HL Deb 06 February 1990 vol 515 cc704-11

3.3 p.m.

Report received.

Clause 4 [United Kingdom evidence for use overseas]:

The Minister of State, Home Office (Earl Ferrers) moved Amendment No. 1:

Page 4, line 17, after ("State") insert ("or, if the evidence is to be obtained in Scotland, the Lord Advocate").

The noble Earl said: My Lords, if it is neither an impertinence nor presumptuous for me to think so, I believe that it may be for the convenience of your Lordships' House if, when moving this amendment, I speak also to Amendments Nos. 4 to 19 inclusive. Those amendments in my name are all drafting amendments.

They bring the Scottish law into line with the English law as is proposed in the Bill. They do not at all alter the substance of the Bill. If your Lordships are happy with that explanation, I propose to move en bloc Amendments Nos. 4 to 19 when we come to them. Should any of your Lordships wish for an explanation of any one of the amendments, I should be happy to do my best to give it. I beg to move.

On Question, amendment agreed to.

Lord Mishcon moved Amendment No. 2:

Page 4, line 21, leave out ("and").

The noble Lord said: My Lords, this amendment repeats an amendment which appeared on the Marshalled List at Committee stage. Perhaps I may briefly tell the House the purpose of it.

I believe that it is the wish of both sides of the House to ensure that the proper and reputable elements of the City are protected. Bankers have relied for their custom on their reputation for confidentiality in the relationship of banker and customer. The Bill enables a convention to be entered into and it is a convention that has a very justifiable origin. The Bill enables us to sign a convention which allows the United Kingdom in Europe to have mutuality of co-operation and help in regard to criminal offences. With that objective nobody would want to quarrel, certainly nobody on these Benches.

However, by way of a protocol there is a provision which enables a foreign government to require our Government, and in turn for us to require a banker, to deal with what is termed by that government a criminal offence relating to fiscal matters. In our country there are many fiscal matters which do not enter into the criminal realm. However, other countries, quite properly from their own point of view, have a criminal system which deals with fiscal affairs generally. This situation requires a provision for mutual criminality (if I may use that phrase) or a mutual criminal law situation.

If there were not that mutual criminal law situation, it would mean that the country which has fiscal matters as part of its criminal law would be able to ask —in fact, demand —that our bankers should divulge various pieces of information to the demanding country. One imagines that that information would naturally include copies of bank statements.

Your Lordships may think that it would be an odd situation if indeed it were the position that a bank in the United Kingdom should not be obliged to reveal such information to our own authorities but would have to do so in the case of a foreign customer. Noble Lords may agree that it is hardly likely to induce foreign customers to deposit money with our banks if those banks and their accounts are to be subject to the demands which are open to a foreign government by virtue of our entry into this convention and protocol.

When I moved this amendment at Committee stage the noble Earl, Lord Selkirk, was kind enough to support me, and the noble Lord, Lord Monson, rose in my defence, if that is the appropriate phrase to use. The noble Lord, Lord Harris of Greenwich, asked the Minister a question which I paraphrase, but noble Lords may take it for granted that it is accurate. He said, "Is it a fact and do I understand you correctly to mean that we would not be able to sign the protocol and the convention if we were to agree to this amendment?"

Anyone who knows the noble Earl as I have the fortune to do will know perfectly well that if there were any misunderstanding as a result of his reply to that question it would have been inadvertent or as a result of a lack of briefing. However, the noble Earl said in very clear terms, "Yes, that is the position". Again the noble Earl did not say —and I use precisely the same phrase; it must have been inadvertent —what the position was with regard to other countries that had signed the convention and had dealt with the protocol.

The position is this. Eight countries have signed. Of those eight, four have made a reservation in the terms of this amendment; namely, that they will not agree it in regard to fiscal matters. There has been no difficulty. I know that the Minister will agree that I dealt with his replies on the last occasion to the amendment with the same degree of courtesy and understanding that he would have accorded to me had the position been reversed, as it could very easily have been. Had I been in that position I too might have been misled. However, I do not wish to be misled now. I therefore advocate this amendment to the House. It has the full approval of the British Bankers Association. Indeed, it is their plea that your Lordships' House should agree the amendment. It has the full approval of the Law Society. Your Lordships will now know that one half of the countries signing the convention have done exactly what I ask your Lordships to do in this amendment.

Noble Lords may wish to know the names of the eight countries. They are as follows: Denmark, Greece, Italy, Austria, Iceland, Norway, Sweden and the Netherlands. The four countries which have said that they will not agree to the fiscal provisions in the same way that I have asked for in this amendment are Austria, Iceland, Norway and Sweden. I beg to move.

The Earl of Selkirk

My Lords, I am very glad that the noble Lord, Lord Mishcon, has raised the matter again because it is a matter of first-class principle. We are going into a Common Market. How far do we take the rules? Do we take them to a degree that will injure our activities, in particular our financial activities, in this country? That is what the noble Lord has said. I know that he is backed by the bankers. They are concerned that matters of high commerce should for quite irrelevant reasons become known to other countries.

I believe that we have to draw the line there and to say that that is not necessary. It is quite clear that other countries have quite willingly signed the protocol with the reservation such as we would make. My noble friend objected to accepting the proposal before. He stated, with that reservation, that it would make it impossible for us to agree to what was laid down. It is quite evident that that is not the case. In those circumstances I ask the noble Earl to accept the principle.

Lord Harris of Greenwich

My Lords, I should be very sorry indeed if the question that I asked at Committee stage were to get the noble Earl, Lord Ferrers, into any trouble. Although I understand the reasons put forward by the noble Lord, Lord Mishcon, if he and other noble Lords will look at col. 882 of the Official Report at Committee stage he will find that the noble Earl made the position absolutely clear. He stated: In effect, this means that acceptance of the amendments would, since they impose a dual criminality requirement as a prerequisite to the grant of assistance under Clause 4, make it impossible for us to accede to the fiscal provisions of the additional protocol". On that basis, I do not think that there could be much misunderstanding about what the noble Earl said. However, in his defence, since my name was mentioned, I thought it only right to draw attention to what he said.

3.15 p.m.

Lord Mishcon

I wish only to say this so that there is no misunderstanding. That is exactly what I was quoting. The Minister inadvertently gave the impression that it would be impossible to sign the protocol if the amendment that I have moved were agreed to. That is not the position, as is shown by the fact that four other countries have done just that.

Lord Harris of Greenwich

My Lords, since we can make only one speech during Report stage I do not propose to breach the rules of order.

Earl Ferrers

My Lords, I am grateful to the noble Lord, Lord Harris of Greenwich, for two matters. First, he brought us back to a state of order. The noble Lord, Lord Mishcon, had slipped us out of such order wholly inadvertently. Secondly, the noble Lord, Lord Harris, was for once very concerned that he had got me into trouble. That is a very easy situation for me to get into. However, I assure him that on this occasion it was not his fault but that of the noble Lord, Lord Mishcon. The noble Lord, Lord Mishcon, very kindly said that I was courteous and understanding in my approach to matters, and I would hope to be so today. The last thing that I would wish to do would be to mislead either the noble Lord, Lord Mishcon, or anyone else. I am grateful to the noble Lord, Lord Harris, for having come to what I believe is the important part of this concern.

The noble Lord, Lord Mishcon, referred to the fact that we had a debate during the Committee stage on the bankers' concern about the operation of Clause 4. I sought on that occasion to explain the safeguards which are already in the Bill and to set out the reasons why an amendment along the lines now proposed would be both unnecessary and damaging to our ability to co-operate with other countries in the fight against crime. The noble Lord, Lord Mishcon, has suggested that it may indeed be possible to ratify the additional protocol to the European Convention on Mutual Assistance in Criminal Matters while still having a dual criminality requirement in fiscal cases, as these amendments propose.

The protocol is a complex document and its relationship to the convention is equally so. But it is important to bear in mind that the protocol is not only concerned with fiscal offences. This is the point about which the noble Lord, Lord Harris of Greenwich, was concerned. In all it concerns three separate and distinct measures of which fiscal offences are only one. It is possible to ratify the protocol itself if the state concerned can accept any one of those three measures. It follows that it is perfectly possible to ratify the protocol without accepting its fiscal provisions. Article 8 of the protocol makes this possible.

But this would be of very little advantage to us since the other two matters with which the protocol is concerned are largely procedural. In short, there will be only very limited benefit to us in ratifying the protocol unless in doing so we are able to accept its fiscal provisions. In my remarks in our debate in Committee I tried to make it as clear as possible that it was the fiscal provisions of the protocol that we were concerned to be able to ratify. If the amendment which stands in the name of the noble Lord, Lord Mishcon, were to be made to the Bill it would render it impossible for us to accept the fiscal provisions of the additional protocol. We could accept the other provisions but not the fiscal provisions. This is because there is nothing in the wording of the protocol which makes it possible to accept the fiscal provisions but to make this acceptance subject to a dual criminality test. That is the real difficulty with the noble Lord's amendment. The advantages that we believe will follow from ratifying the fiscal provisions of the additional protocol and co-operating with other countries in proceedings involving fiscal offences are, in the Government's view, persuasive.

I hope that that explanation, coupled with the assurance that I gave to the noble Lord in Committee, will satisfy him. I repeat the assurance that I gave him. The noble Lord asked whether I could give an assurance in relation to any fiscal matter complained of. My answer was that the Secretary of State would not give such consent unless a similar matter was a criminal offence in this country.

I explained that I could not give a blanket assurance which would bind any future Secretary of State. However, I gave the assurance that any future Secretary of State, confronted with such a situation, would give it his serious attention. I believe that to be the case. While I understand the noble Lord's difficulties, I assure him that if his amendment were passed he should not be able to sign that part of the protocol which refers to fiscal matters.

Lord Hylton

My Lords, before the Minister sits down, can he explain why Austria, Iceland, Norway and Sweden appear to have excluded the fiscal requirements of the protocol?

Earl Ferrers

My Lords, with the leave of the House, the reservations made by the other countries are not in the terms of the amendment. They state that the four countries concerned will not assist at all in fiscal cases; not that they would do so subject to dual criminality.

Lord Mishcon

My Lords, I regret some of the statements made by the noble Earl only because I regarded as being unfortunate two matters to which I referred. The noble Earl will realise that I am not impugning any part of his integrity when talking to, leading and informing the House. I know him too well to believe that that is in issue.

However, what are we to assume when the following is the position? First, the House was not informed that four countries had made the reservation, as they were entitled to under Clause 8 of the protocol. Secondly, what is one to infer from the question asked at col. 884 of Hansard dated 22nd January: I understood him to say that if the Bill were amended in this fashion we would not be able to ratify the convention. Am I correct in that assumption?"? The noble Earl's answer was, "Yes". As I understand it, that means that one cannot ratify the convention if one makes a reservation in regard to fiscal matters, as four countries have already done.

It would be wrong of me to ask for a Division on the matter. I rely upon what the noble Earl said on the last occasion about what the Secretary of State may do when met with a demand from a foreign country where there was not mutual criminality. He voiced the weakness of that situation in saying that he cannot bind a future Secretary of State. I hope only that all future Secretaries of State will be honourable and will read what the noble Earl said on the last occasion and has repeated on this occasion. However, it would have been most wise and proper if the noble Earl had seen fit to accept the amendment in the light of the information which I have now brought to the House.

Earl Ferrers

My Lords, with the leave of the House, I wish to clarify one matter. The noble Lord, Lord Mishcon, is always fair and I was not conscious of misleading the House. He referred to a question which was asked in Committee by the noble Lord, Lord Harris of Greenwich. He said: I understood him to say that if the Bill were amended in this fashion we would not be able to ratify the convention. Am I correct in that assumption?". I said, "Yes". I should have been more accurate if I had said, "Yes, we would not be able to ratify the fiscal part of that protocol".

As I have explained this afternoon, it is true that we could ratify the protocol but without the fiscal advantages. However, as I have also tried to explain to the noble Lord, Lord Mishcon, we believe that it is important to ratify the fiscal advantages.

Lord Mishcon

My Lords, I am obliged to the noble Earl for that clarification. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Earl Ferrers moved Amendments Nos. 4 and 5:

Page 4, line 25, leave out ("the United Kingdom") and insert ("England, Wales or Northern Ireland or, as the case may be, Scotland").

Page 4, line 30, after ("State") insert ("or, as the case may be, the Lord Advocate").

The noble Earl said: My Lords, as I said when I moved Amendment No. 1, Amendments Nos. 4 to 19 cover matters relating to Scotland in order to bring its law into line with that of England and Wales, as is proposed in the Bill. I beg to move.

On Question, amendments agreed to.

Earl Ferrers moved Amendment No. 6: After Clause 7, insert the following new clause:

"Search etc. for material relevant to overseas investigation: Scotland

.—(1) If, on an application made by the procurator fiscal it appears to the sheriff—

  1. (a) that there are reasonable grounds for believing that an offence under the law of a country or territory outside the United Kingdom has been committed; and
  2. (b) that the offence would constitute an offence punishable by imprisonment if it had occurred in Scotland,
the sheriff shall have the like power to grant warrant authorising entry, search and seizure by any constable as he would have at common law in respect of any offence punishable at common law in Scotland.

(2) No application for a warrant shall be made by virtue of subsection (1) above except in pursuance of a direction given by the Lord Advocate in response to a request received by the Secretary of State—

  1. (a) from a court or tribunal exercising criminal jurisdiction in the overseas country or territory in question or a prosecuting authority in that country or territory; or
  2. (b) from any other authority in that country or territory which appears to him to have the function of making requests for the purpose of this section,
and any evidence seized by the constable by virtue of this section shall be furnished by him to the Lord Advocate for transmission to that court, tribunal or authority.

(3) If in order to comply with the request it is necessary for any such evidence to be accompanied by any certificate, affidavit or other verifying document the constable shall also furnish for transmission such document of that nature as may be specified in the direction given by the Lord Advocate.

(4) Where the evidence consists of a document the original or a copy shall be transmitted and where it consists of any other article the article itself or a description, photograph or other representation of it shall be transmitted, as may be necessary in order to comply with the request.

(5) The Treasury may by order direct that any powers to enter, search or seize granted by virtue of subsection (1) above which may be exercised by a constable shall also be exercisable by, or by any person acting under the direction of, an officer commissioned by the Commissioners of Customs and Excise under section 6(3) of the Customs and Excise Management Act 1979; and the Secretary of State may by order direct that any of those powers shall also be exercisable by a person of any other description specified in the order.

(6) An order under subsection (5) above shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.").

On Question, amendment agreed to.

Clause 14 [Interest on sums unpaid under confiscation orders]:

Earl Ferrers moved Amendments Nos. 7 to 11:

Page 12, line 23, after) ("1973"( insert ("or under section 396(1) of the Criminal Procedure (Scotland) Act 1975").

Page 12, line 27, after ("Court") insert ("or, in Scotland, the sheriff").

Page 12, line 30, after ("payment)") insert ("or under subsection (2) of section 396 of the said Act of 1975 (which makes similar provision for Scotland)").

Page 12, line 32, leave out ("that section") and insert ("the said section 31 or under section 407(1A) of the said Act of 1975").

Page 12, line 35, at end insert ("and in Scotland shall be the rate applicable to an award of damages in the Court of Session").

On Question, amendments agreed to.

Clause 20 [Extradition]:

Earl Ferrers moved Amendments Nos. 12 to 15:

Page 15, line 17, leave out ("or").

Page 15, line 19, at end insert—("or (k) an offence to which section 1 of the Criminal Justice (Scotland) Act 1987 relates;").

Page 15, line 27, after ("Convention") insert ("(i)").

Page 15, line 29, at end insert (";and (ii) an offence to which section 1 of the Criminal Justice (Scotland) Act 1987 relates;").

On Question, amendments agreed to.

Clause 22 [Interpretation of Part II]:

Earl Ferrers moved Amendment No. 16:

Page 16, line 14, at end insert—

("(2A) In relation to Scotland, any expression used in this Part of this Act which is also used in the Criminal Justice (Scotland) Act 1987 has the same meaning as in that Act and "drug trafficking offence" means an offence to which section 1 of that Act relates.").

On Question, amendment agreed to.

Schedule 1 [United Kingdom Evidence for Use Overseas: Proceedings of Nominated Court]:

Earl Ferrers moved Amendment No. 17:

Page 18, line 44, after ("State") insert ("or, in Scotland, the Lord Advocate").

On Question, amendment agreed to.

Schedule 4 [Consequential and other Amendments]:

Earl Ferrers moved Amendment No. 18:

Page 22, leave out lines 16 to 21 and insert —

("4. —(1) The Criminal Justice (Scotland) Act 1987 shall be amended as follows. (2) In section 1—

  1. (a) in subsection (2) after paragraph (c) there shall be inserted — and in paragraph (d) for "or (c)" there shall be substituted ", (c) or (cc)";
  2. (b) in subsection (6) after paragraph (d) there shall be inserted —
(3) In section 3(3) after the words "section 43 of this Act" there shall be inserted the words "or section 13 of the Criminal Justice (International Co-operation) Act 1990". (4) In section 5(2) the words from "at the date" to "first occurs)", the words "on that date" and the words "as at that date" shall cease to have effect.").

On Question, amendment agreed to.

Schedule 5 [Repeals]:

Earl Ferrers moved Amendment No. 19:

Page 23, line 18, at end insert —

("1987 c. 41. The Criminal Justice (Scotland) Act 1987. In section 5(2) the words from "at the date" to "first occurs)", the words "on that date" and the words "as at that date".").

On Question, amendment agreed to.

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