Grand Committee Report of 27 January 2003

Official Report of the Grand Committee on the Crime (International Co-operation) Bill [H.L.]
(Third Day)
Monday, 27th January 2003.
The Committee met at half past three of the clock.
[The Deputy Chairman of Committees (Lord Skelmersdale) in the Chair.]
The Deputy Chairman of Committees (Lord Skelmersdale): Before calling the Committee to order, I should remind your Lordships that, in the likely event of a Division in the Chamber, the Committee will adjourn for 10 minutes precisely, according to the watch worn by whomever is Chairman at the time, which may or may not reflect what is on your Lordships' watches.
Clause 32 [Customer information]:
Viscount Bridgeman Viscount Bridgeman moved Amendment No. 93A:
Page 18, line 30, after "country" insert "as defined in subsection (9)"
The noble Viscount said: The amendments would clarify the exact definition of a "participating country". On page 30, we are told that it means,
"a member State on a day appointed for the commencement of that provision",
and that the Secretary of State may, by order, add other countries. The Bill does not tell us the qualifications for becoming a participating country. Could any country become a participating country? When will the Secretary of State make an order designating a country?
The British Bankers' Association has raised concerns about the matter, as it feels that Britain should ensure that the information that we will be able to obtain will be not less, nor less timely, than that which the UK will normally provide. We should ensure that there will not be differences due to different laws, bank secrecy rules or banking procedures, which affect access to information, particularly if the retail banking structure is less concentrated than that in the UK. Such differences could reduce the benefits from more ready access to information derived from other states relative to the cost to the UK of providing such information in response to requests for mutual legal assistance.
We would welcome assurances that other countries would provide the same service as we would, and we are anxious that no other countries should be added to the list without having implemented similar provisions. We should not forget the cost of complying with customer information orders. Surely we do not
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want to overburden small banks without, at least, ensuring that we can expect a similar service in return. I beg to move.
Baroness Carnegy of Lour: I support the amendment very much. The Minister explained that different countries dealt with such matters at different speeds. It would be wrong to have an arrangement with a country that was not reciprocal. I hope that the Minister can give a satisfactory reply.
The Parliamentary Under-Secretary of State, Home Office (Lord Filkin): The amendments address the meaning of the term "participating country" in respect of the provisions on banking information. The definition in Clause 52 allows the designation of different countries as "participating" for the purpose of different provisions. It provides that,
"A participating country, in relation to arty provision of this Part, means a country … which is a member State on a day appointed for the commencement of that provision".
That enables us to designate certain states in relation to certain provisions. The provisions in Chapter 4 will apply between countries participating in the protocol, which might include countries other than EU member states.
It is possible that, in contrast to the provisions implementing the framework decision on orders freezing evidence, the provisions could be extended beyond the EU. For example, we understand that Norway and Iceland, which are members of Schengen, are interested in participating in MLAC and the protocol. Another example is Switzerland, which is negotiating to participate in Schengen. Should that be agreed, Switzerland would have the same opportunity to participate in the protocol as other states that are part of Schengen and not part of the EU. It might therefore be appropriate in the future to designate Norway and Iceland and other countries yet to join Schengen as participating countries for the purpose of Chapter 4.
As well as seeking to restrict the application of the provisions to European Union member states, the amendments—I recognise that they are probing amendments—would ensure that they applied only between member states that had implemented the protocol, once all 15 had implemented it. Presumably, the concern is that other member states would be able to make such requests from the UK without being able to reciprocate, as the noble Baroness, Lady Carnegy of Lour, suggested. That fear is unfounded. Member states will have had to ratify the protocol before being able to make such a request and therefore would be in a position to respond to similar UK requests.
The protocol can enter into force before all 15 member states have implemented it. Article 13 states that it shall,
"enter into force in the eight member states concerned 90 days after the notification [of completion of implementation formalities by] the state … which is the eighth to complete that formality".
So, it is possible that the UK will seek and provide the new types of assistance on a reciprocal basis with the other member states that have implemented the

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protocol, even if not all are participating, assuming that the UK is not the last member state to complete its implementation procedures. There is no reason why we should not participate at the earliest opportunity. These are valuable provisions that will assist law enforcement here and elsewhere in the EU.
I hope that that explanation has addressed the concerns raised by the noble Viscount, Lord Bridgeman, and by the noble Baroness, Lady Carnegy of Lour. There is nothing of risk or harm in the measures.
Viscount Bridgeman: I am grateful to my noble friend Lady Carnegy of Lour for raising the point. There should be equal treatment as between the different participating members. We will return to that subject. In the mean time, I am grateful to the Minister for that full explanation, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Bridgeman Viscount Bridgeman moved Amendment No. 94:
Page 18, line 34, leave out ", or arrange for a constable to apply,"
The noble Viscount said: In moving Amendment No. 94, I shall speak also to Amendments Nos. 96C, 98A and 101A.
This is a probing amendment to see who it is that the Government envisage will apply for a customer information order. I note that the Minister is trying to extend the list of appropriate applicants by adding Customs officers. May we have a clarification of the word "constable"? Could it mean any police officer? Given the nature of the orders, would not it be wiser to allow only senior police officers to apply for such an order? Do the definitions mirror those in other countries with similar legislation?
Once again, we are conscious of how much the orders would cost to process and of the time involved, on the part not only of the police force involved but of the financial institutions. We fully support having the ability to obtain such information to deal with international crime, but we must also safeguard ourselves—and other countries—from the vexatious use of such orders. I beg to move.
Lord Renton: I warmly support my noble friend's amendment. Constables vary so much in their abilities and their sense of responsibility that it would be wrong to put the statutory power into their hands. I hope that the Government will leave that provision out.
I also warmly support Amendment No. 95, which is in the same group.
Lord Filkin: With the present drafting, the constable can apply for a customer information order or an account monitoring order only on the instruction of a senior officer. He cannot make an application off his own bat. The senior officer will always be accountable for the decision to seek the order but will not have to spend time going off to a court to put in the application in person.
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Requiring applications for customer information orders or account monitoring orders always to be made in person by a senior officer would impose a disproportionate burden on the police and would not be a sensible use of senior officers' time. Clause 46 states that a senior police officer must be at least of superintendent rank—in other words, two ranks above constable. I hope that what I have said and what the Bill says will put noble Lords' minds at rest. Constables will not act on their own authority but can do so only under direct instructions.
The Bill follows existing practice, as constables already have similar powers in relation to money laundering investigations under Section 378 of the Proceeds of Crime Act 2002, which defines constables as "appropriate officers". As is made clear elsewhere in Chapter 4, CIOs and AMOs sought because of requests under the protocol have been equated with those for money laundering investigations under the Proceeds of Crime Act.
In response to the question on what is happening with other member states and participating countries, as the legislation is new, we are not aware of their precise arrangements for implementing the provision.
Furthermore, it is likely that the request for an order will arise from an ongoing investigation, on which it is likely that the constable, not the senior officer, will have in-depth knowledge. If a case arises where it is appropriate for a senior officer to make the application in person, the present drafting allows for that flexibility. Given that we think it right that a constable be able to apply for an order on the authorisation of a senior officer, it follows that constables should also be able to make applications to discharge or to vary an order. An order may be discharged or varied if, for example, the requesting authority no longer requires the information, or can narrow down the banks from which the information was sought, possibly on the basis of additional information obtained from other aspects of its domestic investigation.
The government amendments are included in this group, as they raise a similar issue regarding the seniority of officers who can apply for such orders. They allow Customs officers to exercise the power to apply for account monitoring and customer information orders. That is consistent with the Proceeds of Crime Act 2000, which also permits Customs officers to apply for the equivalent domestic orders to assist their investigation. It would be illogical not to allow them to apply for orders of this type in response to overseas requests falling within the Customs investigative remit. In line with the approach taken to police officers, the amendments would also allow senior Customs officers to instruct other Customs officers to apply for such orders under their supervision. The reasons are identical to those already outlined with regard to police officers.
I hope that Committee Members will agree that, to be fully effective, the Bill should be consistent with existing legislation, and should ensure that law enforcement officers are fully equipped to tackle money laundering and financial crime.

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Amendment No. 113 provides a definition of "senior customs officer" alongside that of "senior police officer".
Viscount Bridgeman: As Committee Members are aware, Amendment No. 94 is a probing amendment. I am grateful to the Minister for his explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Filkin Lord Filkin moved Amendment No. 95:
Page 14, line 35, at end insert—
"(b) direct a senior customs officer to apply, or arrange for a customs officer to apply, for such an order."
On Question, amendment agreed to.
Viscount Bridgeman Viscount Bridgeman moved Amendment No. 95A:
Page 15, line 40, at end insert—
"( ) No customer information order shall be issued unless—

(a) the authority referred to in subsection (2) has included in its application a full explanation of its reasons behind the application, and

(b) the Secretary of State is satisfied that those reasons are sufficient to justify the issuing of the customer information order."

The noble Viscount said: This point has already been covered in part in other amendments. Again, the British Bankers' Association is particularly concerned with it. Although we agree that there are clear grounds for doing so, the appropriate person applying for a customer information order in connection with a serious offence can be only a positive move in the fight against crime. However, we truly hope that these orders will not become fishing expeditions by police authorities who may suspect some wrongdoing but have no real proof.
This is not just a use of an intrusive order. It may also lead to the over-use of such orders, the danger of which in terms of cost and time I have already outlined to the Committee. I beg to move.
Lord Renton: My noble friend Lord Bridgeman is right to suggest that the authority concerned should give a full explanation of its reasons; otherwise, frivolous applications could be made.
I am sure that my noble friend will not mind my suggesting an alternative way of achieving his purpose. A more compact way of making the point might be to include in subsection (2) a provision that the authority should give a full explanation of its reasons. On principle, my noble friend has raised a point that must be met.
3.45 p.m.
Lord Goodhart: I support in principle the amendment. Article 1(4) of the protocol to the MLAC 2001 states:
"The authority making the request shall, in the request:

—state why it considers that the requested information is likely to be of substantial value for the purpose of the investigation into the offence;

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—state on what grounds it presumes that banks in the requested Member State hold the account and, to the extent available, which banks may be involved;

—include any information available which may facilitate the execution of the request".

At any rate, paragraph (a) of Amendment No. 95A would simply introduce a summary of Article 1(4) of the protocol; therefore there is considerable justification for it. I can see why it would be undesirable for the receiving body to have to investigate whether the facts, as set out in the information, are correct. It would be inappropriate to ask for the facts to be proved, but there is at least a possibility that, in some cases, it will be apparent from the information provided that it is not an appropriate order to seek. In such cases, it would be appropriate to have some way of questioning the matter. On that basis, I am happy to support the amendment.
Lord Filkin: We understand the reasoning behind the questioning on these clauses. But, in practice, for the reasons I shall set out, we do not believe that legislative change is necessary. Clause 32 allows the Secretary of State to respond to requests for customer information orders received from authorities in participating countries. As the noble Lord, Lord Goodhart, said, the Bill already obliges overseas authorities to show that their request for a customer information order relates to the subject of an investigation into serious criminal conduct. So the authority making the request must state what it is about.
Any such requests would be made under Article 1 of the 2001 protocol to the MLAC. Article 1 states that the authority making the request shall explain why the information is likely to be of substantial value to its investigation; give its reasons for believing that the banks in the requested member states hold relevant accounts; and supply any further relevant information.
Clause 32(3) makes clear that the issue of whether to respond to an overseas request is at the discretion of the Secretary of State. It states:
"The Secretary of State may direct a senior police officer to apply".
If the Secretary of State is not satisfied that the request meets the requirements of the protocol, including the provision of the information required by the protocol, he will not take it further.
A further level of discretion is involved in applications for CIOs from overseas. Clause 32 allows the Secretary of State only to direct a police officer to apply for a CIO. The issue of the order depends on Clause 33, which sets out that the making of an order is at the discretion of the judge, who must be satisfied that the conditions of Clause 33(1) are met.
The protocol that these clauses implement imposes, therefore, a heavier burden of proof on those seeking this type of assistance in recognition that such assistance, while essential and valuable, is potentially more burdensome than a mere traditional mutual legal assistance request. We think that the degree of justification provided by the protocol, combined with

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the discretion allowed by Clauses 32 and 33, achieves the right balance. Therefore, there is no need for further legislative entrenchment, since the protocol requires detailed justification of requests, and we have maintained the discretion not to comply with them if they do not meet the criteria in the opinion of either the Secretary of State or the court, on making the order. I hope that I have addressed the concerns raised on the amendments.
Baroness Carnegy of Lour: That was an interesting reply. As the Minister said, Clause 33 provides that the judge must be satisfied that the order is sought for the purposes of the investigation. If he does not know the precise reason for the request for the order, how can he know that it is sought for the purposes of the investigation? I appreciate that we are balancing protecting those who bank with banks and so on with our determination to catch the criminals, and that it is a difficult balance to strike. However, can the judge know that the order is sought for the purposes of the investigation if he does not know the precise reason for the request?
Lord Filkin: I would not want to second-guess judicial discretion, but, essentially, the judge will look at the information and evidence that he has before him when he has to discharge his duty under the Act. If he is not satisfied with that information, he will say no to the request. It will then be up to the requesting authority to provide further and better particulars. One hopes that it does not reach that stage because it would be a waste of the court's time. One therefore hopes that the prior discretion which the Secretary of State can exercise will have been exercised vigorously to ensure that such requests do not reach court unless the Secretary of State feels that the duty under the Act had been adequately answered by the information provided by the requesting state.
In practice, that will not blind the relevant officials administering the arrangements. If they are in doubt, they will ask for further information, until they feel that it is reasonable for the Secretary of State to exercise his discretion to allow a request to go before the court. So it should not be a passive process. If there is any doubt at an earlier stage, the Secretary of State or, more likely, his officials will have challenged the adequacy of the order by the means I have outlined.
Baroness Carnegy of Lour: That is what my noble friend Lord Bridgeman is saying in Amendment No. 95A. The Minister seems to be saying that what my noble friend wants will happen anyway if the Secretary of State and his officials do their job. Is that right?
Lord Filkin: Yes; I was really giving a further gloss on how, in the situation which the noble Baroness instanced—of a judge being in some hesitation—one would hope that, if the Home Office officials had done their work vigorously, they would already have challenged a draft order which seemed to them to
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contain insufficient evidence or justification such that a judge acting reasonably could exercise his judgment under the Act. That is correct.
Viscount Bridgeman: I am grateful for that explanation. Returning to the point made by the noble Lord, Lord Goodhart, we are always modest in our requests. I feel that the provisions of the protocol should be incorporated in the legislation. If the Minister does not feel prepared to give way at this stage, I think that we should like to revisit the matter at a later stage. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goodhart Lord Goodhart moved Amendment No. 96:
Page 19, line 8, at end insert "unless disclosure would be incompatible with a Convention right within the meaning of the Human Rights Act 1998 (c. 42)"
The noble Lord said: In speaking to Amendment No. 96, I shall, with the leave of the Committee, also speak to Amendments Nos. 100, 103 and 108, all of which are in the names of my noble friend Lord Dholakia and myself.
Lord Monson: It is Amendment No. 106, not 108.
Lord Goodhart: Yes; I am grateful to the noble Lord.
Customer information orders under Clause 32, account monitoring orders under Clause 35 and the equivalent Scottish orders under Clauses 37 and 40 intrude into the right of privacy under Article 8 of the European Convention on Human Rights. They will contravene Article 8 unless they are justifiable as being prescribed by law and necessary in a democratic society and so on.
The Bill would normally be interpreted so as not to conflict with convention rights. However, I have some concern with the wording of Clause 32(7), which states:
"A customer information order has effect in spite of any restriction on the disclosure of information (however imposed)".
Similar provisions appear in Clauses 35(6), 37(7) and 40(6). Article 8 could be read as a restriction on the disclosure of information which is excluded by Clause 32(7) and the other subsections to which I referred. I hope that the noble Lord will be able to confirm that it is not in fact the intention of the Bill to exclude the convention rights imposed by the Human Rights Act in considering whether a customer information order or an accounts monitoring order can be made. I beg to move.
Lord Filkin: The amendments would insert explicit references to the safeguards provided by the Human Rights Act in the four clauses covering provision of customer information and account information. For reasons which I shall seek to explain, we consider this to be unnecessary and even potentially confusing. The Joint Committee on Human Rights raised this issue. Having considered it again, I am satisfied that the response that I gave to the Committee was appropriate. I shall try to explain why.

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Customer information orders and account monitoring orders potentially engage Article 8(1) of the European Convention on Human Rights, but the respect for private and family life enshrined in Article 8(1) is qualified by Article 8(2). Any proportionate infringement of Article 8(1) must be justified if it is in accordance with the law and necessary in a democratic society in the interests of the prevention of disorder or crime or for the protection of the rights and freedoms of others. For that reason, the Government consider that the making of customer information and account monitoring orders in the circumstances set out in the identified clauses is justified within Article 8(2).
As the Committee well knows, these provisions support the fight against international crime. They will enable the UK to respond to requests from EU partners for banking information that would help progress an international investigation. They will implement the reciprocal obligation created by the protocol, which will, once in force, enable our investigators to seek valuable information relating to overseas bank accounts of suspects whose criminal activities are being investigated here.
The Human Rights Act applies to all legislation. It would therefore be confusing and superfluous to include additional references to ECHR rights, which would then imply that the provisions do not apply to a particular Bill, or that the ECHR rights always need repetition in Bills in order to take effect.
It may assist if I go a little further. I hope that it is not too technical, but I should like to address the issue of why there is no reference to the ECHR in relation to incoming requests under the protocol whereas there is such reference for overseas freezing orders, to which I have referred.
Clause 21(7) refers to the ECHR for overseas freezing orders. That is to cover situations in which it would be manifestly clear to the UK court that has to give effect to an overseas order that there has been a flagrant breach by the overseas court of the ECHR. In this situation, the UK must not automatically give effect to the overseas freezing order without considering ECHR issues as that could place the UK court itself in breach of its own ECHR obligations.
The framework decision on freezing orders is a mutual recognition measure and provides for only very limited grounds for non-recognition of orders. The protocol, by contrast, is a mutual legal assistance measure. The key difference is that, under the framework decision, refusal by the court is possible in explicit circumstances as set out in Clause 21(6) and (7) of the Bill—namely, incompatibility with the ECHR where the principle of Ne bis in idem (that is, not being prosecuted where there is a previous acquittal or conviction on the same facts) is infringed. Those two grounds are therefore specified in the legislation.
The whole point of mutual recognition is that, apart from these limited circumstances, the overseas freezing order should be recognised. Mutual legal assistance involves a greater level of judicial discretion. The judicial decision is reached here, and so will be subject to the Human Rights Act, rather than in the requesting executing state.
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I hope that that, although complex, is helpful and addressed the points raised by the noble Lord. Lord Goodhart.
4 p.m.
Lord Goodhart: I think it is, but I should like clarification. Obviously, it is possible that someone who is affected by the making of a customer information order or an account monitoring order might challenge the order because, on the facts of that particular case, it is not proportional and is therefore caught by Article 8. Whether or not such a claim succeeds, in that case, would the Government accept that they could not simply say to the court, "You cannot hear this argument; all you can do is decide whether there is an incompatibility"?
Lord Renton: Before the Minister replies, perhaps I may say that we must be very careful. If we are not we shall find that provisions of the Bill will be incompatible with other provisions and with our obligations under the European Convention on Human Rights as implemented by the Human Rights Act. At some point we have to make sure that the customer information given in Clause 32(8) does not lead people into a breach of Clause 21(7) or indeed with the Human Rights Act.
Lord Filkin: I agree with the noble Lord, Lord Renton: it is crucial that we ensure that the legislation is compatible. The Government believe that to be the case. The courts will always have to consider ECHR, whether or not it is on the face of the Bill. Clause 32(7) mirrors exactly the wording in the Proceeds of Crime Act.
As to the specific question of whether a person against whom a customer information order was potentially being levied could mount a challenge that it was disproportionate, the answer must in practice be no, because he or she would not be aware that one was being pursued, for the fairly apparent reason that these are essentially covert, rather than publicised, tracking of information measures.
Nevertheless, that does not raise an iota of concern that ECHR will not apply. It will apply and the courts have to ensure that they are acting within it. I was trying to make a comparison as to why we felt in one case that it was right and proper to put the matter on the face of the Bill, but did not feel that it was necessary here.
Lord Goodhart: I am most grateful to the noble Lord. I shall read with some care what he has said, but I think that he will satisfy me on the point. If so, I do not intend to bring the matter back at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 96A not moved.]
Clause 32, as amended, agreed to.
Clause 33 [Making, varying or discharging customer information orders]:
Viscount Bridgeman Viscount Bridgeman moved Amendment No. 96B:
Page 19, line 23, leave out paragraph (a).
The noble Viscount said: In moving Amendment No. 96B, I shall speak also to Amendment No. 103A, which stands in my name and that of my noble friend Lady Anelay.
The amendment reflects the concern of the British Bankers' Association, which although strongly supportive of many parts of the Bill, is very concerned that an undue and excessive burden should not be placed on the financial community.
I seek clarification as to what Clause 33(2)(a) means. Do the Government envisage every financial institution in a certain country, or indeed in this country, responding to a customer information order? Would that not be too burdensome in practice? I shall put the matter in context: the BBA has more than 300 member banks in various countries and this is but one institution. In what situations will such an undertaking be necessary? How often would the paragraph be used? Would it allow fishing expeditions by police authorities with no real direction, at huge financial cost to the banks, bearing in mind that the smaller the bank, the greater the proportionate burden on it? I beg to move.
Lord Filkin: Again one understands these probing amendments. We are not blind to the fact that customer information orders, whilst we think they are a crucial measure in the fight against crime and international crime, impose more burdens than, for example, account monitoring orders would. The amendments would remove the possibility of a customer information order in England, Wales, Scotland or Northern Ireland specifying all financial institutions. We think that that is unacceptable for two reasons: first, we have opted for consistency with the Proceeds of Crime Act, so that customer information orders made under the protocol follow the procedures of Sections 363 and 397 of that Act as far as possible.
Secondly, and more importantly, we need the ability to specify all accounts. We envisage that it is a power that will be used rarely, because in the vast majority of cases the foreign investigator is likely to have other intelligence pointing to the existence of an account, which will narrow down the scope. Once we have received the request, domestic intelligence checks through NCIS will be likely to point to the existence of accounts at certain banks, enabling the order to be focussed at particular institutions.
However, we believe that there may be exceptional circumstances when that may not apply. For example, in a terrorism case where there is no evidence pointing to an account at a particular bank, but nevertheless the scale of concern about the potential terrorist offence is such that it would justify a wider search to all financial institutions.
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"Financial institutions" is defined in the Bill—if I recollect correctly—as those financial institutions that are subject to regulation, which I interpret as meaning those which are subject to the Financial Services Authority. Where that occurs, they would be defined as financial institutions for those purposes. I should emphasise that that is very rare.
I address the understandable concern of fishing expeditions. The Bill gives the Secretary of State discretion as to whether he executes a request for assistance, as we signalled during the discussion on an earlier amendment, and it gives the court a discretion whether to make the order.
One of the matters that the Secretary of State will take into account will be whether the request contains the information specified in Article 1 of the protocol, in particular the conditions in Article 1(4). That includes, for example, the requirement that the requesting authority state why it is considered that the requested information is likely to be of substantial value to the investigation. If that information is not given, refusal may follow. The test is the same as one of the tests under domestic law in PACE. We are confident, therefore, that we will not be allowing fishing expeditions. It will not be a general trawl as to whether one might know of someone who might have done something wrong; it has to relate to a specific investigation. We expect that in most cases there will be evidence why it was thought that there was a UK-relevance to the investigation.
We have not listed these requirements on the face of the Bill but consider that the general discretion conferred on both the Secretary of State and the court as to whether to execute the request and make the order are adequate and powerful. They will prevent fishing expeditions whilst enabling necessary investigations to be undertaken. I hope that I have addressed the questions raised on this probing amendment.
Baroness Carnegy of Lour: I am trying to think of what happens between England, Wales and Scotland in these matters. Supposing there is a request for information from institutions north of the Border as well as south of the Border, when the judge or the sheriff makes a decision, will they consult one another? Might it be that the order was agreed south of the Border, not north of it? Have the Government thought of that matter, or am I asking an irrelevant question? The request could concern banks in both jurisdictions, could it not?
Lord Filkin: The answer to the noble Baroness's first question is no, and to the second it is yes. She is not asking irrelevant questions, and, no, I had not thought of that circumstance. I shall keep talking and wait for inspiration. We shall consider further the question of cross-Border consultation and write to the noble Baroness.
Viscount Bridgeman: In reference to the request made by my noble friend Lady Carnegy, the theme of the different jurisdictions of the two countries runs

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throughout the Bill. We should be grateful for a concise explanation at a later stage—if necessary on the face of the Bill.
I am grateful to the Minister for his full and reassuring reply to the points raised, in particular as regards the safeguards against fishing expeditions. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 96C not moved.]
Lord Filkin Lord Filkin moved Amendment No. 97:
Page 19, line 32, at end insert—
"( ) a senior customs officer,
( ) a customs officer authorised by a senior customs officer to make the application."
On Question, amendment agreed to.
Clause 33, as amended, agreed to.
Clause 34 [Offences]:
Viscount Bridgeman Viscount Bridgeman moved Amendment No. 97A:
Page 19, line 36, at end insert "within the specified period"
The noble Viscount said: This amendment stands also in the name of my noble friend Lady Anelay. It is a probing amendment to ascertain what time frame, if any, will be imposed on such orders and investigations.
Clause 37 states that a financial institution must provide information,
"in such manner, and at or by such time, as the applicant requires'".
How variable is that time frame? What will happen if a bank simply does not respond to a customer information order? What are the penalties for not complying on time? What does the Minister see as a reasonable period in which an institution must comply? Will the same period of time apply to all institutions, or will there be differences for multinationals, which will have more staff to cope with such requests; or will they be treated in the same way as smaller, specialist banks, which may find it harder to comply quickly? Again, I make the point that this provision would bear more forcefully on the smaller banks. I beg to move.
Lord Renton: Although my noble friend has described this as a probing amendment, as a matter of practical application a time limit needs to be imposed. It would be unreasonable, and it would affect a great many people in an unsatisfactory way, if this matter were allowed to spread over a long period. There are several ways of dealing with it, but that suggested by my noble friend is as good as any. I hope that the Government will regard the amendment sympathetically.
Lord Clinton-Davis: I support the argument advanced by the noble Lord, Lord Renton—not for the first time. The situation at present is left at large. That is not satisfactory from the point of view of the banks, or from the point of view of the person who is affected by the notice. My noble friend the Minister
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ought to consider some appropriate provision between now and Report. This is far too important a matter to leave.
4.15 p.m.
Lord Filkin: The amendment would make it an offence for a financial institution to fail to comply with a requirement imposed by a customer information order "within the specified period".
We consider the amendment to be unnecessary. The process in the Bill is exactly the same as that used under the Proceeds of Crime Act. If a time limit is one of the requirements imposed by the customer information order, the current drafting provides that a financial institution will be guilty of an offence if it fails to comply, without reasonable excuse, within that time limit.
Clause 32(5) makes it explicit that an order may include a time limit, and investigators would be expected to impose reasonable deadlines. If they do so, then the financial institution,
"must provide the information … to the applicant for the order in such manner, and at or by such time, as the applicant requires".
To go further than that would seem to present difficulties. There are two variables: one is the degree of urgency and the other is the degree of difficulty in locating the account. Therefore, it is not reasonable to think that one can impose a standard time period: circumstances will arise where the urgency of the need for the information—I shall not talk at length again about terrorism—may clearly suggest that one wants a very rapid response from the responding financial authorities. In other circumstances there may be no particular urgency other than that one wants to speed the process, and a week or two weeks may be perfectly adequate.
I not sure whether there is an enormous differentiation in the ability of banks of different sizes—international, multinational or smaller financial institutions—to respond. I should have thought that all would have a similar challenge in terms of inspecting their accounts electronically to see whether an account was held by the person who was the subject of inquiry by the authority making the original request.
Investigations currently involve financial institutions, often with orders under PACE. There is always an element of discretion in relation to the operation of such orders. The circumstances of orders are so varied—from major multinationals to small organizations—that standard time limits would be unworkable, whereas there may well be cases where time limits are specified.
Current production orders under PACE do not operate within rigid and fixed time scales, whereas under the Bill is it possible to specify time limits that ought to be reasonable and within which the responding financial institution could be expected to respond unless it could demonstrate a good reason for

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not being able to do so. For the reasons that I have given, I believe that the flexibility in the legislation as drafted is exactly right.
Lord Clinton-Davis: Why does not this provision refer to the earlier one in order to make the situation clear? At present, it is not.
Lord Renton: The Minister has referred to the fact that financial institutions may vary greatly in size, importance and character. Therefore, instead of "the specified period"—the words in the amendment—the reference could be to "a specified period". That would need to be in accordance with the circumstances, but at least "a specified period" would be written on the face of the Bill.
To allow this heavy obligation to drag on indefinitely would be quite wrong. An attempt must be made to bring the matter to a head. That can be done only if the Bill contains a provision along the lines of "a specified period".
Viscount Bridgeman: I am grateful to my noble friend Lord Renton and to the noble Lord, Lord Clinton-Davis, for their support for the amendment. I venture to suggest that, whereas the noble Lord—
Lord Clinton-Davis: I am not entirely sure that I support this specific amendment. I was thinking of another situation entirely.
Viscount Bridgeman: I am most grateful to the noble Lord for his support for the spirit in which the amendment was put. Perhaps I may just make an observation. The Minister said rightly that there is probably little difference between the ability of various banks to comply, but there may be considerable difference in their willingness to comply. For that reason, we should like to revisit this issue at a later stage in the Bill. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Bridgeman Viscount Bridgeman moved Amendment No. 97B:
Page 19, line 41, leave out paragraph (a) and insert—
"(a) knowingly makes a statement which is false or misleading in a material particular, or"
The noble Viscount said: In moving Amendment No. 97B, I shall speak also to Amendment No. 104A, which stands in my name and that of my noble friend Lady Anelay. I believe that paragraph (a) clumsily drafted. I am informed that the form of words in the amendment would be more pertinent. I beg to move.
Lord Monson: I prefer the paragraph as it stands. It is perfectly clear and unambiguous, whereas the wording suggested in the amendment could be interpreted in at least two different ways. For example, it could catch an institution which, in good faith, asserted that a statement was true, only for it to be discovered later that it was false.
Lord Filkin: Not for the first time I find myself in agreement with the noble Lord, Lord Monson, for the reasons that he gave. We consider that while these amendments are essentially drafting points, the provisions as currently drafted have more clarity and less ambiguity. Furthermore, the current drafting is consistent with the Proceeds of Crime Act, which makes it an offence for a financial institution to make a statement it knows to be false or misleading. The offences attract exactly the same penalties as those under that Act.
The drafting in the amendment is such that it could mean that a financial institution in order to be guilty of the offence must knowingly make a statement, rather than make a statement that it knows to be false or misleading. Therefore, we need to maintain current drafting for those reasons. The need for such a provision is self-evident: I do not think that I need to go into detail on that.
There are two offences under this part of the Bill. The penalty for the first—failure to comply—is a fine not exceeding level 5, which is currently £5,000. The penalty for the second—for knowingly or recklessly making a false or misleading statement in relation to a customer information order—is a fine not exceeding the statutory maximum. That is currently unlimited. For those reasons, I hope that I have addressed the probing amendment raised by the noble Viscount, Lord Bridgeman.
Viscount Bridgeman: I am grateful to the Minister for that explanation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 34 shall stand part of the Bill?
Lord Renton: This is one of the most important clauses in the Bill because unless there is a clear provision in the Bill to enable its provisions to be enforced, we shall be enacting a nullity. It is very important to have the offences set out. We have already discussed several of the points that concern Clause 34. But, between now and Report stage, I implore the noble Lord, Lord Filkin, to consider generally whether, in the light of everything that he wants to have enforced in previous provisions of the Bill, Clause 34 describes adequately the offences and ensures that they will be adequate in enforcing the legislation.
Lord Filkin: I am very happy to give that undertaking to the Committee and to the noble Lord, Lord Renton. He is right. It is crucial that this Bill works. Adequate offences, which provide an adequate stimulus for compliance, are an essential part of so doing. I, with my officials, shall give further reflection to that. If the noble Lord, with his usual acuity, spots any further areas where there is any doubt, I should be most grateful if he would let me know of them and we shall test those further.
Clause 34 agreed to.
Clause 35 [Account information]:
Lord Goodhart Lord Goodhart moved Amendment No. 98:
Page 20, line 10, after "into" insert -serious"
The noble Lord said: In moving Amendment No. 98, I shall speak also to Amendments Nos. 101, 105, 107 and 111. I believe that I have the numbers correct this time. The amendments arise from the distinction between a customer information order under Clause 32 and an account monitoring order under Clause 35. A customer information order is triggered only where the customer concerning whom the information is sought is subject to an investigation into serious criminal conduct. An account monitoring order is triggered by an investigation into criminal conduct, whether the crime is serious or not.
Amendments Nos. 98, 101, 105 and 107 seek to limit account monitoring orders to investigation into serious crime. The purpose of Amendment No. 111 is to impose the same limit on the outward request. Amendment No. 112A, which stands in the name of the noble Baroness, Lady Anelay, and the noble Viscount, Lord Bridgeman, picks up a reference that I had not spotted, although it is to the same effect.
Why is there such a difference? A customer information order is wider than an account monitoring order. A customer information order requires more information to be disclosed. Both orders are highly intrusive and, on the face of it, should be subject to a requirement that the investigation be into serious criminal conduct. I assume that these amendments are intended to mirror the apparent differences between Articles 1 and 2 of the 2001 protocol; namely, that the customer information order mirrors Article 1 and the account monitoring order mirrors Article 3.
Article 1 specifically states that:
"The obligation set out in this Article shall apply only if the investigation concerns:
an offence punishable by a penalty involving deprivation of liberty or a detention order of a maximum period of at least four years in the requesting State and at least two years in the requested State".
There is a further reference to an offence in Article 2 of the Europol convention. Those definitions are incorporated into the definition in this Bill of a "serious criminal offence".
There are two questions that arise. First, what is the justification for the variance if they are differently treated under the protocol, because while there is a difference it does not appear to be substantial enough to justify the variance between serious and non-serious criminal conduct? Indeed, I think that it opens up the wider question as to whether there is a difference in the protocol.
Article 3 concerns:
"Requests for the monitoring of banking transactions".
Article 3(1) states that:
"Each Member State shall undertake to ensure that, at the request of another Member State, it is able to monitor, during a specified period, the banking operations that are being carried out through one or more accounts specified in the request and communicate the results thereof to the requesting Member State".
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At that stage there is no reference to a serious criminal offence or criminal conduct of any type.
Paragraph (2) states that:
"The requesting Member State shall in its request indicate why it considers a request in information relevant for the purpose of the investigation into the offence".
There is no indication as to what the words "the offence" refer. It seems to be at least a credible interpretation that they are a reference to the same kind of an offence as would trigger a request for information under Article 1. I would like some explanation of why that is not the case.
Finally, if Article 3 does not require the test of serious criminal conduct, that might bind the United Kingdom and render us unable to insist on there being serious criminal conduct for an incoming request. However, there is no reason why the United Kingdom courts should not apply a higher standard—the test of serious criminal conduct—for outgoing requests made under Clauses 43 and 44.
I am sorry for raising these complex questions of interpretation, but I shall be interested to hear what the noble Lord has to say about them. I beg to move.
4.30 p.m.
Viscount Bridgeman: I shall speak to Amendments Nos. 101, 107, 111 and 112A. We are coming by a slightly different route to the question raised in considerable detail by the noble Lord, Lord Goodhart. My simple question is: does this mean that the Government want to extend the use of monitoring of banking transactions and other provisions to all criminal conduct, or is this merely art oversight and should "serious criminal conduct" he universal throughout this chapter? If the Government envisage all criminal conduct for some of these provisions, what is the justification?
Lord Renton: The Government already use the words "serious criminal conduct" in Clause 37(1) and Clause 38(1) in this part of the Bill. I do not think there is any definition in the Bill of the difference between criminal conduct and serious criminal conduct.
I confess that in my ancient experience of criminal work, now going back many years, I was never a specialist, but I did a lot. I did my first criminal case back in 1934 and my last in 1976. I do not remember any distinction being made then between criminal conduct and serious criminal conduct. It may be that owing to my ignorance, as I have not appeared in a criminal court for many years, I am misguided in thinking that there is no statutory definition of the difference between the two. Within the same part of the same Bill, we must not have some provisions referring to criminal conduct and other provisions referring to serious criminal conduct without there being a definition.
Lord Clinton-Davis: The noble Lord did not mention Clause 32, which also refers to serious criminal conduct. I confess that I am baffled by the word "serious". The consequences of any criminal

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conduct can be serious for the person concerned. For that reason, I ask my noble friend to think again about the terms that have been used.
Baroness Carnegy of Lour: The noble Lord, Lord Goodhart, made the important point that requests that come in two directions should not be in relation to very different levels of offence. I think he suggested that it might be a serious offence coming one way and not so serious the other. Will the Minister reassure us on that point?
Lord Renton: I confess to an oversight. I am most grateful to the noble Lord, Lord Goodhart, for pointing it out to me. Clause 46 is headed "Interpretation of Chapter 4". Serious criminal conduct is defined in subsection (3) as conduct that constitutes,
"an offence to which paragraph 3 of Article 1 … of the 2001 Protocol applies",
or,
"an offence specified in an order made by the Secretary of State or, in relation to Scotland, the Scottish Ministers for the purpose of giving effect to any decision of the Council of the European Union under paragraph 6 of that Article".
I am grateful to the noble Lord for pointing that out and I apologise for not having noticed it sooner. All the same, we must be very careful, bearing in mind that the Bill has used the expression "criminal conduct" frequently so far throughout Parts 1 and 2. The definition of serious criminal conduct is much narrower. If "serious" is to be inserted in a number of new places, we must bear in mind the limitation that it imposes.
Lord Filkin: The noble Lord, Lord Renton, is right. It is always a sign of a Committee working well when its members answer each other's questions and reduce my burdens. I shall speak to the essence of this important issue of why we use the word "serious" in some cases and not in others.
The amendments would limit the assistance that the UK could provide in response to requests for account monitoring to cases of serious criminal conduct rather than criminal conduct generally. Requests for customer information orders under the protocol are limited to investigations into serious criminal conduct, as set out in Clauses 32, 33, 37 and 38. This is in accordance with the terms of the protocol, which only requires member states to assist in limited circumstances on customer information orders, in recognition of the potentially higher volume of work flowing from such requests.
Account monitoring orders are focused on one specific named account and are therefore much less resource-intensive for a financial institution to respond to. Furthermore, they are based on concrete evidence of the existence of an account. They are also arguably less intrusive, as they seek information about an account that has already been identified, whereas customer information orders are designed to identify any account that an individual might hold.
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That is why the differentiation was made in the negotiations on the protocol. We recognised that customer information orders are necessary and will play an important part, but, as they are likely to impose a greater burden on financial institutions than will an account monitoring order, it seemed reasonable to the negotiators—of which we were one—to limit them to the serious cases, as defined in the Bill and the protocol.
The Committee may also be aware that it is already possible under existing mutual legal assistance arrangements for constables to apply for historic account information to be produced to a court in relation to any criminal investigation without any dual criminality. That is done under Section 4 of the 1990 Act—Clause 15 of the Bill—whereby a bank employee may be summoned to produce this information before a court. This new provision is different only in that it relates to future transactions rather than to historic ones. It is likely that a single request would ask for historic information and for the account to be monitored. It would be cumbersome and impractical to be able to accede to the first half of the request and not to the second solely on the ground that the crime was not serious. The purpose is to help to identify and trace criminality. That is why member states thought this was desirable. We therefore need to do all we can to help our partners tackle international crime. Perhaps more selfishly, it is crucial that they cooperate with us in our pursuit of it.
The wider availability of account monitoring orders reflects the conditions for providing this type of assistance, set out in Article 3 of the protocol to the mutual legal assistance convention. This does not limit account monitoring information to cases relating only to serious criminal conduct.
Finally, I remind the Committee that this is a mutual legal assistance measure, not mutual recognition. The decision to grant a request for an account monitoring order is subject to judicial discretion. Clause 36(1) provides that a judge may make an order. The judge must be satisfied that there is a criminal investigation and that the order is sought for the purposes of that.
If I understood the noble Lord, Lord Goodhart, correctly, I cannot easily think why we might want a higher test for outgoing requests than that in the protocol. Such a self-denying ordinance would mean denying ourselves the potential to use the protocol to identify potential criminality. That would be against our interests.
The noble Baroness, Lady Carnegy, is right that this applies either way. It is a reciprocal arrangement. I hope the Committee agrees that I have addressed most of the points. I hope I have done so to the Committee's satisfaction.
Lord Goodhart: I am grateful to the noble Lord for that reply. I shall consider what he has said and decide whether the matter needs further consideration. It is at least possible that we shall wish to pursue it at the next stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 98A not moved.]
Lord Filkin Lord Filkin moved Amendment No. 99:
Page 20, line 15, at end insert—
"(b) direct a senior customs officer to apply, or arrange for a customs officer to apply, for such an order."
On Question, amendment agreed to.
The Deputy Chairman of Committees: Before I call Amendment No. 99A, I inform that Committee that if it is agreed to I cannot call Amendment No. 100.
Viscount Bridgeman Viscount Bridgeman moved Amendment No. 99A:
Page 20, line 24, leave out subsection (6).
The noble Viscount said: The amendment would leave out the subsection that allows an account monitoring order to have effect in spite of any restrictions placed on the disclosure of such information, however imposed. That seems to be a very wide power. Our legal system has safeguards that do not allow disclosure in certain circumstances, such as if the information would tend to incriminate the person concerned or the documents are protected on the ground of public policy. While I am not advocating that these should be implemented here, would not the clause have implications with regard to the Human Rights Act? Should there not be some safeguards against disclosure? I look forward to clarification from the noble Lord on that. I beg to move.
4.45 p.m.
Lord Filkin: Clause 35(6) states:
"An account monitoring order has effect in spite of any restriction on the disclosure of information (however imposed)".
That provision is replicated in Clause 40 for account monitoring orders in Scotland, and in Clauses 32 and 37 for customer information orders. The provision directly replicates Sections 368, 374, 402 and 407 of the Proceeds of Crime Act 2002, which makes identical provision in relation to customer information orders and account monitoring orders made under it.
The purpose of the provision is to require a financial institution to provide the information specified in the order. The requirements for information made under the powers of investigation take precedence in spite of any restriction on the disclosure of information. Banks are therefore able—indeed, required—to breach customer confidentiality and provide the requested information to the court in response to a lawfully made order.
The provision is necessary because otherwise financial institutions could use customer confidentiality as a reason not to accede to a customer information or account monitoring order, which would make them very weak investigatory tools and therefore largely frustrate the purpose of the protocol and the agreement.
As I have said in previous discussions, the ECHR is fully in operation. Banks or financial institutions have to respond to any lawfully made order. That comes back to the point that we touched on previously. In
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exercising its discretion on whether to make an order, the court has to think whether it is lawful and reasonable, taking account of the obligations under the Act.
For those reasons, the limits on disclosure cannot be made a judgment by the financial institution, but they are part of the consideration that the court has to exercise when deciding whether it would be lawful to make an order under the Act.
Viscount Bridgeman: I am grateful to the Minister for that very full reply, by which I am persuaded. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 100 not moved.]
Clause 35, as amended, agreed to.
Clause 36 [Making, varying or discharging account monitoring orders]:
[Amendments Nos. 101 and 101A not moved.]
Lord Filkin Lord Filkin moved Amendment No. 102:
Page 21, line 4, at end insert"—
( ) a senior customs officer,
( ) a customs officer authorised by a senior customs officer to make the application."
On Question, amendment agreed to.
Clause 36, as amended, agreed to.
Clause 37 [Customer information]:
[Amendment No. 103 not moved.]
Clause 37 agreed to.
Clause 38 [Making, varying or discharging customer information orders]:
[Amendment No. 103A not moved.]
Lord Filkin Lord Filkin moved Amendment No. 104:
Page 22, line 9, leave out paragraph (b).
The noble Lord said: I shall speak also to Amendments Nos. 108 and 110. These are technical amendments necessary to ensure that the provisions on banking information for Scotland accurately reflect Scottish procedure. I shall go slightly further, with some temerity. My summary notes describe these three measures as "technical Scottification"—a term that I have never heard before. I am not sure it will catch on.
The first two amendments remove references to a senior police officer from Clauses 38 and 41, which deal with the making, variation and discharge of customer information orders and account monitoring orders in Scotland. This will ensure that Scottish procedure is accurately reflected. In contrast to the rest of the United Kingdom, as provided for in Clauses 32 and 35, under the Scottish provisions in Clauses 37 and 40 police officers do not apply for customer information and account monitoring orders. In Scotland, the procurator fiscal has responsibility for the application to the sheriff for the customer information order and the account monitoring order, so it is appropriate that only the procurator fiscal may

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apply for a discharge or a variation under Clauses 38 and 41. For this reason, it is inappropriate to refer to a senior police officer in these clauses.
The purpose of the third amendment is to clarify in relation to Scotland that the reference in subsection (7) to a power of attorney includes a "factory and commission". Factory and commission is a deed empowering another act for the grantor, such as buying and selling shares, similar to the English power of attorney. This is a technical amendment to reflect the position of the Scots law, where an agency arrangement may be established in writing as either a power of attorney or factory and commission. This agency could be used to operate an account on behalf of another. The amendment clarifies the intention that in whatever form the arrangement is established the agent is a person who holds an account for the purposes of Clause 43. I hope that is an adequate explanation for these three government amendments. I beg to move.
Baroness Carnegy of Lour: I think lawyers in Scotland are extremely anxious that only they should understand some aspects of the law, so that they can have lots of customers. I have never heard of factory in this sense. I looked it up in the dictionary, which gave an ancient meaning of "that which is done by a factor". I suppose that is the derivation. That is interesting. I hope the amendments clarify the law. I do not think that they do so for most Members of the Committee.
On Question, amendment agreed to.
Clause 38, as amended, agreed to.
Clause 39 [Offences]:
[Amendment No. 104A not moved.]
Clause 39 agreed to.
Clause 40 [Account information]:
[Amendments Nos. 105 and 106 not moved.]
Clause 40 agreed to.
Clause 41 [Making, varying or discharging account monitoring orders]:
[Amendment No. 107 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 108:
Page 23, line 25, leave out paragraph (b).
On Question, amendment agreed to.
Clause 41, as amended, agreed to.
Clause 42 agreed to.
Clause 43 [Information about a person's bank account]:
Lord Goodhart Lord Goodhart moved Amendment No. 109:
Page 24, line 31, leave out subsections (3) and (4).
The noble Lord said: Amendment No. 112 is also in this group. Amendment No. 109 would remove subsections (3) and (4). Clause 43(1) authorises a judicial authority in the United Kingdom, on an application made by a prosecuting authority, to request assistance to obtain from another country the equivalent of a customer information account. Clause
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44 again provides for a judicial authority, on an application made by a prosecuting authority, to make a request to an overseas authority in a participating state for assistance that is equivalent to an account monitoring order.
Subsection (3) and (4) of both clauses authorise a prosecuting authority that is designated by an order made by the Secretary of State in England or by the Lord Advocate or a procurator fiscal in Scotland to bypass the need for judicial authority and to make a request directly to the overseas authority. Given that it is broadly accepted that the orders are seriously intrusive, there should be a judicial filter between a prosecuting authority that wishes to have the information and the foreign authority or bank in a foreign country that will be bound to provide it. For those reasons, we believe that subsections (3) and (4) of both clauses should be removed. Only a judicial authority should be able to authorise the application for the order directed to a bank in a foreign country. I beg to move.
Lord Filkin: As the noble Lord, Lord Goodhart, rightly says, these clauses deal with outgoing requests under Article 1 of the protocol to obtain customer information orders. The amendments would prevent designated prosecuting authorities from applying to countries abroad for information relating to banking transactions that would be relevant to an investigation into criminal conduct in the UK. The first amendment relates to the ability of prosecuting authorities to request information concerning any overseas bank accounts that the subject of an investigation may hold. The second relates to the ability to request information about ongoing transactions in respect of a specified overseas bank account—what we have referred to as account monitoring orders in domestic terms.
The Government believe it is right to give designated prosecuting authorities these powers. In practice, it is not the courts, but the designated prosecuting authorities—the Serious Fraud Office, the Crown Prosecution Service and Her Majesty's Customs and Excise—that are responsible for the vast majority of outgoing requests for all forms of mutual legal assistance. Their role in making such requests is well established on a domestic and international basis, as is the equivalent role of the Lord Advocate and the procurator fiscal in Scotland.
If the designated prosecuting authorities were unable to apply for this type of request—as they currently do—which will be the equivalent of seeking a customer information order or account monitoring order in the domestic context, they would be required to go to a court to make applications on their behalf. This would impose an unwarranted extra burden on the courts and require them to do work that could be adequately handled by a designated prosecuting authority. I find it hard to see why we would not give such prosecuting authorities power to request such information internationally when they are able to do so in a domestic context.

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It may be useful if I specify the designated prosecuting authorities identified by statutory instrument under the 1990 Act so that that is on the record. They are: the Attorney-General for England and Wales, the Director of Public Prosecutions and any crown prosecutor, the director of the Serious Fraud Office, the Secretary of State for Trade and Industry, the commissioners of Customs and Excise, the Attorney-General for Northern Ireland and the Director of Public Prosecutions for Northern Ireland. The Bill gives power to the Lord Advocate and the procurator fiscal for Scotland.
These authorities are very experienced in mutual legal assistance. We do not consider that the courts could add anything to a process that is just another form of mutual legal assistance. It is far more effective if those who have knowledge of the cases are able to make requests concerning them. I therefore urge the noble Lord to consider withdrawing the amendments for the reasons I have given.
Baroness Carnegy of Lour: Am I right in being surprised that the Secretary of State for Trade and Industry is not included in the list for Scotland? Might he want to do it? I think his writ runs in Scotland. Or am I wrong?
Lord Filkin: The noble Baroness is right to note that the Secretary of State for Trade and Industry is included, but I do not think that she is right to be surprised. The Secretary of State already has prosecuting powers under domestic legislation, but it is not included for Scotland. The procurator fiscal does it all in Scotland.
Lord Goodhart: I am grateful to the noble Lord for his reply. I shall consider further what he has said and decide in the light of that consideration whether to take these amendments further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Filkin Lord Filkin moved Amendment No. 110:
Page 25, line 13, at end insert—
"In relation to Scotland, a power of attorney includes a factory and commission."
On Question, amendment agreed to.
Clause 43, as amended, agreed to.
Clause 44 [Monitoring banking transactions]:
[Amendments Nos. 111 to 112A not moved.]
Clause 44 agreed to.
Clause 45 agreed to.
5 p.m.
Viscount Bridgeman Viscount Bridgeman moved Amendment No. 112B:
After Clause 45, insert the following new clause—
"ANNUAL REPORT ON EFFECTS OF REQUESTS FOR BANKING INFORMATION
(1) The Secretary of State shall publish each year a report on the effects of requests for banking information introduced under this Act.
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(2) In each report under subsection (1) the Secretary of State shall include—

(a) a cost assessment of complying with a request for information,

(b) the frequency of requests from participating countries, and

(c) the time taken to comply with requests."

The noble Viscount said: The amendment could be described as a good housekeeping amendment, inspired by the British Bankers' Association. It would require an annual report, which would evaluate how much the banking provisions of the Bill are used. In particular, it would be useful to review the unit costs of handling individual cases or the number of inquiries received by the UK under the protocol, if it proves to be significantly greater than estimated.
Consideration should be given to simplifying the procedures for responding to such inquiries so as to reduce the average time that must be spent on handling an inquiry. That might be particularly important for small banks with more limited resources—a point that I have sought to make before. I must also add that the BBA and its member banks hope that they will be invited to participate in any future discussion of the procedures for handling requests, once an order has been made. I beg to move.
Lord Renton: Whether or not one agrees with the detail—and I do—this is an important amendment. The Bill breaks new ground internationally and will affect people's rights all over the world— potentially, at any rate. We should know, from time to time, what progress has been made in implementing it.
The new clause merely asks for details of the effects of requests for banking information. That is not a big demand, but it is important, and I would have hoped that the Government would be sympathetic.
Lord Monson: On this occasion, I am happy to agree with the noble Viscount. As the noble Lord, Lord Renton, said, we are in uncharted waters. Parliamentarians and the public have a right to know the cost to the taxpayer of complying with the requests and to know how often such requests are made.
Lord Filkin: Clearly, something has gone wrong with our procedures. Normally, when we discuss annual reports, it is my noble friend Lord Bassam of Brighton who responds. That apart, I shall address the meat of the issue.
The Opposition proposed a similar arrangement, with the addition of having an independent person to make the report, in respect of the new arrangements for orders freezing evidence. We understand the reasons behind the proposal; the arrangements for providing and receiving banking information to and from our EU partners are new, and it is right that Parliament should have a continuing interest in their use and operational experience, as several noble Lords have said.
As with the proposal relating to freezing orders, we do not see a need for a statutory requirement for a report. It will be open to Members of the House of

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Lords and MPs to obtain information on the working of the new arrangements by tabling Parliamentary Questions. That will be a proper and existing method of scrutiny for the working of the provisions. In other words, I agree with the noble Lord, Lord Renton, that it is right that we should know, from time to time, how the measures are progressing. Parliamentary Questions provide a good means of doing that. However, imposing for time ever onwards a requirement for an annual report would be disproportionate and a potential waste of resources.
Noble Lords have referred to the cost of complying with the requests. It might help if I gave some further information about our estimate of that. As part of the process of planning implementation of the protocol, the Home Office published a regulatory impact assessment that considered the likely cost of complying with the requests. It estimated that the cost of complying could be between £1.26 million and £3.77 million a year for the banking industry, depending on the number of requests received.
Our estimate of the number of requests that we might receive was based on the estimates made for the Proceeds of Crime Act 2002 and on the volume of mutual legal assistance requests that we already receive. We considered that, under the protocol, we could expect to receive between 250 and 350 requests a year from our EU partners in respect of customer information orders and account monitoring orders. A high proportion of those requests will relate to money laundering, the costs of which are already included in the regulatory impact assessment for the Proceeds of Crime Act. The extra cost referred to above related to the estimated number of requests that would relate to other forms of crime.
For customer information orders, it was estimated that we might receive between 50 and 100 additional serious crime requests. For account monitoring orders, we estimated between 50 and 75 additional requests. In both cases, they are annual figures. All that is set out in detail in the regulatory impact assessment, available on the Home Office's website.
I shall say a little about how the process will be administered in practice. I shall respond to the noble Viscount, who asked whether the British Bankers' Association would be invited to participate in handling arrangements. We will, of course, consult the association and other relevant bodies about the handling of such matters.
All requests will be received centrally by the UK Central Authority, which will establish whether the request meets the necessary criteria set out in the Bill and the protocol. If it does, the authority will forward the request to the National Criminal Intelligence Service. NCIS will undertake certain intelligence checks to see whether accounts exist and will then apply to a court for an order. A customer information order will be directed at a number of institutions. It might involve one or two institutions, to obtain details of accounts identified by the initial checks, or a larger number, if that is appropriate to the case. In the case
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of account monitoring orders, the account will already have been identified, so the order will be directed at only one institution.
As noble Lords will, no doubt, point out, regulatory impact assessments are an honest endeavour to make the best assessment that one can of volume, scope and burden. I have no doubt that practice will show some variation from those figures, upwards or downwards. So, it is right and proper for Members of the House to be able to make inquiries after a year or two about how the process is working. Parliamentary Questions are an adequate means of doing so and, if necessary, ensuring that the Government are brought to account for the operation of the measures.
Viscount Bridgeman: We are, of course, mindful that unnecessary expense must not be incurred in an exercise such as that outlined in the amendment. Nevertheless, I shall study carefully the Minister's reply. Transparency and reporting to the public are desirable, and we may revisit the issue on Report. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 46 [Interpretation of Chapter 4]:
Lord Filkin Lord Filkin moved Amendment No. 113:
Page 26, line 11, at end insert "and
"senior customs officer" means a customs officer who is not below the grade designated by the Commissioners of Customs and Excise as equivalent to that rank."
On Question, amendment agreed to.
Viscount Bridgeman Viscount Bridgeman moved Amendment No. 113A:
Page 26, line 14, leave out paragraph (a) and insert—
"(a) an offence which carries a prison term of 10 years or more, or"
The noble Viscount said: I shall speak also to Amendments Nos. 113B and 113C.
This is a probing amendment. "Serious criminal conduct" is defined as an offence under the 2001 protocol or as an offence specified in an order made by the Secretary of State. The matter was the subject of a previous amendment. Which other countries follow the guidelines? Have the guidelines ever been or could they be amended? Would it not be better to list them in the Bill, for the sake of clarity?
With regard to the other two amendments, it should be well known that we oppose the idea that the Secretary of State should have more power. These standard amendments would ensure that new offences added to the list were properly debated by Parliament and would make similar provision for Scotland. I beg to move.
Lord Goodhart: Although I am reluctant to support Amendment No. 113A, I think that there is much to be said for making either Amendment No. 113B or 113C. Given the intrusive nature of the customer information orders, it is important that we make sure that their use is limited to genuinely serious offences.

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Any extension of the order using subsection (3)(b) should be subject not to the negative resolution procedure but to affirmative resolution.
Lord Clinton-Davis: I also support the idea that my noble friend should look carefully before he limits the ability of Parliament to scrutinise legislation. For all I know, my noble friend may have a serious point to make by way of rejoinder, but the burden of proof falls fairly and squarely on him. If I had been in the noble Viscount's position, I would have moved the amendment without any hesitation. That does not mean that there is no answer to the amendment, but the burden of showing that there is falls on my noble friend. I hope that he will be able to discharge that duty.
Lord Renton: I will make a wide, fundamental case for Amendment No. 113A. First, I must confess that, in an earlier discussion, I overlooked the definition of "serious criminal conduct" in the clause. The more I think about it, the more I think that confusion will be caused by having two types of criminal offence —a "criminal offence" and a "serious criminal offence", however defined. There is plenty of time between now and Report for the Government to consider whether the definition will enable justice to be done or even allow the law to be properly complied with.
As we are breaking new ground in international law, as well as domestic law, we must be careful about making that somewhat artificial distinction. If we are to make it, I prefer the definition put forward by my noble friend in Amendment No. 113A to that in the Bill. The definition in the Bill is artificial and vague. It would be better and would improve the effect of the Bill if we were to abolish the distinction between "serious criminal conduct" and "criminal conduct".
As the noble Lord, Lord Goodhart, said, Amendments Nos. 113B and 113C are of a familiar kind. They would only improve the Bill, and I hope that the Government will be sympathetic to them.
5.15 p.m.
Baroness Carnegy of Lour: Regardless of the major point made by my noble friend Lord Renton, I point out to my noble friend Lord Bridgeman that Amendments Nos. 113B and 113C will not do. If they were agreed to, orders defining offences would have to be made by the Scottish Parliament, because it makes secondary legislation. It is important that the same level of offence apply in both parts of the United Kingdom. So there are complications in catering for two jurisdictions. I see what my noble friend Lord Bridgeman has said, but the amendment would need more attention, should the Government be interested in it.
Lord Filkin: I shall try to rise to the challenge set by my noble friend Lord Clinton-Davis to discharge my responsibility to convince the Committee that affirmative resolution is not necessary.
Clause 46 defines "serious criminal conduct" as constituting the offences listed in Article 1(3) of the protocol. It provides that requests for customer
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information may be sought only for crimes with a penalty of at least four years. Amendment No. 113A would enable us to introduce our own threshold for crimes, for which CIOs could be sought, of a maximum sentence of 10 years.
A crime with a maximum sentence of 10 years is undoubtedly serious. But other serious offences would not meet the test, where we might wish to offer, or seek, this type of assistance. Customer information orders will be helpful in tracing and locating criminals and terrorist groups. For example, under the Child Abduction Act 1984, child abduction —taking a child out of the United Kingdom without consent—attracts a maximum sentence of seven years. The Committee will know the distress that that can cause to families. We would not wish to deny ourselves, even if the protocol did not so oblige us, the ability to use customer information orders in such circumstances. Banking information might be a considerable assistance in locating a suspected child abductor.
Some terrorist offences have a sentence of less than 10 years. For instance, possession of a dangerous article on an aircraft, including bombs, grenades or firearms, is classified as a terrorist offence and has a maximum sentence of five years, which may surprise the Committee. Under the Computer Misuse Act 1990, unauthorised modification and unauthorised access with intent both attract maximum sentences of five years. These offences are examples of clime without borders, and they could be the subject of an international investigation, given the considerable damage they can cause.
The amendment would also rule out seeking or providing assistance in investigations into benefit from crime in cases where the maximum sentence is less than 10 years. There are many offences in those categories that might give rise to such an investigation.
Furthermore, imposing a 10-year threshold would place us in breach of the terms of the protocol, meaning that the UK would be considered not to have fully implemented the protocol. We could not, therefore, expect other countries to comply with our requests for assistance of that type.
The noble Lord, Lord Renton, asked whether we should abandon the distinction between crime and "serious" crime. As I have said on several occasions, it is a fundamental element of the protocol. It is there for good reason: to recognise that customer information orders, which are a considerable new measure, as has been rightly said, are potentially enormously valuable in assisting to trace criminal offences, but nevertheless impose burdens on the financial institutions. For that exact reason, the term "serious" has been inserted and defined as set out in the protocol. It strikes the balance between necessity and burden on the financial institutions. We think that that balance is right. It would be wrong not to limit customer information orders to the most serious offences as the protocol and the Bill do. As the noble Viscount, Lord Bridgeman, who was teasing me, knows, these are not guidelines; they are articles in the protocol to a convention that we are under obligation to comply with.

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Amendments Nos. 113B and 113C would mean that any order made by the Secretary of State or Scottish Ministers to designate further offences for which customer information orders may be sought would be subject to affirmative, rather than negative, resolution. Customer information orders provided for in Clauses 32 and 33—Clauses 37 and 38 for Scotland—allow the United Kingdom to make, and assist with, requests to trace banking information in order to assist with investigations into serious criminal conduct. Clause 46 defines "serious criminal conduct" and provides an order-making power for the Secretary of State to specify further offences for which this information can be provided in the future.
I have noted with interest the point by the noble Baroness, Lady Carnegy of Lour, about the Scottish Parliament. I suspect that she is right, as she has been on many occasions, about the requirement on the Scottish Parliament were such an amendment passed. If she is wrong, with temerity, I shall write to point that out.
Clause 46(3)(b) provides that the order-making power be used,
"for the purpose of giving effect to any decision of the Council of the European Union under paragraph 6 of that Article".
That means that, should the EU member states decide that the scope of Article 1 should be broadened to cover more crimes, as provided for in Article 1(6), the UK would be in a position to broaden the assistance it can provide without passing new primary legislation.
This provision was included in the protocol to avoid the need for an amending convention. But any decision to broaden the scope of Article 1 would be taken only in the light of experience of operating the provision, and with the agreement of all member states. The decision would be subject to parliamentary scrutiny through the usual processes. CIOs will be useful not only in tackling financial crime but in tracing and locating criminals and terrorist groups, who might be involved in committing a range of crimes. Therefore, it is necessary that the Secretary of State retain the power to widen the circumstance in which they will be sought in future.
The report of the Delegated Powers and Regulatory Reform Committee concluded that the level of scrutiny of the majority of the order-making powers in the Bill was appropriate, including the power in Clause 46. I am satisfied, therefore, that the power is subject to appropriate levels of scrutiny. I urge Committee Members to withdraw the amendment.
Lord Renton: Having listened to the Minister with interest and care, I feel bound to point out that we are getting into a very confused state. Failure to comply with a request for information on bank accounts is not the most serious criminal offence. Although we should deal with it, there are many more serious offences.
Although, as MP for Huntingdon and a member of the English Bar, I never boasted about it, I am more than half-Scottish and have always been proud to be so. I rejoice that in this Bill we are making special
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provisions for the application of the Scottish legal system. A conflict in practice could arise between Clause 46(3)(a) and the provision in paragraph (b). It is interesting that, although in England, Wales and Northern Ireland, quite serious offences may apply in the context of the Bill, anything specified by an order in Scotland is to be a serious offence. The others will not be so described.
I am sorry to have to say so, but we are getting into a nonsensical situation. The Government must reconsider the concept of defining criminal offences as "serious". It will only lead to confusion, and I am trying to help.
Viscount Bridgeman: I apologise for giving an incomplete explanation of Amendment No. 113A. We had intended to say that it was not intended only to cover crimes with a maximum penalty of 10 years. We would want the Secretary of State to have power to list other crimes, either by schedule or as an order. The Minister has met our requirements in that regard. We shall read carefully what he says.
On Amendment No. 133B, I note what the Minister said about the Delegated Powers Committee. Can he inform us what "parliamentary scrutiny" would mean in this context'?
Lord Filkin: My understanding is that it would be an order made under the negative procedure, allowing any Member to pray against it, therefore enabling debate on the order to take place as is the House's custom.
Viscount Bridgeman: I thank the Minister. I gather that it is open to the House to question the political aspects of what the Delegated Powers Committee has pronounced. We feel strongly about the affirmative procedure in this context. I shall read carefully the Minister's reply, but we may have to reiterate the point on Report.
Lord Filkin: I have made an incorrect statement to the Committee. If the noble Viscount, Lord Bridgeman, was enquiring about scrutiny of an amendment to the protocol, as opposed to the discretionary order-making powers provided by the current Bill and protocol, I was referring to the latter. If he was referring to the European Union changing the protocol within the terms I described, the exact same form of scrutiny would apply as when a new European Union agreement is made—currently under the third pillar. In other words, the document is deposited and is open for inspection by either scrutiny committee of this House and another place, or both. That would enable scrutiny to be discharged through a debate in this House. Members of another place could request a debate on the matter should they so wish. I hope that my answer is sufficient. If I can add anything, I shall be pleased to write to the noble Viscount on reflection.
Viscount Bridgeman: I am most grateful to the Minister for his explanation. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 113B and 113C not moved.]
Clause 46, as amended, agreed to.
Lord Skelmersdale: I remind the Committee that Hansard is not writing down every syllable that Members utter. It depends entirely on the sound recording system picking up what is said in a distant part of the Palace of Westminster. I urge one or two people, who speak very lightly, to bear that thought in mind.
[Amendment No. 113D not moved.]
5.30 p.m.
Clause 47 [Transfer of UK prisoner to assist investigation abroad]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 113E:
Page 26, line 35, leave out "competent" and insert "relevant judicial"
The noble Baroness said: In moving the amendment, I should like to thank the Law Society for its briefing on this matter.
We now turn away from banking provisions and towards the transfer of United Kingdom prisoners in order that they can help in investigations overseas in participating countries. The Explanatory Notes tell us that this new power is unlikely to be used frequently, but that it could be used, and useful, where a prisoner who is helping a UK investigation might be able to identify a site or take part in an identification parade.
Clause 47 tells us that if the Secretary of State has an agreement with the competent authority in a participating country, then he can issue a warrant which will make it possible to transfer a prisoner to that participating country. I have tabled the amendment to ask two main questions. First, what is a "competent authority"? That is not specifically stated in the definitions clause, Clause 52.
Secondly, why does this provision bypass the judicial authorities? Earlier, in a different context, the noble Lord, Lord Goodhart, raised the point about the desirability of bypassing judicial authorities. Why do the Government think it appropriate that there should be no judicial oversight of the issuing of such warrants? Surely one could argue that the advantage of judicial oversight would be that it would help ensure a level of independent scrutiny to prevent any unnecessary or inappropriate requests being made. I beg to move.
Lord Bassam of Brighton: I am grateful to the noble Baroness, Lady Anelay, for her interpretation of her amendment. I think that I can satisfy her on those points.
The amendment is not acceptable to us because in transfer cases the "competent" authority might not in fact be a judicial authority in either one or both of the countries involved. If a prisoner is transferred from the United Kingdom, the request will be made by a prosecuting authority such as Customs and Excise or the CPS. and perhaps usually at the request of the
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police. Those are not judicial authorities but are what are commonly described in these circumstances as "competent" authorities. If a prisoner is transferred to the UK, the request and practical arrangements will be handled by the UK Central Authority and, typically, by the Prison Service, which liaises with the prison, so that there is no involvement of a judicial authority.
So while the authority at the requesting end of the process may be a "judicial authority", it may well be a different, non-judicial authority at the executing end. For that reason, it would not be appropriate to refer only to judicial authorities. We would not expect a judicial authority to make the arrangements for the transfer of prisoners in the UK. In our view, that is quite properly the responsibility of the police and Prison Service, who have the relevant experience and necessary expertise to ensure that all arrangements for the secure transfer of the prisoner run smoothly. So in our view there is no need for the independent judicial authority to be involved.
For those reasons, and because of the way in which we see the provision working—probably much as it does now—we believe that the amendment is inappropriate.
Baroness Anelay of St Johns: I am grateful to the Minister for his response. In obtaining clarity on this Bill, I sometimes seem to take one step forward but two steps back. There was certainly considerable progress in what the Minister told the Committee, but I am still not completely happy with the picture of what a "competent" authority might be in these new circumstances. I certainly may wish to return to these matters at a later stage. For now, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goodhart Lord Goodhart moved Amendment No. 114:
Page 27, line 14, at end insert "and if before making the statement the person making it was offered access to advice on the legal consequences of a transfer for the prisoner and has ether received such advice or has refused to request it"
The noble Lord said: The amendment is based on a proposal by Justice. As usual, I declare an interest in that organisation as one of the vice-chairs of its council.
This power could have significant consequences for a prisoner who agrees to the transfer. Under Clause 47(4), a warrant may be issued to transfer a prisoner abroad only if the prisoner or some appropriate person on behalf of the prisoner has in writing consented to the transfer being made. That is all very well as far as it goes, and of course we welcome the fact that it is a voluntary transfer. Once given, however, that consent is irrevocable. It is an important safeguard to ensure that that consent has been given freely on the basis of adequate information. A transfer of prisoners can have a significant impact on the rights of the persons concerned. Consent to the transfer should be based on full knowledge of the legal implications.
While, obviously, a person cannot be compelled to accept the offer of advice, we believe that it should be a requirement on the face of the Bill that there should at least be an offer of legal advice to the prisoner regarding the possible consequences for him or her of the transfer, so that the consent can be given on the basis of full knowledge of the legal consequences by the person giving the consent. I beg to move.
Lord Bassam of Brighton: The Government certainly appreciate the motives behind the amendment. Its primary intention is clearly to protect prisoners, and to add an additional layer of protection for prisoners, by ensuring that they are offered legal advice before they consent to transfer. However, we consider that the clause already contains more than adequate safeguards for the prisoner. We therefore contend that the amendment is unnecessary. It might help if I explained roughly how we expect the arrangements to work.
Clause 47 builds on existing provisions in Section 5 of the 1990 Act, which enables the UK to transfer a prisoner to another country to assist that country's investigations. Clause 47 introduces slightly different arrangements, enabling the UK to request that a prisoner held here be transferred overseas to assist with our own investigations, should such a situation arise. In a way, these new transfers should be much more straightforward for the prisoner. He or she will be transferred at the request of the UK authorities, rather than at the request of a foreign authority whose procedures would not necessarily be familiar to our Prison Service.
The clause does not introduce anything fundamentally new or innovative; it merely extends existing practices. In relation to the existing procedures under the 1990 Act, prisoners are free to seek legal advice in relation to transfers before they consent to them. It is, however, not automatically provided, and to do so would place an unnecessary burden on prisons.
The Government do not see merit in having a special arrangement for these new types of procedure, which differ from those in the 1990 Act. Transfers take place only after extensive contact between all the relevant parties—the competent authorities in both countries, the central authorities and the prisoner—to ensure that all concerned parties are content with the arrangements. I think that the noble Lord, Lord Goodhart, himself observed that the arrangements are voluntary and have to be conducted with the consent of the prisoner. Those are both important aspects of the issue.
Prisoner transfers are organised with close co-operation between the United Kingdom Central Authority, the Prison Service, the prison where the prisoner is held, the police and the overseas authorities. That close co-operation should help
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ensure that the prisoners' rights are properly protected and that they have a full understanding of their position.
Lord Dholakia: I have one or two questions for the Minister, as these are matters of some concern. Clause 42(7) states:
"This section applies to a person … serving a sentence in a prison",
or,
"in custody awaiting trial or sentence".
One would not know whether those awaiting trial are guilty. That is a matter yet to be decided.
Subsection (5) states:
"The circumstances are those in which it appears to the Secretary of State to be inappropriate for the prisoner to act for himself, by reason of his physical or mental condition or his youth".
How is the Secretary of State going to determine the mental condition of an individual who has not been tried, evidence of which has not been produced in court? Would it not be wise in such cases to ensure that appropriate legal advice is available to the individual, or to a person acting on his behalf, about the consequences of such visits abroad? They may well say things abroad that could be used in evidence against them in the trial which has not yet taken place.
Lord Bassam of Brighton: It is worth reminding ourselves that the Secretary of State needs to be very mindful of the health, particularly the mental health, of prisoners before allowing them to stand trial in this country. One would therefore expect that the proper authorities here would ensure that the prisoner is fit. Given that safeguard, I think it extremely unlikely that the authorities would seek or want to see the transfer of a prisoner who was not fit to travel because of mental or physical incapacity. The key issue in relation to physical health is that the prisoner must give his or her consent. I think that that is a very important and powerful connection.
Baroness Carnegy of Lour: Subsection (2)(a), (b) and (c) of Clause 47 is equivalent to subsection (3)(a) which deals with Scotland and is so much briefer. Do those three paragraphs mean,
"any person detained in custody",
as the Scottish provision states? In other words, are the provisions for England and Wales the same as those for Scotland? If so, why does it take so many more words to state the position in England than in Scotland?
Lord Bassam of Brighton: My advice is that it is a drafting point. I do not know whether that helps the noble Baroness. If she has a real concern about the point, we may be able to give further thought to it. However, we are content with the drafting, which we think is fit for the purpose.
Baroness Carnegy of Lour: It is quite interesting, is it not? Presumably the Scottish provision has come from the Scotland Office, whereas that for England and Wales has come from the Home Office, which has

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found a different solution. As one is much shorter than the other, I should think that we could use the shorter one for both. I am not making a nationalistic point, of course, but it is quite interesting to see the same thing repeated in quite a different form.
Lord Bassam of Brighton: I am sure that the noble Baroness is right. As we all believe in brevity, we shall check that.
Lord Goodhart: I am grateful to the noble Lord for responding to the amendment. We shall look at what he has said and then consider whether this is a matter that we need to bring back for further consideration at the next stage. At this stage, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.45 p.m.
Baroness Anelay Baroness Anelay of St Johns moved Amendment No. 115:
Page 27, line 18, leave out "cannot" and insert "may"
The noble Baroness said: In moving Amendment No. 115, I shall speak also to Amendments Nos. 116 to 120, which stand in my name. The amendments again raise the issue of consent, but from rather a different angle to that covered in the previous amendment.
I appreciate that the Minister may in response say that all this is covered in an existing law and will quote Sections 5(2) and 6(3) of the 1990 Act. However, I have some questions to ask of him, regardless of what I anticipate may be his response. I appreciate that Clauses 47 and 48 mirror those sections in the Act.
So far we have talked about what happens with the giving of consent from the point of view of what legal advice should be available in order to get the person to the stage where they give that consent. My amendments address the issue of consent after that stage has been reached and consent has been given. The Bill states that once the warrant has been issued, that is it and the prisoner cannot withdraw his consent. That is the position under the 1990 Act.
I am aware that the Law Society, for example, is opposed in principle to a provision that makes the giving of consent an irrevocable act. I can understand that as a matter of principle. I look at the issue more from the point of view perhaps of practice, rather than purely as a matter of principle. Therefore, I have tabled the amendment in order to ask the Government to explain why they believe that it is both essential and right in principle and in practice that someone should continue to be prevented from withdrawing their consent.
We have already mentioned that there is some protection before giving consent for those who may have some mental incapacity by reason of age or who because of their youth may need some assistance in making the decision. What happens if after a person gives consent he develops an incapacity—for example—which would make it difficult for him to travel?
On Amendment No. 114, the noble Lord, Lord Bassam, in replying to the questions raised by the noble Lord, Lord Dholakia, said that the Secretary of State would not expect someone to travel if he was ill. The Bill does not give the person any protection. In theory he could be required to travel if he was physically or mentally ill or perhaps mentally incapacitated to such an extent that his assistance might be impaired—for example, in an identification parade. I am trying to get to the heart of what protections there might be, which might not just protect the witness but also the judicial system and its credibility.
I shall briefly state the impact of each amendment, although they are at this stage probing amendments. Amendments Nos. 115 and 118 would provide that a prisoner could withdraw consent after a warrant has been issued.
Amendments Nos. 116 and 119 would confine the ability to withdraw consent to exceptional circumstances, the definition of which would be open for debate.
Amendments Nos. 117 and 120 complete the picture by specifically confining the exceptional circumstances to medical grounds. I beg to move.
Lord Bassam of Brighton: The noble Baroness is right to accurately describe the effects of Sections 5 and 6 of the 1990 Act and to say that these clauses essentially are like "carry on" provisions. They describe the circumstances where a transfer is made from one country at its own request when its investigations require a prisoner's presence in another country.
As I said when speaking to a previous amendment, the clauses as drafted require the prisoner to provide written consent to any transfer before it takes place. The noble Baroness raised a question of what happens if some illness or incapacity occurs when a prisoner is in transit. We appreciate that the amendment is intended to protect the rights of the prisoner, but we think that the amendments would create potentially serious problems.
For example, the amendments could have the effect that the prisoner could withdraw his consent in the middle of the transfer whilst he was overseas. That would be unacceptable. It would invalidate the warrant, which would mean that the, prisoner would not be held in legal custody. If a prisoner was unfit to travel, clearly he would not be obliged or forced to travel, having first given consent. In those circumstances, the prisoner would be seen by a Prison Service medical officer, who would make the final decision. A prisoner who was not fit to travel would not be transferred even if he was still willing to go. I think we can place trust in a proper and full medical assessment. Of course if a person was mentally unfit it is plain that he would not be much use to those conducting the investigation. So, in those circumstances, it is extremely unlikely that any pressure would be put on that person to continue his journey because it would invalidate the conduct of the investigation.

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These arrangements are designed to assist countries with their investigations, where those investigations require the attendance of a prisoner in another country to assist in some capacity, perhaps in the identification of sites or for participation in an ID parade. So it is extremely important that a prisoner is transferred only when he is mentally and physically fit to travel and likely to be of assistance in the investigation.
So steps and measures will be taken to ensure that prisoners are able to travel. If he becomes unfit or unwell during the course of the journey, obviously great care would need to be exercised and some reconsideration of the purpose of that journey being undertaken might be necessary.
Lord Dholakia: I appreciate what the Minister has said. I am still concerned. In many cases, in particular those attending at magistrates' courts or occasionally attending the court trial and so on, I often find that evidence as to the nature of a person's mental illness will come out during a trial and not beforehand. I do not think that the Home Secretary, a prison officer or a prison doctor is in a position to know about the condition. We seek to establish certain safeguards in relation to vulnerable people who may say things that may be held against these individuals, which is quite contrary to natural justice.
Baroness Anelay of St Johns: I may have misunderstood some of the procedure. Can the Minister say at what stage the consent is given? I had assumed that after consent had been given it was possible for there to be some delay before transit took place. In opening his response, the Minister immediately assumed that the incapacity would only develop in transit. So he seems to be saying that consent is given literally as the journey begins. If that is the case, I accept that my amendment would have serious defects. Can the Minister say whether it is always the case that consent is to be given and then transit takes place?
Lord Bassam of Brighton: One envisages a situation where consent is given before we make the necessary administrative and transfer arrangements. So there will inevitably be some period of delay, perhaps a matter of weeks or a month at the most. But there will obviously be a period that would provide more than adequate time to ensure that the prisoner was able, fit and willing to travel. That is the important point.
Baroness Anelay of St Johns: I am grateful to the Minister. He has confirmed that I perhaps understood more than I thought I had. My concern is that consent may be given and then there could be some considerable delay. It is absolutely proper that one would not put the administrative arrangements in place until one knew one had the consent, because that could waste time and money.
That brings me back to my concern that there could be a delay during which incapacity could develop, and, as the noble Lord, Lord Dholakia, said, it is not always the case that incapacity becomes apparent. I think that
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I need to look more closely at experience relating to the 1990 Act and consider what I need to do on Report. The Minister says that we should put trust in the medical assessment and not put protection on the face of the Bill. We need to consider—in the light of perhaps the greater use of these provisions—whether there is sufficient protection. I think that we may agree with the Government that there is sufficient protection, but I need to look at the matter more closely. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 116 and 117 not moved.]
Clause 47 agreed to.
Clause 48 [Transfer of EU etc. prisoner to assist UK investigation]:
[Amendments Nos. 118 to 120 not moved.]
Clause 48 agreed to.
Baroness Anelay Baroness Anelay of St Johns moved Amendment No. 121:
Before Clause 49, insert the following new clause—
"PERSONS UNDER 18 YEARS OF AGE
The Secretary of State may by order provide that the provisions of this Part shall apply with modifications in respect of persons under 18 years of age to take into account the needs of such persons."
The noble Baroness said: I note that throughout Part 1 of the Bill there is no reference to how these provisions may affect young persons under the age of 18. The amendment would give the Secretary of State the power to amend Part 1 in order to take into account the needs of young persons where necessary. A while ago the noble Lord, Lord Dholakia, referred to the needs of young people.
Does the Minister accept that young persons could be directly affected by the provisions of Part 1, although I accept that it is unlikely that they might be so affected? How do the Government expect the authorities to act in dealing with them? Naturally, we would not want young people to be excluded from the operation of the Bill. It is quite possible that one could be a criminal under the age of 18. Sadly, crime statistics show how possible that is. The crime could be committed across international borders.
We need to know whether the Secretary of State proposes that those under 18 should be treated in the same way as adults with regard to the provisions of the Bill? I beg to move.
Lord Bassam of Brighton: The Government appreciate that the amendment seeks to protect the interests of those under the age of 18, but in our view it is unnecessary. The reason is that the provisions on transfer of prisoners in the 1990 Act already apply to those under 18, and there are no special arrangements under that Act to regulate their transfer.
Furthermore, it is not clear precisely what the clause would achieve, nor what the "modifications" referred to would include. Nor is it clear to the Government why modifications would be appropriate.

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As established in Clauses 47 and 48, prisoners may be transferred only if they consent to the transfer, and the issuing of a warrant under either clause depends on the Secretary of State reaching agreement with the other participating country.
There is an absolute discretion on the part of the prisoner and the Secretary of State as to whether he complies with any requests for a transfer. We consider that this discretion, which enables conditions to be attached to transfer and ultimately for a transfer to be refused, makes the additional power unnecessary.
My understanding is that in the region of 30 of these transfers per annum have taken place under the current legislation. We do not anticipate that these provisions will be frequently used. Therefore, the number of people under the age of 18 will be small. I hope that helps the noble Baroness with her amendment.
Baroness Anelay of St Johns: I am grateful to the Minister for his response. He properly directed the Committee to the matter of discretion. We shall look at that matter. There may be issues that we would wish to raise with regard to young persons later in the Bill, but he has satisfied me with regard to this particular measure. We shall not be returning to the point. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 49 agreed to.
6 p.m.
Lord Filkin: Before Clause 50 is called, perhaps I may offer a word of explanation to the Committee. We had originally expected to reach this point on the Marshalled List close to half past seven. Therefore, we had explained to the Opposition Front Benches that the Government intended to take the unusual step of opposing the Question that Clause 50 shall stand part of the Bill—the reason being that we have been persuaded that the clause is no longer necessary; it is superfluous. Therefore, we had thought to break the proceedings at that point, allowing us to recommence on Wednesday.
However, this has been a productive afternoon, and a further hour and a half is available to the Committee. So I am in the hands of the Committee. I apologise for now signalling that it is possible, if the Committee is content to do so, to go further today than we had originally expected. I therefore seek to propose that we should use the extra hour and a half for debate.
I apologise because the Government's intention to oppose the Question that their own Clause 50 shall stand part of the Bill has been tabled but does not appear on the Marshalled List. Therefore, there has not been as much notice as we should normally expect and wish to give. On the other hand, I am aware that we have a good hour and a half available. It would perhaps seem inefficient not to give the Committee the opportunity of using that time if it so wishes. I am not certain whether this requires a formal resolution.
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On Question, Whether Clause 50 shall stand part of the Bill?
The Deputy Chairman of Committees (Lord Ampthill): Members of the Committee are now aware of the Minister's views and are free to say that they would like Clause 50 to stand part, or to make the Minister feel happier and say that they entirely accept his proposal—in which case I shall collect the voices of those present.
Baroness Anelay of St Johns: The Deputy Chairman of Committees has created a procedure by which other noble Lords may be able to respond to the Minister. Speaking only on behalf of the Opposition Front Bench at this stage, we are keen to crack on with as much of the Bill as possible and, within reason, I am prepared to do so. I am aware, however, that that may be inconvenient for other Members of the Committee and do not wish to speak on their behalf.
I simply ask the Minister whether the noble and learned Lord, Lord Lloyd of Berwick, might have been apprised of this. It looks as though, if we proceed, we shall reach his significant amendments on the list. I should be concerned if the noble and learned Lord were not aware of that.
One of the huge disadvantages of taking Bills in Grand Committee—as Members of the Committee will be aware if they look at the monitor—is that noble Lords outwith this room have no incitation as to the stage that has been reached. Therefore, if the Government gave advance indication of their intention to stop at a particular point, I anticipate that the noble and learned would not have received an indication to the contrary. I shall be content to continue, but I appreciate that that may well not be the view of other Members of the Committee or of noble Lords who are not present.
Lord Renton: I am open-minded on that point, but I have another point to raise. I hope that I am not being too narrow-minded in making this suggestion. We should bear in mind that this is a detailed Bill which is breaking new ground. It is a very important Bill, nationally and internationally. I should have thought that two and a half hours at a time is quite long enough for its consideration and that, in any event, we should not attempt today to go beyond Part l, which we should reach before very long. I say that hopefully.
Baroness Anelay of St Johns: As always, my noble friend Lady Carnegy has just put me on the right rails. The monitor indicates the number of the amendment being debated. I apologise for getting that wrong.
Lord Dholakia: I am delighted that my earlier absence led to such fast progress. On future occasions I shall see that as a means of making progress on Bills such as this. I am in the hands of the Committee. We have no difficulty whatever if the Minister wants to proceed. The noble Baroness makes an important point. The noble and learned Lord, Lord Lloyd of Berwick, has tabled Amendment No. 134A. Perhaps there is a procedure whereby we could adjourn the

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debate on that particular matter, or alternatively stop at that point, which does not give us much time for debate anyway.
The Deputy Chairman of Committees: That would mean that we could go as far as the end of the amendments to Clause 52.
Lord Filkin: We should certainly be pleased to deal with group 18 and speak to Amendments Nos. 122 to 126, 129 and 131.
The noble Baroness, Lady Anelay, raised an important point on whether the noble and learned Lord, Lord Lloyd, has been notified of the point at which we intend to end the proceedings. I believe that the relevant powers are seeking to check on that now.
This may not be for me to suggest, but perhaps the question about the noble and learned Lord is a more fundamental issue than whether Clause 50 shall stand part. Therefore, if the Committee is content to do so, while we are waiting for that information, we could deal with the Government's peculiar request to oppose part of their own Bill and deal with group 18—by which time we may have a clear answer as to whether the noble and learned Lord, Lord Lloyd of Berwick, has been notified that we intend to continue. If he has not, I share the view that it would be quite wrong to do so.
Baroness Carnegy of Lour: I am not against what the Minister suggests, but it strikes me that other noble Lords may want to speak to some of these amendments. We must be careful in dealing with this procedure not to be too cavalier. It may suit Members of the Committee who are present, but any Member of the House might wish to speak to an amendment. That said, do other noble Lords think that we might go as far as Amendment No. 170?
Noble Lords: No—to Amendment No. 134.
Baroness Carnegy of Lour: I was concerned—thinking back to the first day in Committee—when we agreed to an amendment on the Marshalled List that was gobbledegook. I read it out as gobbledegook and it was recorded as such. It was corrected in Hansard. We agreed that that amendment should be included in the Bill. The Minister could not really tell us what it was about. I felt that we went a little beyond where we should have done in this procedure. I hope that the Minister will forgive me for mentioning it, but it is relevant. We have to be careful when using this procedure not to overstep the arrangements. We must not include amendments when we do not know what they signify. I wonder whether we should be discussing amendments that others thought we would not reach today.
I may be wrong in saying that in this respect except in so far as it relates to the noble and learned Lord, Lord Lloyd. I suppose that other noble Lords do not know where we shall get to. It is difficult to keep the
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whole House involved in this form of Committee procedure. It confirms my belief that we should not go too far with the freedom that we have to proceed.
Baroness Anelay of St Johns: I apologise to the Committee for asking one further question. I, too, had misunderstood the Minister's first point. I thought that it was his intention that we should stop before reaching the part of the Bill dealing with road traffic. Is he now saying that the intention is to continue after Part 2? I thought that all we were being asked to do was to finish at the end of Part 2.
Lord Filkin: No. I was saying that if we continued—and that would be only if, in all the circumstances, the Committee was comfortable in doing so—we should deal with Part 2 but not begin debating Part 3, dealing with driving disqualifications.
I am sensitive to the concerns expressed by the noble Baroness, Lady Carnegy of Lour. This is a good process, but only in so far as people feel comfortable with it and do not feel that we are going further than is right and proper. It may be that I shall receive categorical information about the noble and learned Lord, Lord Lloyd. That may or may not make those issues feel comfortable as regards groups 21, 22 and 23. If the Committee is content, however, I do not think that anyone would be unduly upset about the Government opposing the Question that Clause 50 shall stand part of the Bill. My remark seems to elicit a smile but not too much outrage. We might be able to do that and deal also with group 18 while waiting for an answer as regards the noble and learned Lord, Lord Lloyd of Berwick. Those are merely suggestions.
The Deputy Chairman of Committees: After that interesting interruption, the Question is whether Clause 50 shall stand part of the Bill? As many as are of that opinion shall say "Content"; to the contrary "Not-Content". I think that the Not-Contents have it. I am told that the noble Lord, Lord Renton, said "Content", although I did not hear him. Is it a unanimous decision that Clause 50 shall not stand part of the Bill? The remaining Members of the Committee do not want it to stand part. I see that the noble Lord is in agreement.
Clause 50 negatived.
Clause 51 [Subordinate legislation]:
Lord Filkin Lord Filkin moved Amendment No. 122:
Page 29, line 19, after "instrument" insert "(other than an instrument to which subsection (4A) applies)"
On Question, amendment agreed to.
[Amendment No. 123 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 124:
Page 29, line 22, after "instrument" insert "(other than an instrument to which subsection (4A) applies)"
On Question, amendment agreed to.
[Amendment No. 125 not moved.]
Lord Filkin Lord Filkin moved Amendment No. 126:
Page 29, line 24, at end insert—
(4A) A statutory instrument containing an order under section 52(2)(b) designating a country other than a member State is not to be made unless—

(a) in the case of an order to be made by the Secretary of State, a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament,

(b) in the case of an order to be made by the Scottish Ministers, a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament."

Baroness Anelay of St Johns: I am becoming very confused. I apologise again, but I have not heard the Government move Amendment No. 122—unless I slept through it, and I do not think that I did.
The Deputy Chairman of Committees: The Minister moved it formally.
Baroness Anelay of St Johns: The Minister did not speak to it with regard to the report of the Delegated Powers and Regulatory Reform Committee.
The Deputy Chairman of Committees: The Minister used the word "formally". I fear that I cannot say what was passing through his mind in using the word. The amendment was spoken to previously.
Baroness Anelay of St Johns: If necessary, we can return to the matter on Report.
Lord Filkin: I beg to move Amendment No. 126.
Baroness Carnegy of Lour: I am trying to de-confuse myself. Am I right in saying that in this amendment, as in Amendment No. 122, the Government are implementing what the Delegated Powers and Regulatory Reform Committee wanted? As a member of that committee, I am particularly interested in this matter. I should be grateful if the Minister could confirm that.
Lord Filkin: With the leave of the Committee, I shall respond fully to that question. It may provide an opportunity to place on record one or two other issues that have not been addressed given the slight complications in this process.
All the amendments in this group deal with the appropriate scrutiny of order-making powers in Part 1 of the Bill. The amendments to Clause 52 deal with the power to designate further participating countries to which the provisions of Part 1 will apply.
To go into more detail, Amendments Nos. 123 and 125 to Clause 51, tabled by the noble Baroness, Lady Anelay, and the noble Lord, Lord Kingsland, will require all orders made by means of the powers contained in Part I to be made by affirmative resolution.
We do not feel inclined to accept these amendments. Making all orders under Part 1 subject to affirmative resolution would be excessively burdensome and would result in the inappropriate use of parliamentary time. We do not believe that such a change would be justified.
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The negative resolution procedure is generally held to offer an appropriate level of scrutiny for this type of legislation. It does not rule out the possibility of a debate should Members feel strongly that this is called for. However, it saves unnecessary debate on matters that simply do not merit it.
The order-making powers in this Bill have been subject to the scrutiny of the Delegated Powers and Regulatory Reform Committee. I thank the committee for their helpful report. With two exceptions—one in Clause 52 which I shall deal with next—the committee found that the powers in the Bill were appropriately delegated and subject to an appropriate degree of parliamentary control. Therefore, I am satisfied that Clause 51 should stand as drafted, and am unable to accept the amendments.
I turn to the amendments tabled to Clause 52—namely, Amendments Nos. 123, 130 and 131—and to the government amendments to Clause 51—Amendments Nos. 122, 124 and 126. Both groups have the same purpose and both relate to one of the concerns of the Delegated Powers and Regulatory Reform Committee. The general thrust of these amendments is to ensure that any order that designated new countries as participating countries for the purposes of Part 1 would be subject to affirmative resolution.
The Opposition amendments to Clause 52—namely, Amendments Nos. 127, 130 and 131—would require any order that designated new countries as participating countries to be made by affirmative resolution. I understand the concerns of the Opposition in relation to this power, which it fears might open up the United Kingdom to unsuitable judicial systems of other countries. The Delegated Powers and Regulatory Reform Committee had similar concerns. Therefore, their report suggested that as the power in Clause 52 to designate countries as "participating countries" could, in theory, be used to designate any country, it should be either restricted in its scope or made subject to affirmative procedure.
In response to the Committee's concerns, the government amendments to Clause 51 would also introduce the affirmative procedure for designated new countries, but with an exception for countries that are already members of the European Union. They provide parallel arrangements for regulations made at Westminster and by the Scottish Parliament. The Government have informed the committee of their intention to table such an amendment, and the committee has indicated that it welcomes that response.
The reason for this exception is that we shall, following their accession to the EU, be designating the 10 new member states due to join in May 2004 to participate in the measures in Part 1. All new member states have gone through an extensive process of assessment before being accepted for membership and must have implemented the EU instruments which this Bill implements.

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As new member states, they have effective judicial systems and are signatories to the European Convention on Human Rights. It would not be appropriate or necessary to put up further barriers to the application of these provisions to these countries. I am confident that this exception should be made.
Amendment No. 129 to Clause 52, the final amendment in the group, is a technical amendment to ensure that the order-making power in Clause 52 is fully consistent with the post-devolution situation. It provides that where a participating country is designated by an order, that order-making power is to be exercised as regards Scotland by the Scottish Ministers responsible for matters within devolved competence, and designating participating countries with regard to judicial co-operation is within their devolved competence.
I hope that in the light of the Government's amendment to Clause 51 and the explanation that I have given in response to the explicit question put by the noble Baroness, Lady Carnegy, as well as addressing a number of other amendments, this may be of assistance to the Committee in their reflections.
6.15 p.m.
Baroness Anelay of St Johns: I am grateful to the Minister, and particularly to my noble friend Lady Carnegy, for providing the opportunity to ask questions at this point. I would have had to hang my questions on Amendment No. 129, on which I have a separate question. I should like to make it clear that our Amendments Nos. 123, 125 and 131 were tabled to elicit from the Government the response that they have given. We welcome the fact that they have, as we believe, fully met the requirements of the Delegated Powers and Regulatory Reform Committee. As the Minister said, our amendments were wider, but our aim was to achieve the result that he has given.
There are other issues which may more properly be debated in court; however, I consider that I should raise them now in order to give notice to the Government. I have some remaining concerns, and for this reason, if the Government decide to list new countries in an order, the House will then face great difficulty because the order cannot be amended.
Perhaps we can imagine a situation in which the Government have listed new countries which are to become "participating countries". There might be just five countries on the list—to pick a number out of the air. Four of those might be wholly unobjectionable. However, some noble Lords might find one of those countries objectionable. As the noble Lord is aware, the rules relating to Standing Orders do not permit us to amend the statutory instrument. The House would then be in the position of having to reject the whole order if it found enough people to do so, instead of being able to amend it. The Government would then be in the position of having to waste more time and money in an attempt to bring back the order.
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My question is: is there any way in which the Government would either be able to bring forward an order for participating countries in respect of just one at a time? What procedure would the Government take to canvass opinion before an order was brought forward which contained more than one country? The reason I raise this issue—it is not something that I have plucked out of the blue—is with regard to a different department. Approximately two or three years ago, the Department for Culture, Media and Sport brought forward a statutory instrument by negative resolution which year by year raises the TV licence fee. Appended to that, the Government saw fit to add in an objectionable matter, but also a wholly admirable one, whereby people over a certain age were able to obtain a free TV licence. Therefore, the House found one part of the order objectionable—an increase in taxation, however indirectly—and the other part absolutely acceptable. I can envisage the same situation occurring here; it might happen.
My final question is very brief. I have already heard from the noble Lord's advisers that there is an absolute and complete answer, but it is one that should be put on the record. It is with regard to Scotland and Amendment No. 129, which would allow the Scottish Ministers to make an order. My question is: could this mean that different countries were participating countries in Scotland as opposed to the rest of the United Kingdom, or would the orders made by the Scottish Ministers simply mirror those made by the Secretary of State?
Lord Renton: I support my noble friend Lady Anelay, who has raised important matters. This Bill depends upon international co-operation. I realise that as far as our own statute and our statutory instruments are concerned, we have to act independently. Other countries will also have to act independently, although complying with international agreements. However, on subordinate legislation, Clause 51 enables only negative resolutions to be made, even on matters of great importance, which could have far-reaching effects. I hope that between now and Report, the Government would consider giving a power to Parliament to consider by affirmative resolution, instead of merely negative resolution, any matter of real importance which might affect the international co-operation.
Baroness Carnegy of Lour: On Amendment No. 129, the noble Lord says that Scottish Ministers would be involved, and my noble friend Lady Anelay asked a rather awkward question. Might Scottish Ministers want different participating states to the Home Secretary? At the moment it is impossible to envisage that, but I am picturing the years ahead when there might be a different party in power in the Scottish Parliament to that south of the Border. If that party in power in Scotland wanted to be really difficult, it could select a tricky country, which the Home Secretary wanted to make a participating state, and refuse to accept it. Perhaps the Minister might think that the

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drafting should be different so that that is impossible. At present, no one would want such a situation to occur, but am I right in thinking that it could? If possible, it is something that we should want to avoid in advance.
Lord Filkin: These are all good questions and I shall hazard an answer to some of them. On the other hand, the questions merit reflection. That is not to imply that the Government necessarily think that we are minded to change. We do not, but it is right and proper that we give the fullest and clearest response. Therefore—it is hoped not too frequently—it is right that on these occasions, when I have received those questions, I shall reply to Members of the Committee.
There are one or two general points that I should make that are reasonably clear. As the Committee knows, essentially, if we make an international agreement through the Justice and Home Affairs Council within certain limits of flexibility, effectively that has to be put into legislation or the Government are in breach of their international obligations. The strict constitutional answer, of course, is that the House can do what it wants, but the Government have an obligation to seek to ensure that their legislation is compliant with the agreements that they have reached in Europe.
Therefore, if a change was made relevant to a member state, there would be no discretion. Alternatively, if it was a non-member state, the affirmative resolution would apply. With regard to Scotland, the general principle is that on Scottish orders they would have to mirror the orders made in Scotland.
However, I should like to set out all of our response to those several points in a letter to all Members present, so that they have the benefit of our reflection. They are important constitutional points and therefore, with the leave of the Committee, that is what I shall do.
On Question, amendment agreed to.
Clause 51, as amended, agreed to.
Clause 52 [General interpretation]
Baroness Anelay Baroness Anelay of St Johns moved Amendment No. 127:
Page 29, line 44, after "removal" insert "or reduction"
The noble Baroness said: Since this is one of those very rare occasions—like hens' teeth—when the Government agree to an Opposition amendment, I am very keen to get this in. I apologise to the Chairman for making heavy weather. I beg to move.
On Question, amendment agreed to.
Lord Filkin Lord Filkin moved Amendments Nos. 128 and 129:
Page 30, line 4, at end insert—
""customs officer" means an officer commissioned by the Commissioners of Customs and Excise under section 6(3) of the Customs and Excise Management Act 1979 (c. 2),"
Page 30, line 17, at end insert "or, in relation to Scotland, the Scottish Ministers"
On Question, amendments agreed to.
Lord Dholakia Lord Dholakia had given notice of his intention to move Amendment No. 130:
Page 30, line 17, at end insert—
"( ) No order shall be made under subsection (2) unless a draft of the order has been laid before and approved by a resolution of each House of Parliament."
The noble Lord said: The Minister dealt at some length with Amendment No. 126 and met some of the points that we wanted to raise with regard to this amendment. In the light of that, I do not intend to move the amendment.
[Amendment No. 130 not moved.]
[Amendment No. 131 not moved.]
Lord Filkin Lord Filkin moved Amendments Nos. 132 to 134:
Page 30, line 18, after ""process"" insert "in relation to England and Wales and Northern Ireland"
Page 30, line 22, leave out "other'
Page 30, line 23, at end insert—
"( ) In this Part, "process" in relation to service in Scotland means a citation by a court or by a prosecuting authority, or an order made by a court, and includes any other document issued or made as mentioned in subsection (3)(a) or (b)."
On Question, amendments agreed to.
Clause 52, as amended, agreed to.
Lord Filkin: The only person whom we told of our intention to pause at this point was the noble Baroness, Lady Anelay of St Johns. The noble and learned Lord, Lord Lloyd of Berwick, has not been seen in the House and is not answering either of his telephone numbers. It would be unwise to proceed, as we do not wish to offend a Member of the House by making any further progress. I propose that we adjourn the Committee until Wednesday at 3.30 p.m.
Lord Renton: I hesitate to intervene, but I think that there is an even stronger reason, which is that we have come to the end of Part 1.
The Deputy Chairman of Committees: The Committee stands adjourned until Wednesday 29th January at 3.30 p.m.
The Committee adjourned at twenty-nine minutes before seven o'clock.