Crime (International Co-operation) Bill [Lords]

Public Bill Committee, 10 June 2003.

Standing Committee A

Crime (International Co-operation) Bill [Lords]

Bob Ainsworth (Labour, Coventry North East)

I beg to move,

That—

(1) during proceedings on the Crime (International Co-operation) Bill [Lords] the Standing Committee shall meet when the House is sitting on Tuesdays and Thursdays at 9.10 am and 2.30 p.m.;

(2) the proceedings shall be taken in the following order, namely Clauses 1 to 15, Schedule 1, Clauses 16 to 31, Schedule 2, new Clauses and new Schedules relating to Chapters 1 to 3 of Part 1, Clauses 32 to 51, remaining new Clauses and new Schedules relating to Part 1, Clauses 52 and 53, new Clauses and new Schedules relating to Part 2, Clause 54, Schedule 3, Clauses 55 to 79, new Clauses and new Schedules relating to Part 3, Clauses 80 to 89, Schedule 4, Clause 90, Schedules 5 and 6, Clauses 91 to 95, remaining new Clauses and new Schedules, remaining proceedings;

(3) the proceedings on Clauses 1 to 15, Schedule 1, Clauses 16 to 31, Schedule 2 and new Clauses and new Schedules relating to Chapters 1 to 3 of Part 1 shall (so far as not previously concluded) be brought to a conclusion at 5.15 pm on Thursday 12th June;

(4) the proceedings on Clauses 32 to 51, remaining new Clauses and new Schedules relating to Part 1, Clauses 52 and 53, new Clauses and new Schedules relating to Part 2, Clause 54, Schedule 3, Clauses 55 to 79 and new Clauses and new Schedules relating to Part 3 shall (so far as not previously concluded) be brought to a conclusion at 6.55 pm on Tuesday 17th June;

(5) the remaining proceedings on the Bill shall (so far as not previously concluded) be brought to a conclusion at 5.15 pm on Thursday 19th June.

I welcome you to the Chair, Mr. Benton, and members of the Committee to our proceedings. I understand that there have been extensive discussions between all three parties. I am not sure whether the hon. Member for North Down (Lady Hermon) was included in them, but I hope that she will go along with the consensus that has been reached about how we divide our time to enable us properly to scrutinise the Bill. I wish to repeat the assurance given to me by my hon. Friend the Member for Nottingham, East (Mr. Heppell) that, if we have difficulty about how time has been allocated, we will consider appropriate changes to be made to accommodate the Committee and give it the maximum ability to scrutinise the Bill.

James Paice (Conservative, South East Cambridgeshire)

I repeat the Minister's welcome to you, Mr. Benton, and members of the Committee to what will be fairly short, but no doubt sharp, proceedings. I welcome the Minister back to his accustomed place in Committee, when debating other Bills. We have no criticism to make of the motion. As the hon. Gentleman said, it has been the subject of discussion. We are happy with it. There are only two knives in it, so there is scope for variation in our progress as long as we meet the criteria.

I welcome the Minister's commitment to a review, if that were necessary. However, I am sure that we can proceed with the Bill. It will not be the most exciting measure that we have debated, but I am sure that members of the Committee will do their best to make up for what the Bill lacks in excitement. A few issues will certainly give rise to contention. We shall endeavour to make them as contentious as possible so that members of the Committee will not think that their time has been wasted. We are happy with the motion, and I suggest that we proceed with the Bill.

David Heath (Liberal Democrat, Somerton and Frome)

I, too, welcome you to the Committee, Mr. Benton. For those of us who are involved regularly in the legislative incontinence of the Home Office and the Lord Chancellor's Department, it is nice to be back in the Room, albeit for a slightly briefer time than that we spent considering the Criminal Justice Bill, in which so many of us were involved.

I am also content with the programming motion. We have had the benefit of constructive discussions. I am grateful to the hon. Member for Nottingham, East, whom I fear that I constantly embarrass by saying how co-operative he is in such matters. He did a good job of ensuring that we had as good a run at the Criminal Justice Bill as was possible within the confines of a restricted timetable. I am confident that he will take the same action on this Bill.

We have serious matters to discuss about the English and Welsh jurisdictions as well in the Scottish jurisdiction. I am glad that my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael) is a member of the Committee. He knows about Scots law, as a result of which he is potentially unique in Committee. I hope that he will be listened to, especially in respect of Scottish matters. It is now best to proceed with the Bill with due dispatch.

Question put and agreed to.

Joe Benton (Labour, Bootle)

I remind hon. Members that adequate notice should be given of amendments. As a general rule, my co-Chairman and I do not intend to call starred amendments, including any that may be reached during an afternoon sitting of the Committee. I also remind members of the Committee to switch off their mobile phones.Clause 1 Service of overseas process

Clause 1 - Service of overseas process

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 1, in

clause 1, page 1, line 9, leave out

'country outside the United Kingdom'

and insert 'participating country'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following:

Amendment No. 116, in

clause 1, page 1, line 9, leave out

'country outside the United Kingdom'

and insert 'reciprocating country'.

Amendment No. 126, in

clause 13, page 8, line 25, leave out

'country outside the United Kingdom'

and insert 'reciprocating country'.

Amendment No. 127, in

clause 50, page 30, line 8, at end insert—

'( ) the country to be so designated is a signatory to and has ratified the European Convention on Human Rights'.

Amendment No. 128, in

clause 50, page 30, line 8, at end insert—

'( ) the country to be so designated is a reciprocating country under section 51(5).'.

Amendment No. 129, in

clause 51, page 31, line 9, at end insert—

'(5) In this part, a reciprocating country is a country other than the United Kingdom which has, at the time a request is received, implemented the provisions of:

(a) the Schengen Convention;

(b) the Mutual Legal Assistance Convention; and

(c) the 2001 Protocol.'.

James Paice (Conservative, South East Cambridgeshire)

I commence by craving your indulgence, Mr. Benton, in my introduction of the amendment. It is of an exploratory nature, but it tries to get to the heart of what this chapter of the Bill, and in particular clause 1, is about.

The amendment proposes leaving out the reference to

''a country outside the United Kingdom''

and restricting the provision to a ''participating country''. It is worth pointing out to the Committee, as I am sure that the Minister would do if I did not, that a similar debate was held in the other place when the Bill started its parliamentary process.

We need to go back to the Criminal Justice (International Co-operation) Act 1990. Clauses 1 and 2 of the Bill replicate section 1(1) and (2) of that Act. There is a minor alteration in the definition of process under clause 1, but the provisions mainly replicate each other, which raises the question as to their purpose in the Bill.

Since 1990, we have had the Schengen convention and the Government's accession to parts of it. Other colleagues may be tempted to go further down that road, but the fact is that the United Kingdom has acceded to some aspects of it. We have also had the mutual legal assistance convention in criminal matters 2000, which introduced different procedures. Therefore, we can understand to a degree why it is necessary to embellish the reference to procedures and process in the Bill, but I am at a loss to know why we need to replicate the whole of the first part of the 1990 Act.

Although the genesis of the Bill seems to be the Schengen convention and the mutual legal assistance convention, there does not seem to be any reference to it in clause 1. When the Bill was debated in the other place, it was suggested by Lord Filkin on behalf of the Government that if we were to restrict it as we propose in the amendment to a ''participating country'', it would mean that any country that was not participating could serve process directly on any

British citizen in this country. However, nothing in clause 1 will prevent that from happening anyway.

Clause 1 repeatedly sets up the same mechanism that has previously existed for an overseas country to serve a process on a British citizen, or someone resident in this country, via the Home Office. However, nothing in the Bill makes such a measure exclusive and states that it must be served through the Home Office. The example given in the other place was the situation of Zimbabwe. We will not go into the rights and wrongs of what is taking place there, but there is concern about the impartiality of its judicial process. It was suggested that a Zimbabwean process could be served on someone in this country without going through the Home Secretary. If the Government's argument is, once again, as it was in the other place, that Zimbabwe is not a participating country in either of the conventions to which I have referred, and that we should not have the words of our amendment in the Bill, it is not correct. The clause does not make it necessary for another country, whether that is Zimbabwe or anywhere else, to go through the Home Office. It is possible for it to do so, but it does not mean that it must. Therefore, even with the present phrasing, including the words

''a country outside the United Kingdom'',

it is still possible for another country, in whose judicial process we may have less faith, to serve a process or document directly without going through the Home Office. The role of the Home Office is not automatic, although as I understand it, that is available under the clause. I do not follow the argument that the wording should be left as open as it currently is.

The amendment would insert the words, ''a participating country'' to try to narrow the scope to include the countries involved in the Schengen agreement and the convention, which are supposed to be the genesis of this part of the Bill; it is all about improving international co-operation through those conventions. We are at risk of confusing two conventions, parts of which Britain has signed up to, with the whole of the international judicial process in different countries with which we have no conventions or mutual understandings. That is confusing. All we are doing is repeating in law something that was made law 13 years ago, before either of the conventions was enacted.

Before the Liberal Democrats speak to their amendments in the group, I shall mention discretion. There was an argument during the debate in the other place about a country such as Zimbabwe, or any other country whose judicial system we may have reservations about. Lord Filkin said:

''Clause 1(3) is not an obligatory provision. It contains the word 'may'. It always remains open to the Secretary of State to decline to comply with a request.''—[Official Report, House of Lords, 13 January 2003; Vol. 643, c. GC4.]

In other words, to continue with the same example, if Zimbabwe were to say to the British Home Secretary, ''Will you serve this process or document on somebody who is resident in the United Kingdom?'', the Home Secretary could say no. However, the helpful explanatory notes do not say that; they clearly say:

''Subsection (3) replaces section 1(2) of the 1990 Act, giving the Secretary of State . . . discretion as to how to serve the document— it may be served by post, or the chief officer of police in the relevant area may be directed to serve it personally where this is required.''

The explanatory notes do not mention discretion about whether to serve. Clause (1)(3) states:

''The Secretary of State may cause the process or document to be served by post or . . . direct the chief officer of police . . . to cause it to be personally served''.

It appears that he does not have any discretion about whether to have it served.

The arguments advanced by the Government in the other place fall completely. The Bill means that the Home Secretary cannot say suddenly that he will not serve a process because he does not think much of a particular Government or court that began the procedure. I contend that he does not have that discretion in law, and that he can decide how, but not whether, something is served. Therefore, the argument that any country with which we do not have a mutual agreement must go through the Home Office, which must then use its discretion, falls. That is why we have tabled an amendment to narrow the focus of the clause from a

''country outside the United Kingdom''

to a ''participating country''—in other words, a country with which we have the agreements to which I referred. That would create clearer legislation. As I have tried to explain, the arguments advanced in the other place to refute that do not stand up.

As I said in my opening remarks, the amendment is exploratory. I look forward to hearing what the Minister has to say, and I hope that he will not merely repeat what his colleague said in the other place, as after studying that carefully I do not believe it to be valid. I look forward to his comments, because this matter is central to the chapter of the Bill entitled ''Mutual Service of Process Etc.''

David Heath (Liberal Democrat, Somerton and Frome)

I shall speak to amendments Nos. 116 and 126 to 129, which have been tabled by my hon. Friend the Member for Orkney and Shetland and me.

It is inevitable that much of the Committee's discussion will reflect what was said in another place. Indeed, there is a degree of similarity between the amendments tabled by the hon. Member for South-East Cambridgeshire (Mr. Paice) and those tabled by his noble Friends in another place. I do not criticise that, but simply say that there are still areas where the clarity of the answers given in another place continues to allow for further questions. I am interested to hear the Minister's response to the hon. Member for South-East Cambridgeshire. What are his comments on the wording, ''participating country''? The situation is clearly blurred as to the proposed legislation's statement of intent and its potential effect were it to be interpreted in its widest sense in terms of administration.

My amendments are designed to narrow down the counties to which the arrangements will be applied. The selling point of the legislation was that it would enable mutual recognition of processes, administration

and procedures relating to legal co-operation. However, the Bill's wording appears to allow for a degree of non-reciprocity. It allows the Home Secretary to apply applications from outside the United Kingdom in a way that may not be reciprocated in the country of origin. It is important to probe the Government so that we understand exactly what they think. Why have they phrased the Bill in the way that they have?

Amendment No. 116 deals with precisely the same point about service of process under clause 1, and introduces the terms ''reciprocating country''. Amendment No. 126 does the same thing for clause 13, which covers requests for assistance from overseas authorities. Amendment No. 129 provides a simple definition of what I mean by a ''reciprocating country''—a country that is a signatory to, and has ratified, the conventions on which the legislation is, at least theoretically, based. That is precisely the selling point of the Bill, as given by the Minister.

Nick Hawkins (Conservative, Surrey Heath)

Would the hon. Gentleman agree that there is a danger that countries that might later accede to the Schengen convention would, if the amendment were made, automatically fall under the provisions? Some countries with which even the hon. Gentleman might not be entirely happy might later, as a result of some bizarre decision by the EU, accede to Schengen.

David Heath (Liberal Democrat, Somerton and Frome)

The effect of my amendment would undoubtedly be that if a country had acceded to

''(a) the Schengen Convention;

(b) the Mutual Legal Assistance Convention; and

(c) the 2001 Protocol'',

we would extend the reciprocating agreement to them, but, frankly, that does not alarm me. What alarms me are countries that do not come under those convention agreements. The agreements are fairly high hurdles. They provide for reciprocal arrangements that we understand, and we certainly have no problems with those countries that are currently signed up to them.

My precise concern is that the Bill allows the Secretary of State to nominate other countries that may not be signed up to those conventions. That is the reason for amendment No. 128, which would narrow the capacity to extend the list of participating countries beyond those currently in the club, as it were, to those countries that were fully signed-up members. We do not want to go back to primary legislation to admit new members; we simply want to ensure that the countries understand the rules and apply them in a way that this country would be happy with.

Amendment No. 127, which applies to clause 50, provides an additional safeguard. It says that if the Secretary of State wishes to designate a country, not only must it, under amendment No. 129, be a signatory to, and have ratified,

''(a) the Schengen Convention;

(b) the Mutual Legal Assistance Convention; and

(c) the 2001 Protocol'',

but it must be ''a signatory to and'' have

''ratified the European Convention on Human Rights''.

Of course, if the country were a member of the European Union, that would of necessity be the case. However, I can envisage circumstances in which the Secretary of State wished to make reciprocal arrangements with countries way beyond the European Union. I hope that the Minister will not say that that is impossible, because an example of that—the extradition treaty completed with the United States of America—was made only a few weeks ago.

The USA has many virtues, but being a signatory to the European convention on human rights is not one of them. Not only does it not accord with the human rights considerations in the European convention, but it has 51 different jurisdictions. The way that those jurisdictions apply human rights considerations in their domestic law varies enormously, yet Britain has felt able to enter into arrangements with the USA and all 51 of those jurisdictions, without consideration of the matter that we are discussing or a proper reciprocating arrangement.

This is not a hypothetical point, because undoubtedly there are countries that would want that sort of mutual recognition, process and assistance arrangements that fall far short of what we would expect from a full signatory to the conventions that we are considering. The Minister has to persuade me that we in this Committee—and those in another place—have misunderstood what the Bill states, or he has to explain what Ministers intend by seeking the latitude that the legislation provides for them by extending the terms of the mutual arrangements well beyond the core capacity of the existing Schengen countries. What is the reason for that, and how will the House of Commons be able to consider that and the appropriateness of any arrangements that are entered into? How will we ensure that everything that is applied to a British citizen in terms of the legislation of another country will equally apply in terms of our legislation in respect of the citizens of that country when they are required to assist in criminal proceedings in a UK jurisdiction?

If the Minister can assure me that I have nothing to worry about, I will be happy to withdraw the amendment: I think that there is an ambiguity here at least—and potentially more than that—and I look forward to his reply.

Bob Ainsworth (Labour, Coventry North East)

As the hon. Member for South-East Cambridgeshire said, part 1 re-enacts existing provisions of the Criminal Justice (International Co-operation) Act 1990, without making significant changes to the way that assistance is already requested and provided under that Act. Clauses 1 to 13 are such provisions.

All of these amendments deal with participating countries, and the extent to which the provision of assistance depends on reciprocity. However, their effect would be excessively to limit the level of assistance that the UK can provide. There is currently no requirement to designate countries for the purpose of service of process. That is what we are discussing here. The hon. Member for Somerton and

Frome (Mr. Heath) talked about obliging people to sign up to the European convention on human rights. This clause is about service of process—about notifying people in this country of a court activity that is going on abroad and providing assistance. It is not about anything further than that, so hon. Members should not get carried away when we deal with this part of the Bill about the potential ramifications of the co-operation that we have given since 1990, and which we propose to continue to give.

There is currently no requirement to designate countries for the purpose of service of process, or for the provision of evidence through summoning witnesses to court or executing search warrants. Under the 1990 Act, we are able to provide mutual legal assistance to any country or territory in the world in the absence of any formal treaty or agreement between us. We have no intention of restricting that policy by requiring countries to be party to any agreement with the UK, and nor do we intend the Bill explicitly to require a reciprocal arrangement. We expect that we will generally get reciprocal co-operation, but that is not a precondition. There may be circumstances in which we would wish to assist a particular state, even if it might not be able to provide precisely the same assistance to us in return.

We might wish to assist a developing country with a fraud or corruption case, and provide it with levels of assistance that it is unable to provide in return. I hope that hon. Members would not seek to restrict our ability to do that, because that could damage our ability to offer help in many pertinent cases.

James Paice (Conservative, South East Cambridgeshire)

I do not want to impose restrictions, but there is a point that I wish the Minister to address. The Bill has origins in the Schengen agreement and the European convention on mutual assistance in criminal matters. Yet, as the Minister has confirmed, we are not changing the legislation that existed before those conventions. I am puzzled about what is going on, so I hope that the Minister can explain why, if we are not changing the 1990 legislation other than in minor detail, which could have been achieved by small amendment, we are going through this process. We have seen the advent of two conventions, but I cannot see how they relate to the proposed legislation.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is right that the advent of those two conventions made so many other changes to the 1990 legislation that it was felt prudent to put them all together, rather than leave fragments remaining in other legislation, for the sake of those who would have to operate the legislation. There is no ulterior motive other than to draw things together to ensure that they exist in a user-friendly way for those who have to understand the procedures. That is better than the legislative debris left scattered around from the changes made by the conventions.

David Heath (Liberal Democrat, Somerton and Frome)

It is not the Government's intention, however, to repeal the whole of the 1990 Act. Only parts of that Act will be repealed.

Bob Ainsworth (Labour, Coventry North East)

I shall clarify that point for the hon. Gentleman, and try to satisfy him that we are doing the most appropriate thing in drawing legislation together.

Clause 1 governs the service of documents when a direct service is not used and they are sent indirectly, via the Secretary of State. As such, it will be most relevant in relation to process from countries outside the EU, because under Schengen and the mutual legal assistance convention—MLAC—obligations, EU members states will be obliged to send most of their procedural documents directly by post, without any reference to the Secretary of State.

Clause 13 deals with the receipt of incoming requests from overseas judicial authorities for assistance in obtaining evidence located in the UK. It builds on and replaces existing arrangements, setting out how requests may be dealt with and defining which authorities can make requests to the UK. The types of assistance that may be obtained by virtue of this and related clauses are no different from those under the 1990 Act. They are requests for evidence to be given to a court and for the execution of requests for search and seizure.

The amendments to clauses 50 and 51 would be highly restrictive and undermine our obligations and responsibilities in the fight against international crime. Amendment No. 128 would enable only reciprocating countries to be designated as participating countries. Amendment No. 129 defines ''reciprocating'' countries as those that have implemented the provisions of Schengen, MLAC and the protocol. That is clearly unacceptable for the reasons that I have outlined. We will already be able to assist any country with the powers contained in clauses 1 and 13, and those are the only clauses to which the term ''reciprocating'' would be added. The amendment would not break new ground, and would prevent us from assisting such countries as the USA, the 30- plus members of the Council of Europe outside of the EU, those in the Commonwealth, as well as all the other countries that assist us and that we assist without a treaty base. It would also prevent us from meeting our obligation under existing and future UN conventions.

I hope that I have addressed the requirement of the hon. Member for Somerton and Frome that we deal only with countries that give us reciprocating arrangements. Of course we desire reciprocal co-operation from other countries in these areas, and where they have the capacity to do so we will encourage them to do that, but it would be inappropriate to require them to give an absolute obligation that they will enter into reciprocating arrangements or else we will not co-operate with them.

Nick Hawkins (Conservative, Surrey Heath)

I have been listening carefully to the Minister's comments. He talked about the way in which things operate with countries outside the EU and Schengen. The Minister knows that I have been involved in banking law. Can he say whether there are particular problems with some countries with regard to the way that things have operated since the 1990 Act was introduced? I am thinking in particular of banking frauds of the type that have been perpetrated in countries such as Nigeria.

Bob Ainsworth (Labour, Coventry North East)

We attempt to assist wherever that is appropriate, and I hope that the hon. Gentleman accepts that that is the right and proper thing to do. I do not want to restrict our ability to do so. As international co-operation becomes more prevalent and international crime becomes more of an opportunity, we should be looking to extend our ability to assist countries—even countries such as Nigeria—with mutual legal assistance and service of process. Why should we not offer them the opportunity to serve process on people in this country? All we are doing is notifying those people. We are not putting an obligation on them under UK law when a particular procedure is started in Nigeria, or anywhere else, and it is then open to them to seek legal advice as to how they address that. It is not for us to enforce it.

The matters of participating countries and the purpose of part 1 of the Bill were raised. Any country that is not a member state of the European Union must be designated by the affirmative resolution procedure. That is addressed in clause 50(5).

I have touched on the fact that we are only talking about service of process here: we do not go any wider than that. This question was asked: why do we not mention Schengen? We do not want to create a two-tier system. We have made changes that reflect the requirements of Schengen and the mutual legal assistance convention. It makes no sense to have separate arrangements for serving process from EU countries and the rest of the world: that would make for confusion and unnecessary extra work.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the Minister for his exposition so far. However, that is my sticking point. There should be an explicit two-tier arrangement; otherwise, what is the point of Schengen? The Schengen arrangements stand alone as very full mutual and reciprocal arrangements. Arrangements outside Schengen are discretionary: they place a high requirement on the Secretary of State to apply his discretion as to whether the service of process is appropriate. The basic architecture of the Bill is deficient in that respect.

Bob Ainsworth (Labour, Coventry North East)

There is nothing to stop a foreign country seeking to serve process directly. We cannot stop a court in another country sending through the post the facts of what is going on in a court in that country. We would like them to come through the central process—to be part of our arrangements with them, and to offer them assistance in finding people in order to serve that process and make them aware of it. Those facilities are discretionary. There is no requirement on the Secretary of State to serve process. He may not be able to find the people on whom we are seeking to serve process. Enabling them to come through a central authority is of assistance to them and to ourselves, as we are helping to regulate the information that has been received and can give assistance when appropriate.

Nick Hawkins (Conservative, Surrey Heath)

What the Minister has said further clarifies my point. I am thinking of countries such as Nigeria, which has sometimes been described as a failed state, and where there are suspicions that parts of the state may be working with fraudsters. Will the

Minister reassure us that the Secretary of State will use his discretion in such cases, and will analyse each request carefully to decide whether it is appropriate to use the new centralised system?

Bob Ainsworth (Labour, Coventry North East)

There is no obligation on the Secretary of State to serve process, but in many circumstances it would not be appropriate for us to hold back information received. It would not be appropriate, even in a country where we had concerns about some of the processes, for us to say that the person should not be made aware of the process that is going on. I cannot quite think of any circumstances in which we should hold back that information—not even in the case of countries of the kind that the hon. Gentleman describes.

Nick Hawkins (Conservative, Surrey Heath)

Perhaps I am not explaining my point very well. What I am concerned about is the apparatus of the British state passing on something that might be dubious in origin. The very fact that it is being passed on by the apparatus of the British state might give some credence to it that it would not have otherwise. My concern is whether the Secretary of State, or those acting on his behalf, will look at that information and ask, ''Should we pass this on?'' The Minister says that the Secretary of State does not have to pass it on, but in practice he will pretty well always do so. I hope that the Minister understands the point that I am getting at. In some other countries, there may be concerns about whether the apparatus of the state is involved in some sort of international banking fraud; that is not unknown.

Bob Ainsworth (Labour, Coventry North East)

I do not know whether what I am about to say will reassure the hon. Gentleman, but in the other place we provided the notices that are sent out to tell people that processes are being served in a particular state, and I am happy to provide the same to the Committee. Those notices make it clear that no obligation in UK law is invoked by the service made. That is clear in the document that is sent to the person involved, so there should be no doubt that we are not giving approval for procedures that we have no power to give approval for.

James Paice (Conservative, South East Cambridgeshire)

I shall pick up a final issue on this subject before I come back to another of the Minister's points. He keeps saying that there is no obligation on the Secretary of State to serve the process, but I would like him to reflect on whether that is an accurate statement. Yes, what the Minister says is entirely in accordance with what Lord Filkin said in the other place, but that does not seem to be what is implied in the explanatory notes. They suggest that the discretion is about how, not whether, to serve the document. My reading of clause 1(3) is in accordance with the explanatory notes. The ''may'' is about whether the Secretary of State causes the process

''to be served by post or''

directs

''the chief officer . . . to cause it to be personally served''.

I am not at all clear that the legislation gives the Secretary of State the discretion that the Minister alleges it does.

Bob Ainsworth (Labour, Coventry North East)

The provision does not create an absolute obligation for the Secretary of State to arrange for all processes that he receives to be served. It confers on him the discretion to do so, although that must be exercised in line with his obligations under international agreements. In general, there would be no reasons not to serve procedural documents other than practical ones, such as an inability to locate the recipient, because service does not create an obligation to comply with process under domestic law. It would, however, be possible to refuse to serve documents received from a Government who are not recognised by the UK. Such a decision would be made at the discretion of the Secretary of State, and he is free to do so.

Nick Hawkins (Conservative, Surrey Heath)

Perhaps the Minister might, after today, consider whether the explanatory notes give the contrary impression, as my hon. Friend the Member for South-East Cambridgeshire said, and whether, as we understand it, it does not give that discretion. Would the Minister and his officials consider whether the Government could table an amendment to put that in the Bill and make it clear beyond peradventure that the Secretary of State has discretion? That would reassure hon. Members who have concerns based on previous practical experience.

Bob Ainsworth (Labour, Coventry North East)

I will do that. However, that situation already applies. The Secretary of State could refuse, if a particular jurisdiction is not recognised by the UK. However, the only reason why he should not pass on the notice he has received is that he cannot do it for practical reasons.

David Heath (Liberal Democrat, Somerton and Frome)

If an Administration were not recognised by the UK, it would not be a Government under the definition in the Bill. That is not discretion. Is there another area of discretion?

Bob Ainsworth (Labour, Coventry North East)

The practical areas of discretion I have mentioned are the only ones that should apply. There is also the matter of those where we simply do not recognise the authority serving the notice.

James Paice (Conservative, South East Cambridgeshire)

I want to take the debate back to an earlier point made by the Minister, when he responded to the amendments to clause 50 tabled by the hon. Member for Somerton and Frome and talked about a statutory instrument only applying to countries that had been through a statutory instrument process. I must ask the Minister to look again at what he said. Clause 1 contains no references to any list of countries, any statutory instrument, or any secondary legislation, and neither does clause 2 on supplementary measures to deal with the service of overseas process in the UK. Clause 1 states—I return to the wording of our amendment—

''a country outside the United Kingdom''.

Clause 50(5), to which the Minister drew our attention, states:

''A statutory instrument containing an order under section 51(2)(b) designating a country other than a member State is not to be made''.

The point that the hon. Member for Somerton and Frome is making is that nowhere in clause 1 does the issue of a designated country arise. The clause as drafted refers to any country outside the UK. There is

nothing in clauses 1 or 2 that can give the Secretary of State, or the House using secondary legislation, the power to restrict those countries. The powers under clause 50 to list a designated system, to which the Minister referred, would be fine if they applied to clause 1, but they do not. He must reflect on that.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is correct. The restriction does not apply to service of process. Let us clarify that now. Service of process is potentially available for all countries, but as I have said the Secretary of State has the discretion not to serve process.

The hon. Gentleman asks whether the Secretary of State really has that discretion. He has no requirement in domestic law to serve process either under the 1990 legislation or under the Bill. We have treaty obligations that we are better at honouring than many other jurisdictions are. We want that to continue. There are few reasons why we should not serve process. I have yet to hear from Opposition Members practical reasons why we should refuse to serve process. If we have received a request for service of process from overseas, we have not heard why we should not pass that information on to the individual who is affected by it.

Nick Hawkins (Conservative, Surrey Heath)

I shall give the Minister an example. A failed state—I shall not name one to avoid being pejorative, but the Minister knows the sorts of countries I mean—could issue something that any Minister in this or any other Government would regard as dubious. If the Minister was right, and the Secretary of State would never fail to inform the person against whom proceedings were issued—the case might be part and parcel of a fraud in which people in the failed state were participating—it is essential that the Secretary of State or officials working on his behalf consider whether the documents should be passed on. We might be so suspicious of the failed state because of the involvement of its Government with fraudsters that there would be no point in passing on information, as it could put people under threat.

Bob Ainsworth (Labour, Coventry North East)

We are talking about a notice received stating that an action is taking place in a court of law and a person is being asked to appear as a witness or defendant. We might have received that information from a jurisdiction abroad, and we would send out—as we have done for the past 13 years under the old legislation—notification that that request had been received. The notification clearly says that no obligation or ramifications under UK law will be brought into effect by the notice's having been received. Why would that suggest a threat? The information that we give a person to say that a request has been received makes it clear that no UK legal obligation has been brought into effect by passing on the request.

We are not talking about taking action against, or imposing a legal obligation on, the individual, but about service of process. It would be rare to find an

instance where we should not make the individual aware that a notice has been received.

David Heath (Liberal Democrat, Somerton and Frome)

I understand the Minister's point that it may assist the individual to know that there are proceedings against him or her. I have a nasty feeling, however, that in circumstances where countries are grossly in breach of human rights the legal processes might be outside of what we would consider to be reasonable in this country. The British state apparatus—the police, the Home Office and so on—should not be accessories to the serving of that process. The state of Myanmar is a case in point. Legal processes are taking place there that are wholly unacceptable under any consideration. For the British state apparatus apparently to support such service of process is repugnant to me. However, I understand the Minister's argument that the person who should be in receipt of information might be better off knowing it than not.

Bob Ainsworth (Labour, Coventry North East)

I shall make the Committee aware of all the forms that are sent out to enact this part of the legislation. They were circulated in the House of Lords. I shall read one of the forms aloud so that the hon. Gentleman can hear the words that are used. The following is from a mutual legal assistance summons.

''The Home Office has been requested by [court/authority]in [place] to personally serve the enclosed summons on you. The summons requires you to [appear as a defendant][appear as a witness] in criminal proceedings there.

In accordance with section 1(4) of the Criminal Justice (International Co-operation) Act 1990, I am required to notify you that:

(a) You are not obliged under UK law to comply with the summons you have just been served;

(b) You may wish to seek legal advice as to the possible consequences of failing to comply with the decision under'',

for example, the law of Nigeria, South Africa or whatever country it may be, and

''(c) You may not [as a witness] have the same rights and privileges there as would be accorded to you in criminal proceedings under UK law.''

In the service, it is clear that we are not a party to such a matter. We are not lending weight to it and, under the first subsection, it is clear that the person is not obliged under UK law to comply with the summons. The hon. Member for Somerton and Frome said that, by agreeing to pass on such a request, we have in some way become a party to the request. I shall inform the Committee of the full range of forms and explain how they are used in different circumstances. I just referred to one as an example.

It is clear that we are passing on a summons that we have received from another jurisdiction, which advises the person to take legal advice and tells him that he may not have the same legal rights in that country if he chooses to comply with the summons, as he has in the United Kingdom. In taking such action, he or she is told that there is no obligation under UK law to comply with the summons. It is not the case that we are putting our weight behind the requests by passing them on.

We have had an extensive discussion. I am not absolutely certain that I have covered all the points raised by Opposition Members, and I shall intervene in

their responses if there are specific issues to which they want me to return. I hope that I have satisfied them. We are talking only about the service of process. We should not restrict that to countries where we have a treaty obligation or a reciprocal arrangement. We must consider such cases and use our discretion potentially to assist a case. It is usually in the interests of individuals to know that the proceedings are happening and to know that they are the subjects of a summons to appear before a foreign jurisdiction. We must facilitate such matters for their benefit as well as the jurisdiction that is making all the fuss.

James Paice (Conservative, South East Cambridgeshire)

As always, I am grateful to the Minister for his efforts to allay our fears and his helpful response to the points that have been raised. I entirely agree that we should co-operate internationally whenever possible. I agree that, if we become aware that a person in this country is the subject of a judicial process elsewhere, it is only right and proper that the person is informed of that and his rights and opportunities to respond if he so wishes. I have seen the documentation to which the Minister referred and I readily accept that the information provided to individuals who are subject to such a process is helpful. We shall come soon to amendments that relate to that advice but, in principle, I readily accept that such an approach is helpful and right.

The hon. Member for Somerton and Frome said that we might somehow be giving validity to a court process in a country whose court processes are not of a standard that we would want. Several such countries have been suggested. It would have been more effective if the Bill had said clearly to which countries the commitment to serve the process may apply.

I remain unconvinced by the Minister's arguments about discretion. The Government are being consistent by insisting that the Home Secretary is not required to serve the process but has the discretion whether to do so. That is not as I read it, and it is certainly not as whoever wrote the explanatory notes understands it. That is important. The Minister gave my hon. Friend the Member for Surrey Heath (Mr. Hawkins) the undertaking that, however much he did not think that it was necessary, he would have another look at the matter. I welcome that undertaking.

In light of the Minister's response, which has gone some way to allay our concerns, I am unsure whether I wish to pursue this matter: I will glance along my Bench to ensure that hon. Members are content if I do not.

David Heath (Liberal Democrat, Somerton and Frome)

I am far from content that we have got to the bottom of the architecture of this part of the Bill—the part that is directly related to the Schengen convention, that which is simply a wider tidying-up exercise, and the extent to which the previous legislation has been repealed. However, we can return to this matter.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the hon. Gentleman, and I concur with what he says.

The Minister made the interesting and novel statement that the Government did not wish to clutter us up with legislative debris. That does not

say much for a lot of the other stuff that occupies hon. Members of this House, and which future Governments will have to address. Nevertheless, it was a novel attempt to explain what the Government are doing.

Bob Ainsworth (Labour, Coventry North East)

I did not say that that was a Home Office idea: it might have come from parliamentary counsel, or somewhere else.

James Paice (Conservative, South East Cambridgeshire)

I would never venture to suggest that the Home Office has any inclination to reduce legislation—debris or any other form. Those of us who have worked in some regard at the Home Office know full well that its ability to produce legislation is—

Bob Ainsworth (Labour, Coventry North East)

Formidable.

James Paice (Conservative, South East Cambridgeshire)

Formidable. I thank the Minister for that, but I was trying to think of a polite word.

As the hon. Member for Somerton and Frome rightly stated, despite what the Minister has said, this does not replace the 1990 Act in its entirety, or even an entire part of it. Schedule 6 states which bits of the 1990 Act are repealed. It is not a whole section; it is just certain sections that are not even consecutive:

''Sections 1 to 4, 7, 8 and 11.''

By my calculations, that leaves an awful lot that is still there. Therefore, this is hardly a tidying-up exercise—it is about as much a tidying-up exercise as is the Convention on the Future of Europe.

Bob Ainsworth (Labour, Coventry North East)

It does, however, draw together all the mutual legal assistance provisions of the 1990 legislation. They are not left lying around in different pieces of legislation. That will be of assistance to people.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the Minister for bringing us back to a serious point.

I will not pursue the matter further. We have had a good discussion. Like the hon. Member for Somerton and Frome, I am not convinced that we are clear as to the relevance of Schengen and the mutual assistance convention and where they impinge on this legislation, even though that was the genesis of this new Bill on the subject. However, as we will have another opportunity to return to the matter, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 3, in

clause 1, page 2, line 9, at end insert—

'(3A) The Secretary of State may by Order 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).'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss amendment No. 8, in

clause 2, page 2, line 31, leave out '(if possible)'.

James Paice (Conservative, South East Cambridgeshire)

Amendment No. 3 relates to the circumstances in which this process is served. It would give an order-making power to the Secretary of State to make regulations to define the circumstances in which an order is deemed to have been served.

This discussion refers back to the debate that we have just had about the discretion of the Secretary of State, but it takes it a little further. I can foresee that an authority of another country may come back to the Home Office and ask, ''Have you served this process, as we have asked you to?'' The Home Office must then respond. I should have thought that it would be helpful if there were some form of basis on which the Government could respond about whether it had been satisfactorily served. We need to know exactly what the Government mean by service. Is it the issue of personal contact? They refer to ''served by post'' or, failing that, for the process or document to be personally served on the person concerned. The chief officer of police will be responsible for that. What is personal service? Does it mean that the individual must receive the process or document?

We know that the 1990 Act covers amendment No. 3, but we need to ask the Minister what the experience of the past 13 years has been, which would enable him to specify the circumstances under which a document is deemed to have been served.

That brings me to amendment No. 8. Clause 2(4)(b) contains the rather odd phrase ''if possible''—in brackets, for some reason. It states:

''(if possible) provide him with a receipt signed by the person on whom it was served.''

That is in a case where a chief officer of police causes a process or document to be served under clause 1. The phrase ''if possible'' is highly subjective, and I wonder where the judgment should be about what is possible. The purpose of leaving it out would be to ensure that there is proof that process has been served and therefore no one can claim that he did not receive it.

The Minister will probably argue that at present there is no need for a signature and that introducing such a requirement would add a level of bureaucracy. He can try to persuade me that that is the case and he will not find me supportive of unnecessary bureaucracy, but in both the amendments we need to be told what constitutes service. If the hon. Gentleman is putting in the phrase ''if possible'', we need a much greater explanation of what that means.

That raises the question of what might have happened. If, for instance, the chief officer of police had, presumably through another officer, caused an officer to go to where he believed the individual concerned lived, but the person was not there and therefore not able to sign for the document, could the officer leave it? Is that therefore defined as not ''possible''? Is it because the person does not speak English and cannot understand what is required of him when he is asked to sign for it? Is that defined as not ''possible''? The phrase ''if possible'' is a very open statement. The purpose of the two amendments is to clarify what is meant by service. If providing a signed receipt is not ''possible'', for what reasons do the Government think that it might not be possible? What would be acceptable as not ''possible''?

Bill Wiggin (Conservative, Leominster)

It seems to me that we are not looking at a shopping list that Mrs. Wiggin might take to Tesco. Could she get some apples, or ''if possible'' some bananas? We are talking about why such a provision must be in the Bill. If a receipt is essential, a receipt must be delivered. If a receipt is not essential, a receipt does not have to be delivered. When we legislate, we should not allow that sort of wishy-washy wording to give people who might find it difficult to provide a receipt the opt-out. Either it is important or it is not; it is black and white. Does my hon. Friend agree?

James Paice (Conservative, South East Cambridgeshire)

My hon. Friend is very lucky if his shopping lists contain the words ''if possible''; mine just tell me what to do. He is right that, if a receipt is necessary, it is necessary. That is the purpose of the amendment—to discover from the Government in what circumstances a receipt would not be deemed necessary, or when it would be not ''possible'', as the jargon of the Bill puts it, to get it signed. That is an odd phrase to use in primary legislation; I do not think that I have seen it anywhere else in legislation. I should be grateful if the Minister would explain that.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I have a few brief observations to make on the two amendments.

Amendment No. 3 is entirely sensible; it is certainly appropriate that the Secretary of State or Lord Advocate, as the case may be, should set out the procedures to be followed in a statutory instrument. If I have any criticisms to make of amendment No. 3, it is that I might have been inclined to provide ''The Secretary of State shall by Order'', but I have sat on enough of these Committees to know that the last thing that anyone wants to do, especially on the first morning, is to start hares running about the difference between ''may'' and ''shall''. I mention that merely in passing.

I have some difficulty with amendment No. 8. Having said that, I should say that I agree absolutely with everything that the hon. Member for South-East Cambridgeshire and the hon. Member for Leominster (Mr. Wiggin) said about the somewhat unusual, not to say inelegant, nature of the words ''if possible'', which appear in parenthesis. My concern is that if the two amendments were read together, the effect of amendment No. 8 would be to describe the terms of the order effecting service. That is to say, any order would have to ensure that the service was personal and that the execution of a citation order was accompanied by a receipt signed by the person on whom service had been made.

In many cases, that will be appropriate; however, in others, it will not. I can think from personal experience of a number of occasions when it would be undesirable. I think back to one case with which I was involved as a prosecutor, in which we sought to serve an indictment. The domicile citation specified in the indictment was a house that had been burned to the ground. The whereabouts of the person on whom service was to have been made were completely unknown to the police and the prosecuting authorities.

According to Scots law, it is sufficient in such circumstances simply to leave the indictment on the site of the burned-down house. There would be no question in such a case of being able to receive a signature from the relevant person; in fact, it would clearly work to the advantage of the person—who might, perhaps, be seeking to avoid citation—that he should have to sign the receipt. It is possible that the same situation would apply working the other way. I do not like the words ''if possible'', and I hope that further consideration will be given to them, but their deletion in the circumstances put forward by the hon. Member for South-East Cambridgeshire might not necessarily be desirable.

Nick Hawkins (Conservative, Surrey Heath)

I was not planning to intervene in this part of the debate, but what the hon. Gentleman said about his professional experience reminded me of a case of a similar kind. It did not relate to requests for evidence, but it did affect the issue of service and delivery of documents, and I think that it goes to strengthen the points made by my hon. Friend the Member for South-East Cambridgeshire and the hon. Member for Orkney and Shetland.

I was prosecuting a case in which the special branch had a particular interest in the defendant, because it was thought that he and his brother were members of the Provisional IRA. It was a case that related in part to driving documents. The reason why the defendant was hoping to escape prosecution was because he had said, when stopped under suspicion of a variety of offences, that he would produce his driving licence elsewhere, and the police officer who stopped him was not familiar with the geographical position of that place in the island of Ireland, and did not know whether it was in the Republic of Ireland or Northern Ireland. When the defendant said that he wanted to produce his driving licence in Monaghan in County Monaghan, the British police officer simply accepted that, not realising that County Monaghan was in the Republic of Ireland, so that was therefore not a valid response to a request to produce a driving licence at a UK police station. That demonstrates the difficulties related to service that can be found between jurisdictions. The defendant claimed in court that he had produced his driving licence at the police station in his home town in County Monaghan, but it was impossible for the UK court to obtain evidence of whether that had happened. That is a small example of the way in which territorial differences, and where documents are produced and served, can throw a huge spanner into the works of British justice.

Bob Ainsworth (Labour, Coventry North East)

I thank the hon. Members for Orkney and Shetland and for Surrey Heath for making my case for me. Amendment No. 3 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 think that such a power is necessary. The hon. Member for South-East Cambridgeshire asked me how the process has been working under current legislation. Our assessment is that it has worked well since the 1990 Act came into power. The amendment is not appropriate, as what constitutes an effective service under clause 1 is ultimately, as the hon.

Member for Surrey Heath pointed out, a matter for the law of the issuing state, not for the UK.

Clause 1 deals with documents issued by judicial authorities overseas. The law of the country in question, not that of the UK, will determine whether the document has been served. Issuing authorities may request a particular means of service. In practice, we expect most documents from EU countries to bypass entirely a central authority. The clause applies only where documents are not sent directly but via the Secretary of State. In those circumstances, the issuing state will request a particular form of service: either postal or, because of the requirements of the case, 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, and 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 effect of amendment No. 8 would be to make personal service of process valid only if the person carrying out the service obtained a receipt signed by the person on whom it was served. Although the Government understand the reason for the amendment—to safeguard the rights of the recipient—we know from current practice that it would create unnecessary barriers to service of process.

The wording of clause 1 replicates the arrangements set out in the 1990 Act. There are occasions where a person flatly refuses to sign a receipt, even if served a document by a police officer. The Government believe that that should not be capable of rendering service invalid. Where that occurs, the constable is required to report to the UK central authority, which will record that the document was served, but that the recipient refused to sign the receipt, and will inform the overseas authority. All information—the manner in which the document was served, the date on which it was served and the fact that the person refused to sign—will be passed on. If we added a requirement for signature, we would effectively allow people to deny service for the reasons that the hon. Member for Orkney and Shetland mentioned. The argument that service should be judged by UK law was clearly taken apart by the examples given by the hon. Member for Surrey Heath. The authority in the issuing state must be satisfied, because under its law it will be dealing with the case.

Nick Hawkins (Conservative, Surrey Heath)

I understand what the Minister is saying about the circumstances that he is advancing, but perhaps he misunderstood the import of what I was seeking to put forward—my point was to the opposite effect. In the case about which I spoke, if there had been a requirement for the Irish police to provide a receipt, there would have been clear evidence to help the UK court make a decision.

Bob Ainsworth (Labour, Coventry North East)

We must frame our requests to the Irish authorities in such a way that the UK court is satisfied that service has been made, and the Irish authorities must do likewise. When a case is being heard in the UK, it must be for the UK court to decide

whether the notice was served, based on the information it receives. In reverse, it must be for the Irish court to decide whether the notice was served. I am sure that the hon. Gentleman can understand that.

James Paice (Conservative, South East Cambridgeshire)

I am grateful for the Minister's response. As my hon. Friend the Member for Surrey Heath has just said, it was a little unwise for the Minister to suggest that my hon. Friend was seeking to undermine the amendment. He was actually supporting the point that I made about the words, ''if possible''.

On amendment No. 3, I follow the Minister's reasoning when he says that it is for the issuing court to decide whether process was served properly. Nevertheless, if the Secretary of State had included something on the form that that could take, the Bill would have been considerably enhanced. I accept the comment of the hon. Member for Orkney and Shetland that simply removing the words ''if possible'' would perhaps circumvent that, because the clause would then start to stipulate what service means. As I said in my opening remarks, the gist of amendment No. 8 is to ascertain what the Government mean by the words ''if possible''. As the hon. Gentleman said, that is vague, inelegant wording. In the Minister's example of where service is not possible, the recipient abjectly and flatly refuses to sign it. No Member would say that recipients should be able to get away with that. They should not be able to stand with their hands in their pockets and say, ''I am not taking it. I am not signing for it.'' That should be deemed to be service, and it could be dealt with by amendment No. 3. In the same way, the example of where it was not possible to get a receipt could also be dealt with.

There are many, and much looser, situations in which it would not be possible to get a receipt, or where that might be deemed to be so, for which it would be helpful if things were written down. The hon. Member for Orkney and Shetland referred to Scottish law, under which leaving a document on a burned-out site appears to be adequate. I was not aware of that, but I suspect that some people would question whether that method of service was adequate. However, if that is what Scottish law says, so be it.

Some definition would have been helpful, but having said that, this is not a major group of amendments and I do not wish to detain the Committee any longer. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.

Clause 2 - Service of overseas process: supplementary

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 4, in

clause 2, page 2, line 20, after 'stating', insert 'in ordinary language'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following:

Amendment No. 5, in

clause 2, page 2, line 21, leave out 'indicating' and insert 'stating in ordinary language'.

Amendment No. 6, in

clause 2, page 2, line 21, after 'seek', insert 'legal'.

Amendment No. 7, in

clause 2, page 2, line 24, leave out 'indicating' and insert 'stating in ordinary language'.

Amendment No. 117, in

clause 2, page 2, line 25, after first 'as', insert 'a party or'.

James Paice (Conservative, South East Cambridgeshire)

Almost all the amendments in the group are identical. This is something close to my heart and, I hope, to the Government's. Wherever possible, legal information given to ordinary people who are not lawyers should be provided in ordinary language. The amendments would insert such a provision in various parts of the Bill dealing with the notice being provided with the process—the notice to which the Minister referred in his comments on the first group of amendments.

We seek to clarify the form that the notices will take, and we need to ensure that those on whom the process is served are aware of its implications. The clause guarantees that there is no obligation under UK law to comply with the process, and the Minister repeated that. He also said that the notices would be quite comprehensive, but it would be helpful if the Bill stated that they had to be in ordinary language. That would build in a safeguard in the case that further redrafts were carried out by someone with a slightly different approach to such things.

I am not clear about who will be responsible for drafting the notices. Will it be the Home Office or the chief constable? Will there be a national standard, or could notices vary from officer to officer? We cannot take it for granted that ordinary language will always be used. Obviously, it is helpful where it is used, but the purpose of the plain English campaign is to promote its use.

In that respect, I was interested to discover that current legislation regularly uses the terminology ''ordinary language''. Indeed, there are 72 instances in current legislation. I am the first to accept that it is not in the 1990 Act, even though I am obviously defensive about legislation that was passed by the Conservative Government. Of course, if the Government think that such legislation cannot be improved on, we take that as some sort of merit award. However, after 13 years, even I am prepared to say that there is a little room for improvement.

By inserting the words ''ordinary language'', we would simply be pursuing the line that the Government have taken in other legislation. To stick with Home Office legislation, sections 46 and 47 of the Criminal Justice and Courts Services Act 2000 refer to courts explaining the effects of exclusion orders and drug abstinence orders in ordinary language. Section 65 of the Crime and Disorder Act 1998 requires constables to explain the effect of reprimands and final warnings in ordinary language. It is questionable whether violent football spectators will understand ordinary language, but the term is used to in the Football (Disorder) Act 2000. Many

other pieces of legislation, including many Home Office Acts, have included the phraseology ''in ordinary language''. I therefore hope that the Minister will be sympathetic to the amendments.

Grouped with them is amendment No. 6, which is in my name and those of my hon. Friends. It would insert ''legal'' to describe the advice that statutory notices would recommend people to seek when the process was served on them. Some would say that that was unnecessary and that such people would clearly seek legal advice. What other advice would they seek? Again, however, it would be helpful if the Bill stated that they should seek legal advice if they are served under an overseas process. I should be grateful if the Minister could tell us what form that guidance should take. Should the notice set out sources of advice where people should go to obtain it? They may simply want to ask their employer or the citizens' advice bureau.

There is also the issue of the legal process in the country that serves the process. Where will people obtain advice in that regard? In the debate in the other place, Lord Filkin argued that it was unnecessary to include ''legal'' in the legislation because it is already in the standard notice. If it is in the standard notice, however, it should be in legislation. I am glad that it is in the standard notice, but that does not negate the need to put it in the Bill. That the Government have decided to put it into the standard notice is a strong argument for putting it in the Bill.

The Government may argue that because ''legal'' is not in the 1990 Act we do not need it now, but there are always little ways to improve legislation. They regularly oppose amendments on the basis that they are unnecessary or that they already exist, but we are repeating part of the 1990 Act in the new legislation. If the Minister suggests that we do not need to make minor amendments, it will be a shallow excuse.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

With regard to the question of ordinary language, I accept the thrust of the hon. Gentleman's argument. However, I feel slightly uneasy that we may be heading towards a substantial body of case law on what constitutes ordinary language. Subsection (3) states:

''The process must be accompanied by a notice''.

Presumably, if a notice does not accompany the process or if the notice is defective by reason of its being written in extraordinary language, service will not have been made properly. I feel slightly uneasy about the condition being added to the process, although I accept that clarity is a virtue towards which all Government and legal documents should aspire.

I have no hesitation in supporting amendment No. 6, which would include ''legal'' before ''advice''. The notice that the Minister quoted in relation to amendment No. 1 stated that legal advice would be sought. As the hon. Member for South-East Cambridgeshire says, if it is in the notice it should surely be in the Bill. That point was well made, and I hope that the Government will come back at a later stage with a minor but not insignificant amendment on that point.

I shall speak to amendment No. 117, which is tabled in my name and that of my hon. Friend the Member for Somerton and Frome. It would insert the words ''a party or'', so that the line would read

''privileges as a party or as a witness as would be accorded to him in proceedings''.

The significant point is that subsection (1) refers to documents requiring

''a person to appear as a party or attend as a witness.''

The rights and privileges of parties and witnesses are different. If such notices are to be served, why should they refer only to the rights of witnesses and not to the rights of parties? The rights of parties, particularly in criminal proceedings, might be more significant than the rights of witnesses. The restriction of liberty stemming from a breach of rights or from an abuse of privilege might be more immediate for a party to a criminal action than would be the case for a witness. I should be interested to hear the Minister's thinking on that.

Lord Goodhart tabled an identical amendment and was told by the Minister in the other place that the provision in the Bill had been lifted more or less direct from the 1990 Act.

Bob Ainsworth (Labour, Coventry North East)

Perfect.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

We have often seen instances where both the Conservative party and the Labour party have been wrong. I fear that this may be one of them. The Government could certainly improve on what was in the 1990 Act. This is one instance where I hope that they will do so.

Bob Ainsworth (Labour, Coventry North East)

I was only pointing back to what the hon. Member for South-East Cambridgeshire said. While I accept that he did not include ''in ordinary language'' in the 1990 Act that he now defends as a perfect piece of legislation, he did include ''if possible'', to which he now objects. Therefore, things change.

Amendments Nos. 4, 5 and 7 require the letters informing recipients of overseas process to be written in ordinary language. Those letters are nothing new. The UK central authority, which is based in the Home Office, has been sending them out since the 1990 Act came into force and, of necessity, they deal with legal concepts. However, they are written in straightforward language and follow a standard format. In another place, as I mentioned, the Opposition were provided with copies of those standard letters, and I am happy to do the same for the Committee. I shall have them circulated as soon as possible, so that members of the Committee can see what is sent out under the current legislation and will continue to be sent out under the Bill.

The letters advise the recipient that the Home Office has been asked to serve the document and state that the recipient is not obliged under UK law to comply with the court's decision or to take any action. They state that the recipient may seek legal advice about the possible consequences of failing to comply with the decision under the law of the issuing state and may not have the same rights and privileges as would be accorded in criminal proceedings under UK law.

Amendment No. 6 would require the notice accompanying the process to indicate that the recipient may wish to seek legal advice. The standard notice already suggests that the recipient may do so. However, we do not believe that it would be helpful to put an explicit reference to legal advice in the Bill, as it would imply that other less formal forms of advice could not be sought. It may be appropriate for people to seek advice from an employer or a citizens' advice bureau, as the hon. Gentleman says, or, if their concerns relate to procedural matters, they may want to seek clarification from the Home Office. The drafting follows the 1990 Act.

I accept what the hon. Gentleman said about the notices being in ordinary language now. I believe that they are, although I believe that they seek clarity rather than ordinariness. However, in future somebody may find a job to do and decide—what is the latest term?—to sex the notices up. I am happy to consider whether there is a risk. If it has become a habit to put these things into legislation, perhaps we should look at that.

I am concerned about what the hon. Member for Orkney and Shetland says. We do not want to create legal redress where if the notice is not in ordinary language, or whatever form of words we choose, that is a case to be prayed in aid against it having been served in the first place. There is a potential difficulty there. If it is possible to put the concept in the Bill without creating a difficulty of that sort, I shall be more than happy to consider it. However, I shall first circulate the letters to hon. Members so that they can see how clear they are now. That might allay fears over lack of comprehension and clarity in the notices being sent out.

We considered amendment No. 117 carefully when it was raised during the Bill's passage in another place. We remain of the view that it is unnecessary. I shall try to reassure the Committee that the drafting is accurate as it stands and that the clause provides equal safeguards for defendants and witnesses. I ask the hon. Member for Orkney and Shetland to pay heed to my words; if he is not happy and still believes that there is a problem, of course we can come back to the matter and give it further consideration.

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. That is a crucial point to keep in mind. The meaning given to ''witness'' in the ''Oxford English Dictionary'' is

''person giving sworn testimony in a law court 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, which of course covers the intimidation of defendants in respect of their evidence.

We 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. 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 to a witness. That explains why subsection (1) refers to both a party to the proceedings and a witness—to ensure that the notice given under subsection (3) is given to both categories—whereas we need refer only to a witness in subsection (3) because when a defendant takes the stand, he will do so as a witness.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The Minister says ''when'' a defendant takes the stand, which is very interesting. I cannot speak for the situation south of the border, although I presume that it is the same, but in Scotland, it is a question of whether the accused chooses to take the stand. There is never any compulsion. That is a clear sign that there is a distinction to be drawn between the rights of a party and the rights of a witness.

My basic point is that if subsection (1) says

''appear as a party or attend as a witness'',

surely subsection (3) should also do so.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is legally qualified. I am not, and do not try to pretend that I am. He has already accused me of inelegance. I think that we got halfway through the Proceeds of Crime Bill before he managed to accuse me of inelegance, but he has now got me on the first morning.

I was reading out, as accurately as I could, our analysis of what the Bill will do and our view that it covers the situation. I shall reflect on what the hon. Gentleman says and seek further advice. If there is a problem, we will want to deal with it. If I become convinced that it is not covered, I shall take the issue seriously, but we do not want to redraft the legislation in a potentially confusing way if the point is covered already and a party is defended in the same way as a witness.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I am grateful to the Minister for giving way; I promise that it will be the last time on this point. If we apply the ordinary meaning of the words in subsection (3), to say that someone

''may not be accorded the same rights and privileges as a witness'',

that might, by exclusion, lead people to think that they would be accorded the same rights and privileges as a party.

Bob Ainsworth (Labour, Coventry North East)

Just as we thought seriously about the case moved by Lord Goodhart in another place, let us continue to reflect on what the hon. Gentleman has said. We think that the point is covered, but I shall seek further advice. If we think that change is necessary, we will certainly be prepared to introduce it.

David Heath (Liberal Democrat, Somerton and Frome)

My hon. Friend the Member for Orkney and Shetland has been making a strong point. At the very least, introducing the words that we are proposing cannot extend the confusion, and those considering the Bill, both here and in another place, have identified an ambiguity. Where ambiguity can be easily rectified, there is little argument against doing so.

Bob Ainsworth (Labour, Coventry North East)

At present, we are not convinced that the amendment is necessary. We think that the point is covered, and I have read the legal reasons why. The hon. Gentleman, his hon. Friends and those who advise him can reflect on what I have said, and they may come to the conclusion that the point is covered. Equally, we will think about the argument that has been advanced, and will continue to reflect on it.

Two types of privilege afforded to defendants were mentioned in Grand Committee: the privilege 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 themselves, but 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 1984, a spouse who is also charged in proceedings is not compellable. Again, this is a privilege afforded to the party as a witness. We have identified no rights and privileges that would be accorded to a party in addition to those that he would be accorded to a witness, and so we believe that the amendment is unnecessary.

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, and we are following that approach. Clause 2 is different from the 1990 Act only in that it refers to a party to the proceedings, as opposed to a defendant. That is to cover the different Scottish nomenclatures 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 in substance between the 1990 Act and the Bill.

I have talked about some of the issues that the hon. Member for Orkney and Shetland raised and asked me to think about further. I ask him to do the same, and think about whether we have covered the issue. As far as we are aware, the provision did not create a problem in 1990, and we are lifting that legislation directly. I do not believe that there is a problem; all the advice that I have received to date is that there is no problem, but we will continue to examine the case.

Sylvia Hermon (UUP, North Down)

We do not have copies of the notice that has been sent out during the past 13 years. Will the Minister reflect on the words sent out in the notice? Does the notice say that the person will have the same rights as a witness or a defendant?

Bob Ainsworth (Labour, Coventry North East)

I shall send members of the Committee the full suite of standard notices sent out. I read one of them out for the record, because it was relevant to an earlier debate. Five or six different notices are used under the 1990 legislation. I will give members of the Committee copies of all of those, so that they can see the wording.

I hope that I have said enough to satisfy the hon. Member for Orkney and Shetland that he should withdraw the amendment for now. We will, of course, continue to take on board the views that have been expressed, and we will make sure that we are not creating a difficulty; we do not believe that we are.

James Paice (Conservative, South East Cambridgeshire)

As always, the Minister has been as helpful as he possibly can, and certainly as far as the amendments in my name are concerned, he has gone a long way to assuring me. On the issue of ordinary language, I have some sympathy with what the hon. Member for Orkney and Shetland said about building up a body of case law, but the fact is that that pass has been sold.

According to ''Butterworth's'' database, there are 72 cases where the phrase ''in ordinary language'' has been used in legislation. Some examples come from the previous Conservative Government, but the vast majority are from the present Government, and of those, most examples have come from the Home Office. The Minister is inadequately briefed in this instance on the number of times the Home Office has used the phrase ''in ordinary language''. When the Minister considers inserting that in the Bill—as he said he would—he might recall that he would simply be following the precedent set by his Department.

One other example from the point of view of the hon. Member for North Down is the Justice (Northern Ireland) Act 2002, which also refers to the use of ordinary language. In that respect, whatever one's reservations might have been on the principle, the pass is sold, and there is no reason why the phrase should not be included. I look forward to the Minister agreeing to that, having studied the matter.

Sylvia Hermon (UUP, North Down)

Although the Justice (Northern Ireland) Act 2002 may include the phrase in the Bill, some of us had grave concerns about it. We have an ongoing debate as to whether ''ordinary language'' means Ulster Scots, Irish or English, so it is not a change that I welcome.

James Paice (Conservative, South East Cambridgeshire)

The hon. Lady can expand on that point when we reach the next group of amendments. They address that issue precisely, but I will not trespass on your generosity by launching into that, Mr. Benton. I understand her point, but I was simply making the point that the precedent for the use of that phrase has been set in law.

When we considered the insertion of the word ''legal'', I followed the Minister's argument with interest, and I accept that the Government may wish to seek other advice. The term ''legal'' may be construed as too prescriptive. It is terribly important that people get an explanation of the legal situation that they face with respect to British law and the obligations that might be imposed by the service of the process, and the legal implications of whatever has been served from another country. The phrase ''legal'' may directly imply that one has to employ a lawyer. The Minister and I probably share some concerns about that because neither of us are lawyers. It is important that people receive advice about the law. I hope that the Minister will reflect on that.

I listened with interest to the debate on the Liberal Democrat amendment. The amendment about ordinary language is the lead amendment. I will withdraw that but, if the Liberal Democrats want to pursue their amendment, that is a matter for them. In

the absence of any intervention, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 ordered to stand part of the Bill.

Clause 3

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 9, in

clause 3, page 3, line 1, leave out from 'Kingdom' to 'that' in line 2 and insert

'and where there is any indication or evidence'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following amendments: No. 10, in

clause 3, page 3, line 6, leave out 'an' and insert 'the'.

No. 11, in

clause 3, page 3, line 6, at end insert

'(and, if different, a language that he has reason to believe the person on whom the process is to be served understands)'.

James Paice (Conservative, South East Cambridgeshire)

We now move to what is almost a reflection of the first two clauses: the service of UK process abroad. It deals with British courts that have decided to serve a process on someone living outside the UK. The amendments all relate to the issue of language again.

Amendment No. 9 relates to subsection (3) and the person to whom the request is issued and the subjectivity of the belief that the person on whom it is served does not understand English. The amendment would insert the more comprehensive test of ''any indication or evidence''. As the provision reads at present, whether the person on whom the process has been served understands English is decided purely at the discretion of the person who has asked for the process to be issued. That is the test: there is no other safeguard. That is highly subjective.

In all this part of the Bill, which deals with the service of UK process abroad, hon. Members from all parties must be concerned about the interests of British justice, and with ensuring that people living abroad who receive process from a UK court comply with that, so that if, for example, that means returning to the UK to face trial, they do so.

Our principal concern must be to uphold British justice. Therefore, it is very important that the individual who receives the process understands what it says and means. It would be wrong for it to be taken at face value if one person—the person at whose request the process has been issued or made—believes that the person on whom it has been served does not understand English. Let us be reasonably blunt about this: some people might automatically think that such persons understand English because they live in an English-speaking country. There are many African countries where English is spoken, but that does not necessarily mean that everyone in those countries understands English, or the form of English in which the document is drafted. That returns us to the point made by the hon. Member for North Down.

That is why we drafted an amendment that would remove the purely subjective test of the assessment made by an individual and would replace it with one that states,

''where there is any indication or evidence''

that the person on whom the process is to be served does not understand English. That is a more substantive test, and it would be more likely to ensure that we know for certain whether the person on whom the process is being served is going to understand it.

The other two amendments in the group address the issue of what happens when people do not understand English. The Bill simply states that the court must be provided

''with a copy of the process, or of so much of it as is material, translated into an appropriate language.''

That is, again, far too subjective a statement about what is an appropriate language. Therefore, we have tabled two alternative amendments.

Amendment No. 10 would replace ''an'' with ''the'' to make the provision refer to ''the appropriate language''. Some effort must be made to establish what language the individual who is to receive this process understands. They may understand more than one language, but somebody needs to make an effort to establish that, rather than for it simply to be said that, ''Well, we will send it off in the local national language and we will assume that they understand that. Therefore the process is served.'' If we are interested in ensuring that the British judicial process is completed, that might not be adequate.

I offer two examples, both of which are from within the European Union, because it is not necessary to go further afield. One of them comes from just across the water in Belgium. It may be thought that French is ''an'' appropriate language for a Belgian citizen—I suspect that most people would assume that it is—but, as many of us know, a significant number of Belgian citizens do not speak French.

Robert Syms (Conservative, Poole)

The majority.

James Paice (Conservative, South East Cambridgeshire)

French is not the necessarily the first language for the majority, but I think that the majority speak it. However, I also suspect that a significant number will not necessarily understand legal documentation in French. For them, Flemish would be ''the'' appropriate language, but some might argue that French would be ''an'' appropriate language.

Similarly, in parts of Spain, Catalan or Basque, and not Spanish, may be the appropriate language. If we are attempting to ensure that the person receiving the notice understands everything in it, we must be doubly certain that it is the most appropriate language for that individual, rather than for people who live in the area. It is conceivable that such a person will not be a national of the country and will not understand that country's languages. He or she may be British and not understand English. [Interruption.] That is not necessarily a humorous remark. Many British citizens' command of English is inadequate for the judicial process.

Amendment No. 11 is a variation on the same problem. It would leave in the phrase ''an appropriate language'', but add the words

''if different, a language that he has reason to believe the person on whom the process is to be served understands''.

It is another belt-and-braces approach. We want to make sure that whoever who is in receipt of process from a British court understands it. I hope that the Minister accepts that the objectives behind the amendments are clear. They would improve the clause and ensure that the judicial process of the British courts is carried to its completion and that the obstacle of not understanding the process is properly removed from it.

David Heath (Liberal Democrat, Somerton and Frome)

I support the hon. Gentleman's general contention. It is in the interests of everyone that the process is understood, and it is in the interests of the courts. Process cannot require compulsion in the country in which it is served. There are no consequences of non-compliance and, thus, to put the notice into a form that is not understood by the individual, who is being persuaded to come to the United Kingdom to provide evidence or to provide evidence by other means in the country in which he is domiciled, is not sensible.

We must ensure that the authorities issuing the notice take all reasonable precautions to ensure that the language in which the translation is issued will be understood. There is a question mark against the present wording of the clause. Does it really ask a sufficiently searching question of the person who issues the process? For example, has the person really looked into the matter or is he making a bland assumption that a national of a particular country necessarily speaks the national language of that country? There may be plenty of evidence that that is not the case. It is in everyone's interest to ensure that matters are understood. It would be sensible to ensure that that happens more frequently by strengthening the terms of the process.

Bob Ainsworth (Labour, Coventry North East)

The intention behind the amendments is to ensure that a person overseas who receives process relating to United Kingdom criminal proceedings can understand it. The Government believe that the clause, as drafted, achieves that aim. We do not accept that the amendments would bring any benefit.

The first amendment would require the process to be translated when there was a sign or evidence that the recipient did not speak English. As drafted, the requirement for a translation exists when the issuer believes that the recipient does not speak English. That reflects the wording of article 5.3 of the mutual legal assistance convention. Under that provision, if the issuer believes that the recipient does not understand the language in which the document is written, he must have it translated into an official language of the country in which the recipient resides unless the issuer is aware that he understands only another language.

The Government consider that the drafting is correct. The requirement to provide a translation is a new safeguard. There was no requirement in the 1990 Act—a piece of perfect legislation that the hon.

Member for South-East Cambridgeshire wants to defend. Furthermore, the amendment would not put the responsibility with the person requesting the process to be issued. As the Bill is currently drafted, the responsibility is with the issuer to provide a translation whenever he believes that English is not understood.

James Paice (Conservative, South East Cambridgeshire)

I am interested in what the Minister is saying. He might like to rewind a few seconds, because he said that the Bill is in compliance with article 5.3 of the convention, but then he seemed to read it out, and it was different from what is in the Bill. Unless I misunderstood, what he read out seemed to be far more comprehensive and went much further in the direction of my amendment than the Bill.

Bob Ainsworth (Labour, Coventry North East)

I was reading from the convention, as the hon. Gentleman says, and I believe that that is the position that we will attain.

James Paice (Conservative, South East Cambridgeshire)

Why is it not in the Bill?

Bob Ainsworth (Labour, Coventry North East)

If the hon. Gentleman has any fear that the Bill does not provide the same safeguards, I will agree to consider that point again. Our intention is to follow the mutual legal assistance convention and provide the appropriate safeguards for those who do not understand English. As the hon. Member for Somerton and Frome says, it is in everyone's interests that we do exactly that.

The person making the request for process to be served will be involved in the investigation or proceedings. As he will usually have some knowledge of the person on whom he seeks to have process served, he can judge what language the recipient will understand. For example, if the process is a witness summons, the issuer will know who the witness is, and will be likely to have had previous contact with that person and the authorities in the country of residence. The person might, for example, have given a statement about a crime that he witnessed while in the UK and be subsequently requested to attend a trial and to give evidence.

There is no absolute requirement to establish in advance whether the recipient understands English but if, for example, the document is to be served on a Portuguese national residing in Portugal, the issuer is likely to believe that the recipient does not understand English and should translate the document, or the relevant parts thereof, into Portuguese. It would not be in the issuer's interests to serve process that he knows cannot be understood by the recipient, as it could not be responded to.

The second amendment would require the translation to be ''in the appropriate language'', rather than ''an appropriate language''. The Government believe that that is unnecessary. A recipient may be bilingual and, therefore, more than one language might be appropriate. For instance, a Belgian might speak French and Flemish, so a translation into either would be appropriate. Again, the convention allows for translation into one of the official languages of the member state concerned.

The third amendment seems to be redundant. It would require the language into which the service is to be translated to be one that the person on whom the process is to be served understands. An ''appropriate language'' would always be one that the recipient understands. If there were no reason to believe that the recipient understood the language into which the service had been translated, it would not be an appropriate language.

I say to the hon. Member for South-East Cambridgeshire that the fact that it is in the interests of the issuer to ensure that the processes are understood makes it likely that the issuer will seek to ascertain whether the recipient understands the language in which the notice is written. We cannot have an absolute requirement in all cases that the issuer must establish what language the person speaks. That would be burdensome on the courts and prevent service in some circumstances, which we need to avoid. I shall ensure that that position is adequately covered in the legislation as compared with the convention.

I do not want to put a requirement on the courts to issue documents in the appropriate language, as that might prevent service in circumstances where it is reasonable for service to be made. It is in the interests of the courts that everything is understood, so there is no incentive for people to be anything other than clear or for notices to be in anything other than the most appropriate language.

James Paice (Conservative, South East Cambridgeshire)

I appreciate the Minister's approach to the clause, and his undertaking to look again at the words that he read out from the convention. My point is that those words seem to go further than those in the Bill. One wonders why it was necessary for those who drafted the legislation to redraft what has already been signed up to in the convention, which was perfectly clear.

I confess to a concern about the Minister's last point. Of course it is in the interests of everybody for the system to work and for people to understand the process that it is being served on them. That is self-evident, and we should all agree on that. However, out in the real world—where people in this place do not always live—there are people, including some in the court system, who might not be so diligent about ensuring that people understand. I remind the Committee of the Home Secretary's statements on what he thinks of the current judicial process. People could jump to all sorts of conclusions about the languages that people use.

The Minister refers to people being bilingual, which is a reasonable point except for the fact that we cannot assume that somebody who to all intents and purposes is bilingual will understand deep legal jargon in both languages. I suspect that there are many Belgians who are bilingual in Flemish and French but who might not be able to understand a legal document in both languages. There are many English people, too, who cannot understand an English legal document, so to suggest that somebody who has a second, albeit fluent, language will be able to understand notices is stretching a point.

However, I appreciate the Minister's undertaking to reconsider the matter—

Bob Ainsworth (Labour, Coventry North East)

Before the hon. Gentleman resumes his place, let me clarify what he is saying. He appears to be of the view that we have deliberately rewritten the Bill in language that is not appropriate to the convention. While he has been speaking, I have been reading subsection (3) in detail. It follows the same language that is contained in the convention. Will the hon. Gentleman explain his problem with the wording?

James Paice (Conservative, South East Cambridgeshire)

It would be helpful if the Minister re-read the bit of the convention that he read earlier, rather than the Bill.

Bob Ainsworth (Labour, Coventry North East)

Well, if the hon. Gentleman sits down, I shall remark on the clause. The Bill does not follow the exact words of the convention because that would not be appropriate. However, what it achieves is exactly the same. Subsection (3) states:

''Where process is to be served outside the United Kingdom and the person at whose request it is issued or made believes that the person on whom it is to be served does not understand English, he must—

(a) inform the court of that fact, and

(b) provide the court with a copy of the process, or of so much of it as is material, translated into an appropriate language.''

That reflects the language of the convention. Under the provision, if the issuer believes that a recipient does not understand the language in which the document is written, they must translate it into the official language of the country where the recipient resides. Where is the difference?

James Paice (Conservative, South East Cambridgeshire)

That is the point.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee A

Clause 3 - General requirements for service of process

Alan Hurst (Labour, Braintree)

I remind the Committee that with this we are taking the following:

Amendment No. 10, in

clause 3, page 3, line 6, leave out 'an' and insert 'the'.

Amendment No. 11, in

clause 3, page 3, line 6, at end insert

'(and, if different, a language that he has reason to believe the person on whom the process is to be served understands)'.

James Paice (Conservative, South East Cambridgeshire)

I welcome you to the proceedings, Mr. Hurst. I am advised that my only words in my contribution before we adjourned were, ''The point is''. The point is that the purpose of the amendments is to deal with the issue of whether or not people understand the appropriate language, and in private conversation afterwards—I do not think that I am giving away too much—the Minister accused me of dancing on a pin on the difference between the phraseology in the Bill and that in the convention. There is a third form of phraseology, too. He will find that what he said was also slightly different. I would be delighted if I were able to dance on a pin. I never had such agility, even in my youngest days, and certainly not at my present age.

All Committee members will agree that it is important that the person in receipt of the process from a British court fully understands everything in it, including its meaning, its implications and what he or she should do about it. I remain unconvinced about the need for the phraseology in the Bill to be different from that in the convention, but I shall not pursue the matter and make a great fuss. There is much more to deal with this afternoon.

David Heath (Liberal Democrat, Somerton and Frome)

I ask the hon. Gentleman to indulge in more pin dancing.

I have read the clause again during the adjournment. There is nothing in it that would get the translation to the person who is required to receive it. Unlike the Scottish version in clause 5, in which the prosecutor is required to send the copy of the translation in parenthesis to the person on whom it

is served, elsewhere in Britain it only goes to the court. Will the hon. Gentleman reflect on that?

James Paice (Conservative, South East Cambridgeshire)

The pin becomes smaller.

The hon. Gentleman has alighted on an even smaller point than I made. Nevertheless, I shall consider it quickly. I admit that I had other things to do during the adjournment, but I respect his commitment to studying every nuance of the Bill. He is correct. The relevant provision simply says that if a person does not understand English, a translation is to be given to the court. That seems a little odd. Perhaps the Minister will consider that again. That is not the purpose of my amendments, however, so I cannot pursue the matter at great length.

Sylvia Hermon (UUP, North Down)

The hon. Gentleman is making a valid and valuable point, especially as it is supported by the Human Rights Act 1998, with which he will be most familiar. Under article 6, everyone in this country is entitled to a fair trial. That specifies that

''Everyone charged with a criminal offence has the following minimum rights . . . to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him''.

Whether or not the hon. Gentleman is dancing on a pin, he is making a valid point about the proper understanding of the charge against a defendant.

James Paice (Conservative, South East Cambridgeshire)

I am grateful for the hon. Lady's support. Although I was accused of dancing on a pin, what I was saying was important. Our debate has recognised that. As the hon. Lady rightly said, it is part of the human rights measures that are enshrined in legislation. I think that the Minister has taken the message on board. I hope that he reflects seriously on everything that has been said, including the point made by the hon. Member for Somerton and Frome (Mr. Heath) about whether the translation should be given to the court or to the person who should read it. I shall leave the Minister to reflect on that interesting argument. Does he wish to intervene?

Bob Ainsworth (Labour, Coventry North East)

I am a little loth to intervene, but we now have red herrings dancing on pins, and that is problematical. The hon. Gentleman is worried why the notice is to be served by the court. It is an order to put responsibility on the court that is applying for the process to be issued in the first place. We must remember that the clause applies to a process that is issued

''for the purposes of criminal proceedings by a court in England and Wales''.

The court wants the process to be served, so it should ensure that it is served in an appropriate language. The court must have the responsibility to ensure that that is the case. If the person is abroad, there will be many circumstances in which English is not the appropriate language. It must be the responsibility of the court that is asking for the process to be served to ensure that it is served in a way that can be understood.

James Paice (Conservative, South East Cambridgeshire)

That was a semi-helpful intervention.

David Heath (Liberal Democrat, Somerton and Frome)

It was not.

James Paice (Conservative, South East Cambridgeshire)

It was particularly robust of the hon. Member for Somerton and Frome to say that the

intervention was not helpful. The Minister was trying to be helpful. However, we have ample meat for when the Bill returns to the House of Commons on Report. We cannot pursue the argument of the hon. Member for Somerton and Frome along the lines of the amendments that we have debated today, but it was an important point. In the light of our discussions, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

David Heath (Liberal Democrat, Somerton and Frome)

I welcome you to the Committee, Mr. Hurst.

What did the Minister mean in his intervention? It is true that process is a result of court proceedings. However, it is clear from the wording of clause 3(3) that the person who requests the issue is the prosecutor—possibly, the defending barrister—in the court proceedings, not the court itself. There is a difficulty, so I hope that the Minister will reconsider the provision. I am sure that it is not a practical difficulty, because it is obvious that it is intended that the court should cause the translation to be sent to the person on whom the process is served. However, the Bill does not say that. It says that the prosecutor or defending counsel, or whoever is making the request, makes it to the court, along with a translation. I am asking the Minister not to enter into a debate, but to consider the matter further. Perhaps he can discuss it with his advisers. What he asserts is not what the clause says. A mismatch between the intention and the letter of the law always worries me.

Bob Ainsworth (Labour, Coventry North East)

The situation seems clear to me. I must admit that I did not spend the entire lunch break examining clause 3(3), but I will do as the hon. Gentleman suggests and re-examine the matter. I only hope that it does not dominate our proceedings on Report, which will set the House of Commons alight in no uncertain terms.

We are dealing with when proceedings in a court in England, Wales or Northern Ireland lead to the application for the process to be issued to someone abroad. In those circumstances, the person who is asking the court to do that must inform the court whether he knows that there is a problem with language and must provide the court with a translation. That puts a responsibility on the people from whom the requests originate. It gives the court the opportunity to get to know the facts and to ensure that the notice being served is in an appropriate language. That has not been problematical in the past 13 years, and the provision is a lift from existing legislation. I will do as the hon. Member for Somerton and Frome says, but I am not sure that anything fruitful will come of it.

Question put and agreed to.

Clause 3 ordered to stand part of the Bill.

Clause 4 - Service of process otherwise than by post

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 118, in

clause 4, page 3, line 23, leave out from 'Kingdom' to end of line 24 and insert

'by any method which is in accordance with Rules of Court'.

David Heath (Liberal Democrat, Somerton and Frome)

The amendment deals with the vagueness in the wording of clause 4(1), which reads:

''Process to which section 3 applies may, instead of being served by post, be served on a person outside the United Kingdom in accordance with arrangements made by the Secretary of State.''

In terms of legal process, that is extraordinarily vague, but I think that it is that way for a purpose, and there may be many circumstances in other countries that cannot reasonably be anticipated. However, the rules governing service of process in the UK are clearly set out in rules of court, and one would expect, if not the same rules of court to apply, then at very least that the Secretary of State would consider that the broad categories of alternatives that might be permissible within the legal system should be set out in the rules of court. Otherwise, we are effectively throwing away both legal control and, through the fact that the issue is a matter for resolution of the House of Commons, democratic control of the process. Perhaps ''process'' comes into these debates too often, and in too many different senses; we are talking about the process of process, or the way in which process is served.

There must be some ground rules to ensure compatibility with human rights legislation—that was mentioned by the hon. Member for North Down (Lady Hermon)—and many other things if we are to avoid challenge. That is not because there is no obligation to comply; clearly, the matter is not open to challenge in the first instance. However, once someone has come back to this country as a result of process being served, and has possibly had further processes served on him or her as a result, or has received a requirement to appear in court in the United Kingdom, the issue of whether that process was acceptable might be open to challenge, if there were no rules to govern it.

Sylvia Hermon (UUP, North Down)

To help the hon. Gentleman with the point he is making, he will, I am sure, know that 13 years ago under the Criminal Justice (International Co-operation) Act 1990, which he mentioned this morning, the words

''in accordance with arrangements made by the Secretary of State''

appear. Could the hon. Gentleman inquire of the Minister what arrangements were made by the Secretary of State to serve process during those 13 years?

David Heath (Liberal Democrat, Somerton and Frome)

That is a helpful suggestion, but I am sure that the Minister will tell us is that no problems have ensued. That will often be the case; the previous legislation has not created a great number of legal problems. I am happy that that is so, but that does not reduce our requirement, in giving the Bill proper scrutiny, to consider the matter, including whether the provisions might cause a possibility of challenge in future. If there are ways of avoiding that challenge, it is sensible for us to use them and to adopt a different

wording, if appropriate. Perhaps the Minister could satisfy the hon. Lady on that point, and say what arrangements have been used, whether they would have been in accordance with rules of court had they been applied, and how often those exceptional circumstances arise. At the very least, the Minister could give a few examples for the benefit of the Committee.

Bob Ainsworth (Labour, Coventry North East)

Welcome to the Chair, Mr. Hurst. You have arrived at what might be a rather unfortunate time. This is certainly one of the most exciting Bills that we have had to deal with.

The amendment is not acceptable. It would require documents, when not served by post, to be served in accordance with rules of court rather than with arrangements made by the Secretary of State. Specifying arrangements in statute, whether in rules of court or in any other form, has the potential to cause problems. Not specifying them has the advantage of flexibility, which it is important to retain, because different arrangements might be suitable in different circumstances.

Documents destined for countries not designated as participating countries for the purposes of the clause will be sent to the Secretary of State, who will send them to the central authority in another country, which will serve them on the recipient. There may also be other arrangements. For instance, in the case of EU-bound documents, the issuing authority will 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 the documents to the Secretary of State, who will send them on to the overseas central authority, again for onward transmission from that authority either by post or personal service.

There will inevitably be occasions on which 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 those circumstances, the Secretary of State will 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 to him incorrectly, when the simple and far more sensible solution would be for him to forward them himself. To set out such an option in statute, however, risks giving the impression to issuing authorities that it is acceptable to send all documents to the Secretary of State, as he will do the work of routing documents overseas for them. That will encourage issuing authorities not to bother using the correct procedure, which is undesirable.

We will need to issue updated guidelines for this clause and the rest of part 1, advising authorities on how to send procedural documents overseas. Guidelines are attached to existing legislation, but changes have been made so they will need to be updated. Guidance will therefore be provided on how people should perform their duties. To enshrine that

methodology in statute, however, would lead to unnecessary inflexibility in the issuing of process.

David Heath (Liberal Democrat, Somerton and Frome)

I thank the Minister for his comments, although many of them seemed to address an issue that I did not raise: whether the clause should stand part. I did not question whether the clause should stand part; I simply suggested that rather than having the wishy-washy phrase of

''arrangements made by the Secretary of State'',

that should be incorporated into the rules of court. That is hardly a radical suggestion, as it already exists for the serving of process in this country. I accept that there needs to be greater flexibility when dealing with overseas countries, but it is not acceptable for something to be stuck on a tree at the end of the road rather than sent by post. That would not be an acceptable serving of process. I would have hoped for some minimal standards that it is incumbent on the Secretary of State and others to meet in the service of process.

Bob Ainsworth (Labour, Coventry North East)

If we do not do that in guidance, how does the hon. Gentleman expect us to have the flexibility that he acknowledges is needed when dealing with authorities abroad?

David Heath (Liberal Democrat, Somerton and Frome)

Rules of court could easily lay out basic issues about the way in which process could be served.

Bob Ainsworth (Labour, Coventry North East)

In guidance?

David Heath (Liberal Democrat, Somerton and Frome)

Yes. The Minister can write the guidance. If he can do that, why cannot that be incorporated in rules of court? I genuinely do not understand what the Minister's problem is with this, although I do not propose to press the amendment to a Division. If the Minister intends to write guidance, why should that be different in kind from the circumstances that would apply within the United Kingdom, and why should it therefore not be set out in rules of court—in general terms, because extra flexibility is needed for serving a process overseas, but with basic caveats that ensure that no one is disadvantaged legally as a consequence?

The Minister has not responded to the point raised by the hon. Member for North Down. That is unsatisfactory. The civil service could have provided better substance to the Minister's remarks on this amendment. He did not address the issue that I raised either. It cannot have been a surprise that I raised it, because it was already addressed in another place in Committee, with an equally unsatisfactory conclusion.

I do not intend to proceed with this matter now, but I may have to return to it at a later stage, unless we get a more satisfactory response in the meantime. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 12, in

clause 4, page 3, line 31, leave out

'there are good reasons for thinking'

and insert

'the Secretary of State is satisfied'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss amendment No. 13, in

clause 4, page 3, line 32, leave out 'or is inappropriate'.

James Paice (Conservative, South East Cambridgeshire)

Moving on a little from the previous amendment that the hon. Member for Somerton and Frome spoke to, these two amendments address subsection (3)(c). The first of them addresses the phrase, ''good reasons for thinking''. We had a debate this morning about odd language that seems to be creeping into legislation. I am not against the modernisation of legislative language, but some of it seems incredibly woolly. To state that one of the conditions that prevents service by post is

''that there are good reasons for thinking that service by post will not be effective or is inappropriate''

begs this question: who thinks they are good reasons? What is the lodestar by which these reasons will be judged?

If we are to have arrangements laid down by the Secretary of State—as the Minister has persuaded the Committee, at least at the moment—we should adopt the same type of language that is used everywhere else in legislation and state that

''the Secretary of State is satisfied''

that service by post will not be affected. That does not mean that the Secretary of State will have to deliberate on every case. We all know that the phrase ''the Secretary of State'' also refers to his appointees and senior officials. However, that statement would be more precise than the woolly,

''there are good reasons for thinking that service by post''

is ineffective.

In the other place, there was a debate on another Home Office Bill, now the Nationality, Immigration and Asylum Act 2002, in which the word ''thinks'' was originally included. There was a long discussion about that, which resulted in the Government conceding by getting rid of that word and replacing it with ''satisfied that''—believe it or not. That is much more acceptable.

I hope that the Minister will look at this again, and accept the precedent that has been set in the other place on that legislation, as

''there are good reasons for thinking''

is a nebulous concept. That should be rephrased to state that

''the Secretary of State is satisfied that''

service by post would be ineffective. That is a clear, precise statement and gives someone the responsibility for making the decision.

Amendment No. 13 is a probing amendment that would change the next line in the clause. Perhaps the Minister could tell us what difference there is between something that is not effective and something that is inappropriate, at least in the context of serving of process, about which we are talking. As we have said earlier on other groups of amendments, all Committee members are interested in ensuring that a British process from a British court is served properly. There will be occasions on which it is not possible to serve a process by post, for various reasons including the reason given in subsection (3)(a),

''that the correct address of the person is unknown''.

According to subsection (1), the Secretary of State will lay down arrangements for dealing with that. There must be good reasons for the Secretary of State to be satisfied that service by post will not be effective. That is what matters. We are concerned about whether the service is effective and whether the person on whom the process or document is to be served actually receives it.

Peter Kilfoyle (Labour, Liverpool, Walton)

I am quite taken by the words ''good reasons''. Does the hon. Gentleman think that those words would provide a charter for lawyers to raise objections to the delivery of the process? Presumably, that could be challenged in the courts.

James Paice (Conservative, South East Cambridgeshire)

I suspect that the hon. Gentleman is correct. That is why I prefer the words,

''the Secretary of State is satisfied'',

which is the conventional phrase in such situations. The proposed legislation is full of that and the hon. Gentleman will recognise that that is a more precise statement. The words ''good reasons'' would be wide open to challenge and would be a charter for lawyers to exploit.

Similarly, who would decide whether something was inappropriate? The current form of words adds nothing to the clause and it opens up the opportunity for weakness and vagueness. What matters is that service is effective. That is covered in the subsection and I challenge the Minister to explain what the words ''or is inappropriate'' add to the effectiveness of service.

Bob Ainsworth (Labour, Coventry North East)

On amendment No. 12, the Secretary of State will not make the decision about whether a document should be served other than by post. The person requesting the process to be served—the prosecuting authority, for example—will assess whether there are good reasons why service by post would not be effective or appropriate at the time that the process is issued. A prosecuting authority might consider that direct service would be ineffective if it believed that the recipient would refuse to sign for a letter sent by a recorded delivery postal service.

On amendment No. 13, service by post might be considered inappropriate in cases where confirmation of service is a necessary procedural step in some proceedings. For example, if a document were a summons served on a defendant, personal service would prove that they were aware of the proceedings. In some circumstances that proof may enable the proceedings to commence.

The wording in subsection (3)(c) follows that of article 5(2)(d) of the mutual legal assistance convention. That puts the decision-making process about whether the postal service would be ineffective or inappropriate firmly with the requesting state. Ultimately, it is up to the issuing authority to use its discretion.

It is not the Secretary of State who will decide whether in a particular case the postal service is effective, but the person who makes the application.

James Paice (Conservative, South East Cambridgeshire)

If that is so, what arrangements will the Minister make under subsection (1)? It seems that

under the provision either the Secretary of State is making arrangements for delivery mechanisms other than by post or it will be up to someone else. I cannot see why the Secretary of State is making those arrangements, only for someone else to act differently.

Bob Ainsworth (Labour, Coventry North East)

That is the guidance that will need to be updated to cover the methods that will be used in the case of service for people overseas. The Secretary of State will not involve himself in individual cases. Guidance will be available, and arrangements and facilities will be put in place, but the decision about what is appropriate in each case will be governed by knowledge of the case and the requirement that comes back. As I have said, if it is a summons, personal service will be necessary. It will not be the Secretary of State who will make that decision, but the prosecuting authority that is seeking to use the information in court when it comes back to this country.

Peter Kilfoyle (Labour, Liverpool, Walton)

I am fascinated by what my hon. Friend has been saying. I shall take the example used earlier of Nigeria. Will he tell a simple-minded soul, such as myself, if Nigerians wanted a summons to be delivered in the United Kingdom, would they be the authority that determined how it was delivered in this country? Would they be making the decision that we would then be obliged to follow up?

Bob Ainsworth (Labour, Coventry North East)

The country overseas will request service in a manner that supports the way in which it wants to use the information in the court. If it is a summons, it will need to convince the court that something was received. It would be no use delivering it by post if it believed that receipt would be denied. Unless there are good reasons why we should refuse, we need to try to comply with requests from countries abroad; otherwise, the information that is received will not be in usable form. As I have said, that does not prove an obligation on people in UK law in any way.

The reverse also applies: we will need to request information in a way that will be usable in our courts. Therefore, it will be for the prosecuting authority in our country to decide whether service by post is appropriate. It will not be for the Secretary of State to decide in each case whether that is the most appropriate method and whether it would be effective. The onus is on the people who are making the application.

James Paice (Conservative, South East Cambridgeshire)

The Minister has explained clearly that amendment No. 12 is inappropriate because of the different responsibilities of the Secretary of State, as opposed to the court. I give him credit for convincing me on that point, but I am less convinced about the issue of inappropriateness. He argues that the post might not work because a signed receipt of a summons is needed; I should have thought that that was well covered by the phrase ''not effective'', as service would not be effective if receipt was not achieved. Nevertheless, I accept that the Minister has brought back the argument of what is already enshrined in the convention, so I will not pursue that at length. I am grateful for his explanation. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 ordered to stand part of the Bill.

Clause 5 - General requirements for effecting Scottish citation etc.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

A number of issues strike me, many of which might have been raised in relation to clause 3. I will take them in turn in the order in which they appear in the Bill. In fairness to the Minister, I do not really expect him to answer my points off the top of his head, but he might be able to do so in correspondence, which could be copied to other members of the Committee.

I draw the Committee's attention to subsection (4), which refers to

''citation or issue . . . by the court''.

Citation is always done at the request of the procurator fiscal. The only occasion that I can think of on which citation is done by the court is in relation to a means court in the event of an unpaid fine, and that is outwith the normal understanding of criminal proceedings. However, it may be that minds have been applied to the problem and have come up with some answer to it.

I should be interested to know why subsection 5(a) says:

''A citation effected outside the United Kingdom . . . must not include notice of a penalty''.

At first, I thought that that was probably slightly esoteric, because the use of notices of penalty has been extremely rare in Scotland since the passing of the Criminal Procedure (Scotland) Act 1995. However, there are a small number of usually statutory offences for which the notice of penalty still appears on the face of the complaint. Indeed, it would probably be a plea to the relevance of the complaint if the notice of penalty did not appear on the face of it. That is a contradiction, and I should be interested to know, in time, how that will be dealt with.

On the question of the citation being effective outside the United Kingdom, subsection (6) mentions that there is

''no obligation under the law of Scotland to comply with the citation'',

and the consequential part in subsection (7) states that

''failure to comply with the citation does not constitute contempt of court and is not a ground for issuing a warrant to secure the attendance of the person in question or for imposing any penalty.''

How will that work in practice? There is an obvious difficulty.

If I commit an offence for which I think I will almost certainly go to jail, the sensible thing to do would be to take myself off to some foreign country where I might well choose to keep the prosecutor informed of my whereabouts, just to ensure that he uses those provisions to serve the complaint or indictment on me. I might then tell the court that it is my intention to plead guilty. Obviously, I could not be imprisoned in my absence, so I would be instructed

by the court to appear for sentence. At that point, I might choose to stop co-operating with the court. What is the court to do in such circumstances? The citation having been effective outwith the UK in the first place, the court cannot issue a warrant for my arrest. The proceedings thereafter fall into limbo, and I can return to the United Kingdom cheerfully, thumbing my nose at the court. What is the thinking behind the provisions, and have those points been considered?

Again, the language in subsection (7) is unusual. It says:

''issuing a warrant to secure the attendance of the person in question''.

We would normally say ''a warrant for the arrest of the person''. Ultimately, the wording is for the purpose of issuing a warrant for arrest, but surely it would make better sense to keep it in line with the accepted terms employed in the criminal courts.

Bob Ainsworth (Labour, Coventry North East)

As the hon. Gentleman acknowledged, he did not really expected me to answer on issues that are to do with the Scottish version of clause 3. We have consulted the Scotland Office and the Scottish Executive on the frame of the clause, but it might be best for me to give the hon. Gentleman a commitment to again consult those with expertise on Scottish law from the Scottish Executive and Scotland Office. Of course, I will copy any reply I give him to other members of the Committee.

David Heath (Liberal Democrat, Somerton and Frome)

There is a real problem of process in dealing with Scots law in a Committee in which there are no Scottish Ministers and there is no one else who can give an authoritative view in response to the points raised by my hon. Friend the Member for Orkney and Shetland. That is not a criticism of the Minister; it is just the way that it is. However, it is important not only that matters are transmitted to the Scotland Office for comment, but that Committee members have definitive replies in good time for our discussions on Report so that we have the opportunity to raise any matters that need attention and make further progress when other Ministers and Members with expertise are available.

Bob Ainsworth (Labour, Coventry North East)

I recognise the hon. Gentleman's point, and I shall try to get information to the hon. Member for Orkney and Shetland as quickly as possible so that he can use it on Report if he is not satisfied.

On the point of fleeing abroad, the provisions relate to getting witnesses to appear in court in this country for serious crimes. Those issues are not covered in this clause or by the measures that we are discussing today, but we would seek extradition for an individual who had committed a crime in this country. I shall return to the hon. Member for Orkney and Shetland as soon as I can to address how we interpret the Scottish legal process.

Question put and agreed to.

Clause 5 ordered to stand part of the Bill.

Clause 6 ordered to stand part of the Bill.

Clause 7 - Requests for assistance in obtaining

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 17, in

clause 7, page 5, line 14, at end insert—

'2(A) A request for assistance under this section shall include information on the procedures regarding the gathering and admissibility of evidence that apply in the part of the United Kingdom where it is proposed that the evidence shall be used, and in particular shall include details of the procedures under which evidence may lawfully be obtained for use in proceedings in that part.'.

I welcome you, Mr. Hurst, to the chairmanship of the Committee. You and I are veterans of the late night last night—I admired your patience in waiting to listen to the very last speech from the Labour Back Benches on Second Reading of the Courts Bill.

I shall deal with this clause briefly, not least because my noble Friend Baroness Anelay of St. Johns canvassed some of the issues in another place. On reading the debate of 13 Janauary 2003 in another place in Hansard, columns 35 to 38, I felt that the response to my noble Friend from the Attorney-General, for whom professionally I have enormous respect—I served on an inner cabinet, which is the general management committee of the Bar Council, when the present Attorney-General was chairman of the Bar—was not satisfactory.

Amendment No. 17 would insert new subsection 2(A), which requires there to be the inclusion of

''information on procedures regarding the gathering and admissibility of evidence''.

It is important to include that in the Bill because, as Baroness Anelay pointed out, different countries have different procedures and rules on admissibility. She made the further and particularly relevant point that our rules are about to change.

My hon. Friend the Member for South-East Cambridgeshire (Mr. Paice) and I are very much aware of the work of our hon. Friends the Members for Beaconsfield (Mr. Grieve) and for Woking (Mr. Malins), who lead for the Opposition on the Criminal Justice Bill. Over several weeks, they discussed the contents of that Bill in Committee, and one of the major changes that the Government want to introduce is a change to the way in which our rules of admissibility of evidence operate. The Government are changing many of the things that those of us who qualified as lawyers were taught in leading works, such as Professor Sir Rupert Cross's work on the law of evidence and other principles that have been regarded as the centrepiece of our law for 100 years since the Victorian reforms. In light of that, it is important that the Bill states a clear position, so that authorities of other countries are routinely informed by the UK of what rules will apply to the evidence gathered in those countries once it is in the UK and ready to be used in our investigative and judicial process.

The Attorney-General said that there was no international obligation for us to provide that information, and that there was no particular reason

to believe in any given case that the court that receives the request from abroad would need that information. He suggested that it would not be sufficiently familiar with existing procedures, and that it might be unable to obtain information about them if it was in doubt. However, admissibility of evidence and the way in which these matters will be dealt with are not minor technical points.

Mr. Ainsworth indicated assent.

James Paice (Conservative, South East Cambridgeshire)

I am glad to see that the Minister acknowledges that that is the case. He always addresses these matters seriously, and I am sure that on this occasion he will do so again.

It would be tremendously helpful and important for the Bill to state a clear obligation. I am sure that the Attorney-General is right that we are not obliged to do that by any international agreements: I do not suggest that what he said in another place about that is inaccurate. However, the fact that something is not required by an international obligation does not mean that it would not be helpful. In this House, we have a duty to ensure that where there are changes to our arrangements, such as those that this law introduces, they take account of the best possible procedures that we could have.

The Bill should include something that clarifies the position, even if that is not required by any international obligations. I do not think that that will be an unnecessarily burdensome hurdle. This is an important matter, and I will listen with interest to what the Minister has to say, but I hope that he will understand the serious spirit in which I am putting this forward.

Mr. Ainsworth indicated assent.

James Paice (Conservative, South East Cambridgeshire)

The Minister indicates his assent to that, for which I am grateful to him.

Bob Ainsworth (Labour, Coventry North East)

Amendment No. 17 would place an additional requirement on requesting authorities in the UK to provide information on procedures regarding the gathering and admissibility of evidence in the relevant part of the UK. The consequence of the amendment would be that requests could be rejected for not including such information. As the Attorney-General said in the other place, there is no international obligation on us to provide that information, and there is no particular reason to believe that in every case the authority receiving the request would need the information. Requesting authorities already provide that information where they consider it appropriate or where they need particular procedures to be used to make admissible what is received.

In the other place, the Attorney-General was not saying, ''Let us not do it because we have no obligation to do so.'' What he was trying to say—and what I am saying to the Committee now—is that we have no legal obligation but if we were to include that in the Bill we would provide another hurdle for prosecuting authorities to jump in order to get evidence from abroad. Where they think that that is appropriate, it is in their own interests to seek to say in what form it needs to be gathered for the purposes of

UK law, but we need the flexibility for things to continue to be dealt with on a case-by-case basis. The hon. Gentleman's amendment takes that away and makes it an obligation in every case, irrespective of whether it is necessary.

Nick Hawkins (Conservative, Surrey Heath)

I am unsure whether I was correct in thinking that the Minister was coming to the end of his remarks, but I wanted to intervene on him to give him a chance to address this point. The Attorney-General said, on requesting authorities providing this information where they consider it to be appropriate:

''in many cases, good practice may indicate that they would do so.''—[Official Report, House of Lords, 13 January 2003; Vol. 643, c. GC37.]

If even the Attorney-General, after having stated his main objection that we have no international obligation, went on to say that about good practice, would it not be a good idea to have that good practice—which even the Attorney-General thinks is good practice—in the Bill?

Bob Ainsworth (Labour, Coventry North East)

I agree, of course, that good practice should be followed, and that prosecutors will seek to follow good practice in the issuing of the requests. However, we have no international obligation to do so, first, because that is a fact and, secondly, because if we put such matters in the Bill, a warrant may be received stating that the request is turned down if those circumstances are not met. In each request, it will not be necessary to give detailed explanations of the admissibility of evidence and the way in which it is considered allowable under English law. There will be cases when it is. Good practice should be followed, but flexibility should be allowed. We do not want requests to be turned down without good reason.

Nick Hawkins (Conservative, Surrey Heath)

The Committee will realise that I am not entirely persuaded either by what the Attorney-General said in another place or by what the Minister said this afternoon. I hope that the hon. Gentleman will continue to consider matters in light of the Attorney-General's concession to my noble Friend, the Baroness Anelay of St. Johns, in another place that good practice may dictate that such practice should usually happen. I hope that the Minister and his officials will reflect that such a provision could be included in the Bill. I know that he is reasonable and will consider matters further on Report and, who knows, we may yet win the battle if the Government tabled an amendment later in our proceedings. However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 121, in

clause 7, page 5, leave out line 32 and insert—

' ''Designated prosecuting authority'' means:

(i) the Attorney General;

(ii) the Director of Public Prosecutions;

(iii) the Director of the Serious Fraud Office;

(iv) the Commissioners of Customs and Excise;

(v) the Secretary of State for Trade and Industry;

(vi) the Attorney-General for Northern Ireland;

(vii) the Director of Public Prosecutions for Northern Ireland; and

(viii) any other prosecuting authority designated by an order made by the Secretary of State.'' '.

I dislike unnecessary secondary legislation. I dislike statutory instruments that we do not need to consider. I dislike orders being made by Ministers, when there is no need for them to do so. I may not have defined the group of prosecuting authorities correctly in the amendment; the Minister may have others in mind that I have omitted. Primary legislation can properly set out the so-called designated prosecuting authorities and avoid further secondary legislation, as that will only list exactly the same group of authorities or bodies that are in the amendment.

I wondered whether the same principle might apply to Scotland, but I am reliably informed by my hon. Friend the Member for Orkney and Shetland, who knows about such matters, that in Scotland, invariably the practice is that whatever the prosecuting authority, the matter goes through the Lord Advocate or a procurator fiscal, so the same considerations do not apply to subsection (6).

The amendment defines a list for England, Wales and Northern Ireland. I hope that I have it right; if I have omitted a body, the Minister can tell me. [Interruption.] The hon. Member for North Down is about to say that I have made an obvious omission in the case of Northern Ireland.

Sylvia Hermon (UUP, North Down)

I was not about to say that the hon. Gentleman had made a notable omission. There has, in fact, been a change, courtesy of the Justice (Northern Ireland) Act 2002, whereby we will no longer have a Director of Public Prosecutions for Northern Ireland. In fact, we will have a prosecution service for Northern Ireland, which will be known as the Public Prosecution Service for Northern Ireland—the PPSNI. That is not to be confused with the PSNI, which is the Police Service for Northern Ireland.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the hon. Lady. I say in my defence that I had not spotted that distinction, nor had the Attorney-General in another place. News about what will happen in Northern Ireland obviously takes some time to travel to the English legal establishment. I accept therefore that my list is incorrect and will need to be amended. It is the principle with which I want the Minister to agree. What is the point of having secondary legislation, if something can be put properly into a Bill, avoiding the use of a great deal of extra paper? If his argument is that it would have to be amended regularly, I must say that new prosecuting authorities do not emerge like mushrooms overnight. A new prosecuting authority being designated for this purpose would be a fairly infrequent occurrence. In any case, the secondary legislation would have to be amended. I cannot imagine under what circumstances, other than a change of nomenclature, a prosecuting authority that had the powers would not have to be set up by primary legislation. The relevant amendment to the clause could be made to add that to the list. Will the Minister explain why we must have secondary legislation to

produce a relatively brief list that is fairly confined in scope?

Nick Hawkins (Conservative, Surrey Heath)

I shall be brief.

I understand where the hon. Gentleman is coming from, with the helpful correction made by the hon. Lady. I had no problem with his amendment No. 121 until I came to sub-paragraph (viii). I agree that it would be a good thing to have a list in the Bill. However, I cannot understand why, if we are making a list, we would not want a complete list including the amendments suggested by the hon. Lady to ensure that we did not have any regulation or order-making power for the Secretary of State. Perhaps the hon. Gentleman might consider that as an even more helpful modification.

David Heath (Liberal Democrat, Somerton and Frome)

I put in sub-paragraph (viii) as a kind of get-out-of-jail-free card, in case I omitted something and so that the Minister would not tell me that it was obvious that in six months he would have to include it because I did not. I agree with the hon. Gentleman that sub-paragraph (viii) should not be used. The list should be complete, but if it is not complete there would be the alternatives of having something that would definitely need secondary legislation, or something that might need secondary legislation if the Government thought up a new wheeze. I would prefer the latter to the former.

Nick Hawkins (Conservative, Surrey Heath)

As I anticipated, the hon. Gentleman and I are arguing from a similar perspective. Both of us would prefer there to be a complete list in the Bill. I understand his temptation to include a get-out-of-jail-free card. I am, however, concerned that we should not allow more order-making powers for the Secretary of State. I want to ensure that such matters are as clearas possible in the Bill. That is normally the position of the hon. Members for Somerton and Frome and for Orkney and Shetland. They do not like Henry VIII-type clauses—those that fall to further order-making powers and secondary legislation—any more than we do. I support in general terms what the hon. Member for Somerton and Frome is up to, but I hope that the Government will see sense and get rid not only of their original version, but also sub-paragraph (viii) and give us a complete, exhaustive list, taking into account the views of the hon. Member for North Down.

Bob Ainsworth (Labour, Coventry North East)

I am enormously grateful to the hon. Member for Surrey Heath (Mr. Hawkins) for flushing out the intentions of the hon. Member for Somerton and Frome, who was pretending that the purpose of his amendment was merely to save parliamentary time. The hon. Member for Surrey Heath has managed to ascertain that that is not correct and that the hon. Member for Somerton and Frome is trying to be more restrictive.

Under the 1990 Act, the designation of prosecuting authorities was to be done by statutory instrument. We see no reason to change that arrangement. The existing designations for England, Wales and Northern Ireland will remain in place. The concerns of the hon. Member for Somerton and Frome about our unnecessarily wasting parliamentary time are ill-founded. His noble aims are already covered.

I shall make the hon. Gentleman aware of a little-known piece of legislation. Section 17(2)(b) of the Interpretation Act 1978 provides that statutory instruments made under a provision that has been re-enacted would continue to have effect if they could be made under the re-enacted provision. The hon. Gentleman's concerns about wasting parliamentary time is not a problem; we will not have to go upstairs and put exactly the same list that is contained in his amendment through a statutory instrument. That will be automatically designated under the 1978 Act.

Sylvia Hermon (UUP, North Down)

The Interpretation Act was enacted some years ago and the designation of the authorities is some 13 years old. Perhaps the Minister will ensure that in the designations referring to Northern Ireland, references to the Director of Public Prosecutions are removed and replaced with references to the Public Prosecution Service for Northern Ireland.

Bob Ainsworth (Labour, Coventry North East)

I turn to the other argument. Of course, there is a need to check that the designations are appropriate and up to date. From time to time, it may be necessary to change the list, but we believe that secondary legislation will be required for that purpose.

It may be argued by the hon. Member for Somerton and Frome that there may be more clarity if we put the original list in the Bill, but in all fairness that is not the case. If changes were made, we would wind up with two separate lists—a list that arises from the additions that we make by secondary legislation and a list of designations under the amendment.

The hon. Gentleman is not saving us parliamentary time, which he tried to suggest was his main motive. It is appropriate that we make the designations. There may be more for me to make—for instance, the Financial Services Authority has prosecuting powers and may be needed. Therefore, it is far more appropriate and flexible that that issue be dealt with by secondary legislation. I ask the hon. Gentleman to accept that.

David Heath (Liberal Democrat, Somerton and Frome)

My motives have been impugned without an alternative motive being adduced. I am not sure what the Minister considered that I was trying to do, other than to avoid the use of a statutory instrument. However, I am grateful to him for his assertion that the Interpretation Act will have effect. It is not a simple re-enactment and I do not know what flexibility there is within the Act for re-enactments. Even the guidance notes say that it develops and expands on section 3 of the 1990 Act. I anticipate that the Interpretation Act requires a law to be substantially the same as the law that it replaces, for the interpretation to work in the way in which the hon. Gentleman suggests. Obviously the hon. Gentleman has taken advice and that that is the case.

Bob Ainsworth (Labour, Coventry North East)

The designations are required to be the same. As I said, it may be that the designations need to be added to, in which case that will be done by statutory instrument. There is no added value in having part of the list under the Bill and the other part in a statutory instrument. The designations cannot be varied. They will have to be implemented by secondary legislation through statutory instrument.

David Heath (Liberal Democrat, Somerton and Frome)

I understand that, but the designation was originally for the purposes of the previous enactment. The purpose under discussion is not identical, although it is related. I am trying to ascertain whether that is allowed for without the re-issue that the hon. Gentleman mentions. He said that he can deal with it in that way. Clearly it will have to be changed for the benefit of the change in the Northern Ireland legislation. He suggested that there may be future issues in response to the changes in financial regulatory systems. I still think that primary legislation is the best place for such matters, but I understand the argument advanced by the hon. Gentleman, and I do not want to waste parliamentary time. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Nick Hawkins (Conservative, Surrey Heath)

I want to raise one brief point, Mr. Hurst. The Minister will be aware that we tabled amendment No. 18, which was subsequently withdrawn. Although we withdrew the amendment, so that it does not appear on today's amendment paper, there is a general point arising from the issue, which I think it would be relevant to raise now.

We were concerned—the Minister will be aware that the matter was debated in another place on 13 January—that subsection (7) is limited only to requests made under the 2001 protocol on information on banking transactions. We withdrew the amendment because it was explained by the Attorney-General in another place

specifically why the limitation on banking needed to exist in light of experience from previous legislation. As I mentioned when Mr. Benton was chairing the Committee this morning, I have a background as a banking lawyer, and in banking law it is particularly important to state the grounds on which the evidence is considered relevant. For the record, will the Minister say whether it would be good practice to state the reason for the request on every request? I understand what the Attorney-General said in another place, but we are talking about what is good practice so it might be helpful for the Minister to say on record that wherever possible the grounds for request should be stated openly and that that provision should not merely be restricted to banking cases.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman appears to be asking for a far more restrictive arrangement for all of the requests for assistance. He wants the same arrangement that applies for banking assistance under clause 7(7).

Clause 7(7) relates to requests

''made in reliance on Article 2 of the 2001 Protocol''

of MLAC. Such requests must, in addition to other material,

''state the grounds on which the person making the request considers the evidence specified in it to be relevant for the purposes of the investigation.''

The statement of those grounds is not necessary for the other requests under the clause. The hon. Gentleman

appears to want us to implement a set of requirements that would put a burden on the prosecuting authorities in this country—they would have to spell out the grounds in every case—but that would be restrictive and would certainly go beyond current legislation and all of our convention obligations. It would prevent us from seeking assistance in many cases where we are able to do so currently.

Nick Hawkins (Conservative, Surrey Heath)

I hope that I made it clear that I was not suggesting, as we did in another place, that we include that in the Bill. I understand what the Attorney-General said, but it would be helpful if the Minister were able to say that, in addition to the strict international obligations on the new arrangements for banking transactions, it is good practice in cases that go wider than banking for reasons for requests to be stated wherever possible. We do not have to introduce the burdensome restrictions that the Attorney-General was concerned about in responding to my noble Friend Baroness Anelay of St. Johns, but knowing that it is good practice to state the reasons will be helpful guidance to the courts.

Bob Ainsworth (Labour, Coventry North East)

With that clarification, I am more than happy to consider whether it is practical to introduce that obligation in that it does not impose unnecessary burdens. I do not want to impose burdens, such as having to state the details of the grounds on which the assistance is being sought, that could prevent us seeking assistance in cases where we ought to be able to do so.

Nick Hawkins (Conservative, Surrey Heath)

I am content with what the Minister has helpfully said. I do not want to pursue the matter further.

Question put and agreed to.

Clause 7 ordered to stand part of the Bill.

Clause 8 - Sending requests for assistance

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 19, in

clause 8, page 6, line 12, leave out 'In cases of urgency,'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following amendments:

No. 122, in

clause 8, page 6, line 15, leave out

'the Treaty on European Union'

and insert 'treaty obligations'.

No. 20, in

clause 8, page 6, line 16, at end insert—

'(4) The Secretary of State may by order make regulations prescribing the circumstances in which a situation is (or is not) to be deemed a case of urgency for the purposes of subsection (3).'.

Nick Hawkins (Conservative, Surrey Heath)

I can speak to these amendments briefly. As the Minister, Committee members and you, Mr. Hurst, will realise, amendments Nos. 19 and 20 are really alternatives to one another for the Minister and the Government to consider. We are probing the restriction in subsection (3), which amendment No. 19 would omit. As the Bill stands, the provision is restricted merely to cases of urgency, and we wonder

whether that restriction is necessary. Amendment No. 20 would provide the other way of looking at the matter: the Secretary of State could make regulations saying what is urgent. As I have already said, we are not generally in favour of giving the Secretary of State more order-making powers. If I had to plump for one amendment, I would say that I am putting more of my effort into amendment No. 19, which would be helpful.

On the question of what is urgent, perhaps it would be appropriate to mention that my hon. Friend the Member for South-East Cambridgeshire (Mr. Paice) and I had some extremely interesting and useful discussions with those involved in such issues in Holland, which we visited a year or so ago. Colleagues who know me well will be aware that I always try to wear a tie appropriate to the occasion, and I am today wearing the tie that I was given—as was my hon. Friend—by the Netherlands Centre for International Police Co-operation, which is known in Dutch as Politie, in The Hague.

We spoke to senior officers in Holland who have to deal with some of those cases, which are sometimes urgent. There was quite a lot of urgency when we were there, because we were present on the day that the Dutch Government collapsed. As my hon. Friend will remember, one of the senior officials who briefed us from the Dutch Cabinet Office had to leave the meeting because something urgent had happened—his Government had just collapsed, and he had to rush back to the office. That is not the sort of urgency that we are talking about in the Bill, but hon. Members from both sides of the House of Commons benefit enormously from the international meetings that we have to consider such issues, and how such matters are dealt with in other countries.

I hope that the Minister can understand the basis on which we are putting the issue forward. We do not think that the provision should be restricted to ''cases of urgency''. It is not necessary to have that restriction in the Bill.

I shall briefly refer to the Liberal Democrat's amendment No. 122, to which, no doubt, the hon. Member for Somerton and Frome will speak in a moment, and which is in this group. The Liberal Democrats are suggesting replacing

''the Treaty on European Union''

with ''treaty obligations''. I do not know whether there will be a split on the Liberal Democrat Benches. In a previous Committee, on which I served with the hon. Member for Orkney and Shetland, I referred to the fact that he represented the Eurosceptic tendency in his party. I do not know where the hon. Member for Somerton and Frome comes from, but I was interested to see that the amendment was tabled. I wondered whether the hon. Gentleman was looking forward to yet further treaties to the current treaty on the European Union. If he is, I am suspicious about the amendment. We will hear what he has to say, but at present I am not persuaded of the thinking, as I foresee it, behind the amendment No. 122.

David Heath (Liberal Democrat, Somerton and Frome)

The paranoia on the Conservative Benches knows no bounds; it is extraordinary.

The purpose of putting forward the amendment is that the Bill is restricting something that is to the benefit of the United Kingdom authorities, and it can only be to their benefit to be able to make requests urgently to international policing bodies for evidence to use in UK domestic proceedings. It is hardly a matter for suspicion that we might ask someone with whom we have established a treaty for information for use in UK domestic proceedings. We also want to ensure that the provision is not restricted to the existing treaty. It is quite possible that new treaties will be signed, not only in the European Union, but with countries outside it, for mutual co-operation in judicial matters. It would be a shame if it were always necessary to amend legislation to update it for international policing bodies that may be established in the future.

I have in mind a particular body, the name of which I shall not attempt to pronounce. I read the report of the proceedings in the other place, and apparently various Members of that House ''helpfully'' pronounced it differently. We were told that in the transcript without an explanation of phonetics in Hansard to tell us the correct way in which to pronounce it.

Why limit the Bill to the existing treaty when any treaty would need ratification under British law if it were to take effect? The provision could refer simply to ''treaty obligations'' and, thus, make it open-ended. After all, we are asking for help from outside, not giving it, so the obligation is not on our authorities, but on others to help us. That seems to be a good idea, although others may consider that it is tainted if it comes from one source or another, and is used in British domestic proceedings.

Bob Ainsworth (Labour, Coventry North East)

The Government do not believe that it would be helpful to set out in regulations what constitutes an urgent situation for the purposes of the clause. It is difficult to see how legislation might successfully cover all the situations in which it might be necessary to make an urgent request for assistance or what would be gained by such legislation. In one case, the request might be urgent because an initial, non-urgent request had not been responded to; in another, the possibility of new evidence might come to light late in an investigation when a trial date had already been set.

Subsection (3) implements article 6.4 of the mutual legal assistance convention, which provides that, in urgent cases, Interpol may be used. The convention does not define an urgent situation. We consider that it is right to maintain that degree of discretion. The European convention of 1959 provided that urgent requests could be transmitted via Interpol, but there was an omission from the 1990 Act. We intend to put that right by including such matters in the Bill. States are not permitted to send requests via Interpol, which is the basic reason why we are against the second amendment, which would remove urgency and allow people to go via Interpol for non-urgent cases.

The purpose of subsection (3)(b) is primarily to enable requests for assistance to be sent via Eurojust

or a national member of Eurojust in cases of urgency. Its wording reflects the wording of article 6.4 of the mutual legal assistance convention, which was drafted just before Eurojust was formally established.

Amendment No. 122 would widen the scope of the subsection by throwing it open to a body that is competent under any treaty obligation, not only the treaty on European union. We do not see the point of changing the wording in such a way. There will be provision in a treaty that may be agreed to ensure that existing arrangements of that nature under an old treaty in respect of the European Union treaty are preserved. We do not see the need to broaden the provisions to cover non-EU treaty obligations.

The function referred to is receipt of requests in urgent situations. That is a specific role, and the provision is included for the specific purpose of implementing the mutual legal assistance convention requirement. It is not designed to cover arrangements under any other international agreement. There are no other bodies outside the EU to which we would wish to extend this function. In those circumstances, all countries outside the EU will be able to use Interpol—as will we. The broadening that the hon. Gentleman suggests for future proofing against future treaty changes should be picked up in the process of those changes, and the widening is picked up by the role that Interpol rightly plays for non-EU countries.

Nick Hawkins (Conservative, Surrey Heath)

I am grateful to the Minister for giving way, and for the sensible manner in which he always approaches this matter. However, I wish to ask him about a point on the European aspect of this. Baroness Anelay of St. Johns pointed out that before the debate in another place on 13 January she had been looking at the Home Office's memorandum preparing for the temporary special European Council: she stated that the Home Office itself was saying,

''that public opinion is not yet always ready to accept that the judicial authorities and procedures of other member states are equivalent to our domestic courts, especially when our own nationals are involved.''—[Official Report, House of Lords, 13 January 2003; Vol. 643, c. GC43.]

The Minister and I have had debates about the Kalamata plane spotters, and the more recent case of David Wilson is another example involving the Greek courts. We have discussed that a lot. The European Union Committee of this House agreed with the Home Office analysis. Is there not a problem here, which the Minister must think about when he is talking about the European aspect of this?

Bob Ainsworth (Labour, Coventry North East)

I am struggling to see how some of those wider debates relate to our ability to use Eurojust or Interpol in cases where we need mutual legal assistance in urgent situations.

The hon. Gentleman is a well-known Eurosceptic who is suspicious of all kinds of things that go on on the continent, but I am unsure why he is seeking to drag this out. He has tabled two amendments. One of them removes urgency: as I have said to him, we are not allowed to do that in any case. The other one provides for us to define urgency in the Bill. Neither of them forward his suspicion of the procedures that are followed in our EU-partner countries.

Nick Hawkins (Conservative, Surrey Heath)

I intervened at that point because I thought—and I hope that I am correct—that the Minister was responding to the Liberal Democrat amendment, which he will recall that I adverted to in my opening remarks on this. When he is addressing the whole issue of future European treaties, he must consider that he is in a slight difficulty because his own Department is putting forward memorandums to European Union Committees of this House that say that there is a problem here that we have not fully addressed and Eurojust is only just beginning to do so. This goes more to the Liberal Democrat amendment than to my issues about urgency.

Bob Ainsworth (Labour, Coventry North East)

The Liberal Democrat amendment appears to suggest that there may be future treaties that would designate bobbies and we should pre-empt and, in effect, future proof the legislation against those arrangements. That would be more threatening to the hon. Gentleman's position than what we are saying: the issue of what is picked up from existing treaties would have to be dealt with in any new treaty negotiations and designations would have to be carried forward. That is the more cautious route, in line with the very sensible Home Office position.

Nick Hawkins (Conservative, Surrey Heath)

I hear what the Minister is saying, but I do not think that he understands the import of what I was suggesting in my intervention, which is that we should be more cautious than the Home Office.

Bob Ainsworth (Labour, Coventry North East)

I am fully aware of that.

Nick Hawkins (Conservative, Surrey Heath)

The Minister says that now: if he really knows what I am getting at, perhaps he was being slightly disingenuous in his earlier response.

This matter was debated in another place, and I think it will continue to be of concern, but at this stage I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Sitting suspended for a Division in the House.

On resuming—

Clause 8 ordered to stand part of the Bill.

Clause 9 - Use of evidence obtained

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 21, in

clause 9, page 6, line 33, leave out 'allowed' and insert 'make provision for'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following:

Amendment No. 22, in

clause 9, page 6, line 35, at end insert—

'(4A) The Lord Chancellor shall arrange for training in the law and procedure of such countries other than the United Kingdom as he considers appropriate to be given to judges and magistrates before they sit in proceedings where evidence is obtained pursuant to a request for assistance under section 7 is to be adduced.'.

Nick Hawkins (Conservative, Surrey Heath)

That is what I call cutting it fine.

On amendment No. 21, we suggest that the words ''make provision for'' are better than the word ''allowed''. This is a small amendment, but I believe

that the debate in another place on 13 January, at columns GC43 and 44, is important and I look forward to the Minister's response.

Amendment No. 22 is important; we want it to be included in the Bill. Proposed new subsection (4A) would insert a requirement for the Lord Chancellor to arrange training for judges and magistrates in the law and procedure of countries other than the UK before they sit in relevant proceedings. That would be helpful. In another place on 13 January, at columns GC46 and 47, a comparison was made with the relevant provisions of the Nationality, Immigration and Asylum Act 2002. Although Lord Goldsmith, the Attorney-General, suggested that the amendment was not essential, it would be helpful if it were included in the Bill.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman may now sit down and get his breath back while he listens.

The amendments seek further clarification on the gathering and use of evidence obtained abroad. The Government cannot accept either of them. In explaining why, it might be helpful if I provide the Committee with further detail about the procedures involved and the use to which evidence obtained is put.

UK authorities may request that evidence be taken in the form of sworn testimony from a witness overseas. That evidence will generally be taken in accordance with the law of the requested country, although the UK may request the country to follow certain procedures if they are a necessary prerequisite for such evidence to be admissible. Ultimately, admissibility cannot be established until the evidence is presented to the court. Under the MLAC, EU countries will be under a general obligation to comply with requests for necessary formalities and procedures to be followed, provided that they are not contrary to fundamental principles of their law. That will help to ensure that the evidence is taken in a way that is useful to the UK.

Once the evidence has been obtained in the form of a sworn witness statement, the requesting authority will decide what further action to take. In some cases, it might ask whether the witness is willing to travel to give evidence at a trial, at which they could be cross-examined. In other cases, it might seek to admit a written statement as evidence. Admissibility is for the court to establish, having taken into account the matters in subsection (4), such as whether the person to be represented was present when the evidence was obtained.

Amendment No. 22 is inappropriate for inclusion in the Bill. Many aspects of the Bill, including the provisions under discussion, require the training of the judiciary as well as of other prosecutors. That aspect of the Bill is not new, however, and replicates section 3 of the 1990 Act. Evidence from overseas has been used successfully in domestic prosecutions since 1991 and the courts have been capable of making the necessary provisions. I would therefore argue that to include the requirement for training in the Bill is unnecessary and would arise in many other pieces of legislation, which is the reason not to include it. We

cannot prejudge what is admissible—the court will decide that at the end of the day. That rules out the hon. Gentleman's amendment. The training requirements should not be in the Bill.

David Heath (Liberal Democrat, Somerton and Frome)

We, the Liberal Democrat members of the Committee, added our names to the amendments of the hon. Member for Surrey Heath. Although I understand what the Minister said about the matter being for the discretion of the court, the relevant subsection gives guidance to the courts on how they should apply that discretion in determining the admissibility of evidence. That is a critical element: the question is not only whether there is a general omission for parties in proceedings to be legally represented, but whether they have had the opportunity so to do. The court should necessarily consider that key issue, which should not be a delimiting factor, when determining whether a piece of evidence is admissible.

There are a limited number of occasions on which evidence obtained through the relevant mechanism will be admissible—it will be used largely for investigative purposes and not for probative purposes. I would have grave doubts about the admissibility of some types of evidence that might be adduced in court in the United Kingdom if obtained overseas. I am thinking, for instance of the changes that are currently under way through the Criminal Justice Bill concerning hearsay evidence. Multiple hearsay evidence obtained by witnesses abroad without corroboration seems somewhat remote from the concept of admissibility in the English court system, but there is no clear provision for excluding such evidence. The basic principle that it should be possible for someone to be legally represented and that the legal representative should have the opportunity to cross-examine on the basis of evidence to be used in court proceedings cannot be denied.

The hon. Member for Surrey Heath has a point in tabling the amendment, which is why we support it. With respect, I do not think that the Minister has quite answered the case, although that is a matter for the hon. Gentleman to pursue as the mover of the amendment.

Nick Hawkins (Conservative, Surrey Heath)

I am grateful for the hon. Gentleman's support. Not only has the Minister not dealt effectively with the point today—unusually, because his is normally thorough—but the question that Baroness Anelay of St. Johns put to the Attorney-General in another place, to which I referred in moving the amendment, has not been answered. Perhaps I can repeat that question to see whether the Minister will remedy the omission of the Attorney-General. Baroness Anelay said:

''The provisions of the Bill replicate those of the 1990 Act. I hope that the Minister will be able to tell the Committee something of the experience of the United Kingdom authorities and the courts in relation to the admission of evidence obtained abroad in the absence of legal representation.''—[Official Report, House of Lords, 13 January 2003; Vol. 643, c. GC43.]

The Attorney-General did not really answer the point. He said, using very general wording for someone in his distinguished position:

''What is more, as matters stand at present, the strong likelihood is that the evidence that is obtained abroad will not be directly admissible in that form in any event. The evidence will be obtained, and if it is evidence that it is important to put to the defendant, the likelihood is that some way will have to be found of doing that. The most likely way is to try to get that person to give evidence in the United Kingdom or via the video link procedures mentioned in the Bill.''—[Official Report, House of Lords, 13 January 2003; Vol. 643, c. GC45.]

There are three ''likely's'' in that phrase. It is not really an answer to Baroness Anelay's request for specific examples of how the system has operated over the past 13 years. I realise that the Minister might not have that information here, but I hope that he will do us the courtesy of indicating, perhaps by intervening on me, that he will look into the matter. It was sensibly raised by Baroness Anelay in the House of Lords and was not answered, and it has not been answered by the Minister today. Perhaps he can do what he often does and write to the Committee to give us all the experience of the courts over the past 13 years. It is an important point.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is right. I do not have with me evidence that suggests how individual cases have been handled during the 13 years since the enactment of the 1990 legislation. I have said that evidence must be presented to the court in a way that satisfies the court.

Sitting suspended for a Division in the House

On resuming—

Alan Hurst (Labour, Braintree)

Order. We return to clause 9, amendment No. 21. Mr. Ainsworth was intervening. He may wish to extend that intervention.

Bob Ainsworth (Labour, Coventry North East)

I wish to satisfy the hon. Member for Surrey Heath that evidence would need to be in a form that would satisfy a court. There are various steps that could be taken if that was not the case, such as the use of video evidence, or persuading a person to give evidence. The hon. Gentleman seemed to be asking for evidence of how the regulation has worked over the last 13 years. I do not believe that we will be able to provide that. The evidence provided has been passed on to the prosecuting authorities and used in court cases, but has not been scored and analysed centrally. I will do what I can for the hon. Gentleman to see if there is any available evidence concerning the last 13 years. I do not think that there will be anything other than anecdotal evidence. Evidence has not been stored or analysed by the Home Office in order to come up with any analysis of how that evidence was provided, or whether it has always been provided in a satisfactory way. I will see whether there is anything, but I do not think that there will be.

Nick Hawkins (Conservative, Surrey Heath)

I am grateful to the Minister for his lengthy intervention, which has enabled me to gather my thoughts. The Minister has tried to be helpful and will try to bring forward whatever he can find. We will look at that with interest when the Minister writes to us. However, at this stage, I do not seek to pursue the matter any further. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 ordered to stand part of the Bill.

At the very least, the amendment can only make explicit that which is implicit. If it is the Minister's view that it is not necessary, it is certainly not unnecessary to make it clear that compliance with human rights legislation is something on which courts should take a view in considering an application. Although courts may be aware of their responsibilities in that area, it does no harm whatever to remind them—and perhaps the magistrate considering an application to judicial authority—that that is one consideration that they must take into account before arriving at a decision on a specific application. These are both serious amendments. They would add to the understanding of the Bill, and I welcome any comments from the Minister.

Nick Hawkins (Conservative, Surrey Heath)

I am pleased that the hon. Gentleman and the hon. Member for Orkney and Shetland have added their names to amendment No. 24. I shall return the compliment by saying that Conservative Members support the lead amendment, No. 123, and think it helpful to suggest that the word ''probative'' would add to the force of clause 10. It would then be much clearer that we are talking not merely about the vague word ''substantial'', but ''probative'', which has a technical meaning in the law of evidence.

I hope that the Minister can say that he entirely accepts the amendment. That would be a rare event, but he has done it once or twice regarding recent pieces of legislation. We are talking about a one-word amendment, and as is so often the case the shortest amendments can have the most beneficial effect. There is no doubt that this part of the Bill would be stronger and clearer if the clause read ''substantial probative value'', not merely ''substantial value''. It would then mean something. I agree with the hon. Member for Somerton and Frome that the current wording does not mean much.

I now turn to amendment No. 24. As the Minister is aware, it addresses an issue that was debated in another place, where Baroness Anelay of St. Johns tabled an amendment to similar effect. It is far clearer to have the word ''will'' rather than ''is likely to''. Surely it should be absolutely clear that the evidence ''will'' be admissible.

I shall refer to what was said in another place, not solely by Baroness Anelay, but by Lord Goodhart on behalf of the Liberal Democrats. He made important points in debating this amendment on 13 January, in column GC52. He said that he was not altogether happy with the use of the phrasing, ''domestic freezing order'' because it was rather confusing, and that it might appear to mean that an order is a domestic freezing order because it applies to evidence in this country. However, that is not what it does. As we know, a so-called domestic freezing order is one made by a court in the UK for the protection of evidence in another participating country. Lord Goodhart had a good point.

In response to the points raised by Baroness Anelay and Lord Goodhart, the Attorney-General said that the provisions mirrored the Police and Criminal Evidence Act 1984, as if that were a complete answer to the point. As I explained earlier, I have professional reasons for appreciating his professional skills but, with great respect to him, I do not believe that that is a sufficient answer. Just because something is appropriate for the Police and Criminal Evidence Act in this country, that does not mean that it is appropriate under the Bill.

The Police and Criminal Evidence Act applies to what happens in this country. We are talking about the courts in this country. The Act does not apply to what takes place overseas. Our amendment would make it clear that the evidence must be clearly admissible. If the word ''probative'', under the Liberal Democrat amendment No. 123, were added to the Bill, it would undoubtedly strengthen it. I do not have the same worries about amendment No. 124, although I understand where the hon. Member for Somerton and Frome is coming from. I will listen with interest to what the Minister says. If he cannot accede to amendment No. 24 today, I want him to think carefully about whether it would strengthen the Bill. I hope, with even greater force, that the Government will at least accept that ''probative'' would be a helpful addition. It cannot be said that it would weaken the Bill. It would merely be a clarification. The same would be true of amendment No. 24.

Bob Ainsworth (Labour, Coventry North East)

It is at moments like this that I feel deprived that I am not a lawyer. As the clause is drafted, it includes conditions for obtaining a freezing order for evidence that is situated abroad that are as similar as possible to the conditions for obtaining a domestic search warrant established under the Police and Criminal Evidence Act 1984. That contains a requirement of substantial value. Amendment No. 123 would introduce dissimilarities between the freezing order conditions and those in PACE. Although the hon. Gentleman may not accept my answer, we believe that there is good sense in keeping the provisions for domestic freezing orders in line with PACE. It could be problematic if we depart from such requirements without good reason.

Amendment No. 24 would require that the evidence be admissible in the United Kingdom, rather than likely to be admissible. The requirement that the evidence be likely to be admissible is contained for search warrants in the UK in PACE. Again, the Government do not consider that the conditions should be different simply because the evidence is situated abroad. They consider that, as with domestic investigation, it is sufficient that the evidence is likely to be admissible. The amendment would introduce an unnecessarily high requirement that would be difficult to prove to the court. At the stage of the making of an order, it will only be possible to ascertain that the material is likely to be admissible. Whether it is ultimately admitted will be a matter for the discretion of the court that deals with the case.

Amendment No. 124 would ensure that a freezing order could not be made if it was incompatible with the European convention on human rights. The

amendment is unnecessary because section 6(1) of the Human Rights Act 1998 imposes an obligation on the courts to comply with the convention rights. The Human Rights Act applies to all legislation and to include additional references to the European convention on human rights may imply that the provisions of the Act do not apply to a particular Bill or that the European convention on human rights always needs repetition in Bills if they are to take effect. That would be incorrect and clearly undesirable, and we are content that the provisions of the Bill are compatible with the ECHR. If, in a particular case, the court is not satisfied that the order would be ECHR compliant, it will not issue the order.

The hon. Member for Somerton and Frome sought to pray in aid the Joint Committee on Human Rights. He can read out a part of the submission of the Joint Committee, which says that certain ECHR rights are engaged in this part of the Bill. That is the normal language that is used when seeking to address such issues. However, he will know that the Joint Committee on Human Rights made representations, that we responded to them and that it was satisfied with the response. The response was public and accepted by the Joint Committee on Human Rights. It is not right for the hon. Gentleman to suggest, as he does, that in some way the Joint Committee is unhappy with the provisions of the Bill, when he knows that it accepted the response that was given.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman is uncharacteristically over-sensitive today. I am not suggesting anything of the sort. The Joint Committee on Human Rights drew attention to such serious business and the best possible practice in drafting the Bill should be adhered to. He is no doubt about to tell me why it is necessary under clause 21 to do exactly what he says is not necessary under the clause.

Bob Ainsworth (Labour, Coventry North East)

I love it when people accuse me of being over-sensitive. It is not a weakness that I recognise in myself.

I turn to the issue that the hon. Gentleman raised about the overseas freezing orders under clause 21. We need to refer to convention rights, because it is mutual recognition and the court could breach its own duties if it automatically recognised an overseas order. Therefore, when considering whether we should recognise an overseas order, there needs to be a requirement on the court to consider convention rights. With domestic rights, we are talking about our courts and the decisions that they take will be compatible with the Human Rights Act 1998.

The hon. Gentleman also sought to argue that in some way—this is where I feel deprived of a legal qualification—''substantial'' was not substantial. The clause, as written, requires that the evidence is likely to be of substantial value. I think that the hon. Gentleman came close to saying that that was not a substantial level at which to set the bar. He suggests the word ''probative''. I do not know about that. He said himself that he was not sure that it added very much. I am prepared to reflect on whether it would add anything to the clause. My understanding of the meaning of probative—the dictionary meaning—is evidential. Therefore, he is effectively suggesting that

we say that the evidence must be or is likely to be of substantial evidential value.

Nick Hawkins (Conservative, Surrey Heath)

I think that the word ''probative'' goes slightly further than that and the Minister has already helpfully said that he will reflect on the matter. It is not merely that it is of some evidential value, but it is of evidential value that helps to prove a case. That is the etymological origin of ''probative''—that it has some value towards proving the case.

Bob Ainsworth (Labour, Coventry North East)

But it is evidence. The hon. Gentleman is a refugee from the proceedings on the Proceeds of Crime Act 2002, as I am. We are not talking about confiscation for the purpose of depriving a criminal of his ill-gotten gains, but about the gathering of evidence. I will reflect on the matter. Obviously, there are legal minds that might have more—I was about to say twisted—understanding of ''probative'' than the ''Oxford English Dictionary'', but I am not certain that it would add anything. I think that we have set the clause at the right level. The evidence must be, or be likely to be, of substantial value.

As the hon. Gentleman accepted, the threshold has been taken seriously and set at an appropriately serious level. However, he asks us to move it a little higher. I am not sure whether that is desirable, but I will certainly reflect on the points that he makes.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the hon. Gentleman for what he has just said. If it is any comfort to him, I am not a lawyer either and I share some of his concerns about the use of language in a judicial context. However, I am aware, through long hours of Committee work, of the way in which the word ''probative'' is and has been used. Indeed, the concept of probative value is used in other legislation that is passing through the House at the moment. I hope that the hon. Gentleman will reflect on it.

The word ''substantial'' is one of those words that, we are told when we try to insert it in amendments, has no real meaning because it cannot be interpreted by the courts. With respect, what is good for the goose must be good for the gander. However, I am grateful to the hon. Gentleman for considering the matter further. On that basis, I am prepared to withdraw the amendment. With regard to the Human Rights Act 1998, I am still puzzling over the reason for its being referred to in clause 21, not clause 10.

Sylvia Hermon (UUP, North Down)

I am very grateful to the hon. Gentleman for giving way. May I help him out of his puzzlement? On this occasion, the Minister is absolutely right. There is a distinction, because the opening words of the European convention oblige every signed-up member state, including the United Kingdom, to guarantee the convention rights within its own jurisdiction. Therefore, the UK has an obligation under the convention to ensure that, on clause 20 and overseas freezing orders, it is compatible with those rights. However, we are talking about domestic freezing orders in another jurisdiction, and the UK cannot be required to enforce the convention rights outside its own jurisdiction. That is the distinction.

David Heath (Liberal Democrat, Somerton and Frome)

I understand that entirely, but in each instance it is a court in the UK that considers whether the case that has been made to it is manifestly incompatible with convention rights. I understand that the initial request on one hand, or the implementation of the request on the other, will take place in a country beyond the UK's jurisdiction, so it is a matter for that country—which, as we know, is identified as a participating country in the context of the Bill, will come within Schengen and other protocols and will be a signatory to the European convention on human rights.

However, at the same time, there is a point of consideration, which in each instance is in a British court, either in transmitting the request from a British authority or implementing the request from an overseas authority. It is at that point that I want to be satisfied that the British court has regard, as we are by obligation required to have regard, to the human rights convention. Quite correctly, the Human Rights Act 1998 assigns that obligation, so I accept that this is a belt-and-braces exercise, but I still cannot accept entirely why the reference is there in one instance but not in the other. I would prefer it to be there in both, so that everyone could clearly see that it was a major consideration to be taken into account.

The Minister says that that measure is not necessary and he gets very sensitive, as I said, about why I should even suggest that it might be necessary. I am sorry, but I am trying, in my inept way, to improve the Bill. It seems that in this case the Minister does not accept that I am doing so. I will seek leave to withdraw the amendment, but I should be grateful for any further aper¢us that the Minister receives on the subject. We may want to return to it at a later stage in our consideration.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 125, in

clause 10, page 7, line 19, at end insert 'or customs officer'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following:

Amendment No. 33, in

clause 16, page 10, line 15, after 'constable', insert 'or customs officer'.

Government amendment No. 87.

David Heath (Liberal Democrat, Somerton and Frome)

This is a sudden rash of Customs officers. All three amendments would add exactly the same words, but to different places in the Bill. It is just pure luck that mine happens to be to the first clause under consideration, unlike the Conservatives' amendment No. 33, which would add the words ''or customs officer'' to clause 16, and Government amendment No. 87, which adds those words to clause 18.

I have a track record of success in this area. I added the words, ''and customs officers'' to the Criminal Justice Bill earlier in the year. Those words were included through a Government amendment, because the Home Office, in its wisdom, had forgotten its colleagues in Customs and Excise and needed to give powers to its officers as well as to Home Office police

forces. I ask the Minister to consider my words carefully before they are rejected.

I have considered clause 10 carefully and I know that the Minister is trying to replicate as far as possible the position on the Police and Criminal Evidence Act 1984, which is why the words in the clause are set out as they are. However, it is not quite the same, because Customs officers derive their powers from other legislation, but they may also carry out investigations that require evidence to be acquired from abroad. They may also require that evidence in the same way that a police constable does. If they wish to do that, it would be an unnecessary bureaucratic procedure if a Customs officer had to go to the appropriate police force and ask for a sworn constable, with the permission of his senior officer, to go and make the request to a justice of the peace.

I do not believe that Customs officers have any other means by which they could apply the novel procedure of a domestic freezing order other than by that mechanism. The Minister may tell me I am wrong and that there is already analogous legislation elsewhere, but I do not think that there is. There are two options. Either we do not want Customs officers to be able to continue their investigations in such a way, which is not the case in the context of domestic law and investigations, or we have forgotten to add them to the subsection.

I can think of more instances in which it is likely that Her Majesty's Customs and Excise, rather than the police, would be carrying out an investigation that includes evidential material from overseas. I ask the Government to consider seriously whether there are not circumstances in which Customs officers and Customs and Excise would need to use this power, which they could use to their advantage. If that is so, the words that I have suggested must be added to the clause to give that some validity.

Nick Hawkins (Conservative, Surrey Heath)

I can be extremely brief because, as the hon. Gentleman rightly said, there are three amendments in the group: one from the Liberal Democrats, one from us and one from the Government. Those seek to introduce the words, ''customs officer'' to different parts of the Bill. I hope that the Minister will say, ''Let's have all three,'' because then we will be consistent throughout the Bill. However, I am sure he will bear in mind the hon. Gentleman's success in getting those words into the Criminal Justice Bill.

I do not need to add to that, but there is a serious point, too. We always recognise that the Customs and Excise is an important part of the law and order enforcement procedure in this country. Whenever Customs officers ought to be included among the categories dealing with such matters, it would be helpful if they could be included. If the Government forgot them by mistake in the Criminal Justice Bill, perhaps the Minister will tell us they forgot them in this Bill. Perhaps that is why the Government tabled their own amendment to clause 18. If they have forgotten and they need to insert those words in clause 18, why not insert them in clauses 10 and 16?

Bob Ainsworth (Labour, Coventry North East)

How do I persuade the Committee to insert my ''customs officer'' and not those of others hon. Members?

Nick Hawkins (Conservative, Surrey Heath)

With difficulty.

Bob Ainsworth (Labour, Coventry North East)

We shall see.

Amendments Nos. 125 and 33 would extend to Customs officers the powers given to police officers under the Bill. Amendment No. 125 would give Customs officers the power to apply for a freezing order and amendment No. 33 would give them the same power as a police officer to apply for a search warrant or production order in relation to their activities as part of the joint investigation team. In both cases, the amendments are unnecessary, not because the powers are conferred elsewhere, as the hon. Member for Somerton and Frome suspected, but because they are given to Customs officers by dint of clause 27(1)(b). He will see that clause 27(1) refers only to England, Wales and Northern Ireland. Clause 27(1)(b) says

''For any function conferred on a constable under those sections to be exercisable instead in prescribed circumstances by a customs officer or a person acting under the direction of such an officer.''

So we are in error, but we are in error with regard to Scottish jurisdiction, not to that of England, Wales and Northern Ireland. I would ask the hon. Members for Somerton and Frome and for Surrey Heath to accept that the issue is the structure of the Bill and their reading of it, rather than an omission on our part.

Sylvia Hermon (UUP, North Down)

There is a very serious point here. I do not agree exclusively with the amendments. The Minister has addressed the extension to Customs officers, which occurs later in the Bill. There is a problem in Northern Ireland with paramilitary smuggling from the Republic of Ireland into Northern Ireland and the whole of the United Kingdom. The Assets Recovery Agency—a wonderful agency that was set up in February—needs to be able to apply for freezing orders, because there is paramilitary property outside the jurisdiction of the United Kingdom, specifically in the Republic of Ireland. That extension would be very helpful.

Bob Ainsworth (Labour, Coventry North East)

I am trying to recall the extensive powers that we have given to both the Assets Recovery Agency's office in Northern Ireland and its main office in London to conduct investigations. The extension of those overseas would require treaty capacity and the preparedness of the overseas state to recognise the breadth of power that we have enacted in our legislation. Many authorities do not do that, although the authorities in the Republic of Ireland have been fairly forward thinking in terms of confiscation. I shall look into the issue that the hon. Lady raises, both because I recognise that there is a real problem and because we wish to develop a good working relationship between the Criminal Assets Bureau in Dublin and the new Assets Recovery Agency in Belfast and London so as to be effective against such problems. We want to ensure that there is no gap.

Let me return to the amendment. Customs officers can be given the power to apply for freezing orders and

to obtain search warrants and production orders in relation to international joint investigation teams in which they participate; there is no need to specify that power elsewhere as it is covered by clause 27(1)(b).

Amendment No. 87 is a Government amendment that relates only to the provisions in Scotland. Clause 18(1) provides that if a sheriff is satisfied that certain conditions are fulfilled, he has the power to grant a warrant authorising entry, search or seizure by any constable. Clause 18(2) provides that an application for such a warrant may be made only if it is in pursuance of a direction given under clause 13 or if an application is made at the request of an international joint investigating team. The investigating team may include constables and Customs officers, or it may comprise solely the latter. Clause 18(1) as drafted expressly provides that the authority for a search warrant can be issued only by a constable; that would cause difficulty should a team consist solely of Customs officers. I put it to the Committee that we are in error and need to correct the clause using my amendment, but that we do not need to do so in either of the other cases. I think, from the looks on hon. Members faces, that I have proven my case.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister has entirely proven his case. My only comment on this is that it was a slightly odd way of doing that, in terms of the drafting, because it seems unnecessary for the Treasury to have now to prescribe these powers by order, when it is clear that they are going to be necessary to Customs officers. We know that there will be instances where a Customs officer will wish to use the power under clause 10, which is to be exercised by a constable.

Bob Ainsworth (Labour, Coventry North East)

May I clarify the position?

The hon. Gentleman knows that we have got a devolved settlement in Scotland, and clause 27 applies only to England, Wales and Northern Ireland because it goes far wider than the point that we are making now. The Scottish Executive rightly plans to make provisions for some of the matters covered by clause 27. We are not able to cover the Scottish situation in the same way that we are covering the situation in England, Wales and Northern Ireland.

David Heath (Liberal Democrat, Somerton and Frome)

I understand the point about Scotland, and the need to make separate arrangements there. Even having heard the Minister's explanation and having now understood the way that the clauses in question interlock, it would be better to give the power ab initio to Customs officers and police officers on the same terms, because that will be necessary, and it is not sensible to have to require secondary legislation in order to extend that power at some stage in the future. We know that they will need that: why do we not just say so clearly in the Bill, rather than do it by secondary legislation?

The Minister has proved his case to me—and, I suspect, to the satisfaction of the hon. Member for Surrey Heath—and I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Nick Hawkins (Conservative, Surrey Heath)

I do not wish to detain the Committee for long, but I want to put on the record a couple of points that relate to the debate in another place to give the Minister the opportunity to respond. At this stage, I am perfectly happy for the Minister to write to me and other Committee members if he is not in a position to answer them this afternoon.

I may have missed something, but when I was reading clause 10(1)(a) I was slightly puzzled by the phrase ''a listed offence'', which does not seem to be otherwise defined in this part of the Bill. Can the Minister shed some light on that?

As for clause 10(1)(c), I wonder how the Government envisage that it is to be determined how a court could be satisfied that a request ''will be made''. If a request has been made, that is something that we know about, and evidence can be brought. However, it seemed to me that that looked to the future, and it is slightly peculiar to state:

''If it appears to a judicial authority . . . that a request . . . will be made''.

Perhaps the Minister can explain, if not today, then in a letter, the sort of circumstances in which a court might be satisfied that a request will be made. I am always a little unhappy about legislation that contains that sort of conditionality.

There was quite a debate in another place on 13 January—columns GC56 and 57—about whether these sorts of applications should always go to Crown courts and the High Court. I do not want to take up the Committee's time by re-running that argument, but it occurred to me that one thing that was not mentioned in another place was where one is applying for injunctions in civil cases to try to freeze assets. That is the sort of thing that the Minister and I debated when we talked about the proceeds of crime legislation last year. When I was practising at the Bar and trying to get these orders they were known as Mareva injunctions or Anton Piller orders. There have been some developments in the law since I practised in that field, but it seemed to me that, as was suggested in another place, these sort of applications would be more appropriately made to the High Court or at the least to a Crown court, and it might not be appropriate for them to go to lay justices. In another place, it was suggested that they might more normally be made to stipendiary magistrates, district judges or deputy district judges.

I have a worry. On the one hand the Government might seem to be providing an opportunity for the lay magistracy to be involved. On the other hand, they are saying that they do not anticipate such things going to the magistrates, but to professional stipendiary magistrates. I hope that the Minister can deal with some of these points, although I reiterate that I do not mind if he cannot deal with them today, because I do not wish to take up too much of the Committee's time.

David Heath (Liberal Democrat, Somerton and Frome)

I shall refer only briefly to the last point made by the hon. Gentleman about the debate that occurred in the other place on whether such applications should be made to a circuit judge rather

than a justice of the peace. I shall now ingratiate myself with you, Mr. Hurst, by saying that I have no problem with justices of the peace dealing with these issues, when they are of a level with section 8 of the Police and Criminal Evidence Act 1984, as is envisaged by clause 10. I believe that the Attorney-General gave a reply to that effect in another place. He suggested that there had been some confusion with the Mareva orders, and that the Law Society, which was exercised by this particular issue, had perhaps misinterpreted the Bill with regard to legally privileged material.

I accept entirely the Government's position on the matter, in that what they suggest specifically excludes, under clause 10(3)(d),

''items subject to legal privilege.''

However, that raises the question of what happens if the material concerned would normally fall within section 9 of the 1984 Act, because such applications would normally be made to a circuit judge rather than to a justice of the peace. Such a provision exists in PACE, but there does not appear to be an analogous provision in the Bill. Can the Minister tell us in what circumstances legally privileged material which was of substantial probative value in a domestic court proceeding would be held in another country? As I understand it, that is excluded from the provisions of the clause. Is that intentional on the part of the Government, and, if so, what is the rationale behind it? If it is not intentional, how can it be amended, and would the Government like to consider whether a further new clause would be needed to deal with that circumstance?

Bob Ainsworth (Labour, Coventry North East)

The clause provides for making domestic ''freezing orders'' to secure evidence overseas. It implements part of the framework decision on the execution of orders freezing property or evidence, enabling the UK to make freezing orders for the purpose of securing evidence. The framework decision is an instrument involving the concept of mutual recognition, rather than mutual legal assistance.

A domestic freezing order is an order made by a UK judicial authority for protecting evidence in a participating country pending a mutual legal assistance request for its transfer to the UK. The clause specifies the circumstances in which a judicial authority in the UK may make a freezing order.

The clause is necessary because there is currently no provision for UK authorities to issue domestic orders that will be recognised and enforced abroad. It is possible to make a mutual legal assistance request to obtain evidence, and that happens frequently. Currently, any such request would be considered and the evidence obtained in accordance with the requested country's laws and procedures, not in accordance with our laws and procedures, as mutual recognition would provide that they should be.

Freezing orders will, however, enable faster and more efficient co-operation to occur, in circumstances where it is necessary to freeze evidence quickly. For example, a UK police team investigating a UK-based armed robbery might obtain intelligence that the weapons used in the robbery were located abroad.

The UK police would be able to get a court order to search for the weapons at a specified location. The authorities abroad would be required to notify an initial decision on execution of an order as quickly as possible, and whenever practicable within 24 hours of receipt, as required by article 5 of the framework decision. In contrast to a request for mutual legal assistance, there are limited grounds on which such an order can be rejected in the receiving state, provided it meets the conditions specified in the framework decision. For example, it must be accompanied by a properly completed certificate and relate to relevant offences.

The hon. Gentleman was concerned about the list. The list is in the framework decision, which requires investigation of proceedings relating to listed offences. Member states are required to recognise a freezing order only if it relates to one of the offences listed in the framework decision. The offence is punishable in the issuing state by a maximum sentence of at least three years.

Nick Hawkins (Conservative, Surrey Heath)

Will the Minister give way?

Bob Ainsworth (Labour, Coventry North East)

I give way. I know the road down which we are travelling.

Nick Hawkins (Conservative, Surrey Heath)

I am sure that the Minister can anticipate me, but if the offence is listed in the framework directive, surely it should be in the Bill.

Bob Ainsworth (Labour, Coventry North East)

That is a similar debate to the one that we had during consideration of the Extradition Bill. It is well-trodden ground between us. The list is in the framework document. At the moment, I see no reason why it should be in the Bill. We did not include such a list in the Extradition Bill, and I do not see why we should define that treaty obligation in this Bill.

The rest of the debate is in Hansard.