Official Report of the Grand Committee on the Crime (International Co-operation) Bill [H.L.]

HL Deb 13 January 2003 vol 643 cc1-60GC

(First Day)

Monday, 13th January 2003.

The Committee met at half-past three of the clock.

[The Deputy Chairman of Committees (Lord Brougham and Vaux) in the Chair.]

The Deputy Chairman of Committees (Lord Brougham and Vaux)

Before I put the Question that the Title be postponed, it may be helpful to remind your Lordships of the procedure for today's Committee stage. Except in one important respect, our proceedings will be exactly as in a normal Committee of the Whole House. We shall go through the Bill clause by clause; noble Lords will speak standing; all noble Lords are free to attend and participate; and the proceedings will be recorded in Hansard. The one difference is that the House has agreed that there shall be no Divisions in the Grand Committee. Any issue on which agreement cannot be reached should be considered again at Report stage when, if necessary, a Division may be called. Unless, therefore, an amendment is likely to be agreed to, it should be withdrawn.

I should explain what will happen if there is a Division in the Chamber while we are sitting. The Committee will adjourn as soon as the Division Bells are rung—if any noble Lord is speaking then, he should stop as soon as soon as possible—and it will resume after 10 minutes.

Title postponed.

Clause 1 [Service of overseas process]:

Baroness Anelay of St Johns moved Amendment No. 1: Page 1, line 9, leave out "country outside the United Kingdom" and insert "participating country

The noble Baroness said: In rising to move Amendment No. 1, I want to check with my colleagues that the sound is on. They were having difficulty. It sounds as though my microphone is operational, but there may be problems which the officers could sort out for us.

There can be no doubt about the importance of international co-operation on exchanging information on criminal matters, especially on terrorism. We all know that. The proof has been cruelly thrust into the public domain over the past week with the discovery of people from overseas who are alleged to have been making ricin in North London. I understand that some have appeared in court today and that other related arrests have been made overnight.

With that background, I want to comment briefly on our general approach to the Bill. It will colour not only our approach in Committee but, more importantly, on Report. As the Deputy Chairman reminded us, in Grand Committee we may not vote, but on Report we shall bring back matters that will not only be further examined but they may be subject to a matter of contest.

Our approach is to probe the intent of the Government and to ensure that the Bill achieves its objectives and does not cause loop-holes or contravene the ECHR. Both of those matters could fatally damage the potential of the Bill to assist the tracking of criminals for the protection of the public without limiting personal freedoms to an unacceptable degree. It is our intention to ensure that the Bill is as effective as possible in achieving the Government's objectives.

The Government have said that many of the provisions of the Bill have to be adopted as they are part of international agreements already reached and they have been subject to parliamentary scrutiny via the EU Select Committees of both Houses.

As I and other Members of the Committee have recognised, for anyone to track down the various comments on the various parts of the Bill in the mountain of paperwork that those Select Committees have so assiduously produced to date will be a nightmare. The problem was highlighted four days ago when the Government produced 44 amendments, including one new clause. I do not complain about those amendments, most of which appear to be technical. Those which are not technical appear properly to respond to the report of the Delegated Powers and Regulatory Reform Committee.

Today, the noble Lord, Lord Filkin, was kind enough to write to me to let me know that the Government will introduce further amendments to the Bill with regard to the mutual recognition of orders freezing terrorist property. I can understand the Government's keenness to introduce aspects of the framework decision relating to the freezing of terrorist property which does, as they say, form a key part of the post-11th September EU anti-terrorism road map. They say that the amendments will further demonstrate the Government's commitment to combating terrorism at all possible levels. We shall certainly support that commitment and it puts into context the way in which the legislation is becoming more complex as we deal with it, not less.

It is therefore important that we obtain clarity from the Government about the application of the provisions of the Bill in order to assist Parliament and those who in the real world will be affected by the implementation of the proposals. That is not an excuse but I hope it is an explanation for some of the amendments we have tabled to the first part of the Bill.

Clauses 1 and 2 are, for the most part, a reenactment of provisions already contained in Section 1 of the Criminal Justice (International Co-operation) Act 1990. However, I have tabled some amendments to seek clarification from the Government about the way that these powers have been used in the past and, more importantly, will be used in the future in relation to countries other than what are called in the Bill "participating countries"; namely, countries other than the member states of the European Union and other countries specified by order of the Secretary of State. As we have a senior Law Officer with us in the Committee today, I anticipate that the noble and learned Lord, Lord Goldsmith, may have some practical examples of how effective the 1990 Act has been and where it needs to be strengthened.

Clause 1 allows the authorities in the United Kingdom to serve process or other documentation that has originated in various categories of proceedings taking place in another country. As paragraphs 20 and 21 of the Explanatory Notes state, because of the existence of procedures for direct service by post in the Schengen Convention and the Convention on Mutual Assistance in Criminal Matters, in practice, the provisions of Clause 1 will regulate only cases where such, direct service is not appropriate", or where, documents are issued in countries which are not 'participating countries"'.

I find this part of the Bill a nightmare and would therefore welcome clarification from the Minister as to the way in which the Secretary of State intends that the powers in Clause 1 should be exercised in these two situations. In particular, when do the Government envisage that direct service under the convention provisions will, in the words of the Explanatory Notes, not be "appropriate"?

In respect of countries which are not "participating countries", does the Secretary of State intend to make distinctions between different types of country in exercising the discretion conferred on him by subsection (3) on whether or not to serve proceedings? Does the Secretary of State at present have such a policy in respect of requests for the service of process from countries where the rule of law is not properly enforced? What would happen—this is a wild speculation but these are wild times—if the Secretary of State received a request from the Governments of Iraq or North Korea—or perhaps slightly more realistically, the Government of Zimbabwe—to serve process in relation to criminal proceedings taking place in those countries? I beg to move.

The Parliamentary Under-Secretary of State, Home Office (Lord Filkin)

I share with the noble Baroness, Lady Anelay, the challenge that the Bill presents at times, even though it has the benefit of being a comprehensive re-enactment of the 1990 Act rather than what we have seen in respect of other Bills whereby we have inserted amendments into prior legislation. Nevertheless, it is not always a simple matter.

Clause 1 replaces Section 1(1) and (2) of the Criminal Justice (International Co-operation) Act 1990 and differs only in that Clause 1(2) defines "process" more widely than in the 1990 Act. The amendment would restrict the service that the UK currently provides to overseas authorities because it would mean that we could serve overseas process documents only via the Secretary of State. In practice, that would mean the UK Central Authority based in the Home Office. We could do that only in cases involving participating countries. For the purpose of this chapter, "participating countries" would be defined as EU member states or other states designated by order.

The result of the amendment would be that process from non-participating countries could be served only directly. That would not be helpful because it is exactly countries outside the EU that need to be able to use our central authority. In practice, countries designated as "participating countries" will mainly be EU and Schengen states. Under the mutual legal assistance convention and Schengen, those countries will be expected to send process directly and not via the central authority.

Furthermore, direct process is less regulated than service via the central authority. Therefore, the effect—I am sure unintentionally—of the amendment would be that service from the further-afield countries would be less regulated than that from EU member states. For those reasons, we believe that amending the Bill in this way would represent a backwards step. There is no requirement in the 1990 legislation, which was introduced by the previous government and has in general worked well for the past 11 years, to designate countries for the purpose of service of process. For those reasons, we feel that this probing amendment is not appropriate.

The noble Baroness properly asked about situations where service by post would not be appropriate. Article 5.2 sets out the circumstances where procedural documents may be served via the central authority; for example, when the address of the recipient is not known, where the law of the requesting state requires proof of service beyond proof that can be obtained by post, and when it has not been possible to serve a document by post or where the requesting state has good reason for considering postal service to be ineffective or inappropriate.

I turn to the question regarding Iraq. Clause 1(3) is not an obligatory provision. It contains the word "may". It always remains open to the Secretary of State to decline to comply with a request. Clearly, there is a burden of responsibility on him when making an appropriate response to any such request. I hope that that has answered the probing amendment to the satisfaction of the noble Baroness, Lady Anelay.

Baroness Anelay of St Johns

I am grateful to the Minister for his opening salvo. He will not be surprised to know that we shall want to examine part of his answer in greater detail later, particularly with regard to his comment that in general the 1990 Act has worked well. As he will notice from the thrust of our amendments, we want to tease out precisely how that has worked and why the Act has been comprehensively re-enacted in this Bill, but with additions. We also want to know why there may now be opportunities to go a little further.

The Minister is right to point out the defects in the amendment. They were intentional defects—a vehicle by which to probe the background to these issues. We would not take them further at a future stage, except with regard to the comments that the Minister made about the definition of participating counties. As he said, they are mainly EU and Schengen countries. There will be occasions in the future when we shall want to look in great detail at the definition of "participating countries" and the way in which that list may or may not be increased by the Secretary of State.

With regard to that matter, we have tabled other amendments and when debating them I can go into greater detail than is right or proper at this stage. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 2: Page 1, line 12, leave out subsection (2).

The noble Baroness said: In moving Amendment No. 2, I shall speak briefly to Amendment No. 3 standing in the name of my noble friend Lord Carlisle. They seek to probe the types of documents that may be served under Clause 1 and the nature of the proceedings that are covered by the power. I should particularly welcome the Minister's views on the ways in which subsection (2) of Clause 1 goes further than the existing wording of Clause 1 of the 1990 Act. In particular, subsection (2)(b) extends the provisions of the 1990 Act to a much greater range of proceedings; namely, what are called "administrative proceedings" as well as "clemency proceedings".

I hope that the Minister will be able to clarify one point on the drafting of subsection (2)(b) relating to the definition of "administrative proceedings" in Clause 52(1) That definition states that the term means: proceedings outside the United Kingdom to which article 49(a) of the Schengen Convention applies (proceedings brought by administrative authorities in respect of administrative offences where a decision in the proceedings may be the subject of an appeal before a court)". That definition of "administrative proceedings", that applies in subsection (2)(b) of Clause 1, clearly ties the term to the provision of Article 49(a) of the Schengen Convention. Article 49(a) of the convention states that it applies to: proceedings brought by the administrative authorities in respect of acts which are punishable under the national law of one of the two Contracting Parties, or of both, by virtue of being infringements of the rules of law, and where the decision may give rise to proceedings before a court having jurisdiction in particular criminal matters".

Is it therefore the case that the service of overseas process under Clause 1 of the Bill in relation to such proceedings may be made only where the proceedings have originated in a country which is a party to the Schengen Convention? Is there, therefore, a distinction between the service of process in criminal proceedings— which, as I read the Bill, may be in relation to such proceedings in any foreign country—and service in administrative proceedings? I would welcome the Minister's views on that point. Perhaps he could also give some examples of what types of proceedings are classed as "administrative proceedings". I am sure that all Members of the Committee would be grateful for that.

Further, subsection (2) is drafted in much broader terms than those in the 1990 Act in respect of the documents to which it applies. The Bill uses terms such as, any process … for the purposes of criminal proceedings", and, any document issued or made … in administrative proceedings". Clause 52(3) defines the term "process" as including both court documents and, any other document issued by a prosecuting authority". Section 1(1) of the 1990 Act refers to a much narrower class of documents; namely: a summons or other process requiring a person to appear as defendant or attend as a witness in criminal proceedings in that country or territory". It also refers to, a document issued by a court exercising criminal jurisdiction in that country or territory and recording a decision of the court made in the exercise of that jurisdiction". There is therefore a difference in the definitions.

Can the Minister shed a little more light on the kind of documents which would be covered by the expanded definition used in the Bill, in particular, in relation to documents issued by prosecuting authorities—I know that amendments have been tabled in relation to them—and those that may be issued in connection with "administrative proceedings"? What is the full extent of the range of documents to which the provisions of Clause 1 will apply? I beg to move.

3.45 p.m.

The Deputy Chairman of Committees

I advise the Committee that, if this amendment is agreed to, I cannot call Amendment No. 3.

Lord Carlisle of Bucklow

In speaking to the earlier amendment, my noble friend Lady Anelay referred to the obvious importance of the purpose of the Bill. Clearly, it is one that we all support. We must do everything we can to improve co-operation in the service of criminal documents in criminal proceedings at a time when more major crime is of an international nature as regards drugs, the laundering of money and terrorist activity.

I have tabled a probing amendment to leave out subsection (2). While we accept the principles and purpose of the Bill, it is right that we should know in plain and simple terms, first, what changes and improvements are being made and to what extent the powers are being made wider than those in the 1990 Act and, secondly, the countries to which the powers apply. Moreover, they should be reciprocal in that those countries should be willing to act in a similar way in the process of documents provided from this country.

I want to concentrate merely on subsection (2) and the widening of the terms which at present exist for international co-operation. Subsection (2) states: This section applies— (a) to any process issued or made in that country for the purposes of criminal proceedings", which, as I understand it, is similar to that which is provided in the Criminal Justice (International Co-operation) Act 1990; and, (b) to any document issued or made by an administrative authority in that country in administrative proceedings recording a decision of the authority". So far as I can see, that is a totally new power and presumably a widening of the co-operation in the service of documents on people who are living in a country other than that in which the proceedings are being taken.

Perhaps the Minister will tell us what that means. What are the administrative proceedings to which subsection (2)(b) refers? Who is the administrative authority in the country which is to make the applications? Do we have similar administrative authorities in this country? Do we have similar administrative proceedings? Are these meant to be proceedings separate from those of a criminal nature?

The Criminal Justice (International Co-operation) Act 1990 clearly is limited to the assistance in the process of summonses and documents relating to criminal matters. What is intended by "administrative matters"? In this country, an administrative matter might be said to be proceedings under the health and safety regulations; proceedings under planning matters; and possibly various taxation matters. What are the administrative proceedings to which the Home Office is intending to provide a service in this country relating to the process of documents which do not exist at the moment?

Clause 52 is a definition clause. It states that, 'administrative proceedings' means proceedings outside the United Kingdom to which article 49(a) of the Schengen Convention applies (proceedings brought by administrative authorities in respect of the administrative offences where a decision in the proceedings may be the subject of an appeal before a court)". Presumably, they are to be administrative proceedings which are in some ways limited to the fact that they can be subject to an appeal before a court. But what does that mean? Almost any administrative proceedings one can look at in this country would at the end, I believe the noble Lord, Lord Clinton-Davis, would agree, be subject to judicial review. Is judicial review the equivalent of proceedings being subject to an appeal before a court? I do not say that there may not be a good explanation but I would like to know why we need to widen the powers in this way in this Bill, which appears to go far outside the field of criminal matters and open up matters of a totally different kind. To which countries will the provision apply? Is it reciprocal? There is no reference to the receipt by other countries of documents emanating from this country in the administrative procedures.

I rise merely to learn the purpose of the clause because it is important that we do not suddenly find that we are passing provisions which may be convenient and, happily hanging around for a long time to be cleared up, can easily be dropped into a Bill that is being debated without relating to the purposes of the Bill.

Lord Renton

I do not dispute the Government's good intentions with regard to this matter. I want to confine my remarks to Amendment No. 3 proposed by my noble friend Lord Carlisle of Bucklow. I believe that we need to be careful about the use of the expression "administrative proceedings". By implication, and bearing in mind that the expression "criminal proceedings" is used in Clause 1(2)(a), we must assume that administrative proceedings exclude all criminal proceedings and indeed exclude other judicial proceedings.

We must bear in mind that because the expression a country outside the United Kingdom has been used in subsection (1), subsection (2) must refer to administrative proceedings in any country in the world. They may have their own definitions of "administrative", "judicial" and "criminal" proceedings. I am not worried about the Government's intentions, but merely about the way in which subsection (2)(b) and (c) are expressed.

Lord Filkin

I thank the three Members of the Committee who have spoken on these interesting and important probing amendments. They will not be surprised to learn that our principal stand is that for reasons I will seek to outline we do not believe that they are appropriate and that they would put extra and unnecessary restrictions on the service of documents relating to overseas criminal proceedings in the UK. Therefore, we believe that we are going backwards from the procedures which have operated under the 1990 Act.

The first amendment would remove the definition of the types of process covered by Clause 1 so that the scope of subsection (1) would not be defined. That would widen the scope to cover all processes without reference to the type of proceedings and enable a completely open interpretation of "any process or other document". Again, that may not be the intention but we believe it to be the effect.

Subsection (2) is essential to provide guidance to those issuing and receiving procedural documents, especially because the category of relevant proceedings has been widened, as has been noted. Deletion of this subsection would leave it open to a judge to interpret "any process or other document" in any way he saw fit, potentially opening it up to include all types of procedural document with no relevance to criminal or related proceedings.

While the first of the two amendments would have removed the definition of the scope of subsection (1), thus expanding it unreservedly, the second of the two would have defined the scope of process, we believe, unacceptably narrowly. Paragraphs (b) and (c) list types of proceedings in relation to which, under the terms of Article 49 of the Schengen Convention, the UK is obliged to assist. Removing these paragraphs would render us unable to assist in relation to these proceedings and would put the UK in breach of its international obligations, which is clearly not what we wish to do.

These subsections relate to administrative offences—a category of offence that does not exist in the UK but does exist in some of our partner countries. In some EU countries, for example, offences such as driving offences are dealt with in that way. This may not be serious criminality but it is part of a general process of offering mutual legal assistance. If we are to have good relations with our EU partners and receive their full co-operation, we must be able to assist even in the more mundane cases.

I shall try to develop some of the other issues raised. Why have the arrangements been widened? Under the provisions of the Schengen Convention and the MLA convention, we are obliged to provide assistance in relation to these new types of proceedings. In certain circumstances, such as clemency proceedings and certain civil proceedings, these administrative proceedings are linked to criminal proceedings. While the UK itself does not have proceedings equating to all of those, nevertheless it must be able to assist. The current draft enables us to do so.

Administrative proceedings are not restricted to participating countries. In this context, the administrative proceedings are not ones with which we are familiar, but I have already covered that point. The powers are reciprocal on the basis that there is an obligation on all EU members states to implement them. They are clearly not reciprocal in regard to other countries because such a reciprocal agreement is not in place.

Administrative proceedings cover only those where there is an appeal to a criminal court. On that basis, I assume that the ability to apply for judicial review is not appropriate, but I shall check that point. Judicial review clearly is a form of appeal, but I do not think that the ability to appeal to a court under judicial review implies, as the noble Lord, Lord Renton, suggested, that the matter is necessarily on all fours with the administrative proceedings. The process is defined in Clause 52(3). However, in the context of administrative proceedings, we are not certain what documents might be included. We therefore have to give scope to the description of "any document" in that respect.

I believe that, at heart, these questions reflect the extent to which it is possible to define "administrative proceedings" and, therefore, the extent to which there are adequate safeguards and protections in the absence of a definition. I am not seeking to imply in my remarks that we feel that anything is wrong in the drafting. However, I should like to look with some care at the issues raised in the questions to see whether I can answer them further and more fully in writing in order to put beyond any doubt the uncertainties expressed. With that offer, which is not an unusual one to Opposition Members, I trust that, at this stage, the Committee will be happy to let matters rest.

4 p.m.

Baroness Carnegy of Lour

I am sure that the Minister, who is very well informed on these issues, will appreciate how difficult it is for lay people to understand them. Is he saying that paragraphs (a) to (d) are all separate and mutually exclusive, or do they overlap? Are administrative proceedings—a definition of which my noble friend Lady Anelay has requested—different from the proceedings outlined in paragraphs (a) to (c), or has that been included to ensure that the list covers all possibilities? Is that a valid question or have I misunderstood the position?

Lord Filkin

It is a perfectly clear question, as the draftsmen have given us none of the benefit of the usual "ands" and "ors". I am told that, in the absence of the "ands" and "ors", the list is intended to cover everything. One may therefore imply an "or" between them; in other words, a document could be covered by one or more. The provisions are self-standing or could be dealt with in conjunction.

Lord Dholakia

I am grateful to the Minister for his explanation. When he gives some thought to those issues, will he bear in mind the point made by the noble Lord, Lord Carlisle of Bucklow, in relation to reciprocal arrangements and whether such arrangements are appropriate before an order is signed in relation to any other country designated by the Secretary of State?

Lord Filkin

Yes, indeed.

Lord Stoddart of Swindon

I have listened to what has been said. I was confused when I came into the Committee, and I am still a little confused. It is worrying that in a Bill to make, provision for furthering co-operation with other countries in respect of criminal proceedings and investigations", and, to extend jurisdiction to deal with terrorist acts or threats", driving offences were the one example of an administrative matter that the Minister gave in his reply. If driving offences can be considered as among the administrative causes, we really are widening the scope of the Bill beyond what most of us, and certainly I, would consider reasonable. Have I misunderstood what the Minister said, or am I correct that the Bill is taking powers to widen the scope far beyond what some of us think is necessary and what we were led to believe on Second Reading?

Lord Renton

Before the Minister replies, I wonder whether it would be helpful if I made a very simple suggestion. I think that the problems to which my noble friends and others have drawn attention would be easily solved if, in paragraph (b) of subsection (2), we were to leave out the expression "by an administrative authority" and, in the next line, refer not merely to "administrative proceedings" but to "judicial proceedings"—which would of course include criminal proceedings. That is a simple solution for overcoming the difficulties expressed.

Lord Carlisle of Bucklow

One would hesitate to question the views of my noble friend Lord Renton on any form of immediate drafting as being likely to be totally accurate and of assistance. Nevertheless, although my noble friend may have provided the Minister with the answer to his problems, the problem certainly exists. In his original reply to my request, the Minister seemed to say that we have had to bring in administrative proceedings because certain administrative proceedings are analogous to criminal proceedings in this country, and driving offences were the only example that he gave. However, where does it say that he is limited to that type of proceedings?

As my noble friend Lord Renton forcefully pointed out, as the clause states that, This section applies … to any process issued or made in that country for the purposes of criminal proceedings", and then goes on to say that it applies to any document in administrative proceedings, the implication is that those are not criminal. Clause 52 states that "administrative matters" are limited to those in which, a decision in the proceedings may be the subject of an appeal before a court". However, I do not think that that answers the question. Although I totally accept the Minister's statement that judicial review is not a "criminal matter", it is an appeal before a court. There is nothing in Clause 52, the definition clause, to show that "appeal" means "subject to appeal being brought before a criminal court". At the moment, the provision seems to cover administrative matters, of a civil or criminal nature, started by administrative authorities which are subject to any appeal before a court. I think that the word "criminal" should be imposed at some stage to make it clear that it is intended to limit the provision to offences of this kind.

Finally, I do not think that the Minister really answered my question about what type of proceedings the Government have in mind. Although they are not "criminal proceedings" as such, breach of planning procedures could, I imagine, end up in the criminal courts. Breach of health and safety regulations could certainly be the subject of criminal proceedings. They would be the subject of criminal proceedings rather than being brought as an administrative process. I should like to hear more from the Minister. I am particularly grateful for his kind offer to put in writing the Government's thoughts on this matter, and look forward to the opportunity to reflect on his comments.

Lord Filkin

The noble Lord, Lord Stoddart, asked whether this was a widening of the administrative proceedings to which we are accustomed and expressed concern about driving offences. In that respect at least, I think that the position is clear and not hostile. If I committed a driving offence in Germany, it would be perfectly possible under the 1990 Act for the service of proceedings to occur in the United Kingdom. All that I was instancing by referring to driving offences was the fact that some issues which are criminal offences in this country are dealt with in administrative proceedings in other European Union countries. It seems to me perfectly right and proper that we should co-operate with judicial support mechanisms if an administrative process rather than a strictly criminal one regarding a driving offence is initiated.

I turn to the reflections of the noble Lord, Lord Carlisle, and to the seductive offer to amend the Bill "on the wing" made by the noble Lord, Lord Renton. I shall certainly resist that offer. As I said, however, I should like to give some thought to the points raised and decide whether I can make a fuller response to answer those perfectly understandable questions. In essence, the issues raised go to the heart of mutual legal assistance and are in the nature of the Bill itself. I shall write shortly to noble Lords who have spoken in this debate.

4.15 p.m.

Baroness Anelay of St Johns

I am grateful to all noble Lords who have spoken to these amendments. I believe that the amendments point us in the direction that we shall have to take for at least the next two or three sittings if we are to ensure that we take the type of care and attention for which your Lordships' House and its Committees are renowned. These types of issue do not grab the headlines in the Sun—unless, that is, we get them wrong and the legislation falls short of public expectations. I think that we are all grateful to the Minister for his offer to write to us and provide further explanation and illumination of these matters.

I am grateful to my noble friend Lord Renton for pointing out that no Committee Member would in any way quarrel with the Bill's intentions. I am also grateful to him for again demonstrating mental agility which I cannot match: he redrafted the provision almost before I had finished reading the first draft. I shall carefully examine his suggestion on redrafting.

My noble friend Lord Carlisle made it clear that we are concerned that, where the Bill goes more broadly than the 1990 Act, we do not let ourselves in for unintended consequences. The noble Lord, Lord Stoddart, also carefully raised that issue. I hope that, in the letter that the Minister has promised, he will address, for example, the issues raised by my noble friend Lady Carnegy with regard to the redrafting of paragraphs (a), (b), (c) and (d). We received from officials a quick response on that issue. One of the advantages of sitting in Grand Committee is that, at least at this end of the Committee, we get a little advance warning of answers as we hear the advice from officials before the Minister is able to interpret it in his own manner. However, it is important to clarify that drafting issue, and I am grateful to my noble friend Lady Carnegy for raising it.

It is also important that, in his letter, the Minister explains to the Committee which offences other than driving offences that might fall within the definition of "administrative offences" are analogous to criminal proceedings. We will have to be sure about that before we reach later stages.

The Minister has still not quite answered the question about reciprocity in EU and other countries. In reply to my noble friend Lord Carlisle, the Minister said that the EU powers are reciprocal. Later, of course, we will have to know how other countries enforce these matters and at what stage reciprocity will be achieved. We will also need to know what agreements the Government have with countries other than our EU colleagues which may be pertinent to the Bill.

Some important issues have been raised in this debate. I am grateful to the Minister for agreeing to write to noble Lords. Obviously, we will want to see those responses before we decide what action to take on Report.

Lord Pearson of Rannoch

I am not familiar with the correct procedure in Grand Committee. To whom will the Minister be writing? Will he write to all those present in Committee or only to those who have spoken? If it is the latter, I trust that I have just assured myself a copy of the letter.

Lord Filkin

By signalling his interest, the noble Lord has assured that he will receive a reply. Usually, a reply would be sent only to noble Lords who have spoken in the debate and thereby signalled an interest in the issues. I envisage that there will be one fairly comprehensive letter which seeks to address all the issues. Usually, as a matter of courtesy and practice, I would also seek to copy both Opposition Front-Benchers regardless of whether they had spoken.

Baroness Anelay of St Johns

I tell my noble friend Lord Pearson that we will attempt to copy the correspondence we receive from the Minister to all those on our Benches who have expressed an interest in the Bill. We may occasionally fall down on that, but we shall do our best. I am also reminded by my noble friend Lord Bridgeman that, on occasion, the Minister has been kind enough to place such letters in the Library. He may consider doing that on this occasion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Baroness Anelay of St Johns moved Amendment No. 4: Page 2 line 9, at end insert— ( ) The Secretary of State may by order make regulations prescribing the circumstances in which a document is (or is not) to be deemed as having been served for the purposes of subsection (3).

The noble Baroness said: In moving Amendment No. 4 I shall also speak to Amendment No. 10 which is grouped with it. The amendment poses a simple question: what constitutes good service and proof thereof? The Explanatory Notes tell us that, following entry into force of the Convention on Mutual Assistance in Criminal Matters, which I shall try henceforth to call MLAC, most procedural documents will be sent directly by post from the issuing authority in countries which are participating in the MLAC or the Schengen Convention to persons in the United Kingdom".

Subsection (3) replaces Section 1(2) of the Criminal Justice (International Co-operation) Act 1990, giving the Secretary of State—or, in Scotland, the Lord Advocate; I always take care of Scotland when my noble friend Lady Carnegy is in the Committee, and also when she is not—discretion in how to serve a document.

Amendment No. 4 would allow the Secretary of State to specify in secondary legislation the circumstances in which a document is deemed to be served under the provisions of Clause 1. The amendment seeks to clarify exactly when the process or document is served. Is it, for example, when the Secretary of State posts the letter or when it arrives? What happens if it is lost in the post? What happens if personal service is required but the person in question cannot be contacted? Can the document be left at his or her home, for example, or would it have to be handed over in person? There is a problem, of course, with multi-occupation households.

The amendment may seem to address issues about dancing on the head of a pin. However, having sat as a magistrate for 13 years and seen the difficulty of delivering and proving good service, and having sat on the social security appeals tribunal, I am perfectly well aware of the extraordinary steps people will take to prove that they could not possibly have received a document. These are very serious matters where it is important to ensure that service is achieved.

Amendment No. 10 takes this point further in relation to the provision of receipts. I take it that the words "if possible" refer to the possibility that a person may be unable or unwilling to sign a receipt. However, do they also envisage other circumstances in which the documents may be "served" with out the person actually being present?

I recognise that these provisions of the Bill replicate to a great extent what is already in the 1990 Act, but it would be helpful if the Minister could comment briefly on them and perhaps outline the experience of the Government and chief officers of police in operating them over the past 13 years, so that we are sure that we can achieve proper service when the Bill has been enacted. I beg to move.

Lord Filkin

Amendment No. 4 would introduce what we believe would be potentially restrictive and unnecessary regulations and limit a procedure that has worked effectively for 12 or so years without such regulation. Requirements and regulation are, in the Government's view, unnecessary. Hundreds of documents are received by the Central Authority every year and are served effectively without the existence of regulations of this nature. Subsection (3) simply replicated Section 1(2) of the 1990 Act, which did not contain a regulation-making power.

This is the first of a number of amendments requiring the making of regulations to set out the detail of arrangements. The amendments' purpose, we presume, is to ensure full parliamentary accountability and scrutiny, or alternatively through probing in Committee, to ensure that there is not a need for such regulating power.

The Government do not consider that parliamentary scrutiny is necessary of the minutiae of arrangements which have been working well for some years. If germane issues regarding service issues or problems from the past dozen years come to light, I shall reflect on them and ensure that we provide the relevant information.

Amendment No. 10, to Clause 2, would make personal service of process valid only if the person carrying out the service obtained a receipt signed by the person on whom it was served. Although the Government can see the reasoning behind this, to safeguard the rights of the recipient, we believe and know from current practice that it would create an unnecessary barrier to service of process. The wording of the clause merely replicates current arrangements as set out in Section 1(5) of the 1990 Act.

As I am sure the noble Baroness, Lady Anelay, knows only too well as a magistrate, there are occasions when a person refuses to sign a receipt even when served a document by a police officer. However, the Government believe that this should not be capable of rendering the service invalid. Where that does occur, the constable is required to report it to the UK Central Authority, which will record that the document was served but that the recipient refused to sign the receipt. Police experience itself has not revealed any problems operationally, bearing in mind that many of the relevant documents are for witnesses rather than for defendants, so that there may be less need to seek to avoid service.

On the issue of why the category of procedural documents has been widened, under the provisions of Schengen and the MLA convention, as I said, we are obliged to provide assistance in relation to the new type of administrative proceedings. Furthermore, it may be necessary to prove that a person has received a document. It may be a necessary procedural step in some proceedings. For that purpose, personal service may be a necessary device. It is most likely in the case of service of summons on the defendant. For those reasons, the Government do not believe that the amendments are necessary.

Lord Carlisle of Bucklow

I have one question for the Minister. He explained that the subsection contained the word "may" which gave the Home Secretary a discretion in responding to the request under Section 1(1). He went on to explain that that would give the Secretary of State the power to refuse to do so in matters that, as has been said, might arise at present in Zimbabwe or Iraq. Does the "may" have anything to do with the method of service? The Bill states that the Secretary of State may, cause the process or document to be served by post or, if the request is for personal service, direct the chief officer of police", to do so. Does there have to be a request for personal service before personal service can be used, or does the word "may" give the Home Secretary a general discretion to allow the document to be served by post or by personal service if he so wishes?

Lord Filkin

On the last point, the Secretary of State usually would seek personal service only when he or she has been requested to do so. One can readily understand the reasons for that: as it is a more complicated and lengthy process, it would usually be done only when the requesting authority has specifically requested it. I shall reflect on the other points and, unless there is further advice, come back to the noble Lord, Lord Carlisle, on them.

Baroness Anelay of St Johns

I am grateful to the Minister for saying that he will reflect on these matters and report back; it is most helpful. He clearly highlighted why the issues are important when he said that there may be a need in later proceedings to prove the efficacy of service—which is what the amendment itself hinges on. We are not in any way trying to create extra bureaucracy to entangle anyone. We were trying to find a hanger for the provision, and this was a convenient place to deal with it. The Minister was right to say that there are occasions when it is not necessary to refer to regulations in the Bill itself and that parliamentary scrutiny of those regulations is occasionally not necessary. On other occasions, however, it is absolutely vital that there are such regulations by order. We shall come to those regulations later in our consideration of this Bill and of other legislation.

Amendment No. 4 was moved merely to stimulate debate and I am grateful to the Minister for his comments. In regard to service of these documents, they are, as he said, served on those who are witnesses and not on those who are yet accused persons. As he knows, particularly in international crime, a witness may become an accused person. It is therefore important that service is properly achieved.

Given the Minister's offer to look further at this matter, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

4.30 p.m.

Clause 2[Service of overseas process: supplementary]:

Baroness Anelay of St Johns moved Amendment No. 5: Page 2, line 20, after "stating" insert "in ordinary language

The noble Baroness said: In moving Amendment No. 5, I shall speak also to Amendments Nos. 6 and 8. The amendments would clarify the form of the statutory notices that will accompany the service of overseas process. In that respect, the Bill again replicates provisions in the Criminal Justice (International Co-operation) Act 1990.

The amendments simply raise the issue of the drafting of the statutory notices and whether they are drafted in terms that are easily understandable to those upon whom they are served. That is particularly important for the giving of notice about the effect of subsection (2) of Clause 2, which makes clear that there is no obligation under the law of the United Kingdom to comply with the process. Are the terms of the form left to the Home Office and to individual chief officers of police, or is there a standard national or international form of the notice to be used in all cases? What has been the practice over the past 13 years? I would welcome clarification from the Minister. I beg to move.

Lord Filkin

The overall purpose of the amendments is to ensure that people served with process relating to overseas proceedings are made fully aware of the consequences of that service. Evidently, the amendment reflects the Opposition's concern that recipients of such documents may not fully understand the implications. It is right and proper to make sure that that is not the case. The Government are sympathetic to the intention behind the amendments, but we do not believe that they are necessary or would add anything to the existing situation.

Clause 2 merely replicates Section 1(3) to Section 1(6) of the Criminal Justice (International Co-operation) Act 1990, which governs existing MLA arrangements. It was brought in by a Conservative government. The clause already contains adequate safeguards to ensure that the recipient of such process is aware that it does not impose any obligation under UK law and to ensure that recipients are aware of the consequences under the law of the country where the process was served.

The amendments would require the letters informing the recipients of overseas process to be written in "ordinary language". That would cause difficulties. It would be difficult to know what was meant by "ordinary language", as the concept is itself open to interpretation. The more substantial point is that the letters are nothing new. The UK Central Authority, based in the Home Office, has sent them out since the 1990 Act came into force. I can assure the Committee that the letters are written in straightforward language. I have had a look at them, and even I could understand them. To put that beyond doubt, I am happy to give illustrations to the Opposition Front Benches.

Is it open to the Home Office to determine the format? Yes, it is. There is no international form, and I shudder at the thought of the negotiations that will lead to its production. For those reasons, I hope that the Opposition, when they see the letters, will see that we share the intent of making sure that people who are served process understand clearly and fully their obligations.

Lord Clinton-Davis

I am unable to understand what the noble Baroness means by "ordinary language". Ordinary language in Smithfield Market is different from ordinary language in Carey Street. That being the case, I cannot understand why it was necessary to table the amendment.

All that we need to stress is that the person should understand what is meant by the process. My noble friend the Minister has given chapter and verse on that.

Lord Stoddart of Swindon

I can understand what the noble Baroness is getting at. The Minister said that the letters were written in language that even he could understand. He is a Minister of the Crown and a former chief executive of a local authority. He would be able to understand such things, whereas normal people—ratepayers and such people—would not.

I do not want to make too much of this, for I understood what the Minister said. Nevertheless, we are discussing a complicated Bill. Some of the documents that are served on people are just as complicated. We need Explanatory Notes to tell us the way through, so we should not be too critical if someone tables an amendment to get clarification and some assurances that people will be able to understand exactly what any notice served on them means. The consequences of not understanding could be serious.

Lord Carlisle of Bucklow

One of the things that a person is to receive is an indication that he, may wish to seek advice". We are told that the service of documents has been widened by Clause 1, so that it will cover, any process issued or made in that country for the purposes of criminal proceedings". Presumably, that would include a summons to arrest someone to attend his trial. It is fairly wide. When it is suggested that the recipient may wish to seek legal advice, from whom will it be suggested that he seek advice? Will he be able to receive assistance from legal aid in this country?

Lord Filkin

I can add little to what common sense—a dangerous term—tells us about that. It is up to an individual who is invited to reflect on whether he needs legal advice to make a judgment as to whether he should go to a solicitor, to the NACAB, which gives simple legal advice in some cases, or to others. In many cases, that decision would be straightforward, and the person would go to a solicitor, if he needed advice on a potential criminal prosecution. I understand, however, that such a person cannot apply for legal aid in such circumstances.

Baroness Anelay of St Johns

I will pursue the point slightly further when we get to Amendment No. 7.

I am grateful to Members of the Committee for their contributions. The noble Lord, Lord Clinton-Davis, was right to go to the heart of the matter: what do we mean by "ordinary language"? We mean language that the recipient of the notice can understand. It highlights our greatest difficulty, which is that we are drafting legislation that should be appeal-proof and judicial review-proof. The Bill will achieve government policy objectives, but it should also be written in something resembling real language that can be understood not only by practitioners but by others. That is the greatest problem. The noble Lord, Lord Stoddart of Swindon, said that it was important that the consequences for someone who does not understand something could be severe.

I am grateful to the Minister for pointing out that it is the Home Office that determines the matters. We shall return to the matter of comprehension of proceedings, particularly in cases in which people do not have the language in which the notice would ordinarily be issued. Having heard what the Minister said I stress that this is an opening salvo on the matter I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 6 not moved.]

Baroness Anelay of St Johns moved Amendment No. 7: Page 2, line 21, after "seek" insert "legal

The noble Baroness said: I move Amendment No. 7 separately because it refers to the seeking of advice, something to which we shall return in more depth later in the passage of the Bill.

Subsection (3) replicates, with minor amendments, what is in the 1990 Act. The amendment was tabled to probe the nature and quality of the advice that would be available to persons on whom overseas process is served in the United Kingdom under Clause 1.

We spoke about the administrative proceedings included in the scope of Clause 1. However, the exact nature of what is happening may not be readily apparent to persons on whom process in administrative proceedings is served. We may have a better understanding when we receive the Minister's letter in which he will give examples of what the administrative proceedings may comprise, but it may be difficult for people who have grown accustomed to and who one hopes—understand the United Kingdom's system of justice fully to comprehend what such proceedings in other countries are all about.

Can the Minister say a little more than he did a moment ago to my noble friend Lord Carlisle of Bucklow, about the kind of advice that the Government expect people to seek? The Minister referred to the citizens advice bureaux. I declare a non-pecuniary interest as president of my local NACAB. I have served as adviser to and chair of the management committee for a quarter of a century. I am aware that, although the bureaux are funded locally, they would not normally have the expertise on-site to answer questions relating to such judicial matters and might have to send people to solicitors. That raises the question of who bears the cost. I beg to move.

Lord Filkin

As the Committee will recognise, the thrust of Clause 2(3) is to try to ensure that, when people are served with a notice, they have it made clear to them that they may wish to seek advice before responding. It is right and proper that the state should do that, so that such persons are in no doubt that it could be a significant issue for them. However, we do not think that it is right, proper or necessary to go further and second-guess what form of advice they should receive. We need only indicate that the people may wish to seek advice on the meaning of the documents and their potential implications.

The amendment would require the notice accompanying the process to indicate that the recipient may wish to seek "legal advice". The 1990 Act does not specify that that advice should be legal, so we see no reason to change the legislation in that respect. That is because we are concerned that explicit references to "legal advice" might be over-restrictive and would not necessarily assist the recipient, when other, less formal advice—from an employer, from the NACAB or from the Central Authority itself—might be appropriate.

The standard notice that accompanies the overseas process suggests that the recipient seek legal advice. Given the nature of the documents, it is highly likely that the recipient would turn to a legal adviser for assistance. Persons on whom documents are served often telephone the UK Central Authority or seek advice from their solicitor. There are solicitors who have specialist expertise in such areas. For those reasons, we think that it is right to draw people's attention to the fact that they may wish to seek advice, without thinking that it is right or proper to spell out the exact form of that advice, which may differ according to circumstances or the preference of the recipient.

4.45 p.m.

Baroness Anelay of St Johns

I am grateful for the Minister's response, but I would be grateful if he could consider giving some information at a later stage on the Government's view on whether legal advice is necessary in addition to other advice. Do the Government think that this is such a complex area that legal advice is as much required as anything else?

I heard the Minister say that people often phoned the UK Central Authority. Can he elicit for us information about the kind of advice that it gives? Is the authority telephoned simply for advice on the possible procedure or on whether people will need to present themselves to give evidence by television or telephone? Does the advice for which the Central Authority is asked go to the nub of the legal issues? People may have to ask for advice on many matters. It may be straightforward getting advice on how to fill in a form asking for personal details, but finding out how to respond to a particular legal process could be a detailed matter. I hope that the Minister will consider that.

We may return on Report to the subject of legal advice and the importance of access to it, not in the narrow form implied by this amendment but more widely. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 8 not moved.]

Lord Goodhart moved Amendment No. 9: Page 2, line 25, after "a" insert "party or

The noble Lord said: This is a brief amendment. Clause 2(1) states: Subsections (2) and (3) apply to any process served in a part of the United Kingdom by virtue of section 1 requiring a person to appear as a party or attend as a witness". Subsection (3) states: The process must be accompanied by a notice that, among other things, must indicate that, under that law, he may not be accorded the same rights and privileges as a witness would be accorded to him in proceedings in the part of the United Kingdom in which the process is served". There is no reference to rights and privileges as a party, although that would be desirable. Is there any reasons why the words that we propose do not appear in subsection (3)? I beg to move.

Lord Filkin

Clause 2 provides that overseas process must be accompanied by a notice covering such matters as the rights and privileges accorded to persons appearing in overseas proceedings. The notice must be given to persons appearing as a party and to those attending as a witness. That is because subsection (1) provides that subsections (2) and (3) apply both to parties and witnesses. The note that accompanies the process falls within subsection (3) and will be given to someone whether he or she appears as a party or as a witness.

The note will be the same in both cases and will use standard wording, indicating that the person may not be given the same rights and privileges as a witness as would be accorded in UK proceedings. The amendment would mean that the notice would also have to indicate that the recipient may not have the same rights and privileges as a party.

The drafting of the subsection reflects Section 1(4)(c) of the 1990 Act, which has not, to our knowledge, caused any problems. We are changing the term "defendant" in the 1990 Act to "party", but that is simply because "overseas process" can relate to some overseas administrative and clemency proceedings—our old friends again—as well as ordinary criminal proceedings. The use throughout of the term "defendant" would not be appropriate, as we would not always be talking about criminal proceedings. However, there is no difference of substance from the 1990 Act, and we see no reason to change the existing legislative position, which appears to work well.

A party to proceedings must already be given a notice setting out his rights and privileges as a witness. We have identified no additional rights and privileges that would be accorded to a party to the proceedings, so we cannot see the need for the amendment. That is particularly so given the fact that the Bill is based on the corresponding provision in the 1990 Act. The intention is that the notice will be given to parties to proceedings and to witnesses. Having taken advice, I am happy that the current drafting achieves that. We respect the thrust of the amendment, but, for the reasons that I have given, it is not necessary.

Lord Goodhart

I am dissatisfied with that reply. The Minister appears to be saying that the notice under the terms of subsection (3), indicate that there are rights and privileges as a witness and as a party. In fact, the rights of a party and the rights of a witness are not necessarily the same. In some cases, the rights of a party may be different. For instance, under UK law, a party cannot be compelled to give evidence, whereas a witness can, subject to the right not to incriminate himself.

It would be appropriate to recognise that rights may be different. The fact that no problems have been caused because the drafting was got wrong in the 1990 Act is no reason to say that the drafting should not be corrected in the Bill. It is a minor matter, but I ask the Government to think again about it. We shall probably bring it back for a further short discussion on Report. I beg leave to withdraw the amendment.

Lord Filkin

We will always consider with care what is said in Committee.

Amendment, by leave, withdrawn.

[Amendment No. 10 not moved.]

Clause 2 agreed to.

Clause 3 [General requirements for service of process]:

Baroness Anelay of St Johns moved Amendment No. 11: Page 3, line 2, leave out "believes" and insert "suspects

The noble Baroness said: I forbore to speak on the last amendment because I thought that your Lordships might have had enough. It is like a monologue from me at the moment, so it was intriguing to listen to the debate.

In moving Amendment No. 11, I shall speak also to Amendments Nos. 12 and 13. The amendments go back to the question of language. They raise the question of the language that will be used when the United Kingdom process is served overseas, if the person on whom the process is to be served does not understand English.

The Explanatory Notes state: Subsection (3) creates an obligation on the person at whose request the process is issued to meet the MLAC requirement relating to translation where he is aware that the recipient does not understand English". It is difficult even when one does understand English. Amendment No. 11 relates to the standard to which the person at whose request the process is issued or made will have to be satisfied before making available a translation of the process. The Government have stated that the appropriate standard is that the person, believes that the person on whom it is to be served does not understand English". My amendment would change "believes" to "suspects" and probes the nature of the evidence on language that must be available before translation is provided. I hope that the Minister will shed some light on that issue.

Amendments Nos. 12 and 13 relate to the issue of the specific language in which the translation will be provided. The Bill uses the phrase "an appropriate language". To whom, what or where is it appropriate? The Bill does not define how a language is to be judged to be appropriate in each case. Nor does it say who will make that judgment. In Belgium, for instance, there is more than one language in current use, and that is not the only example. It might not be immediately obvious what is an appropriate language. Other than by implication through the use of the word "appropriate", there is no requirement for the language that is used to be one that the person understands. What will happen if the person on whom the process is to be served understands more than one language?

I hope that the Minister will clarify the issue, particularly in the light of the requirements of paragraph 3(a) of Article 6 of the European Convention on Human Rights, which specifies that a person has the right, to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him I appreciate that that paragraph is not directly relevant to the service of criminal process, but it must inform our debate on the language in which such documents are presented. I beg to move.

Lord Filkin

The intention behind the amendments is to ensure that a person overseas who receives documents relating to UK criminal proceedings is able to understand them. That is right and proper. However, the Government believe that the clause achieves that.

The first amendments would require the person requesting that the process be served to provide a translation, if he suspected that the recipient did not understand English. The person asking for the process to be served would be the person running the investigation concerned—for instance, a police officer or an investigator for Her Majesty's Customs and Excise or the Serious Fraud Office. In the Bill, the requirement for a translation exists if the issuer "believes" that the recipient does not understand English. It reflects the exact wording of Article 5(3) of the mutual legal assistance convention. Changing the word to "suspects" would widen the obligation to include cases in which someone might not believe that the recipient did not understand English.

The requirement to provide a translation is a new safeguard and does not exist in the 1990 Act, although, in practice, most international process documents passing in and out of the United Kingdom are already translated. The provision confirms existing good practice. The Government consider that "believes" is the appropriate term for implementing the UK's international obligations, as there is a balance to be struck between providing proper safeguards and imposing unnecessary burdens.

[The Sitting was suspended for a Division in the House from 4.58 to 5.8 p.m.]

Lord Filkin

Before the Division, I was stating why we believed Clause 3 was adequate. It merely puts current good practice on the face of the legislation.

Amendment No. 12 would require the translation to be in "the", rather than "an", appropriate language. The Government believe that that is unnecessarily restrictive. To take the example given by the noble Baroness, Lady Anelay, the recipient may be bilingual; and therefore more than one language might be appropriate. For example, someone living in Belgium may speak French and Flemish, in which case a translation into either language would be appropriate. The amendment may be intended to ensure that there is no risk that the documents might be in a language that the recipient does not understand. That is a good intent. However, the requirement for "an appropriate language" is entirely sufficient. The word "appropriate" refers to the reader. If the language could not be understood by the recipient, it would not be appropriate.

Amendment No. 13 is redundant. It would require the language into which the service is to be translated to be one which, the person on whom the process is to be served understands". But that is already provided for. Although "appropriate" is not defined, a language not understood by the recipient of the papers is self-evidently not appropriate. Clause 3(3)(b) imposes a requirement that the process be translated into a language that the recipient understands.

The person making the request for the process to be served will be a police officer or other investigator involved in the investigation. As they will usually have some knowledge of the person on whom they seek to have process served, they will be able to judge what language the recipient will understand. It will not be in the practitioners' interests to serve process that cannot be understood by the recipient, as it is unlikely that it would be responded to.

The person issuing the process is likely to have some knowledge of whether or not the recipient speaks English. For example, if the process is a witness summons, the issuer will know who the witness is, and will be likely to have had previous contact with that person and the authorities in the country of residence. There is no absolute requirement to establish in advance whether the recipient understands English. But if, for example, a document is to be served on a Portuguese national residing in Portugal, the issuer is likely to believe that the recipient does not understand English and should translate the document, or relevant parts thereof, into Portuguese. In most circumstances, therefore, documents are likely to be clearly comprehensible by, and appropriate for, the recipient.

Without wishing to be tedious, for those reasons, we have not, in practice, experienced problems with that. The clause merely puts current good practice on the face of the legislation.

Baroness Anelay of St Johns

I am grateful to the Minister, in particular for his elucidation. As we left the Committee room, I was reminded by my noble friend Lady Carnegy that it is easy to slip into "jargonese". I know that I am doing that myself. I was grateful to the Minister for making clear that the decision in question will be made by the person running the investigation. It is useful to know that because, as the Minister rightly said, that person is likely to have background knowledge of the witness. The Minister gave the example of Portuguese. I shall give as an example Spain, where the language used can be a sensitive issue. The person running the investigation may not know whether a recipient would insist on a translation into Catalan or into more traditional Spanish, if I can call it that without offending the whole of Spain. It is important that that be clear.

The Minister is right to say that this is a new safeguard, and it would be wrong to hamper it with unnecessary burdens. But we are still finding it difficult to understand how some processes will work. The Minister has helped in that regard. There may be other occasions where the fog remains. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 12 and 13 not moved.]

On Question, whether Clause 3 shall stand part of the Bill?

Lord Carlisle of Bucklow

I apologise, as the confusion is probably my own. I do not understand the differences between Clauses 2 and 3. As I understand it, Clause 3 is the reciprocal arrangement to Clauses 1 and 2 and deals with the service of processes on UK citizens abroad for the purposes of criminal proceedings in this country. By contrast, Clauses 1 and 2 deal with the issue of processes, summonses and documents in relation to criminal proceedings abroad on people in this country who normally live in another. That is clear. We heard in previous debates that, where a notice is served requiring a person to attend as a witness or a party to proceedings, the service itself imposes no obligation under English law. Clause 2(1) states that there is no such obligation where notice is served, in a part of the United Kingdom … requiring a person to appear as a party or attend as a witness". Subsection 2 makes clear that the service of that notice, and a failure to comply with it, imposes no obligations under English law against that person. Subsection 3 states—and we had a short debate on this—that the individual on whom it is served must be told that his failure to comply cannot result in proceedings against him in this country. Clause 2(3)(b) adds that it should indicate, that the person on whom it is served may wish to seek advice as to the possible consequences of his failing to comply with the process". The Minister gave as an example that, if a person is summoned to attend criminal proceedings, that is a serious situation, and he might wish to receive advice on what will happen if he does or does not respond to the notice. Paragraph (c) provides that the person must be told that his treatment when he returns to his country may not be in accordance with how he would be treated if he remained in this country.

Under Clause 3, although the power to serve will be similar, the effect of the service will be totally different. Subsection (4) states: Process served outside the United Kingdom requiring a person to appear as a party or attend as a witness— (a) must not include notice of a penalty". Subsection (5) specifies: If process requiring a person to appear as a party or attend as a witness is served outside the United Kingdom, no obligation to comply with the process under the law of the part of the United Kingdom in which the process is issued or made is imposed by virtue of the service". As I understand it, that means that, where a notice is served on a person to attend as a witness or a defendant, he must be told that his failure to comply with it would have no effect in this country. To reiterate, subsection (5) states that there is, no obligation to comply with the process under the law of the part of the United Kingdom in which the process is issued or made is imposed by virtue of this service". Surely, as in Clause 2, the recipient should be warned of the effects under the law of the country to which he is going of his failure to respond to the notice or attend proceedings.

Subsection (6) specifies that, failure to comply with the process does not constitute contempt of court and is not a ground for issuing a warrant to secure the attendance of the person in question". So, what is the advantage of having the power to require people abroad to attend proceedings—through a system of quick service of a summons for a criminal offence—if they are told that there will be no consequences, such as a contempt of court charge, if they ignore the notice and fail to attend proceedings? That is contrary to the provisions of Clause 2, which deals with the service of process in this country on people who come from abroad.

I have probably muddled the point. I noted the confusion while reading the legislation during the Division in your Lordships' House. I apologise if I have not made myself clear. I am confused as to why Clauses 2 and 3 are at odds with each other, if the intention behind the Bill is to have reciprocal arrangements for the improvement of co-operation on criminal matters.

5.15 p.m.

Lord Filkin

As usual, I do not believe that the noble Lord, Lord Carlisle of Bucklow, is being obtuse or foolish in any respect. I intended to ask exactly the same question when I read that part of the Bill. I shall seek to set out the reasons for our position.

As the noble Lord said, Clause 3 deals with the service of UK process abroad, not necessarily on UK citizens. It deals with situations where a court in England, Wales or Northern Ireland wishes to serve process on a person outside the UK. It is an essential part of mutual legal assistance. The clause builds on the existing arrangements in Section 2 of the 1990 Act. The range of documents included in the word "process", however, is defined in Clause 52 to reflect the wider definition set by MLAC. That clause also deals with the requirements set out in Article 5 of MLAC, which deals with cases where it is known that the recipient does not speak English, as he was previously spoken to.

Clauses 3(5) to (7) deal with the consequences of non-compliance with the process. As the noble Lord, Lord Carlisle, noted, process served outside the UK does not of itself impose any obligation on the recipient under UK law. So, failure to comply with the process does not constitute contempt of court. That is because the objective is mutual legal assistance, not mutual recognition. To impose mutual enforcement of process would have been a radical step beyond the scope of the Convention on Mutual Assistance in Criminal Matters.

In practice, however, people largely comply with requests. If they do not, it would always be possible to ask the police in their country to take a statement. Furthermore, as subsection (7) explains, if the person served subsequently comes to the UK, he could be served with the documents again, and would then be subject to domestic provisions on non-compliance. So, if he continues to ignore the process he could be in contempt of court. That is at the heart of why a contempt of court charge is not immediately threatened to the recipient of notice served abroad. It was not felt possible to go that far under MLAC.

Clause 3(5) mirrors Clause 2(2). There is no extra-territorial effect either way. For those reasons, on how far mutual processes should go rather than getting to the fundamentals, we do not go as far as the noble Lord, Lord Carlisle, expected. That is the nature of the agreement and what we are seeking to enact in primary legislation.

Clause 3 agreed to.

Clause 4 [Service of process otherwise than by post]:

Baroness Anelay of St Johns moved Amendment No. 14: Page 3, line 24, at beginning insert "such

The noble Baroness said: With the leave of the Committee, I wish to speak also to Amendment No. 15, which is grouped with this amendment. The amendments seek to probe the nature of the arrangements that will apply when United Kingdom criminal process is served overseas otherwise than by post. It would require that the arrangements be prescribed in secondary legislation. Paragraph 29 of the Explanatory Notes states: The arrangements that will apply will be that documents will be sent via the Secretary of State to the central authority of the other country, which will transmit the process to the recipient". If those are the only arrangements that can be used, why not include that statement on the face of the Bill? Without its inclusion, one is led to believe that there must be other arrangements that will apply at other times. Is the Secretary of State considering making other arrangements in the future? If so, what are they?

One could argue that, in practice, the arrangements will be made by the Central Authority in the other country rather than by the Secretary of State. There is no reference in Clause 4 to the sorts of issues dealt with by Clause 1(3) or Clause 2, which spell out in greater detail how the personal service of overseas process is to take place in the United Kingdom. I beg to move.

Lord Filkin

These amendments would require an order setting out the arrangements for the service of procedural documents to persons outside the UK where they are not served by post. We do not believe that anything could be gained by having such arrangements in cases where direct transmission is not used for whatever reasons set out by order. The 1990 Act referred to arrangements made by the Secretary of State in precisely the same way as this Bill does. Those arrangements were never defined by order. The Government consider it unnecessary to define them now.

In practice, the procedural law of the overseas country involved will govern when a document is deemed to have been served. There will be variations among countries. Under the 1959 convention, service can be made by post, and proof of service may be a receipt. For those reasons, we think that the 1990 Act was sound and that the corresponding provision in this Bill is appropriate.

Lord Goodhart

I have a good deal of sympathy for this amendment. Provision on service abroad should be spelt out in more detail than at present. After all, service in the United Kingdom is dealt with in rules of court, which are statutory instruments; therefore, they do not necessarily require the approval of either House of Parliament, and are not subject to parliamentary control.

I understand that problems will arise and that the practice used may depend on the procedure of the country where the process is to be served. But it is not good enough to leave arrangements to be made by the Secretary of State.

Baroness Anelay of St Johns

I am grateful to the noble Lord for his remarks. I am not trying to overburden the system with more bureaucracy, but this is one of several areas that need to be clarified. The Minister has still not stated what other arrangements might be considered. I give notice that we will need to return to the matter. Perhaps the Minister will consider it before Report stage. As the noble Lord, Lord Goodhart, said, we need clarity, particularly in provisions relating to service abroad. On this occasion, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 15 not moved.]

Baroness Anelay of St Johns moved Amendment No. 16: Page 3, line 31, leave out "there are good reasons for thinking" and insert "the Secretary of State is satisfied

The noble Baroness said: I wish to speak also to Amendment No. 17. Members, not least the noble Lords, Lord Filkin and Lord Bassam—whom I note is also in his place—will recall the debate in your Lordships' House on 8th July on the desirability of using the word "thinks" in legislation during the passage of the Nationality, Immigration and Asylum Bill in the previous Session—the debate is recorded at col. 482 of Hansard. I am sure that it is fresh in all our minds. In another place, the Government responded to the concerns raised and replaced the phrase "the Secretary of State thinks" with "the Secretary of State is satisfied that". Noble Lords welcomed that.

However, Clause 4(3)(c) contains the condition, that there are good reasons for thinking that service by post will not be effective or is inappropriate". My amendment seeks to raise the issue of what those good reasons must be. Who will have to do the thinking now that they are present; and, most importantly, to what standard? Will it be the Secretary of State or the Central Authority of the other country? The Minister, in responding to a previous amendment, gave us reason to think that the Central Authority might make the decisions. One assumes that the other country must be a participant in the arrangements before the conditions in subsection (3) would apply at all.

Amendment No. 17 also seeks to probe the nature of the circumstances in which service will be effected in a participating country in accordance with the arrangements made by the Secretary of State because service by post is inappropriate. It is reasonably easy to understand how service by post may be ineffective, as the preceding words of the paragraph state—we have already discussed the issue—but in what circumstances do the Government envisage that service by post will be inappropriate? After all, as the Bill is currently drafted, paragraphs (a) and (b) are absolutely obvious and seem to cover all eventualities. I am having difficulty in thinking of others. Paragraph (a) states that the correct address of the person is unknown; and paragraph (b) states that it has not been possible to serve the process by post. So what is left that could be covered by paragraph (c)? Who makes the decisions and on what basis? I beg to move.

5.30 p.m.

Lord Filkin

Clause 4 makes clear that the service of process by post is the norm for process from one member state to be served on a person in another member state. The clause makes service by post optional to persons in countries which are not in the EU and which have not been designated as "participating countries". Service other than by post to participating countries is possible only in strictly limited circumstances. Service by post should be quicker and more efficient than service through the Central Authority, provided that a full address is known and there are no other circumstances applying which make it inappropriate—for example, if the intended recipient was known to be living in France but his exact address was not known, the documents could realistically be served only by the French central authority.

Amendment No. 16 seeks to require the Secretary of State to make a decision as to whether it is inappropriate to serve documents directly. But the Secretary of State will not be the authority making the decision. The court issuing the document will assess whether there are good reasons why service by post is not appropriate.

Amendment No. 17 would limit the reasons for not serving by post. It would remove the discretion of the courts to rely on personal service in cases where, for some reason, postal service would be inappropriate and ineffective. Service by post should be quicker and more efficient than service through the Central Authority, provided the full address is known and there are no other circumstances making it inappropriate.

As to the question about "good reasons", the good reasons will be in the mind of the person issuing the document, not the Secretary of State. There may be a procedural requirement that the document be served other than by post to allow a particular procedure—for example, trial in absence—to be followed. I hope that that explains why we believe that the clauses as drafted deal most appropriately with the intent.

Baroness Anelay of St Johns

I am grateful to the Minister for that reply. At the end of his explanation he answered my main question of what is covered by paragraph (c). His answer made me more concerned than relieved and I shall need to look at it further. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 17 not moved.]

Clause 4 agreed to.

Clause 5 [General requirements for effecting Scottish citation etc.]:

Lord Filkin moved Amendment No. 18: Page 3, line 39, at end insert— ( ) Where citation or issue is by the prosecutor, is to be effected or the document to be served outside the United Kingdom and the prosecutor believes that the person against whom it is to be effected or on whom it is to be served does not understand English, the citation or document must be accompanied by a translation of it (or, in the case of a document, by a translation of so much of it as is material) in an appropriate language.

The noble Lord said: These are technical amendments tabled at the request of the Scottish Executive. Their purpose is to ensure that the Bill accurately reflects Scottish procedure. The usual situation in Scotland is that the citation is effected or the document issued without reference to the court. Because in certain circumstances the court may be involved, the references to that situation are retained within the clause.

In Scotland, it is usually the case that the procurator fiscal will effect the citation without the need for reference to the court. In that case, it will be for the procurator fiscal to ensure that if he believes the intended recipient does not understand English, a translation should be provided in an appropriate language.

However, it is also the case in Scotland that there are certain circumstances where the court may be involved—for example, where the accused fails to appear. For these circumstances, therefore, the reference to the court has been retained in the clause.

The amendment relating to Clause 52 defines processes for Scotland to take account of Scottish procedure in this respect. It is a technical matter and relates to the Scottish procedure of citation. Whereas the terms "process" and "summons" are appropriate for the remainder of the United Kingdom, in Scotland "citation" is used to describe the situation in criminal proceedings whereby someone is called to court to answer the proceedings or to give evidence as a witness. Amendment No. 134 is necessary to reflect these Scottish procedures in the Bill. I beg to move.

Baroness Carnegy of Lour

At a recent meeting with civil servants of the Scottish Executive, a Scottish Law Lord was kind enough to comment that the drafting of Scottish Bills was extremely good. He believed that the way in which it was being done reflected very well on Scotland. I do not know whether the Minister has tried reading out loud the first four lines of the amendment but, by any standards, I cannot understand them. I do not know whether there has been confusion in their transmission or whether I am being stupid, but I do not believe that the law of Scotland should contain the clause.

Can the Minister tell the Committee what the amendment means? It states: Where citation or issue is by the prosecutor, is to be effected"— what is to be effected?— or the document to be served outside the United Kingdom and the prosecutor believes that the person against whom it is to be effected or on whom it is to be served does not understand English". The Minister explained why the adjustment had to be made—I am sure that we are all grateful that the Bill is being made wholly appropriate for Scotland—but can that wording be right? Will the noble Lord check that the wording is right? Perhaps there is a lawyer on the Committee who will tell me that it is right. I simply do not understand what it means.

Baroness Anelay of St Johns

I join with my noble friend's request for clarity. As I understand it, by inserting Amendment No. 19 into the Bill subsection (3) would state: Where citation or issue is by the court, is to be effected or the document to be served outside the United Kingdom and the person at whose request that is to happen believes that the person against whom it is to be effected or on whom it is to be served does not understand English, he must". I do not understand that English. I would be grateful for clarification on how that would operate.

Lord Goodhart

The noble Baroness, Lady Carnegy, has challenged me but I find it no easier to understand than she does. It seems to me, although I am not knowledgeable in Scots law, that it should read: Where citation or issue is by the prosecutor and is to be effected or the document is to be served". That may make some sense. The wording at present does not.

Baroness Carnegy of Lour

Those are precisely the changes I had pencilled in myself. The noble Lord and I must be right between us.

Lord Filkin

I was invited to make one of two responses to the noble Baroness, Lady Carnegy of Lour: either to explain what it means or to go away and check whether we believe it is accurate. Of the two courses, I shall take the latter. It seems to my advisers that there may well be a typo here. Rather than make amendments on the wing, we shall double check and write to the noble Baroness. I am almost certain that that is the case, which puts me in the unfortunate position of, yet again, having to acknowledge the skill of the noble Baroness, Lady Carnegy of Lour, in the scrutiny of Scottish legislation—or, rather, legislation affecting Scotland.

The Deputy Chairman of Committees (Baroness Fookes)

Is the Minister seeking to withdraw the amendments?

Lord Filkin

No. I do not wish to withdraw them at this stage. I should like to have the amendments incorporated into the Bill but, with the leave of the Committee, on the undertaking that we shall bring forward clarification on Report if, as I believe is the case, there is a typographical error. I shall write to Members of the Committee who have spoken on this issue well before Report stage so that there is no doubt whatever about that.

Baroness Anelay of St Johns

At this stage we agree to the Minister's request for imperfect legislation—which this may well be—to go through, but it should be on the record that we on these Benches allow this to happen with sorrow. We are in Grand Committee and we cannot take any other action. As the Government have decided not to give an explanation, we are being asked to adopt an amendment which we believe to be wrongly drafted. However, on the basis that we shall take action on Report if the Government are unable to give a proper explanation or redrafting by that stage, we shall not object at this stage. It is one of the difficulties we face in Grand Committee that we are not able to press the matter further.

Lord Filkin

I would not wish the Committee to imagine for one second that I am treating the matter lightly. At this stage I seek merely to get the amendment into the Bill while giving the categoric assurance that we believe there is a typographical error. I could make an amendment on the wing, but that would be to run the risk of compounding the problem. It is wiser that I bring back, as is likely to be the case, a further amendment on Report having got the matter into the Bill at this stage. I give the strongest commitment to the Committee that we are not treating the matter frivolously.

On Question, amendment agreed to.

Lord Filkin moved Amendment No. 19: Page 3, line 40, leave out "the citation" and insert "citation or issue is by the court,

On Question, amendment agreed to.

Clause 5, as amended, agreed to.

Clause 6 [Effecting Scottish citation etc. otherwise than by post]:

Baroness Carnegy of Lour moved Amendment No. 20: Page 4, line 19, leave out "by the Lord Advocate" and insert "under regulations made by the Scottish Ministers

The noble Baroness said: Amendment No. 20 is the first of five amendments which the Law Society of Scotland is anxious that the Committee should consider. In this amendment, and three of the other four, the suggestion is that under Part 1 of the Bill as it applies to Scotland, some of the functions assigned to the Lord Advocate should in fact be given to Scottish Ministers. The Law Society has chosen four examples; I suggest that we have already passed one example to which this argument may apply under Clause 1, although I am not sure of that.

On page 7 of the Government's Explanatory Notes, it states that Clause 6 is the Scottish equivalent to Clause 4 The notes continue: It reflects the provisions of clause 4 but provides that the Lord Advocate, rather than the Secretary of State is to make arrangements for service of a citation or document otherwise than by post". The Explanatory Notes do not explain why this difference should be made in Scotland.

The Law Society points out—this occurred to me before it wrote to me—that it would be better in Scotland, too, if the arrangements were made not by the Lord Advocate but by Scottish Ministers. The Lord Advocate is a Member of the Scottish Parliament and a Minister in the Scottish Executive. He is also responsible for all prosecutions in Scotland. He wears all the time two hats. The Law Society suggests that there could well be under this clause a conflict of interest for the Lord Advocate because in carrying out his roles as prosecutor and of setting up these arrangements he will be performing two conflicting tasks.

The Law Society also states—this is a different point and I am not sure whether it is right—that the arrangements the Scottish Ministers make should be made by order so that they are in black and white in secondary legislation. This would be different to the arrangements for England and Wales under Clause 4, but that is the preference of the Law Society of Scotland. When I asked the Law Society to explain why it thought it should be different, it simply said that it thought it would make better Scots law. I am not in a position to argue about that.

I shall be interested to hear the Minister's reply. It is an argument that will arise in later amendments but they relate to different circumstances. They are not grouped and it is better that we treat them separately. I beg to move.

5.45 p.m.

Lord Filkin

As the Committee is aware, this clause is the Scottish equivalent to Clause 4 and is needed to reflect the Scottish procedure of citation. In Scotland, the Lord Advocate will carry out the functions given to the Secretary of State in the remainder of the United Kingdom.

The proposed amendment to Clause 6 returns to the theme of requiring additional regulations. Clause 6(1) provides that citations and other documents in Scottish criminal proceedings which are not effected or served abroad by post are to be effected or served in accordance with arrangements made by the Lord Advocate. The amendment proposed would have the effect of replacing arrangements made by the Lord Advocate with arrangements made under regulations by Scottish Ministers.

The Government do not believe that it would be helpful to establish under regulations the arrangements for effecting citation abroad in cases where direct transmission is not used, for whatever reason, as proposed by the amendment. The 1990 Act refers to arrangements made by the Secretary of State in the same way as the Bill refers to arrangements made by the Lord Advocate. These arrangements have never been defined by regulations and the Government consider it unnecessary to do so now.

Seeking to have arrangements set out in regulations is a common theme of some of the amendments we have discussed so far. We have already referred to it in connection with Clause 1 and Clause 4 and, again, we argued that it was unnecessary.

With regard to the replacement of the Lord Advocate by Scottish Ministers, again we do not believe it appropriate. The Lord Advocate will be fulfilling the administrative role of central authority for Scotland, and where it is not possible to effect citation by post, requests for assistance of this kind will be dealt with by his office, and the Bill is correct to reflect that position in Clause 6.

Although mutual legal assistance in England and Wales is dealt with in the Home Office, in Scotland it is dealt with in the Crown Office under the direction of the Lord Advocate. It has worked well like this in Scotland since 1990. Indeed, we are suggesting that the Lord Advocate should become the territorial authority for mutual legal assistance generally in Scotland. The Scottish Ministers at large have no role in the execution of mutual legal assistance. For these reasons, we believe the amendment is unnecessary and undesirable.

Baroness Carnegy of Lour

I thank the noble Lord for his reply. I appreciate the arrangements made by the Crown Office; they are familiar to me as a layman. Now that I know that some of the words used by noble Lords in discussing the Bill are not used in Scotland— all this talk of "process" is a complete mystery to me—I am beginning to understand much better.

I shall read with interest what the Minister said. He believes that, contrary to the Law Society suggestion, there will be no conflict of interest for the Lord Advocate. If that proves to be the case, of course, the Law Society will be satisfied. I shall be interested to read what the Minister said. I shall consult with the Law Society to ascertain whether it wishes to make any further points.

Lord Filkin

We do not believe there will be a conflict of interest. If I can find further argumentation or evidence to satisfy the noble Baroness, Lady Carnegy of Lour, and her advisers, I shall forward it by letter.

Baroness Carnegy of Lour

I thank the Minister for that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 agreed to.

Clause 7 [Requests for assistance in obtaining evidence abroad]:

Baroness Anelay of St Johns moved Amendment No. 21: Page 4, line 34, leave out "it appears to

The noble Baroness said: In moving Amendment No. 21, I shall speak also to Amendments Nos. 22 and 23, which are grouped with it.

Amendments Nos. 21 and 22 relate to the standard of proof that will apply when an application is made to a judicial authority in the United Kingdom to request assistance in obtaining evidence abroad. I recognise that the phrase "it appears to" is already used in the 1990 Act, but it would be helpful if the noble and learned Lord who is to respond could explain how it is being interpreted by the courts. Is the criminal standard of being satisfied beyond all reasonable doubt of the matters specified applied, or is a lower standard of proof applicable?

Amendment No. 23 seeks to ensure that an application for assistance under Clause 7 would include information on the procedure for gathering evidence lawfully and the admissibility of evidence in the United Kingdom. Different countries have different procedures and different laws on admissibility. Indeed, ours are about to change, too, if we are to take anything from the Criminal Justice Bill making its passage through another place. Can the noble and learned Lord say whether any problems have been encountered in relation to the use of evidence obtained under the provisions of the 1990 Act in respect of the legal rules on evidence that apply in the various parts of the United Kingdom? Are the authorities of other countries routinely informed by the United Kingdom of what rules will apply to evidence gathered in those countries once it is in the United Kingdom and ready to be used in our investigative and judicial process? I beg to move.

The Attorney-General (Lord Goldsmith)

In rising for the first time, perhaps I may respond to a question raised by the noble Baroness, Lady Anelay, when she noticed my presence at an earlier stage. She asked whether or not I would be able to say anything about the practical issues which lie behind the objectives of the Bill. At Second Reading, my noble friend the Minister emphasised how important are the provisions of the Bill, particularly those under the part with which I am dealing, and I am happy to re-emphasise that.

It has become apparent to me from my responsibilities as the superintending Minister for the Crown Prosecution Service and the Serious Fraud Office and with certain responsibilities for other prosecutors that we now face a situation where the threat of crime is global. It has increasingly become global as criminals operate across international boundaries, whether trafficking young women from the reaches of eastern Europe, smuggling drugs from South America or laundering money through every financial centre in the world.

Criminals operate across boundaries and without respect for national frontiers through international travel and through cyber space. National law enforcement agencies, on the other hand, are trammelled by rightly having to operate within our own national frontiers. While the criminals treat boundaries and frontiers with contempt, we respect them, with the consequence that when it is necessary to bring proceedings in order to investigate crime, which so frequently these days involves a foreign element, the law enforcement agencies cannot do what they would do within their own countries. They have to look for assistance from other law enforcement agencies, often through the courts or judicial authorities of other countries. If we do not keep up to date the procedures under which we are able to do so, we will not keep up to date with the criminals, who are becoming more and more sophisticated.

I have no doubt whatever that bringing up to date and modernising our procedures for obtaining help and assistance in the way laid down in this part of the Bill is absolutely key to the fight against global crime. I was glad to note how strongly the noble Baroness endorsed our objectives and expressed her desire to make the Bill as effective as possible in meeting them.

As to the amendments—the noble Baroness spoke to Amendments Nos. 21, 22 and 23—the first relates to the standard that judicial authorities have to meet before granting a request. As the noble Baroness noted, the language used in the clause replicates exactly the language in the 1990 Act. Section 3(1) of that Act refers to certain matters "appearing to" the court rather than requiring that the court be satisfied of them. It contains exactly the same test for the issuing authorities as the one in the Bill as currently drafted. We are not aware of any difficulty which would justify changing that test. So the first and second amendments—both of which would have that effect—are not acceptable.

The noble Baroness asked me whether or not the test applied is the criminal standard of appearing beyond reasonable doubt. At that stage of the process, when assistance is being sought for the purposes of a prosecution, whichever way it is, one would not expect proof beyond reasonable doubt to be necessary. The evidence would go towards a total picture which, at the completion of a prosecution, would focus on a particular criminal standard. So, in regard to Clause 7(1)(a)—does it appear to a judicial authority that an offence has been committed or that there are reasonable grounds for suspecting that an offence has been committed?—the words speak for themselves.

Amendment No. 23 seeks to place an additional requirement on requesting authorities to provide in the request information on procedures in regard to the gathering and admissibility of evidence in the requesting country—in this case the relevant part of the United Kingdom. The consequence of that amendment could be that requests are rejected for not including such information. There is no international obligation for us to provide that information and there is no particular reason to believe in any given case that the court which receives the request from abroad would need that information; that it would not be sufficiently familiar with existing procedures or unable to obtain information about them if it was in doubt.

Requesting authorities provide this information where they consider it to be appropriate and, in many cases, good practice may indicate that they would do so. But the Government do not see a need for this to be imposed as an obligation and fear serious disadvantages if it is. It would be an additional requirement, not imposed by international obligation, which could impede a proper request for assistance. We are trying to ensure that we remove unnecessary obstacles. I hope that that explanation is of some assistance to the noble Baroness.

Baroness Anelay of St Johns

I am grateful to the noble and learned Lord for that response, in particular for his survey of the difficulties that we all face.

He referred to the importance of judicial systems being able to respond as rapidly as possible and the difficulty of maintaining the currency of legislation. The 1990 Act is 13 years old and has served us reasonably well, but the noble and learned Lord referred to the problem of cyber space crime. My noble friend Lord Bridgeman will warm to this theme when we reach the parts of the Bill dealing with banking. We on these Benches are very much aware of the difficulty of combating crime which may take place in less than a second, where funds are transferred not only once, twice or thrice but a hundred times around the world from one account to another in an attempt to hide finances. We are all-square with the Government in recognising the difficulties in dealing with that kind of crime.

The noble and learned Lord referred to the trafficking of drugs and people. We shall be tabling an amendment, on which we hope the Government will look kindly, in regard to trafficking in guns. We are always concerned about that issue, but particularly at this time.

The noble and learned Lord was most helpful in his detailed response to the amendments. We have no intention of making life more difficult for the authorities except in circumstances where we believe the action they are taking could be more burdensome than necessary to individual liberty. That is not the case in this respect.

I accept totally the noble and learned Lord's response to Amendment No. 23. As he said, the amendment could lead to serious disadvantages in the system. I beg leave to withdraw Amendment No. 21.

Amendment, by leave, withdrawn.

6 p.m.

[Amendments Nos. 22 and 23 not moved.]

Baroness Anelay of St Johns moved Amendment No. 24: Page 5, line 28, leave out from beginning to second "the" in line 30.

The noble Baroness said: Amendment No. 24 relates to the requirement in subsection (7) of Clause 7 to state the relevance of the information requested when requesting information about banking transactions in connection with an investigation.

The Explanatory Notes state at paragraph 34: Subsection (7) requires that any outgoing requests for information about banking transactions made to participating countries under Article 2 of the 2001 Protocol 10 the MLAC must clearly state the relevance of the evidence to the investigation. This is in line with the conditions set out in the Protocol

That sounds like an eminently sensible precaution. There are no problems with that.

My question to the Government is this: why do the requirements of subsection (7) apply only to banking transactions and not to all requests for information? Are there good operational reasons why the relevance of the information should not be specified, perhaps in relation to terrorism or drugs investigations? We accept that that may be the case. Are the Government saying that the requirement to state the relevance of the information sought should apply only to banking transactions, or that it should apply to all transactions but that because of the requirements of the protocol to the MLAC it is necessary to state that provision on the face of the Bill for the avoidance of doubt?

Is the Minister aware of the way in which overseas authorities will approach their decisions about information sought here in the United Kingdom? Will there be a like provision on requests for information on banking transactions in overseas countries? I beg to move.

Lord Goldsmith

The Committee will be aware that subsection (7) is the new part of the clause. The rest of the clause essentially re-enacts the 1990 Act provisions. As the noble Baroness, Lady Anelay, said, subsection (7) is there because of the extension brought about by the 2001 protocol to the convention.

The position in relation to requirements for assistance outside this area of information on banking transactions is dealt with in the convention. As the Committee will know, all that the convention requires—I am reading from Article 14 of the 1959 convention—is the starting point in relation to all of these provisions. It is the "mother convention", the Council of Europe convention. That requires that requests for mutual assistance—ignoring irrelevant parts—shall indicate, the object of and reason for the request". All that is required is that it should state the object of and reason for the request as well as certain other items that do not matter for the purposes of the present discussion; whereas the protocol requires more specifically the information that is set out in subsection (7).

The first and formal answer is that it is only in the context of this kind of request for information on banking transactions that the international requirement is that information should be stated. That is an answer. I shall take it a stage further. Why have such a situation? As I understand it, the reason is because of the particular demands that such a request for information can impose. I would anticipate that it would require investigative time and expense precisely because of the potential complexity of financial banking transactions. Because of that, when the negotiators set out the protocol they decided that specific additional requirements should apply to requests for the measures to be taken. In contrast to ordinary mutual legal assistance cases, where the general requirements that I have identified apply, they considered it was appropriate that in this kind of case there should be the additional requirement.

The answer goes to the protocol. Plainly at the time it was thought about by the negotiators for good reason. I answer the noble Baroness's question in that way. We would not want to add additional requirements to the category of cases, the ordinary—if I can term them so—mutual legal assistance cases where this additional requirement does not at the moment exist. That is the reason why we resist the amendment.

Baroness Anelay of St Johns

I am grateful to the Minister for that response. He has highlighted some difficulties that I have had in eliciting the information. As he so rightly says, the mother of this is the 1959 convention. It has been a nightmare trying to track through from the original documents the various additional protocols. As I have never served as a Member of the European Parliament or indeed on the Council of Europe, I find the documents more impenetrable than our own. I am grateful to him for his assistance.

As the Minister points out, the protocol has taken a further stance on this particular category of banking issues. We shall return to the theme, but I am grateful to him for his explanation today, which has satisfied me. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 7 shall stand part of the Bill?

Lord Carlisle of Bucklow

Will the noble and learned Lord the Attorney-General be good enough to explain exactly what is the difference between a prosecuting authority and a designated prosecuting authority? Perhaps more appropriately I should ask: who are the prosecuting authorities and who are the designated prosecuting authorities?

If I understand the Bill correctly, the powers are very different. Under Clause 7 an application is made to a judicial authority. The clause states: If it appears to a judicial authority …

1. (a) that an offence has been committed or that there are reasonable grounds for suspecting that an offence has been committed, and
2. (b) that proceedings in respect of the offence have been instituted or that the offence is being investigated,

the judicial authority may request assistance under this section". In subsection (5), we find that if the prosecuting authority or the person who is the prosecuting authority who makes an application is a designated prosecuting authority, he or she does not have to apply for judicial approval but can straightaway ask for assistance. Therefore, the difference between a prosecuting authority and a designated prosecuting authority is considerable. I realise that I have looked at the matter quickly, but a similar situation occurred under the 1990 Act. Is the Crown Prosecution Service a designated prosecuting authority? Is the Serious Fraud Office a designated prosecuting authority? If not, how will people become designated? Will that happen by order of the Home Secretary? In the 1990 Act it is done by statutory instrument. How can a prosecuting authority become designated and is it intended that there should be a form of parliamentary scrutiny of the appointment of designated as against non-designated prosecuting authorities?

Lord Goldsmith

The noble Lord, Lord Carlisle, correctly picks up the distinction between the two categories. A prosecuting authority that is a designated prosecuting authority, as defined, can directly make a request for assistance. A prosecuting authority that has not been designated cannot directly make a request for assistance; it will have to come to the court and ask the court to make the order. That is the difference. The non-designated prosecuting authority will have to look to the court to assist in order that the request can be made. Therefore, it will make its application under Clause 7(1), whereas a designated prosecuting authority can—it says "may"—request assistance under the clause if the conditions are satisfied.

Who is a designated prosecuting authority? As the noble Lord rightly says, designation is by way of statutory instrument. I am pleased to find that I am the first in the list of the designated prosecuting authorities and the noble Baroness, Lady Carnegy, will be troubled that the Lord Advocate appears only at number six on the list. Other designated prosecuting authorities include the Director of Public Prosecutions and any Crown prosecutor; the director of the Serious Fraud Office; certain other people including the Commissioners of Customs and Excise; the procurator fiscal; the Attorney-General for Northern Ireland; and the Director of Public Prosecutions for Northern Ireland.

Those people are designated. If it would help I could add to the letter of my noble friend Lord Filkin and provide a list of them, although I have mentioned virtually all of them. If I add the Secretary of State for Trade and Industry, that may be the entire list. From time to time other public bodies will prosecute. The prosecutors for the Department for Work and Pensions are not designated prosecutors and therefore would have to seek assistance from the court.

Lord Carlisle of Bucklow

The vast majority will be designated.

Lord Goldsmith

As the Crown Prosecution Service in England and Wales, the Serious Fraud Office, and Customs and Excise deal with the vast majority of prosecutions, and certainly the vast majority of prosecutions that are likely to require international assistance, I believe that the noble Lord is right to suggest that the majority will be designated.

Given that this matter arose on the Question whether the clause stand part, I ask the noble Lord to withdraw his opposition to the Question.

Clause 7 agreed to.

Clause 8 [Sending requests for assistance]:

Baroness Anelay of St Johns moved Amendment No. 25: Page 5, line 44, leave out "In cases of urgency,

The noble Baroness said: In moving Amendment No. 25 I shall speak also to Amendments Nos. 26 and 27. These amendments relate to the situation envisaged by subsection (3) of Clause 8 where requests for information may, in cases of urgency, be submitted either via Interpol or any other body able to receive them under any provisions adopted under the Treaty on European Union.

Amendments Nos. 25 and 27 deal with the issue of what kinds of circumstances would be deemed to be a case of urgency under the provisions of subsection (3). These amendments invite the Government to spell out in greater detail the procedure that will be followed for determining whether a particular case is indeed urgent, and how the procedure specified in subsection (3)—namely, the submission of the request via an international body—will speed up the obtaining of the evidence in question.

Amendment No. 26 seeks to clarify which organisations are covered by the definition in paragraph (b) of subsection (3), which states: any body or person competent to receive it under any provisions adopted under the Treaty on European Union". The Explanatory Notes, at paragraph 37, refer only to Eurojust—I do not know whether that has an English or a French pronunciation so I shall say it in my own way—but the provisions of the paragraph go wider than that. To what other bodies do the Government envisage that the provisions of the paragraph may also apply, both now and in the future? As the previous Bill lasted for 13 years, this Bill should last for at least as long. I beg to move.

6.15 p.m.

Lord Goldsmith

The purpose of these provisions is to enable, in accordance with the mutual legal assistance convention, certain requests to be dealt with in a particular way. The provision on urgent requests, Clause 8(3), to which the noble Baroness, Lady Anelay, has referred, is intended to implement Article 6.4 of the convention on mutual legal assistance. That states that in urgent cases certain measures, particularly in relation to Interpol, may be used. It does not provide for routine requests to be transmitted in that way, so we do not believe that the convention would be implemented appropriately if Amendment No. 25 were to be accepted, as it would leave out the words, "In cases of urgency".

Amendment No. 26 includes a category beyond Interpol. That is the category identified as, (b) any body or person competent to receive it under any provisions adopted under the Treaty on European Union". The particular body that is envisaged at the present time is Eurojust. That is how we pronounce it; others may pronounce it differently. It may help if at this stage I say what Eurojust is and does. It is a body set up to facilitate co-operation between EU judicial authorities. It was formally established in February 2002, although I believe that it had been operating in a shadow form for some time before that. Its purpose is to improve judicial co-operation in order to combat forms of serious crime. It does that by facilitating the co-ordination of investigations and prosecutions in cases involving more than one member state. Its members are appointed by each member state: a national member, a judge or equivalent senior prosecutor. We are proud to say that at present it is chaired by the British representative. It is based in The Hague.

The purpose of the provision is that once such a body or a person—perhaps a national member of that body—is authorised to receive a request, the provisions will apply. The noble Baroness, Lady Anelay, asked about this matter. We do not want to limit the provision so that it constantly has to be amended. I suggest that that is the benefit of putting the provision in general terms rather than trying to specify a particular body.

Amendment No. 27 invites the Government to make regulations prescribing the circumstances in which a situation is or is not deemed to be a case of urgency. I suggest that that would not be a helpful provision. Like beauty, to some extent what is urgent is in the eye of the beholder. To try to specify in an exhaustive way what "urgency" is in all circumstances would deprive this provision of the flexibility and a degree of discretion that it should have. I suggest that there will be no difficulty identifying what is and what is not urgent and that to try to spell it out in regulations would be counterproductive. Those are the reasons for inviting the noble Baroness not to press Amendments Nos. 25, 26 and 27.

Baroness Anelay of St Johns

I thank the Minister for his response. It was helpful of him to say something about Eurojust. I am aware that one of the underlying difficulties in this matter is that we have to take so much on trust and we have to respect each other's systems. Eurojust plays a key part in building up that trust.

In preparing for this Committee I read the report of the European Union Committee of this House on the prospects for the Tampere special European Council. It made the point that at that stage the Home Office memorandum argued that public opinion is not yet always ready to accept that the judicial authorities and procedures of other member states are equivalent to our domestic courts, especially when our own nationals are involved. The committee agreed with that analysis. That is a difficulty. There has been an underlying suspicion of the validity of each other's procedures and Eurojust is an important body in trying to build up confidence. We need to accept that other bodies also are relevant. Today the Minister did not indicate any future bodies that may be involved.

I entirely accept what the noble and learned Lord said with regard to the amendments on urgency. There are occasions when flexibility can be acceptable even to the Opposition, and this is such a case. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 26 and 27 not moved.]

Clause 8 agreed to.

Clause 9 [Use of evidence obtained]:

Baroness Anelay of St Johns moved Amendment No. 28: Page 6, line 20, leave out "allowed" and insert "made provision for

The noble Baroness said: Amendment No. 28 concerns admissibility in the United Kingdom courts of evidence that has been obtained overseas after a request under Clause 7 of the Bill. Subsection (4) requires a court, in exercising its discretion to exclude such evidence, to have regard, (a) to whether it was possible to challenge the statement by questioning the person who made it, and (b) if proceedings have been instituted, to whether the local law allowed the parties to the proceedings to be legally represented when the evidence was being obtained". The amendment relates to the second of those criteria and tries to clarify the circumstances in which evidence may be obtained abroad in the absence of legal representatives. That is a theme to which we shall return in relation to later amendments.

It may be that the law of the country where the evidence is obtained allows a person to be legally represented, but it may not allow him or her to be represented at public expense in the same way in which he or she would have publicly funded representation in this country, where perhaps it is more readily available than elsewhere.

The provisions of the Bill replicate those of the 1990 Act. I hope that the Minister will be able to tell the Committee something of the experience of the United Kingdom authorities and the courts in relation to the admission of evidence obtained abroad in the absence of legal representation. Perhaps he would also comment on the criteria that other countries apply in deciding whether they provide legal representation in such circumstances, or simply allow for it to happen some time, somewhere, somehow, but nothing more definite than that. I beg to move.

Lord Goodhart

I support the amendment. I should have declared my interests when I first spoke in Committee. I am one of the vice-chairs of the Council of Justice, a body that has submitted briefings on the Bill, and I am also a trustee of Fair Trials Abroad, an organisation with considerable interest in matters of this kind.

I certainly feel that it is highly desirable, even essential, that where evidence is taken abroad for purposes of criminal proceedings in the United Kingdom, that evidence should be subject to cross-examination by a legal representative of the accused. A point that occurs to me is whether that legal representation should be by a lawyer who practises in the United Kingdom and who, therefore, is likely to be involved in the proceedings, or whether that representation should be undertaken by a local lawyer. Matters would be a great deal more effective if they were undertaken by a lawyer from the United Kingdom who was familiar with what will happen during the proceedings and who may well appear at the trial.

If that were so, I would assume that any legal aid provided in the United Kingdom would extend to counsel appearing at a hearing outside the United Kingdom, and so the problems about whether legal or financial assistance is to be provided by the foreign countries would not arise. On the other hand, if it is envisaged—in my view this would be a good deal less satisfactory—that a local lawyer should participate in the hearing of the evidence, I suggest that it would be essential that the country should not only allow but also facilitate the provision of legal assistance.

Lord Goldsmith

I am grateful for the questions and comments raised by the noble Baroness, Lady Anelay, and by the noble Lord, Lord Goodhart. I want to remind the Committee of what this provision is about. Clause 9 deals with a situation in which Clause 7 has operated. That is to say that there is a request process for evidence to be obtained abroad for use in some form of proceedings in the United Kingdom. There is a strong likelihood that the evidence that is being obtained is not the defendant's evidence. The defendant's opportunity to give evidence will take place within the English proceedings when he will be represented in accordance with the ordinary rules, with the benefit of legal aid should he qualify.

What is more, as matters stand at present, the strong likelihood is that the evidence that is obtained abroad will not be directly admissible in that form in any event. The evidence will be obtained, and if it is evidence that it is important to put to the defendant, the likelihood is that some way will have to be found of doing that. The most likely way is to try to get that person to give evidence in the United Kingdom or via the video link procedures mentioned in the Bill. Whether such a person comes to the United Kingdom to give evidence or is examined via a video link, I understand that that person's legal representative would be an English legal representative or a Scottish legal representative who would be in a position to ask questions. Therefore all the proper safeguards would be met.

I understand that there may be exceptional circumstances in which legal aid for a defendant in proceedings in this jurisdiction may extend to providing certain assistance outside the country, perhaps in circumstances when some evidence is being obtained in a foreign court. Generally speaking, however, the procedure will be as I believe I have outlined.

6.30 p.m.

Lord Goodhart

I am grateful to the noble and learned Lord for giving way. Perhaps I may ask him to note that under Clause 7(2): The assistance that may be requested under this section is assistance in obtaining outside the United Kingdom any evidence specified in the request for use in the proceedings or investigation". I can understand that evidence may be used in the investigation which will not, in itself, be used in the proceedings. But clearly this contemplates that the evidence may be used in the proceedings.

Lord Goldsmith

Indeed, it does. But equally I invite the noble Lord to consider the circumstances in which evidence would be admissible when obtained abroad without there being a form of opportunity for cross-examination directly in an English trial. I am helpfully told that in the recent Wickes trial—the long-running trial which Members of the Committee will have read about—the defence counsel went to Canada when a witness gave evidence by video link. Because of the circumstances of the case, I do not believe that the defendant was legally aided, but the principle may be the same. I may be able to provide further information on this matter, but perhaps the Committee will consider what I have said and take a view as to whether more information would be helpful.

Baroness Anelay of St Johns

I am grateful to the noble Lord, Lord Goodhart, for his intervention. He has raised more matters on which I need to ask questions between now and Report so that I am clear in my mind. I believe that it would be helpful for the noble and learned Lord the Attorney-General to stand back and look at the application of legal representation in this particular circumstance.

The noble and learned Lord quoted the Wickes trial and said that it was particularly analogous to this issue. It may relate to the seriousness of the offences committed, but in the Wickes trial that was not proved. The noble and learned Lord may look rather ruefully in this case.

Certainly the Minister has given me cause to consider the matter between now and Report. It may be more helpful if I contact the Bill team and raise one or two issues with them. Following discussion, we may be able to avoid tabling an amendment on Report I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 29: Page 6, line 22, at end insert— (4A) The Lord Chancellor shall arrange for training in the law and procedure of such countries other than the United Kingdom as he considers appropriate to be given to judges and magistrates before they sit in proceedings where evidence obtained pursuant to a request for assistance under section 7 is to be adduced.

The noble Baroness said: The monologue continues at this stage. This amendment would require that training in the law of procedure of appropriate countries is given to judges and magistrates before they sit in proceedings where evidence obtained pursuant to a request under Clause 7 of the Bill is introduced. I say that somewhat tongue-in-cheek; I seek merely to elicit information about current practice.

Members of the Committee will recall the debate on a similar amendment on the Floor of the House on 23rd July, as reported at col. 289 of the Official Report, in respect of a new offence—introduced, yet again, in the Nationality, Immigration and Asylum Act—of contravening the immigration law of a member state. At that time, when explaining his reasons for rejecting my amendment, the noble Lord, Lord Filkin, said: The Government do not expect judges and magistrates to be familiar with the immigration law of all other member states. New Section 25 does not require that of them. It provides for the government of the member state concerned to certify what the law is in that state and for the certificate to be conclusive as to the matters certified for the purposes of proceedings in the UK".— [Official Report, 23/7/02; col. 291.] Basically, in English, that seemed to me to say, "They tell us. If we don't accept it, tough luck".

A similar procedure in respect of certification is to be found in Clause 14(3), but it is not in Clause 9. Therefore, no certification process is in play here and judges and magistrates will be able to look at the provisions of the local law in detail in deciding whether to exercise their discretion to exclude the evidence obtained pursuant to a request under Clause 7. Again, these provisions in the Bill substantially replicate those of the 1990 Act.

Therefore, I should be grateful if the Minister could give an explanation of how the courts have acted in considering the provisions of other countries' domestic law in this context over the past decade; that is, what the training has been and whether or not it has been found necessary to carry out arty training for judges and magistrates in this regard. I beg to move.

Lord Clinton-Davis

I do not understand the rationale behind the amendment. It is not as though magistrates and others who are concerned are unfamiliar with procedures abroad. Of course they are not, but they are not required to do anything about it. They are not required to go through the complex procedures that the noble Baroness has adduced. Frankly, I hesitate to say this but I do not believe that the noble Baroness knows what she is talking about.

Lord Goldsmith

Up until the last point, I had a great deal of sympathy with what the noble Lord, Lord Clinton-Davis, said. I would approach the noble Baroness's amendment as follows. Many provisions of this kind of legislation will require some degree of guidance and some degree of training. Perhaps I may pay tribute to the way that the Lord Chancellor's Department and the Judicial Studies Board frequently take on new legislation, recognise the training requirements for magistrates and for more senior judges and do an enormously important and valuable job. I have no doubt that, whatever training is required and whichever provision of the Bill we are dealing with, the necessary steps will be taken without any requirement for it to appear on the face of the Bill.

As the noble Baroness said, these provisions replicate those in the 1990 Act. Therefore, there may be no need for additional training, and it may not matter whether that is because everything is well understood or because of the reason given by the noble Lord, Lord Clinton-Davis.

I am also told that Home Office circulars will be drafted to deal with the procedures required by the new Act, if it becomes law. They will provide an additional source of information for those who have to operate them. I hope that those explanations provide some assurance for the noble Baroness as to the requirement.

Lord Clinton-Davis

I admire and love the noble Baroness enormously. I should not have said what I did. I am sure that she does know what she is talking about, but she should not have introduced this amendment.

Baroness Anelay of St Johns

As always, I am very grateful for the intervention of the noble Lord, Lord Clinton-Davis. He and I are good sparring partners from opposite sides of the House.

My concern is that sometimes, when reading the Bill, other people find themselves in even greater difficulty than we do when trying to interpret what is happening. Also, the underlying theme that I have taken throughout is that, on many occasions, we now find that our courts are unable to make decisions; decisions are being made for them. Perhaps we are hinting at that here.

Certainly this is a serious amendment from the point of view of highlighting the difficulty that courts face in taking decisions where they must have regard to procedures that may have taken place overseas. It is important for courts to ensure that they do not try to make the wrong decision where they have discretion.

I am grateful for the Minister's comments about training. I certainly agree that the Lord Chancellor's Department has set up training where necessary. It is important that there is a proper budget for that. But, frankly, more important in relation to this amendment is the noble and learned Lord's assurance with regard to the Home Office circulars being drafted for overseas procedures. I am aware that not every single court around the country will be involved in that. Therefore, there will be specialisation, as there is in extradition matters directed at particular Bow Street magistrates. As the noble Lord, Lord Clinton-Davis, will be relieved to hear, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 agreed to.

Baroness Anelay of St Johns moved Amendment No. 30: After Clause 9, insert the following new clause—

"FREEZING ORDERS The Secretary of State shall appoint an independent person to make an annual report on the use of freezing orders and shall lay that report before Parliament when he receives it.

The noble Baroness said: This is a "special" for the noble Lord, Lord Bassam of Brighton. The amendment would require the Secretary of State to appoint an independent person to make an annual report to Parliament on the use of freezing orders. I am very conscious of the words of the noble Lord, Lord Bassam, on 31st October last year. He said: My Lords, it sometimes seems that if we are stuck for an amendment we call for an annual report".—[Official Report, 31/ 10/02; col. 405.] Yet again, I promise that I am not stuck for one now. I could find many more but that would mean that the monologue would go on for ever and a day, and even I cannot take that.

In moving the amendment, I am conscious that the Government are introducing a new provision into United Kingdom law, the use of which should be considered in the light of operational experience as well as developments throughout the European Union once the Bill becomes an Act. At Second Reading, the noble Lord, Lord Filkin, said: The Bill will also introduce mutual recognition of orders to freeze evidence, as provided for by the EU's draft framework decision on the execution of orders freezing evidence. That is a major step forward that will significantly speed up the process of securing valuable evidence. Mutual recognition takes MLA one step further by recognising directly, as between EU member states, a request made by a court, so enabling a direct response with the minimum of formality".—[Official Report, 2/12/02; col. 973.]

Therefore, can the Government say how often they expect the powers contained in the Bill in relation to those domestic and overseas freezing orders to be used and whether they believe that the definitions used in the Bill, particularly the use of terms such as "substantial value" and, likely to be admissible in evidence", in Clause 10(3) and the use of the term, any other authority in the country which appears to the territorial authority to have the function of making such orders", in Clause 20(3) will require further consideration in the light of operational experience? Can the Minister tell the Committee the status of the draft framework decision and at what stage it is likely to become a decision rather than a draft decision? We need to be able to key into that kind of timetabling during our debates on the Bill. Is further legislation on these matters at the European level expected in the future or will the draft framework decision be the final word on the issue?

As I said, the provisions in the Bill on freezing orders are a new and potentially important element in legislation. It is important that we get the matter right. When we introduce these provisions into United Kingdom domestic law—particularly those that depend on the actions of authorities in other countries—it is important that they are kept under scrutiny in order to ensure that they operate for the benefit of the United Kingdom and its citizens.

Therefore, although I accept that on this occasion calling for an annual report in the amendment—something that in future I shall always refer to as the "Bassam device"—is a device, I seriously ask what kind of scrutiny there will be in future. I beg to move.

Lord Clinton-Davis

Is there anything in any other member state of the European Union which resembles this provision?

6.45 p.m.

Lord Goldsmith

Perhaps the Committee will allow me to deal with the amendment and, in the course of that, to try to deal with a number of the questions raised, including the last one raised by the noble Lord, Lord Clinton-Davis.

The amendment would require the Secretary of State to appoint an independent person to report to him on the use of freezing orders, and it would require the Secretary of State to lay that report before Parliament. The Government's view is that such an obligation is unnecessary and, indeed, that it would create unnecessary bureaucracy, impose a burden on the Secretary of State and the department and would not produce any significant benefit.

Why do I say, "would not produce any significant benefit"? First, among the issues to which the noble Baroness referred is the question of whether or not it is envisaged that there would be difficulty with definitions such as "substantial value" and whether something is "likely" to have substantial value. Those are well-tested and well-tried expressions because they appear in the 1990 Act. Therefore, I see no reason why we should anticipate any difficulty in their application under the new hat in this new provision.

How often will there be orders? I cannot answer that question at present. It is possible that others will have a view. We shall see when they start to work. If they seem to work well, then no doubt the applications for them will increase because they will be a useful tool in the fight against crime. These orders achieve something that the traditional mutual legal assistance route can also achieve, although by a route which we do not consider to be as effective or speedy. Therefore, it may well be that the result will be an increase in the number of mutual legal assistance orders sought because, by being quick, they are being effective.

However, even without the need for an independent report, it will be possible for MPs and Members of the House of Lords to obtain information by tabling Parliamentary Questions. Therefore, if there is any concern about its use, that will provide a proper and existing method of scrutiny. That is perhaps a rather longer way of saying what my noble friend Lord Bassam said on another occasion.

I was also asked about the status of the framework decision. The framework decision on the freezing of assets and evidence has still not been adopted but I am told that it—and, in particular, the accompanying certificate—is in the final stages. It is hoped that it will be adopted at the earliest opportunity during the term of the Greek presidency.

The noble Lord, Lord Clinton-Davis, asked whether similar procedures exist in other countries. When the framework—

Lord Clinton-Davis

I asked whether there are similar procedures to the amendment.

Lord Goldsmith

If I have correctly understood the question put by the noble Lord, Lord Clinton-Davis, I cannot say whether other countries require an annual report on the use of freezing orders to be placed before Parliament. I was going to say—perhaps I may complete this point and the noble Lord can then intervene to make clear his question—that when the framework decision is in place and when it has been adopted, other countries will set up the procedures for the basic provision; that is, for the freezing orders to be both sought and executed.

Lord Clinton-Davis

I should be very surprised if the procedures which have been adumbrated by the noble Baroness are copied in any other jurisdiction whatever. I know that my noble and learned friend will write to me if I am wrong about that and particularly if anyone has adopted the procedures outlined by the noble Baroness. But, as I said previously, I doubt whether that is the case.

Baroness Carnegy of Lour

When the framework decision is made, does the noble and learned Lord think it possible that the Bill may be wrong? The Government are obviously ahead of the game on this matter. He indicated that thus far no other country had begun legislating in this way, or did I misunderstand?

Lord Goldsmith

My understanding is that, so far as concerns evidence, the provisions in relation to freezing orders are well set out in the draft. There is no reason to think that there will be any difficulty in that respect. Indeed, I can go further than that. The substance has been agreed and it is the only thing outstanding. I was rather more cautious in my words previously. The only matter outstanding in terms of negotiation is the accompanying certificate.

Lord Goodhart

Before the noble and learned Lord sits down, can he tell us, either now or later, what information will be contained in the annually published judicial statistics in terms of orders requested and orders made and a breakdown of the other countries concerned?

Lord Goldsmith

I certainly cannot answer that question at present but I shall ensure that inquiries are made. If a helpful answer can be given, the noble Lord will be told by letter, as will other Members of the Committee. Whatever the answer is, I shall ensure that his query is passed on. It is possible that a decision will not be made until rather later when the orders are in place and being used.

Baroness Anelay of St Johns

Again, I am grateful to the Minister for his response. As I said at the beginning, the amendment was a device in order to ask questions about what kind of scrutiny there would be. I can reassure the noble Lord, Lord Clinton-Davis, that I am not in the business of carrying out gold-plating here. This provision is not applied overseas. On the other hand, there may be times when we need to have parliamentary scrutiny in position which would not be possible overseas but which would be entirely proper here. I accept that on this occasion there may be other, far better ways of achieving that scrutiny than by means of an annual report.

I was grateful for the intervention of the noble Lord, Lord Goodhart, and I shall certainly consider the issue of judicial statistics. That is a very practical route to pursue. I am also grateful to my noble friend Lady Carnegy for her intervention. It meant that the Minister was able to give greater clarity on the issue of the draft framework decision. I believe we shall need to look at that matter further.

Like all Ministers, the noble and learned Lord was keen to assure us that, in order to hold the Government to account, we need only to table a few Written Questions. That is one of the battery of weapons that we have and it is one that I certainly do not underestimate. Particularly in this House, it has brought about some very fruitful and careful responses from the Government. I give my word that I shall try to find the energy and the time to ensure that we continue to hold the Government to account wherever possible. We are always sure to realise too late when we have left great black holes that should have been filled. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 [Domestic freezing orders]:

[Amendment No. 31 not moved.]

Baroness Anelay of St Johns moved Amendment No. 32: Page 7, line 1, leave out "is likely to" and insert "will

The noble Baroness said: In moving the amendment, I want to explain to the Committee that I did not believe it was appropriate to spend time on Amendment No. 31 as the Minister had already obliquely made some response to it. I did not believe that it would be right to take up more time.

Amendment No. 32 raises the question of admissibility of evidence at a trial. How will the court approach the issue of deciding whether or not a particular piece of evidence is "likely" to be admissible, given the high degree of discretion which a trial court enjoys in deciding whether or not a piece of evidence should be admitted? Again, what tests will be applied and what standard of proof is involved?

I shall leave the proper explanation of Amendment No. 33 to the noble Lord, Lord Dholakia, but it may be helpful if I make a brief comment on it now to save me having to return to it later. As one reads the amendment, it looks completely acceptable. How could one object to it? It appears to be absolutely right in principle.

However, as I understand the situation, a domestic freezing order that is incompatible with one or more of the ECHR rights could not, in any event, lawfully be made by a UK court—I hope that that is the case—as the court making the order would be acting unlawfully under Section 6 of the Human Rights Act and would not be able to use the defence under subsection (2) of that section that it could not have acted differently because Clause 10(1) allows the court a discretion by the use of the word "may" in line 38 rather than "shall". If I have that wrong, I shall back the noble Lord, Lord Dholakia, to the hilt, but I hope that this is one small matter that I have understood. I beg to move.

Lord Goodhart

I shall speak to Amendment No. 33, which, as the noble Baroness has just said, is grouped with Amendment No. 32 and is in the names of my noble friend Lord Dholakia and myself.

I start by saying that I am not altogether happy with the use of the word "domestic" freezing order because it seems to me rather confusing. It may be easier to say that an order is a domestic freezing order because it applies to evidence in this country. In fact, that is not what it does. As we know, a domestic freezing order is one made by a court in the United Kingdom for the protection of evidence in a participating country.

The reason that we tabled the amendment was largely because of the report of the Joint Committee on Human Rights. A freezing order is one which deprives a person who is entitled to the benefit of property of the right to make use of it. The Joint Committee on Human Rights said in its First Report of the present Session that: The Bill engages a good many rights. The following seem to us to be in particular need of justification on human rights grounds— —orders to freeze evidence under Chapter 2 of Part 1 engage the right to the peaceful enjoyment of possessions under Article 1 of … the ECHR … and the right to respect for private and family life, home and correspondence under ECHR Article 8. I note that in relation to overseas freezing orders, which are made by an overseas court for the freezing of property in the United Kingdom, a specific condition is attached under Clause 21(7) that giving effect to the order must not be incompatible with a convention right. No similar proviso is attached to Clause 10, and I simply seek confirmation of why it is not.

I suspect that the noble Baroness, Lady Anelay, is right and that the Government take the view that that is implicit because a requirement of the Human Rights Act that statutes must be construed wherever possible as compliant with the Act would cover this situation. However, I would like confirmation of that and also an explanation as to why Clause 21(7) is needed. Would there not be a similar implication that an order made by an overseas court cannot be given effect to in this country where it is inconsistent with the Human Rights Act?

Lord Goldsmith

I want to deal separately with the two amendments that have been spoken to. Amendment No. 32 would require that the condition for the order should be that the evidence must be shown to be admissible in the United Kingdom rather than that it would be likely to be admissible. This simply tracks precisely the same provision in relation to search warrants in the United Kingdom as required by PACE—the Police and Criminal Evidence Act. That, as the Committee will be well aware, sets out the safeguards which it has been thought are appropriate for intrusion into privacy, into people's homes or into the use of their property where domestic proceedings are at issue. To obtain a search warrant in the United Kingdom, Section 8(1)(c) of PACE, when read with Section 8(4), requires simply that the material is likely to be relevant evidence, and that implies an issue of admissibility. I would suggest that to require it to be demonstrated in front of a court which does not have the whole of the material in front of it that the material will be admissible is imposing far too high a burden and requirement.

As many if not all Committee members will know, questions of admissibility sometimes depend on what other evidence is available and on what the issues turn out to be. In those circumstances, to impose a requirement that it be shown that the evidence is admissible would be too high a burden. So in the Government's view there is no reason to go beyond the similar requirement under PACE in relation to United Kingdom search warrants. That is why we resist Amendment No. 32.

I turn to Amendment No. 33, to which the noble Lord, Lord Goodhart, has spoken. I make two initial comments. First, the noble Baroness, Lady Anelay, is right to say that Section 6(1) of the Human Rights Act imposes an obligation on courts to comply with the convention rights. Secondly, in the light of that, I am not sure what it is that the noble Lord, Lord Goodhart, is worried about. We are talking about a form of order to be sought in circumstances in which particular conditions apply. Those conditions are that there are proceedings or at least investigations into a listed offence, which is a serious offence; and that there are reasonable grounds to believe that there is evidence of substantial value in relation to that investigation or prosecution which is likely to be admissible and not subject to legal privilege. I would suggest that, in those circumstances, just as with the United Kingdom search warrant, the intrusion on privacy and property is likely to be entirely justified by the requirement that it be used for the purposes of prosecution for serious crime.

So I am not sure what concern the noble Lord, Lord Goodhart, has in mind. We are talking about countries that are themselves signatories to the European Convention on Human Rights. The foreign authority asked to execute the order will itself have to give consideration in the same way as the United Kingdom court would be able to do. That relates also to the point that the noble Lord raised on Clause 21(7), where it is manifestly clear that to give effect to an overseas order would be a breach of ECHR obligations.

7 p.m.

Lord Goodhart

There is nothing in the Act, is there, that specifies that a participating country must subscribe to the European Convention on Human Rights? It can be any country designated by an order made by the Secretary of State and could include countries that are not even European countries.

Lord Goldsmith

Under the definition of "participating country" in Clause 52, the only participating countries that would be designated without a further order would be those countries that are member states on the day appointed for the commencement of this provision, and all of those are signatories to the European Convention on Human Rights.

Lord Goodhart

I entirely accept that. Of course, the power in Clause 52(2)(b) is to add, any other country designated by an order made by the Secretary of State".

Lord Goldsmith

As and when it appears to the Secretary of State appropriate to designate any other country, I would anticipate that the question as to the legal system and the safeguards in that other country would be matters to which the Secretary of State would have regard and to which others may wish to draw attention at the time that the order is proposed. I shall give way to the noble Lord, Lord Carlisle, if he wishes to intervene.

Lord Carlisle of Bucklow

If I ask this question now. I will not have to ask it during the debate on the Question that the clause stand part. How is the domestic freezing order enforced?

Lord Goldsmith

As the noble Lord, Lord Goodhart, said, there are two forms of order. There is the situation in which an order is made by a court in the United Kingdom and is then executed abroad, and there is the converse case. The Bill provides a speedy procedure for freezing evidence. For example, it may come to the notice of police officers investigating an actual robbery or a conspiracy to rob a bank that important evidence, in the form of firearms, is in a flat in Brussels. The Bill provides a procedure under which law enforcement officials can go to an English, Scottish or Northern Irish court and ask for an order to freeze that evidence.

The order will identify the evidence and will be transmitted speedily to the authorities in the other country, who will execute it, subject to the conditions set down. They will then hold the material until a request for mutual legal assistance is obtained and is granted. The evidence has been frozen, as it has been possible to move quickly to avoid allowing it to disappear. The mutual legal assistance provisions will operate so that the evidence can be transmitted to the other country.

Lord Carlisle of Bucklow

The power to execute the order depends on the actions of the other country. Presumably, they will be required to have domestic legislation that provides for that. At the moment, none of them has.

Lord Goldsmith

None of them has it at the moment because the framework decision is not yet a decision, as has rightly been pointed out. Once it is, there will be an obligation on them to put in place domestic procedures that will give effect to the framework decision. The noble Lord is right to say that, in those circumstances, it would be for them to execute. As I said, all the countries concerned subscribe to the European Convention on Human Rights.

In any event, those are the reasons why, without inviting any further interventions, I invite the noble Baroness and, in due course, the noble Lord to withdraw their amendments.

Lord Dholakia

I wanted to probe that point. The noble Lord, Lord Carlisle of Bucklow, asked about reciprocal arrangements, with particular regard to Clause 52(2), which allows the Secretary of State to designate other countries by order. The noble Lord, Lord Filkin, said that he would take that into account in a letter that he would send us.

The noble and learned Lord just said that the Secretary of State would take the human rights convention into account before making such an order. Am I right? Is that what he meant—or implied? If it is, we do not need to worry about countries such as Zimbabwe and others, as the convention would not apply in any case. Are there some complications? Can the noble and learned Lord explain what he has in mind?

Lord Goldsmith

I should not be taken as giving any undertakings on behalf of the Secretary of State. I am not in a position to do that. It does not mean anything more than that I think that it would need to be considered. I was saying that, under the terms of the Bill, certain countries would stand as participating countries because they are members of the European Union when the provisions come into force. They will have to be—they are—subscribers to the European Convention on Human Rights.

All that I said in addition to that was that, in the event that further countries were to be designated, it would be open to anybody to make a point about the standards that applied in that country when the Secretary of State put forward a proposal for designation. It is not necessary, at this stage, to speculate on the considerations that the Secretary of State will have in mind. That matter will be considered at that stage.

Baroness Anelay of St Johns

I am grateful to the Minister for his response and for putting on record the fact that the definition of "likely" simply tracks the provisions of Sections 8(1)(c) and 8(4) of PACE, with regard to the UK search warrant. Like my noble friend Lady Seccombe, I went through agonising training on PACE as a magistrate. I shall look back on my training notes to see whether I still understand that part of it. That part was not in the Explanatory Notes, and it was important that the Minister was able to put that on the record.

The Minister's answer to the noble Lord, Lord Goodhart, made me think that we may find ourselves examining even more carefully the order-making power to extend the list of countries beyond "participating countries" when we come to that part of the Bill. The noble and learned Lord sought to reassure the Committee by saying that there were protections and that, when the list was extended, the Secretary of State would take into account the human rights position in those countries. Gosh! It would be nice and easy to tick a box and think that that was it. We will have to consider that order-making power carefully.

I am satisfied with the Minister's answers on Amendment No. 32, and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendment No. 33 not moved.]

Baroness Anelay of St Johns moved Amendment No. 34: Page 7, line 7, leave out "any judge or justice of the peace" and insert "a circuit judge

The noble Baroness said: Amendment No. 34 stands in my name and that of the noble Lords, Lord Goodhart and Lord Dholakia. I thank the Law Society for its assistance and briefing.

The underlying objective of the amendment is to ensure that the procedure in Clause 10 is consistent with existing practice. I am advised by the Law Society that applications for freezing orders to take effect in the domestic jurisdiction are usually heard by a circuit judge. The clause allows for applications for freezing orders to take effect in other jurisdictions to be heard by any judicial authority, including magistrates. That could mean, for example, that an application could be made on a Friday afternoon—I am not sure how many magistrates' courts outside the metropolitan areas sit on Friday afternoon—in an area unused to cases involving other jurisdictions for a freezing order to be made in relation to a journalist's notebook held, perhaps, in Paris. The Law Society may be referring to a particular case.

It is not appropriate that an unfamiliar application that involves complex proprietorial rights should be put before an inexperienced Bench. It would be more appropriate for any evidence defined as excluded evidence or that would otherwise come under the special procedure rules to be dealt with by the appropriate judicial authority in the United Kingdom. On principle, our procedures should require as much rigour in applications relating to overseas jurisdictions as would be required in the domestic jurisdiction. I beg to move.

Lord Goodhart

The amendment also stands in my name and that of my noble friend. We support it for the reasons that the noble Baroness, Lady Anelay of St Johns, gave.

A freezing order is a significant order, and it may raise difficult issues. As we know, it may give rise to problems under the Human Rights Act 1998. Such orders are unlikely to be made every day, unlike search warrants, which are made frequently. By longstanding practice, search warrants are made by justices of the peace. It is appropriate that freezing orders should be made only by circuit judges and not by magistrates.

7.15 p.m.

Lord Clinton-Davis

I do not automatically disagree with the noble Lord, Lord Goodhart. I am surprised that, on this occasion, when the Government are widening the provision relating to judges to include a circuit judge, the noble Lord is attacking the Government's proposal.

Magistrates would invariably be advised by a legally qualified clerk. That is a useful provision. It does not follow automatically, but, as the noble Lord said, if such applications are infrequent, it will almost invariably be the case that a legally qualified clerk would be in post.

Lord Goodhart

The Bill does not say that the judicial authority is a magistrates' court; it says that it is a justice of the peace. The decision can be made on an application made over the telephone to a magistrate. The application need not be made in court, in the presence of the justice's clerk.

Lord Clinton-Davis

That is right, but, as a matter of practice, that is unlikely to be the case. My wife was a justice of the peace. If, in her view, she was not qualified to deal with a matter, she would say so.

Lord Carlisle of Bucklow

The point is that the orders are likely to be requested at short notice. It is unlikely that anyone would wish to convene a court sitting with a clerk to hear the application. It is more likely that people will go to a judge in chambers or, as the noble Lord, Lord Goodhart, said, make an immediate appeal to an individual justice.

Lord Clinton-Davis

Of course it is, but the noble Lord, Lord Goodhart, is saying that the issue should be dealt with by a circuit judge and only by a circuit judge. That is wrong. It is possible for a member of the higher judiciary to deal with the issue. If a matter is difficult and complex, it is open to the magistrate to say, "I will get some further advice" or, "I think that you ought to go somewhere else".

Admittedly, the issue should be further qualified' y my noble and learned friend, and I am sure that he will do that. However, we must recognise the way in which magistrates work. When a complex issue is referred to them, they can say, "It is beyond me. I cannot do this". Or, they might say, "Hold on, I will take advice about this". They might suggest that the person concerned make an application to another judicial authority. Having said all that, and while I recognise that the noble and learned Lord is trying to do the right thing—

Lord Goodhart

I am not learned.

Lord Clinton-Davis

I am sorry; I should never have referred to the noble Lord as learned. Both of us wish to achieve a situation that is practicable and desirable from the applicant's point of view. I am sure that my noble and learned friend Lord Goldsmith will apprehend this.

Baroness Carnegy of Lour

It is good to hear the noble Lord from his side of the Committee stick up for magistrates. That warms the cockles of my heart. If the matter involves guns in Brussels that must be frozen instantly otherwise disaster will occur, it is unacceptable for magistrates to say that they need to get advice, or to refer the matter to the Crown Court the next day. My noble friend's amendment addresses a good point. We shall hear what the noble and learned Lord has to say.

Lord Goldsmith

At the moment, if a police officer believes that there are guns in Birmingham, Bradford or Halifax, he can obtain a search warrant from a justice of the peace. We, rightly, take the view that justices of the peace are well able, through long practice and experience, properly to grant such search warrants. That is all the order does. It happens to be a search warrant in a different country. But, if noble Lords consider the terms of the domestic freezing order, as outlined in subsection (3), they will see that it is granted in circumstances where evidence,

1. "(a) is on premises specified in the application in the participating country,
2. (b) is likely to be of substantial value … to the proceedings or investigation",

of a serious offence; where evidence,

1. "(c) is likely to be admissible in evidence at a trial for the offence, and
2. (d) does not consist of or include items subject to legal privilege".

For all intents and purposes, it is precisely the same as a search warrant. It tracks the very language used in PACE, which, noble Lords will note, does not refer to a circuit judge, a High Court judge or a Court of Appeal judge, but a justice of the peace. Section 8 of PACE provides that a search warrant may be issued: If on an application made by a constable a justice of the peace is satisfied that there are reasonable grounds for believing—

1. (a) that a serious arrestable offence has been committed; and
2. (b) that there is material on premises specified in the application which is likely to be of substantial value … to the investigation of the offence; and
3. (c) that the material is likely to be relevant evidence".

And so it continues. The Government's view is that magistrates are entirely fit and able to grant such orders. There is no reason why we should apply a different process to orders executed across a frontier.

Lord Goodhart

Does the noble and learned Lord not agree that a search warrant simply entitles someone to go on to premises to see what is there? One cannot, simply by virtue of obtaining a search warrant, seize any property found on the premises; there must be some other ground for doing that. On the other hand, a domestic freezing order protects evidence in the participating country pending its transfer to the United Kingdom. Does it not, therefore, go beyond the scope of a mere search warrant, given that it entitles, or requires, the requested country to detain the property that is the subject of a freezing order, and to send it to the United Kingdom?

Lord Goldsmith

With respect, the noble Lord is wrong. Section 8(2) of PACE provides that a constable may seize and retain anything for which a search has been authorised under a search warrant. There would be little point in a search warrant if a constable was not able to do that. I do not believe that there is any difference. If I am wrong I shall write to the noble Lord.

We have got into this difficulty because of a confusion instigated by the Law Society talking about an entirely different kind of procedure. Freezing orders, which used to be called Mareva injunctions, concern the freezing of assets and are entirely different from search warrants. It is quite right that magistrates should not grant that kind of order. It has nothing to do with magistrates and involves a completely different procedure. That may be the cause of the confusion.

The basic point is that in order to be able to operate effectively and quickly—which we all agree is the objective of this legislation—it is entirely appropriate to entrust this power to the well trusted justices of the peace who have been exercising exactly the same kinds of powers, albeit for searches and seizures domestically.

Baroness Anelay of St Johns

I thank the noble and learned Lord for that response. We have had an interesting and important debate in regard to the role of magistrates which may perhaps be echoed in other Bills. Having been a lay magistrate, I should say that the noble and learned Lord was right to underline the valuable role that magistrates perform.

The noble Lord, Lord Goodhart, was right to raise the issue of precisely what this kind of freezing order may be. The noble and learned Lord the Minister suggested that the Law Society may have become confused with a Mareva injunction. That may well be the case. It is a matter about which the noble Lord, Lord Goodhart, and I will need to speak further with the Law Society. I suspect that it has a rather more fundamental objection and that it has been looking more closely at what the noble Lord, Lord Goodhart, said about this being a one-stage application as far as magistrates are concerned and that they are giving the automatic power to freeze at the same time.

I am also grateful to the noble Lord, Lord Clinton-Davis, for pointing out the way in which magistrates carry out their duties very carefully. Although a clerk is on duty at all times of the day and night and makes his responses absolutely to the letter, it may well be that the magistrate may not in all circumstances contact him. I know that whenever I was approached for a search warrant or any order involving family matters, my first port of call was to contact the clerk of the court. Indeed, that was point number one on the bullet list you were given to follow as a lay magistrate. Training should ensure that one does that, but it may not always be the case.

I echo what the noble Lord, Lord Clinton-Davis, said. We need to ensure that what we achieve with this is practicable and desirable from the applicant's point of view.

Perhaps the noble and learned Lord will be able to respond to one final question, which has occurred to me as a direct result of the way in which he has addressed us today. On page 7, subsection (5)(a) states, in relation to England and Wales, any judge or justice of the peace", which I have sought to amend. In drafting the Bill, have the Government had regard to the provisions of the Courts Bill which is about to start its progress through this House next Monday? The noble and learned Lord is aware far more than I that the provisions of that Bill introduce a new definition in regard to judges: that is that judges—hey presto—will all become magistrates; they will become justices of the peace. Is it the Government's intention that when the Courts Bill has been passed—I do not know whether that will be before or after this one—this Bill will need to be redrafted so that it simply refers to "justices of the peace" because all judges will be justices of the peace and there may be duplication? Perhaps the noble and learned Lord will take advice and give me a spot answer.

Lord Goldsmith

I am not going to give a spot answer. We will need to check the situation. It would be a remarkable result if that were the position. We shall check it and make sure that the noble Baroness is provided with an answer.

Baroness Anelay of St Johns

I am grateful. As my noble friends and I are to launch ourselves into the Courts Bill next week the issue is very much at the forefront of our minds. I am grateful to the Minister for agreeing to look at the matter and come back to us. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 agreed to.

Lord Bassam of Brighton

This may be a convenient moment for the Committee to adjourn until Wednesday, 22nd January at 3.30 p.m.

The Deputy Chairman of Committees (Lord Lyell)

The Committee stands adjourned until Wednesday, 22nd January 2003 at 3.30 p.m.

The Committee adjourned at half-past seven o'clock.