Lords Sitting of 25 February 2003

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Blackburn.

  Nepal
  The Earl of Sandwich askedHer Majesty's Government:
  How they can help to achieve multi-party democracy and poverty reduction in Nepal as a means of confronting the threat from Maoism.
  The Minister for Trade (Baroness Symons of Vernham Dean): My Lords, the United Kingdom welcomes the cease-fire agreed between the Government of Nepal and the Maoists on 29th January. We remain committed, along with the Nepalese Government and our international partners, to seeking a lasting peace in Nepal. Yesterday a special UK representative for Nepal was appointed to help to co-ordinate UK and international efforts in support of the peace process. We also aim to strengthen state and non-state organisations in Nepal to allow civil society to grow. In the past financial year, UK support for Nepal totalled over £29 million, which was mostly focused on poverty reduction. We are reviewing areas for further support.
  The Earl of Sandwich: My Lords, I thank the Minister for her positive reply. But does she accept that it is the failure of successive governments of Nepal and the international community that supports them to address poverty in the rural areas of Nepal that has contributed to the rise of Maoism? In particular, are Her Majesty's Government aware of the case of the Kamaiya bonded labourers, who have been freed due to legislation but still have not had their conditions addressed by the Government as regards shelter and food? Are they doing something about it?
  Baroness Symons of Vernham Dean: My Lords, it is because we are aware of the very conditions that the noble Earl relates to the House that, at the Prime Minister's request, a group of FCO, MoD and DfID officials visited Nepal between 3rd and 7th February. I am aware of the plight of the Kamaiya. We are taking measures to assist them. The DfiD is contributing about £800,000 to a joint German development agency and World Bank programme to support the most vulnerable former Kamaiya families. The programme includes employment opportunities and training, which we hope will benefit about 7,000 families.
  Baroness Northover: My Lords, does the Minister not feel that it is shameful that Gurkhas who serve in the British Army are not accorded the same pension rights as their British counterparts? On a wider point,
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  will she tell us more about what the Government are doing to combat corruption and human rights abuses in Nepal so that aid can be delivered more effectively?
  Baroness Symons of Vernham Dean: My Lords, on the first part of the noble Baroness's question, the Gurkha terms and conditions of service are linked to the Indian army terms under the 1947 tripartite agreement. Pension payments for 22,500 British Gurkhas have been doubled in recent years. The MoD has welcomed the ruling made today by Mr Justice Sullivan in respect of the judicial review brought against it. It has noted that nearly all the claims originally brought against it have been dropped by the claimants or rejected by the court. The department will study carefully Mr Justice Sullivan's ruling or married accompanied service.
  Lord Campbell-Savours: My Lords, will my noble friend consider a request made three years ago that DfID fund the research departments, or a research department, in the library of the Nepalese Parliament, which Nepalese Members of Parliament greatly want? They would benefit in a major way if we were to fund it.
  Baroness Symons of Vernham Dean: My Lords, I will certainly take note of that point and make sure that my colleagues in the Department for International Development are aware of it. As I indicated, some £29 million of aid was sent to Nepal in the past year. In addition, there have been substantial efforts to help the growth of civil society in the country; for example, help was given to the Advocacy Forum—the human rights NGO—and the National Human Rights Commission. Over £1 million was provided for police reform, which also has a strong human rights element. Money was also provided to support conflict resolution and the victims of torture. So a great deal is going on. The noble Lord has made another useful suggestion, which I will relay to my colleagues in the DfID.
  Baroness Rawlings: My Lords, can the noble Baroness explain the extent and nature of the support that Her Majesty's Government provide to Nepal under the Global Conflict Prevention Pool. Given Amnesty International's allegations of serious human rights abuses, as mentioned by the noble Earl, Lord Sandwich, by the government security forces as well as the Maoist rebels, can she assure noble Lords that UK military aid will be linked only to improvements in Nepal's human rights record?
  Baroness Symons of Vernham Dean: My Lords, we are trying hard to ensure that the human rights issues in Nepal are addressed. It is always difficult when considering those matters to find the best means of doing so. But I hope that I have been able to make clear detailed specifications of aid to Nepal, and ways in which we are trying to help the growth of civil society. It is precisely because of the problems that the noble Baroness reiterated that the Prime Minister asked for

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  an inter-departmental team to go to Nepal earlier this month. They have recommended a broad-based package of support for 2003–04 for the emerging peace process, to accelerate the much-needed reforms there and to stabilise security. Those include development assistance, quick-impact service delivery and, very importantly, looking at how the security forces operate, which should be without such difficulties as the noble Baroness described.
  Lord Bramall: My Lords, first, does not the noble Baroness agree that the wonderful Gurkhas are treated immensely fairly? They get exactly the same take-home pay as a British soldier in this country; if they are killed on active service, they get exactly the same pension, and their pension rights are related to the tripartite agreement and conditions in Nepal.
  Secondly, does the Minister agree that, although it is wonderful to have a peace process with the Maoists, it is essential that they do not know that they can win by military means? Therefore, does she agree that it is important that the Nepalese Government can give protection to the people in the hills? Are the British Government doing all they possibly can to help the Royal Nepalese Army and the police to carry out this operation, of which we have had so much experience?
  Baroness Symons of Vernham Dean: My Lords, of course I agree with what the noble and gallant Lord says in relation to the Gurkhas. But, far more importantly, the courts—in the form of Mr Justice Sullivan—also agree with his judgment. There is one outstanding issue, which I have mentioned, of the brigade's service. The ruling on that is being looked at very carefully by the Ministry of Defence.
  In relation to the issue of the military in Nepal, there have been reports of human rights' violations. The RNA recognises that. It is a professional army with a good reputation. The United Kingdom is involved in encouraging greater respect for human rights. I hope that your Lordships noticed that I have announced the appointment of Sir Jeffrey James as our special representative. We very much hope that his role will provide a strong focal point in continuing much-needed reform and in co-ordinating our response to the needs of Nepal.
  Baroness Knight of Collingtree: My Lords—
  The Lord Privy Seal (Lord Williams of Mostyn): My Lords, I am afraid we are over time.

  Israelis and Palestinians
  2.44 p.m.
  Lord Hyltonasked Her Majesty's Government:
  In what ways they are assisting the non-violent majority among Israelis and Palestinians to express their views and to co-operate towards the settlement of outstanding issues.
  Baroness Symons of Vernham Dean: My Lords, Her Majesty's Government are assisting in a number of
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  ways. They include the meeting on Palestinian reform, which was held in London on 14th January; participating in meetings in London last week on the Palestinian economy; support for the Alexandria process; funding projects which bring together Israelis and Palestinians in verification and enforcement of future agreements; and contributing to the Joint Vision for Peace project in the Ben Gurion University.
  Lord Hylton: My Lords, I welcome what the Foreign Office has been doing, particularly over the recent London conference. I also welcome what the Prime Minister said this morning about illegal settlements. Does the Minister agree that it is remarkable that, despite terrorism and military action, there is still a majority of people on both sides who want non-violent solutions? Will the Government help them both to express their own views and to collaborate in what may be termed "people's diplomacy"?
  Baroness Symons of Vernham Dean: My Lords, I very much thank the noble Lord, Lord Hylton, for his welcome remarks. I heard what my right honourable friend the Prime Minister said about illegal settlements. They are illegal under international law. We believe that they are an obstacle to peace and that Israel should freeze all settlement activity.
  The noble Lord is entirely right. There is a majority among both communities—Israelis and the Palestinians—who want to find a peaceful way forward. I hope that the five substantial examples that I laid before your Lordships of ways in which Her Majesty's Government are helping that dialogue among a nonviolent majority will be of further encouragement to the noble Lord.
  Baroness Williams of Crosby: My Lords, perhaps I may add to the compliments paid to the Government for their initiative with regard to the conference about the future of the Palestinian administration. What steps do the Government propose to take to alleviate what is now very close to being a total breakdown in the supply of food and other essentials to the Palestinians? In the past few days UNWA has warned that a complete breakdown of Palestinian society is very close and that the level of nutrition among children is now equivalent to that in the Congo or Zimbabwe. Does she agree that if that condition remains, the non-violent majority of Palestinians may well not remain non-violent for very long?
  Baroness Symons of Vernham Dean: My Lords, I have a great deal of sympathy with what the noble Baroness has said. United Kingdom bilateral aid for the Palestinians in the period from 1996–97 to 2001–02 totalled more than £48 million. We also provided £65.9 million to UNWA for Palestinian refugees in that same period.
  There is also, unfortunately, a history of destruction of humanitarian aid on the part of the Israeli defence forces. We deplore such acts. We believe the action of the Israeli

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  defence forces must be proportionate. Together with our EU partners, we have raised concerns about those issues with the Israeli Government.
  Lord Lawson of Blaby: My Lords, looking a little further ahead, given that the two facts about this distressing situation are that the case for a successful Palestinian Arab state is unanswerable, but equally that the present Palestinian Authority is both corrupt and incompetent, is there not a strong case for Her Majesty's Government supporting a United Nations authority in a Palestinian Arab state until such time as an indigenous leadership emerges which is capable of leading the country?
  Baroness Symons of Vernham Dean: My Lords, our priority at the moment is to ensure that the Quartet working on the road map is given the best possible chance of success. Of course it is difficult to discuss that with the Israeli Government while the details of the government remain to be decided. We know that the Likud Party will join the National Religious Party and the secular party, Shinui, in forming the government, but as yet the disposition of which politicians will occupy which roles has not been decided.
  However, when it is decided, we will want to see rapid progress on the road map which has been formulated by the Quartet and which we believe should be supported.
  Lord Wright of Richmond: My Lords, does the Minister agree that one urgent and necessary way to assist the non-violent majority of Israelis and Palestinians is not only to dismantle the illegal settlements to which the Minister referred—on which I fear that the inclusion of the National Religious Party in the Israeli Government is not an encouraging prospect—but to dismantle the security fence, which has already absorbed a large amount of Palestinian territory into Israel and is causing massive human suffering day by day by separating Palestinians from their land and their livelihood?
  Baroness Symons of Vernham Dean: My Lords, settlement activity and the security fence are causes of great concern to Her Majesty's Government. Settlement activity has increased during the past year; it is important to keep that issue in the forefront of our minds. We are concerned about the 360 kilometre-long fence, to which the noble Lord referred, which takes up so much Palestinian land and separates families. Our embassy in Tel Aviv has raised with the Israeli Government our concern about the location and the impact of the security fence. We fully understand Israel's need to take steps within the law to protect itself from terrorist attack, but that must be achieved through a negotiated peace, not by measures such as the security fence.
  Lord Turnberg: My Lords, does my noble friend agree that the horrendous anti-Israel propaganda
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  issued by the Palestinian Authority's state-sponsored media is unhelpful to the suffering Palestinians as well as the unfortunate Israelis?
  Baroness Symons of Vernham Dean: Yes, my Lords, I strongly believe that. As we have discussed many times in your Lordships' House, this is a terrible situation in which the cycle of violence, fed by messages of hatred and misunderstanding on both sides, does nothing to help the majority among the Israelis and the Palestinians who, as the noble Lord, Lord Hylton, pointed out, want to co-operate towards a settlement of the outstanding issues. That constant cycle of rhetoric—violent rhetoric, if I may say so—is most unhelpful.

  Pharmacies
  2.52 p.m.
  Lord Clement-Jones askedHer Majesty's Government:
  Whether the Department of Health has taken a view on the report by the Office of Fair Trading into The control of entry regulations and retail pharmacy services in the UK.
  The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, we are considering the report from the Director-General of Fair Trading carefully. We have invited views and are meeting key interests to hear their reactions. My right honourable friend the Secretary of State for Trade and Industry is co-ordinating that work.
  Lord Clement-Jones: My Lords, I thank the Minister for that reply. As he will be aware, the issue of the abolition of entry controls for community pharmacies is of great importance. Does he agree that the future of pharmacies is not just about price competition but about healthcare, quality of service to the community and local people's access to pharmacy services? Will the Department of Health ensure that the debate is placed in the proper context and give robust evidence to the OFT about the healthcare issues involved?
  Lord Hunt of Kings Heath: My Lords, I understand the issues that the noble Lord has raised. It will be for the Government as a whole to respond to the OFT report. My department will play a full part in the discussions that will lead to an eventual decision.
  The Office of Fair Trading started from the premise that entry controls to any market lead to higher prices, less innovation and poorer quality of services. It also considered that abolition of entry controls would not lead to a substantial reduction in the number of pharmacies. We shall of course listen most carefully to those intimately concerned with community pharmacies to discover their views on the matter.
  Lord Fowler: My Lords, I declare an interest as the chairman of the largest group of community pharmacists

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  in the country. Given that there is no suggestion of profiteering by pharmacies, perhaps I may press the Minister to go one step further. Will he give an assurance that the Government will decide the issue essentially on the contributions that pharmacies make to healthcare? Will he confirm the message of his own excellent White Paper, published two years ago—that the Government want an enlarged role for community pharmacists inside the National Health Service?
  Lord Hunt of Kings Heath: My Lords, we will need to consider many factors when examining the OFT report. The noble Lord is right about the White Paper: the Government envisage a greatly enhanced role for community pharmacies. We believe that they could be used much more by the public to give advice. Indeed, NHS Direct now routinely refers 3 to 5 per cent of all its callers to community pharmacists.
  Lord Borne: My Lords, does my noble friend agree that at present, patients—especially elderly patients, with whom we must be concerned—have ready access to a spread of pharmacies throughout the country, which is most helpful to healthcare? If entry regulations disappear and there is complete de-control, the ambition of supermarkets will be such that many pharmacies will be in difficulty and no longer viable, which will be seriously dangerous to people's health. That is a considerable matter that the department should take fully into account.
  Lord Hunt of Kings Heath: My Lords, my noble friend raises some important issues, which my department and others will need to consider. The OFT concluded that, although access is generally good, there are a number of areas in which it could be improved. It also pointed out that there is a high concentration of certain pharmacy chains in some areas, which limits choice.
  Although I agree that the current network of community pharmacists is invaluable to this country, we do not have a perfect distribution of pharmacies. That must also be taken into account.
  Earl Howe: My Lords, in considering the matter, will the Government bear in mind the important role played by dispensing general practitioners in remote rural areas? I am sure that the Minister is aware that dispensing GPs frequently rely on dispensing income to support the continuation of medical services in country villages.
  Lord Hunt of Kings Heath: My Lords, I understand the noble Earl's point. Discussions between dispensing doctors and the pharmacy profession have always been of great interest and intensity over the years. We have received initial views from the British Medical Association and the Dispensing Doctors Association and expect them to comment formally to us in due course.
  Baroness Gardner of Parkes: My Lords, what will be the position if matters deteriorate in the way that has
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  been suggested and many local pharmacies are lost, but pharmacies are set up in supermarkets? Will the Minister and the Department of Health then be able to ensure that all the provisions that he said were so important, such as having a private, confidential area in which to consult patients, will apply, rather than simply have the Department of Trade and Industry deciding the matter on a non-medical basis?
  Lord Hunt of Kings Heath: My Lords, I have already told the House that the Government will need to take a great many factors into account. It is the Government who will respond to the OFT report. The DTI is the lead department, but my department will play a full part in the discussions.
  On the interesting point about private consulting areas, the noble Baroness knows that I especially support that prospect. Some pharmacies have now built separate, private facilities. However, that falls much more under the implementation of our pharmacy plan than under consideration of the OFT report.

  Post-mortems: Retained Organs
  2.58 p.m.
  Baroness Finlay of Llandaffasked Her Majesty's Government:
  When permission will be given by the Retained Organs Commission for the respectful disposal of unclaimed residual human material retained at post-mortem examination.
  Lord Hunt of Kings Heath: My Lords, the Retained Organs Commission is analysing the findings of its consultation into unclaimed and unidentifiable organs and tissue retained after post-mortem examinations. I understand that it aims to complete that process and provide advice to the Government by 31st March. We shall then be able to assess what further action may be required.
  Baroness Finlay of Llandaff: My Lords, I thank the Minister for his reply. Is the Retained Organs Commission also defining respectful disposal? If cremation is deemed to be the mode of respectful disposal, how will that be effected with unclaimed organs, when no relative or executor is available to complete Form AA to comply with the Cremation (Amendment) Regulations 2000?
  Lord Hunt of Kings Heath: My Lords, on the latter point, we will await the advice of the Retained Organs Commission. On the former point, I can reassure the noble Baroness that we will shortly publish a comprehensive interim package of guidance for the NHS. It will pick up the point that the noble Baroness raised about treating such matters with respect.
  Lord Clement-Jones: My Lords, inevitably, the Alder Hey report and other inquiries have had a

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  damaging effect on public confidence in the post-mortem system. Can the Minister outline what is being done by the Department of Health and the Retained Organs Commission to increase public understanding of the post-mortem system, something that many parents of affected children are calling for?
  Lord Hunt of Kings Heath: My Lords, the noble Lord is right to refer to the Alder Hey report, which highlighted many weaknesses in the system and the need for advice to be given to parents, in particular, and the public, in general, about post-mortem procedures. Advice has already been given to NHS trusts in the interim. We are producing an interim package of guidance, under the leadership of the Chief Medical Officer.
  When parliamentary time allows, we seek to bring forward new legislation on human tissues and make amendments to the Human Tissue Act 1961. In addition, there will be ongoing work with the NHS to make sure that doctors, in particular, receive guidance on the law and issues to do with consent and on the way in which such matters should be approached—that is, as sensitively as possible.
  Lord Turnberg: My Lords, is my noble friend the Minister as concerned as I am about the deleterious effect of continuing uncertainty about retained tissue, such as microscope slides, on medical research, on the one hand, and on the recruitment of the pathologists who are so essential to clinical diagnosis, on the other?
  Lord Hunt of Kings Heath: My Lords, I understand those concerns. It is important that we get it right. That is why the Retained Organs Commission has undertaken two consultations on the matters that the noble Lord raised. We await eagerly its advice, which we hope to receive by the end of March. I understand the need to proceed sensibly and sensitively, without inhibiting properly governed research with proper consent.
  I accept that several cases have provoked fears that medical students will not be attracted into pathology specialisms. I hope that that will not be the case. We have seen an increase in pathology workforce figures since 1997, but we cannot be complacent. The interim guidance that we will issue shortly and the future legislation will provide greater certainty. In itself, that will boost confidence in the pathology profession.

  Middle East
  3.3 p.m.
  Lord Hoosonasked Her Majesty's Government:
  Whether it is their view that the United Nations, the European Union and others should take an even-handed approach to the Middle East conflict, and what would be their definition of the basic requirements of such an approach in present circumstances.
  Baroness Symons of Vernham Dean: My Lords, Her Majesty's Government believe that an even-handed
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  approach is the best way to tackle the disputes between Israel and her Arab neighbours. Israel and the Palestinian Authority have a responsibility to prevent further bloodshed and to return to substantive negotiations. All parties must abide by international law.
  The Government support the Quartet's efforts to agree a road-map leading to a comprehensive settlement based on two viable states within secure borders and at peace with their neighbours in the region by 2005.
  Lord Hooson: My Lords, the noble Baroness has referred to the Government's present policy, as I understand it. However, she will have recognised the words that I used in my Question as emanating directly from the Prime Minister.

  That policy referred to other states. The Prime Minister has undoubted influence on President Bush. Has he drawn to his attention the need for the United States, in particular, to take an even-handed approach to the problems between the Palestinians and Israel? It is widely perceived that the United States has not done so and that it is the largest player in the problem.
  The influence that the United States could bring to bear would have more effect than anything that the European Union or any other body could do. At a time when we are likely to be involved in a war with Iraq, is it not important that that running sore in the Middle East should be dealt with effectively by the United States? Otherwise, the credibility of the United States in the Arab world and elsewhere will be undermined.
  Baroness Symons of Vernham Dean: My Lords, my right honourable friend the Prime Minister believes that the issue of Israel and the Palestinian Authority is important in itself. We should be clear about that. It is not important just because it is linked in some people's mind to a possible conflict with Iraq; it is a long-standing difficulty. My right honourable friend believes that, in its own terms, it must be prioritised.
  My right honourable friend does discuss the issue with the President of the United States. I refer the noble Lord, Lord Hooson, to an interesting speech made by Secretary of State Powell shortly before Christmas. That speech addressed some of the outstanding issues relating to Palestine. For example, it went into some detail about building a Palestinian state for the future and talked about the infrastructure that would be necessary in such a state. I regret to say that the speech did not get a great deal of attention in the press in this country, but it was an interesting speech, and I commend it to the noble Lord.
  Baroness Williams of Crosby: My Lords, is the Minister aware of a speech made by the Israeli Defence Minister yesterday to American Jewish organisations? He said:
  "The United States should generate political, economic and diplomatic pressure on Iran, after the Iraq war has been determined".

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  Can the Minister say on behalf of Her Majesty's Government that we have no quarrel of that kind with Iran and would not see any issue as justifying a further military attack on any country, following the Iraq crisis, whatever its outcome?
  Baroness Symons of Vernham Dean: My Lords, Her Majesty's Government have a number of outstanding issues with Iran. However, I do not recognise Her Majesty's Government's policy in the quotation that the noble Baroness used a moment ago.
  Lord Howell of Guildford: My Lords, has the noble Baroness seen reports that Saddam Hussein may seek to involve Israel at an early stage, widening the war in a desperate attempt to divert attention from himself? He will do that by helping to arm Hezbollah, which has Iranian connections as well, in southern Lebanon, with the aim of opening an attack on Israel from the north.
  Does the Minister agree that, in such circumstances, we must keep a clear mind about where the dangers and priorities lie? It could be, as the Prime Minister said this morning, I think, that, far from saying that the priority is Israel and Palestine or Iraq or ensuring that Iran does not get up to more trouble, we should tackle all those things simultaneously with the greatest vigour.
  Baroness Symons of Vernham Dean: My Lords, I am sure, first of all, that the whole House hopes that there will be no war with Iraq. However, Saddam Hussein's history leads us to believe that, if that sad eventuality were to come about, he is capable of trying virtually anything.
  All eventualities must be considered, including everything from a direct attack on the state of Israel to the use of agents and terrorist organisations to perpetrate such attacks. I assure the noble Lord that, as he would expect, all those eventualities are being considered. I am sure that he will agree that it would be unwise for me to say anything further about planning for those eventualities.

  Iraq
  3.9 p.m.
  Lord Williams of Mostyn: My Lords, with the leave of the House I shall repeat a Statement made in another place earlier today by my right honourable friend the Prime Minister.
  "With permission, Mr Speaker, I will make a further statement on Iraq.
  "Let me again briefly recapitulate the history of the Iraqi crisis. In 1991, at the conclusion of the Gulf War, the true extent of Saddam's weapons of mass destruction programme became clear. We knew he had used these weapons against his own people, and against a foreign country—Iran—but we had not known that in addition to chemical weapons he had
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  biological weapons which he had denied completely and was trying to construct a nuclear weapons programme.
  "So on 3rd April 1991, the United Nations passed the first resolution on Saddam and weapons of mass destruction, giving him 15 days to give an open account of all his weapons and to co-operate fully with the United Nations inspectors in destroying them. Fifteen days later he submitted a flawed and incomplete declaration denying that he had biological weapons and giving little information on chemical weapons. It was only four years later, after the defection of Saddam's son-in-law to Jordan, that the offensive biological weapons and the full extent of the nuclear programme were discovered. In all, 17 United Nations resolutions were passed. None was obeyed. At no stage did he co-operate. At no stage did he tell the full truth.
  "Finally, in December 1998, when he had begun to obstruct and harass the United Nations inspectors, they withdrew. When they left they said that there were still large amounts of weapons of mass destruction unaccounted for. Since then, the international community has relied on sanctions and the no-fly zones policed by the United States and United Kingdom pilots to contain Saddam. But the first is not proof against Saddam's deception and the second is limited in its impact.
  "In 2001, the sanctions were made more targeted. But around three billion dollars a year is illicitly taken by Saddam, much of it for his and his family's personal use. The intelligence is clear: he continues to believe that his weapons of mass destruction programme is essential both for internal repression and for external aggression. It is essential to his regional power. Prior to the inspectors coming back in, he was engaged in a systematic exercise in concealment of weapons. That is the history.
  "Finally, last November United Nations Resolution 1441 declared Saddam in material breach and gave him a 'final opportunity' to comply fully, immediately and unconditionally with the UN's instruction to disarm voluntarily. The first step was to give an open, honest declaration of what weapons of mass destruction he had, where they were, and how they would be destroyed. On 8th December, he submitted the declaration denying that he had any WMD—a statement that not a single member of the international community seriously believes. There have been two UN inspectors' reports. Both have reported some co-operation on process. Both have denied progress on substance.
  "So, how to proceed? There are two paths before the United Nations. Yesterday, the UK, along with the US and Spain, introduced a new resolution declaring that,
  'Iraq has failed to take the final opportunity afforded to it in Resolution 1441'.
  "But we will not put it to a vote immediately. Instead, we will delay it to give Saddam one further final chance to disarm voluntarily. The UN inspectors are continuing their work. They have a

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  further report to make in March. But this time Saddam must understand. Now is the time for him to decide. Passive rather than active co-operation will not do. Co-operation on process, not substance, will not do. Refusal to declare properly and fully what has happened to the unaccounted for weapons of mass destruction will not do. Resolution 1441 called for full, unconditional and immediate compliance: not 10, not 20, not even 50 per cent, but 100 per cent compliance. Anything less will not do. That is all we ask: that what we said in Resolution 1441 we mean, and that what it demands Saddam does.
  "There is no complexity about Resolution 1441. I ask all reasonable people to judge for themselves. After 12 years, is it not reasonable that the UN inspectors have unrestricted access to Iraqi scientists—that means no tape recorders, no minders, no intimidation, and interviews outside Iraq as provided for by Resolution 1441? So far, this simply is not happening.
  "Is it not reasonable that Saddam provides evidence of destruction of the biological and chemical agents and weapons that the United Nations proved he had in 1999? So far he has provided none.
  "Is it not reasonable that he provides evidence that he has destroyed 8,500 litres of anthrax that he admitted possessing, and the 2,000 kilos of biological growth material, enough to produce over 26,000 litres of anthrax?
  "Is it not reasonable that Saddam accounts for up to 360 tonnes of bulk chemical warfare agent, including one and a half tonnes of VX nerve agents, 3,000 tonnes of precursor chemicals, and over 30,000 special munitions?
  "To those who say that we are rushing to war, I say this. We are now 12 years after Saddam was first told by the United Nations to disarm; nearly six months after President Bush made his speech to the UN accepting the UN route to disarmament; nearly four months on from Resolution 1441; and even now, today, we are offering Saddam the prospect of voluntary disarmament through the United Nations.
  "I detest his regime, but even now he can save it by complying with the United Nations demand. Even now, we are prepared to go that extra step to achieve disarmament peacefully.
  "I do not want war. I do not believe that anyone in this House wants war. But disarmament peacefully can only happen with Saddam's active co-operation.
  "Twelve years of bitter experience teaches that. And if he refuses to co-operate—as he is refusing now—and we fail to act, what then? Saddam in charge of Iraq; weapons of mass destruction intact; the will of the international community set at nothing; the UN tricked again; and Saddam hugely strengthened and emboldened—does anyone truly believe that that will mean peace? And when we turn to deal with other threats, where will our authority
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  be? And when we make a demand next time, what will our credibility be? This is not a road to peace but to folly and weakness that will only mean the conflict, when it comes, is more bloody, less certain and greater in its devastation.
  "Our path laid out before the UN expresses our preference to resolve this peacefully; but it ensures that we remain firm in our determination to resolve it.
  "I have read the memorandum put forward by France, Germany and Russia in response to our UN resolution. It is to be welcomed at least in these respects. It accepts that Saddam must disarm fully. It accepts that he is not yet co-operating fully. Indeed, not a single member of the EU who spoke at the summit in Brussels on 17th February disputed the fact of his non-co-operation.
  "But the call is for more time—up to the end of July at least. They say that the time is necessary 'to search out' the weapons. At the core of this proposition is the notion that the task of the inspectors is to enter Iraq to find the weapons, to sniff them out, as one member of the European Council put it. That is emphatically not the inspectors' job.
  "They are not a detective agency. And even if they were, Iraq is a country with a land mass roughly the size of France. The idea that the inspectors could conceivably sniff out the weapons and documentation relating to them, without the help of the Iraq authorities, is absurd. That is why 1441 called for Iraq's active co-operation.
  "The issue is not time. It is will. If Saddam is willing genuinely to co-operate, then the inspectors should have up to July, and beyond July; as much time as they want. If he is not willing to co-operate, then, equally, time will not help. We will be just right back where we were in the 1990s.
  "And, of course, Saddam will offer concessions. This is a game with which he is immensely familiar. As the threat level rises, so the concessions are eked out. At present he is saying that he will not destroy the al-Samoud missiles that the inspectors have found were in breach of Resolution 1441. But he will, under pressure, claiming that this proves cooperation. Does anyone think that he would he making any such concessions, that indeed the inspectors would be within 1,000 miles of Baghdad, were it not for US and UK troops massed on his doorstep? What is his hope? Is it to play for time, to drag the process out until the attention of the international community wanes, for the troops go, and the way is again clear for him?
  "Give it more time, some urge upon us. I say we are giving it more time. But I say this: it takes no time at all for Saddam to co-operate. It just takes a fundamental change of heart and mind.
  "Today the path to peace is clear. Saddam can co-operate fully with the inspectors. He can voluntarily disarm. He can even leave the country peacefully. But he cannot avoid disarmament.

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  "One further point. The purpose in our acting is disarmament. But the nature of Saddam's regime is relevant in two ways. First, weapons of mass destruction in the hands of a regime of this brutality is especially dangerous because Saddam has shown that he will use them. Secondly, I know the innocent as well as the guilty die in a war. But do not let us forget the 4 million Iraqi exiles, the thousands of children who die needlessly every year due to Saddam's impoverishment of his country—a country which in 1978 was wealthier than Portugal or Malaysia but now is in ruins, 60 per cent of its people on food aid. Let us not forget the tens of thousands imprisoned, tortured or executed by his barbarity every year. The innocent die every day in Iraq, victims of Saddam, and their plight should also be heard.
  "And I know the vital importance in all of this of the Middle East peace process. The European Council last week called for the early implementation of the Roadmap. Terror and violence must end. So must settlement activity. We welcomed President Arafat's statement that he will appoint a Prime Minister, an initiative following from last month's London conference on Palestinian reform. I shall continue to strive in every way for an even-handed and just approach to the Middle East peace process.
  "At stake in Iraq is not just peace or war. It is the authority of the United Nations. Resolution 1441 is clear. All we are asking is that it now be upheld. If it is not, the consequences will stretch far beyond Iraq. If the UN cannot be the way of resolving this issue, that is a dangerous moment for our world. That is why over the coming weeks we will work every last minute we can to reunite the international community and disarm Iraq through the United Nations. It is our desire and still our hope that this can be done".
  My Lords, that concludes the Statement.
  3.22 p.m.
  Lord Strathclyde: My Lords, I thank the noble and learned Lord the Leader of the House for repeating the Statement. I begin on a slightly sour note. The House will remember that at the beginning of last week the noble and learned Lord the Leader of the House refused a Statement on the European Union Council meeting on the basis that, if we had taken it, it would have pre-empted the Prime Minister. Can the noble and learned Lord tell us why there is nothing in the Statement on that meeting of EU members and candidate countries? Indeed, this morning in another place the Prime Minister was silent on those matters. Thus the noble and learned Lord and the House have been ill served. Would the noble and learned Lord be willing to lay a document before the House setting out the Government's reactions to the EU summit, the statement of the Vilnius 10 and the other diplomatic events of that weekend?
  Governments are strengthened when they come to Parliament and have Parliament behind them. That is why, as we move inexorably, I fear—in the light of
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  Saddam's intransigence—towards conflict, it is essential that this House and another place have the opportunity to debate what is and will be a crisis of major international importance. Tomorrow, thanks to Back-Bench day, we shall have an opportunity for a debate, but we should not rely on the opposition parties in the weeks and months ahead. I hope that the noble and learned Lord can give the House an assurance that he will get a grip on the government timetable so that time is made available for further debate if and when troops are committed during any conflict and in the difficult days of reconstruction that will follow.
  Today the noble and learned Lord has repeated a grave Statement, but we on these Benches at least support the stand that the Government are taking. Saddam's defiance of the United Nations has lasted far too long, while his appetite to secure and hold weapons of mass destruction is proven. He is still hungry for them. Saddam's brutality and his willingness to attack others and then to use such weapons is a matter of record. The world community cannot bury its head in the sand and evade those truths. They should be as evident in Paris today as they are bitterly remembered in Tehran and Kuwait.
  I respect greatly the fears of those who oppose war. No one wants war, with all its ugliness and uncertainty. But the cost of peace on Saddam's terms is too high. War will be less likely if the international community shows a united resolve and draws a line under some of the self-indulgent divisiveness of recent weeks.
  We agree with the Prime Minister that the issue is not a matter of time; it is a matter of huge substance. It is a question of disarmament and peace or of defiance and war. That choice is for Saddam. If he makes the wrong choice, it is a matter in which, in the name of world order, we must prevail. If Saddam successfully defies the UN; if he successfully faces down the resolution of the United States, the United Kingdom, Spain, Italy and all the other nations that have called on him to disarm, where then is world stability and the authority of the United Nations?
  The Prime Minister is right to ask those questions. We shall support him so long as he acts resolutely against terrorism and weapons of mass destruction. Does the noble and learned Lord agree that he can take great satisfaction in the praise of the Prime Minister from President Bush and Prime Minister Berlusconi who so closely share his sense of what needs to be done?
  Does the Leader of the House also share my disappointment that the Prime Minister's lead here—given with great integrity in the face of the many doubts that exist—has not been matched by Chancellor Shröder in Germany? Does he accept that the divisions displayed in Brussels last week and the arrogant dressing-down of 10 sovereign European democracies by M. Chirac render any idea of a common European diplomatic policy increasingly an utter pipe-dream?
  The proposals by France and Germany for more time for the inspectors to pursue detective work offer no further way forward. Does the noble and learned

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  Lord appreciate that we on this side of the House agree that it is not for the inspectors to search weapons out? Their job is to validate co-operation, not to play cat-and-mouse games with Saddam and his lackeys.
  Is there any recent evidence of active links between Saddam and the regime in North Korea? Can the noble and learned Lord tell the House what is the latest position on the resolution of the Turkish Government on facilitating and supporting operations in Iraq, should they be needed? In the event of war, are agreements in place with Iran and Syria for the proper treatment of military personnel should they wish to seek refuge in those countries? When do the Government expect the resolution tabled with the United States and Spain to come to a vote, and can he report on any initial reactions from Security Council members?
  If the noble and learned Lord cannot answer those questions today, perhaps the noble Baroness, Lady Symons of Vernham Dean, will be able to take them up in the debate which is to take place tomorrow. Perhaps she will also consider whether it is worth setting out the provisions that will be made for humanitarian aid in the event of war.
  Over the next weeks and months, how will the Government advance the search for a solution to the Palestinian problem, in our view an indispensable strand of policy alongside any conflict with Iraq? Finally, does the noble and learned Lord share President Bush's view that if Saddam's defiance continues, no further United Nations resolution, however desirable, is strictly necessary and that Resolution 1441 gives us the power to act even in the event of a French veto?
  I welcome the careful and cautious approach of the Prime Minister. Saddam has been given time, plenty of time, to opt for peace. He must take the chance and I hope that he does so. But if he does not, we must be prepared to face the difficult and dangerous days that will follow. As we speak, far away, our Armed Forces are training for an eventuality that both we and they hope will never come. They must know of the confidence that this House places in them. I ask the noble and learned Lord, through his colleagues, to send to them a message of our good wishes and support. The House may be divided on many things, but never on that.
  3.29 p.m.
  Baroness Williams of Crosby: My Lords, I too wish to thank the noble and learned Lord the Leader of the House for repeating the Statement made in another place. We are glad that the Government have decided to take up the offer made from these Benches of time from their own allocated debates for the purpose of a debate on Iraq which we believe to be well timed and extremely important. We are also grateful that the Government have decided to take the opportunity for a debate in both Houses.
  We on these Benches agree that Iraq has in the past developed weapons of mass destruction and that there may well still be precursors for such weapons in that
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  country. We also recognise that military pressure by the United States, the UK and others has helped to bring Saddam to the point where he is now beginning to co-operate seriously with the inspectors. But, while we completely share the view that disarmament must be the first and primary objective of the pressures brought to bear on Saddam Hussein's government in Iraq, we do not believe that all other measures short of war have been exhausted.
  In that respect we share the view, not only of France and Germany but of Russia and China, that it is still possible to give a little more time for the inspectors to reach a conclusion about the work that they are doing. We are concerned that the placing of this resolution at this time will go some way towards pre-empting the report from Hans Blix and Mr Muhammad al-Baradi scheduled for 28th February. We believe that it would have been better for that report to have beer allowed to come forward, especially given some of the indications that Iraq is beginning to move.
  Among those indications is the acceptance by Iraq, at long last, of air surveillance on a regular basis across the whole of Iraq. The noble and learned Lord the Leader of the House will know that that air surveillance has only recently been put in place and that some of the measures for using and assessing the data from it have not yet been completed. Many people do not fully recognise how slowly the full sophistication of the measures of inspection has been put in place. It is fair to say that it is probably only over the past couple of weeks that the full resources have been made available to the inspectors to complete their work.
  In that context, the Russian Foreign Minister recently said:
  "the inspectors are being subjected to very strong pressure in order to provoke their departure from Iraq … The international community should offer them all vital political assistance and not put pressure on them".
  The Russian Foreign Minister, together with Mr Putin, sent a special envoy to Iraq, who has reported back that in his view, given what has been said by its Government, Iraq will now co-operate fully with the United Nations. I do not know if that is true. All I know is that a serious representative of a serious country has reported his belief that that may well be possible. We on these Benches believe that the implications of a war are so grave that we should take every conceivable step to bring about disarmament in Iraq without resort to military action.
  There has been some confusion which I hope the noble and learned Lord will help to clear up. It is still not absolutely clear whether the UK Government's major objective is disarmament—a view that we fully share—or whether it is regime change, which is not an objective recognised under international law. I mention this because two sets of justifications have been referred to—one in regard to regime change and one in regard to disarmament. Important and welcome as it would be to see a change of government in Iraq, we believe that it is important to stick to a single message so that people are not confused.

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  Perhaps I may ask the noble and learned Lord one or two questions. Does he, as a distinguished lawyer, regard the combination of the first and second resolutions as endorsing future military action without any further resolution being required?
  Can the noble and learned Lord say anything about the proposed command structure under which United Kingdom troops would operate? In that context, the former leader of the Conservative Party in another place today implied that the United States had been the sole command structure since the end of the Second World War. That is not correct. Joint command has been the pattern in NATO and in the wars fought by or within the structures of NATO since the Second World War. It is therefore of vital importance that we learn whether a United States command or a joint command would operate in the case of any military action against Iraq.
  Can the noble and learned Lord say anything about the future administration of a defeated Iraq and whether it would be a United Nations administration or an administration conducted by either the United States or by what is sometimes called, rather oddly, the coalition of the willing?
  Does the noble and learned Lord regard the use of financial incentives such as the refusal of aid or an increase of aid as being valid ways of persuading other countries to support a resolution with which, in other circumstances, they might not be in agreement? Can he say whether or not the United Kingdom Government would wish to see such measures used by themselves?
  3.36 p.m.
  Lord Williams of Mostyn: My Lords, I am grateful to the noble Lord, Lord Strathclyde, for offering, without any shred of party advantage, good wishes and support for the Prime Minister in what is, on any judgment—agree or disagree with him—an exceptionally difficult time. I respond in this way. Agree or disagree with him, it is perfectly plain to any independent, fair-minded commentator that he is basing his stand on principle and not on political advantage. Agree with him or not, many would consider that to be a rather attractive aspect of his tenure of the post of prime minister at this time.
  The noble Lord, Lord Strathclyde, asked a perfectly reasonable question about various documentation. As always, my right honourable friend Jack Straw has not pre-empted but pre-thought about the question. There is a useful Command Paper, No. 5769, in the Printed Paper Office where one can find a number of the documents referred to by the noble Lord, and more, at pages 89 to 91 inclusive. There is the European Council declaration in Copenhagen in December 2002; the General Affairs and External Relations Council conclusions in Brussels on 27th January this year; and then there is the European Council conclusions on Iraq in Brussels on 17th February, which the noble Lord particularly asked for.
  It is right that what was being asked for last week was a Statement limited to the European Council discussions. That was going to be on Monday. When
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  the date was altered, I know that the usual channels were notified last Thursday. The Prime Minister took the judgment—I respectfully suggest rightly—that the better way forward was to deal by way of a Statement with a rapidly changing picture, added to the fact that these documents were produced in the Command Paper. As the noble Baroness has frequently said, with which I agree, things are changing so rapidly. The Prime Minister is trying to give the fullest, most appropriate update.
  Of course tomorrow was supposed to have been a Liberal Democrat Back-Bench day. We were perfectly happy to have the debate, making it plain, as I repeat now, that the day given up is not lost forever; it will have to be repaid. So the Government have been a shade more generous than the noble Lord, Lord Strathclyde, and the noble Baroness, Lady Williams, may have hinted.
  I agree with the noble Lord, Lord Strathclyde—I hope that in doing the work that I do for your Lordships I demonstrate this—that it is very important that Parliament is kept fully informed, first because it is Parliament and, secondly, because any government in these circumstances would want, if at all possible, the willing, freely-given support of a Parliament that is as well informed as it is practical to make it.
  The noble Lord, Lord Strathclyde, asked me to comment on Chancellor Schröder and President Chirac. All their actions, statements, devices and stratagems are essentially a matter of taste and judgment. The Prime Minister of this country has shown immaculate taste and impeccable judgment.
  Noble Lords: Oh!
  Lord Williams of Mostyn: My Lords, no expression is to be found upon my face. I simply repeat that our Prime Minister has acted on the basis of principle and expedience.
  The noble Baroness asked whether incentives in terms of increased aid were legitimate. Of course they may be in some circumstances. If some countries feel that they will be damaged financially or in other ways—Turkey may be one—it seems to be a legitimate weapon of international diplomacy to seek to give financial assistance to those from whom we seek mutual assistance. Not all inducements are financial, of course. Sometimes pressure on a historic, traditional or cultural basis—even on a post-colonial basis—may be deployed. The noble Lord, Lord Strathclyde, asked about the Turkish Government. My understanding, which may be imperfect but which I think is right, is that the Turkish Parliament will be coming to a conclusion on the governmental proposals in the next few days.
  The noble Lord and the noble Baroness both asked me to offer a view. The noble Lord asked whether a further resolution was needed and the noble Baroness kindly referred to my previous activity. But I gave that up two years ago and, seductive though her invitation is, on this occasion I must decline it. I remind the House of the convention that the Attorney's advice is not disclosed, nor is it disclosed whether that advice has been taken. I

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  repeat what the Prime Minister and the Foreign Secretary have said. The British Government wish to act in conformity with the rules of international law.
  The Middle East peace process was also referred to by the noble Lord, Lord Strathclyde. Jack Straw made a full statement on 20th February this year calling for the early publication of the Quartet road map. He said:
  "There is an urgent need for progress towards a resolution of the Israeli/Palestinian dispute. I am glad that the UK has been able to contribute … The Quartet, Task Force on Reform and AHLC"—
  ad hoc liaison committee—
  "meetings addressed the essential requirements for a renewed peace process: publication of the roadmap on which the Quartet envoys are engaged; Palestinian reform, on which the Task Force has built on progress made at last month's London Conference; and economic support for the Palestinian Authority and people, on which the AHLC has a vital co-ordinating and facilitating role".
  He was very much echoing the theme behind the questions put by the noble Lord, Lord Hooson, earlier this afternoon. It is a lengthy statement—I have given the point of reference to it, and I do not read any further from it.
  The noble Lord, Lord Strathclyde, again generously pointed out that my noble friend Lady Symons will be dealing with these matters tomorrow. She will be dealing with command structures in particular, if that is convenient to your Lordships.
  The noble Baroness, Lady Williams, asked about the U2 surveillance—quite an interesting text for the next part of my sermon. Saddam has agreed in principle. It would be unfair to double glazing salesmen to make any invidious comparisons. He agrees in principle, but it has not begun. He is a deceitful, deceptive man. It is idleness and folly to believe that a proved liar will change his spots according to his present convenience. When we see the intelligence data from any successful U2 overflights, I will be a little more content to rely on his alleged bona fides.
  The noble Baroness asked about the future administration. At the moment, I must repeat—I hope without undue caution—that the Prime Minister has said quite unambiguously, as has the Foreign Secretary, our purpose, aim, hope and plan is to avoid a war. Our duty, however, is to support 1441 and any necessary consequences. It is not simply the supporting of a resolution which was passed, I remind your Lordships, unanimously, including the vote of Syria; it is to support the principle, concept and continuing virtue and value of the United Nations. There is no alternative to international governance through the United Nations as our preferred policy objective. I reiterate that as strongly as I can.
  We shall have the opportunity to debate these matters tomorrow. I think, as it happens, that our debate will be longer than in another place. I look forward, as does my noble friend Lady Symons, to the contributions and value that will come from tomorrow's debate.
  3.45 p.m.
  Lord Bramall: My Lords, I thank the noble and learned Lord for that apparently eminently reasonable Statement. Although it may not be strictly the job of the inspectors to find these weapons—to sniff them out, as the Statement says—does he agree that if they were to do that, based on all the intelligence that we can give them, this would be much the easiest and cheapest way of disarming Saddam Hussein"
  Lord Williams of Mostyn: My Lords, the noble and gallant Lord makes a good point. If Saddam co-operated, would not that be the best way forward? My Lords, abundantly yes. Over the past 12 years there has been no effective sign of willingness to co-operate at all. Iraq is a country the size of France. Any intelligence report will demonstrate the ease with which weapons and components are dispersed. In the very nature of things, the precursor chemicals are a first step towards the manufacture of a particularly vile chemical weapon.
  No one would be happier than the British Prime Minister and the British Government if the inspectors were able to detect, but their job is not to act as detectives. Their job is to see that 1441 is complied with. 1441 insists, through the legitimate organisation of international government—the United Nations Security Council—that there should be substance, not simply process. If I remember rightly, Dr. Blix's first report said that there had been rather grudging acquiescence towards process, but virtually none towards substance. So I think the noble and gallant Lord and I are absolutely at one. My conclusion, however, is that, lamentably, Hussein has had no intention of complying with substance.
  Lady Saltoun of Abernethy: My Lords, I have two questions for the noble and learned Lord. First, has he any news of the two Iraqi ships which were reportedly sailing round and round the Indian Ocean incommunicado, carrying a cargo of goodness knows what? Is it proposed to take any action about this? Secondly, I have been informed by a source which I prefer not to name at present, until I have cleared it with them, that during the time sanctions were imposed on Iraq as regards exports of oil, the Iraqis were signing contracts with the French, the Germans and the Russians to export oil to them, and were doing so. Does the noble and learned Lord have any information about that?
  Lord Williams of Mostyn: My Lords, I have also received the reports that Iraqi vessels are sailing in the Indian Ocean. I do not know what is aboard them—I know what the suspicions are—and I have no detail about any imminent action to be taken in respect of them. I simply do not know whether the reports are accurate.
  In respect of the sanctions regime, I agree with the noble Lady that those sanctions have been evaded. The vast income that Saddam has been in receipt of—I earlier mentioned the 3 billion dollars—has plainly come in significant part by sanctions breaches.

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  Regarding the particular documents relating to exports—I do not have any precise details. If the noble Lady feels able to provide them, either to me, or perhaps more helpfully to my noble friend Lady Symons, then of course we will investigate.
  Lord Richard: My Lords, can my noble and learned friend tell me specifically what is the present and immediate threat to the United Kingdom posed by Saddam Hussein, which cannot be dealt with by a policy of containment and deterrence? If one looks back at the history of this dispute in the United Nations over the past decade or so, one sees a mass of resolutions in 1990 and 1991. Then there are no resolutions for a short while. Then there is one, I think, in 1995, and then three or four years with no others. In 1997 there may have been one—and then another three or four years with no resolutions. I do not understand. If it was such a great threat to the integrity of the United Kingdom or the peace of the world, why did it become apparent only when President Bush won the election?
  Lord Williams of Mostyn: My Lords, it did not. The United Kingdom's national interests are irretrievably and rightly bound with the construction and the maintenance of international governance. My noble friend knows much better than I of the part that the United Nations has had to play over the past 50 years or so. If the United Nations fails because it is treated with effective contempt, without consequence or sanction, that is to my mind self-evidently a significant, grave and continuing threat to the interests of the United Kingdom.
  The alternative is to do effectively nothing—to shake Saddam Hussein metaphorically by the hand, or at least look the other way. The time for looking the other way has passed.
  Lord Stoddart of Swindon: My Lords, is the noble and learned Lord the Leader of the House's Statement the decisive reason why action has to be taken? Have the reasons that have been given of co-operation with Al'Qaeda, a moral duty, or regime change now been completely set aside? After 12 years, and a hiatus of four years, Iraq has not, as far as anyone can see, attacked its neighbours or been a threat to them. Why is it suddenly so essential that we should attack Iraq within the next few weeks? After 15 years why can we not give the inspectors more time?
  Finally—in relation to failing to agree or comply with United Nations resolutions—why is only Iraq apparently going to be punished? There are other nations, particularly one in that area, which have consistently ignored strong United Nations resolutions over a long period.
  Lord Williams of Mostyn: My Lords, the legal—though not, I hope, over-legalistic—answer to the last question is that 1441 is in a different legal category, pursuant to the United Nations Charter. It falls in Chapter 7, not Chapter 6. Whatever criticisms can be levelled against Israel—and many of them have
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  validity—let us not forget that the resolutions require not simply action by Israel, but action by neighbouring states or organisations such as Palestine. The requirement is not simply for Israel to give up the settlements and withdraw from them, or for Israel to conform with international law, but for its immediate neighbours, who have challenged the right of the state of Israel to exist ever since its founding after the Second World War, to recognise that Israel has a right to peaceful and secure existence. If one asks why Israel is in breach, I accept that she is in breach, and have never suggested otherwise, but so are the neighbouring countries in breach. That is completely different from the legal status of 1441.
  My noble friend Lord Stoddart asked whether the Statement was the decisive reason. Have we abandoned moral duty or regime change? I should have answered this earlier, when I was asked by the noble Baroness, Lady Williams. If the Prime Minister is challenged on the moral case against war, he is right to answer with the moral case for war. If he is asked, "Would you be happier, would you be more contented discharging your burdens on behalf of the United Kingdom if there were a different regime?", of course he is going to say "Yes". However, 1441 is the basis of this Government's policy. If as an advantageous consequence that brutal, cruel, wicked man is removed, so much the better. There has been no change. The Prime Minister responds to questions appropriately and rightly.
  The noble Lord asked why have we done nothing, and why action is necessary now. Since the inspectors left in 1998—I paraphrase the Statement—there is no serious international observer who does not believe that Saddam has been developing his weapons of mass destruction. It is possible, though it would take a more innocent mind than mine, to think that he is developing them just to make a point. He is not. He is developing them to use them. He has used them already. He murdered 5,000 innocent people in a village called Halabja, because they were Kurds who objected to his brutality.
  Lord Renton: My Lords, is not a further answer to that which the noble and learned Lord has just given to his noble friends, that the events in the United States on 11th September 2001 alerted the whole world to the possibility of the spread of terrorism? Saddam Hussein is one of those who are qualified to spread it. The Government and the United States are justified for that reason, among others, in being cautious in trying to prevent a further spread of terrorism in that way.
  Lord Williams of Mostyn: My Lords, plainly the noble Lord is right in that we are dealing with a context, post- September 11th, which none of us could have contemplated, even in our wildest imaginations. The United Kingdom Government's policy is to uphold the status of 1441, and to do our utmost to seek a peaceful outcome. That is in Saddam's own hands.

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  We are intent on maintaining the authority of the United Nations, and that is a legitimate interest of the United Kingdom.
  Lord Roberts of Conwy: My Lords, will the noble and learned Lord take this opportunity to comment on the widely held view that the consequences of a war against Iraq may well be worse than the consequences of trying to contain Saddam Hussein?
  Lord Williams of Mostyn: My Lords, as always, the noble Lord makes a perfectly valid point. These are difficult political, and international geopolitical questions. Those are the judgments that the Prime Minister has to make. They are anxious decisions indeed. I am sure that point was deployed when Abyssinia was invaded, and when a small country far away, of which we knew nothing, was invaded.

  Crime (International Co-operation) Bill [H.L.]
  3.59 p.m.
  Report received.
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 1:
  Page 1, line 14, at end insert "or"
  The noble Baroness said: My Lords, in moving Amendment No.1 I speak also to Amendments Nos. 2 to 7. I hope that it is convenient that I take three groups in one. It gives me an opportunity to explain the general approach that we have taken on these Benches to the amendments on Report. In so doing, I hope to save us a substantial amount of time later.
  There can be no doubt about the importance of international co-operation on the exchange of information on criminal matters, especially on terrorism. The discussions that we have just had on the Statement show that to be especially important now. The Government have said that many provisions in the Bill must be adopted because they are part of international agreements that have already been reached and been subject to parliamentary scrutiny through the EU Select Committees of both Houses. It is a nightmare for all of us, but particularly for those outwith the House, to track down the various comments on the various parts of this Bill in the mountain of paperwork that those committees have so assiduously produced.
  While debating the Bill, it has been important to ensure that Parliament has helped by having clarity about how the Bill will be effected when put into practice. We need to know what the real impact of the changes will be and to ensure appropriate safeguards against the misuse of systems that we are setting up under the Bill. The underlying issue is the question of trust in other judicial and police systems throughout the world.
  I am grateful to the noble Lord, Lord Filkin, for his willingness to discuss his views between Committee and Report. I particularly welcome the Government's response to the work that we did in the Grand Committee by tabling significant amendments, which will be introduced by the Minister later today and next week. The Government have gone a long way to meet the concerns expressed from these Benches and the Liberal Democrat Benches in Grand Committee. In moving those amendments, the Minister will contribute to reducing the time that we need 10 take on the Bill at this stage.
  Opposition spokesmen always have to say, "There is always a but". We need to examine some matters further, and may even have to press them, but those matters have been reduced in number.
  I turn to the amendments, which seek clarification as to the administrative proceedings that are referred to in the Bill, and what type of documents may be served under Clause 1. After all, we do not have administrative proceedings, as such, in this country, and some other European Union countries also lack them.
  Amendments Nos. 1, 5 and 7 look rather odd, as they merely insert the word "or", but they give the Minister an opportunity to say why he believes that the subsection has sufficient clarity. I tabled the amendments because of questions asked him in Committee. My noble friend Lady Carnegy asked whether,
  "paragraphs (a) to (d) are all separate and mutually exclusive, or do they overlap? Are administrative proceedings … different from the proceedings outlined in paragraphs (a) to (c), or has that been included to ensure that the list covers all possibilities?"
  In response, the noble Lord, Lord Filkin, said:
  "One may … imply an 'or' between"—
  each paragraph, and that,
  "in other words, a document could be covered by one or more. The provisions are self-standing or could be dealt with in conjunction".
  I thought that was confusing, so I tabled the amendment to ask the Minister whether he has reflected further on the drafting since Grand Committee., and whether he might accept our amendment as a way of ensuring that the meaning that he attributed to the clause at Grand Committee is made plain in the Bill.
  Amendments Nos. 2 and 6 go to the heart of the question: what are the administrative proceedings covered by the subsection? My noble friend Lord Carlisle of Bucklow particularly probed that point. We had a useful debate in Committee, which I would not dare to repeat on Report. The noble Lord, Lord Filkin, offered to write to noble Lords, which he did; in his letter he addressed that question and others, too. I hope that he will take the opportunity, in responding to the amendments, to put on record at the Dispatch Box the Government's view on these matters and give further clarification.
  Will the Minister confirm that the key requirement is that there must be a judicial phase of the proceedings, but mutual legal assistance may be sought at an earlier stage of proceedings, provided that it may at a later

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  stage be brought before a court with criminal jurisdiction? That may not sound much like clarity, but I believe that I understand it. I hope that it is right. Will the Government require the participating country that makes the request to the UK to state that the proceedings concerned will be before a court with a criminal jurisdiction at a later stage, before our authorities accede to the request?
  My noble friend Lord Renton suggested a drafting solution, in his usual helpful way. He said that the problem might be solved,
  "if … we were to leave out the expression 'by an administrative authority' and, in the next line, refer not merely to 'administrative proceedings' but to 'judicial proceedings'—which would of course include criminal proceedings.".—[Official Report, 13/01/03; col. GC 10]
  My noble friend said that that might give us a clearer picture of what is covered. Therefore, I have also tabled Amendments Nos. 3 and 4. Has the Minister had an opportunity to reflect further on that drafting solution?
  Finally, in the helpful letter sent by the noble Lord, Lord Filkin, on 6th February, he said that the Government were still trying to obtain further concrete examples of proceedings brought by administrative authorities that were covered by the Mutual Legal Assistance Convention 2000. He said that they would let us know if they received any further information. Have they received any information, and which countries did they approach for it? I beg to move.
  Lord Renton: My Lords, my noble friend Lady Anelay has done a lot of work since Grand Committee, and I warmly support the views that she expressed. The noble Lord, Lord Filkin, has been very receptive.
  The Bill breaks new ground, not merely in the protection of the country but in the application and extension of the law. We are breaking into unusual legal provisions. The first group of amendments is essential in our effort to get those legal provisions right. I hope that the Minister will regard them sympathetically, for the reasons given by my noble friend Lady Anelay.
  Baroness Carnegy of Lour: My Lords, my noble friend Lady Anelay congratulated the Minister on the changes that he has made since Committee stage, in response to our discussions. In my experience of working on Bills in this House, I do not remember a Minister who had such clout with his right honourable friend in another place, and was able to persuade him of so many things after the Committee stage. I do not know what the Minister does to achieve that, but it should give this House a good deal of satisfaction, because it clears up many issues that it is then unnecessary to go on discussing at later stages, here or in another place. I, too, congratulate the Minister.
  Like my noble friend Lady Anelay, I was hoping that there would be concrete examples to illustrate the difficult concept of the administrative authority. The
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  problem is probably created by the fact that we are trying to make legislation that dovetails with the systems of so many other countries, and with two parts of our own country, all at the same time. That is not easy.
  Any illustration that clarified what precisely we were talking about would be a great help. Perhaps it might still be possible to seek out those examples. It would be interesting to have them, not only for us but for another place, where they will have to struggle with these concepts as we have. I support my noble friend's amendment.
  The Attorney-General (Lord Goldsmith): My Lords, it is perhaps a pity that my noble friend Lord Filkin is not responding to this group of amendments so that he could express his satisfaction at the comments of the noble Baronesses, Lady Carnegy and Lady Anelay.
  Before turning to the amendments, like the noble Baroness, Lady Anelay, I should like to make two points. First, she was absolutely right when moving the amendment to emphasise the importance of international co-operation in these areas. If I may say so, her allusion to the preceding debate was entirely apposite. Secondly, I entirely agree with her—as I think would those who took part in the Grand Committee proceedings—about the extent to which those proceedings added clarity to what is inevitably a technical, albeit important, matter.
  The amendments in this group break down into three categories. The first set, Amendments Nos. 1, 5 and 7, seek to make minor changes to the drafting to signify that the clause applies to a document falling into any one of the four listed categories. I confirm that the Government's very clear view, and my clear view as well, is that the current drafting is perfectly sufficient. It is clear that Clause 1 applies to all and any of the types of process that can be described as one of the types listed in one of the paragraphs (a) to (d). Those are drafted so as to encompass all relevant procedural documents. Almost all relevant documents will fall into one of the categories, but, if it happened that a document fell into more than one, then that would also be covered by the current drafting. So we see no need to accept amendments that seek to make those small changes. The matter is clear enough without them.
  I turn to Amendments Nos. 2 and 6. As the noble Baroness, Lady Anelay, said, these amendments are intended to probe somewhat further on what is meant by administrative proceedings and administrative authorities. We are obliged to provide assistance in connection with proceedings brought by these authorities where the decision may give rise to proceedings before a court with criminal jurisdiction. We have accepted that obligation by signing up to the mutual legal assistance convention, and so removal of those references would render us unable to assist in such circumstances. The amendments as drafted cannot therefore be accepted.
  We have not identified equivalent domestic proceedings, which is why there is no provision enabling the United Kingdom to serve such documents

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  overseas. As those who spoke to the amendments indicated, we had quite a lot of discussion in Grand Committee on the meaning of administrative proceedings. The letter of 6th February from my noble friend Lord Filkin offered further clarification. I am glad to say that I can go even further today, as I have been asked to do.
  We are informed that in Germany, Austria and Belgium certain traffic offences that would be criminal offences here have been reclassified as administrative offences. That is almost saying that it is a less serious classification. We also understand that the Scandinavian countries classify certain environmental claims as administrative although, again, they would be regarded as criminal here. Not all EU countries have proceedings of this nature; as I said, we do not. As we would classify such offences as criminal, we can already—under existing mutual legal assistance agreements and our own domestic legislation—request and be provided with mutual legal assistance in relation to them. However, as the same acts are "decriminalised" in those countries, those countries are unable to seek such assistance from us. The extension of Schengen and the MLAC to cover administrative proceedings is designed to ensure that those countries can obtain like assistance for like offences. I hope that that additional clarification, by giving examples and putting them into that context, will help explain and provide reassurance on the point.
  Amendments Nos. 3 and 4 would change the text of paragraph (b) to read as follows:
  "to any document issued or made in that country in administrative proceedings and judicial proceedings recording a decision of that authority".
  Those appear to be drafting amendments. However, we wish to retain the explicit reference to administrative authority in this clause because that is the expression used in Article 3(1) of the MLAC. That is the obligation which we must meet, and the clause as drafted satisfies it.
  Notwithstanding the provenance of the suggestion, we would not accept that the insertion of "judicial proceedings" clarifies the matter. If anything, it is likely to extend the basis under which we can provide assistance to administrative authorities, as other judicial proceedings undertaken by those authorities may have no criminal nexus whatever. As I said, our obligations under Article 3 of the convention are to provide assistance in cases where, ultimately, there is a criminal nexus by being,
  "punishable under national law … by being infringements of the rules of law and where the decision may give rise to proceedings before a court having jurisdiction in particular in criminal matters".
  I recognise that that is technical, but I hope that it has provided some reassurance to those who have spoken.
  4.15 p.m.
  Lord Renton: My Lords, one is not allowed to make a second speech on an amendment at Report stage. I therefore put it this way. Before the noble and learned Lord sits down, would he be so good as to explain how
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  and why it is that a motoring offence in one of the countries he mentioned is regarded as a purely administrative offence whereas we still regard it as a criminal offence? What kind of criminal offences here would then be treated as administrative offences? The noble and learned Lord the Attorney-General must remember that we are legislating in this country for our own people as well as in respect of offences committed abroad. I think that we are getting into a state of some confusion.
  Lord Goldsmith: My Lords, I shall treat the noble Lord's intervention, which I am happy to take, as a request for clarification. The position is this. Certain countries choose—it is their choice, to which they must be entitled—to classify certain matters that we would classify as criminal as administrative. That applies to certain road traffic offences in some countries and to certain environmental offences in others. We would be within our rights if we chose to "decriminalise" in the same way. However, the nature of the conduct and the offence remains the same. Not only is there an obligation, noble Lords may think it entirely appropriate that, as we can request the assistance of those countries in relation to, for example. a road traffic offence that we regard as criminal, they should be able to require our assistance in the same sort of case albeit they classify it differently. In any event, that is our obligation. I hope that that is of some assistance.
  Baroness Anelay of St Johns: My Lords, I am grateful to the noble and learned Lord the Attorney-General for his response on those three mini-groups of amendments within the larger group. I entirely accept his explanation with regard to Amendments Nos. 1, 5 and 7. He has clarified the point even further. I also thank him for his explanation with regard to Amendments Nos. 2 and 6 and for the examples concerning traffic offences in Germany and Belgium. However, my noble friend Lord Renton made an important intervention which highlighted the differences not only across the European Union but even further overseas.
  I have to say that I listened to the noble and learned Lord's reply with bated breath, wondering how he would pick his way across the minefield of whether this country would decriminalise road traffic offences. Had he made such an announcement, he might have found himself, at one fell swoop, the most popular of people in this country—but perhaps not just yet. I am grateful for the noble and learned Lord's response. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  The Deputy Speaker (Lord Haskel): My Lords, before I call Amendment No. 2, I have to tell your Lordships that if Amendment No. 2 is agreed, I cannot call Amendments Nos. 3, 4 and 5 for reasons of pre-emption.
  [Amendments Nos. 2 to 7 not moved.]
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 8:
  Page 2, line 12, at end insert—

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  "( ) The Secretary of State shall make regulations prescribing the circumstances in which a document is (or is not) to be deemed as having been served for the purposes of subsection (3)."
  The noble Baroness said: My Lords, in moving Amendment No. 8, I wish to speak also to Amendments Nos. 10 and 11. What constitutes good service and proof thereof? Amendments Nos. 10 and 11 to Clause 4 probe the nature of the arrangements that will apply when United Kingdom criminal process is served overseas otherwise than by post.
  The Explanatory Notes tell us that, following the entry into force of the Convention on Mutual Assistance in Criminal Matters (MLAC), most procedural documents will be sent directly by post from the issuing authority in countries which participate in MLAC or the Schengen Convention to persons in the United Kingdom. Subsection (3) replaces Section 1(2) of the Criminal Justice (International Co-operation) Act 1990, giving the Secretary of State, or, in Scotland, the Lord Advocate, discretion as to how to serve the document. Under subsection (3), it may be served by post or the chief officer of police in the relevant area may be directed to serve it personally where a request has been made for personal service.
  In Committee, I used these amendments as a device to ask questions about what would constitute good service and why the Government would consider it important in certain circumstances to serve a document in person rather than by post. Today, I use them as a device to ask the Minister to put on the record the helpful response that he gave in his letter of 6th February. In that letter he rejected my idea that the arrangements made by the Secretary of State should be specified in the Bill or in secondary legislation on the usual plea of retaining flexibility for the Government. Sometimes flexibility can be misused by government, but on this occasion I believe that the Minister has justified the Government's stance. I invite him to put on the record the very helpful examples that he gave in writing of how different arrangements might be suitable in different countries. I beg to move.
  Lord Goldsmith: My Lords, I am happy to respond to what is really an invitation to put on record the explanations given by my noble friend Lord Filkin in his letter of 6th February.
  Amendment No. 8 would introduce a power to make regulations setting out when a document issued from an overseas authority is deemed to have been served on the recipient. We do not regard such a power as either necessary or appropriate. It is not necessary because the arrangements for service of overseas process under the 1990 Act have worked well for the past decade without such a power. It is not appropriate because what constitutes effective service under Clause 1 is ultimately a matter for the issuing state, not for the United Kingdom. In this clause we are dealing with documents issued by judicial authorities overseas. The law of that country will determine whether the document has been served (or not served), not the law of the United Kingdom.
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  Issuing authorities may request a particular means of service. In practice we expect most documents from EU countries to bypass the central authority entirely. Clause 1 applies only when documents are not sent directly, but are sent via the Secretary of State. In those circumstances, the issuing state will request a particular form of service: either postal or personal. Such proof of service as is obtained, whether a recorded delivery receipt or a receipt from the police, will be returned to the issuing authority, but it is for that authority to establish whether the form of service effected and any proof of such service constitutes effective service under its law.
  The other amendments in this group, Amendments Nos. 10 and 11, would require arrangements for the service of process from the United Kingdom to be set out by order. As the noble Baroness indicated, although the issue has been considered carefully since Grand Committee, the Government remain of the view that it is unnecessary.
  In response to the noble Baroness's invitation, I set out what the letter of the noble Lord, Lord Filkin, stated. We think that specifying arrangements in an order has the potential to cause problems. Not specifying them has the advantage of flexibility, which it is important to retain. Different arrangements might be suitable in different circumstances.
  Documents destined for countries not designated as participating countries for the purposes of this clause will be sent to the Secretary of State, who will send them to the central authority in the other country, which will serve them on the recipient. But there may also be other arrangements. For instance, in the case of EU-bound documents, the issuing authority may send them to the overseas central authority for onward transmission, either by post or personal service, depending on its particular requirements. Alternatively, the issuing authority might send documents to the Secretary of State who will then send them to the overseas central authority, again for onward transmission from that authority either by post or personal service.
  There will inevitably be occasions when an issuing authority will send documents to the Secretary of State in error when direct service would have been the correct route. We intend that in such circumstances the Secretary of State will then simply forward the documents directly to the recipient overseas. We would not want a situation where a statutory provision required him to send the documents back to the issuing authority because they had been sent incorrectly, when it would be a simple and clearly far more sensible solution for him to forward them himself. However, to set out such an option in an order risks giving the impression to issuing authorities that it is quite acceptable to send all documents to the Secretary of State because he will do the work of routing them overseas for them. That could encourage issuing authorities not to bother using the correct procedure, which would clearly be undesirable. Those are some

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  examples of circumstances in which specifying arrangements in an order could lose flexibility and could give rise to problems.
  Baroness Anelay of St Johns: My Lords, I thank the noble and learned Lord for putting that explanation on the record and for making it clear that it is a matter of common sense, which makes the requirement for flexibility nothing sinister. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 2 [Service of overseas process: supplementary]
  Lord Goodhart Lord Goodhart moved Amendment No. 9:
  Page 2, line 28, after "a" insert "party or"
  The noble Lord said: My Lords, Clause 2 applies to any process served in the United Kingdom requiring a person to appear as a party or attend as a witness in foreign proceedings. Under subsection (3)(c) of Clause 2, service of the process must be accompanied by service of a notice indicating that under the law of the foreign state in question, the person who has been served may not be accorded the same rights and privileges as a witness as would be accorded to him in proceedings in the United Kingdom. The notice is not required to say anything about the rights of that person as a party to the proceedings. The effect of Amendment No. 9 would be to require the notice to refer to the rights and privileges of the person served as a party or as a witness.
  It is not clear why the omission of reference to a party occurs. On the face of it, the rights of a party, particularly the right not to give evidence—a party under English law, for instance, cannot be subpoenaed by the other side to give evidence and cannot be required to give evidence by the court—are at least as important as those of a witness. When this issue was raised in Grand Committee, the Government's explanation was that the present drafting simply repeats the drafting of an earlier Act, and that that has caused no problems. I do not think that the apparently defective drafting of a previous statute justifies the omission of words which, so far as I can see, should obviously be included in the clause. I beg to move.
  4.30 p.m.
  The Parliamentary Under-Secretary of State, Home Office (Lord Filkin): My Lords, I thank noble Lords who have acknowledged the responsiveness of the Government to some amendments tested in Grand Committee. I can only hope that members of the Opposition will keep that highly quiet, otherwise I am done for, as they can well imagine.
  Since Grand Committee, we have considered the amendment carefully, in great detail and at length, but remain of the view that it is not necessary. I will try to provide an explanation to give reassurance that the drafting is accurate and that the clause provides equal safeguards for defendants and witnesses, as is, I believe, the good intent behind the amendment.
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  When a defendant takes the stand, he does so as a witness. There is no reason to read the word "witness" in Clause 2(3)(c) as excluding the defendant. I think that that is the crucial point. The meaning given to "witness" in the concise Oxford English Dictionary is a,
  "person giving sworn testimony in lawcourt or for legal purposes".
  The word may be used in statutory provisions as including defendants. For example, Section 51 of the Criminal Justice and Public Order Act 1994 governs intimidation of witnesses, and the provision, of course, covers the intimidation of defendants in respect of their evidence.
  We therefore see no reason why Clause 2(3)(c) is any different. There is no reason why it should be read as not requiring a notice to be given to a defendant; rather the reverse is true. The notice must be given to persons both where they appear as a party to the proceedings and where they attend as a witness. That is because subsection (1) provides that subsections (2) and (3) apply to both parties and witnesses. A notice will always be given to a party to the proceedings as well as a witness. That explains why subsection (1) refers to both a party to the proceedings and a witness, so as to ensure that the notice given under subsection (3) is given to both categories. However, we need only refer to a witness in subsection (3) because—I would like to stress this point when a defendant takes the stand, he will do so as a witness.
  Two types of privileges afforded to defendants were mentioned in Grand Committee, which were those against self-incrimination and spousal immunity. However, both are privileges afforded to the party as a witness. It is true that a party could not be compelled to give evidence, whereas a witness could, subject to the right not to incriminate himself. However, that is a privilege afforded to the party as a witness. Similarly, for example, under Section 80(4) of the Police and Criminal Evidence Act, a spouse who is also charged in proceedings is not compellable. Again, that is a privilege afforded to the party as a witness. We have identified no rights and privileges which would he accorded to a party, in addition to those which would be accorded as a witness. For that further reason, we believe that the amendment is not necessary.
  As the noble Lord, Lord Goodhart, indicated, the current drafting follows the 1990 Act. The notice given under Section 1(4) of that Act covered the rights and privileges of a witness only. We are following that approach. Clause 2 of the Bill is different from the 1990 Act only in that it refers to a party to the proceedings, as opposed to a defendant. However, that is to cover different Scottish nomenclature of persons appearing before a Scottish court and the fact that some of the proceedings in question are not purely criminal. There is no difference of substance between the 1990 Act and the Bill.
  The amendment would mean that Clause 2(3)(c) would be incorrectly drafted, for the reasons that I have given. Despite having spoken at rather considerable

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  length, I hope that I have explained that we believe that no mischief needs to be remedied by the amendment. I hope that that sets the noble Lord's mind at rest.
  Lord Goodhart: My Lords, I must confess that I have some difficulty in seeing how a right not to be a witness can be a right of a witness. Having said that, the amendment is clearly very minor and I do not propose to take it any further. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 4 [Service of process otherwise than by post]:
  [Amendments Nos. 10 and 11 not moved.]
  Clause 5 [General requirements for effecting Scottish citation etc.]:
  Baroness Carnegy of Lour?Baroness Carnegy of Lour? moved Amendment No. 12:
  Page 3, line 43, at end insert "and"
  The noble Baroness said: In moving the amendment, I shall speak to Amendments Nos. 15, 16 and 19, tabled in my name and that of my noble friend. Also in the group are government Amendments Nos. 13, 14, 17 and 18. No doubt the Minister will speak in a moment to his amendments, but it is my duty to speak first because of the way in which the group is arranged.
  Before I speak to the amendment, I have one general comment. The amendments concern some of many changes that the Bill is making to the law of Scotland. It is interesting that that is happening despite the fact that many issues with which we are dealing are devolved to Scotland. The Scottish Parliament wished the Westminster Parliament to deal with them, and one understands why. It is very important that the arrangements in the Bill are the same in Scotland as they are in the rest of the United Kingdom, and that is easier to do in this way.
  It has been pointed out to me, however, that there is another reason why that is desirable. When the Scottish Parliament legislates in relation to human rights, should any legislation that it has passed prove incompatible with the convention on human rights and the Human Rights Act, a whole Bill may be challenged in court and struck down completely, even if it has had Royal Assent. Should a Bill of the Westminster Parliament be proved to contravene human rights in court, the Government have the ability to put the Bill right by a fast-track process, if I remember, and the Bill stands. Therefore, it is convenient for Scotland that Westminster should legislate sometimes in such a way. I do not know whether the Scottish Parliament considered that matter when it made the decision to ask Westminster to do the job for it, but it is an interesting point that noble Lords might care to remember for future occasions.
  I shall return to the amendment. In a way, the issue is a bad-news story followed by a very good-news story for the law of Scotland. In Grand Committee on 13th January, the noble Lord, Lord Filkin, moved an
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  amendment to insert a new paragraph into Clause 5. That can be found at col. GC 30 of Hansard. The paragraph related to the arrangements for effecting a citation in Scotland. He said that he had tabled it at the request of the Scottish Executive.
  The paragraph seemed to me, as a layman, somewhat incomprehensible. My noble friend Lady Anelay agreed. The noble Lord, Lord Goodhart, was sympathetic and suggested an improvement. The Minister was advised that there might be a misprint. He said that he would speak to the amendment and insert it into the Bill, but would reflect on the clarity in the meantime and make an improvement, should one be possible. When the paragraph appeared in Hansard, the matter had been clarified as it was more clearly laid out.
  My noble friend and I looked at the Bill as it stood and thought that it still required clarification, which is why we tabled Amendments Nos. 12, 15, 16 and 19. To our delight government Amendments Nos. 13, 14, 17 and 18 appeared, and they seem to do the job even better than we have. I am certainly of a mind to withdraw my amendment in due course and accept the government ones, because we think that they are better. I beg to move.
  Baroness Anelay of St Johns: My Lords, I support what has been said by my noble friend Lady Carnegy. The original amendment was perhaps a cautionary tale of how one may work in Grand Committee, where we are of course not allowed to vote and any amendments must be made with the agreement of the whole Committee. It made me think carefully about when I might try to persuade Ministers in future not to proceed when there is some discontent about government amendments.
  Like my noble friend I completely welcome the government amendments, which I see as superior to my own. My noble friend Lady Carnegy referred to the fact that when the government amendment was printed in the Bill as a reprint after consideration in Grand Committee, the format was different from that presented to us in Committee because sub-paragraphs had been added. I have no complaint about that; I simply did not know that one could print in the new version of a Bill an amendment laid out differently from the way it appeared in the amendment agreed in Committee. As my noble friend said, it lent greater clarity but it still left some gobbledegook. It has now been rescued from that state by the Minister. I shall inquire in the Public Bill Office about how formats may be changed between the presentation agreed to by Committee and that printed in the Bill.
  Lord Filkin: My Lords, I shall not speak at length because the House appears to be at one on this matter, although we tend to prefer the phrase, "less than transparent", to "gobbledegook", for reasons that noble Lords will understand. The noble Baronesses, Lady Anelay and Lady Carnegy, remarked that the paragraphing changes, which were undertaken in preparation for the Bill's next stage, offered greater clarity. Like the noble Baroness, I did not know that that

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  approach was part of our process. It appears to be a helpful part. Like the noble Baroness, Lady Carnegy, I had not known of the point about the ECHR; I shall take it away and reflect on it. Without more ado, I shall move the government amendments at the appropriate point.
  Baroness Carnegy of Lour: My Lords, I thank my noble friend and the Minister for their comments. My noble friend amplified the point that I was trying to make about this interesting procedure, which appears in Hansard. We will need to watch it in future and ensure that if there is a rearrangement of paragraphs, the wording is the same, which it was in this instance. There was nothing wrong with the wording, as the noble Lord said. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Filkin Lord Filkin moved Amendment No. 13:
  Page 4, line 1, at beginning insert "the citation".
  On Question, amendment agreed to.
  The Deputy Speaker: My Lords, before I call Amendment No. 14, I have to tell noble Lords that if that amendment is agreed to, I cannot call Amendment No. 15 for reasons of pre-emption.
  Lord Filkin Lord Filkin moved Amendment No. 14:
  Page 4, line 1, after "document" insert "issued is"
  On Question, amendment agreed to.
  [Amendments Nos. 15 and 16 not moved.]
  Lord Filkin Lord Filkin moved Amendments Nos. 17 and 18:
  Page 4, line 10, at beginning insert "the citation"
  Page 4, line 10, after "document" insert "issued is"
  On Question, amendments agreed to.
  [Amendment No. 19 not moved.]
  4.45 p.m.
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 20:
  After Clause 9, insert the following new clause—
  "FREEZING ORDERS: ANNUAL REPORT
  The Secretary of State shall lay annually before Parliament a report on the use of freezing orders."
  The noble Baroness said: My Lords, this new clause would require the Secretary of State to make a report on an annual basis on the use of freezing orders. The amendment is slightly different from that which I moved in Grand Committee when I sought an arrangement under which the Secretary of State would appoint an independent person to make an annual report. The Minister sought to persuade me that having an independent person would involve an unnecessarily cumbersome procedure. After listening to the debate and the reasons proposed, I agreed with him. However, I believe that we should take stock of the fact that the Government are introducing a new provision into United Kingdom law, the use of which should be considered in light of operational experience as well as that of developments throughout the
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  European Union once the Bill is enacted. I still believe therefore that there is room for an annual report in these matters.
  At Second Reading, the noble Lord, Lord Filkin, said:
  "The Bill will also introduce mutual recognition of orders to freeze evidence, as provided for by the EU's draft framework decision on the execution of orders freezing evidence. That is a major step forward that will significantly speed up the process of securing valuable evidence. Mutual recognition takes MLA one step further by recognising directly, as between EU member states, a request made by a court, so enabling a direct response with the minimum of formality".—[Official Report, 2/12/02; col. 973.]
  That seems a very constructive step forward. So far, the Government cannot say how often they anticipate that these orders will be used because we are moving into uncharted territory.
  We have discussed the provisions on freezing orders, which are new and potentially an important element of the Bill. It is important that when new provisions are introduced into our domestic law, particularly those depending on the actions of authorities in other countries, they are kept under scrutiny in order to ensure that they are operating for the benefit of the United Kingdom and its citizens.
  In Grand Committee, the noble Lord, Lord Clinton-Davis, advanced the view that if other countries did not have an annual report on these matters, perhaps we should not; he asked the Minister various questions about that. Very rarely do I agree with the noble Lord, Lord Clinton-Davis, but on this occasion I dare to do so because it is not always the case that if the EU does something differently from us, it is right and we are wrong. At this stage, we are going into uncharted territory and we do not yet have a full view of how other countries will approach the matter. They may end up with an annual report; we simply do not know
  It is important for us to know how this new system will operate and whether it is unduly burdensome. As the Minister said at col. GC 50, the framework decision has not yet been adopted across the EU. We are having to take much on trust. The Minister said that the parliamentary procedure of tabling Written Questions would suffice. Well, that may perhaps he the case in some circumstances but written Quest ions are a very blunt tool and are normally used only as a method of garnering information preparatory to a debate; they are not really the best way to hold the Government to account. I recognise that they are also used by governments to make announcements that they may not be able to make in other ways. I do not want to leave this important matter to the risk of a Written Question.
  I am asking the Government through the amendment whether they have now discovered the answers to the questions raised in Committee. For example, the noble Lord, Lord Goodhart, asked: will the information be contained in the annually published judicial statistics in terms of orders made and breakdowns of the other countries concerned? The Minister said that he could not

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  answer the question at that time but that he would make inquiries and let us know. This is his chance. I beg to move.
  Lord Renton: My Lords, I regard this as a very important amendment. I hope that the Government will agree to it. As my noble friend Lady Anelay pointed out, in dealing with freezing orders in Clauses 10, 11 and 12 we are dealing with something that has so far been considered to be unusual in our law; the arrangement will introduce an entirely fresh system. Its importance must be considered by the Government and a report laid before Parliament annually, as my noble friend said. That is not a great obligation on the Government.
  I realise that the new clause could come after Clause 12 instead of before Clause 10. In previous legislation, when requiring the Secretary of State to report to Parliament, we generally required it to be done after we had set out the obligations. Here, we are doing so before the obligations are mentioned. However, either way, I believe that this clause should be inserted into the Bill, and there is no harm in its going in before Clause 10.
  I suppose it is arguable that, in his annual report, the Secretary of State might refer to what happens in other countries. But, frankly, I do not believe that that is relevant in relation to our law. The people of this country—dare I say, especially the lawyers—should be informed about the development of this process.
  The only other point that I wish to add is that Clause 10(2) clearly sets out a definition of a "domestic freezing order". It is described as,
  "an order for protecting evidence which is in the participating country pending its transfer to the United Kingdom".
  Again, that is a very unusual situation. But it is one which our courts will need to know about and which the British people who will be affected by the operation of the Bill should also have in mind.
  Therefore, I hope that the Government will be very sympathetic and accept the amendment. It is not controversial. When three important new clauses introduce in some detail new legal factors into this country, surely there should be a report to Parliament. I hope that the Government will accept that.
  Baroness Carnegy of Lour: My Lords, I hope that the Minister who is to reply will not say, "Here we go—another annual report". As both my noble friends have said, this is an entirely new arrangement. The passing of evidence between different countries for actions in different courts is a very complex arrangement. It will be important that it works from all ends of the operation in all countries. It will also be important for this country to know whether it is working for us as well as for other people.
  Perhaps there need not be an annual report for ever—my noble friend did not include such a requirement in the amendment. It may be needed only for the first four or five years or for however long the Government consider necessary. But it seems to me
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  that Parliament should know what is going on in this respect and consider the matter carefully. The Government should be required to find out exactly what is happening in order to make the report. Therefore, I hope that the Minister will view the amendment kindly.
  Lord Bassam of Brighton: My Lords, I am grateful to the noble Baroness, Lady Anelay, for retabling an amendment, which, as she said, is not completely dissimilar to one debated in Grand Committee. I believe it has provided a useful opportunity for your Lordships' House to remind the Government of our requirement to ensure that everyone is fully informed about the impact of important pieces of legislation that are put into the statute book, especially where they concern important issues such as the freezing of evidence.
  This is not the first time that amendments to this Bill—or other Bills—have required annual reports to be produced. We have previously debated and discussed that matter cheerfully and helpfully. I do not believe that it will come as a great surprise to your Lordships when I say that we do not see great merit in the amendment, although, rightly, we understand the spirit in which it is moved. It is important to hold the Government to account and to ensure that we provide information on these matters on a regular basis.
  The amendment differs from the one that we debated in Grand Committee in that, as the noble Baroness said, the original amendment would have required an independent person to prepare the report. If this amendment is successful in any form, it will not be so very different because someone will have to prepare the information and bring forward a report.
  The arrangement for executing and requesting evidence freezing orders from our EU partners is new. It is right that Parliament has a continuing interest in their use and operational experience. However, we consider the proposed new clause to be unnecessary. The information contained in an annual report would be readily available to MPs and Members of this House, who would be able to obtain it by tabling parliamentary Questions, whether Written or Oral. Therefore, Parliament will have the opportunity to scrutinise the use of freezing orders without the need to appoint someone formally to prepare a report.
  Our view is that the proposed new clause would be overly bureaucratic and unnecessary, although we understand what is behind it. It is possible that in the first few years, while we were feeling our way with freezing orders, it would be desirable to hold an occasional debate on the issue. However, we do not believe that we require an annual report and do not consider it to be the correct way to proceed.
  As to the question of whether the information will be available as official statistics, my suspicion is that it will be tucked away somewhere in judicial statistics. That is a matter for the Lord Chancellor's Department. I fully understand the point made in posing the question, and I shall ensure that the noble Baroness and other noble Lords who have participated in the discussion are

  157
  informed. We shall write to them on that point. As to the question of whether member states have annual reports, again, I cannot give your Lordships an answer but clearly we need to carry out further research on that matter.
  I believe that the information will be available. Of course, it can be requested on a regular basis through the use of parliamentary Questions. We understand at the outset the concern to ensure that freezing orders operate well but, ultimately, we are not convinced that they require the full effect of an annual report.
  Baroness Carnegy of Lour: My Lords, before the noble Lord sits down and with the leave of the House, in view of what my noble friend on the Front Bench said, perhaps I may ask what makes the Minister think that Parliament can scrutinise this complicated system of freezing orders through parliamentary Questions? Can he tell us why that would work?
  Lord Bassam of Brighton: My Lords, I was rather convinced by the words of the noble Baroness, Lady Anelay, in Grand Committee. In response to the point about Written Questions, she said:
  "That is one of the battery of weapons that we have and it is one that I certainly do not underestimate. Particularly in this House, it has brought about some very fruitful and careful responses from the Government. I give my word that I shall try to find the energy and the time to ensure that we continue to hold the Government to account wherever possible".—[Official Report, 13/1/03; col. GC 51.]
  I considered that to be a fairly ringing endorsement of the use of parliamentary Questions. No doubt the noble Baroness's energy will ensure that we are properly held to account on this point.
  Lord Clinton-Davis: My Lords, does my noble friend agree that the Opposition, or anyone in this place or the House of Commons, could put forward not only an Oral but also a Written Question and that the information could be prolific? Does my noble friend also agree that, far from being defenceless in this matter, the use of Questions has a real effect on the Government?
  Lord Bassam of Brighton: My Lords, I entirely agree with my noble friend.
  Baroness Anelay of St Johns: My Lords, it is always pleasant to have a Minister quote what I said and find that I still agree with myself. In politics, that is even more of a surprise these days. There are, indeed, occasions when Written Questions are the right avenue to follow and there are occasions when they are not.
  I am grateful to my noble friends Lord Renton and Lady Carnegy for their support for the amendment. As the noble Lord, Lord 13assam, recognised, it is something of a "Bassam special". As he said, he and I have had cheerful and helpful debates about annual reports over the past eight, nine or 10 months.
  I agree that it is important to hold the Government to account. So information should be provided. As the noble Lord said, the difficulty is that that has to be done on a regular basis. Unless there is an annual
  158
  report it is not certain that one will be able to obtain information in a form that can be used to hold the Government fully to account.
  Lord Clinton-Davis: My Lords, it is possible for any Member at a specific time to interrogate the Government. That is one point and there are many more. Does the noble Baroness agree with that or not?
  Baroness Carnegy of Lour: My Lords, I remind noble Lords that this is Report stage.
  Baroness Anelay of St Johns: My Lords, I agree with the noble Lord, Lord Clinton-Davis. As I said earlier, Written Questions can be a useful part of the battery of weapons, not just for the Opposition, but for all noble Lords. In this House we are aware that we have an advantage with Oral Questions to which the noble Lord, Lord Clinton-Davis, referred. We changed our rules so there is greater opportunity for individual Members to put their names to Oral Questions.
  If one were to follow the argument of the noble Lord, Lord Clinton-Davis, and the Minister to its logical conclusion, there would never be need for an annual report. I cannot believe that that is the case. This provision is new; it needs to be tested. And the Government need to be held to account I wish therefore to test the opinion of the House.
  5.1 p.m.
  On Question, Whether the said amendment (No. 20) shall be agreed to?
  Their Lordships divided: Contents, 83; Not-Contents, 159.

  Division No. 1

  CONTENTS

  Ampthill, L.

  Goschen, V.

  Anelay of St Johns, B.

  Gray of Contin, L.

  Baker of Dorking, L.

  Hanham, B.

  Blackwell, L.

  Henley, L.

  Blatch, B.

  Higgins, L.

  Bridgeman, V.

  Hogg, B.

  Brooke of Sutton Mandeville, L.

  Hooper, B.

  Brookeborough, V.

  Howe, E.

  Brougham and Vaux, L.

  Howe of Aberavon, L.

  Burnham, L.

  Howell of Guildford, L.

  Buscombe, B.

  Hylton, L.

  Campbell of Alloway, L.

  Kimball, L.

  Carnegy of Lour, B.

  King of Bridgwater, L.

  Colwyn, L.

  Knight of Collingtree, B.

  Cope of Berkeley, L. [Teller]

  Laird, L.

  Cox, B.

  Lucas, L.

  Craigavon, V.

  Luke, L.

  Dean of Harptree, L.

  Lyell, L.

  Denham, L.

  McColl of Dulwich, L.

  Dixon-Smith, L.

  MacGregor of Pulham Market, L

  Dundee, E.

  Elliott of Morpeth,L.

  Marlesford, L.

  Elton, L.

  Mayhew of Twysden, L.

  Fookes,B.

  Montrose, D.

  Fowler, L.

  Moynihan, L.

  Freeman, L.

  Murton of Lindisfarne, L.

  Gardner of Parkes, B.

  Newton of Braintree, L.

  Geddes, L.

  Northbrook, L.

  Glenarthur, L.

  Northesk, E.

  159

  O'Cathain, B.

  Sheppard of Didgemere, L

  Park of Monmouth, B.

  Skelmersdale, L.

  Peel, E.

  Stallard, L.

  Perry of Southwark, B.

  Stodart of Leaston, L.

  Rawlings, B.

  Stoddart of Swindon, L.

  Reay, L.

  Strathdyde, L.

  Rees, L.

  Swinfen, L.

  Renfrew of Kaimsthorn, L.

  Vinson, L.

  Renton, L.

  Waddington, L.

  Roberts of Conwy, L.

  Wakeham, L.

  Saltoun of Abernethy, Ly.

  Wilcox, B.

  Seccombe, B. [Teller]

  Willoughby de Broke, L.

  Selborne, E.

  Windlesham, L.

  NOT-CONTENTS

  Acton, L.

  Graham of Edmonton, L.

  Addington, L.

  Greaves, L.

  Ahmed, L.

  Greenway, L.

  Alli, L.

  Gregson, L.

  Andrews, B.

  Grocott, L. [Teller]

  Archer of Sandwell, L.

  Hardy of Wath, L.

  Ashton of Upholland, B.

  Harrison, L.

  Avebury, L.

  Haskel, L.

  Barker, B.

  Hayman, B.

  Barnett, L.

  Hogg of Cumbernauld, L.

  Bassam of Brighton, L.

  Holme of Cheltenham, L.

  Beaumont of Whitley, L.

  Howarth of Breckland, B.

  Berkeley, L.

  Howells of St. Davids, B.

  Bernstein of Craigweil, L.

  Howie of Troon, L.

  Billingham, B.

  Hughes of Woodside, L.

  Blackstone, B.

  Hunt of Chesterton, L.

  Blease, L.

  Hunt of Kings Heath, L.

  Borrie, L.

  Janner of Braunstone, L.

  Brooke of Alverthorpe, L.

  Jeger, B.

  Brookman, L.

  Jones, L.

  Brooks of Tremorfa, L.

  Judd, L.

  Bruce of Donington, L.

  King of West Bromwich, L.

  Burlison, L.

  Kirkhill, L.

  Campbell-Savours, L.

  Lea of Crondall, L.

  Carter, L.

  Lockwood, B.

  Chan, L.

  Lofthouse of Pontefract, L.

  Chandos. V.

  Ludford, B.

  Chester, Bp.

  Macdonald of Tradeston, L.

  Christopher, L.

  Mclntosh of Haringey, L.

  Clarke of Hampstead, L.

  [Teller]

  Clement-Jones, L.

  MacKenzie of Culkein, L.

  Clinton-Davis, L.

  Mackenzie of Framwellgate, L

  Colville of Culross,V.

  Mackie of Benshie, L.

  Corbett of Castle Vale, L.

  McNally, L.

  Crawley, B.

  Maddock, B.

  Dahrendorf, L.

  Manchester, Bp.

  David, B.

  MarandKellie, E.

  Davies of Coity, L.

  Marsh, L.

  Davies of Oldham, L.

  Mason of Bamsley, L.

  Dean of Thornton-le-Fylde, B.

  Massey of Darwen, B.

  Dholakia, L.

  Merlyn-Rees, L.

  Dixon, L.

  Miller of Chilthorne Domer, B.

  Dubs, L.

  Milner of Leeds, L.

  Erroll.E.

  Mitchell, L.

  Evans of Parkside, L.

  Morris of Aberavon, L.

  Evans of Temple Guiting, L.

  Newby, L.

  Farrington of Ribbleton, B.

  Nicholson of Winterbourne, B.

  Faulkner of Worcester, L.

  Nicol, B.

  Filkin, L.

  Oakeshott of Seagrove Bay, L.

  Fitt, L.

  Orme, L.

  Fyfe of Fairfield, L.

  Patel of Blackburn, L.

  Gale, B.

  Paul, L.

  Geraint, L.

  Pendry, L.

  Gilbert, L.

  Peston, L.

  Golding, B.

  Phillips of Sudbury, L.

  Goldsmith, L.

  Pitkeathley, B.

  Goodhart, L.

  Plant of Highfield, L.

  Gordon of Strathblane, L.

  Prys-Davies, L.

  Goudie, B.

  Radice, L.

  Gould of Pottemewton, B.

  Ramsay of Cartvak, B.

  160

  Randall of St Budeaux, L.

  Temple-Morris, L.

  Rea, L.

  Tenby, V.

  Rendell of Babergh, B.

  Thomas of Macclesfield, L.

  Rennard, L.

  Thomas of Walliswood, B.

  Richard, L.

  Thomson of Monifieth, L.

  Rodgers of Quarry Bank, L.

  Thornton, B.

  Rooker, L.

  Tordoff, L.

  Roper, L.

  Tumberg, L.

  Russell, E.

  Turner of Camden, B.

  Russell-Johnston, L.

  Varley, L.

  Sandbeng, L

  Walker of Doncaster, L.

  Sawyer, L.

  Warner, L.

  Simon V

  Weatherill, L.

  Slim, V

  Whitaker, B.

  Smith of Clifton, L.

  Whitty, L

  Smith of Gilmorehill, B.

  Wilkins, B.

  Smith of Leigh, L.

  Williams of Crosby, B.

  Stone of Blackheath, L.

  Williams of Elvel, L.

  Symons of Vernham Dean, B.

  Williams of Mostyn, L. (Lord

  Taylor of Blackburn, L.

  Privy Seal)

  Woolmer of Leeds, L.

  Resolved in the negative, and amendment disagreed to accordingly.
  5.12 p.m.
  Clause 11 [Sending freezing orders]:
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 21:
  Page 7, line 27, at end insert—
  "( ) The Secretary of State may by order prescribe, in respect of freezing orders made in England and Wales or Northern Ireland, time limits within which such orders must be sent or forwarded under the provisions of this section.
  ( ) The Scottish Ministers may by order prescribe, in respect of freezing orders made in Scotland, time limits within which such orders must be sent or forwarded under the provisions of this section."
  The noble Baroness said: My Lords, I tabled the amendment so that I may have the opportunity to thank the Government for tabling Amendment No. 22 in response to the amendment that I moved in Committee. The noble and learned Lord the Attorney-General said then that he was sympathetic to the idea that there should be a time limit on sending freezing orders. He said that he would consider the point in the drafting and bring back a proposal. He has done precisely that. I will not take up time by going into detail on the previous debate.
  My noble friend Lady Carnegy asked in Committee—as reported at col. GC 63 of Hansard—whether the Government had consulted the Lord Advocate. Will the noble and learned Lord the Attorney-General take the opportunity to put the answer to that question on the record? I am speaking slowly to give the Government the opportunity to hear from the Box whether the question was asked and answered.
  I have no intention of pressing my amendment, which I shall move for technical reasons. I welcome the fact that the Government adopted our period of 14 days as the appropriate time limit. I observe the fact

  161
  that the Government's drafting is far superior to mine and properly meets the objective that I sought. I beg to move.
  Baroness Carnegy of Lour: My Lords, I find the English used in the Attorney-General's amendment, Amendment No. 22, rather peculiar. It states:
  "The judicial authority is to send the order to the Secretary of State or the Lord Advocate before the end of the period of 14 days beginning with its being made".
  The word "its" could refer to the judicial authority, the order or the period. Is that good drafting? The noble and learned Lord may wish to look at it. It is not very felicitous.
  Lord Goldsmith: My Lords, I shall speak to Amendment No. 21, which the noble Baroness moved, and Amendment No. 22, which is tabled in the name of my noble friend Lord Filkin. I said in Grand Committee that we would consider imposing a time limit for the transmission of freezing orders in the Bill, and that we agreed that they should be transmitted with a degree of urgency. I am grateful for what the noble Baroness, Lady Anelay, said about Amendment No. 22. The amendment addresses the issue and would impose a time limit of 14 days for the judicial authority to send the freezing order to the Secretary of State. The vast majority of freezing orders probably will be transmitted immediately. There is unlikely to be any reason for the court to hold on to the order once it has been made. But including a 14-day time limit sends a clear message that orders must be dealt with as a matter of urgency.
  I listened carefully to what the noble Baroness, Lady Carnegy, said about the drafting of the amendment. It is clear from the wording that the only thing capable of being "made" is the order—"its" cannot relate to the Secretary of State, the Lord Advocate or the judicial authority. I suggest that the matter is sufficiently plain.
  I was also asked whether the Lord Advocate or the Scottish Executive had been consulted. I indicated in Grand Committee that the matter would be taken up. I am told that the Scottish Executive have been consulted and are content.
  Baroness Anelay of St Johns: My Lords, I beg leave to withdraw Amendment No. 21.
  Amendment, by leave, withdrawn.
  Lord Goldsmith Lord Goldsmith moved Amendment No. 22:
  Page 7, line 35, at end insert—
  "( ) The judicial authority is to send the order to the Secretary of State or the Lord Advocate before the end of the period of 14 days beginning with its being made."
  On Question, amendment agreed to.
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 23:
  Page 8, line I, at end insert—
  "(6) The provisions of this section shall cease to have effect ten years after the day on which they are brought into effect by virtue of provision made under section 93."
  The noble Baroness said: My Lords, I tabled this amendment after listening to the points made in Committee by the noble Lord, Lord Clinton-Davis, and my noble friend Lord Carlisle of Bucklow, as reported at cols. GC 64 and 65 of Hansard. I agreed with the thrust of their argument.
  During the clause stand part debate, the noble Lord, Lord Clinton-Davis, asked the noble and learned Lord, Lord Goldsmith, whether the Government had in mind any procedure by which to ensure that within a reasonable period the whole system introduced by the clause would be reviewed. It is, after all, a novel procedure. The Explanatory Notes make the point that Clause 11 departs from the new procedure for general direct transmission in Clause 8. Under Clause II, the freezing orders will be sent to the relevant foreign state via the Secretary of State, or via the Lord Advocate in Scotland.
  The new procedure of direct transmission has not been adopted because the mutual recognition of freezing orders is completely new, and the format and conditions that apply will be unfamiliar to those issuing and receiving them. That is true now; but, as the noble Lord, Lord Clinton-Davis, pointed out, it will not be so for long. He said:
  "People will become more aware of their responsibilities".—[Official Report, 23/1/03; GC 65.]
  He is absolutely right.
  Does the Minister agree that it would be sensible to build into the Bill a method by which that position could be dropped after a reasonable period so that we could adopt the direct transmission that is a feature of other parts of the Bill? Surely that would ultimately prove more effective and efficient.
  There was some banter in Grand Committee between the noble Lord, Lord Clinton-Davis, and my noble friend Lord Carlisle on the length of time after which the position could be reviewed, and on what is reasonable or not. Being the gentle compromiser as ever, I proposed the limit of 10 years. It is a reasonable period after which we should be able to assess the effectiveness of the clause. I beg to move.
  Lord Renton: My Lords, I warmly support the amendment. We are entering a realm of uncertainty. This is an important mass of legislation, but Clause 11—sending freezing orders—is an experiment. When we legislate for an experiment, which could lead to great confusion and which could be dealt with by different countries in different ways, surely we need to assess it after a specific period. I think that 10 years is a very generous period. It might well have been five years, but my noble friend Lady Anelay has put forward 10 years, which is generous and reasonable.
  I hope that the Government realise the uncertainties that may arise under Clause 11 and will enable these provisions to be brought to an end after 10 years so that we can assess them and introduce fresh legislation. I have no doubt that in 10 years' time matters will have changed

  163
  and some amendments may be necessary. Therefore, it is a serious amendment which well deserves the Government's support.
  Baroness Carnegy of Lour: My Lords, am I right to think that if the provisions cease to have effect, freezing orders will be exchanged directly between those concerned and so fresh legislation would not be needed? As time goes on it may become natural to exchange freezing orders across borders and people will become used to it. It would be nice not to have to continue with this very elaborate arrangement indefinitely. I do not know whether the noble and learned Lord is interested in that idea. I rather hope that he is because it would be a pity to have to continue with such a complicated measure for ever, when it would very likely be unnecessary.
  Lord Goldsmith: My Lords, I have more than a little difficulty with the amendment. The specific point which arose was whether the method of transmission of freezing orders should be via the Secretary of State or directly. As I indicated, and as the noble Baroness, Lady Anelay, has repeated, the reason for taking this different procedure from the rather speedier process in other areas is its newness.
  In answer to the noble Lord, Lord Renton, I should make plain that it is only the method of transmission which is under consideration. There is no experiment regarding whether freezing orders should be made at all. If made, of course they will need to be transmitted. We are signing up to them, and they will be of benefit. Therefore, the only question is the issue of transmission.
  I am intrigued by the proposal of the noble Baroness, Lady Carnegy, that if we removed the section it would leave us free to exchange freezing orders directly. I fear that that would not be the result, but that they would be left in a legal limbo with no method for their transmission being provided at all.
  While the Government are prepared to review the effectiveness of new systems—indeed it is very much in their interest so to do—I do not think that a sunset clause of this nature, which automatically brings the measure to an end, is an appropriate way to achieve that. After all, when the review takes place, the result may indicate that the system is working well, it is not causing delay, it is the best system and we should stick with it. It would be odd in those circumstances to have to legislate to put back into the statute something which has been taken out automatically.
  The noble Baroness asked the direct question: would it be sensible to build into the Bill a provision taking the clause out of the Bill altogether? The Government believe that it would not be sensible, nor would it be a desirable precedent to set. I therefore urge the noble Baroness to withdraw the amendment.
  Baroness Anelay of St Johns: My Lords, before the noble and learned Lord sits down, perhaps he will answer a question which may prevent me from returning with the matter at Third Reading. I have no
  164
  intention of pressing the amendment today. When talking about the Government reviewing the matter, the Minister used the words "when the review takes place". At what stage is it intended that that first review should take place?
  Lord Goldsmith: My Lords, I cannot say. I was talking in general terms because, as with other new systems, the Government will want to keep the matter under review. They will do so at an appropriate time and having regard to experience. I cannot put down any date for that.
  Baroness Anelay of St Johns: My Lords, I am grateful for the contributions to the debate from my noble friends Lord Renton and Lady Carnegy. Having listened to them, I believe that although my amendment had a laudable objective it missed its mark. I accept the contribution by the noble and learned Lord, which showed that my aim was out. At this stage, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 13 [Requests for assistance from overseas authorities]:
  Lord Goodhart Lord Goodhart moved Amendment No. 24:
  Page 8, line 19, at end insert—
  "( ) The authority may, if it thinks fit, refuse a request for assistance except on condition that the evidence obtained in pursuance of the request shall not be used or disclosed (except in a public, judicial or administrative hearing related to the request) for any purposes other than for the criminal proceedings or criminal investigation in connection with which the request has been made."
  The noble Lord said: My Lords, Amendment No. 24 allows the United Kingdom authority to impose a restriction on the use of evidence provided to a foreign country in response to a request for assistance for purposes other than those for which the request was made. If the amendment is incorporated, it would reflect a restriction applied by Clause 9(2) to the use of information, which has been obtained by the UK court from abroad. Amendment No. 24 is the reverse situation: it is the imposition of a restriction on evidence which is supplied by the United Kingdom to a foreign court.
  The United Kingdom is not obliged to comply with the request. It can do so under the clause only if it is satisfied that there are reasonable grounds for suspecting that an offence has been committed, that proceedings have been commenced or that an investigation is being carried on.
  Once that test has been satisfied and the United Kingdom has decided that it would like to supply the information for that purpose, it has no control over the use to be made of evidence by the requesting state.
  The concern is that it might lead to a fishing expedition which would enable the evidence to be used for purposes beyond those for which it was sought and which would not in themselves have justified making a separate order.
  A similar amendment was tabled in Committee. In reply, the noble and learned Lord said:
  "The Government consider that the requirement imposed by that amendment would be unduly restrictive. We cannot legislate for overseas authorities. If we made such a requirement, we would have no way of enforcing it in the absence of a binding international agreement".
  He went on to say:
  "We do restrict the use of material obtained using Section 2 powers of the SFO. Those are particularly powerful powers".—[Official Report, 23/1/03; col. GC 83.]
  That reference is to Section 2 of the Criminal Justice Act 1987.
  It is, however, plainly possible to provide for a restricted use of material by treaty. For example, Article 7(2) of the UK/USA Mutual Legal Assistance Treaty provides:
  "The requesting party shall not use or disclose any information or evidence obtained under this Treaty for any purposes other than for the proceedings stated in the request without the prior consent of the requested party".
  It then states in Article 7(3) that consent is implied, unless it has been expressly refused, to the use of contents after they have been disclosed in a public hearing.
  The approach adopted in the treaty is right. The United Kingdom authorities should have power to withhold evidence if it is likely to be published to the world at large and should in appropriate cases be able to impose a condition—perhaps as a result of treaty—on how evidence is handled by the requesting state to which the United Kingdom supplies it. I beg to move.
  5.30 p.m.
  Lord Goldsmith: My Lords, in responding to the amendment, I shall go somewhat further then I did in Grand Committee. I hope therefore to be helpful to the noble Lord, Lord Goodhart.
  The general position in relation to mutual legal assistance—and the general position under the Bill and the 1990 Act—is, as I think I heard the noble Lord say, a matter for the discretion of the state that receives the request. I am told—something of which I was not aware when I responded previously, and which may be helpful—that on occasion, by relying on that general discretion, conditions are imposed in relation to particular requests where there is concern that a fishing expedition may be being conducted. There are examples where that has taken place.
  There is therefore a general ability to impose a condition in certain cases. We would not want as a matter of policy and practicality to establish a general power to do so in relation to incoming requests. Indeed, in certain cases that would be impossible. The noble Lord rightly referred to the bilateral treaty with the United States, which contains restrictions, but there are international obligations that, in a sense, go the other way. Article 23 of MLAC states that certain personal data communicated under the convention can be used for specific purposes that go beyond the proceedings to which the particular request applies. So there would be a problem with the provision contained in the amendment.
  166
  However, I hope that what I have said gives the noble Lord the reassurance that he seeks on the particular problem, and that he will therefore not feel it necessary to press the amendment.
  Lord Goodhart: My Lords, I am grateful to the noble and learned Lord for his reply. It is somewhat different from that which he gave in Grand Committee and—from the perspective of our amendment—more helpful. In the circumstances, while the Minister's reply does not go so far as does our amendment, it certainly goes some way towards it. I recognise that there are circumstances in which the amendment could not be used. I therefore beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 19 [Seized evidence]:
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 25:
  Page 11, line 29, after "sent" insert "within such time as the Secretary of State may by order prescribe"
  The noble Baroness said: I tabled the amendment in response to our debate in Grand Committee on Clause 16 at cols. GC 79 to 80.
  The Explanatory Notes explain that the clause deals with the treatment of any evidence seized under the procedures set out in Clauses 16 to 18. The evidence is to be sent directly to the overseas authority that made the request. That meets the requirements of Article 6 of MLAC, which is in itself a departure from the procedure established by the 1990 Act. We all hope that that will speed up the provision of evidence by cutting out central involvement once evidence has been obtained. But surely one useful element of central involvement would be the setting of a time limit by the Secretary of State to ensure good practice across the system nationally. My amendment would require that any evidence seized by a constable by virtue of the provisions in Clauses 16, 17 and 18 would have to be delivered to the court or authority that made the request for assistance within such time as the Secretary of State may by order prescribe.
  As ever, I am wary of giving the Secretary of State more powers, but in this context it seems reasonable to do so to ensure that the system works effectively and efficiently. In rebutting the need for my amendment, the noble and learned Lord, Lord Goldsmith, said that the 1990 Act did not contain a time limit and that, because he thought there had been no problems in practice, he did not want a time limit now. However, my noble friend Lord Renton pointed out that the Bill represents an extension of procedures. As he said,
  "The kind of proceedings that we must envisage are entirely new situations so far as concerns this country".
  He then said that he believed that it was worth including the expression:
  "within such times as the Secretary of State may by order prescribe".
  It will come as no surprise to the House that I agree with my noble friend. As he said:
  "I do not consider that we can simply live optimistically in relation to the matter. We must ensure against unnecessary delays".—[Official Report, 23/1/03; col. GC 80.]
  My noble friend then asked the noble and learned Lord to consider the matter further between Committee and Report. I have tabled the amendment so that I can ask the Minister whether he has done so, and, if so, with what result. Of course, I appreciate that the Government took the views of noble Lords on board with regard to another time limit and have tabled their own amendment. I hope that we may have success with this one, too, I beg to move.
  Lord Renton: My Lords, I support the amendment. I am grateful to my noble friend for tabling it. Under Clause 19, if evidence were seized by a constable but not used within a reasonable time, that could lead to injustice. Delays are always a nuisance, especially in the administration of criminal law. I suppose that whether the amendment is the best way to prevent that is a matter of argument, but I think that it is a good, effective way to do so. I hope that the Government will consider it carefully. Something must be done about the provision for seized evidence in Clause 11. The amendment provides a sensible way of handling the matter.
  Lord Goldsmith: My Lords, I have no doubt that something will be done with seized evidence. It is of no value to those who seize other than as something to be forwarded to those who requested it. But there is no obligation on the United Kingdom to return evidence within a specific time limit. As the noble Baroness reminded us, current legislation does not include time limits. It will certainly be a matter of good practice that evidence is generally returned as soon as possible. In practice, police tend to transmit such evidence almost immediately.
  However, we can think of cases where it would not be best practice to return evidence immediately, or where that may not happen for other reasons. For example, a request may involve multiple searches. It may be practical and sensible, in such cases, to wait for all of the searches to be conducted, gather the material together, consolidate it and send it on to the relevant authority, rather than sending pieces of information back at different times.
  Another situation that has occurred in practice arises with an application for judicial review or some other judicial intervention before the evidence is transmitted. In those circumstances, one either ends up with a period that, in order to allow for that possibility, is so long that it does not achieve the objective of speeding up the process or so short that it creates a problem by putting someone in breach of a statutory provision or a provision in an order when it makes good sense not to send the information back at that stage or it is not possible to do so because of judicial review.
  I am grateful to noble Lords who have spoken. I hope that they do not doubt the desirability of quick transmission of such material. However, it is not necessary to put it in the Bill.
  Lord Clinton-Davis: My Lords, it is open to the defence to be involved in the process as well, is it not? The defence may have some reason that I cannot think of at the moment not to embark on the course that the noble Lord, Lord Renton, is disposed to do. Is that right?
  Lord Goldsmith: My Lords, thinking on my feet, I am not sure exactly what my noble friend Lord Clinton-Davis has in mind. I agree that there may be circumstances—judicial review would be an example—in which the defence or the people who held the evidence could be involved in trying to affect the order that had been made. I agree with my noble friend that there could be circumstances in which the material could not be transmitted immediately because of something that had been done by or on behalf of the defendant or someone who is holding the material.
  Lord Renton: My Lords, I shall read Hansard carefully tomorrow to follow exactly what the noble and learned Lord said. I am trying to understand what he said, especially in his opening phrases. He gave me the impression that something must be done in order to ensure that we do not have indefinite delays in such matters. I hope that the noble and learned Lord will consider the matter further.
  Lord Goldsmith: My Lords, it is not a question of "Something must be done": something will be done. The police will send the material back. They have no need for it, and it is there only for the purpose of responding to the request. As a matter of fact at the moment, they send it back fairly quickly, and I have no doubt that, as a matter of good practice, they will. However, for the reasons that I gave, I will resist the suggestion that we should put a time limit or a power to set one into the Bill.
  Baroness Anelay of St Johns: My Lords, I am grateful to my noble friend Lord Renton for his support and for that intervention. I took a note of the noble and learned Lord's words when he said that something will be done. The question of what is to be done is at the heart of the questions that we have asked. The noble and learned Lord said that it would be a matter of good practice. What is good practice? Before he intervenes again, I can tell the noble and learned Lord that he has persuaded me that good practice may encompass such a range of time limits for different purposes that it might be unwieldy to have in the Bill a provision that there should be particular time limits.
  The Minister's answers, particularly his answer to the noble Lord, Lord Clinton-Davis, deserve closer attention than one can give them now. Between now and Third Reading I shall read what he has said. I am convinced that the approach that I took today is not, perhaps, the most appropriate. I was particularly interested in what he said about the impact of applications for judicial review and the delays that might occur as a result.

  169
  I will read Hansard carefully between now and Third Reading on 17th March. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  5.45 p.m.
  Clause 21 [Considering the order]:
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 26:
  Page 13, line 11, at end insert—
  "(5A) The first condition is that, if the person whose conduct is in question were charged in any part of the United Kingdom with an offence equivalent to the offence to which the overseas freezing order relates, he would be entitled to be discharged under any rule of law in that part of the United Kingdom relating to previous acquittal or conviction."
  The noble Baroness said: My Lords, in moving Amendment No. 26, I shall speak to Amendments Nos. 27 and 30, in my name, and Amendments Nos. 28 and 29, which are in the name of the noble Lord, Lord Elkin. I thank the Government for responding to the amendments that I tabled in Committee with the amendments tabled today. They cover the issue of the rules on double jeopardy that should apply.
  In Grand Committee, the noble and learned Lord, Lord Goldsmith, said:
  "it should be possible to refuse cases in which prosecution would violate our own rules on double jeopardy and we will further consider bringing forward our own amendment to provide for refusal in cases in which prosecution would violate United Kingdom rules of double jeopardy".—[Official Report, 23/01/03; col. GC 88.]
  The noble and learned Lord objected to my drafting. Today, again, I must accept that the Government's drafting is better than mine and achieves the objective that I sought to achieve.
  To some extent, I am rubber-stamping the Government's amendments today, but I look forward to hearing the noble and learned Lord give a full explanation of how and why they arrived at their particular drafting solution. I beg to move.
  Lord Goldsmith: My Lords, in Grand Committee, I undertook to consider the double jeopardy point in more detail. I am grateful to the noble Baroness for what she said.
  The clause, as amended, would give a judge in the United Kingdom the ability to consider the double jeopardy rule under United Kingdom law, with which he would be familiar, or under the law of the requesting country. That represents a correct interpretation of Article 7(1)(c) of the framework decision as meaning that an order is not to be given effect, if it would infringe the ne bis in idem principle in the requesting or requested state.
  I hope that that answers the noble Baroness's invitation to explain the amendment for the benefit of the House. I will formally move the amendments in due course.
  Baroness Anelay of St Johns: My Lords, I formally thank the noble and learned Lord for that explanation. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 27 not moved.]
  Lord Goldsmith Lord Goldsmith moved Amendment No. 28:
  Page 13, line 14, after "relates" insert "or in the United Kingdom with a corresponding offence"
  On Question, amendment agreed to.
  Lord Goldsmith Lord Goldsmith moved Amendment No. 29:
  Page 13, line 15, leave out "in that country"
  On Question, amendment agreed to.
  [Amendment No. 30 not moved.]
  Clause 22 [Giving effect to the order]:
  Lord Goodhart Lord Goodhart moved Amendment No. 31:
  Page 13, line 28, at end insert—
  "( ) A production order may only be made by the Crown Court.
  ( ) A production order may only be made if the court is satisfied that one or other of the sets of access conditions set out in Schedule 1 to the Police and Criminal Evidence Act 1984 (c. 60) is fulfilled."
  The noble Lord said: My Lords, the amendment raises a new issue that was not dealt with in Grand Committee. I put it down for today because the matter was drawn to my attention after we had passed this point in Grand Committee by a practitioner who was concerned with it.
  The amendment is of some importance, at any rate. It takes us back to the Police and Criminal Evidence Act 1984, better known as "PACE". Under PACE, there are certain types of material to which a police officer can obtain access only by special order. Such material is described in PACE as "excluded material" or "special procedure material". Those two categories include certain business records and journalistic material. In particular, "excluded material" includes confidential journalistic documents, so that any material that might identify a journalist's source would be excluded and, under PACE, could be obtained only by use of the special procedure.
  The special procedure was that material in those two categories could be made available only on the order of a circuit judge and only if one or other of two sets of access conditions set out in Schedule 1 to the Act is satisfied. What happens under the Bill if an overseas freezing order involves access to excluded material or special procedure material? That is dealt with under Clause 22 which states:
  "in relation to England and Wales and Northern Ireland, so far as the overseas freezing order relates to excluded material or special procedure material the court is to give effect to the order by making a production order".
  The rest of Clause 22 provides for the way in which a production order operates. I do not think that I need refer to that.
  On the face of it, Clause 22 does not repeat the safeguards in PACE. A production order can be made by the nominated court, which does not have to be a Crown Court. Therefore, the order does not have to be made by a circuit judge or another judge having

  171
  authority to sit in the Crown Court. Furthermore, there is no reference here to the access conditions. The question arising is: do the PACE access conditions and the condition as to the judge apply to access to material under a production order?
  If it is intended that the PACE requirements apply, the Bill is extremely obscure. It should be far clearer than at present. As I read it, the requirements do not apply. If the PACE requirements are not intended to apply, access to the excluded or special procedure material—for example, documents which would disclose a journalistic source—could be provided under the production order in circumstances under which they could not be made available to an applicant in the United Kingdom. There would be no justification for that occurring. This is an important issue. I beg to move.
  Baroness Carnegy of Lour: My Lords, the noble Lord made an interesting point which, as a non-lawyer, I follow with difficulty. Clause 22(2) and (3) do not mention Scotland. In Scots law, is there such a measure as a production order and does excluded material or special procedure material exist in Scotland? I cannot spot any reference elsewhere. It might be that there is a valid question to ask here. I hope that I am not wasting the time of the House in so doing.
  Baroness Anelay of St Johns: My Lords, as the noble Lord, Lord Goodhart, said, this is an important matter. I am pleased that he has raised it. The Law Society was kind enough to brief me just before Committee, but unfortunately too late for amendments to be laid, because the Bill had already passed that stage.
  As the noble Lord, Lord Goodhart, said, on the face of it, Clause 22 does not repeat the safeguards of PACE. We accept his arguments that there must be clarity in those matters. I am interested in the question posed by my noble friend Lady Carnegy. I hope that the noble and learned Lord, Lord Goldsmith, is able to answer that today. If not, perhaps he could answer at a later stage.
  The amendment is important, despite the fact that the noble Lord, Lord Goodhart, was unkind enough not to find it in himself to support me on a previous occasion when I pressed an amendment. However, if he were minded to press this, he would find me in the Lobby supporting him.
  Lord Goldsmith: My Lords, in answer to the question posed, I indicate straightaway that I cannot give the information about Scotland. I believe that I know the answer but I prefer not to give an answer which is inaccurate. Therefore, I shall ensure that that information is provided to all noble Lords who have taken part in this debate.
  The noble Lord, Lord Goodhart, raised two points. As the matter was not dealt with in Grand Committee, it might help to say a little more about the warrants and orders that will be issued to give effect to overseas freezing orders. Overseas freezing orders will not be
  172
  uniform documents. But they will contain specified information and be accompanied by a properly completed certificate. They will vary in form from one member state to another. Those issued from this country will resemble search warrants, but that will not necessarily be the case in other countries. Each member state will execute freezing orders, having regard to its own domestic procedures.
  As regards who makes the production order, the noble Lord indicated that that ought to be by a judge of the Crown Court. That is a reasonable point. The Government, too, think that in those circumstances a production order should be made by the Crown Court. I want to give further consideration to whether that is something which should appear on the face of the Bill. I hope that is of assistance to him.
  The second question posed by the noble Lord, Lord Goodhart, is whether precisely the same conditions will apply to the making of a production order in relation to an overseas freezing order as apply domestically to a PACE request. He asked: if that was not the intention, was not the Bill obscure? That is not the intention. The clauses relate to giving effect to overseas freezing orders and therefore will not be made in the same circumstances that apply in domestic cases. For example, the offence does not have to be a serious arrestable offence. Therefore, the definition of offences which would give rise to these orders is different from those which would apply under PACE. It was not intended that precisely the same circumstances should apply. Thus, it was not the intention that they should be made only if the conditions in Schedule 1 to PACE were met. They would be required in a wider range of circumstances.
  I think that the noble Lord would agree with me that, when one is concerned with an order which relates to excluded material or special procedure material—and for both he has given helpful explanations—it is to be dealt with by way of a production order rather than by a more immediate effect. The noble Lord did not indicate in his remarks—but it is a matter I shall be happy to consider if he so wishes—precisely what aspect of the schedule conditions, having regard to the circumstances in which overseas freezing orders would be made, he is concerned to see applied. He spoke generally about the conditions in PACE, having regard to the conditions under which we would give effect to the overseas freezing orders, but he did not indicate which aspect of the conditions that troubled him might not apply. I am happy to consider that but at the moment I do not know what it is that he has in mind. I do not know whether the noble Lord is able to assist on that matter.
  6 p.m.
  Lord Goodhart: My Lords, I would prefer to take it as an issue of principle. At this point I do not want to indicate any particular aspects.
  Lord Goldsmith: My Lords, of course that is the noble Lord's prerogative, but, with respect, to take something as a matter of principle when he is not prepared to indicate what is the issue of principle—that is, what aspects of the safeguards he is concerned

  173
  do not apply, having regard to the overall framework of the Act—seems to me not to be a satisfactory situation.
  If the noble Lord will not tell me what aspects he is concerned are not in place, I cannot take the matter any further and cannot accept the amendment.
  Lord Goodhart: My Lords, what I am concerned with is the second set of conditions relating to matters which include excluded material. I refer in particular to the question of journalistic material. While I was not involved at the time, I know that there were extremely long arguments during debates on PACE as regards the question of using these powers to obtain access to confidential sources. It is clear that there must be a strong case to justify the disclosure of excluded material.
  I tabled the amendment to enable the issue of principle to be debated. We believe that restrictions must be placed on the disclosure of special procedure and excluded material which correspond, so far as they serve a useful purpose, to those in PACE. Frankly, I do not think that this is the occasion on which to discuss them as matters of detail.
  What is the noble and learned Lord prepared to offer in the way of looking at the matter? Is he prepared to accept the idea that there may be restrictions?
  Lord Goldsmith: My Lords, I am grateful to the noble Lord for giving me the opportunity to deal with that. While I cannot give any kind of commitment because I do not know what it is that requires a commitment, I am prepared to look at which aspects of the "safeguards" which, having regard to the totality of the safeguards provided under the Bill, the noble Lord thinks do not apply but which ought to apply in relation to the execution of overseas freezing orders.
  However, the noble Lord will forgive me for saying that this does not appear to be a matter of detail. Without knowing what his objection of principle is, I cannot say what my attitude to it would be. I am prepared to look at it without commitment, but I cannot give a commitment because I do not know what the detail is.
  Lord Goodhart: My Lords, I would put it the other way round. The Bill excludes the protection given by PACE to the special procedure material and excluded material. It is a judge who has to decide whether the requirements are satisfied. That appears to me to be the starting point from which we should proceed.
  I ask the House to accept as a principle that there should be restrictions which are equivalent to those in PACE. If the Government respond by saying that some of the PACE requirements are not necessary or appropriate, we can look at them again. At the moment, however, I think that the noble and learned Lord is putting it the wrong way round. He is saying, "Tell us what you do not like about it and we shall see what we can do". The answer is that we do not like the
  174
  principle. We believe that the point of principle here is that the PACE protection should apply. The Government could then come back to us and say, "There are some ways in which the full PACE principle should be modified".
  I think that it is important to establish the principle and therefore I wish to take the opinion of the House.
  6.6 p.m.
  On Question, Whether the said amendment (No. 31) shall be agreed to?
  Their Lordships divided: Contents, 73; Not-Contents, 112.

  Division No. 2

  CONTENTS

  Addington, L.

  Ludford, B.

  Allenby of Megiddo, V.

  Mackie of Benshie, L.

  Anelay of St Johns, B.

  McNally, L.

  Avebury, L.

  Maddock, B.

  Barker, B.

  Mancroft, L.

  Biflen, L.

  Mar and Kellie, E.[Teller]

  Blatch, B.

  Methuen, L.

  Bridgeinan, V.

  Miller of Chilthorne Domer, B.

  Brooke of Sutton Mandeville, L.

  Montrose, D.

  Burnham,L.

  Newby, L.

  Carnegy of Lour, B.

  Nicholson of Winterbourne, B.

  Chan, L.

  Norton of Louth, L.

  Clement-Jones, L.

  Oakeshott of Seagrove Bay, L.

  Colwyn, L.

  O'Catnain, B.

  Cope of Berkeley, L.

  Park of Monmouth, B.

  Cox, B

  Phillips of Sudbury, L.

  Craigavon, V.

  Rennard, L.

  Crathorne, L

  Renton, L.

  Dahrendorf, L.

  Rodgers of Quarry Bank, L.

  Denham, L.

  Roper, L.

  Dholakia, L.

  Russell, E.

  Dundee, E.

  Seccombe, B.

  Freeman, L.

  Selborne, E.

  Gardner of Parkes, B.

  Shutt of Greetland, L.

  Goodhart, L.

  Smith of Clifton, L.

  Gray of Contin, L.

  Stodart of Leaston, L.

  Gray of Contin, L.

  Stoddart of Swindon, L.

  Greaves, L.[Teller]

  Thomas of Walliswood, B.

  Hanham, B.

  Tordoff, L.

  Higgins, L.

  Vinson, L.

  Hooson, L.

  Waddington, L.

  Howe, E.

  Wade of Chorlton, L.

  Jenkin of Roding, L.

  Wallace of Saltaire, L.

  Kimball, L.

  Walmsley, B.

  Knight of Collingtree, B.

  Wilcox, B.

  Laird, L.

  Williams of Crosby, B.

  Lang of Monkton, L.

  Windlesham, L.

  NOT-CONTENTS

  Acton, L.

  Blease, L.

  Ahmed, L.

  Borrie, L.

  Alli, L.

  Brooke of Alverthorpe, L.

  Ampthill, L.

  Brookman, L.

  Andrews, B.

  Brooks of Tremorfa, L.

  Archer of Sandwell, L.

  Burlison, L.

  Ashton of Upholland, B.

  Campbell-Savours, L.

  Barnett, L.

  Carter, L.

  Bassam of Brighton, L.

  Christopher, L.

  Berkeley, L.

  Clarke of Hampstead, L.

  Bernstein of Craigweil, L.

  Clinton-Davis, L.

  Bhatia, L.

  Corbett of Castk Vale, L.

  Billingham, B.

  Craig of Radley, L.

  Blackstone, B.

  Crawley, B.

  175

  David, B.

  McIntosh of Haringey, L. [Teller]

  Davies of Coity, L.

  Davies of Oldham, L.

  MacKenzie of Culkein, L.

  Dixon, L.

  Mason of Barnsley, L.

  Dubs, L.

  Massey of Darwen, B.

  Eatwell, L.

  Merlyn-Rees, L.

  Elder, L.

  Milner of Leeds, L.

  Evans of Parkside, L.

  Mitchell, L.

  Evans of Temple Guiting, L.

  Morris of Aberavon, L.

  Farrington of Ribbleton, B.

  Nicol, B.

  Faulkner of Worcester, L.

  Orme, L.

  Filkin, L.

  Patel of Blackburn, L.

  Fyfe of Fairfield, L.

  Paul, L.

  Gale, B.

  Pendry, L.

  Gilbert, L.

  Peston, L.

  Golding, B.

  Pitkeathley, B.

  Goldsmith, L.

  Plant of Highfield, L.

  Gordon of Strathblane, L.

  Prys-Davies, L.

  Goudie, B.

  Radice, L.

  Gould of Potternewton, B.

  Ramsay of Cartvale, B.

  Graham of Edmonton, L.

  Randall of St. Budeaux, L.

  Grocott, L. [Teller]

  Rea, L.

  Hardy of Wath, L.

  Rendell of Babergh, B.

  Harris of Haringey, L.

  Renwick of Clifton, L.

  Harrison, L.

  Richard, L.

  Haskel,L.

  Rooker, L.

  Hayman, B.

  Simon, V.

  Hogg of Cumbernauld, L.

  Slim, V.

  Hollis of Heigham, B.

  Smith of Leigh, L.

  Howie of Troon, L.

  Stone of Blackheath, L.

  Hoyle, L.

  Symons of Vernham Dean, B.

  Hughes of Woodside, L.

  Taylor of Blackburn, L.

  Hunt of Kings Heath, L.

  Temple-Morris, L.

  Jones, L.

  Thornton, B.

  Judd, L.

  Turnberg, L.

  Kilclooney, L.

  Varley, L.

  King of West Bromwich, L.

  Walker of Doncaster, L.

  Kirkhill, L.

  Whitaker, B.

  Layard, L.

  Whitty, L.

  Lea of Crondall, L.

  Williams of Elvel, L.

  Lockwood, B.

  Williams of Mostyn, L. (Lord Privy Seal)

  Lofthouse of Pontefract, L.

  Macdonald of Tradeston, L.

  Woolmer of Leeds, L.

  Resolved in the negative, and amendment disagreed to accordingly.
  6.15 p.m.
  Clause 28 [Interpretation of Chapter 2]:
  Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 32:
  Page 16, line 9, leave out from "(c. 60)" to "or" in line 10 and insert "Chapter 3 of Part 8 of the Proceeds of Crime Act 2002 (c. 29)"
  The noble Lord said: My Lords, the amendments in this group are all technical amendments. Amendment No. 32 relates to the repeal of Sections 31 and 32 of the Criminal Law (Consolidation) (Scotland) Act 1995. Subsection (1) of Clause 28 (Interpretation of Chapter 2) includes a definition of "premises" which for Scotland picks up on the definition in Sections 31 and 32 of the Criminal Law (Consolidation) (Scotland) Act 1995. However, Sections 31 and 32 in Part V of that Act were repealed on 24th February 2003 by the relevant commencement of Schedule 12 to the Proceeds of Crime Act 2002.
  The same definition of "premises", with a slightly different layout, is to be found at Section 412 in Chapter 3 of Part 8 of the 2002 Act. Therefore reference to this definition should more appropriately now be made to the 2002 Act.
  Amendment No. 33 allows the provisions of Clause 29, which concerns the types of proceedings in which evidence may be given by TV link, to be extended to Northern Ireland. This is necessary because we would want any change made in respect of England and Wales to apply also to Northern Ireland. Scotland is catered for separately under Clause 29(2).
  Amendment No. 66 relates to paragraph 36 of Schedule 5 on page 74. It is a consequential amendment so that the new subsection (3A) inserted into Section 5 of the 1990 Act has effect in relation to warrants issued under Clause 47. The amendment in Schedule 5 is to allow service personnel sentenced to detention by courts martial to be transferred overseas. If the amendment is not made, provisions of the Army and Air Force Acts 1955 and of the Naval Discipline Act 1957 could prevent the removal from the United Kingdom of persons serving sentences of detention imposed by courts martial.
  Service personnel who are sentenced to a term of imprisonment, as opposed to detention, by a court martial are automatically dismissed from the services. These periods of imprisonment are served in civilian prisons and not in military institutions, so the relevant provisions of the Bill relating to civilians would apply.
  Amendment No. 68 is a correction. Article 49(a) of Schengen is repealed under Article 2(2) of M LAC and the appropriate reference should therefore be to Article 3(1) of MLAC, which replaces the Schengen provision. I hope that these wholly uncontroversial amendments meet with the agreement of your Lordships' House. I beg to move.
  On Question, amendment agreed to.
  Clause 29 [Hearing witnesses abroad through television links]:
  Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 33:
  Page 17, line 5, after "(c. 33)" insert "or Article 81(1A) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12))"
  On Question, amendment agreed to.
  Clause 30 [Hearing witnesses in the UK through television links]:
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 34:
  Page 17, line 21, at end insert—
  "( ) A request under subsection (1) must specify—

  (a) the reason why it is not desirable or possible for the witness or expert to attend in person; and

  (b) the name of the judicial authority and the names of the persons who will be conducting the hearing."

  The noble Baroness said: My Lords, this amendment raises issues of giving evidence by television link. Clause 30 is significant in that it introduces arrangements whereby courts can take video evidence of witnesses for transmission abroad, the first time that this will have been permitted. In breaking new ground, we must ensure that witnesses are fairly treated and that overseas countries do not abuse this opportunity to take evidence by video link.
  I tabled a similar amendment in Committee to insert a new subsection adding extra protections for the witness. I stipulated that requests from the overseas authority should specify the reason why it was not desirable or possible for the witness or expert to attend in person, and that it should give the name of the judicial authority and the names of the persons who would be conducting the hearing. I added another protection in Committee—that the request should also state that the witness was willing to give evidence by television link. I dropped that extra protection from the amendment I now propose, having listened to the Minister's explanation in Grand Committee and accepting that imposing such a condition would run counter to the provisions of the mutual legal assistance convention to which the United Kingdom is party.
  However, I am not yet persuaded that the Government are right to reject my request that the first two protections should be on the face of the Bill. I have not dreamt these up—I have no authorship. They are the requirements of Article 10 of the convention. The noble Lord, Lord Bassam, acknowledged that in Committee. Very helpfully for my case, he went further, saying that,
  "we considered including the first two requirements on the face of the Bill",
  but added:
  "We concluded, however, that it would make the clause unnecessarily restrictive".
  It seems odd to me that putting the rules as agreed in the convention into the Bill could somehow make the Bill wrong and unnecessarily restrictive.
  The Minister went on to argue that things might change, that the Government might sign up to new agreements. He then conceded that the two principles in this amendment would have to stay anyway. He said that,
  "in practical terms, we would expect these conditions to be met in order to be able to make the necessary administrative arrangements to set up the hearing".—[Official Report, 23/01/03; col. GC107.]
  I found that very helpful; it reinforced my view that it was important that these two protections should be on the face of the Bill. If we need to keep to these principles, putting them on the face of the Bill adds clarity so that those who are called upon to give evidence know what protections they have. These protections would be for their benefit and for the benefit of those who might he required to advise them, too. I beg to move.
  Lord Clinton-Davis: My Lords, with great respect, I think the amendment is misconceived, for the best possible motives. First, it mirrors Clause 29, which relates to overseas courts. I think it is an obligation that we have to fulfil in that regard. Secondly, can the Minister instance a provision where a witness who gives evidence in this way would not enjoy exactly the same rights and privileges as anybody else? It is important for the witness to be protected, and he or she will continue to be protected by the court in the criminal proceedings which are envisaged. I do not
  178
  think that the provision is in any way wrong in law. The witness who provides evidence thereby will enjoy exactly the same privileges as apply in a normal court.
  It is incumbent upon the court to ensure that we make the best use of the technologies currently in use. The Minister will correct me if I am wrong, but I think the inconvenience and the disruption caused by travelling vast distances to attend court will be obviated.
  All in all, I think that the provision is correct. I do not believe anything would be advanced by the amendment, so ably moved by the noble Baroness.
  Lord Renton: My Lords, with great respect, the noble Lord, Lord Clinton-Davis, has overlooked the important reasons for the amendment. After all, Clause 30 breaks new ground in an important way. It provides for the hearing of witnesses on television, a most unusual situation. If I understand the matter properly, the Schengen rules require reasons why witnesses cannot attend to be put on the face of the Bill. That is what the amendment would do. It is very simple:
  "A request under subsection (1)—
  the provisos dealing with television links—
  must specify

  (a) the reason why it is not desirable or possible for the witness or expert to attend in person; and

  (b) the name of the judicial authority and the names of the persons who will he conducting the hearing".

  Paragraph (a) is even more important than paragraph (b). My noble friend Lady Anelay was right to table the amendment. I hope that she will receive good support from the Government.
  Lord Goodhart: My Lords, I support the amendment. The principal government argument against it was that if these requirements were included in the Bill, future agreements containing provisions on television evidence might not be expressed in precisely the same terms as in the convention. They do not want the Bill to be drafted so narrowly as to exclude the granting of assistance under other agreements. It seems likely that if an agreement of substance is entered into, it will require, as the MLAC has done, new primary legislation in this country. It would be perfectly possibly simply to amend these provisions if they were put on the face of the Bill.
  Baroness Carnegy of Lour: My Lords, I was going to ask the same question. I hope the Minister will give a very clear reply to the noble Lord, Lord Goodhart, because I did not understand what he said in Grand Committee on this subject.
  Lord Bassam of Brighton: My Lords, I am grateful to everyone who has taken part in this debate. I am grateful to the noble Baroness, Lady Anelay of St Johns, for honing the scope of her amendment. It has usefully focused our attention on what she sees as the key issues.

  179
  Our position has not changed since Committee. We do not think it would be helpful to include these requirements on the face of the Bill. We are content that the current drafting gives the Secretary of State sufficient ability to refuse to nominate a court for the hearing if the conditions of Article 10 of the MLAC are not met. His decision will be made with the MLAC requirements very much in mind.
  Requests from non-EU countries, for practical reasons, will always have to include details of the authority conducting the hearing, and the reasons for requesting a video hearing. However, future agreements that cover these types of hearing might not have explicit requirements—a point that has been aired before, and that I made in Committee.
  These are not the only matters that must be specified in a request for a hearing by video link. It is worth recalling that MLAC states that requests must contain this information, in addition to the information referred to in Article 14 of the European mutual assistance conventions. Those requirements are not listed here, but it is worth saying that MLAC states other conditions. Requests must make clear which authority is making the request, as well as stating the object or the reason for the request—and, where possible, the identity and nationality of the person concerned.
  I think that meets at least some of the points that the noble Baroness was seeking in the amendment. The provision on possible future agreements is not restricted to participating countries. There is no agreement yet with Australia, but if we thought it was appropriate to assist them, we would seek to act within this framework.
  We do not anticipate that we will need future primary legislation in order to give practical assistance. We think this Bill will allow that. It is for that sort of reason that we will continue with a less restrictive provision, as set out in the Bill. If we agreed to this amendment, that flexibility would be lost, and we would not have the scope to develop this in the future.
  I understand why the noble Baroness wants to pin us down, but we do not believe she is right. We think we need additional flexibility, and to ensure that we have something which is workable. We think this amendment will make it less workable, and more restrictive. I hope the noble Baroness will feel able to withdraw her amendment, given the additional information that I have provided.
  Baroness Anelay of St Johns: My Lords, I am grateful to the Minister for his response. I thank my noble friends Lord Renton and Lady Carnegy for their support, and the noble Lord, Lord Goodhart, in this matter. All my noble friends agree entirely with the noble Lord, Lord Clinton-Davis, about the importance of television links. It is right that this new venture is being tried. Anything that can be used
  180
  properly to speed up judicial processes must be welcomed, as long as they are fair in their treatment of witnesses. Our thrust throughout this and previous amendments has been to ensure that witnesses are treated fairly, and that they know what they will face.
  I part company from the noble Lord, Lord Clinton-Davis, when he said he could not support my amendment. He was talking rightly about protection for witnesses in the court room. Those protections apply before one even gets into the court room. They explain to the witness what is about to happen to them so that they feel well armed before they give evidence. This could include a witness who is being given advice by a legal adviser. We are into new territory that does need clarity. The Minister came back to an argument that was used in Committee that there may be future agreements, and that one needed the flexibility to take account of them.
  None the less I agree with the noble Lord, Lord Goodhart, that if there were future agreements which meant that an amendment to the law had to take place, then by all means amend the Bill. After all, the 1990 Act was not without amendment. One of my first duties as a Front Bench Opposition spokesman was to speak in the twilight hours of the day when the Government had their hands on one of their own Back Benchers to bring an amendment to the 1990 Act. So I have been there, seen that and done that. I have been around and can see that it can be done. The Government can find time when it is appropriate. That may well be the case, but if so, Parliament should have scrutiny of an agreement that the Government had made. That is a plus sign against my amendment, not a minus sign.
  I do think that there are occasions when good practice and clarity need to be on the face of the Bill. This is such an occasion, and I wish to test the opinion of the House.
  6.36 p.m.
  On Question, Whether the said amendment (No. 34) shall be agreed to?
  Their Lordships divided: Contents, 83; Not-Contents, 100.

  Division No. 3

  CONTENTS

  Addington, L.

  Cope of Berkeley, L. [Teller]

  Allenby of Megiddo, V.

  Cox, B.

  Anelay of St Johns, B.

  Arran, E.

  Craig of Radley, L.

  Astor of Hever, L.

  Dahrendorf, L.

  Avebury, L.

  Dean of Harptree, L.

  Barker, B.

  Denham, L.

  Blatch, B.

  Dholakia, L.

  Bridgeman, V.

  Brooke of Sutton Mandeville, L.

  Dixon-Smith, L.

  Brougham and Vaux, L.

  Dundee, E.

  Burnham, L.

  Elton, L.

  Campbell of Alloway, L.

  Fearn, L.

  Carney of Lour, B.

  Freeman, L.

  Chan, L.

  Colwyn, L.

  Geddes, L.

  181

  Goodhart, L.

  Rawlings, B.

  Goschen, V.

  Razzall, L.

  Greaves, L.

  Rennard, L.

  Hanham, B.

  Renton, L.

  Higgins, L.

  Roberts of Conwy, L.

  Hogg, B.

  Roper, L.

  Howe, E.

  Russell, E.

  Howe of Aberavon, L.

  Saltoun of Abernethy, Ly.

  Howe of Idlicote, B.

  Seccombe, B. [Teller]

  Hunt of Wirral, L.

  Selborne, E.

  Kimball, L.

  Shutt of Greetland, L.

  Knight of Collingtree, B.

  Slynn of Hadley, L.

  Ludford, B.

  Smith of Clifton, L.

  Lyell, L.

  Stodart of Leaston, L.

  Mackie of Benshie, L.

  Stoddart of Swindon, L.

  Maddock, B.

  Thomas of Gresford, L.

  Mancroft, L.

  Thomas of Swynnerton, L

  Mar and Kellie, E.

  Thomas of Walliswood, B.

  Marlesford, L.

  Tordoff, L.

  Mayhew of Twysden, L.

  Vinson, L.

  Miller of Chilthorne Domer, B.

  Waddington, L.

  Montrose, D.

  Wakeham, L.

  Newby, L.

  Wallace of Saltaire, L.

  Newton of Brain tree, L.

  Walmsley, B.

  Northesk, E.

  Williams of Crosby, B.

  Norton of Louth, L.

  Windlesham, L.

  Oakeshott of Seagrove Bay, L.

  Worcester, Bp.

  NOT-CONTENTS

  Acton, L.

  Harris of Haringey, L.

  Ahmed, L.

  Harrison, L.

  Alli, L.

  Haskel, L.

  Ampthill, L.

  Hayman, B.

  Andrews, B.

  Hogg of Cumbernauld, L.

  Archer of Sandwell, L.

  Hollis of Heigham, B.

  Ashton of Upholland, B.

  Howie of Troon, L.

  Bassam of Brighton, L.

  Hoyle, L.

  Berkeley, L.

  Hughes of Woodside, L.

  Bernstein of Craigweil, L.

  Judd, L.

  Blease, L.

  King of West Bromwich, L.

  Borrie, L.

  Kirkhill, L.

  Brennan, L.

  Layard, L.

  Brooke of Alverthorpe, L.

  Lea of Crondall, L.

  Brookman, L.

  Lockwood, B.

  Brooks of Tremorfa, L.

  Lofthouse of Pontefract, L.

  Burlison, L.

  Macdonald of Tradeston, L.

  Campbell-Savours, L.

  McIntosh of Haringey, L. [Teller]

  Carter, L.

  Christopher, L.

  MacKenzie of Culkein, L.

  Clarke of Hampstead, L.

  Mason of Barnsley, L.

  Clinton-Davis, L.

  Massey of Darwen, B.

  Corbett of Castle Vale, L.

  Merlyn-Rees, L.

  Crawley, B.

  Milner of Leeds, L.

  David, B.

  Mitchell, L.

  Davies of Coity, L.

  Morris of Aberavon, L.

  Davies of Oldham, L.

  Nicol, B.

  Dixon, L.

  Orme, L.

  Dubs, L.

  Patel of Blackburn, L.

  Elder, L.

  Pendry, L.

  Evans of Parkside, L.

  Pitkeathley, B.

  Evans of Temple Guiting, L.

  Plant of Highfield, L.

  Farrington of Ribbleton, B.

  Prys-Davies, L.

  Faulkner of Worcester, L.

  Radice, L.

  Filkin, L.

  Ramsay of Cartvale, B.

  Fyfe of Fairfield, L.

  Randall of St. Budeaux, L.

  Gale, B.

  Rea, L.

  Gilbert, L.

  Rendell of Babergh, B.

  Golding, B.

  Renwick of Clifton, L.

  Goldsmith, L.

  Rooker, L.

  Gordon of Strathblane, L.

  Simon, V.

  Goudie, B.

  Slim, V.

  Gould of Potternewton, B.

  Smith of Leigh, L.

  Graham of Edmonton, L.

  Stone of Blackheath, L.

  Grocott, L. [Teller]

  Symons of Vernham Dean, B.

  Hardy of Wath, L.

  Taylor of Blackburn, L.

  182

  Temple-Morris, L.

  Whitaker, B.

  Thornton, B.

  Whitty, L.

  Turnberg, L.

  Williams of Mostyn, L. (Lord Privy Seat)

  Varley, L.

  Walker of Doncaster, L.

  Woolmer of Leeds, L.

  Resolved in the negative, and amendment disagreed to accordingly.
  6.46 p.m.
  [Amendments Nos. 35 and 36 not moved.]
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 37:
  Page 17, line 42, at end insert—
  "( ) Nothing in this section shall apply unless it is confirmed that the witness has received independent legal advice."
  The noble Baroness said: My Lords, in moving the amendment, I also speak to Amendments Nos. 40 and 41. After our little local excitement, I should make it clear that Amendment No. 37 is a purely probing amendment to clear up uncertainties from Committee.
  In Committee, I made it clear that I would use Report stage to examine the protection that might be necessary for witnesses giving evidence by television links. Part 1 of Schedule 2 sets out the rules by which television links will work, but Clause 30(6) gives life to that schedule. My amendment goes to the heart of the Bill by amending the clause to state that nothing covered by it can happen unless there is confirmation that the witness has received independent legal advice. Have the Government given consideration to that proposal since Grand Committee? If so, will they accept it, or what are their reasons for rejecting it?
  I tabled a similar amendment in Committee that referred to Clause 31 and telephone links, but we have not debated the proposals in relation to Clause 30.
  In Committee, I tabled an amendment to Part 1 of Schedule 2 to increase the protection given to witnesses by changing "may" to "shall"—a change that I occasionally adopt. I have not tabled another such amendment because the point is covered amply by government Amendment No. 40 published last Thursday. I thank them for tabling that amendment as it meant that I did not have to bring back my own amendment.
  Paragraph 5 states:
  "The nominated court may intervene where it considers it necessary to do so to safeguard the rights of the witness".
  In Committee, I asked the Government how far they believed the court should have a role in safeguarding those rights. My amendment removed the court's discretion to act in such circumstances and required it to intervene if it considered it necessary to do so. That was achieved by changing "may" to "shall". At that stage, the noble Lord, Lord Bassam, cruelly rejected my proposal on the basis that the Government considered it unnecessary, as they had confidence that the courts would use the discretion bestowed on them by the word "may". However, government Amendment No. 40 changes "may" to "is to".
  I look forward to hearing from the Minister why the Government changed their minds about the drafting of the paragraph. Why do they now accept that an amendment is necessary? Will the Minister explain the difference between "may", "is to" and "shall"? I give notice that, as a result of this debate, the Government may, or shall, see a lot more of the words "is to" in future.
  Finally, I look forward to the explanation of the noble Lord, Lord Goodhart, for his amendment, which appears to have much merit. Will he explain in what circumstances he believes that written advice would be appropriate? I beg to move.
  Lord Goodhart: My Lords, I speak to Amendment No. 41, which is in my name and that of my noble friend Lord Dholakia. It is the return of an amendment debated in Grand Committee. It is an amendment to Schedule 2, which deals with the giving of evidence on a television link. The schedule provides, among other things, that,
  "The witness is to give evidence in the presence of the nominated court … The nominated court is to establish the identity of the witness … The nominated court may intervene where it considers it necessary to do so to safeguard the rights of the witness".
  It continues:
  "The evidence is to be given under the supervision of the court of the country concerned … Rules of court under section 49 must make provision for the use of interpreters".
  Paragraph 9 of the schedule goes on to deal with privilege. Sub-paragraph (1) states:
  "The witness cannot be compelled to give any evidence which he could not be compelled to give in criminal proceedings in the part of the United Kingdom in which the nominated court exercises jurisdiction".
  It is necessary, therefore, either for the witness himself to realise that he is being asked to give evidence in relation to which privilege applies and he cannot be required to answer in a United Kingdom court or for the judge to be able to intervene. This is, of course, a case where the judge is not controlling the hearing. Once the judge has established the identity of the witness, his only responsibility is to ensure that the witness's rights are respected. I believe that it would be appropriate in these circumstances for a witness to be given written information, in a language which he understands, in respect of his rights.
  I entirely recognise that that practice is not adopted in the ordinary courts of this country. However, in the ordinary courts, the judge is sitting on the bench conducting the hearing and is listening to the case himself. The witness will be someone who understands English or whose evidence is interpreted. In this case, it is not clear that the evidence necessarily will be interpreted. The Bill certainly does not state that it will be. When I raised the point in Grand Committee, the noble Lord, Lord Bassam, said:
  "The domestic court could intervene if a matter was not understood as it could view that as a necessary step to take to safeguard the rights of a witness. Translation will have to be audible to the judge … In those circumstances the judge should be fully aware of all the questions".—[Official Report, 21/1/03; col. GC 111.]
  184
  I am not satisfied that that will be the case. If the witness is being examined in a language that he does not understand, there will have to be interpretation. However, when a Greek witness, for example, is being examined by a Greek court—and this type of situation will arise very frequently—the witness will be examined in Greek and will reply in Greek. Is it really the case that the questions that the witness is asked and the answers will have to be translated from Greek into English so that the judge can be satisfied that there is no breach of privilege? If that is so, I think that there will be an awful waste of time and money. The proceedings will take twice as long and involve the presence of an interpreter, who otherwise would not necessarily be needed.
  It therefore seems desirable to recognise that the judge may not always be in the same position to intervene as he would be if he was actually sitting hearing a trial in an English court. In those circumstances, it seems that there is an entirely justifiable reason for saying that the witness must be given advice in writing, in a language which he understands, before the hearing of the case begins.
  Baroness Carnegy of Lour: My Lords, I speak in particular to Amendment No. 37, which states:
  "Nothing in this section shall apply unless it is confirmed that the witness has received independent legal advice".
  The noble Lord, Lord Goodhart, has just asked us to imagine a Greek court examining a Greek witness. Such a situation, if not a frequent occurrence in our courts, is an extreme problem that might be met in our courts. It is interesting to think about. It seems to me that it will be quite unnerving for a witness from another country to give evidence in this country over a video link if they have never done a video broadcast or given evidence before. It is quite important that they should be adequately protected. I am sure that they will need legal advice before they give their evidence.
  Subsections (4) and (5) of Clause 30 provide that witnesses have to understand what constitutes contempt of court and a statement on oath. Part 1 of Schedule 2 provides, as the noble Lord, Lord Goodhart, set out, that they will understand the meaning of privilege. All those matters will have to be explained to them. It would be unfair and very unsuitable if the arrangements that we made in this country did not provide them with legal advice. I therefore hope that the Government will at least accept Amendment No. 37.
  Lord Clinton-Davis: My Lords, I suppose that I have to declare an interest in relation to Amendment No. 37. I am a source of excellent legal advice. However, I do not think that legal advice is necessarily required in this case. I think that the amendment goes much too far, and I would oppose it. I think that government Amendment No. 40 goes a long way. In it, the Government have heeded the idea that any element of discretion should be swept away. I think that they should be applauded for that. I am not always in favour of applauding my Government, but I am on this occasion.
  There is no provision in the law at the moment that is at all comparable with Amendment No. 41. I think that a provision stating that,

  185
  "Rules of court under section 49 must provide for the witness",
  is rather exaggerated. However, I understand that there is provision, and rightly so, for rules of court to be obliged to make provision for the use of interpreters under paragraph 8 of Part 1 of Schedule 2. I believe that that is as far as the Government should go. I believe that the noble Lord and the noble Baroness fail to understand the way in which judges come to the assistance of witnesses and defendants. That is right and should be underlined.
  7 p.m.
  Lord Goodhart: My Lords, how does the noble Lord expect a judge to be able to come to the assistance of a witness who is being asked an improper question if he does not know what the question is that is being asked?
  Lord Clinton-Davis: My Lords, the noble Lord fails to give any recognition whatsoever to paragraph 8 of Schedule 2 which states:
  "Rules of court under section 49 must make provision for the use of interpreters".
  I believe that that is a complete answer to the point that the noble Lord seeks to make.
  Lord Bassam of Brighton: My Lords, as the noble Baroness, Lady Anelay, made clear, Amendment No. 37 would require all witnesses participating in overseas proceedings via television link from the United Kingdom to have been provided with independent legal advice. We cannot accept this amendment. A witness taking part in such a hearing is participating in the proceedings of a court that is not a United Kingdom court. The role of the United Kingdom court is to facilitate the hearing and to conduct certain functions: it must ensure the identification of the person to be heard and ensure that the fundamental principles of law of the United Kingdom are respected.
  A requirement that a witness has received independent legal advice before giving evidence in criminal proceedings is not a fundamental principle of our law. There is no such requirement in relation to domestic proceedings. The amendment would introduce a wholly new process into our courts. It is worth reflecting that a witness may not wish to have legal advice. A witness may be summoned purely as an expert witness to provide technical information.
  The Government have listened to the concerns that the responsibility of the court to intervene to safeguard the rights of the witness should be absolutely clear. As has been said, paragraph 5 of Schedule 2 places this responsibility on the domestic court, and we are sure that a court would exercise its discretion wisely in this respect. But, after further consideration, we propose amending the wording, by tabling Amendment No. 40, to make it absolutely clear that the court is to intervene when it considers it necessary.
  I do not wish to start a lengthy debate about the merits of the words "may", "is to", "must" and "shall". I believe that we have made our intentions clear. The phrases "is to" and "shall" are mandatory—I do not believe that there is any doubt about that—whereas "may" is
  186
  discretionary. Parliamentary counsel consider that the phrase "is to" is better than "must". That is the simple explanation for that. No doubt if we debated the matter on another day, someone would suggest that the opposite was the case and perhaps on that occasion parliamentary counsel would prefer "must" to "is to". We believe that the measure works perfectly well and I have not heard any noble Lord this afternoon suggest otherwise. I sensed that there was approval for it.
  If there is any risk of self-incrimination—I believe that that concern underlines the amendments—the court must intervene to inform the witness that under domestic law he or she is not obliged to testify. That is an important point. We consider that to be an adequate safeguard and that it addresses the key concern behind this group of amendments. Article 10(5)(a) provides that the domestic judicial authority must, if necessary, be assisted by an interpreter, in order to understand the proceedings and be able to intervene if the rights of the witness risk being infringed. As the noble Lord, Lord Clinton-Davis, said, that answers the point that has been raised.
  I cannot accept the other amendment tabled to Schedule 2 (Amendment No. 41). This seeks to impose a requirement that rules of court must provide for the witness to be given written advice as to his rights when participating in a television link hearing. In line with the government amendment, the court will already be required to intervene to protect the witness's rights. We believe that to provide written advice is to go too far. The witness's rights under this paragraph relate to his privilege not to be compelled to give evidence in certain situations. We should acknowledge that important privilege. If a witness comes to the hearing with legal representation, that person will be responsible for advising the witness of his or her rights in this respect. If the witness does not have representation, then, as happens when evidence is taken under Section 4 of the 1990 Act for example, the court (usually the court clerk) will advise the witness verbally if there is a risk of self-incrimination. I do not accept that such advice needs to be given in writing. Television hearings will have translation if required so the translator can interpret the court's advice if the witness does not understand English.
  We believe that we have the balance right and that we have moved towards meeting some of the concerns that were understandably raised in Committee. I hope that noble Lords opposite will see the sense of our approach and feel able to withdraw their amendments.
  Baroness Anelay of St Johns: My Lords, I am not at all disturbed by the Government dismissing my amendment as unnecessary. I made it clear from the very beginning that it was merely a tool to clear up any remaining uncertainties. It has achieved that purpose. I am grateful to the noble Lord, Lord Bassam, for his explanation.
  My noble friend Lady Carnegy said—she was absolutely right to do so—that it was important that we considered the matter of safeguards for witnesses carefully. The noble Lord, Lord Bassam, said that he sensed there was approval for the Government's amendment. I hope that I made it clear that I welcomed

  187
  that amendment rather than just approved it. I have no amour proper with regard to the fact that the Government have decided to use the phrase "is to" rather than "shall". I look forward to using the words "is to" in the future and seeing whether I obtain a favourable response. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 31 [Hearing witnesses in the UK by telephone]:
  [Amendments Nos. 38 and 39 not moved.]
  Schedule 2 [Evidence given by television link or telephone]:
  Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 40:
  Page 63, line 34, leave out "may" and insert "is to"
  On Question, amendment agreed to.
  [Amendment No. 41 not moved.]
  Clause 32 [Customer information]:
  Viscount Bridgeman Viscount Bridgeman moved Amendment No. 42:
  Page 19, line 8, leave out "appears to him to be" and insert "he has reasonable grounds to believe is"
  The noble Viscount said: My Lords, in moving Amendment No. 42, I wish to speak also to Amendment No. 45, both of which stand in the names of my noble friend Lady Anelay and myself.
  I gave notice that we intended to return to this matter at Report stage. In Grand Committee we were told that although the Minister understood that we were concerned about fishing expeditions, he did not feel that the legislative changes that we proposed were necessary. However, we are still concerned that the Bill as currently drafted leaves customer information orders open to frivolous applications.
  The reasons given by the Minister in order to assure us that the changes are not necessary are that under Article 1 of the 2001 protocol to the MLAC, the authority making the request shall explain why the information is likely to be of substantial value to its investigation, and that the Secretary of State has a discretion not to allow the order. He also stated that Clauses 32 and 33 achieve the right balance, as they state that a judge must be satisfied that the conditions are to be met.
  We are still concerned that the criteria are too wide. Will the Minister clarify to what criteria the Secretary of State and the judge will be working? I beg to move.
  Lord Filkin: My Lords, the two amendments are linked. They probe the level of discretion that the Secretary of State has to accede to customer information requests on the grounds on which he must base his decision. Amendment No. 45 seeks to refer back in general terms to the conditions in article 1(4) of the protocol, and we have concerns about both amendments.
  In relation to Amendment No. 42, we consider that the drafting as it stands is correct. It will or will not appear to the Secretary of State that the person is subject to an investigation into serious criminal conduct, on the basis of the information in the request in front of him. The amendment might imply a higher
  188
  test, although in practice the test will be the same whether the drafting is left unchanged or amended. If the Secretary of State's decision in that respect were challenged, the answer to the question of whether there were reasonable grounds would depend on whether the request had stated that the person was the subject of an investigation into serious criminal conduct. Equally, the answer to the question of whether it appeared to him that a person was subject to an investigation would depend on precisely the same matters. I can therefore see no merit in amending Clause 32(1).
  Meeting the requirement is only the initial part of the process, however. It is a precondition. If it cannot be met, the clause does not apply at all. Subsection (1) works as an enabling provision as the starting point in considering a request for customer information. In addition to it, the Secretary of State has a general discretion as to whether to act in any particular case. The use of the word "may" in subsection (3) reinforces that point, as we referred to in our discussions in Grand Committee.
  Furthermore, a judge must also be satisfied of all the matters set out in Clause 33(1) before exercising his or her discretion to make an order. The requirements are: first, that the person specified in the application is subject to an investigation; secondly, that the investigation concerns serious criminal conduct, and that it would constitute an offence in this country; and thirdly, that the order is sought for the purposes of the investigation.
  Amendment No. 45 is designed to cover the matters listed in Article 1(4) of the protocol. Its effect would be to list the requirements in the Bill. Let me explain why we are not happy with that approach. The Secretary of State's discretion on receipt of a request from an EU country will be exercised with the protocol requirements in mind. Our obligation to respond to requests for banking information extends only to those from participating countries that are made on the basis of the protocol. Requests must therefore comply with all of Article 1 of the protocol in order to be valid.
  We consider that the general discretion conferred on the Secretary of State in subsection (3) is preferable to a clause that explicitly states how the Secretary of State must act when a request is received in a particular form. It enables us to apply the article 1 conditions and to exercise a general discretion, which we think is right.
  Requirement for a full explanation of reasons could be interpreted—it might well be—as going way beyond what we are entitled to demand from the requesting authority under Article 1(4). It might be considered a breach of our obligations under the protocol. Article 1(4) lists certain points, but makes no requirement for a full or total explanation. It states why it is considered that the request for information is likely to be of substantial value for the purpose of the investigation into the offence—that is very clear—and on what grounds it is presumed that banks in the requested member state hold the account and, to the extent available, which banks may be involved.

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  I do not consider that explicitly listing Article 1(4) conditions is appropriate either. It is quite clear that the Secretary of State is operating within that ambit. I am happy to stress that the Secretary of State's discretion will be exercised with the protocol requirements in mind. In addition, one of the requirements in Article 1(4) is that the request include any information available that may facilitate the execution of the request. The Secretary of State could not tell at consideration stage whether that had been complied with—whether the additional information did facilitate execution of the request—so inclusion in the Bill would be wrong. He would not be able to tell if it had been complied with until the particular circumstances were confronted on a particular application.
  Although I respect the reasons for the amendments, which we trust are probing amendments, we think that the position is clear in terms of how the protocol will be applied. I hope that my rather full explanation has set the noble Viscount's mind at rest on the matter.
  7.15 p.m.
  Viscount Bridgeman: My Lords, I am most grateful to the Minister for that very full explanation. I think that we are reassured, so I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Goodhart Lord Goodhart moved Amendment No. 43:
  Page 19, line 9, leave out "participating country" and insert "country outside the United Kingdom"
  The noble Lord said: My Lords, the purpose of the amendment and the others in the group, to which I will speak, is to allow applications for customer information orders and current monitoring orders under Chapter 4 of Part 1 of the Bill to be made by or to authorities in any country, and not only a participating country. As defined, the participating countries are quite limited. In effect, they mean the EU member states and others designated by the Home Secretary. I assume that the designation will be limited to states such as Norway and Iceland that are part of the EEA, and may be extended wider.
  The amendment is not one that I intend to press. It arises in particular out of concern about the handling in the United Kingdom of claims by the Nigerian government to matters of some hundreds of millions of pounds that are believed to have been looted by the Abacha family—the family of the late president of Nigeria—from the treasury of that country. In many cases, that money has been deposited in banks in the United Kingdom. Lawyers acting for the present Nigerian government have complained of a lack of help from the authorities in the United Kingdom, especially in comparison with authorities in Switzerland.
  A number of complaints are outside the scope of the Bill, but it is clearly desirable that third-world countries should he helped to recover assets stolen by corrupt rulers, a problem that is unfortunately all too common. We need to consider whether the Bill does everything that it can to assist such countries.
  I can understand why the United Kingdom might be reluctant to grant mutual recognition, as opposed to mutual legal assistance, to some foreign countries where the courts may be regarded as less than entirely reliable. I will therefore not press for anything in the nature of mutual recognition to be extended. With Nigeria, we have an agreement for mutual legal assistance, entered into in 1989. In itself, that does not seem to have prevented the very substantial difficulties that have arisen.
  I also recognise that some help may result from the implementation of Part 7 of the Proceeds of Crime Act, which very much stiffens the law on money-laundering and will make it harder for British financial institutions to deal with money that comes to them in circumstances where they suspect a problem. I wonder why the remedies of customer information orders or account monitoring orders under Chapter 4 of Part I are not made available to countries other than participating countries. The orders made under Chapter 4 are made in the course of mutual legal assistance and the courts have the discretion about whether to make them or not; they are not there simply for rubber-stamping. It appears that the availability by way of mutual legal assistance to countries outside the EU of customer information orders or account monitoring orders would potentially be very useful in identifying and tracing assets that had been looted from national governments. I beg to move.
  Lord Filkin: My Lords, I respect the reasoning behind the amendments. I shall respond to a number of questions raised by the noble Lord, Lord Goodhart, and explain what the term "participating country" means, why only participating countries are involved, how the Proceeds of Crime Act will assist and the relevance of the Abacha case, which was the origin of the matter.
  I begin with the definition of "participating countries". A participating country is defined in Clause 51(2) of the Bill as a country other than the UK which is an EU member state on a day appointed for the commencement of that provision, and any other country designated by an order. That mechanism enables different countries to be designated as participating countries for the purposes of different provisions of the Bill.
  The purpose is to restrict the application of certain provisions to those countries that are under an equal obligation to provide a particular type of assistance. In other words, the arrangements will be reciprocal. The provisions of Chapter 4, to which the amendments relate, enable us to request and provide assistance in identifying and monitoring bank accounts. Those forms of assistance are regulated for the first time in the protocol to the MLA convention. We are under an obligation only to provide those forms of assistance to countries that are party to that agreement and we have chosen as a matter of policy to restrict the application of Chapter 4 to designated countries rather than giving it general application. That restriction contrasts with our policy more generally on the provision of mutual legal assistance where we do not require the existence of an agreement as a condition for assisting. However,

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  those types of assistance are new and specialised, and the amount of work involved in executing such requests will be fairly substantial. We do not consider it appropriate to give the provisions general application when many countries will not be in a position to reciprocate. At heart, that is the reason why we started off in this tighter fashion.
  With regard to changes to the relevance of the Proceeds of Crime Act, Part 11 of the Act will streamline the UK's ability to co-operate with other countries in tracing, freezing and confiscating assets. It also provides for the investigation powers in Part 8 of the Act to be used at the request of foreign jurisdictions. The investigation powers include customer information orders and account monitoring orders, which are the types of assistance that Chapter 4 of the Bill introduces in respect of EU member states. That will be accomplished by subsidiary legislation. We expect to make the relevant Orders in Council later this year. Unlike the existing legislation, an overseas territory will no longer need to be designated before restraint and confiscation co-operation can be given. In the subordinate legislation, we intend to make restraint available from the start of an overseas investigation rather than at the point when a person is charged with an offence. That was one of the main criticisms of the UK legislation that stemmed from the Abacha case. Bringing forward the availability of restraint will help to prevent the dissipation of assets in overseas cases. I am sure many Members of the House recollect that at the time of the A bacha case, UK law did not allow assets to be restrained until the suspects were being charged, and it did not require a genius to predict what had happened to the assets very shortly after that, as was found to be the case.
  A second point relevant to the Abacha case is that the Act provides that the international co-operation arrangements are made by order rather than in primary legislation. I hope the House recognises that that is a further benefit. It will allow for easy amendment to keep pace with international initiatives, such as mutual recognition in the EU and enable us to deal effectively with ground-breaking and high-profile cases, such as the Abacha case. It is highly desirable that we do so and seek to prevent a recurrence of such situations. I respect the reasons that lie behind the amendment and hope that my response gives the assurance that we will not be in quite the same position again.
  Lord Goodhart: My Lords, I am very grateful to the noble Lord for his explanation. It may well be that it will satisfy our concerns but we will have to read very carefully what he said. It is still possible that we may bring the matter back on Third Reading. We shall have to decide on that in the light of our study of the noble Lord's comments. For today, as I said, it is not my intention to press the amendment. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 44 to 46 not moved.]
  Clause 33 [Making, varying or discharging customer information orders]:
  Viscount Bridgeman Viscount Bridgeman moved Amendment No. 47:
  Page 20, line 3, leave out paragraph (a).
  The noble Viscount said: My Lords, In moving this amendment, I shall speak also to Amendment No. 52. Both amendments appear in the names of my noble friend Lady Anelay and myself.
  Noble Lords will recognise this as an amendment to which I spoke in Committee. The British Bankers' Association first raised the point with us and I am keen to probe further remarks that were made at that stage. We are concerned that an undue and excessive burden is not placed on the financial community, especially by the use of fishing expeditions. We understand that the Minister feels that the amendments would be too restrictive in practice. As he explained in Committee, the Bill gives the Secretary of State discretion as to whether he executes a request for assistance and the court has at its discretion whether to make an order. The Minister went on to give a list of matters that the Secretary of State will take into account and explained that the test is the same as one of the tests under domestic law in PACE, all of which we welcome and find useful. However, it occurs to us that it would be more useful if that information appeared in the Bill so as to prevent confusion in future. I should be grateful if the Minister can explain why that is not possible, if that is still his view. Another issue, raised in Committee by my noble friend Lady Carnegy of Lour, although I am also keen to find out the answer, is what would happen regarding that point when there was a request for information from institutions in England and Scotland? Will the judge and sheriff consult? I beg to move.
  Baroness Carnegy of Lour: My Lords, my noble friend mentioned my question about cross-border consultation. If there is a request for information from institutions south of the Border and north of the Border at the same time, the sheriff and the judge could presumably make different decisions. The noble Lord kindly said that he would write to me but I do not believe that he has so far done so. He has done awfully well with his letter writing but if there has been a communication, I do not believe I received it. Perhaps he can comment.
  Lord Filkin: My Lords, I apologise if I have not written. I shall go out and shoot myself after I have shot an official or two first. I am genuinely extremely sorry; that was not our wish. The noble Baroness will have a letter within two days at the latest.
  The probing amendment of the noble Viscount, Lord Bridgeman, seeks to establish whether there is a risk of an excessive burden on British bankers as a consequence of the measures. Our concern is with him in principle in this regard. We do not wish the British banking industry to bear more burden than is necessary in order to get necessary co-operation with regard to international crime and terrorism. I believe that from the beginning the British Bankers' Association

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  recognised that it would be exposed to some burdens. But, at the same time, it recognised that that was necessary as part of its contribution to upholding our way of life and, it is hoped, the rule of law.
  However, the focus of the amendment is on whether these are fishing trips arid whether there will be excessive use. I believe that I spoke on that matter in some detail during debate on the previous amendment. Therefore, I do not intend to talk through the test that both the Secretary of State and the courts would have to apply before making an order. Those discussions were detailed and gave strong reasons as to why fishing trips were unlikely.
  I shall speak, in particular, on why the amendments, as drafted, prevent an application for a customer information order from specifying all financial institutions. We understand that the amendment was tabled in response to concerns about fishing expeditions. We cannot accept the amendments for the reasons that I gave previously. We need to be able to specify all accounts. There may he circumstances in which we would want to be able to make such an order; for example, in a terrorism case where there was no evidence pointing to an account at a particular hank but where the seriousness of the offence and the need to trace any accounts were such that we considered them to justify a search of all banks.
  We spoke on those issues in Committee. We envisage that such circumstances are likely to be unusual and, we hope, rare and exceptional. But I believe that the House will recognise why the provision is essential. It gives the ability, in potentially extreme circumstances, to trace terrorist action or similar serious criminal action.
  The Secretary of State will consider whether a request meets the conditions of the protocol. Specifically, he will consider whether he is satisfied that the requesting authority has demonstrated why it considers that the information is likely to be of substantial value to its investigation and its grounds for presuming that accounts are held here. If he is not satisfied, he can refuse the request, as can the judge when the application comes before him.
  Finally, the clause is consistent with the Proceeds of Crime Act, which contains the power to make an order specifying all financial institutions.
  In essence, we have not put the matter on the face of the Bill because, following what I said today and on previous occasions, we do not believe that there is a need to do so. The situation is very clear. I have also explained why there is a need for flexibility in certain circumstances.
  I was asked what would happen if an order were made in England and invoked in Scotland. An order issued in England and Wales will be valid in Scotland. I am told that we answered that in the letter of 6th February. I shall go away and check that letter and bring back from the dead both myself and the
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  official whom I had intemperately dispatched. I hope that my explanation has answered the questions raised by the noble Viscount, Lord Bridgeman.
  Viscount Bridgeman: My Lords, I am most grateful to the Minister for recognising the concerns of the British Bankers' Association. They are obviously shared in all corners of the House. I believe that we must accept the noble Lord's explanation as to why he cannot accept the amendment, and I beg leave to withdraw it.
  Amendment, by leave, withdrawn.
  Lord Bassam of Brighton: My Lords, I beg to move that consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begin again not before 8.33 p.m.
  Moved accordingly, and, on Question, Motion agreed to.

  Income Tax (Earnings and Pensions) Bill
  7.33 p.m.
  Lord McIntosh of Haringey: My Lords, I beg to move that this Bill be now read a second time. The Bill rewrites, with minor changes, the tax legislation for employment income, pension income and taxable social security income. The aim is to make that legislation clearer and easier to understand. The Bill marks a major milestone on the way to making tax legislation as a whole more user-friendly. It is the first Bill from the Inland Revenue's Tax Law Rewrite Project to venture into the realms of income tax.
  It may be helpful if I say a few words about the Tax Law Rewrite Project before going on to talk about the Bill. The project was set up in 1996 to rewrite most of the UK's direct tax code—currently running to more than 7,000 pages of legislation—enacted over the past 200 years. The key aim of the project is to produce rewritten legislation that is accepted by all the main users as clearer and easier to apply. Perhaps I may say straight away that, looking at the length of the Bill, which is in two volumes of text and one volume of sources with a two-volume series of Explanatory Notes, it is not simply a matter of length of legislation. The point is not how long it is but how long it takes to read and understand.
  The project uses various techniques in order to achieve the aim of making the legislation clearer and easier to apply. The first and most notable is the reorganisation of the legislation into a coherent structure. Existing tax law has grown organically over the years, resulting in a rather haphazard structure. The Tax Law Rewrite Project takes apart that structure and reorders it in a sensible, logical manner.
  Within that structure, the individual provisions are rewritten using shorter sentences, modern language, more consistent definitions and reader aids such as formulae and tables. Navigation around the legislation is

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  then made easier by the inclusion of scene-setting chapters at the beginning of each topic and plenty of signposts to other relevant material.
  However, while making the legislation more accessible, the project takes great care to preserve the effect of the present legislation, apart from minor agreed changes. It would be beyond the remit of the project to make any change in the main tax policies. Proposals for changing tax policy will continue to be dealt with in the usual way—most often in a Finance Bill. But, as was agreed at the inception of the project, the work of the rewrite can encompass minor changes in detail where they will further improve the legislation. Examples of such changes are: new provisions to fill in gaps in the existing legislation; the incorporation of extra statutory concessions; the abolition of obsolete material; and the correction of minor anomalies, and so on.
  It is perhaps worth pointing out that the project does not rely only on its own judgment as to whether it is delivering on its objectives; the project's work is overseen by a steering committee chaired by the noble and learned Lord, Lord Howe of Aberavon, who I am delighted to see in his place, with members drawn from both Houses of Parliament, the legal and tax professions, and business and consumer interests. There is also a standing consultative committee, drawn from the main representative bodies for tax, business and consumer affairs.
  The project also relies heavily on public consultation. It publishes draft legislation, with commentaries, for wider consultation. For example, in the run-up to this Bill, three exposure drafts and a draft Bill were all published for formal public consultation. There have also been meetings with representative bodies and informal contact by electronic means with various interested parties.
  This is the second Bill to rewrite tax law. I was privileged to take the first, which concerned capital allowances, through this House almost exactly two years ago. The Capital Allowances Act 2001 was warmly welcomed by tax professionals and other users.
  I now propose to say a few words about the Bill itself. The charge to income tax is currently broken down into a number of schedules. Schedule E is mainly concerned with income from employment, but it also includes some charges in pension income and social security benefits where those are taxable benefits. About 25 million people are taxable under Schedule E, giving rise to over 90 per cent of total income tax collected.
  The Bill rewrites the whole of Schedule E, doing away with that uninformative label in the process. It also includes certain types of pension currently taxable under Schedule D, so that all the rules for taxing pension income can be found in one place, and the primary legislation for pay-as-you-earn.
  The structural innovations in the Bill include a "benefits code" containing all the provisions dealing with the taxation of benefits in kind. And, for the first
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  time, the Bill brings together all the legislation for share-related remuneration, as well as the various types of share schemes, share option plans and so on. As is now becoming the established rewrite style, the Bill includes navigational aids to the reader, such as introductory scene-setting chapters and signposts to other relevant provisions. They are all designed to help readers to find their way through this large body of legislation.
  As to the provisions themselves, they have been redrafted using shorter sentences, modern language, more consistent definitions, and greater use of reader aids where helpful. All that represents a new style of tax law that is more accessible, easier on the eye, and altogether more user-friendly. Public reaction to the Bill confirms that; for example, last summer when the Bill was published in draft, the CBI described it as,
  "a very great improvement on the existing legislation".
  And the Institute of Chartered Accountants in England and Wales said that:
  "it is another major step forward in improving the intelligibility of UK tax legislation in areas of the law that affect the majority of taxpayers".
  In line with the established parliamentary procedure for rewrite Bills, this Bill comes to us after scrutiny by a Joint Committee of the two Houses. That Committee concluded in its report:
  "The Bill is a welcome clarification of the existing law and will be easier to use and more accessible to Parliament, the judiciary, informed professionals and business people and other users of the legislation".
  There has been well deserved recognition of the work of those involved in producing this first income tax rewrite Bill: the noble and learned Lord, Lord Howe of Aberavon, who has been a stalwart champion of the rewrite from the outset; other members of the project committees; the many bodies and individuals who supported their work by taking the time to comment on the draft legislation; the project team itself and the project team at the Inland Revenue. I have pleasure in commending the Bill to the House.
  Moved, That the Bill be now read a second time.—(Lord McIntosh of Haringey.)
  7.41 p.m.
  Lord Saatchi: My Lords, this is a truly unusual parliamentary occasion because I can find nothing in the speech of the Minister with which I could possibly disagree. I would have been happy to have delivered the speech myself.
  I begin by echoing the Minister's sentiments about the value of the rewrite process in improving the intelligibility of tax legislation and I join him in his praise for the light that it shines on notoriously opaque areas of tax law. As he has said, we have already seen the new Capital Allowances Act, and I look forward to rewritten Bills on corporation tax, capital gains tax and inheritance tax in the future, as well as the second income tax Bill on PAYE, which should appear this year.

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  Great credit is reflected on those involved in the process. The Inland Revenue team, the parliamentary draftsmen and not least the Government themselves all deserve to be congratulated. I say "not least the Government" because they have continued to provide resources for this worthwhile work.
  As the Minister has said, undoubtedly the hero of the entire project is my noble and learned friend Lord Howe, who began making noises about the need for simplification in his maiden speech in another place in 1964. My noble friend shares with Einstein the understanding that simplicity is the outcome of technical subtlety. That is why it takes longer; it is the goal, not the starting point. When lecturing at Princeton, Einstein said,
  "The laws of physics should be simple".
  One of his students shouted:
  "And what if they are not?",
  to which Einstein replied:
  "Then I would not be interested in them".
  I believe that the same test should apply to the laws of' finances. As ironically our party was the original inventor of income tax, the "certain duties upon income" of the 1799 Act that paid for the Napoleonic war, it is only fitting that the two best descriptions of this income tax Bill should have come from our Benches: the father of the process, my right honourable friend Ken Clarke, and my noble and learned friend Lord Howe, its mentor and guide. The then Chancellor, Mr Clarke, summed up the ambition of the project in his Budget speech. He famously said that it would be,
  "like translating the whole of War and Peace into lucid Swahili".
  My noble and learned friend Lord Howe added that it was,
  "like trying to repaint Brighton pier at a time when its owners are trying to extend it to the French coast".
  Their shared aim was to achieve what the Minister said was a less haphazard and more logical structure in all the ways that the Minister described and to do so without altering the substance. We have accepted, as the Paymaster General said in another place and the Minister repeated today, that the changes that have been made, although 183 in number, are clearly set out in the Bill and the sources of all the written clauses are clearly set out in the table of origins that accompanies the Bill. None of that is in any doubt to those on these Benches.
  Why do we need this process? As the Minister said, we need it because the present income tax system is an object designed by a committee which has been in standing session for 200 years. Here is an example of the problem, a still current provision of the 1986 Finance Act which states:
  "If, in a case where sub-paragraph (1) of Paragraph 10 above applies, neither sub-paragraph (1) nor sub-paragraph (2) above has effect in relation to the expenditure referred to in sub-paragraph (1)(a) of that paragraph, then for the chargeable period related to the disposal or cessation referred to in sub-paragraph ( 1)(6) of that paragraph, any allowance in respect of that expenditure shall be a balancing allowance".
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  Or try a provision related to electricity rebates from the 83 pages of Schedule 6 to the Finance Act which enacted the climate change levy, which states:
  "They are to be calculated by treatment of supply as a reduced rate supply to the extent, if any, that the exempt renewable supplies made by the supplier in the averaging period would have been reduced rated supplies if they had not been made on the basis that they were exempt".
  In an attempt to simplify all that, it is worth remembering that simplification has two meanings. The rewrite process seeks to address one: rewriting the law in a way that makes it easier to understand. The second is to simplify the actual mechanics and administration of taxation. The Joint Committee on tax simplification drew the distinction clearly when it recommended to the procedure committees of both houses that it should be renamed the Joint Committee on tax law rewrite Bills.
  As the Minister said, even this rewritten income tax Bill runs to 563 pages, and continues to make what the R IA for the Bill calls "elaborate" distinctions between different forms of income: trading, investment, property, employment, savings and so on and all the other complicated paraphernalia that Chancellors down the ages have decided are essential to the proper workings of the income tax system. Even the very helpful flow chart in the note on Clause 176, which pictorially depicts the flow of money, cannot disguise the difficulty.
  It is the tendency to discourage something by taxing it, to encourage something by giving it a relief, then to decide which class of person or entity should qualify for the tax or the relief and in what amount, that creates the complexity. That is why I would particularly recommend to your Lordships the Bill's simplification of Schedule E, which, as the Minister said, touches the lives of 25 million people.
  The main sources for the rewritten material in the Bill are those parts of the Income and Corporation Taxes Act 1988 that related to taxation of income under Schedule E. The division of income into five schedules, A to E, is 200 years old. It was the creation of Addington's 1803 Act; and the relentless tinkering with them is the reason why the present Chancellor has won gold, silver and bronze for lifting the three weightiest finance Bills of all time. No wonder that almost half of the £4 billion a year increase in government administration costs (up from £13 billion in 1998 to £17 billion in 2003) is allocated to the collection of tax or the distribution of benefits—now renamed credits.
  The charm of such a complicated tax system from the Government's point of view is the scope it allows for hidden tax increases via reduced allowances. Under that structure the Chancellor can raise tax without ever announcing a tax rise. People just wake up one day and find that they are in a higher tax bracket, with the result that tax as a percentage of national income creeps up invisibly. I am told that economists call that "fiscal drag", and it is the reason why, in the last three years, the Government's tax revenues have risen three times faster than average earnings.

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  It is also the reason why the Institute of Chartered Accountants recently warned that the tax system was so complicated that it had,
  "spun out of democratic control".
  No citizen, however intelligent, can match the massed ranks of No. 10, No. 11, the Treasury and Millbank—one man against the legions of Rome. So someone has to hold a torch for simplicity in the tax system, and that is why this Bill and this process are so important.
  Perhaps I may close with a suggestion. It follows from the analogy made by my noble and learned friend Lord Howe; that of Brighton Pier being extended to the French coast. Could not the principles of the rewrite process inform legislation as it is being framed during its passage through Parliament? Perhaps this is naive, but rather than enact complicated legislation and then ask my noble and learned friend and his Inland Revenue team to rewrite it in plain English, why not write it in English in the first place?
  What I seek is for the input of the tax law rewrite team to be brought to bear on financial legislation as it is happening—before the event and not after. How could that be done? For example, a permanent representative of the tax law rewrite team could be put on the Standing Committees of another place which examine financial Bills. Presently, these committees, being programmed, have neither the time nor the capacity for that task. Similarly, if your Lordships' House would agree, we could have a representative of the Tax Law Rewrite Project team as a permanent member of our new Economic Affairs Committee that is to look at finance Bills. If it was up to me, I would follow the practice of the UN Security Council—I would give that member a veto.
  The Bill has been welcomed by all those with an interest in tax simplification. It follows an exemplary process of consultation, as my right honourable friend Ken Clarke said in another place. This support is well deserved, and long may it last. The Opposition Benches in your Lordships' House congratulate all the members of the revenue team on their efforts and give the Bill our full support.
  Winston Churchill always admired Mark Twain's opening of a letter to a friend. It began:
  "I wanted to write you a short letter but I didn't have time".
  Let us give them the time and the tools to finish the job.
  7.51 p.m.
  Lord Simon of Glaisdale: My Lords, I fear that the pressure of time on this debate will make our expressions of gratitude to the noble and learned Lord, Lord Howe, and all those who have been associated with him in this project seem somewhat perfunctory. That is not so. The whole nation is deeply grateful for what has been done. So I hope that it will not be misunderstood if I say that what we are doing here is cosmetic. I do not decry cosmetics at all. But, as the noble Lord, Lord McIntosh, said in his admirable opening of this debate, the project committee cannot
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  touch, interfere or recommend alterations in the substantive law. What it does in effect is to translate fiscalise into English. That is no mean task but it leaves underneath all the obscurities and anomalies of the substantive law. Will the Government consider extending the terms of reference so that as the admirably qualified committee goes through the law it can recommend alterations of substance as well as of language?
  I venture to deal with one aspect only of the fiscal law, but it is one where the provisions give rise to peculiar difficulties and obscurities; that is, tax avoidance. It is understandable because the draftsman will endeavour to impose the fiscal burden in such a way that it is not easily evaded. The wealthy man, seeking to evade the burden, will employ ingenious lawyers and accountants to work out ways around the complicated scheme which imposes the burden.
  When the Revenue in turn deals with that situation, of course the complication is compounded. It is a tradition of our fiscal law, unlike some others, to promote absolute fiscal equality and integrity. It is never a double-charged attack, however inadvertent. But, in following through the complicated and clever tax avoidance provisions in such a way as not to impose a second charged attack, the result becomes virtually incomprehensible even when rewritten.
  That is not necessarily so because a way of avoiding that has been found. It is the general anti-avoidance rule—GAAR. It exists in the United States and in Australia. Broadly speaking, it stipulates that any transaction, the paramount object of which is the avoidance of tax, shall be void for that purpose although valid for any other. As I say, that has been found to work in other comparable jurisdictions. It is not merely a flight of fiscal fancy.
  As a result, the then government—I think it was under the Chancellorship of Mr Clarke—set up a body in the Revenue to examine the potentiality of a general anti-avoidance rule. If it was the noble and learned Lord himself I apologise, but it was during that administration. Having looked at the matter, they put out a consultation paper in October 1998. There were 106 responses to it. Then, suddenly, peremptorily and extraordinarily, the whole issue was abrogated and the committee was dissolved. So far as I know, that action is almost unparalleled. I cannot think of any direct parallel.
  I am antipathetic to conspiracy theories. But what happened was so extraordinary that one cannot cast aside suspicions. First, the general anti-avoidance rule leads to great simplification of the fiscal law. Secondly, it is the most effective counter to avoidance and evasion of tax. Thirdly, it has proved itself in the United States and Australia. Fourthly, there are a number of wealthy people who were very close to the incoming government at that time. Persons whose treasure was safely secreted in tax havens abroad and, as we know, where one's treasure is, therefore one's heart is also. Fifthly, one of those was actually a Treasury Minister at the time, the Paymaster General.

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  Sixthly, 15 or 16 of the individual replies to the consultation paper were conditional on their not being identified.
  As I said, it is difficult entirely to cast aside suspicion. I said that that was almost unparalleled. The nearest parallel that I can draw is the Watergate investigation. When Professor Cox, a former Solicitor-General of the United States, the chief inquirer and senior counsel, was getting too close to the Oval office, he was suddenly dismissed in the same way as the GAAR committee was dissolved.
  These are muddy waters, and one does not want to paddle in them more than necessary. We trust that the Government share our view that our fiscal law should be fair, effective and clear. All that we are asking for—apart from the enlargement of the steering committee's terms of reference— that the Inland Revenue investigation into GAAR should be resumed.
  8.1 p.m.
  Lord Freeman: My Lords, I declare an interest as a former partner of, and now a consultant to, PricewaterhouseCoopers, a firm that has been strongly supportive of the tax rewrite project. Your Lordships would wish to note that the tax rewrite team is now of not inconsiderable size. Tributes should be extended not only to the tax inspectors who work on that team but the parliamentary draftsmen and those from professional life who are on secondment to the team. Draft No. 12, the precursor to the Bill, was excellent. I feel sure that your Lordships would want everyone to be congratulated on an excellent Bill.
  I agree with the first point made by the noble and learned Lord, Lord Simon of Glaisdale. As the Minister pointed out, this is a clarification Bill, not a simplification Bill; and the two are very different. I therefore agree with the noble and learned Lord, Lord Simon, that in the years ahead the initiative—introduced, from memory, in 1996—of a tax rewrite project to consider clarification should be extended to consider the law and rely on professionals—both within and outside the Civil Service—making recommendations to the Treasury on simplification of tax law. Therein lie tremendous savings in terms of both understanding and effectiveness, as the noble and learned Lord, Lord Simon, pointed out.
  While I am on the subject of progenitors of the tax rewrite initiative, if my noble and learned friend Lord Howe was its grandfather and Ken Clarke was, I suppose, its father, we should record that a friendly uncle in the process was my former colleague Tim Smith, whose amendment, I think to the 1995 Finance Bill, initiated the exercise.
  I shall briefly raise only a few points on behalf of the Low Income Tax Working Group, which has been generously supported by the Chartered Institute of Taxation and chaired by a former partner of mine, John Andrews. The group has for several years been considering tax law as it affects those who pay little or no tax. It made representations to the rewrite team hut, sadly, the proposals—I shall briefly deal with three of them—were deemed to fall outside the team's remit and were therefore not included in the Bill.
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  I must mention that 183 minor changes to tax law are incorporated in the Bill, and I should have thought that some charity and generosity might have been in order. But perhaps it is more useful if I simply put down markers. I do not expect an answer from the Minister tonight, but perhaps in due course he would be so kind as to acknowledge that, either for future tax rewrite Bills, for rewrite regulations or, more straightforwardly, for Finance Bills, these three specific points have been taken on board.
  The first issue is important for those in receipt of state and occupational pensions. As the Minister will know, tax is assessed on an accruals basis, not a receipts basis, unlike many social security benefits. That can give rise to anomalies and relative hardship for those who pay little or no tax. The anomaly could be simply removed if we moved straightforwardly to a receipts basis for all pensions and social security receipts. That proposal may well be a candidate for the 2003 Finance Bill or, if that has already been drafted, that for 2004.
  Secondly, I turn to annuities. Annuities are not within the pay-as-you-earn system, which is probably a result of the fact that computerisation of our retirement annuity systems was not general practice 20 years ago. At present, the standard rate is deducted from annuity payments, which can result in hardship for those who pay less than the standard rate. The Green Paper on pensions, which we are to debate on 5th March, indicates that the Government may introduce changes—possibly, as I understand it, in the Finance Bill for 2004, backdated to April 2004. I hope that it is not too late to consider the issue, already foreshadowed in the Green Paper, for inclusion in the 2003 Finance Bill.
  Finally, the state retirement pension should be within the PAYE system, so that tax can be deducted to offset minor tax liabilities for those on low incomes, where income is received gross. The Department for Work and Pensions should operate the PAYE system for the state retirement pension. It is already able to do so for jobseeker's allowance and incapacity benefit. My understanding is that, sometimes, the PAYE system is applied to incapacity benefit, but only when the claimants have that incapacity benefit as their only or main source of income and there is no employer. In the debate in another place this month, the Paymaster General indicated that the PAYE re-write regulations should be published in the spring. I hope that that timetable will be adhered to, and I look forward to the inclusion of this minor amendment in the regulations.
  I commend the Bill, and I join my noble friend Lord Saatchi in congratulating all those involved. I just hope that, in future, the remit for examining tax legislation will, as the noble and learned Lord, Lord Simon of Glaisdale, said, extend to matters of substance—albeit minor substance—and not just writing tax law in the Queen's English.
  8.9 p.m.
  Lord Northbrook: My Lords, this important Bill carries forward the aspirations of the Tax Law Rewrite Project, set up by the then Chancellor of the Exchequer, Kenneth Clarke, in November 1996. The project deserves praise and has received it from all political parties. Its ambitious remit, covering capital allowances, income tax, corporation tax, capital gains tax, stamp duty, inheritance tax and taxes management, is welcome. Particular praise is due to the noble and learned Lord, Lord Howe of Aberavon, the first chairman of the steering committee, for his diligence on the project.
  The steering committee will have its work cut out if it is ever to complete its task. The most recent Finance Bill had 140 clauses and 39 schedules and did not even include some of the most significant legislation, such as the rise in national insurance contributions and tax credits for families and workers on low income. The Bill took nine pages to set out the reduced rate of duty for small brewers, six pages to set out the breaks for community and amateur sports clubs, and 14 pages—no less—to set out the tax relief for vaccines research. It included five clauses of revision of the new aggregates levy, which had come into effect only at the start of the same month.
  Apart from the 2002 Finance Bill, the two largest Bills were those of 1998 and 2000. Commenting on the 2000 Finance Bill, John Whiting, vice-president of the Chartered Institute of Taxation, said:
  "The whole of the personal tax area is ripe for simplification".
  On the same Bill, Frank Askew, an executive of the Chartered Institute of Taxation, commented:
  "This is out of proportion to anything we have seen before. The volume of tax law has doubled since the 1980s. I do not know how ordinary people have a hope of understanding their tax affairs. Even accountants are struggling".
  The trend of ever more complex and lengthy tax law is illustrated by the growing size of tax manuals. Tolley's standard tax manuals on VAT, income tax and corporation tax found it necessary, even by 2001, to add an extra 855 pages to explain the increased tax legislation since 1997. The three guides are now longer than London's residential and business telephone directories put together. Tolley's has even had to reduce the print size to cram in more.
  As can be seen, one of the major problems faced by the Tax Law Rewrite Project is not of its own making. New tax laws are coming in at such a rate that it is difficult to combine them with any rewrite that may be occurring. My noble and learned friend Lord Howe of Aberavon said of the 2000 Finance Bill that it was,
  "almost twice as long as our only Rewrite project so far—after four years work—the Capital Allowances Bill".
  I repeat the quotation that my noble friend Lord Saatchi used:
  "As I said last summer, it is like trying to repaint Brighton Pier at a time when its owners are trying to extend it to the French coast".
  Another of my concerns for the success of the project relates to resources. The Inland Revenue set out the problem clearly. As noble Lords will know, it
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  publishes an annual plan, reviewing progress to date. The 2002–03 report says:
  "We have always stressed that progress on the rewrite project must, of course, crucially depend on the availability of resources, in particular the availability of experienced Parliamentary drafters. We cannot emphasise too strongly the continuing importance of this point. Moreover, the current volume of new legislation annually on direct tax means that the project is now operating in a very different environment from that in which it was conceived. This has made it all the harder to find and maintain resources for our work, which in response to representations, additionally includes the rewrite of the PAYE Regulations".
  So how can the Brighton pier syndrome be avoided? First, income tax and national insurance should be combined for those under the PAYE system. That would simplify the regime for employers and employees alike. An employee could be given a notice of coding based on both taxes without the Treasury losing out.
  Secondly, my noble friend Lord Saatchi and Peter Warburton, in their series of research papers entitled The War of Independence, have suggested that by raising the personal income tax allowance to 10,000,8 million people earning less than £10,000 will stop paying income tax altogether. The authors' audited calculations show how the cancellation of the bizarre overlap between tax and benefits can be fiscally neutral for the Exchequer.
  Thirdly, capital gains tax needs reforming, particularly the treatment of non-business assets held prior to 1998. In my view there is an entirely unnecessary complication of the interaction between indexation and taper relief. It is no use saying—as the Minister said to me several years ago—that this problem will disappear in time. Clearly, that is not the case for shares and property held for a long time. I suggest scrapping taper relief and reindexing the 1982 base up to, say, 1998 values and moving the threshold on every five years.
  Finally, I ask the Minister, first, what resources by way of parliamentary draftsmen are assigned on a full time basis to the project? My noble and learned friend Lord Howe of Aberavon may like to comment on that.
  Secondly, can the Minister influence the Chancellor materially to reduce the size of Finance Bills? Thirdly, can the Minister persuade the Chancellor to simplify the tax regime, especially in the area of capital gains tax? Like my noble friend Lord Saatchi and others, overall I commend the Bill and the project generally for the future.
  8.16 p.m.
  Lord Howe of Aberavon: My Lords, first, I thank the Minister for his lucid, compact and helpful introduction to the Bill. I thank also all those who contributed to the debate, not least for the undeserved tributes to myself, which I nevertheless appreciate very much. I should like to extend thanks to Members of both Houses who sat on the Joint Committee and to the chairman of the Joint Committee who was the father of the project, now emerging in a godfather-like role in that particular position—the right honourable Kenneth Clarke.

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  A particular word of thanks, too, to a colleague who is not here tonight because he has a previous engagement—the noble and learned Lord, Lord Brightman—who has been a hero in shaping this project from the outset and has assiduously played a part in both sessions of the Joint Committee. And I join my noble friend in paying tribute to Tim Smith, one of the pioneers in this long-running exercise.
  As my noble friend Lord Saatchi explained, I am glad that there is now complete appreciation of the distinction between the Tax Law Rewrite Project and the tax simplification project. The change of name recommended by the last Joint Committee was entirely right.
  The noble and learned Lord, Lord Simon of Glaisdale, and I belong to a distinguished club as we are both former Solicitors-General. He was citing yet another Solicitor-General, Mr Ross of the United States. We former Solicitors-General are a great group. I noticed particularly his call, echoed by many others, for the project to be extended—in his words—to embrace changes in tax policy and tax structure.
  Nobody could have been involved in this exercise as much as I have without becoming acutely aware of the scale of growth and the multiplication of complexity in every way. I am sure that it would not be right to try to encourage the Tax Law Rewrite Project to supplement or extend its role into that area. This is a subject which has been addressed in a series of lectures given at the Institute of Chartered Accountants. Mr Adam Broke gave the first Hardman Memorial Lecture on this theme some three or four years ago. I had the privilege of following him a year later and seeing my lecture published in a publication produced by my noble friend Lord Saatchi. We were all saying that we need a separate exercise to address policy problems. They do not go unnoticed. My noble friend has suggested additional policy problems to be examined from now on.
  The truth is that in our tax law rewrite documents, as we study the law, we identify the policy proposals that come to us. In the course of the exercise on this Bill alone, no fewer than 84 separate policy shortcomings are listed in the appendix to our final response document to representations on the draft Bill.
  So there is a huge and growing problem. For that purpose, I am sure that the prescription put forward by Mr Adam Broke and which I proposed in my Hardman Lecture is right. We need to begin to create a separate, independent Tax Structure Review Body and system. As my noble friend Lord Saatchi pointed out, it should have the objective of ensuring that the champion of tax simplification has as prominent and continuing a role in the formulation of tax legislation as the Chancellor himself. That is not to say that one person should do it, but the principle here is that there should he a watchdog always asking, "Where is all this going to end up?".
  I am happy to say that the topic will be addressed yet again within a few weeks. The Institute of Fiscal Studies has been tenacious in pursuing this. Its Tax Law Review Committee has appointed a working party under the chairmanship of Sir Alan Budd, the
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  former Chief Economic Adviser to the Treasury. It will produce on 20th March a report crafted to a large extent by that other tenacious tax Stakhanovite, Mr Malcolm Gammie, under the title, "Making Tax Law", readdressing all the issues and incidentally identifying the possible role that could be played by this House in the process. I think it right that the Economic Affairs Committee under the chairmanship of the noble Lord, Lord Peston, is about to generate a tax sub-committee to begin addressing the problem and thus employing the expertise available in this House.
  I listened with interest to the commendation made by the noble and learned Lord, Lord Simon, of a general anti-avoidance provision, a GAA R. I confess that it is a subject from which I have steered pretty well clear. It is one of huge complexity and much fascination for those who like to burrow around in it, but I have always refrained from that activity.
  Perhaps I may say a few words about the future plans for the project as they develop. In the course of rewriting Schedule E and the PAYE legislation, it became quite clear that it could not sensibly be done without tackling the regulations as well. Popular demand dictated that we must rewrite these regulations, many of which were written in great haste under wartime conditions. I believe that many of them may have been drafted by my noble friend Lord Cockfield in one of his previous existences.
  Therefore we have set in hand the rewriting of those regulations. This spring we shall publish for formal consultation a complete rewrite of the PAYE regulations. They were not within our original remit and thus represent some diversion of our resources, but when the consultation process is completed, they will be laid before Parliament later this year and will come into force in April 2004. That is an important addition to our work.
  Meanwhile work is continuing on our third Bill, which will be the second Bill on income tax. That is to be published in draft during the first half of next year. We seem to have established a kind of biennial rhythm. It will cover property income, foreign income, trading income and savings and investment incomes, but it will not finish the task of dealing with income tax. Our aim is to conclude the rewrite of the entire income tax code in our fourth Bill due in 2006–07. One or two noble Lords may still be around to handle that exciting piece of legislation.
  It is worth reflecting that it is exactly 200 years since Lord Addington introduced the schedule system, having repealed the William Pitt legislation of 1802. In 1803 he introduced the celebrated schedules. Having lasted for 200 years, the system is a formidable monument to Lord Addington. At the time he was Prime Minister, but he went on to become Home Secretary for 10 years. In that role he sent a vote of thanks to the magistrates and soldiers who were responsible for the Peterloo massacre. In 1832 his last act in this House was to vote against the great Reform Bill. His creation of the system of schedules was probably one of his more memorable activities.

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  I should like to close my remarks by referring to a point made by several noble Lords. My noble friend Lord Northbrook was the last to emphasise the consequences of the legislative lust with which all Chancellors become obsessed. It is extremely difficult to refuse recommendations for new projects from business, which wishes to be liberated by new incentives, and new projects from the Revenue, which often appears to want the opposite. It is very hard indeed to restrain that tendency, which creates a mounting agenda for us.
  It is quite right that Brighton pier is not doing too well. If one looks at the two previous Finance Bills, one finds that for 2001 there was a quite modest volume of 331 pages, but the volume for 2002 went back up to 494 pages. So in those two years the Chancellor generated 825 pages of new legislation. On our two statutes together, we have generated 894 pages of re-written legislation. We have established a fairly narrow lead but I am worried as to where we will end up.
  It is right that we have been under pressure, as my noble friend Lord Northbrook pointed out, because of the extension of our activities to the regulations and because of the sheer volume of work. We have been lucky to have a team of more than 40 people, including people from the private sector, and to have been, so far, sufficiently staffed with people from the Office of Parliamentary Counsel. The words from our plans which were cited by my noble friend were written by myself and underline the importance of ensuring that the resources needed are available.
  The noble Lord, Lord McIntosh, will know that the Office of Parliamentary Counsel is probably under more pressure than any other department in Whitehall. It is extremely difficult to attract people of sufficient assiduity, talent and brilliance and to pay them enough to recruit them from the more lucrative private sector. I have campaigned since the 1970s, when I was concerned with the Industrial Relations Bill, for a multiplication of parliamentary draftsmen. The need is still there.
  Our project has been protected from any erosion of our resources and I am grateful to the Chancellor for achieving that. I am grateful to the people from the private sector who have been able to work with the Revenue in that role; and I am very grateful indeed to the dedicated group of people from the Revenue itself. Noble Lords who saw those people giving evidence to the Joint Committee a few weeks ago witnessed a mastery of detail. It is an illusion to believe that the Steering Committee understood any of it, but it does underline the brilliance and assiduity of those doing the work.
  I am extremely grateful to them, to the Office of Parliamentary Counsel, to the Chancellor and to the many people outside who have played such a crucial part in our consultative process. It must be dismal indeed to contemplate, night after night, the draft documents we generate. It is not an exciting task but it is very important. I am grateful to the House and to all those who have participated in it for understanding its importance and for continuing to support it.
  8.28 p.m.
  Lord Newby: My Lords, it is a great pity that my noble friend Lord Addington is not in his place because I am not sure that he is completely aware of the extent of the trouble caused by his noble forebear in establishing the schedules which we are now, some 204 years later, attempting to simplify.
  I congratulate all those involved in the project—the civil servants, the people in industry and the Members of the Joint Committee. As the noble and learned Lord, Lord Howe, said, a huge amount of unglamorous work has to be undertaken to get to this point, and all those who were involved in it deserve our thanks.
  One of the more impressive features of the exercise is the degree of consultation. The noble Lord, Lord McIntosh, explained that there were three exposure drafts before the final draft was issued. There were meetings and a great exchange of e-mails. It is unfortunate that such a huge amount of consultation was undertaken in this relatively minor area of legislation and yet, when it comes to new legislation, very little consultation is undertaken in many cases. It would be a great service to the statute book if there could be a better balance and if, as it came forward, tax legislation could be subjected, wherever possible, to a greater degree of consultation than is normally the case.
  I very much agree with those noble Lords who have spoken about the need for greater simplicity in the tax system and not just clarification. The noble Lord, Lord Saatchi, cited Einstein, and in a way he exemplified one of the problems with which we are faced. While Einstein may have found the concepts of the laws of physics simple, I fear that lesser minds probably struggled with them and found them extremely difficult. When I started my career as a junior official in Customs and Excise, the Permanent Secretary at the time, who had just introduced VAT, was adamant that it was a simple tax. To him, it was; to the rest of the world it was fiendishly complicated. Therein, I suspect, lies the problem of tax simplification.
  On what may be a note of optimism to inject into the debate, there has been much discussion of the state of Brighton Pier. My understanding is that one of the two piers has collapsed and the other recently caught fire. Perhaps we might have a bonfire of the regulations to accompany those omens or auguries from Brighton.
  I do not want to detain your Lordships by listing a whole raft of tax simplification measures that might be desirable. I simply ask the Chancellor not to introduce wheezes that are unlikely to work. One of the main reasons why the last three Budgets and, indeed, the last three Finance Bills have been so long is that they were stuffed full of minor measures that may be attractive to only a very small category of taxpayers. As we have already heard, some of them take up a significant amount of legislation. In most cases, they have no effect or are counter-productive. A degree of self-restraint on the part of the Chancellor in this respect would be welcome.

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  On reading the debates on the Bill in the House of Commons, I was interested to see that when the Paymaster General was pressed on why recent Finance Bills have been so long, she said that one of the main reasons was the complexity of anti-avoidance measures. Although it may be a difficult and arcane area, the suggestion of the noble and learned Lord, Lord Simon of Glaisdale, that a general anti-avoidance rule might be considered has much merit, and I commend it to the Government.
  The noble and learned Lord, Lord Howe of Aberavon, mentioned that the Economic Affairs Committee will be looking at the Finance Bill when it comes before Parliament later in the year. However, given that we will be considering the Bill in parallel with its Commons Committee stage, I fear that our ability to look at more than a few aspects will be severely constrained. Therefore, while I hope that we can make some contribution, not least in ensuring that measures are not unduly complicated, one should not put too much weight on our ability to have a major and sustained impact on tax simplification.
  Finally, I would like to take up the point made by the noble Lord, Lord Northbrook, and, to a certain extent, by the noble and learned Lord, Lord Howe, about momentum and resources. In one sense, it is admirable that there will be a Bill every two years—that may be as quickly as it can reasonably be done. None the less, even at that pace it will be many years before the entire 7,000 pages have been simplified. I join other noble Lords in asking that the noble Lord, Lord McIntosh, go back to the Treasury and the Revenue and express the strength of feeling in this House that the resources devoted to this project should be strengthened rather than weakened, because it is a valuable project, and we are all happy to support it.
  8.35 p.m.
  Baroness Wilcox: My Lords, it gives me great pleasure to join my noble friend Lord Saatchi in welcoming the Bill and thanking the Minister for his clear explanation of it. As we have heard, the Bill rewrites income tax rules on employment income, pensions and taxable social security benefits. This is a welcome clarification of the existing law, making it easier to use and more accessible to Parliament, the judiciary, informed professionals, business people and other users of the legislation—and even, dare I say, the overtaxed, overburdened sole trader, the ordinary taxpaying citizens of our country and the non-governmental organisations that try to represent them, such as the citizens' advice bureaux and the Money Management Council.
  In the early 1990s, I was pleased to be asked to join the then new Tax Law Review Committee of the Institute for Fiscal Studies. The noble and learned Lord, Lord Howe, had been invited to be the president of the committee. I served on it for three years. My job was to highlight the predicament of the sole trader and the citizen consumer, matched against the mighty power of No. 10 and No. 11 Downing Street and the
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  Treasury, and to insist on plain English, not some of the gobbledegook that my noble friend Lord Saatchi has already ably illustrated this evening.
  It quickly became clear to us that, so complicated and multi-layered were some of the tax laws that those who evaded tax were being aided by the ambiguities of the laws. Those who would avoid tax were uncertain of their ground and often fell prey to poor advice. Those who had, maybe unwittingly, stumbled and fallen foul of the tax law were often as confused and confounded as their lawyers—and sometimes, dare I say, as the judge presiding.
  It was a great encouragement when, in another place, the then Chancellor of the Exchequer, Kenneth Clarke, enacted the tax law rewrite concept, and an even greater relief when the succeeding Chancellor of the Exchequer, Gordon Brown, decided to continue the sterling work of the established steering committee, chaired by my noble and learned friend Lord Howe of Aberavon.
  Ten years on from those early thoughts of the IFS Tax Law Review Committee, I am honoured to be in your Lordships' House to see the Bill arrive and to congratulate my noble and learned friend Lord Howe and his team on having got us thus far. I understand that the whole project has cost only £7.6 million—a very low cost to our nation for the wonderful benefits that it will bring.
  It is a great satisfaction to see that those three years of mine were not wasted. This Bill and those that follow will be able to clarify the tax system and make it much more accessible. I understand that we are about to end the antiquated and irrelevant ban on your Lordships' House considering Finance Bills. What excellent timing, in view of Bills such as this. This House will bring a level of scrutiny that has been sorely missing in another place. We can put to an end the game of tug of war that I had to engage in to get a speakers' list put up for the Bill. If I had not done that, maybe we would not have had the benefit of hearing the noble and learned Lord, Lord Simon of Glaisdale, speaking tonight on the general anti-avoidance rule. Maybe we would not have heard from the noble Lord, Lord Freeman, who congratulated the team on its work so far and talked further about the simplification of tax law and about his work with low income taxpayers and receivers of benefit. Maybe we would not even have heard from the noble Lord, Lord Northbrook, on the length of tax manuals and the worries about the amount of work ahead of the committee and the drafting resources available. I am sure we would have heard from the noble and learned Lord, Lord Howe, because he is this Bill. It was wonderful to hear him going back and telling us some of the things that he is still worried about. I hope that he will go forward with all those issues and may even be able to promote the separate exercise suggested by my noble friend Lord Saatchi and others, on the need for a separate independent tax rewrite group.
  It is time to move on. The Bill, which is welcomed by all those with an interest in tax clarification, is a great place to start. Like all those on these Benches, I wish the Bill well.
  8.39 p.m.
  Lord McIntosh of Haringey: My Lords, I am grateful to everyone who has expressed their support for the Bill, which has received a unanimous welcome. I must correct the noble Lord, Lord Saatchi, to some extent. He described this as an unprecedented occasion. He is well known for finding awkward quotes in my past speeches, but I should remind him that two years ago, in the debate on the Capital Allowances Bill, he said:
  "It is one of the rare occasions in your Lordships' House when all the parties are in agreement".—[Official Report, 26/2/01; col. 1029.]
  Yes, it may be rare, but it is not unprecedented. With that minor lapsus, we have a considerable degree of agreement, and I am appreciative of it.
  The Explanatory Notes do, it is true, set out elaborate distinctions between different types of income, but they are there because they have to be. The noble Lord, Lord Newby, referred to the Budget containing detailed expositions of minor measures. The noble Lord, Lord Northbrook, made the same point. They may be minor measures to those who are not involved, but they are very important to those who are involved. We set ourselves a high objective of preventing avoidance of taxation, while avoiding double taxation, and we set ourselves the high standard that that should be explicit rather than included in general rules. Therefore, it is inevitable that there should be a substantial degree of complexity.
  The noble Lord, Lord Saatchi, said that we had permitted ourselves to raise taxes by reducing allowances. We cannot change allowances, any more than we can change taxes, without parliamentary approval. That is not what "fiscal drag" means—it means that tax revenues rise because, for example, more people are in work and earning more. It is not because of any sleight of hand by the Government to find ways in which to raise money without parliamentary approval.
  The noble Lord made a perfectly legitimate point about why the simplification of language, which is a feature of this Bill, should be applied to the Finance Bill. It will be, and it is being already. Some parts of the Finance Act 2000 were drafted in that way, such as the tonnage tax provisions in Schedule 22. However, if we are going to do that, provisions must be drafted as a separate, self-contained block of new legislation, and the new policy should be settled well in advance and should not be subject to change afterwards. It is the nature of the beast that such conditions would be difficult to apply to the annual Finance Bill. However, in future, when legislation has been rewritten and enacted, amending legislation will be easier to draft and to understand. That is the case in the Finance Act 2002, in which Schedule 21 amends the provisions of the last rewrite Bill, the Capital Allowances Act 2001.
  The noble and learned Lord, Lord Simon, was slightly ungenerous in using the word "cosmetic" about the Bill. He wanted to extend its terms of
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  reference so that alterations of substance were possible. He gave good examples of that. However, the Bill's virtue is that it has been subject to unprecedented consultation and consideration by those who are expert in these matters. The consideration in your Lordships' House is limited to not much more than an hour. Consideration in the House of Commons was limited by the fact that it is a Money Bill and the subject of a ways and means resolution. I do not think that the noble Lord would wish alterations of substance to be made other than in the course of political cut and thrust and political debate. I think that I heard the noble and learned Lord, Lord Howe, agree—implicitly at any rate—that this is rightly a rewrite Bill rather than another way of enacting taxation legislation.
  The noble and learned Lord, Lord Simon, raised again an issue that he has raised with me before about a general anti-avoidance rule. That certainly would be a significant policy change, but it is beyond the remit of the Bill. We have given consideration to it. We announced our intention to consider a general anti-avoidance rule for corporation tax in the 1998 Budget. The Inland Revenue consulted on that, but the outcome of the consultation was that a general anti-avoidance rule would be ineffective in countering tax avoidance, although it would increase the compliance cost to businesses. It would be a major change to the UK tax system.
  As we were committed to consultation and took account of the results of consultation, we announced in the 1999 Budget that we would not take forward a general anti-avoidance rule, but we would tackle avoidance by more targeted legislation. That does not mean to say that it is off the agenda for ever. If it can be shown as an option and replacement of, or an addition to, targeted legislation, we might well do that. However, the consultation that we took in that year was certainly not encouraging for a general anti-avoidance rule.
  The noble and learned Lord, Lord Simon, asked whether the rewrite project seeks to make the legislation fairer. I think that the noble and learned Lord, Lord Howe, answered that point. More radical changes should be made in the Finance Bill, as I said, as the correct parliamentary vehicle to deliver changes in the way everyone is taxed.
  The noble Lord, Lord Freeman, having to some extent supported the noble and learned Lord, Lord Simon, raised three points. The first was on taxing the state retirement pension and taxable state benefits on the amount received in the tax year rather than the amount accrued. Our current basis of assessment was introduced in the Finance Act 1989. This is another longstanding issue. A change might materially alter tax liabilities and could complicate the coding of pension income for PAYE purposes. It would have significant operational implications. Although it was considered when the Bill was being produced, it was decided that that was not a suitable subject for revision.

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  The noble Lord's second point was on retirement annuity contracts. We are consulting on the simplification of the taxation of pensions. We issued a consultation paper in December 2002, and the consultation period closes on 11th April. We intend that, as for all other pensions in payment, pensions paid from retirement annuity contracts should be taxed as income under Schedule E. So PAYE would have to be operated. The practical issues are being considered in the consultation process. We are proposing further consultation this year and legislation next year.
  The noble Lord's third point was on the operation of PAYE on the state pension. The Department for Work and Pensions and the Inland Revenue are aware of that issue, and we accept that it could be seen as an improvement in service by pensioners. However, there are operational difficulties in operating PAYE on state pensions. The difficulties would have to be overcome before the improved service could be implemented.
  The noble Lord, Lord Northbrook, discussed a matter mentioned by a number of other speakers; that is, the length of the Finance Act. The noble Lord, Lord Newby, said that there was little consultation on new tax legislation. On the contrary, the Pre-Budget Report, which is published six months before the Budget, constitutes the beginning of consultation on matters in the Budget. Some 60 per cent of last year's Budget—that is 300 pages—was published after extensive consultation. As I said in my opening remarks, I simply do not accept that the number of pages is the significant consideration. It is the time it takes to understand the legislation and act on it that is really important.
  The noble Lord and a number of other speakers asked about the resources available for the project. He specifically asked about parliamentary draftsmen. There is a senior draftsman with two assistants attached to the project on a rotational basis. Three or four external draftsmen with experience of the Office of Parliamentary Counsel work with them. That is a substantial commitment which has not been reduced. We have continued the commitment that was made in the past. I believe that the noble and learned Lord, Lord Howe, recognised that.
  The noble Lord, Lord Newby, wanted the resources to be strengthened rather than weakened. That is the case. There is general agreement that the rewriting of tax law is worth doing and worth the continuing resources. The Chancellor stated in a letter in February 1999 to the noble and learned Lord, Lord Howe:
  "It is a massive exercise but one which we are committed to doing well".
  That commitment remains.
  As regards the future programme, I can confirm—as the noble and learned Lord, Lord Howe, said—that early next year we shall produce a draft on foreign income trading, income, property income and savings and investment income. The noble Lord, Lord Saatchi, said that we would produce a Bill on PAYE. We shall not produce a Bill, but rather regulations. The noble and learned Lord, Lord Howe, referred to that. It will be put in train later this year.
  214
  Clearly, the resources that are necessary are being made available. The terms of reference of the tax rewrite project have received universal support in this House despite the understandable wish for them to be extended. I believe that I have explained the reasons why it would not be possible or desirable to extend the terms of reference any further than they have been. Meanwhile, the fact that the Bill has been received with such universal approbation enables me to commend it to the House.
  On Question, Bill read a second time; Committee negatived.
  Then, Standing Order 47 having been dispensed with (pursuant to Resolution of 19th February), Bill read a third time, and passed.

  Crime (International Co-operation) Bill [H.L.]
  8.54 p.m.
  Consideration of amendments on Report resumed.
  Clause 35 [Account information]:
  [Amendment No. 48 not moved.]
  Lord Goodhart Lord Goodhart moved Amendment No. 49:
  Page 20, line 35, after "into" insert "serious"
  The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendments Nos. 50, 54, 55, 60 and 61. The amendments form part of a single unit and were raised in Committee.
  Under the Bill, two types of order can be made relating to information about banking transactions. One is a customer information order; the second is an account monitoring order. I do not propose to go into the details of what they involve but, broadly speaking, a customer information order requires a bank to indicate what different accounts a particular person may have with it, and an account monitoring order enables transactions on a particular account to be kept under scrutiny.
  A customer information order can be made only for the purpose of investigating serious criminal conduct. Such conduct is defined in the Bill as an offence to which paragraph 3 of article 1 of the 2001 protocol applies. However, an account monitoring order may be made for the investigation of criminal conduct, whether serious or not. Serious crime, as defined by paragraph 3 of the protocol, means an offence that is punishable by prison for a period of not less than four years in the requesting state, and not less than two years in the requested state.
  It is not clear why there is a distinction between a customer information order and an account monitoring order in that respect, in either the protocol itself or the Bill. In Grand Committee, the noble Lord, Lord Filkin, said that account monitoring orders were focused on specific identified accounts and were therefore less resource-intensive for financial institutions. I can understand that to be the case. However, what is perhaps

  215
  more important is that there is little difference from the point of view of the account holder. Both the orders are highly intrusive from that point of the view.
  The purpose of the amendment is to raise the standards for account monitoring orders to serious criminal conduct, which is the same standard as for customer information orders. Therefore, it would obviously not increase the burden on financial institutions. Indeed, if it reduced the number of account monitoring orders, it would slightly reduce the burden.
  The amendment would protect account holders from intrusive monitoring. In all cases where an account monitoring order would be appropriate, I believe that crimes are involved such as organised fraud, drug dealing and person trafficking, where the penalty would anyway be above the minimum for serious crime. It seems to me at least highly doubtful whether account monitoring orders would be used to any significant extent for offences where the investigation was not into a serious crime.
  Therefore, the balance between intrusiveness and crime prevention, which in this case has been got right for a customer information order, is wrong for an account monitoring order. The trigger for that order should be the same as for a customer information order—
  investigation into a serious crime as defined in the Bill and the protocol. I beg to move.
  9 p.m.
  Lord Filkin: My Lords, I am grateful to the noble Lord, Lord Goodhart, for speaking so clearly about the central thrust of his amendment. As we know from our discussions in Committee, he understands the distinction between account monitoring orders and customer information orders and the levels of criminality involved. I shall therefore not speak at length. I shall explain why the protocol is as it is—it is the product of considerable deliberation between the United Kingdom and other European Union member states over a substantial period.
  The reason for the restriction in relation to tracing accounts was explained in Committee: as the noble Lord, Lord Goodhart, signalled, such requests are likely to place significant demands on the resources of countries without central bank registers, and it was judged that there is a need for proportionality between the crime in question and the measure requested. The protocol explicitly states that the obligation to assist under Article 1 is limited to those cases which we have described, for simplicity, as involving "serious criminal conduct", as defined in Clause 46(3) of the Bill. The reasons for not having an equivalent restriction in relation to account monitoring orders are perhaps less clear and merit further explanation. We do not consider that a parallel restriction in relation to account monitoring would reflect the aims of the drafters of the protocol or make full use of the opportunities available to us as the requesting state.
  Article 3 of the protocol creates an obligation for member states to be able to monitor activity in specified accounts. During negotiations, as I signalled,
  216
  it was not considered necessary expressly to limit that obligation only to certain types of serious offence, in contrast to Article 1. Requests for monitoring will be targeted at an already identified account and so will not place such a burden on banks—and we can already provide historical details of activity in such accounts even without new legislation.
  As the noble Lord, Lord Goodhart, signalled, that did not lie behind the amendment; if I understood it correctly, that involved more an argument about balancing the civil liberties of the person whose account, unknown to them, might be being monitored against the potential level of serious criminality—or otherwise—of the suspected person. I understand that argument but I am unsympathetic to it.
  The fact that we are defining some offences as "serious" in the Bill does not imply that the other offences of which a person is suspected of being connected with or potentially guilty of but which do not meet the strict tests—if I have them right, they are a maximum period of at least four years in the requesting state and at least two years in the requested state—are not serious. They simply do not meet the test. I should be happy to give a list of examples of offences that do not meet the test of being "serious" as defined in the clause to which I referred previously but which under any common-sense meaning of the word are seen by the public as being serious.
  The view that we should not use legitimate, properly tested conditional and proportional powers of the state to try to find out whether criminality is going on because it is argued that it is best to protect the civil liberties of the suspected criminals is deeply unconvincing. We will not use the powers willy-nilly; they will be used although they are burdensome to the requesting states, the officiating states and the courts. It will require effort to use them but we must use them and monitor accounts when there is a suspicion that people have committed offences.
  A further point is that in some cases people will be traced through account monitoring orders who may, to use the patois, be the small fish in events but they may lead us to the bigger people. For that additional reason, I am deeply unsympathetic to the restriction.
  I am sure that this is a probing amendment and that it is intended to tease out the Government's perspective. For the reasons that I have given, we do not expect there to be thousands of such monitoring orders. My recollection is that our best estimate is that at most there will be about 500 a year in those circumstances. These are people whom other international bodies believe to be potentially involved in criminal activities. Irrespective of the fact that we would be non-compliant with the protocol, not using these powers would seem to us to go completely against the thrust of government policy. I hope that the House will be sympathetic to that argument.
  Lord Goodhart: My Lords, the amendment is intended seriously and not merely as probing. I am a little unhappy with the nature of the noble Lord's response to it, because I believe that there is a potential

  217
  problem here of excessive intrusion into individual privacy. Of course, I recognise that the exercise of government powers in any individual case will be subject to control under Article 8 of the European convention. If it is used disproportionately, there will be a form of judicial control over it.
  Having raised the issue, in the circumstances I am not minded to press the amendment further. I simply hope and trust that the Government, or rather the responsible authorities—obviously decisions will not be taken at anything like ministerial level—will bear in mind that the powers which are given must not be used intrusively or disproportionately. Therefore, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 36 [Making, varying or discharging account monitoring orders]:
  [Amendment No. 50 not moved.]
  Clause 37 [Customer information]:
  [Amendment No. 51 not moved.]
  Clause 38 [Making, varying or discharging customer information orders]:
  [Amendment No. 52 not moved.]
  Clause 40 [Account information]:
  [Amendments Nos. 53 and 54 not moved.]
  Clause 41 [Making, varying or discharging account monitoring orders]
  [Amendment No. 55 not moved.]
  Clause 43 [Information about a person's bank account]:
  [Amendments Nos. 56 to 59 not moved.]
  Clause 44 [Monitoring banking transactions]:
  [Amendments Nos. 60 to 62 not moved.]
  Clause 45 [Sending requests for assistance]:
  [Amendment No. 63 not moved.]
  Viscount Bridgeman Viscount Bridgeman moved Amendment No. 64:
  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.
  (2) In each report under subsection (1) the Secretary of State shall include—

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

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

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

  The noble Viscount said: My Lords, in Amendment No. 64, standing in my name and that of my noble friend Lady Anelay, we return once again to the subject of annual reports. This is not a probing amendment. It concerns an issue which we raised in Grand Committee and to which we want to return again.
  Many noble Lords who spoke in Committee agreed with us in principle that, as we are breaking new ground with the banking section of the Bill, parliamentarians
  218
  have a right to know the cost to the taxpayer of complying with requests. I understand the point that the Minister made in response to this amendment in that an annual report would require resources. However, I cannot agree with his statement that those would be disproportionate or a potential waste. He has. after all, reminded us that, in any case, the cost to the banking industry of complying with the regulatory impact assessment will be between £1.26 million and £3.7 million a year.
  It is essential that there is transparency in this matter. As my noble friend Lord Renton and the noble Lord, Lord Monson, pointed out in Committee, we are in uncharted waters. In our view, in terms of monitoring, it is insufficient to rely on the odd parliamentary Question to check on what is an unfamiliar procedure but one that is absolutely crucial to the effective operation of this part of the Bill. The BBA has also stated that it is completely behind the measure that we propose, and it believes that the debate in Grand Committee showed the important issues involved.
  A report would also put pressure on the Home Office to meet another concern that the BBA has in relation to the partial regulatory impact assessment—the PRIA—of the protocol to the Convention on Mutual Assistance in Criminal Matters between EU member states. After supporting the convention but noting that it had to be on the basis of mutual benefit, the BBA said—I hope that your Lordships will permit me to quote this:
  "The UK, and the information which the UK will, potentially, be able to obtain will not be less or less timely than that which the UK will normally provide. Differences could arise through., for example, different legal procedures or bank secrecy rules, in particular where the retail banking structure is less concentrated than in the UK. Such differences could reduce the benefits for more ready access to information in response to requests for mutual legal assistance".
  An annual report will help to establish the extent to which there is a level playing field both in theory and in practice.
  I return to a remark made by the Minister; namely, that he will consult the BBA when the Government reconsider the process for handling requests for information once an order has been made. He also stated that he would consult other relevant bodies. Would it be possible for him to name them now? That would help us to see how widely the Government are consulting on the issue. I beg to move.
  Lord Bassam of Brighton: My Lords, I am delighted that the noble Viscount has moved this amendment as it gives us a chance to return to our favourite topic of annual reports. I shall not level my common allegation that when stuck for an amendment one dreams up an annual report to demand.
  I see the point made by the noble Lord. Our argument is that an annual report is unnecessary and burdensome. On a matter of costs, a balance has to be struck as to whether the potential evil that it is attempting to monitor is outweighed by the evil of the unnecessary activity. In our view it is the latter case.

  219
  We would not want noble Lords to believe that we are not concerned about costs. For that reason we have had detailed and intricate consultation in the preparation of the Bill and we have been careful to consult the BBA. At an earlier stage in the proceedings on the Bill we undertook careful inquiries with the BBA to see whether in general it was happy with the arrangements that we are putting in place. My understanding was that that was the case.
  We believe that costs should be kept to a minimum. We shall be careful in our approach to the whole issue. As regards reviewing procedures on an annual basis, although the matter covered in the amendment will be monitored, we believe that the requests and the return of evidence obtained under them will be routed via the Secretary of State and that costs will be kept to a minimum. The absence of a requirement for an annual report does not mean that the effects of the new processes and procedures will not be monitored, nor that the banking industry will be excluded from any future consultations on the subject. We intend that they will be consulted.
  I am sure noble Lords will be aware that the procedures are not unique to this Bill. They mirror procedures put in place through the Proceeds of Crime Act and they will be available to domestic investigators as well as to overseas authorities. It may be worth reminding ourselves that there is no parallel requirement for an annual report on the use and operation of proceeds of crime procedures, although they make much the same demands. It will take banks as long to comply with a domestic request made under that legislation as one made under the protocol. I do not recall a large demand for annual reporting on the proceeds of crime processes.
  We shall not look at customer information and account monitoring orders made under the protocol in isolation. I give that clear undertaking. As regards the provisions in the Bill, we shall have the advantage of seeing how effectively the relevant provisions of the Proceeds of Crime Act operate in practice. It is worth reminding ourselves that those measures came into effect yesterday with the launch of the asset recovery agency.
  An annual report dealing only with requests made under Chapter 4 of the Bill would not represent the whole picture. Other, less formal, more practical monitoring methods may well be better suited. It will soon become apparent if those orders place an onerous burden on the banking industry or take a very long time to execute. It is worth reminding ourselves that in general costs will be borne by the requested state, which will have to meet the cost of compliance when a request is made, unless there is a particular agreement to the contrary where exceptional costs may arise. The amendment is unnecessary. It will not reduce costs burdens. For those reasons, we oppose it.
  The noble Lord asked what other bodies we might consult. I cannot provide him with a full list at this stage. We shall consult the financial crime team which implements the Proceeds of Crime Act. We shall seek to share experience with it. We shall continue to
  220
  consult the BBA. No doubt it will wish to advise us of relevant bodies which should be consulted. Therefore, we intend to listen; we shall be sensitive as to how these measures are applied; and we shall actively pursue our commitment to consultation.
  9.15 p.m.
  Baroness Carnegy of Lour: My Lords, before the noble Lord sits down, I do not think he commented on my noble friend's point about the bankers' desire to have a level playing field. Banking, as he well knows, is an international business these days. Different arrangements in different countries pertain in banks. Will the Minister make sure that in future consultations the British Bankers' Association is asked whether the arrangements are fair vis-à-vis banks in the various countries involved? Perhaps he will comment on that matter.
  Lord Bassam of Brighton: My Lords, we are sensitive to that issue. This is a mutual agreement. One would expect that, just as there will be costs on banks in the UK, if we or other states seek information in other jurisdictions costs will be incurred there. I made it plain that the general international rule is that the requested state meets the cost of compliance with the request in most circumstances.
  To that extent, there is a commitment to a level playing field. We are sensitive to the point. We shall listen carefully to what the BBA says on that precise issue because it is only right that we should play our part in ensuring that that level playing field exists.
  Viscount Bridgeman: My Lords, I am most grateful to my noble friend Lady Carnegy for raising that point. Earlier, it was clear that countries outside the EU—indeed, outside Schengen—could be admitted to the scheme. I certainly understand the argument so persuasively advanced by the Minister for relying on parliamentary process to hold the Government to account for the operation of this part of the Bill. But this is a virtually new aspect to banking supervision in the fight against international financial crime. In our view, there is a strong case for providing a formal report, available in the Library of both Houses. To rely on a random sequence of parliamentary Questions is not an acceptable alternative. I beg to test the opinion of the House.
  9.19 p.m.
  On Question, Whether the said amendment (No. 64) shall be agreed to?
  Their Lordships divided: Contents, 23; Not-Contents, 57.

  Division No. 4

  CONTENTS

  Anelay of St Johns, B.

  Carnegy of Lour, B.

  Astor of Hever, L.

  Cope of Berkeley, L. [Teller

  Blatch,B.

  Cox, B.

  Bridgeman, V.

  Crathorne, L.

  Brooke of Sutton Mandeville, L.

  Dixon-Smith, L.

  221

  Howe, E.

  Park of Monmouth, B.

  Hunt of Wirral,L.

  Pearson of Rannoch, L.

  Lyell, L.

  Saltoun of Abernethy, Ly

  Masham of Ilton, B.

  Seccombe, B. [Teller]

  Stodart of Leaston, L.

  Northbrook, L.

  Waddington, L.

  Northesk, E.

  Wakeham, L.

  NOT-CONTENTS

  Andrews, B.

  Greaves, L.

  Barker, B.

  Grocott, L. [Teller]

  Bassam of Brighton, L.

  Hardy of Wath, L.

  Berkeley, L.

  Harris of Haringey, L.

  Borrie, L.

  Haskins, L.

  Brennan, L.

  Hogg of Cumbernauld, L.

  Brooke of Alverthorpe, L.

  Hunt of Kings Heath, L.

  Brookman, L.

  Jones, L.

  Burlison, L.

  Lester of Herne Hill, L.

  Campbell-Savours, L.

  Livsey of Talgarth, L.

  Carter, L.

  Lofthouse of Pontefract, L

  Corbett of Castle Vale, L.

  McIntosh of Haringey, L. [Teller]

  Crawley, B.

  Davies of Coity, L.

  Mackie of Benshie, L.

  Davies of Oldham, L.

  Mar and Kellie, E.

  Dixon, L.

  Orme, L.

  Dubs, L.

  Randall of St. Budeaux, L.

  Evans of Parkside, L.

  Rea, L.

  Evans of Temple Guiting, L.

  Russell, E.

  Farrington of Ribbleton, B.

  Shutt of Greetland, L.

  Faulkner of Worcester, L.

  Simon, V.

  Filkin, L.

  Smith of Leigh, L.

  Fyfe of Fairfield, L.

  Stone of Blackheath, L.

  Gale, B.

  Taylor of Blackburn, L.

  Gilbert, L.

  Thornton, B.

  Golding, B.

  Tordoff, L.

  Goldsmith, L.

  Whitty, L.

  Goodhart, L.

  Wigoder, L.

  Gould of Potternewton, B.

  Woolmer of Leeds, L.

  Resolved in the negative, and amendment disagreed to accordingly.
  9.28 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. 65:
  Page 28. line 9, at end insert "except with the permission of the Secretary of State"
  The noble Baroness said: My Lords, in moving Amendment No. 65, I shall speak also to Amendment No. 67. We now turn to a different issue: the transfer of prisoners in order that they can help in criminal investigations in participating countries overseas. I have grouped the amendments so that we can deal with the case of a prisoner in the UK being transferred abroad and with the case of a prisoner overseas being transferred here to give evidence.
  We are told that the new power is unlikely to be used frequently. I accept that it could be useful if a prisoner who is helping a UK investigation might be able to identify a site or take part in an identification parade. The clause says that, if the Secretary of State has an agreement with the competent authority of a participating country, he can issue a warrant that will make it possible to transfer a prisoner to a participating country. So far, so good, but, in Committee, I raised the
  222
  issue of the consent to the transfer given by the prisoner or by someone with the authority to act on his behalf, if he is incapable of making a decision for himself.
  The problem is that the Bill states that once the warrant has been issued, that is it— the consent cannot be withdrawn. I am aware that the Law Society is opposed on principle to a provision that makes the giving of consent an irrevocable act. My approach has been more commonplace and practical.
  My amendments today are slightly different. They are tabled in an attempt to determine whether my objective of fairness and practicality can be met within the Government's reasonable objective—
  which I fully support—of ensuring that prisoners should give evidence when it is material to a criminal investigation.
  I understand that Clause 47 builds upon existing legislation in the 1990 Act. However, I believe that the Bill gives the opportunity to plug the loophole in the original legislation at a time when we are introducing, as the noble Lord, Lord Bassam, said in Grand Committee,
  "some slightly different arrangements".—[Official Report, 27/1/03; col. GC 151.]
  The loophole to which I am referring is that consent cannot be revoked.
  What happens if the inability of the prisoner to act on his own behalf develops after consent has been given? What if he remains capable of giving consent but, having given it, becomes seriously physically ill? In Grand Committee, the Minister's response (at col. GC 151 of the Official Report of 27th January 2003) was to offer assurance that a decision to make the transfer was done only after extensive consultation with all parties.
  Surely the point is that consent may be given at a time when the person involved is well and able to participate. Trouble may develop later. The Minister admitted in Grand Committee that between the giving of consent by the prisoner and his transfer,
  "there will inevitably be some period of delay, perhaps a matter of weeks or a month at the most".—[Official Report, 27/1/03; col. GC 155.]
  That is time enough in which physical and/or mental problems could set in.
  The Minister said that unfit prisoners would not be made to travel even though there is no protection in the Bill, but then admitted that if mental problems developed,
  "it is extremely unlikely that any pressure would be put on that person to continue his journey".—[Official Report, 27/1/03; col. GC 154.]
  "Extremely unlikely" still leaves the possibility that pressure would be put on him to continue his journey.
  Surely the argument should be that the provisions on the face of the Bill make it clear how proper procedures should be in place to ensure that the right decisions are taken in the right way at the right time. That is what I have sought to do in tabling the amendments. They are simple. I have given the Secretary of State the right to decide. The amendments say that consent cannot be withdrawn once the warrant has been issued, except with the permission of the Secretary of State. That solves

  223
  the problem. If he decides not to transfer the prisoner, the opportunity is not only there, but it is actually a legal one for him.
  I hope that seems reasonable. It is definitely a probing amendment to find a practical solution. I recognise, too, that there may be circumstances in which the Secretary of State may decide that it is so vital to investigation that the prisoner should be transferred and give evidence even though he or she is ill. I do not discount that—
  where a prisoner's evidence is so vital. I beg to move.
  Lord Goodhart: My Lords, I support the amendments. They seem eminently sensible. It would be wrong to give the prisoner an absolute right to change his or her mind without giving any reason. That would encourage trouble-making. It seems that there are cases where there may be a genuine change of circumstances—illness or a number of other causes—which occur after the prisoner gave his or her original consent to transfer. It is plainly right that there should be a safety valve which would enable the consent to be withdrawn. Requiring the approval of the Secretary of State is a reasonable way of achieving that. There are alternatives, such as acquiring the approval of the court. However, I should be happy with the consent of the Secretary of State who would be bound to act reasonably in deciding whether to give that consent.
  Lord Bassam of Brighton: My Lords, on the face of it, the amendment appears entirely reasonable. I appreciate that the noble Baroness, Lady Anelay, has gone some way to change her approach, but what we should focus on is how this is to work in practice. I hope that my remarks will persuade both the noble Baroness and the noble Lord, Lord Goodhart, that as the practical application of the provision works through—we should bear in mind that this will not be a frequent event—the care with which such transfers will be conducted means that the procedure will work well and to the benefit of all.
  Having listened to the remarks of the noble Baroness and the noble Lord, I think that we are all agreed that, once granted, prisoners should not be able to withdraw consent for the practical reason that withdrawal of consent after a warrant has been issued might invalidate the warrant, so that the prisoner could not be held in legal custody. The noble Lord, Lord Goodhart, made the important point, which lends support to our position, that if we were to allow for consent to be withdrawn after a warrant had been issued, it would play fast and loose with the process and could give rise to future mischief.
  We also agree that a prisoner who has given consent to be transferred should not be transferred if, between the time of giving consent and the date of the actual transfer, he becomes ill and unfit to travel. Other exceptional circumstances might arise where, even when the prisoner has consented, it might not be appropriate for him to travel, such as in the event of a national emergency in the destination country.
  224
  However, we do not agree that it is necessary to provide for the prisoner to withdraw his consent in such circumstances.

  I wish to repeat a point that I made in Committee; that is, the UK authorities would not transfer a prisoner if he were not medically fit to travel. A prisoner would not be transferred even if he insisted that he was well enough, if a doctor did not agree. That is an important point. Not only would it not be in the interests of the prisoner to be transferred when unfit to travel, I would argue that it would not be in the interests of the investigators. What use would an unwell prisoner be if he was incapable of helping with an investigation because it was clear that he could not give coherent responses due to a medical condition?
  We take the view that there is no need to provide for the possibility of withdrawal of consent by the prisoner, even with the permission of the Secretary of State—kindly granted by the noble Baroness in her amendment. In the event that a prisoner becomes unfit to travel, the transfer will be suspended or cancelled. It is worth remembering that the warrant is generally issued at the very end of the process; that is, just prior to the transfer taking place.
  The clauses reflect the terms used in Sections 5 and 6 of the 1990 Act. Those provisions have served us well. The provision regarding consent reflects exactly the position under that Act. The provisions have worked well so far and we will approach these matters sensitively. I have given an assurance on the health and fitness of the prisoner and his ability to travel. I have also reminded noble Lords that the issuing of the warrant is important and will in almost every case take place at the end of the process. Furthermore, I repeat that we are referring here to only a small number of cases in any given year.
  That is the position. I hope that, having heard what I have said, the noble Baroness, Lady Anelay, will feel able to withdraw her amendment.
  Baroness Anelay of St Johns: My Lords, I said that it was a probing amendment. I am grateful to the Minister for his response and for making it clear that the Government do not intend that people should travel if they are incapacitated.
  I still believe that the situation is unsatisfactory in that there is not clarity about the issue of consent, but I do not intend to take the matter further. Both in Committee and on Report we have had helpful indications from the Government and I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Filkin Lord Filkin moved Amendment No.66
  Page 28, line 22, leave out "(4)" and insert "(3A)"
  On Question, amendment agreed to.
  Clause 48 [Transfer of EU etc. prisoner to assist UK investigation]:
  [Amendment No. 67 not moved.]
  Clause 51 [General interpretation]:
  Lord Filkin Lord Filkin moved Amendment No. 68:
  Page 30, line 17, leave out from "article" to "applies" and insert "3(1) of the Mutual Legal Assistance Convention"
  On Question, amendment agreed to.
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No.69:
  Page 30, line 49, at end insert—
  "(2A) Each order made under subsection (2)(b) may only designate one country."
  The noble Baroness said: My Lords, the orders under this proposed new subsection will be made to add a new country or countries to the list of participating countries. We have had many debates on what comprises a participating country. In Committee, the Government tabled welcome amendments to ensure that the orders would be subject to the affirmative procedure. That was in response to the report of the Delegated Powers and Regulatory Reform Select Committee and met the objective of amendments that I had tabled at that stage.
  However, I had one remaining concern, which is the subject of the amendment, and that is that the Government may decide to list more than one country in each of the statutory instruments. If they did that, and noble Lords felt that it was objectionable that one or more of the countries on the list should be included, they would be in the invidious position of having to throw out the whole order as we cannot of course amend statutory instruments. We would have to throw out the baby with the bath water.
  The question can justifiably be asked—would the Government do such a thing? Would they include something in an order which they knew would be objectionable alongside something that we would welcome? Their track record in these matters shows that they would. In Grand Committee I gave the example of changes to the TV licence fee, where an increase in the level of the licence fee above the usual rate was introduced at the same time and in the same order as the system whereby those over 75 were exempt from paying for the licence.
  I know that that order was introduced by the DCMS, but is the Home Office any better? I am afraid it is not. The Terrorism Act 2000 allows for the same all-encompassing kind of order. Mr Jack Straw proscribed 15 or so terrorist organisations all at once back in 2001. As the Minister will recall, we on these Benches fully supported the Government on that then and we continue to support them. But Labour Back-Benchers, particularly in another place, were not so supportive of the Government at that stage. They disliked intensely the fact that the order was not amendable.
  Given the extension of the proceedings in cooperation on international matters in the Bill, we shall need to scrutinise very carefully the list of participating countries. It is right that any statutory instrument should deal with only one country at a time.
  The Minister rather side-stepped this issue in the letter he sent to noble Lords on 6th February. He confirmed that the Government,
  "might wish indeed to designate different countries at different times in respect of different parts of the Bill, and the Bill would allow this".
  That is exactly the point. I agree that the Bill allows that, and that is what I am worried about for the reasons that I have given. I beg to move.
  Lord Goodhart: My Lords, I support the amendment. I remember in particular the orders under the Terrorism Act which contained a number of suspected terrorist organisations. Although we were on that occasion happy to agree that all of them should be included on the list, we were also concerned that there was a possibility that in other circumstances there might be names on such a list which we would not wish to see included. We believe that similar considerations apply to the designation of countries for the purposes set out in the Bill.
  9.45 p.m.
  Baroness Carnegy of Lour: My Lords, I support the amendment as well. The very nature of these orders means that the decision should be made clearly and should not be divisible into two or three parts on which the House might take different views. It is a misuse of our procedure to allow such a thing. The Government would be very wise to accept this amendment or one which has the same effect. It is really quite important.
  Lord Bassam of Brighton: My Lords, the effect of the amendment would be that an order made to designate non-EU countries as participating countries in relation to any provision of this part could relate to only one country. This point was raised in Grand Committee when concern was expressed that an order might list a number of countries but one on the list might be objectionable to some members. The whole order might consequently be rejected, which would waste time and money. That being the case, I am still not convinced by the argument. We do not feel that we can accept the amendment.
  Having to designate individual countries in separate orders subject to affirmative resolution would create vastly more work than the occasional rejection of one multiple order, which in any event I cannot imagine would happen in anything other than very exceptional circumstances.
  Let us take just one clause as an example. We can designate countries as participating countries for the purpose of service of process under Clause 4. There is an article in the second additional protocol to the Council of Europe Convention on Mutual Assistance which provides for direct service in line with the M LAC provision. The Council of Europe has 44 member states and, even after enlargement, 19 will still be outside the European Union. So we could be faced with the prospect of designating 19 countries, each in individual orders, for the purpose of service of process, which is, after all, a very routine provision. Is this a sensible use of parliamentary time? I think that, on mature reflection,

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  noble Lords will conclude that it is not. For that reason, we are satisfied that orders designating multiple countries are entirely appropriate.
  I was intrigued by the parallels drawn with the terrorism legislation and the proscribed list of terrorist organisations. A rigorous appeals process was designed and allowed for in that provision. The fact that none of those organisations subsequently chose to exercise their right to go through that process is another matter. But there was full opportunity for debate on the nature of the order.
  We do not think this is an efficient and effective way of proceeding or that it would be a sensible use of parliamentary time, and I think that I have provided your Lordships with a very good example of why that is so. I hope that, having heard that, the noble Baroness, Lady Anelay, will feel able to withdraw her amendment.
  Baroness Anelay of St Johns: My Lords, I am grateful to the Minister for his response and for going into the detailed consequences of what might happen if, in the context of these orders, there were one country per order. I promise him that between now and Third Reading I will reflect on his response. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 70:
  Before Clause 52, insert the following new clause—
  "INTERNATIONAL ANTI-TERRORISM CO-ORDINATOR
  The Prime Minister shall appoint a Minister of the Crown to co-ordinate international co-operation between the United Kingdom and other countries in respect of investigations into, and the prevention of, terrorism."
  The noble Baroness said: My Lords, the amendment would insert a new clause to require the designation of a single Minister to co-ordinate the United Kingdom's efforts in international co-operation against terrorism. Noble Lords will be aware that responsibility is currently divided between several Ministers. The Prime Minister is in overall charge of intelligence and security matters. The Home Secretary is responsible for the Security Service. The Foreign Secretary is responsible for the Secret Intelligence Service and for GCHQ and the Defence Secretary is responsible for the Defence Intelligence Service. In addition, there is a ministerial committee on the security services, chaired by the Prime Minister and including the Deputy Prime Minister, the Home Secretary, the Foreign Secretary, the Defence Secretary and the Chancellor of the Exchequer. The Parliamentary Under-Secretary of State at the Foreign Office, Mr Mike O'Brien, is the junior Minister responsible for counter-terrorism issues at the Foreign Office, while the Home Secretary takes personal responsibility for terrorism policy at the Home Office. The Minister of State for the Armed Forces, Mr Adam Ingram, is responsible for intelligence and security matters at the Ministry of Defence. In addition, of course, Sir David Omand was last year appointed to the Civil Service post of security
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  and intelligence co-ordinator in the Cabinet Office. That litany alone shows how divided the issue is and how difficulty it must be for those responsibilities to be implemented effectively.
  There appears to be no senior Minister with a clear leadership role in the area. Of course I accept that the Prime Minister has overall responsibility for the work of the Government and no doubt takes a keen interest in matters related to terrorism, but it is unrealistic to expect him to supervise international co-operation in investigating and preventing terrorism on a day-to-day basis.
  The Bill and the amendment are concerned with international co-operation in the fight against crime and terrorism. My concern goes much wider. My right honourable friend Mr Oliver Letwin has for some time been calling for the appointment of a single senior political figure to co-ordinate the United Kingdom's efforts in the fight against terrorism. At this time of night, it would weary the House for me to go into further detail. The House has already devoted much attention to some technical parts of the Bill. The amendment introduces a matter of principle that I hope will find favour with the Government. At this stage it is a probing amendment to elicit a response from the Government on their overall view on these matters. I beg to move.
  Lord Goodhart: My Lords, on this occasion I do not support the noble Baroness. I am concerned about the constitutional implications of the amendment. As a matter of constitutional theory, the allocation of responsibilities between Ministers has always been a matter for the Prime Minister. It may well be right that there should be a single Minister with such responsibility, but I doubt whether it would be appropriate on this amendment to part from a long-established constitutional principle.
  Lord Filkin: My Lords, I am grateful to the noble Lord, Lord Goodhart, for his sound reminder of the constitutional proprieties on the issue. I also have a sense of déjà vu. When I was asked in the House not long ago why we did not have one person to coordinate counter-terrorism, like Tom Ridge and the Department of Homeland Security in the US, my response, if I recollect it, was, "What a good idea, but we already have one. He is called the Home Secretary".
  Although I shall go away and check, as is my wont, and burden the noble Baroness, Lady Anelay, with a further letter if I think it would benefit her, I think my answer is, in broad terms, the same. We have one senior Minister, apart from the Prime Minister, who has overall responsibility for co-ordinating the Government's efforts to counter terrorism, whether it originates abroad or is targeted at home. That person is the Home Secretary. We are all in accord with the point about the Prime Minister. While he has overall responsibilities, someone who is not so excessively burdened must have operational responsibility. From my direct experience, the Home Secretary fulfils that role clearly, strongly and powerfully.

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  Some other functions that contribute to counter terrorism have another ministerial lead over them. That is perfectly right and sensible and in no way weakens our efforts, as long as there is one senior, powerful Minister who is co-ordinating the Government's efforts and using the information to do our utmost to counter terrorism. That Minister is the Home Secretary. The fact that there are ministerial committees does not imply for a second that there is any division of responsibility. Any sane government have to have ministerial committees to ensure that there are proper processes to co-ordinate government activity. That is perfectly right, as long as it is clear who has the overall clout to bend the efforts of Ministers and officials to do— that in this case, it is the Home Secretary.
  I shall not discuss further operational matters, although I am happy to set them out in a letter, if it would help. At operational level, we try to ensure that we are strongly connected with other European Union countries, America, and other countries throughout the world, to counter terrorism, to support them in their efforts and to benefit ourselves. We are not aware of a problem to which this amendment is a solution. That does not mean that we are complacent, or believe that we could ever have total protection against terrorism. It is a fantasy to think that this proposal, which is a repackaged version of the homeland security argumentation, has merit.
  I have been robust due to the time of night, but I shall reflect on the amendment. If I can give further and better particulars, I shall be glad to write to the noble Baroness, Lady Anelay.
  Baroness Anelay of St Johns: My Lords, I am grateful to the Minister for his response. This is not a
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  repackaged homeland security measure; it goes far more broadly than that. However, I shall not argue with him on that matter.
  I was grateful to the Minister for his robust defence of the Home Secretary as being the person who carries the can. I do not know whether he has the clout, but he carries the can. We are all firmly supporting him and hope that there is no can to be carried in this regard. It is a difficult job.
  I was grateful to the Minister, too, for saying that he would write on operational matters with regard to the Government's contacts with other countries in relation to activities countering terrorism and the assistance that is available. I would be grateful for that letter, especially against the background of what is building up in the course of the next week or so. It would assist noble Lords who have taken part in this debate and might form a background to other debates that will be held in the next few weeks—perhaps under the Defence Secretary's rather than the Home Secretary's tutelage. I would like to take him up on the offer. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Bassam of Brighton: My Lords, I beg to move that further consideration on Report be now adjourned.
  Moved accordingly, and, on Question, Motion agreed to.
  House adjourned at two minutes before ten o'clock.