Crime (International Co-operation) Bill [H.L.]

HL Deb 25 February 2003 vol 645 cc141-94

3.59 p.m.

Report received.

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 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 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 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 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 moved Amendment No. 8: Page 2, line 12, at end insert— ( ) 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.

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 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 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.

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 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? 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 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 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 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 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 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 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 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 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 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 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 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.

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.

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 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 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 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 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 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 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 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.

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 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.

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 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 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 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 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 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 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 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 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.

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 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 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 moved Amendment No. 34: Page 17, line 21, at end insert— ( ) A request under subsection (1) must specify—

1. (a) the reason why it is not desirable or possible for the witness or expert to attend in person; and
2. (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 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

1. (a) the reason why it is not desirable or possible for the witness or expert to attend in person; and
2. (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.

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 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.

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.

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 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.] 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, 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 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 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 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 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 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.

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 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, 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 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 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 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.