The Committee met at a quarter before four of the clock.

HL Deb 23 January 2003 vol 643 cc61-116GC

[The Deputy Chairman of Committees (Lord Skelmersdale) in the Chair.]

Clause 11 [Sending freezing orders]:

Baroness Anelay of St Johns moved Amendment No. 35: Page 7, line 14, after "State" insert "within 14 working days

The noble Baroness said: This amendment, which stands in my name and that of the noble Lord, Lord Dholakia, is a probing amendment—the fact that we are in Grand Committee means that amendments can be nothing else. However, as was apparent in our previous sitting, if we had considered such amendments on the Floor of the House, they would still have remained only probing amendments. Most but not all of the amendments that we shall consider today will be probing amendments.

The amendment would establish a timetable for the forwarding of freezing orders. The amendment is intended to probe the level of staffing at the Central Authority that the Government are putting in place to ensure that the authority will be able to respond with due expedition to requests made under the Bill.

Can the noble and learned Lord the Minister give the Committee an idea of what the current level of staffing is at the Central Authority? In particular, how many qualified lawyers are there on the staff? Will he confirm that some, if not all, of the incoming requests involve the Home Office reaching a decision on law rather than on procedure? Will the Minister assist the Committee by giving us an idea of how many applications for judicial review over the past two years were dealt with by staff at the Central Authority? How much of their time was taken up in such work?

We are trying to secure a picture of what the Central Authority staffing currently is and whether the Government are satisfied that that level of staffing is sufficient to do the extra work that will be involved as a result of the Bill; if not, what are their plans? I beg to move.

Lord Clinton-Davis

I am rather concerned that the amendment is not practical, because the system that we envisage is completely new. It is important that the Attorney-General, who I believe will respond to this amendment, should indicate within what time the department will be able to deal with the issue. Currently, as I understand it, the situation is completely open. That is not satisfactory from the point of view of the department or of those who invigilate the department. My noble and learned friend should consider a practical amendment; I am not sure whether a period of 14 days—which is seemingly plucked out of the air—is altogether right. There should be some time limit.

Lord Renton

I agree that there must be a time limit of some kind. It is notorious that legal proceedings and more especially civil actions in this country, as in most other countries, can stretch on for months and years if we are not careful. These long and important proceedings, which should be brought to a head without much delay, should be subject to some kind of time limit. It could be said that 14 days is rather pressing the matter but I do not believe that to be unreasonable. If the Attorney-General says that he accepts the principle but would like to reconsider the length of time, one would have to consider that.

Lord Goodhart

The amendment stands also in my name and that of my noble friend Lord Dholakia. I obviously support it and have nothing to add to the comments of the noble Baroness, Lady Anelay.

The Attorney-General (Lord Goldsmith)

I shall respond as best I can to the questions raised by the noble Baroness, Lady Anelay, about the level of staffing at the Central Authority. I am grateful to those who provided this information. I do not complain that I did not have notice; I say that simply by way of explanation. If there is some detail that the noble Baroness requires that I cannot give now, she will no doubt let us know and we shall do our best to respond in writing.

The Central Authority is currently staffed with one lawyer at its head, an SEO deputy, a higher executive officer and 10 operational staff. It also has the ability to call on the legal advisers branch at the Home Office, which would be a source of additional legal advice should that be necessary. The noble Baroness asked about the challenges by way of judicial review. They have been minimal—one last year and two the previous year.

The Bill will result in some decrease in the work of the Central Authority because, as the Committee will have noted, in certain cases—this is an important point—it is intended that there will be direct transmission of the material or request so that they do not have to pass through the Central Authority; that will speed things up. However, there will also be some increases. If it is helpful to provide further detail, I hope that the noble Baroness will not hesitate to ask and we shall do the best that we can.

The amendment proposes that a domestic freezing order must be sent to the Secretary of State in order to be transmitted abroad within 14 days of being made. All Members of the Committee who have spoken—the noble Lords, Lord Clinton-Davis, Lord Renton and Lord Goodhart, and the noble Baroness—have invited consideration of whether some kind of time limit should be put on that obligation. I accede to that invitation to consider the issue. The Government agree that these are cases in which the order should be executed as quickly as possible after it has been made.

Members of the Committee may know that there are time limits within which domestic search warrants must be executed. We cannot impose the same time limit in relation to the sending of the orders because we shall not have control over the overseas authority that will execute the orders. However, the idea that there should be some degree of urgency—a similar degree of urgency if not precisely the same—raises a very fair point. While I sympathise with the intention that lies behind the amendment, we should like to take the precise terms and the drafting away for further consideration. I hope that Members of the Committee find that a helpful response.

Lord Renton

Will the noble and learned Lord also consider the length of the time limit? I hope that there will be one.

Lord Goldsmith

Absolutely. We are sympathetic to the idea that there should be a time limit. We shall consider that point, and the drafting, and bring back a proposal.

Baroness Carnegy of Lour

Has the noble and learned Lord consulted the Lord Advocate on this matter? Would it be his intention to accede on behalf of the Lord Advocate? How will he proceed? If this approach is necessary south of the Border, it is probably also necessary in Scotland.

Lord Goldsmith

As always, the noble Baroness is right to make these points. I shall take that issue away as well and, if it is necessary to consult the Lord Advocate, that will be done.

Lord Dholakia

The noble Baroness asked about resources and the noble and learned Lord indicated the present staffing level of the unit. Bearing in mind the additional workload, has he given any consideration to the extent to which additional staffing may be required, and will be made available in dealing with such orders?

Lord Goldsmith

I gave an indication of the current staffing level and said that the Bill will result in a decrease in work in some areas, but also in some increases. The resources are currently considered to be adequate. All targets are currently being met and the position will doubtless be kept under review.

Baroness Anelay of St Johns

I am grateful to all Members of the Committee who took part in this short debate and who supported the principle of including an indication of urgency. I am particularly grateful to the noble and learned Lord the Minister for agreeing to take the matter away for consideration as regards the drafting, and for the possibility, as my noble friend Lord Renton said, of introducing some kind of time limit.

The noble Lord, Lord Clinton-Davis, was absolutely right to say that the figure of 14 days had been plucked out of the air. It was merely a tool to enable a proper debate on these matters of urgency. If they are not properly dealt with, the system will not have the credibility that it deserves in the eyes of people in this country and overseas. It is with pleasure that I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 11 shall stand part of the Bill?

Lord Carlisle of Bucklow

I am not sure whether I am the only Member of the Committee who experiences considerable confusion in following the various clauses involving the differences between requests for evidence freezing orders, as against responding to or receiving them.

As I understand it, in this clause we are dealing with sending abroad a domestic freezing order made by a court in this country. Clause 10 suggests that the freezing order should be made by a judicial authority—in general terms, a court having satisfied itself that it is necessary for the protection of the required evidence which is in another country. However, before the freezing order can be sent to the other country, it must first go to the Secretary of State for forwarding, who will then decide whether he can forward it to a court exercising jurisdiction in the place where the evidence is situated.

If we compare that provision with Clauses 7 and 8, we find that, if the request is not for a freezing order but for assistance in obtaining the evidence, there is no need for the interference of the Secretary of State, and, as I understand it, the court—the "judicial authority" referred to in Clause 7—can send the request directly to the court where he believes the evidence is situated.

Are we not in a slightly strange situation? We are requiring applications for freezing orders—designed to freeze evidence to ensure that it is not destroyed—to go through the Secretary of State; but in the case of a request to have the evidence sent to this country so that it can be used, it goes directly from one court to the other. Why, in Clause 11, it is necessary to involve the Secretary of State?

Lord Goldsmith

Clause 11, as the noble Lord correctly identifies, requires freezing orders made by the domestic courts in this country to be sent via the Secretary of State, or in Scotland via the Lord Advocate. That is in contrast to the provision for direct transmission for letters of request under Clause 7.

The reason for that, about which the noble Lord properly asks, is that the freezing orders are a new procedure. There are no current procedures for dealing with them. Therefore, those dealing with them will be unfamiliar with the issuing, sending and receiving of them. The decision has been made that in those circumstances they should be sent via the Secretary of State. That will have the advantage of enabling the orders to be monitored and to be checked to ensure that they comply with the requirements of the framework directive and of the legislation, and it will ensure that they are responded to appropriately. The importance of being able to ensure that the orders are properly made and properly executed is of significant interest. It is that which justifies this different procedure.

4. p.m.

Lord Clinton-Davis

I thank the noble and learned Lord for giving way. I understand that a new procedure is being invoked. However, gradually, perhaps after two or three years or more, the situation will be ameliorated. People will become more aware of their responsibilities. Is there any procedure which the noble and learned Lord has in mind to ensure that in a reasonable period of time the whole situation will be considered?

Lord Goldsmith

The noble Lord asks whether there is a procedure for ensuring that the whole situation will be considered within a reasonable time. Legislation of this kind and its operation is kept under review. If it does not work and does not produce benefits, that will become apparent to those who are operating it, to those who are trying to benefit from it and to Ministers. I cannot take the matter further at present. I have given the reasons for this different procedure being proposed in this specific area, which I understand, at least for the time being, the noble Lord, Lord Clinton-Davis, sees as understandable and reasonable. I ask the noble Lord to withdraw his opposition to the Question.

Lord Carlisle of Bucklow

I am grateful to the noble and learned Lord the Attorney-General for that explanation. As the noble Lord, Lord Clinton-Davis, stated, it seems a perfectly acceptable explanation in the early days of the freezing order. However, I hope that it shall not be continued as an unnecessary bureaucratic intervention once the freezing orders are recognised in the same way as other requests for evidence. The noble Lord asked how often such matters are reviewed. I suppose that the last action in this area was 1990. Perhaps in about 14 years' time someone may be around to delete the need in Clause 11 to go to the Secretary of State.

Lord Clinton-Davis

Before the noble Lord sits down, why is he so impatient? He mentioned 14 years. We could make it 25 years.

Lord Carlisle of Bucklow

As was mentioned in last night's debate in the House, it all depends on whether any of us will be here in 20 years.

Clause 11 agreed to.

Clause 12 agreed to.

On Question, Whether Clause 13 shall stand part of the Bill?

Lord Carlisle of Bucklow

The same point arises. Clause 13 deals with requests from overseas for assistance by the courts in this country. Such requests must be received by the territorial authority for that part of the United Kingdom which is, by definition in Clause 28(9), the Secretary of State. Yet, under Clauses 7 and 8, if it is the other way round and the request comes from this country to another asking for its assistance in obtaining evidence, it can come directly from the judicial authority to the court in the country from which assistance is requested. Clause 8 states: A request for assistance under section 7 may be sent— (a) to a court exercising jurisdiction in the place where the evidence is situated, or (b) to any authority recognised by the government". Why must there be a system where a request from this country can go directly from the court to the court whereas a similar request from overseas cannot go directly to the court but to the Home Secretary who is required under Clause 15 to nominate a court to receive any such evidence? Perhaps I have misunderstood but it appears that in one way the court deals directly with the court yet an incoming request comes through the Secretary of State. I wondered why there is that difference.

Lord Goldsmith

The answer to the question raised by the noble Lord, Lord Carlisle, concerns the difference in the structure in the United Kingdom and that in other countries for how jurisdiction for prosecution is set out. At this end there are a number of different prosecuting authorities. The division between their jurisdiction is complex and based upon the type of crime involved. Therefore, it is much more difficult to identify who is necessarily the correct recipient for an incoming request. In that direction, it is appropriate that that should be assisted by coming through the territorial authority, and I shall return to what that means.

The advantage is that that will speed up the provision of assistance. It will mean that requests are directed to the correct place. We would not want, nor would the Committee, situations in which important requests from another country were misdirected to some part of the Crown Prosecution Service or to an inappropriate court in some part of the country. That could lead to great delay.

On the other hand, in many other countries the prosecution is based more on territorial division, and the investigation and prosecution stages may be more closely linked. That is why Clause 8 provides for the possibility of sending requests directly to the executing authority. However, notwithstanding that, there is an important speeding-up in the process.

Territorial authority, a concept to which the noble Lord rightly draws attention, includes the devolved administrations. The territorial authority is the Secretary of State in England and Wales but is the Lord Advocate in Scotland. Enabling the request to be sent directly to the devolved administration will remove an unnecessary layer of bureaucracy. That geographical division is straightforward and easy to explain. The other territorial and functional divisions between courts and prosecuting authorities are more difficult to explain. I hope that that answers the question raised by the noble Lord. If it does, or perhaps even if it does not, I ask the noble Lord to withdraw his opposition to the Question whether the clause stand part of the Bill.

Lord Carlisle of Bucklow

I shall consider what has been said by the noble and learned Lord. The other matter I wish to raise concerns the happy phrase, "The administrative authority", which appears in Clause 1 but not in Clause 13. Clause 1 states that a request for an overseas process relates to, any document issued or made by an administrative authority". Clause 13 states: The request for assistance may be made only by— (a) a court exercising criminal jurisdiction…in a country outside the United Kingdom, [or] (b) any other authority in such a country which appears to the territorial authority to have the function of making such requests for assistance". Is that intended to include the administrative authority whose requests we can deal with in the service of overseas process? Why are the words different in the two clauses?

Lord Goldsmith

Clause 1 deals with service of process, whereas Clause 13 deals with evidence, as does Clause 7. They are different concepts and different functions. I do not immediately follow why the noble Lord might think that the situation should be the same. It does not seem to me that it needs to be the same. In the different context of service of process as opposed to gathering of evidence, the provisions make sense.

Lord Carlisle of Bucklow

I think that the noble and learned Lord the Attorney-General is right about that. However, I still think the difference between Clause 13 and Clause 7 surprising so far as concerns the receipt for the request for evidence. It is difficult to see how adding in an extra stage—namely, having to go to the territorial authority—will save time. If we have enough confidence in the system in Clause 7 that requests to countries can go direct from our courts to their courts, we should enable them to be able to send requests directly to our courts rather than going through the Secretary of State.

Lord Goldsmith

Perhaps I may remind the noble Lord that Clause 8 provides a choice. The request can be sent via an authority as well as being sent directly. I have done my best to answer the question raised by the noble Lord. I do not share his confidence that if we require incoming requests to be sent to wherever the overseas authority thought appropriate that would not give rise to delay and to a risk of requests being lost in the post.

In the United Kingdom there will be prosecutors who cannot execute requests. Therefore, it would be wrong for requests to be sent to them. It is much better, therefore, for requests to be sent to the Secretary of State who will obviously deal with them as expeditiously as possible and speed them on their way to the correct place.

Clause 13 agreed to.

The Deputy Chairman of Committees (Lord Skelmersdale)

Before calling Amendment No. 36 I must inform the Grand Committee that if that amendment is agreed to, I cannot call Amendments Nos. 37, 38 or 39.

Clause 14 [Powers to arrange for evidence to be obtained]:

Baroness Anelay of St Johns moved Amendment No. 36: Page 8, line 28, leave out paragraph (c).

The noble Baroness said: In moving Amendment No. 36 I shall speak also to Amendments Nos. 37 and 127. Amendment No. 36 is a probing amendment which seeks to clarify the precise nature of the situation in which evidence may be obtained in the United Kingdom in connection with the proceedings in other countries specified in Clause 14(1)(c).

Paragraphs (a) and (b) of that subsection refer to criminal proceedings and criminal investigations. Paragraph (c) is wider and refers to clemency proceedings, which I shall consider in a moment, and to proceedings on an appeal before a court against a decision in administrative proceedings. As was recalled by my noble friend Lord Carlisle, last week the Committee debated the question of administrative proceedings in relation to Clause 1. The reference to such proceedings in Clause 14 is to an appeal before a court against a decision made in administrative proceedings, whereas in other parts of the Bill—such as Clause 1—the administrative proceedings themselves are referred to.

I hope that the Minister can clarify why it has been decided to refer to an appeal before a court rather than to the administrative proceedings themselves.

Amendments Nos. 37 and 127 relate to the term "clemency proceedings", which is used in Clause 14 and elsewhere in the Bill. Specifically, they refer to the definition of such proceedings contained in Clause 52(1), which says that it means, proceedings in a country outside the United Kingdom, not being proceedings before a court exercising criminal jurisdiction, for the removal of a penalty imposed on conviction of an offence".

Amendment No. 127 would amend that definition by changing the words, removal of a penalty", to, removal or reduction of a penalty". It seeks to probe the precise nature of the definition. Do the words "removal of a penalty" cover the situation in which the power of clemency is exercised to commute a death sentence to a period of imprisonment? If one was being pedantic, one could say that that is not a penalty being removed because there would still be a penalty.

I hope that the noble and learned Lord will also be able to explain whether the definition of clemency proceedings is intended to extend the scope of the Bill's provisions, not just to the death penalty case but to other cases in which the power of clemency is exercised, such as a reduction in the length of a prison sentence. If that is the Government's intention, I may be pedantic about the use of the word "removed". I beg to move.

4.15 p.m.

Lord Clinton-Davis

I should have asked this question in relation to Clause 1. The words "clemency proceedings" are used only in relation to the Schengen convention, and not in any other instrument of law in this country. I may be entirely wrong about that, but I have never seen that expression before. Can my noble and learned friend say whether a similar provision has been included in any other legislation?

Lord Carlisle of Bucklow

I support what my noble friend Lady Anelay has said. In Clause 14, when dealing with proceedings in which the, territorial authority may arrange for evidence to be obtained", why under subsection (1)(c) should that be, on an appeal before a court against a decision in administrative proceedings, being carried on, or intended to be carried on"? Why should it not be an application that relates to the administrative proceedings themselves? I say that because "administrative proceedings" is defined in Clause 52 as applying to, administrative authorities in respect of administrative offences where a decision in the proceedings may be the subject of an appeal before a court". That may be a definition of the term "administrative proceedings", but proceedings themselves are taken before the administrative authority. When the Minister from the Home Office was replying to the question of what were the administrative offences before administrative authorities, he said they were, 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".—[Official Report, 13/1/03; col. GC9.] Does that mean—and if so why—that one can make a request for evidence to this country if one wants to use: it in an appeal—presumably against a conviction for a driving offence, which has been carried out by an administrative authority—in administrative proceedings, but one cannot respond to a request for the evidence if one wants it for the purpose of bringing the case and conducting the case before the administrative authority in the first place? I do not see why it is necessary to have the proviso that a decision in administrative proceedings must have an appeal before a court, either being carried on or intended to be carried on, when the application is made. It would be much more consistent with what we are told about Clause 1 that the application could be made in administrative proceedings—those being proceedings which are in fact subject to an appeal—should either party wish, but not that the appeal was a necessary prerequisite.

Lord Goldsmith

The amendments seek to amend in different ways the definitions of the type of proceedings where the United Kingdom would be able to provide mutual legal assistance. It might be helpful if I explain in a little more detail what paragraph (c) is designed to cover, why its inclusion is necessary and how this relates to the existing judicial co-operation, mutual legal assistance provisions in the 1990 Act.

It is the case that—and my noble friend Lord Clinton-Davis alluded to this matter—implementation of the judicial co-operation of Schengen requires us to be able to assist other Schengen countries in relation to two categories of case: administrative proceedings and, at least, certain types of clemency proceedings.

There has already been discussion in Committee about what "administrative proceedings" in this context means. They are not straightforward to identify and define because they do not have an exact counterpart in our own legal system. The example cited in the explanatory report to the Mutual Legal Assistance Convention is a German offence. That is an offence which, whilst not classified as a criminal offence, is punishable by a fine imposed by an administrative authority. It is known as ordnungswidrigkeit. However, there is a right of appeal to the ordinary criminal courts. It is intended to be an administrative proceeding where assistance might be sought.

An example was given by my noble friend Lord Filkin of traffic offences, which under Dutch law are administrative offences. In this country they would be classified as criminal offences, albeit at the lower end of the criminal scale. There has already been an offer to provide any further helpful information as a result of the requests made when the Committee last sat.

The term "clemency proceedings" is also difficult to define. It does not appear to us that there are domestic—United Kingdom—procedures that precisely fit that description either. Our European partners say that they have such procedures. They may in certain cases be analogous to appeal applications—as we might call them—which they describe as clemency proceedings. Under the Schengen Convention of 1995 we are required to provide assistance on that matter.

To delete subsection (1)(c), which Amendment No. 36 seeks, would render us unable to provide the assistance required by Schengen and the 2000 Convention.

Amendment No. 127 adds the words "or reduction" to the definition of the term "clemency proceedings". The noble Baroness said that it was a probing amendment. I go further: I think it is a good proposal that makes clear that clemency includes reduction as well as removal. I am happy to accept that amendment and to do so as it is drafted.

The noble Lord, Lord Carlisle, asked a detailed question about how Clause 14(1)(c) operates and, in particular, the relationship between proceedings on an appeal against a decision in administrative proceedings and those proceedings themselves. We should look at that matter and study carefully whether his point is one that ought to be taken into account in the drafting. I propose that we should look at the issue and indicate, having done so, what stance should be taken.

Amendment No. 37 is not necessary, given that Clause 52 already defines clemency proceedings for the purposes of this part of the Bill.

Therefore, I invite the noble Baroness not to pursue Amendment No. 36, and I have indicated my attitude to Amendment No. 127 when it is formally moved.

Baroness Carnegy of Lour

I want to make absolutely sure that I have understood the matter. According to Clause 52(1), the definition of "clemency proceedings" is the removal—and or reduction—of penalties for offences which were not tried as criminal charges, but are matters such as driving licence offences in other countries which are tried in a different court. That does not apply to criminal charges. Is that correct?

Lord Goldsmith

I think not. They are two separate issues. The administrative proceedings are those which relate to an administrative offence, something which we might well regard as a criminal offence. It is tried as an administrative offence, but there is an appeal to a court and a penalty is imposed. Clemency proceedings are quite distinct. They are a form of procedure not known to us specifically, but which may well include what we might think of as an appeal for a reduction in a sentence which has been imposed on the conviction of a criminal offence. I do not know whether it is theoretically possible to have a clemency proceeding against the finding of guilt on an administrative offence. That is not the point. They are distinct issues.

In order to put the matter beyond doubt, if one goes to the definition in Clause 52(1), it says quite simply that clemency proceedings are proceedings, for the removal [and or reduction] of a penalty imposed on conviction of an offence". I can reassure the noble Baroness that it includes only convictions of criminal offences.

Baroness Carnegy of Lour

I hesitate to query the noble and learned Lord, but the provision says that they are, proceedings…not being proceedings before a court exercising criminal jurisdiction".

Lord Renton

Before the noble and learned Lord replies to that, I feel obliged to mention that I have been listening with great interest but with some confusion to the issue. Certainly, in our country the phrase "clemency" is used only in relation to other criminal proceedings. But here it is suggested that clemency proceedings in a country outside the United Kingdom shall not relate to proceedings before a court exercising criminal jurisdiction—exactly the opposite use of the word clemency. Frankly, and having listened carefully, the whole thing is very confusing.

Perhaps I may make a rather bold suggestion. We all have great respect for the Attorney-General's legal ability, but instead of committing himself to an answer on these confusing and difficult questions now, perhaps he would consider between now and Report the whole use of the expressions, "administrative proceedings", "criminal proceedings" and "clemency".

4.30 p.m.

Lord Goldsmith

By prefacing it by paying me that compliment, the noble Lord makes a seductive invitation, but, notwithstanding that, one to which I shall not accede. The specific point here is the definition of "clemency proceedings". Clause 52 refers to, proceedings in a country outside the United Kingdom, not being proceedings before a court exercising criminal jurisdiction". I understand that to mean that the court that is hearing the clemency proceedings is not a court exercising criminal jurisdiction.

The closest analogy I can provide—although this would not be proceedings—is that of a Home Secretary exercising clemency in the days when Home Secretaries did that. He would not be a court exercising criminal jurisdiction, but most certainly he would be considering the removal or reduction of a penalty that had been imposed on conviction of an offence. Not being familiar with the procedures in our European partner countries, my understanding is that there are proceedings that are not before a court exercising criminal jurisdiction but that involve consideration of removal or reduction of a penalty that has been imposed on conviction of an offence.

I would expect that that means conviction of an offence in a criminal court. I hesitate about that only because the noble Baroness introduced the question of whether that may even apply to administrative offences. I do not want to say that it does not, although it seems to me unlikely that it does. The basic case will be that there has been conviction of an offence and there is a procedure called a clemency proceeding that goes before a body that is not a court exercising criminal jurisdiction that considers whether the penalty should be removed or reduced. If that is wrong, someone will write to correct me.

Lord Renton

The logical conclusion of what the noble and learned Lord says would seem to be that there can be no clemency in relation to criminal proceedings elsewhere.

Lord Goldsmith

I apologise to the noble Lord for partly not hearing and partly not understanding his point. Perhaps he would be kind enough to repeat it.

Lord Renton

Perhaps I may explain. The Attorney-General is trying to persuade us that clemency in relation to proceedings outside this country refers not to criminal proceedings but to administrative proceedings, as defined elsewhere. But I cannot believe that there is no clemency in relation to criminal proceedings outside this country.

Lord Goldsmith

If the noble Lord is picking up on what I said before, I do not think that he cites me—or at least my intention—accurately. No doubt that is my fault, not his. The best way to deal with the matter is for me to say that we shall consider it and, if there is something wrong in what I said, ensure that that is communicated. I was suggesting that this appears to be a form of procedure not known to us. I tried to give the closest analogy of which I could think.

As the definition identifies, it involves proceedings before a body that is not a court exercising criminal jurisdiction but is considering the removal or reduction of a penalty that has been imposed on conviction of an offence. I do not think that I can take that any further today.

Lord Carlisle of Bucklow

Before the noble Baroness withdraws whichever amendment she is going to withdraw, I thank the Attorney-General for saying that he would consider the point that I raised about the wording, "administrative proceedings".

Baroness Anelay of St Johns

First, I accept with alacrity the offer by the noble and learned Lord to take on board Amendment No. 127, in its modest drafting of a couple of words. If I had such luck with all probing amendments, I should be happy indeed, but I cannot expect that.

The Committee's debate on the other amendments has highlighted the confusion that is so easily caused by the subject matter of the Bill and, occasionally, its manner of drafting. I do not say that in any way to criticise the draftsmen—far from it. It is an extremely difficult Bill to write in a form that is applicable to our system, given that its provision is sometimes pan-European and sometimes pan-World. We shall consider more closely the amendment that I am about to withdraw, especially having heard what has been said by my noble friends Lady Carnegy and Lord Renton. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 37 not moved.]

Baroness Anelay of St Johns moved Amendment No. 38: Page 8, line 29, leave out ", or intended to be carried on,

The noble Baroness said: In moving Amendment No. 38 I shall speak also to Amendment No. 39. Amendment No. 38 is intended to probe the significance of the words, or intended to be carried on", in Clause 14(1)(c). I take it that they relate to both clemency proceedings and to an appeal in respect of administrative proceedings.

What level of certainty is required for the test laid down in the Bill of an "intention" to carry on such proceedings to be met and a request made? Can the noble and learned Lord comment on whether mere suspicion that proceedings may be commenced at some time would be enough for a request to be made? We are trying to probe the level of certainty.

Amendment No. 39 is intended to allow us to consider more fully the definition of "administrative proceedings", in the light of last week's debate. We have just had a further snapshot of that. I hope that the Attorney-General can return to that in this context to give us a further burst of clarity.

The amendment would restrict the definition of "administrative proceedings" to proceedings that if carried on in the United Kingdom would be proceedings before a court. I beg to move.

Lord Goldsmith

On Amendment No. 38, the noble Baroness asked what degree of certainty is required before one can say that something is intended to be carried on. Let me first explain the purpose of those words.

Amendment No. 38 would restrict assistance in relation to clemency and administrative proceedings to where proceedings had already started. That would introduce an unacceptable restriction on assistance. It would be in contrast to existing mutual legal assistance arrangements, by which we assist at the investigative stage. We can see that if we compare Clause 14(1)(c) with Clause 14(1)(b), which specifically provides that assistance can be given not only where criminal proceedings but where criminal investigations are being carried on.

As for when it is right to say that clemency proceedings or other proceedings are intended to be carried on, the only answer that I cart give is that they are intended to be carried on when they are intended to be carried on. That question will depend on the facts of the case.

I accept that Amendment No. 39 has been tabled to probe further what is meant by "administrative proceedings". In a sense, it does that well, because it would widen their scope far too far. It would define administrative proceedings as: proceedings that if carried on in the United Kingdom would be proceedings before a court". That would include general civil proceedings, 'which are not relevant to the process.

The definition of administrative proceedings in Clause 52(1) is deliberately precise and intended to catch the sort of administrative offences that we have been doing our best to illustrate and identify, but not to go further. So, I must resist both amendments.

Baroness Anelay of St Johns

I shall not take up the Committee's time. I appreciate the noble and learned Lord's answer and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 39 not moved.]

Baroness Anelay of St Johns moved Amendment No. 40: Page 8, line 36, at end insert—

• "(aa) that if the conduct constituting the offence were to occur in a part of the United Kingdom, it would constitute an offence in that part, and"

The noble Baroness said: I shall speak also to Amendment No. 41. Amendment No. 40 would introduce the concept of dual criminality into the definition of criminal proceedings used in Clause 14. There is currently no requirement in the clause for the offences with which criminal proceedings or investigations abroad are concerned to be offences under the law of the United Kingdom. A request could therefore be made to the United Kingdom authorities to gather evidence in relation to an investigation or proceedings in respect of acts that were not crimes under the law of this country. At its lowest, Clause 14(2) would allow a request for evidence to be made when there were reasonable grounds for suspecting that such an offence had been committed.

Of course, I recognise that the Bill replicates and develops what already exists in Section 4 of the 1990 Act. However, I should be grateful if the noble and learned Lord would explain the extent to which the provisions of the 1990 Act have been used in respect of crimes abroad that are not offences under United Kingdom law, and to what extent the Government envisage that the provisions of the Bill will be so used in future.

Amendment No. 41 relates to the issuing of certificates by authorities in other countries that will be conclusive in relation to the question of whether an offence under the law of another country has been committed and whether proceedings have been instituted there. The noble Lords, Lord Filkin and Lord Bassam, and I are all old hands from the proceedings of the Nationality, Immigration and Asylum Act 2002. We all recall the debate on such certificates on a hot evening on 23rd July last year at col. 289 of the Official Report and remember the unhappiness that was expressed with some implications of those certificates.

So although I realise that the Bill's provisions expand on those of the 1990 Act, I ask the noble and learned Lord about the operation of such certificates and whether the United Kingdom authorities have yet encountered any problems with the operation of the system. I beg to move.

4.45 p.m.

Lord Carlisle of Bucklow

I shall speak briefly in support of my noble friend Lady Anelay on Amendment No. 40. I hereby undertake that this will be the last time I shall speak this afternoon.

I ask the following question. As my noble friend has pointed out, if one looks at the power to arrange for the evidence to be obtained, the court has to be satisfied that, an offence under the law of the country in question has been committed"— that is, the country making the application. It does not necessarily have to be satisfied that similar conduct would be a crime in this country. Does that change the current law or not? I suspect that it does not. I believe that the 1990 Act has a similar provision.

My real question is the following: why is there a distinction as regards fiscal offences? Clause 14(4) states: If it appears to the territorial authority that the request for assistance relates to a fiscal offence in respect of which proceedings have not yet been instituted, the authority may not arrange for the evidence to be so obtained unless— (a) the request if from a country which is a member of the Commonwealth or is made pursuant to a treaty to which the United Kingdom is a party, or (b) the authority is satisfied that if the conduct constituting the offence were to occur in a part of the United Kingdom, it would constitute an offence in that part". It appears that, so far as fiscal offences are concerned—which I presume may or may not include money laundering—the court has to show that it is satisfied that the offence in question constitutes an offence in this country, whereas, as regards general applications, the court does not have to satisfy itself in that regard. What is the reason for that distinction?

Lord Goldsmith

First, I address Amendment No. 40 which proposes that dual criminality should be a requirement in relation to any request for evidence. The noble Baroness has already provided the answer to that point, as has the noble Lord, Lord Carlisle. I refer to the position under the 1990 Act. That Act does not require that the dual criminality requirement should be met, and neither does the provision we are discussing. I suggest to the Committee that it is absolutely right that it should not. To require a demonstration that the offence is an offence in this country would require an overseas authority investigating an offence under its own law to take on an unnecessary burden. By parity of reasoning we would not want overseas authorities to decline to deal with our requests on the ground that they were not sure that the matter about which we complained as a potential criminal offence was a criminal offence under their law as well.

The noble Lord, Lord Carlisle, asked why there is different provision in relation to fiscal offences. I suggest that the answer to that is that there is always different provision in relation to fiscal offences. They are regarded as of a particular character. I refer to traditional enforcement and assistance in regard to other countries' revenue laws. Those matters have always been treated in a special way. I anticipate—I shall be corrected if I am wrong—that that background has resulted in a different regime in relation to fiscal offences. The noble Lord may recall from his practice at the Bar special rules under which English courts do not recognise certain decisions in relation to fiscal matters, whereas they do in relation to other matters.

I turn to Amendment No. 41. The answer is the same. This is precisely the provision under the 1990 Act; namely, that a certificate should be conclusive. The territorial authority is not required to go behind the request and independently establish the facts of the case. I suggest that that was right in 1990 and remains right today. It would be impractical and undesirable to do otherwise. We would expect other countries to treat our certificates with the same respect, in the event that a certificate is necessary at all. With that explanation, I invite the noble Baroness to withdraw the amendment.

Baroness Anelay of St Johns

I appreciate that reply which goes to the heart of the matter. There is a quid pro quo here. It is a matter of mutual recognition. We must be able to ensure that other countries are prepared to take action when we want them to do something on our behalf. I refer to the Minister's comments on the 1990 Act. We seek to test the waters to find out how that Act has operated so far and whether its operation may be changed slightly as a result of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 41 not moved.]

Clause 14 agreed to.

Clause 15 [Nominating a court etc. to receive evidence]:

Baroness Carnegy of Lour had given notice of her intention to move Amendments Nos. 42 and 43: Page 9, line 17, leave out "Lord Advocate" and insert "Scottish Ministers Page 9, line 21, leave out "Lord Advocate" and insert "Scottish Ministers

The noble Baroness said: I should explain that on a previous occasion I explained to the Committee that I had been in discussion with the Law Society of Scotland about the position of the Lord Advocate as regards certain aspects of the Bill. I had further discussions yesterday and discovered that the society was in considerable doubt as to the case that it wanted me to make. Therefore, I agreed with the society and with my noble friends not to move the relevant amendments. However, if the society comes forward with further cogent arguments, I may have to remedy the matter on Report. In the meanwhile, I shall not move the amendments.

[Amendments Nos. 42 and 43 not moved.]

Lord Goldsmith

The noble Baroness has given warning.

Clause 15 agreed to.

Schedule 1 agreed to.

Clause 16 [Extension of statutory search powers in England and Wales and Northern Ireland]:

Baroness Anelay of St Johns moved Amendment No. 44: Page 9, line 41, after "constable" insert "or customs officer

The noble Baroness said: In moving Amendment No. 44, I wish to speak also to Amendments Nos, 45, 48 and 50 with which it is grouped. The whole purpose of this group is to test the statement at page 10 of the Government's Explanatory Notes about Article 13 of the convention.

The Explanatory Notes state at paragraph 58 on page 10, with reference to Clause 16: Subsection (2)(b) provides that a search warrant or production order may be applied for and executed without an overseas request if the constable who makes the application is a member of an international joint investigation team (as defined by subsection (5))…These provisions implement Article 13(7) of MLAC which contemplates investigative measures being undertaken without such a request by seconded members of a joint investigation team in relation to the team's investigations overseas". I have tabled the amendment to ask the noble and learned Lord to explain the apparent discrepancy between the drafting of the subsection with the information in the transposition note placed in the Library. That states that Clause 16(2)(b), among others, implements Article 13(7) enabling UK constables and customs officers seconded to joint investigation teams to obtain search warrants. It states that the constable or customs officer would make the application on the basis of his personal knowledge of the joint investigation, as he would in a domestic investigation. However, as the Committee is aware, subsection (2)(b) of Clause 16 simply refers to a constable. What is the reason for that? Has the power been given to a customs officer, and, if so, how?

Amendment No. 45 seeks to write into the Bill the relevant wording in the Explanatory Notes. Paragraph 58 of the Explanatory Notes states: The constable making the application for the warrant or order would have personal knowledge of the joint investigation as he would in making such an application in a domestic investigation". However, this requirement for personal knowledge is absent from the Bill. I hope that the noble and learned Lord will be able to explain why the Government have decided that that should be the case and why it appears from the Bill that a constable will be able to make an application even where he has no personal knowledge of an international joint investigatiion, contrary to what the Government say they intend in the Explanatory Notes.

Amendment No. 48 would require that any evidence seized by a constable by virtue of the provisions in Clauses 16, 17 and 18 would have to be delivered to the court or authority which made the request for assistance within such time as the Secretary of State may by order prescribe. I am, of course, always wary of giving additional powers to the Secretary of State—he has enough—but this is a probing amendment designed to clarify the timescale within which the seized evidence will have to be delivered to the court or authority that made the request.

Amendment No. 50 is in similar vein. It seeks to prompt clarification from the Government on whether or not it will be standard practice to make and retain copies of the evidence obtained under Clauses 16, 17 and 18 before forwarding it to the relevant overseas authority. The evidence may be lost in transit, damaged or destroyed for some other reason. Do the Government plan that there should be a copy or photograph of the evidence as a back-up to cater for those eventualities? I beg to move.

Lord Goldsmith

I shall deal first with Amendment No. 44. The answer to the question raised by the noble Baroness, Lady Anelay, is to be found in Clause 27(1)(b). She asked about customs officers. Clause 27(1)(b) provides for a power under which customs officers can be granted any of the powers conferred on police officers under Clauses 13 to 26.

I turn to Amendment No. 45. It may help if I explain the purpose of Clause 16(2)(b). A framework for establishing international joint investigation teams was provided for in Article 13 of MLAC. The purpose of those teams is to carry out joint investigations into crimes with cross-border elements, with a view to improving and speeding up investigation of those crimes. Teams will be set up by two or more member states for a specific purpose, and investigations may be carried out in any of those member states. In practice, a joint investigation team will consist mainly of police and customs officers from the participating member states, but their examining magistrates, prosecutors and specialist advisers may also take part.

All members of the team must act under the direction of the team leader, who must be provided by the competent authorities of the participating member state where the team is carrying out its investigation. If the investigation moves into another participating member state, the team leader would change.

The subsection enables constables acting as members of international joint investigation teams to apply for search warrants or production orders under the Police and Criminal Evidence Act 1984. As the noble Baroness said, this implements Article 13(7) of MLAC, which provides that members of a team should be able to request their own authorities to take such measures as they would be able to request in a domestic investigation.

A UK member of a team who is a police officer would be able under the subsection to apply for a search warrant or production order for evidence in the UK in relation to an overseas investigation, without a formal request for the evidence from abroad. Such a request would be unnecessary as the police officer would be applying for the search warrant or production order on the basis of his own knowledge of the investigation. That is a long but, I hope, not unhelpful, explanation of joint investigation teams.

Amendment No. 45 is unnecessary because the constable applying for a search warrant must be a member of the international joint investigation team and will therefore have personal knowledge of the joint investigation, just as he would if he were a member of a domestic investigation team. I hope that that explanation helps the noble Baroness.

Amendment No. 48 would impose a time limit for the transmission of seized evidence to the requesting authority. We believe that that would be unnecessarily restrictive. We are under no obligation to return evidence within a specified time. Current legislation does not set time limits. No doubt it is a matter of good practice that evidence is generally returned as soon as possible, but that does not automatically mean that there will be a specified time limit. There may sometimes be good reason not to return evidence immediately; for example, if the request involves a number of searches, it may be practical to wait for all the evidence to be collected and consolidated before sending some of it back.

I turn finally to Amendment No. 50. We do not see any point in having a requirement that copies of all evidence sent abroad should be kept. That is of no practical benefit to the United Kingdom authorities. It does not happen at present and the Government do not see any need to change that practice. It is possible that the police will keep a record, but certainly we can see no practical benefit in a requirement to retain a copy of every single document provided to an overseas authority. Therefore, I invite the noble Baroness not to press that amendment.

5 p.m.

Lord Renton

I want to say a word about Amendment No. 48 to which the noble and learned Lord referred briefly. The kind of proceedings that we must envisage are entirely new situations so far as concerns this country. The interesting point about the Bill is that it creates new situations which the Government and our legal authorities will sometimes have difficulty in enforcing. I believe that the expression, within such times as the Secretary of State may by order prescribe", is worth including. I do not consider that we can simply live optimistically in relation to this matter; we must ensure against unnecessary delays. Therefore, although I do not ask the noble and learned Lord to commit himself at the moment, I hope that between now and Report he will give further thought to that point.

Baroness Anelay of St Johns

I am grateful to the noble and learned Lord for his response and, in particular, for the clarity that he has given to the matter of the joint investigation team. That was worth adding to the record. With regard to time limits, I agree with my noble friend Lord Renton that, sometimes, good practice should not only be debated but should be put into effect. I shall certainly consider that point—

Lord Goldsmith

As the noble Baroness has referred to that point, perhaps she will allow me to intervene to say that this is not new law. Again, the reference is to the 1990 Act, which does not prescribe a time limit; and I am told that there have been no problems in practice. If that is the case—wise though the words of the noble Lord, Lord Renton, may be—it seems unnecessary to change matters on this occasion.

Baroness Anelay of St Johns

The Minister managed to interrupt the sentence just as I was about to say that I realised that it was part of the 1990 Act. Therefore, although I shall consider the matter again, the issue comes within the context of the general pattern of good practice. I shall also look again at the matter of copies of evidence, which was referred to by the noble and learned Lord. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 45 not moved.]

Clause 16 agreed to.

Clauses 17 and 18 agreed to.

Clause 19 [Seized evidence]:

Lord Goodhart moved Amendment No. 46: Page 11, line 16, after second "to" insert "the Secretary of State who will then forward the relevant evidence to

The noble Lord said: In moving Amendment No. 46. I shall speak also to Amendment No. 49, which is in the same group, although the amendments deal with somewhat different issues.

Amendment No. 46 would amend Clause 19(1). Under that subsection, at present: Any evidence seized by a constable under…section…17…is to be sent to the court…which made the request for assistance". The effect of the amendment would be that, instead of being sent to the court, the evidence would be sent to the Secretary of State, who would then forward it to the court or authority which made the request for assistance. Therefore, it would be monitored by an independent agency within the United Kingdom before it went abroad.

The amendment has been proposed by the Law Society, which is concerned that there should be independent monitoring of the order and of the evidence seized. It is a matter of some concern whether the provisions in Clause 26, which will prevent the evidence which is protected by legal privilege being sent abroad, will be sufficiently observed.

Of course, the court cannot make an order under Clause 26 unless it has reasonable grounds for believing that it does not consist of items subject to legal privilege. But the fact that some items may be subject to legal professional privilege will not necessarily be apparent on the face of the document. Indeed, even if it is, it may from time to time be overlooked.

If the person whose property had been seized were properly legally advised, he would no doubt be able to raise this issue before the property was removed from the United Kingdom. However, it is possible that he will not be properly legally advised or that, for some reason, such as absence from the country, he will not have an opportunity to raise the matter before the property is sent abroad. Therefore, it seems desirable that there should be some way of monitoring what is happening in order to see whether any particular problem arises.

I turn to Amendment No. 49, which I consider to be of some importance. Under Clause 14, before a United Kingdom authority arranges for evidence to be obtained in order to assist foreign criminal proceedings or an investigation, it must be satisfied that there are reasonable grounds for suspecting that an offence has been committed or that the investigation is being carried on in a requesting country. However, once the evidence has been sent, there is no restriction on the use that can be made of it in the requesting country.

This amendment has been tabled in response to concerns raised by Justice. I should declare that I am a vice-chair of the council of Justice. Those concerns are that the provision could lead to a fishing expedition and that a foreign country could institute proceedings. The foreign court could then give a certificate ender Clause 14(2) if there were reasonable grounds for suspecting that an offence had been committed or that an investigation was being carried on. The evidence could then be taken and sent to the requesting country. That country could use the evidence for any purpose and not merely for the proceedings or investigation for which it was originally obtained.

That could present problems, even if these provisions were limited to a participating country. But, in fact, the provisions apply to any country in the world. Therefore, we believe that the territorial authority should have a power, but not an obligation, to require an undertaking to be given by the requesting court or authority that the evidence will be used only for the purpose for which it has been sent. That power could be used if, for example, it was believed that countries which received the evidence were using it to go on fishing expeditions and if it were felt that some control needed to be exercised over it. I beg to move.

Baroness Anelay of St Johns

I have a brief question. Does the Minister accept that, where there is direct transmission, it is possible that material that was not directly relevant to the investigation could be seized? What do the Government intend should happen to such material?

Lord Goldsmith

This group of amendments deals with two separate topics. The first is the question of the route for transmission. In speaking to Amendment No. 46 in the names of the noble Lords, Lord Dholakia and Lord Goodhart, I shall speak also to Amendments Nos. 47 and 64, which stand in the name of my noble friend Lord Filkin.

The first amendment would require all evidence seized in response to a request for evidence under the search powers in Clauses 16, 17 or 18 to be sent abroad via the UK Central Authority, rather than being transmitted directly from the constable who seized it. It would not allow any flexibility between those two methods.

For all the reasons that I explained earlier, the Government want to make the transmission of evidence directly by the constable who seized it the norm. It would be a more efficient means of sending evidence and would cut out central involvement in the UK once the evidence had been obtained. However, we recognise that, while that should be the norm, there will be some cases where direct transmission of evidence may not be appropriate. That would be the case if there were, for example, a very complex request where evidence was to be taken at multiple locations by multiple police forces and it 'would be more practical to send all the evidence back to the Central Authority, which could then send it on. The Government tabled Amendment No. 47 in order to permit flexibility.

The noble Lord tabled his amendment on the basis that he would like there to be control by the Central Authority of the evidence seized, particularly in relation to questions of legal professional privilege. But present practice is that the UK Central Authority does not currently inspect seized evidence. It may be voluminous and substantial. Therefore, transmission via the territorial authority through the Central Authority will not give the imprimatur of quality that the noble Lord wants; it will simply delay the process. Therefore, we resist the attempt to require that to be the only route.

Amendment No. 49 seeks to restrict the use to which the requesting authority may put evidence obtained from the United Kingdom. The Government consider that the requirement imposed by that amendment would be unduly restrictive. We cannot legislate for overseas authorities. If we made such a requirement, we would have no way of enforcing it in the absence of a binding international agreement. We can, and do, restrict our own use of evidence obtained from overseas but, as a matter of policy and practicality, would not wish to establish a general obligation to do so in relation to incoming requests.

We do restrict the use of material obtained using Section 2 powers of the SFO. Those are particularly powerful powers, if I can use that expression—I cannot think of another at present. But, as a matter of policy or practicality, we would not think it right to have a general obligation in the way that Amendment No. 49 would require. Therefore, we resist that amendment.

Lord Goodhart

I appreciate the difficulties that Amendment No. 46 would create. I have raised that issue and it is not a matter that I should expect to take any further. I welcome government Amendment No. 47.

Amendment No. 49 still causes me some concern. I appreciate that there would be serious difficulties in enforcing it, but I am concerned that some countries may use information supplied under this power for purposes which might be regarded in this country as improper.

In those circumstances, I shall consider whether to bring back an amendment for consideration in some other form. That said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.15 p.m.

Lord Goldsmith moved Amendment No. 47: Page 11, line 16, at end insert "or to the territorial authority for forwarding to that court or authority

On Question, amendment agreed to.

[Amendments Nos. 48 to 50 not moved.]

Clause 20 [Overseas freezing orders]:

Lord Goodhart moved Amendment No. 51: Page 11, line 39, leave out paragraph (c)

The noble Lord said: The effect of this amendment would be to leave out paragraph (c) of subsection (3) in Clause 20. Subsection (3) as drafted provides for an order to be made by, a court exercising criminal jurisdiction in the country…a prosecuting authority in the country…[or] any other authority in the country which appears to the territorial authority to have the function of making such orders".

Again, this is an issue raised by Justice, which is concerned that the provision in paragraph (c) is too wide. It is desirable that overseas freezing orders must be subject to some judicial scrutiny. They should not merely be made administratively. The amendment would mean that the freezing orders would have to come from authorities which have the power to make orders and not merely from those which appear to the territorial authority to have the function of making such orders.

A domestic freezing order must be made by a judicial authority; and a freezing order, whether domestic or overseas, can have serious effects. It may, for example, deprive the owner of property of the use of that property for a substantial time or possibly even permanently. In such cases, while we support the idea of mutual assistance, we feel it is desirable that such orders should be granted only where in another country, as in this country, the order has been made by a judicial authority. I beg to move.

Lord Goldsmith

Given the noble Lord's remarks, his proposal is even more radical than the amendment that he has moved. Even if the amendment were accepted, the provision would leave overseas freezing orders capable of being made either by, a court exercising criminal jurisdiction in the country", or by, a prosecuting authority in the country". With respect, it does not make sense to say that the amendment is designed to have the effect that a freezing order can be made only by a court.

Under the framework decision, we are under an obligation to recognise orders issued by judicial authorities. In a number of EU countries, orders of this kind could be made by examining magistrates, who have no precise equivalent in this country. They are plainly legitimate judicial authorities—"judicial authority" is the description in the framework decision. But, plainly, we must be able to enforce orders that they make. An examining magistrate might not accurately fall within the description, a court exercising criminal jurisdiction in the country", or, a prosecuting authority in the country". Therefore, the purpose of Clause 20(3)(c) is to cover all judicial authorities in other EU countries. I say "other EU countries" because that is the limit on the application of this provision. EU judicial authorities are designated under the 1959 Council of Europe convention, so they are clearly identified.

For many years, we have been able to execute requests for mutual legal assistance, including for search and seizure, by authorities of this type. Section 7(4)(b) of the 1990 Act includes that type of person. That is re-enacted by Clause 13(2)(b) of the Bill. So the provision merely applies to the new concept of the freezing order the same approach that has already been adopted in relation to mutual legal assistance. It has not caused any difficulties in practice. It must be available for the enforcement of overseas freezing orders.

Lord Goodhart

I am grateful to the noble and learned Lord for that explanation. I understand the issues that arise. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goldsmith moved Amendment No. 52: Page 12, line 7, leave out "person who" and insert "court or authority which

The noble and learned Lord said: In moving this amendment, standing in the name of my noble friend Lord Filkin, I shall speak also to Amendments Nos. 55, 60 to 63, 74 to 76, 128, 132 and 133.

These are all technical and drafting points. Amendment No. 52 to Clause 20 is a drafting amendment to reflect correctly the requirement of the framework decision for the certificate to be signed by or on behalf of the competent judicial authority.

Amendment No. 55 to Clause 21 clarifies that the rules referred to here are rules of court, which may be made under Clause 49 of the Bill.

The two amendments to Clause 24—Amendments Nos. 60 and 61—have the effect of simplifying the structure of the clause and clarifying that evidence seized should be retained until a request has been received and considered. The previous drafting did not reflect the framework decision in that respect and would have required automatic transmission of evidence by virtue of receipt of the request without allowing for it to be considered.

Amendments Nos. 62 and 63 to Clause 25 are designed to clarify the conditions for the release of evidence to ensure that evidence may be released only in accordance with the grounds provided for in the framework decision.

The three amendments to Clause 28—Amendments Nos. 74 to 76—are designed to make it clear that an offence prescribed under Clause 28(5)(b) may be prescribed by means of a general description and not only by specifying a particular offence. That will enable us to designate not only the offences listed in Article 3(2) of the framework decision but also a generic type of offence. It will cover, for example, cases covered by Article 3(4), in relation to which we are obliged to assist if there is dual criminality.

The first amendment to Clause 52—Amendment No. 128—simply adds a definition of "customs officer" to the existing list. The second amendment—Amendment No. 132—clarifies that the existing definition of "process" applies to England, Wales and Northern Ireland. A separate definition has been added, as the noble Baroness, Lady Carnegy, may be pleased to note, for Scotland correctly to reflect the legal terms used in the different legal systems. The third amendment—Amendment No. 133—is needed because there was a concern that, as currently drafted, a summons issued by a prosecuting authority, as opposed to a court, overseas—for example, an examining magistrate—would not be included within the definition of "process" in Clause 52. I beg to move.

On Question, amendment agreed to.

Clause 20, as amended, agreed to.

Clause 21 [Considering the order]:

Baroness Anelay of St Johns moved Amendment No. 53: Page 12, line 21,1eave out "a court" and insert "the High Court

The noble Baroness said: When the overseas freezing order is received, the Secretary of State has to nominate a court in England and Wales or Northern Ireland to give effect to the order under Clause 21(1). But Clause 21 is silent on what level of court that must be. I have tabled the amendment merely to ask the noble and learned Lord whether it could be a magistrates' court, a county court, a Crown Court, a High Court or even the Special Immigration Appeals Commission.

My amendment requires that the order should be given effect by the High Court, merely to elicit from the noble and learned Lord an explanation of which court is "a court" for these purposes. I beg to move.

Lord Renton

The Government should consider this amendment carefully. I cannot imagine that minor matters will be the subject of proceedings tinder the Bill. I should have thought that the Secretary of State, instead of merely referring the matter to some relatively minor local court—which he could do under the Bill as drafted—should refer it to the High Court.

I say with respect to my noble friend that to replace the expression "a court" with "the High Court" is not quite adequate in terms of drafting. I think that the amendment should refer to an application to the High Court in England and Wales or Northern Ireland, as the case may be, to give effect to the overseas freezing order.

This is a minor drafting matter. In principle, however, I believe that it should become the responsibility of the High Court rather than any minor court.

Lord Goldsmith

This short debate has strongly reflected the other way round our previous debate in Committee on freezing orders. Then, I argued strongly that it was entirely appropriate that magistrates' courts, which have great experience in dealing with the granting of search warrants, should deal with the granting of domestic freezing orders.

The current position in relation to requests for mutual legal assistance is that the provision in the 1990 Act leaves it to the Secretary of State to decide which court should deal with the matter. Albeit in the context of freezing orders, that is precisely what is proposed in this clause.

The Government could not accept the amendment that imposed the obligation to limit execution of these orders simply on the High Court. As I said on a previous occasion, it would be wrong to compare evidence freezing orders with assets freezing orders. They are quite different. They are simply another form of gathering evidence at the request of an overseas government.

Requests for evidence from overseas are currently generally dealt with by a magistrates' court. The Secretary of State has the power to put it to someone else, but there seems no reason why that procedure should not be followed for evidence freezing orders under the new procedure. That is why we cannot accept Amendment No. 53.

Baroness Anelay of St Johns

I am grateful, as always, to my noble friend Lord Renton for his comments on drafting. I promise him that the amendment was intended merely to elicit clarity. If I were to pursue the matter, I should make sure that I sought his advice before bringing it back.

I am grateful to the noble and learned Lord for providing the explanation that I anticipated he might give. It was helpful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 54 not moved.]

Lord Goldsmith moved Amendment No. 55: Page 12, line 35, at end insert "of court

On Question, amendment agreed to.

5.30 p.m.

Baroness Anelay of St Johns moved Amendment No. 56: Page 12, line 42, leave out "the participating country" and insert "a part of the United Kingdom

The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 57.

These amendments return to the issue of double jeopardy. Clause 21(6) allows the court not to give effect to the overseas freezing order if, the person whose conduct is in question were charged in the participating country with the offence to which the overseas freezing order relates, he would be entitled to be discharged under any rule of law in that country relating to previous acquittal or conviction". That is, he would be able to rely on any rule against double jeopardy. The amendments would change the applicable rules on double jeopardy to those in the relevant part of the United Kingdom. This amendment probes whether there will be situations in which a person would be able to rely on the double jeopardy rule in the UK, but any rule of the overseas country. Thus, if the conduct had been committed in the UK, the courts would be giving effect to an order that might be contrary to the principles of double jeopardy that we apply.

Perhaps the noble and learned Lord would also clarify the reference to a "previous…conviction" in that subsection. Might that prevent the freezing of evidence relevant to criminal investigations where there had been a conviction overseas, even though the criminal investigation was ongoing, perhaps in relation to further offences or in respect of accomplices who were involved in the offence? I beg to move.

Lord Goldsmith

I say straight away that these amendments will be considered. As they stand, they would have the effect of limiting the double jeopardy approach to consideration of the law of the United Kingdom. Clause 21(6) has been drafted to prevent the requesting state seeking evidence that could not be used in its courts because of the double jeopardy rule and we should not want the United Kingdom to have to send evidence to France when there was no possibility of a trial ever taking place there. That would be an abuse of the system.

The amendment would prevent us from taking that proper approach, which we do not think wise and we cannot accept it as it is currently drafted. However, we agree that it should be possible to refuse cases in which prosecution would violate our own rules on double jeopardy and we will further consider bringing forward our own amendment to provide for refusal in cases in which prosecution would violate United Kingdom rules of double jeopardy. I hope that that is helpful.

Baroness Anelay of St Johns

That is most helpful. I am grateful to the noble and learned Lord for saying that he will consider the principle further; that is exactly what we were trying to get at. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 57 not moved.]

Lord Goodhart moved Amendment No. 58: Page 13, line 3, at end insert— ( ) The third condition is that the freezing order is manifestly incompatible with the certificate which accompanies it.

The noble Lord said: Under Clause 20, when an overseas freezing order is sent to this country, it must be accompanied by a certificate giving the specified information. There are provisions about how it must be signed and it must include, a statement as to the accuracy of the information given in it".

Clause 21 states that the overseas freezing order must be complied with by a court. Subsection (5) states: The court may decide not to give effect to the overseas freezing order only if, in its opinion, one of the following conditions is met". There follow two conditions, the first of which, in subsection (6), we have debated—it was the subject of Amendment No. 56. The second condition is that, giving effect to the…order would be incompatible with any of the Convention rights".

Amendment No. 58, which was raised because of concerns from Justice, requires the order not to be made if it is caught by a third condition; that is, that the freezing order is manifestly incompatible with the certificate which accompanies it".

Article 7 of the draft framework decision sets out the grounds on which, competent judicial authority of the executing State", may refuse to apply the freezing order. One of the conditions is that the certificate, is not produced, is incomplete or manifestly does not correspond to the freezing order". That does not appear in the Bill. I appreciate that the reason for that may be that the Bill's draftsmen may have taken the view that it is implicit in Clauses 20 and 21 that a certificate that is manifestly incompatible with the freezing order cannot be a certificate within the meaning of Clause 20. I should appreciate that position. If that is not the case, it appears that there is a lacuna in the Bill. This is a probing amendment and I look forward to the Minister's response. I beg to move.

Lord Goldsmith

The basis of the amendment, as the noble Lord, Lord Goodhart, made clear, is the ground for refusal that is allowed for in Article 7(1)(a) of the framework decision.

As a matter of principle, the Government agree that execution should be refused if the order and the certificate are manifestly incompatible. We differ over how that is to be determined. That, in our view, is for the Secretary of State to consider under Clause 20 when the request comes through. I emphasise, as does the article in the framework decision, that the relevant condition is that the certificate is manifestly incompatible with the order; it must be clear on the face of it. I am not trying to define "manifest"; I am merely explaining what the word means in ordinary English. Officials in the Central Authority will be well placed to consider that issue. The Government's view is that in those circumstances, the item will not be sent on and therefore will not reach the court in the first place.

To put the matter briefly, one of the preliminary checks that the Secretary of State will carry out, under Clause 20, before referring the order to the court for enforcement, will be whether or not the order and the certificate are manifestly incompatible. It will be unnecessary for the court to make that decision and unnecessary therefore to place that requirement in the Bill as one of the requirements. I hope that the noble Lord is reassured that the Secretary of State sees that as one of the checks that has to be made by him and accepts that we do not believe it appropriate to agree to the amendment.

Lord Goodhart

I certainly accept the procedure that is envisaged—that the order should be looked at by the Secretary of State and should not be sent on to the court, and that it is therefore not necessary for the court to consider an incompatibility. I am still concerned that the Bill should state that before the Secretary of State sends a copy of the overseas freezing order to the court, he must satisfy himself that the certificate is one that is not incompatible with the terms of the overseas freezing order. I will consider that.

Lord Goldsmith

In considering that, I direct the noble Lord's attention to Clause 20(5), which requires the order to be, accompanied by a certificate which gives the specified information". He may consider that if the certificate is incompatible with the order, it cannot be a certificate that contains the specified information; and if he agrees with that analysis, the Bill would contain something that the Secretary of State would have to consider.

Lord Goodhart

I shall certainly consider that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21, as amended, agreed to.

Clause 22 [Giving effect to the order]:

Baroness Anelay of St Johns moved Amendment No. 59: Page 13, line 19, leave out "section 21" and insert "sections 21 and 22

The noble Baroness said: This amendment raises questions about PACE. It is intended to establish why only Section 21 of PACE, and not also Section 22, applies to seized evidence by virtue of Clause 22(4). After all, Section 21 of PACE is concerned with the right of the person from whom the evidence is seized to have access to it and to be able to copy it, so long as it would not prejudice police investigations. That will apply to evidence seized for the purposes of an overseas freezing order under the Bill's provisions.

It appears, however, that Section 22 of PACE will not apply. That lays down provisions on the retention of evidence. I refer primarily to Section 22(1), which requires that evidence seized shall be retained only, so long as is necessary in all the circumstances". Will the noble and learned Lord explain why the Government decided that Section 22 of PACE would not apply? I beg to move.

Lord Goldsmith

The answer to the noble Baroness's question is that Section 21 of PACE is appropriate because it applies in relation to the seizure of evidence, but Section 22 does not appear to the Government to be relevant because that relates to the retention of evidence, and that is not what the clause is about.

It may help if I say more about, Clause 22. It describes how the nominated court will give effect to the freezing order. The clause provides for the issue of a warrant by the nominated court. The warrant would authorise a constable to enter and search the specified premises to seize and retain specified property. It follows the procedures in PACE for giving effect to ordinary search warrants.

In line with PACE, it also provides that for England, Wales and Northern Ireland, if the evidence to be seized is of such a character that, if there were domestic proceedings, the appropriate procedure would be by way of a production order, the court should issue a production order.

The clause authorises the constable to remove any material produced to him by virtue of a production order and confirms that any such material is to be treated as seized material. That brings in the reference to Section 21 of PACE.

Clause 22(1)(b), as the noble Baroness notes and as I have just suggested, indicates that the warrant authorises the constable to "seize and retain" the evidence. I hope that that explanation is of assistance. I do not believe that there is anything at all sinister about this. The reference to Section 22 simply does not appear to the Government to be relevant in this context.

5.45 p.m.

Baroness Anelay of St Johns

I am grateful to the noble and learned Lord for his response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 agreed to.

Clause 23 agreed to.

Clause 24 [Evidence seized under the order]:

Lord Goldsmith moved Amendments Nos. 60 and 61: Page 13, line 39, leave out from beginning to "any" in line 40. Page 13, line 41, leave out from "be" to end of line 7 on page 14 and insert "retained by him until he is given a notice under subsection (2) or authorised to release it under section 25.

(2) If—

1. (a) the overseas freezing order was accompanied by a request for the evidence to be sent to a court or authority mentioned in section 13(2), or
2. (b) the territorial authority subsequently receives such a request,

the territorial authority may by notice require the constable to send the evidence to the court or authority that made the request."

On Question, amendments agreed to.

Clause 24, as amended, agreed to.

Clause 25 [Release of evidence held under the order]:

Lord Goldsmith moved Amendments Nos. 62 and 63: Page 14, line 11, leave out "24(2)(a)" and insert "24 if, in its opinion—

1. (a) the condition in section 21(6) or (7) is met, or
2. (b) the overseas freezing order has ceased to have effect in the participating country."

Page 14, line 18, at end insert— ( ) If the territorial authority decides not to give a notice under section 24(2) in respect of any evidence retained by a constable under that section, the authority must give the constable a notice authorising him to release the evidence.

On Question, amendments agreed to.

Clause 25, as amended, agreed to.

Clause 26 [Powers under warrants]:

Lord Goldsmith moved Amendment No. 64: Page 15, line 1, after "sent" insert "to the territorial authority or

On Question, amendment agreed to.

Clause 26, as amended, agreed to.

Clause 27 [Exercise of powers by others]:

Baroness Anelay of St Johns. moved Amendment No. 65: Page 15, line 12, leave out "Treasury" and insert "Secretary of State

The noble Baroness said: I tabled the amendment in response to an issue raised in the report of the Delegated Powers and Regulatory Reform Committee. Clause 27 contains an order-making power to provide that functions conferred on the territorial authority may be exercisable by the commissioners of Customs and Excise. In subsection (1), that order-making power is conferred on the Treasury and not on the Secretary of State. The second report from the Select Committee states in paragraph 7 that the department's memorandum does not explain why that power is exercisable by the Treasury rather than by the Secretary of State. It goes on say: There may be reasons for this, and the Committee considers that the Government should provide an explanation for this form of delegation".

I agree. I tabled the amendment so that the noble and learned Lord can give that explanation to the Committee. I beg to move.

Lord Renton

Will the Minister consider some further reasons in this context, in addition to those given by my noble friend Lady Anelay? I concede that the expression "Treasury" has often been used in previous legislation. When I was a Home Office Minister years ago, I believe that I used it myself. However, the Treasury is merely a government department. Ministers should always be the people who are responsible for enforcing legislation when Parliament has required them to do so. The Bill should refer to those people. I do not know whether I am going too far or hoping for too much but I hope that the habit of calling on the Treasury to do something or to be given a power will cease and be replaced by a reference to the Chancellor of the Exchequer or a Secretary of State.

Of course, the expression, "Secretary of State" is a conveniently wide term. In the context of the Bill and of Clause 27 in particular, it would be more logical if the Secretary of State were given the power. The Secretary of State is referred to in subsection (1). Subsection (2) gives him a power, as do a number of earlier clauses. I hope that the noble and learned Lord will carefully consider this matter. It cannot harm the Bill to give the Secretary of State the power. It would be more logical and—dare I say—more precise.

Lord Goodhart

My Amendment No. 66 in this group raises exactly the same point. However, since tabling the amendment, I have read the Government's response, which is printed as Annex 2 to the fifth report of the Select Committee on Delegated Powers and Regulatory Reform, and I find that explanation adequate. Therefore, I would not in any event have moved my own amendment.

Lord Goldsmith

The phrase used by the noble Lord, Lord Renton, describing the Treasury as "merely a government department" is one which I noted with interest. I do not believe that any Minister, as the noble Lord has been, with responsibility for a spending department would ever describe the Treasury as "merely a government department".

As to the specific and perhaps somewhat constitutional point that the noble Lord, Lord Renton, raised about whether it is right to identify a particular person or body as "the Treasury" or "the Chancellor of the Exchequer", as the noble Lord himself indicated, the description of the Treasury is used in legislation—indeed, it is used in the 1990 Act. No doubt Treasury Ministers will read with interest what the noble Lord, Lord Renton, said in relation to that.

The principal point raised in the amendment of the noble Baroness, Lady Anelay, is whether it is right that these powers should be exercisable by the Treasury or by the Secretary of State. As Clause 27 makes clear, the powers relate to the exercise of powers by the commissioners of Customs and Excise or by an officer commissioned by Customs and Excise—in other words, a Customs officer.

The power for these orders is to be vested in the Treasury rather than the Secretary of State because the Treasury is the government department which has responsibility for Her Majesty's Customs and Excise. I do not believe that any question has been raised about whether it is right for Customs and Excise or Customs officers to have such powers. Indeed, the noble Baroness previously indicated that she wanted guidance as to where that power was to be found because it should be there. Therefore, the point is simply: who is the right person to exercise the powers??

The noble Lord, Lord Goodhart, is right to draw attention to the explanation given to the Delegated Powers and Regulatory Reform Committee. I understand that not only is the noble Lord content but that the committee has expressed itself content with the explanation given. I hope that that satisfies the noble Baroness.

I should have said that in this group I shall speak also to government Amendments Nos. 67, 68, 69, 72 and 73, all standing in the name of my noble friend Lord Filkin. I should put on the record what those amendments seek to achieve. They seek to expand the powers that may be conferred on Customs officers under this section. The first government amendment—Amendment No. 67—is the key and the others are essentially consequential.

The first amendment would make it possible to give Customs officers the power to apply for orders to freeze evidence overseas. As Customs officers could already be given powers to deal with incoming freezing orders, it seems sensible to ensure that they can deal also with outgoing requests. It is considered appropriate for Customs officers to be able to exercise such powers. For the same reasons, we consider it appropriate to ensure that Customs officers can apply for freezing orders as well as make requests for evidence through mutual legal assistance procedures.

The Committee will know that Customs investigators frequently take the lead on international investigations, particularly concerning drug trafficking. It is just as likely that, as would a police officer, a Customs officer will wish to apply for an order to freeze evidence that he knew was located in another EU country. Therefore, if there were an investigation into drug trafficking involving the United Kingdom and the Netherlands, where Customs were leading in the UK and relevant evidence—for example. papers relating to bank transactions—was believed to be located in the Netherlands, it would make sense for the Customs officer who had been in possession of full knowledge of the case to be able to apply for the order to freeze that evidence.

The other amendments in the group are consequential, apart from Amendment No. 128, which places the definition of a Customs officer in the definitions section.

Baroness Anelay of St Johns

I am grateful to the noble and learned Lord for his response. He said that I was asking whether this power should be exercised by the Treasury or by the Secretary of State. I did not pose that question; I was simply inviting him to place on the record, which he did, the Government's response to the point raised by the Select Committee. I am grateful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 66 not moved.]

Lord Goldsmith moved Amendments Nos. 67 to 69: Page 15, line 15, leave out from "under" to "to" in line 16 and insert "sections 10, 11 and 13 to 26 Page 15, line 18, leave out "this group of" and insert "those Page 15, line 19, leave out from "by" to "or- in line 21 and insert "a customs officer

On Question, amendments agreed to.

Baroness Anelay of St Johns moved Amendment No. 70: Page 15, line 23, at end insert "and guidance issued by the Secretary of State

The noble Baroness said: In moving Amendment No. 70, which stands in my name and that of the noble Lord, Lord Dholakia, I shall speak also to Amendment No. 71, standing in my name.

Amendment No. 70 would require that where the Treasury provides for a function conferred on a constable to be exercised by a Customs officer, or a person acting under the direction of such an officer, he would need to follow guidance issued by the Secretary of State.

Amendment No. 71 prompts clarification of the broad powers of the Secretary of State by Clause 27(2), which provide that functions conferred on him or on a constable under Sections 13 to 27 may be exercised by a prescribed person; in other words, more or less anyone.

Paragraph 81 of the Explanatory Notes states: Subsection (2) provides for the territorial authority to confer similar powers on other authorities in the future, should such other authorities develop a role in the execution of mutual legal assistance requests". That is extremely vague. The powers allow the Secretary of State to confer these functions on anyone. That may well be flexible and what the Government require. We require the Government to clarify the types of bodies and persons they are thinking about at this stage.

Finally, there is a drafting point that the Government might agree to look at. Clause 27(2) allows the Secretary of State to provide that, any function conferred on him under this group of sections", may be exercisable by someone else. Does that extend the power under Clause 27(2) to confer functions on others? Thus the Secretary of State could, by order under Subsection (2), delegate his power to confer functions on others to someone else. The matter gets very complicated. Perhaps the Government might want to include the words "other than this subsection". I beg to move.

Lord Clinton-Davis

In relation to Amendment No. 70, I ask the noble Baroness where have the words, and guidance issued by the Secretary of State", appeared in other legislation? I do not think that they ever have.

6 p.m.

Lord Goldsmith

The purpose of the amendment is to require the Secretary of State to issue guidance describing the circumstances in which a Customs officer might exercise powers under Clauses 13 to 26. If I have misunderstood, I should be pleased to be corrected by the noble Baroness, but I do not think that I need to explain why it is thought essential to be able to confer powers on Customs. I hope that the answer that I gave in debate on a previous amendment explained that sufficiently clearly.

There is no need for further guidance. The conditions will be prescribed by the order, which will be binding. No doubt it will be open to the Secretary of State to issue guidance on that point if that seems appropriate, but it is unnecessary to refer to that in the Bill. Of course, guidance will be issued covering all of the Bill's new provisions.

Amendment No. 71 would delete Clause 27(2). That would also restrict a key enabling provision that is intended to allow authorities to take on executing powers in the same way as is provided for Customs. The new power will give the Government flexibility to effect greater direct transmission—a subject which we have discussed—should that be desirable in future. No other authorities have been identified at this stage, but a review of our mutual legal assistance system more generally—which is currently in progress—may conclude that such powers should be conferred on the Crown Prosecution Service or Serious Fraud Office; for example, to enable them to handle incoming requests. However, at present they do not want such powers.

I understand that the power was considered by the Select Committee on Delegated Powers and Regulatory Reform, which accepted the department's explanation that we needed to provide flexibility for the future and found the power to be appropriately delegated.

Clause 27(2) will not apply to the powers under Clause 27(1), because Amendments Nos. 67 and 72, one of which has been accepted and the other of which I have spoken to, amend Clause 27(1)(a).

Baroness Anelay of St Johns

Perhaps I may begin by referring to the question posed by the noble Lord, Lord Clinton-Davis. I shall certainly not be able to point him to chapter and verse of Acts in which guidance has been included in the Bill. I am aware that Governments of any colour balk at the idea of including guidelines in Bills and that Opposition parties always want to include them. However, all Governments have passed Bills that make reference to guidelines; indeed, one part of the Courts Bill refers to guidelines, and we hope to add more—I give notice of that intention. So such references exist, but I regret that I cannot steer the noble Lord to the precise reference. Perhaps I ought to ask the Library for at least one example to satisfy him.

I am grateful to the noble and learned Lord for his explanation. His point about the drafting is absolutely right: changes to Clause 27 have dealt with that. On Amendment No. 71, he says that the Government are conducting a review and, as a result, other bodies may be identified—the CPS or SFO, for example, although he says that at present they do not seek or welcome such status. He puts his finger on our problem with all of this, which is that whether it is the framework decision or whatever, so much of what will effectively govern the working of the Bill when enacted is not fully fleshed out. We are having to agree to procedures that may be modified in future. We want to ensure that they are modified in such a way as to act properly to ensure judicial co-operation. We are not trying to hinder that. We are trying to make it more straightforward while ensuring that proper safeguards are in place. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 71 not moved.]

Lord Goldsmith moved Amendments Nos. 72 and 73: Page 15, line 26, leave out "this group of sections" and insert "sections 13 to 26 Page 15, line 28, leave out "this group of" and insert "those

On Question, amendments agreed to.

Clause 27, as amended, agreed to.

Clause 28 [Interpretation of Chapter 2]:

Lord Goodhart moved Amendment No. 73A: Page 15, line 36, at end insert—

• ""freezing order" means any measure taken by a competent judicial authority in the issuing State in order provisionally to prevent the destruction, transformation, moving, transfer or disposal of property that could be subject to confiscation or evidence,"

The noble Lord said: This is largely a probing amendment. It probes in two different respects. First, the amendment repeats the definition of a freezing order, which appears in Article 2(c) of the draft framework decision. That states: 'freezing order' shall mean any measure taken by a competent judicial authority in the issuing State in order provisionally to prevent the destruction, transformation, moving, transfer or disposal of property that could be subject to confiscation or evidence".

There is no separate definition of "freezing order" in the Bill. Clause 28(1) states: domestic freezing order' has the meaning given by Section 10(2)".

Clause 10(2) states: A domestic freezing order is an order for protecting evidence which is in the participating country pending its transfer to the United Kingdom". Clause 28(1) defines "overseas freezing order" as having the meaning given to it by Section 20. Clause 20(2) states: An overseas freezing order is an order— (a) for protecting, pending its transfer to the participating country, evidence which is in the United Kingdom".

Are the Government satisfied that the word "prevent" covers all the nouns referred to in Article 2(c) of the framework decision; that is: destruction; transformation; moving; transfer or disposal of property? I suspect that it probably does, and that it protects by preventing those things. However, it seems to me that "protect" could be wider than the definition in Article 2(c). If the evidence is something which is perishable by virtue of natural decay, unless it is literally frozen, "protect" would seem to cover taking steps to preserve an item of evidence by freezing it, but the wording of the framework decision would not. Is that seen as something that would create problems?

My second point is one which I anticipate the noble and learned Lord may not be able to answer today. I shall be happy to have it dealt with later in writing. Under the framework decision, a freezing order can be used to protect property not only for the purposes of evidence but for the purposes of making it subject to a confiscation order.

The Bill contains no reference to confiscation. So I wonder what is the position in regard to a freezing order for property which might be subject to confiscation. I have looked at Section 74 of the Proceeds of Crime Act, which relates to England; and there are equivalent provisions for Scotland and Northern Ireland. That appears to provide for the equivalent of a domestic freezing order where a confiscation order is being sought. But I cannot find in the Proceeds of Crime Act or anywhere else a provision for the equivalent of an overseas freezing order where confiscation proceedings may occur outside the United Kingdom and an order is sought in the United Kingdom for freezing that property subject to the making of a confiscation order. Is there such a provision anywhere in legislation, or have I overlooked it in the Proceeds of Crime Act? If not, is not one needed, and should it not be included in another part of the Bill?

I see no equivalent to a domestic freezing order in proceedings for a civil recovery order under Part 5 of the Proceeds of Crime Act—although this could well be because a civil recovery order cannot be regarded as confiscation within the meaning of the framework decision. I beg to move.

Lord Renton

I hope that the noble and learned Lord the Attorney-General will consider the amendment sympathetically. Various types of freezing order are mentioned in the Bill, but, so far, only one has been defined.

Clause 10 refers to domestic freezing orders, and Clause 11 deals with the sending of freezing orders. Clause 12 refers to the, Variation or revocation of freezing orders". Overseas freezing orders are dealt with at some length in Clause 20, and subsection 2 contains a definition of an overseas freezing order. But we are left wondering what are the other types of freezing order. The amendment is an attempt to provide an overall definition of any kind of freezing order, and it is a good attempt at drafting.

I do not think that the amendment goes quite far enough. It refers to, the destruction, transformation, moving, transfer or disposal of property". "Property" is not defined. Although it could be argued that a definition is unnecessary, it could mean the disposal of information of various kinds, especially with modern equipment, and information is not regarded as property. Therefore, the word "information" could well be added and would make the amendment more complete. For the reasons given by the noble Lord, to which I have tried to add, we need a definition in the Bill.

6.15 p.m.

Lord Goldsmith

It might be helpful if I start by indicating an answer to the question asked by the noble Lord, Lord Goodhart. He rightly drew attention to the fact that the framework decision deals with two kinds of freezing. It deals with arrangements for freezing assets—that is property—and for freezing material wanted as evidence. Those are two distinct concepts.

We believe that the freezing of evidence will facilitate international investigation. Therefore, we have taken the earliest opportunity to implement those new arrangements. That is the only part with which the Bill seeks to deal in the freezing context. Freezing of assets is a more complicated topic. It needs to take account of other developments. We already have new domestic, as well as international arrangements, in this area—the noble Lord drew attention to some of those—which were introduced by the Proceeds of Crime Act. The Government are keen to ensure that those are properly established before embarking on further steps at the international level.

In addition, the JHA Council is currently discussing a framework decision on the mutual recognition of confiscation orders. Asset freezing is a concept closely related to confiscation orders. To some extent it is an interdependent preliminary step to confiscation. We need to ensure that there is coherence and consistency of approach in the legislation adopted to implement both those instruments. That could not be resolved until the content of the confiscation instrument is settled. That is why the Bill does not attempt to deal with the freezing of property.

That being the case, it follows that the proposed amendment, which is lifted from the definition in Clause 2(c) of the framework decision, is necessarily too wide. The definition relates to property and evidence. There is another reason why it is too wide. The definition in Article 2(c) uses the concept "issuing state". An issuing state is defined in Article 2(a) of the framework decision with the important qualification of: in the framework of criminal proceedings". If one did not somehow include those words, this would be an extremely wide definition which would catch civil injunctions also. That is not what the Bill is designed to deal with.

For those reasons, this particular definition would be inappropriate. We take the view that the definitions of "domestic freezing order" in Clause 10(2) and "overseas freezing order" in Clause 20(2) are more than adequate. They are perfectly sufficient to identify what those two concepts deal with. I have listened attentively to the noble Lords, Lord Goodhart and Lord Renton. However, at present it is not obvious to me that there is any gap. Given what the Bill is trying to achieve and given that both domestic freezing orders and overseas freezing orders are defined, enough is dealt with. For that reason, the Government cannot accept the amendment and do not believe that any additional definition is required.

Lord Renton

Before the noble and learned Lord sits down, it is highly curious that various different kinds of freezing orders are mentioned in the Bill, but only one is defined. If the general reasons he has put forward are enough, one wonders why the overseas freezing order should require a definition. Expressio unius est exclusio alterius, if the Committee would forgive my saying that.

Lord Goldsmith

I can always forgive the noble Lord for speaking Latin, particularly in a legal context, although these days others take a different view.

I hope that it is helpful to say that at present I do not see where the gap is. We have two concepts in the Bill. First, the domestic freezing order, an order made in this country sent overseas, is defined in Section 10(2). That definition is picked up again in Clause 28(1). For example, although Clause 11 is headed "Sending freezing orders", the substantive provisions refer to a domestic freezing order which has been defined.

There is then the other sort of freezing order, the overseas freezing order. That is defined in Clause 20(2) and again picked up in Clause 28. There are provisions for dealing with overseas freezing orders. The noble Lord may want to consider further if there is a gap which I have missed, which I should be happy to deal with in correspondence. However, I hope that I have sufficiently answered his point.

Lord Goodhart

I am grateful to the noble Lord. Lord Renton, for his support. As regards the definition point, it is fair to say that this is a probing amendment, and I find acceptable the explanation given by the noble and learned Lord. As regards the making of a freezing order for the purposes of confiscation, I am happy that the noble and learned Lord was able to deal with that point today. I note with interest that we can expect further legislation to apply the concept of freezing orders to the process of confiscation in due course. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goldsmith moved Amendment Nos. 74 to 76: Page 16, line 12, after "prescribed" insert "or of a description prescribed Page 16, line 13, after "offence" insert "or a description of offences Page 16, line 15, after "offence" insert "or offences

On Question, amendments agreed to.

Clause 28, as amended, agreed to.

Clause 29: [Hearing witnesses abroad through television links]:

Baroness Anelay of St Johns moved Amendment No. 77: Page 16, line 35, at end insert— (1A) An order under subsection (1) shall be made by statutory instrument and may not be made unless a draft of the statutory instrument containing the order has been laid before and approved by a resolution of each House of Parliament.

The noble Baroness said: We now turn to the issues of hearing witnesses abroad through television links. Amendment No. 77, by way of general introduction, gives background to these matters. Currently, television links are covered by provisions in primary legislation. However, the amendment would allow the Secretary of State and Scottish Ministers power to extend it to other types of criminal proceedings by order.

Paragraph 85 of the Explanatory Notes does not give enough clarity. It states: the clause makes provision…for the Secretary of State to extend this provision to other types of criminal proceedings in the future". It would be helpful to know what other types of proceedings may be covered and what kind of departure from current practice might happen in future. I beg to move.

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

Clause 29 partially implements Article 10 of the Convention on Mutual Assistance in Criminal Matters (the MLAC) which provides for hearing witnesses via video link where it is either not possible nor desirable for the witness to travel to the state where his evidence is required. The clause deals with the circumstances where the UK requests evidence in that way.

Clause 29 permits the Secretary of State to expand by a negative resolution order the types of proceedings in which the UK may request that kind of evidence from overseas. The amendment would require such an order to be made by affirmative rather than negative resolution. The Government do not believe that that would be necessary as UK courts are already able to request that type of assistance from overseas in certain proceedings by virtue of Section 32 of the Criminal Justice Act 1988 and Section 273 of the Criminal Procedure (Scotland) Act 1995.

The types of proceedings covered presently include homicide, serious fraud cases and cases involving the evidence of children. The clause provides for those sections to apply to further types of proceedings. Clearly, there are many other potential criminal offences to which those types of proceedings could be applied. All I would say at this point is that there are no present plans by the Lord Chancellor's Department to do so.

I go further. Any decision to extend the types of cases in which that sort of assistance is provided would follow only after extensive consultation with all parties concerned and would reflect a consensus view across the criminal justice system. We believe, therefore, that Clause 29 provides a practical solution ensuring that Section 32 of the Criminal Justice Act and the corresponding Scottish provisions may be extended in future, but with the safeguard that that would be done only after the proper forms of consultation, which, I put on the record, were carried out.

The clause has general application and is not restricted to participating countries. That reflects the existing position under the Criminal Justice Act. We consider that those arrangements have particular benefit in relation to countries outside Europe, which may pose greater travel obstacles for witnesses. That sort of assistance is a useful tool in trials which deal with offences which take place in more than one state, and which are often those involving organised criminal gangs.

In the report of the Select Committee on Delegated Powers and Regulatory Reform on the Bill, no comment was made on the power. We understand, therefore, that it is satisfied that the level of scrutiny of the power is appropriate. I hope that what I have been able to say by way of explanation satisfies the concerns raised by the noble Baroness.

Baroness Anelay of St Johns

I am grateful to the Minister for his response. He referred to the fact that the Select Committee was content with the provisions. I did not intend by my amendment to signal that we were not content with the Select Committee's decision. It was just a tool to elicit the helpful answer given by the noble Lord.

It is useful to have on the record that the Government would make these changes only after —I believe the Minister said—extensive consultation and having achieved consensus across the criminal justice system. Perhaps another matter which the Government would need to take into account is having the budgets to put in place the IT system. Perhaps that would be part of the consultation process. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 29 agreed to.

Baroness Anelay of St Johns moved Amendment No. 78: After Clause 29, insert the following new clause—

"APPLICATION OF SECTIONS 30 AND 31 (1) This section applies for the purposes of sections 30 and 31. (2) Before a person gives evidence he shall be informed in ordinary language of—

1. (a) whether or not he is compelled to give evidence (and if so in what circumstances), and
2. (b) the uses to which his evidence (or the fact of his failure to give evidence) may be put by the court in a country outside the United Kingdom before which the proceedings are carried on."

The noble Baroness said: Amendment No. 78 seeks to clarify the position under Clauses 30 and 31 when witnesses are giving evidence to courts abroad from a court in the UK through a television or telephone link. I seek to elicit by way of clarity what rules on compellability will apply and what rules on the right to silence will apply. To what use will witnesses' evidence be put by the foreign court? Would there be, for example, protection against self-incrimination, or would that be a matter for the law of the foreign state in question on a case-by-case basis? Will the witness be informed of those rules before giving evidence?

I return to a comment I made on the previous amendment. What will be the facilities for this to be carried out? Where will they be placed? Will they be part of the ordinary provision of IT for courts here or will there be special courts which will be particularly well provided with the right kind of IT back-up? I beg to move.

6.30 p.m.

Lord Bassam of Brighton

The purpose of this new clause is to increase the protection of witnesses summoned to give evidence via television link. While the Government understand the concerns behind the amendment relating to rights of silence, compellability, use of evidence, and so forth, we believe that proper safeguards are already provided.

In the case of TV evidence, witnesses may be compelled to give evidence. In the case of telephone evidence, they may not. Schedule 2 makes clear that there is a significant difference between the two types of hearing. Paragraph 1 of Part 1 of Schedule 2, which relates to television links, and is entitled "Securing attendance of witnesses", states that the nominated court has powers for securing attendance of a witness as it does for proceedings before that court.

By contrast, paragraph 11 of Part 2 of Schedule 2, relating to telephone links, is headed "notification of witness" and gives the court the power only to inform a witness of when the hearing will take place. It goes on to state that the, court must be satisfied that the witness is willingly giving evidence by telephone". Schedule 2 sets out the circumstances in which a witness cannot be compelled to give evidence by television link; namely, if he or she, could not be compelled to give [it] in criminal proceedings in…the United Kingdom", if participating in a domestic proceeding; if giving evidence, would be prejudicial to the security of the United Kingdom"; or, in his capacity as an officer or servant of the Crown". The first point ensures that the witness is granted at least the same protections as in domestic proceedings.

The usual domestic summons procedures will apply in relation to television hearings under Schedule 2. The summons will be issued by the domestic court in accordance with our law under Section 97 of the Magistrates' Courts Act 1980. Summonses set out when and where the witness should appear, the consequences of failure to comply and details of whom to contact for more information. We consider the existing summons procedure to be sufficient and robust.

The second requirement—that the witness be informed about the uses to which the evidence may be put—is unnecessary. Witnesses summoned to provide evidence by virtue of a summons issued under Clause 15 are not provided with information about the uses to which their evidence may be put, although they will obviously be aware of the context if they are being called as witnesses.

A witness giving evidence in domestic proceedings would similarly be aware of the context, but would not necessarily be informed of the detailed uses to which the evidence might be put. It is extremely unlikely that the domestic authority would be able to provide the witness with such information. The overseas authority conducting the hearing will inform the witness of as much as is necessary under its law regarding the use of evidence and the implications of failure to comply, but, as the hearing will be conducted under the supervision of that authority—as is made clear in paragraph 6 of Schedule 2—we would not include that condition in the Bill.

The noble Baroness asked about the circumstances in which TV hearings might take place. I am advised by the Lord Chancellor's Department that some 154 magistrates' courts have already been set up for remand links and that these would generally be the ones used. These links currently operate only between courts and prisons for use in remand hearings. I am sure that the noble Baroness is familiar with those. The technology is in place and merely requires refinement by the responsible contractors in order to provide the link services to the courts.

The witness would be present in the UK court. The camera would be linked up to the court in the requesting country. Those facilities would enjoy the benefits of existing security controls in our court buildings. I can provide some examples of where we have seen such systems used in other countries. It is starting to be an established process and procedure and we are becoming increasingly familiar with it. I hope that that assists.

Baroness Anelay of St Johns

One of the most important points was made at the very end of the noble Lord's remarks. He said that we are becoming more accustomed to these systems as they become more established. I should expect "we" to mean those who are involved daily in the criminal justice system.

As a magistrate, I presided over a case where evidence was rightly given by television link. Of course, a witness—or possibly a defendant, although we are dealing here with witnesses—is not necessarily accustomed to such links. It may be the one and only occasion when a witness has come into contact with the court system, and certainly with television links. Therefore, I am sensitive as regards the amount of information that should properly be given to a witness. He may be an expert witness. The way in which the television links are set up, and the way in which split screens are used, may strongly govern the effectiveness of the evidence.

I am grateful to the noble Lord for setting out the general background. In particular, I am grateful to him for placing on record the Government's intention to use the magistrates' courts. We look forward to seeing how the resourcing goes in terms of making sure that it will work. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 79: After Clause 29, insert the following new clause—

"APPLICATION OF SECTIONS 30 AND 31 (NO. 2)

(1) This section applies for the purposes of sections 30 and 31.

(2) For the avoidance of doubt, proceedings before a nominated court are not to be treated as proceedings before a court of any country other than the United Kingdom, and nothing in sections 30 and 31 confers any jurisdiction on a court of any country other than the United Kingdom in respect of anything done in the United Kingdom."

The noble Baroness said: Amendment No. 79 seeks to probe the position in respect of jurisdiction, especially in relation to contempt. Could a witness giving evidence from the United Kingdom be proceeded against for contempt in a foreign state even though his conduct was not a contempt under UK law and thus no action was taken under Clause 30(4)? I beg to move.

Lord Renton

I support the amendment, although I have a confession to make: I have not kept in mind the detail of the Bill sufficiently to know whether the purpose of the clause has already been stated in any other way in the Bill. I hope it has not—because in that case my noble friend's suggestion is rather desirable.

Lord Bassam of Brighton

I am grateful to the noble Baroness for sparking this discussion, as it will enable us to clarify the situation. Other than for the purposes of con tempt of court and perjury, television and telephone hearings are not proceedings before the domestic (UK) court. The Bill simply enables witnesses to be heard as part of proceedings before the overseas court.

Under the Mutual Legal Assistance Convention we, as the home authority, are obliged to ensure that perjury and contempt of court in such circumstances are subject to domestic sanctions. That is necessary because the overseas court which is conducting the hearing will be unable to take any direct action itself. I hope that that provides the clarity sought by the noble Baroness.

Baroness Anelay of St Johns

The Minister has given the answer that I expected. My difficulty still remains. We shall be enforcing a system whereby someone could be accused of an offence of contempt which was not committed in this country. I shall examine the provisions carefully. The Minister's answer is the most that he could possibly have given in the circumstances. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30 [Hearing witnesses in the UK through television links]:

Baroness Anelay of St Johns moved Amendment No. 80: Page 17 line 5, leave out subsection (2).

The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 81 to 84. They cover the giving of evidence by television links. Amendment No. 80 asks the Government to explain what authorities the Secretary of State considers will have the function to make requests as envisaged in the clause. Will they be courts, police, prosecuting authorities or public defenders? Who will be the authorities? I ask the question in order to have an answer on the record.

Amendment No. 81 inserts a new subsection which provides extra protections. The request should specify the reason why it is not desirable or possible for the witness or expert to attend in person; it should state the name of the judicial authority and the names of the persons who will conduct the hearing; and it should state that the witness is willing to give evidence by television link in the proceedings before that court.

I have not dreamt up those protections. They appear to be in paragraph 8 of the second additional protocol on page 7. Why have the Government decided not to put them on the face of the Bill?

Amendment No. 82 removes the Secretary of State's discretion. Subsection (3) states that, the Secretary of State must…in writing nominate a court in the United Kingdom where the witness may", give evidence through a television link unless he considers it inappropriate to do so. I am trying to elicit guidance from the Minister. In what circumstances would the Secretary of State consider it inappropriate to give effect to a request for TV link evidence? The noble Lord may be able to provide an example from existing practice where it may have been thought inappropriate.

Amendment No. 83 introduces an element of good practice into the procedure. It provides that the attention of the witness should be drawn to subsections (4) and (5) before he gives evidence, so that he is aware of the possible consequences of giving that evidence. In particular, it is important that people should be aware that UK rules on contempt and perjury will apply before they give their evidence,

As to Amendment No. 84, what happens if the contempt constitutes an offence of contempt under UK law but not under the law of the state where the evidence is being received? Would any further action be taken on that matter? I beg to move.

Lord Renton

I agree with three of my noble friend's amendments, but there are two that I find rather difficult to support; namely, Amendments Nos. 80 and 82. She has a very powerful reason for seeking the Government's views on the need for Amendments Nos. 81, 83 and 84. Those or similar amendments are essential to ensure that justice is done. I shall not trouble the Committee with the detail at the moment, but the Government need to consider the matter very carefully. Perhaps the Minister would rather not give an answer today on Amendments Nos. 81, 83 and 84. However, I think that the points in those amendments must be dealt with.

Lord Bassam of Brighton

I shall try to provide the best answer that I can. If I miss something, I am sure that we can pick it up later.

Amendment No. 80 deletes the explanation of the term "external authority". The noble Baroness was kind enough to explain that she is seeking guidance to what "external" authorities are. My understanding is that these are the same authorities that generally make requests for mutual legal assistance. They would be courts, prosecutors, central authorities, examining magistrates, official persons and bodies with investigative and prosecuting functions. I think that I am right in saying that these are drawn from arrangements that existed under the 1959 convention on mutual assistance in criminal matters. Article 24 of that convention makes declarations stating which authorities it deems to be judicial authorities. That is where that definition is drawn from.

Amendment No. 81 would require incoming requests from overseas authorities to include the three pieces of information specified. We are not about to accept this amendment, although the Government understand the intention behind it; and we considered including the first two requirements on the face of the Bill. We concluded, however, that it would make the clause unnecessarily restrictive.

The first two conditions are requirements of article 10 of the Mutual Legal Assistance Convention. The problem with including these conditions in a clause of general application is that other future agreements containing provisions on television evidence might not be expressed in precisely the same terms as the convention. For that reason, we do not want the Bill to be drafted so narrowly as to exclude the granting of assistance under other agreements, although in practical terms we would expect these conditions to be met in order to be able to make the necessary administrative arrangements to set up the hearing.

That does not mean that we shall apply a lower standard to requests from outside the EU. In contrast, we consider that the current drafting provides for greater discretion in the absence of an international agreement, because of the general discretion provided for in subsection (3), which provides that the Secretary of State is to nominate a court to hear the evidence unless he considers it inappropriate to do so.

Imposing the third proposed condition—that a witness is willing to give evidence—would also run contrary to the provisions of the convention, so we could not possibly agree to its inclusion. It is possible to impose such a condition only in relation to hearing accused persons—if member states choose, in accordance with Article 10(9), to extend the provision to hearing accused persons. The Government do not propose to enable accused persons to be heard in that way at all.

Subsection (3) gives the Secretary of State discretion not to take forward a request. That is the issue addressed by the third amendment in the group, Amendment No. 82. The point of having that discretion is to enable the Secretary of State not to comply with a request where that request would contravene national law. We consider that the approach in the Bill is preferable because it retains an overall discretion for the Secretary of State in all cases, while not being unduly prescriptive in the conditions that it imposes in relation to overseas requests. We consider that the discretion conferred on the Secretary of State in subsection (3) should be sufficient to meet the concerns that the second amendment seeks to address. In other words, he will be able to refuse requests if they do not contain the necessary information.

The Secretary of State will consider requests from EU countries on the basis of whether they conform to Article 10 of the Convention. If they do not—that is, if there is no indication that it is undesirable or impossible for the witness to travel, and so on—the Secretary of State can refuse to execute the request. In relation to non-EU requests, if an international agreement is in force, we will assist on the basis of its provisions; in the absence of an international agreement, the Secretary of State may exercise his discretion to assist. In those circumstances, he could impose conditions along the lines of those contained in the convention, for example, or, if appropriate in particular cases, more stringent requirements.

The fourth amendment, Amendment No. 83, would introduce a statutory requirement to inform witnesses of their rights and obligations as defined in the clause. It is hard not to be sympathetic to the intention behind the amendment. However, we consider that Schedule 2 contains sufficient safeguards regarding the rights of witnesses and think the amendment unnecessary.

Witnesses who provide evidence in that way will be subject to the same rules on contempt of court and perjury as if they were testifying in a normal domestic court proceeding. They are also protected by any additional rights and privileges that they would have if physically present at the overseas proceeding.

The fifth amendment, Amendment No. 84, would limit the circumstances in which a witness summoned to give evidence before a UK court would be deemed to be in contempt of court. It is unacceptable because it would place an undue burden on the domestic court to have to establish whether an act by a witness in its presence that is contemptuous of court in the UK would also be in contempt of court in the overseas country. The Committee will understand that that would require detailed knowledge of many other legal systems, which is, frankly, impractical.

The clause is designed to protect the domestic court system. After all, the overseas court will be conducting the proceedings. As I explained, it will be for it to establish whether anything that occurs at the UK hearing constitutes contempt for its purposes. We feel that that is a sufficient safeguard.

6.45 p.m.

Baroness Anelay of St Johns

I thank my noble friend Lord Renton for his support for three of the five amendments. I certainly dare not return to the two that he did not support: Amendments Nos. 80 and 82; I shall take his advice on them. I am grateful to the Minister for giving such a full and helpful explanation in response to all the amendments. I was intrigued by his comment in passing on Amendment No. 81 that the Government had considered including paragraphs (a) and (b) in the Bill, but decided that that would be an unnecessary restriction. I shall reconsider that and may return to it on Report, but I do not want to commit myself at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 81 to 84 not moved.]

Clause 30 agreed to.

Clause 31 [Hearing witnesses in the UK by telephone]:

Baroness Anelay of St Johns moved Amendment No. 85: Page 17, line 43, at end insert— ( ) confirm that the witness has received independent legal advice

The noble Baroness said: Schedule 2 does not ensure that evidence given by telephone is protected in the same way as evidence given by television links. One assumes that the difference is simply due to the fact that a witness cannot be compelled to give telephone evidence and that it is not admissible evidence in the United Kingdom. The purpose of the amendment is to ensure that the defendant has an opportunity to receive legal advice. I beg to move.

Lord Goodhart

The names of my noble friend Lord Dholakia and myself are attached to the amendment, but I shall speak also to Amendment No. 91A, which is in this group but which is in our names alone.

The purpose of Amendment No. 91A is to ensure that someone who is giving evidence by television link in a court is entitled to receive legal advice in connection with his right to privilege. The arrangements for television link evidence are a little unclear. It is necessary under the Bill that they are given in a court. I assume that the court is more likely than not to consist of a district judge sitting in a magistrates' court—it seems unlikely that it would go higher than that or that it would be heard by a lay magistrate.

The role of what I shall assume to be the district judge is very limited. The district judge sits there presiding while the television camera is on the face of the witness. There will obviously be a television screen in the court at the other end, from where the questions will be asked. The duties of the nominated court appear to be only to establish the identity of the witness, under paragraph 4 of Schedule 2, and to intervene where it considers that necessary to safeguard the rights of the witness, under Paragraph 5. Under Paragraph 9(1), the witness cannot be compelled to give any evidence which he could not be compelled to give in criminal proceedings in the part of the United Kingdom in which the nominated court exercises jurisdiction". That is directed primarily at the privilege against self-incrimination. I do not need to refer to the following sub-paragraphs.

The examination and cross-examination of the witness may—more likely than not, will, where he or she comes from a non-English speaking country—be carried out in a foreign language. Paragraph 8 of Schedule 2 states: Rules of court…must make provision for the use of interpreters". I find it unlikely that those rules are intended to ensure that all the questions put to and answers given by the witness must be translated for the benefit of a judge who has no possible interest in the substance of the case. If they must be translated, that will make the proceedings much more lengthy and expensive than necessary.

On the other hand, if they are not translated, because the judge will not understand what is going on he will be unable to decide whether the witness is being asked a question that he or she is entitled to refuse to answer on grounds of the privilege against self-incrimination. In those circumstances, the witness ought at least to be given advance advice of what questions he or she might be asked but may be entitled to refuse to answer on grounds of self-incrimination. Otherwise, it is hard to see how those rights can be protected.

The whole question is rather difficult. It may be that translation is intended even in the case of, say, a Polish witness being examined and cross-examined in Polish, but I should like to know what is the position.

Lord Bassam of Brighton

I certainly understand the spirit and intent behind the amendments. The noble Baroness gave the game away when she referred to the defendant, when perhaps she meant the witness. I can see where she is coming from in saying that. I can foresee some of the difficulties that the noble Lord, Lord Goodhart, has raised and shall try to cover them.

The first amendment, Amendment No. 85, would provide additional safeguards for witnesses being requested to provide evidence by telephone link. It would require the requesting authority to confirm that it had received independent legal advice agreeing to participate. The noble Lord, Lord Goodhart, gave a good exposition of the second amendment, Amendment No. 91A. It would provide additional safeguards by requiring rules of court to provide for legal advice to be given "where appropriate".

Although we understand the desire to protect the rights of witnesses—because that is what they are—the Government believe the amendments to be unnecessary and that witnesses will have sufficient protection in any event. To go a step further than that, the amendments would introduce inconsistency between the assistance available to witnesses in domestic proceedings and those participating in foreign proceedings from a UK court.

If a person is summoned to appear as a witness in domestic proceedings, there is no obligation for that person to seek legal advice, as Amendment No. 85 suggests, nor is there an automatic right to legal advice regarding his or her rights, as suggested in Amendment No. 91A. It would not be right or consistent to require provision of legal advice in relation to appearing as a witness as part of overseas proceedings when the UK itself does not require or provide that in the domestic criminal context.

Under the Criminal Defence Service Regulations 2001, legal advice may be provided to a person who is a witness in criminal proceedings if he requires advice regarding self-incrimination. However, there is no general provision regarding access to legal advice for persons appearing as a witness in domestic proceedings and the court will not ordinarily inform people of those rights.

With regard to Amendment No. 85, the clause as drafted requires the requesting country to confirm that the witness is willing to give evidence by telephone in proceedings before the overseas court, in accordance with Article 11(2) of the MLAC. As an additional safeguard, it requires the court to satisfy itself that the witness is willing. That provides protection to the witness if, having agreed to give evidence, he changes his mind by the time of the hearing. There is no question of issuing a summons to unwilling witnesses, because there is no power to summon witnesses in relation to telephone hearings.

The provision does not have general application. We do not expect it to be used frequently. In any event, not all member states are able to request this type of assistance. We understand that it is mainly used by Scandinavian countries.

In relation to the second amendment, the responsibility is on the court to ensure that the witness is not compelled to give any evidence which he could not be compelled to give in criminal proceedings in the UK. Paragraph 5 of Part 1 of the schedule provides that the court may intervene to safeguard the rights of the witness, so for example if the spouse of a suspect had been summoned to appear as a witness, the court could inform the witness that under domestic law they are not obliged to testify. So the court could play—as one would expect in the United Kingdom context—a more pro-active role.

We consider that the domestic court, which acts mainly as a facilitator in these hearings, will adequately fulfil the function of protecting the rights of the witness without introducing far more rigorous protections that apply to the thousands of witnesses who appear in our courts as part of domestic proceedings.

The noble Lord, Lord Goodhart, raised the question of interpretation. The domestic court could intervene if a matter was not understood as it could view that as a necessary step to take to safeguard the rights of a witness. Translation will have to be audible to the judge. In many cases translation from, say, French to English will be advantageous for a witness. He or she will give evidence in the mother tongue in any event. In those circumstances the judge should be fully aware of all the questions. As the noble Lord rightly avers, the district judge in this instance will intervene if he thinks that it is right to do so.

7 p.m.

Lord Goodhart

Before the noble Baroness responds to those comments, I should say that I am pleasantly surprised by the noble Lord's reply. I had rather assumed that there would be no translation facilities available if a witness was being cross-examined in a foreign language which he understood perfectly well. I am pleased to hear that that is not the case. However, that process certainly involves considerably more time being taken up. As regards the more widely spoken European languages, is it contemplated that a panel of district judges might be sufficiently fluent in those languages to be able to sit as judges without having an interpreter present? I cannot see any legal objection to that in so far as this country's laws are concerned.

Lord Bassam of Brighton

It is our expectation that the relevant proceedings would take place in English. Therefore, there would need to be translation.

Lord Goodhart

But the proceedings surely could not take place in English. I refer to the examination of the witness and the witness's replies. If, as I said, a Polish witness was being examined by Polish lawyers, that process could not be undertaken in English. It would have to be translated for the benefit of the judge alone.

Lord Bassam of Brighton

Of course.

Baroness Anelay of St Johns

I am grateful to the noble Lord for that full and helpful response. He correctly identified the fact that I had slipped up by calling the relevant person a defendant rather than a witness. I did so as I was thinking of the need to provide safeguards for witnesses who could conceivably become defendants in the circumstances we are discussing. Witnesses need to be aware of the likely implications of the evidence that they provide. I accept the explanations that the noble Lord has given but on Report we shall want to examine closely what protections might be necessary for witnesses in the circumstances we are discussing. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 agreed to.

Schedule 2 [Evidence given by television link or telephone]:

Baroness Anelay of St Johns moved Amendment No. 86: Page 63, line 30, at end insert— The nominated court must be notified that the witness is willingly giving evidence by television link.

The noble Baroness said: In moving Amendment No. 86, I wish to speak also to Amendments Nos. 87, 88, 89, 91 and 92. These amendments are also concerned with protection for witnesses who give evidence by television link or telephone.

Amendment No. 86 simply imposes a requirement that the court that is nominated should be told that the witness is willingly giving evidence by television link. The anticipation is that if that assurance is not given the proceedings would not go ahead. Is that the case?

Some protection is given to the witness in paragraph 5, to which the noble Lord, Lord Goodhart, referred when speaking to Amendment No. 91A. That paragraph states that the nominated court may intervene where it considers it necessary to do so to safeguard the rights of the witness. We seek the Government's view on how far the court should have a role in safeguarding those rights. Amendment No. 87 would remove the discretion of the court to act in these circumstances and would require it to intervene. It is a tool for intervention.

Paragraph 7 provides that the evidence will be taken in accordance with the laws of the country which has requested that television evidence should be given, but it also provides that the evidence will be subject to any measures the Secretary of State has agreed with the overseas country to protect the witness. Amendments Nos. 88 and 89 probe what approach will generally be taken by the Secretary of State in protecting witnesses.

Amendment No. 91 probes another aspect of the protection which should be afforded to witnesses by providing that the witness could not be forced to give evidence which he could not be compelled to give in criminal proceedings in the overseas country concerned.

Amendment No. 92 extends protection to witnesses giving evidence by telephone by requiring the court to intervene where it thinks it is necessary in order to protect the rights of the witness. I beg to move.

Lord Bassam of Brighton

As the noble Baroness said, Amendment No. 86 seeks to restrict the power of the court to secure the attendance of witnesses to circumstances where the witness is willing to attend. That is unacceptable for the reasons I gave in relation to the second amendment to Clause 30. The UK cannot restrict the application of these provisions to circumstances where witnesses are willing to give evidence because Article 10 of MLAC applies to all witnesses, not only willing ones. We consider that it is appropriate to have the power to compel witnesses to attend and that will be achieved by issuing a summons, as would be done if they were required to appear as a witness in a domestic criminal proceeding.

The noble Baroness explained that Amendment No. 87 is a tool for intervention. It seeks to replace a discretionary power of the court to intervene to protect the rights of the witness with an obligation to do so. While the Government understand the sentiment behind the amendment, we consider it unnecessary. As drafted, the court is granted a discretionary power to intervene, enabling it to do so if necessary. We have confidence that our courts will use that discretion. That seems entirely sufficient for the purposes of protecting witnesses.

The Government consider that Amendments Nos. 88 and 89 are inappropriately worded. Amending any measures for the protection of the witness to those measures for the protection of the witness could imply that such measures would be agreed in all cases. n practice it is unlikely to be necessary to arrange for protection of witnesses in all cases. We therefore consider the current drafting to be appropriate as it does not presuppose that such measures are always necessary.

Amendment No. 89 would require the Secretary of State to be satisfied that the overseas authority has the specified function. That seems to reflect an earlier proposed amendment to Clause 7, which we opposed on the basis that it would introduce an unacceptably high test for the domestic authority to meet. In the context of Schedule 2, the Government consider that the current drafting has all the advantages of what we describe as "linguistic consistency" with that clause.

Amendment No. 92 would replicate the provisions of Part 1 of Schedule 2 regarding the intervention of the court to safeguard the rights of the witness, as set out in Part 2. Again, we do not consider it necessary or appropriate to include that provision. We also believe that it could have a confusing effect.

Under Clause 30 and Part 1 of the schedule, which govern television links, witnesses may be required to attend and are compellable, subject to the privileges in paragraph 9 of Part 1, which we have already discussed.

Finally, I turn to Amendment No. 91. The Government appreciate that the intention of the amendment is to protect witnesses from testifying where they would not be obliged to do so under the law of the requesting country. However, we consider that unnecessary and impractical. Again, it would place a high burden on our domestic courts if they had to examine the law of the requesting country in coming to that view. The right of a witness not to testify if he could not be compelled to do so under the law of the requesting country exists under that country's law. The domestic court involved in the hearing will not know all the details of the requesting country's legal system, nor the circumstances when witnesses could not be compelled to give evidence. We do not believe that it should be expected to do so.

I hope that those explanations satisfy the noble Baroness. If they do not, clearly we shall be able to pursue these matters further.

Baroness Anelay of St Johns

I am grateful to the noble Lord. As I said during debate on the previous group of amendments, I believe that on Report we shall need to return to issues concerning the protection of witnesses. I certainly appreciate some of the Minister's comments with regard to Amendments Nos. 88 and 89, and I doubt whether I shall wish to proceed with those.

I was intrigued with the Minister's response to Amendment No. 87. He commented that the amendment was perhaps unnecessary because we have confidence in our own courts to exercise a discretion in the right way. Indeed, like the noble Lord, I do have confidence in our courts. I believe that the difficulty is that they need to know when they should exercise a discretion. They are going into some fairly uncharted territory here.

Earlier, the noble Lord, Lord Goodhart, raised issues relating to the translation of proceedings. We may need to discuss that matter later but, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 87, 88 and 89 not moved.]

Baroness Anelay of St Johns moved Amendment No. 90: Page 64, line 8, at end insert "including those competent in sign language

The noble Baroness said: In rising to move Amendment No. 90 and speak to Amendment No. 93, I am aware that it is an interesting fact that, as a result of the changes in procedures in both this House and another place, the Grand Committee sits for quite some time after the main Chambers have adjourned. However, be that as it may.

I tabled these amendments simply in order to obtain an assurance from the Minister that the Government will have regard to the needs of witnesses who are deaf or hard of hearing. The Minister will be aware that a substantial number of people in this country—somewhere between 7 million and 8 million—have hearing difficulties. One would assume that the proportion must be the same in other countries, too.

As we have already discussed in debate on other amendments, the rules in Schedule 2 that cover the giving of evidence by telephone and television link refer to interpreters. My amendment simply asks the Government whether interpreters will include those who are competent in sign language or, indeed, in other forms of communication. It is obvious that that would be of benefit to those giving evidence by television. One would also need to know what measures were in place to assist those giving evidence by telephone. I beg to move.

Lord Bassam of Brighton

I can be brief in responding on this matter. The term "interpreters", as it currently stands, is drafted in general terms and would include those competent in sign language. The provision is included to meet the requirement of Article 10 of the MLAC. In practice, domestic courts would always provide interpretation in the event of a witness not understanding the language in which the proceedings were being conducted because the interests of justice would not be served without interpretation.

Therefore, sign language applies as well as verbal interpretation. Under the terms of Schedule 2, the rules of court must already make provision for the use of interpreters. We see no reason why the term "interpreters" should not include those competent in sign language. As I have always understood, signing must be a language all of its own and therefore I see no problem with that. However, we are grateful for the opportunity to clarify the situation. I believe that that will probably have been the last word from either of our two Houses this evening.

Baroness Anelay of St Johns

I can be even briefer in welcoming that excellent response, which I shall transmit to the British Deaf Association and the Royal National Institute for Deaf People. They will be as delighted as I am. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 91 to 93 not moved.]

Schedule 2 agreed to.

Lord Filkin

This may be a convenient moment for the Committee to adjourn until Monday, 27th January at 3.30 p.m.

The Deputy Chairman of Committees (Lord Geddes)

The Committee stands adjourned until Monday, 27th January at 3.30 p.m.

The Committee adjourned at sixteen minutes past seven o'clock.