4.30 pm

Two types of privilege afforded to defendants were given as examples in Grand Committee by noble Lords wishing the amendment to be carried: the privilege against self-incrimination and spousal immunity. However, both these privileges are afforded to the party as a witness. It is true that a party could not be compelled to give evidence, whereas a witness could, subject to the right not to incriminate himself. But that is a privilege afforded to the party as a witness. Similarly, for example, under section 80(4) of the Police and Criminal Evidence Act 1984, a spouse who is also charged in proceedings is not compellable. Again, that is a privilege afforded to the party as a witness. We have identified no rights and privileges that would be accorded to a party in the proceedings, in addition to those that he would already be accorded as a witness.

Clause 2 is different from the 1990 Act only in that it refers to a party to the proceedings, as opposed to a defendant, but that is to cover different Scottish nomenclature of persons appearing before a Scottish court and the fact that some of the proceedings in question are not purely criminal. There is no difference of substance between the 1990 Act and clause 2(3)(c) and, for the reasons that I have given, we are happy to accept the amendment as drafted.

I assume that amendment No. 35 will not be moved as I have accepted amendment No. 1 and see no merit in the longer variation. We strongly prefer amendment No. 1 and see no reason for introducing the reference to proceedings, as amendment No. 35 does. We do not see that this provides any further clarification.

We do not consider amendments Nos. 2 and 4 to be helpful or necessary. I have read the Hansard report of discussions on the matter with my predecessor. Subsection (3) of clause 3 refers to all process. Translations must be provided for any process where the person at whose request it is issued believes that the intended recipient does not understand English. All that subsection (4) does is to impose additional requirements where the process relates to a party or a witness. Subsection (4) creates additional obligations, but does not limit the overriding obligation for translation of all types of process to be provided in subsection (3). It would not be necessary to insert a reference to forwarding translations in subsection (4), as that is already provided for in subsection (3).

Where a translation of the process is required, it is wholly reasonable to expect the court to forward it. That goes for translations relating to parties or witnesses, as well as other types of process, such as court judgments. The act of sending the process from the court is not set out in the Bill, which is limited to setting out the requirements for issuing process, the relevant requirement being that a translation is provided. The sending procedure is currently covered by rules of court, which state that where a summons is issued or order made for service outside the UK, it shall be sent by the justice's clerk to the Secretary of State. Updated rules will reflect the options to send it either to the Secretary of State or direct to the recipient, but will otherwise reflect the existing ones. We believe, therefore, that where it is required, translation will be forthcoming and that further amendment is not necessary.

Mr. Heath

Clearly, there is provision for a translation to be made and for the notice to be transmitted to the person. I understand that. Is the Minister saying that the copy, translated into an appropriate language, will form part of the process? If so, she is right—my amendment becomes unnecessary. It would be helpful if she would confirm that.

Caroline Flint

I understand that to be the case. I hope that reassures the hon. Gentleman.

Mr. Heath

It does.

Caroline Flint

Finally, let me deal with amendment No. 3. As I explained in my letter of 16 July to members of the Committee, we cannot accept the amendment. In the first instance, we do not consider that rules of court are an appropriate method for setting out what the Secretary of State will do. As hon. Members are aware from our discussions in Committee, under the new arrangements for the service of process required by Schengen and MLAC—the mutual legal assistance convention—it will become routine for the majority of procedural documents to be sent directly from the issuing authority in this country, without any involvement of the Secretary of State. When he is involved, however, existing and long-established practices will be followed. Service of process via the Secretary of State is not new: it existed under the 1990 Act and has worked effectively. That was discussed in Committee. The Bill is not designed fundamentally to change our mutual legal assistance system it—builds on existing arrangements, amending them where appropriate to accommodate the new requirements of, for example, Schengen. That is a clear example of an area of mutual legal assistance in which there is no merit in creating additional bureaucracy where the established system has worked very effectively.

We do not agree that the approach that we have chosen risks successful challenges in subsequent domestic proceedings. Rules of court made under the 1990 Act already set out what constitutes proof of service of summons outside the United Kingdom. They provide that the service on any person of a summons issued under section 2(1) of the Act may be proved in any legal proceedings by a certificate given by or on behalf of the Secretary of State. Those rules of court will be updated to reflect the new legislation.

Authorities issuing process will request personal service, via the overseas central authority, if proof that the recipient has received the process is required. In the case of documents bound for recipients in EU and Schengen member states, the issuing authority may itself send the documents to the overseas central authority requesting personal service, bypassing the Secretary of State. Rules governing his activity would therefore not be helpful.

Service of domestic court process on people residing in the UK is done not by the Secretary of State, but by the court. Service of summonses in the purely domestic context is very different from service on people residing overseas, most importantly because a summons served on someone present in the UK obliges them to attend court. By contrast, a summons served on someone overseas does not impose any obligations to attend, nor does failure to comply result in any sanctions being taken.

For those reasons, we accept amendment No. 1 and ask that amendments Nos. 2, 3 and 4 be rejected.

Mr. Heath

I am extremely grateful to the hon. Lady for her response to this group of amendments. We are making real progress in three respects. First, the hon. Lady accepted my amendment No. 1 and implicitly rejected that of my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael), which is a little long-winded. Secondly, she accepted the principle of what I was trying to achieve in amendments Nos. 2 and 4. I am most grateful to her for confirming that the translation forms part of the process at the point at which it is provided to the court. I was trying to ensure that it did not become a separate document that was not necessarily transmitted to the intended recipient, which would have made nonsense of the whole provision. Thirdly, in relation to amendment No. 3, the hon. Lady indicated that there would, as I had hoped, be a consequent amendment to the rules of court to deal with the provisions of the Bill, so my amendment becomes unnecessary.

I consider this to be one of the finest victories that we have achieved in the course of these proceedings and this group of amendments to be one of the best that we will debate today. I am happy to allow amendment No. 1 to be put to the vote and certainly do not intend to press any of the others.

Amendment agreed to.

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