Crime (International Co-operation) Bill [Lords]

Public Bill Committee, 12 June 2003.

Standing Committee A

Clause 13 - Requests for assistance from overseas authorities

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 131, in

clause 13, page 8, line 17, leave out 'the territorial authority' and insert 'the UK Government'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following:

Amendment No. 132, in

clause 13, page 8, line 17, leave out second 'authority' and insert 'the Government'.

Amendment No. 130, in

clause 13, page 8, line 33, at end insert

'subject to the requirement that any modification to any such provisions or to the Treaty must be approved by both Houses of Parliament'.

Nick Hawkins (Conservative, Surrey Heath)

Good morning, Mr. Benton. I welcome you back to the Chair. It is interesting that the massed ranks of the Opposition outnumber the slightly less massed ranks of the Government. I am now tempted to call for a Division, but I am reluctant to put the Government Whip under such pressure. He has been so co-operative, and I hope that he will continue to be so. I hope also that he will note that I am not taking advantage of our temporary superiority in numbers. I will store it up as a favour to be cashed in on a future occasion.

I shall refer briefly to what was said in another place on 23 January, when some pertinent remarks were made by my noble Friend Lord Carlisle of Bucklow, a distinguished former Minister in the days of the Conservative Government and a close personal friend. As always, being a distinguished and senior lawyer, Lord Carlisle alighted on some interesting points. When I first read the clause, I was puzzled about the phrase ''territorial authority''. I do not know whether members of the Committee have read clause 28(9), under which ''territorial authority'' is interpreted as the Secretary of State in England and Wales and the Lord Advocate in Scotland.

Unfortunately, the hon. Member for Orkney and Shetland (Mr. Carmichael) is not in Committee this morning, otherwise, as a distinguished Scottish lawyer himself, he could explain the role of the Lord Advocate. I do not propose to do so. I have no criticism to make of the Lord Advocate. I have picked up some Scots law in my time, but I am certainly not qualified in it.

I was worried that it would be only the Secretary of State who was regarded as the territorial authority in England and Wales. That is why we have suggested in the amendments that the United Kingdom Government be the territorial authority. There are strong rumours that the Government reshuffle will take place today, so it is particularly appropriate that we should be querying whether the territorial authority should be the Secretary of State alone or the entire UK Government. If the strong rumours in the press and the media over the past few days are true and that there will no longer be a Home Office and a Lord Chancellor's Department, but that a ministry of justice will be created, it makes it even more crucial to take into account what the Government may have in mind. No doubt the Minister is privy to at least some of what is being planned in the forthcoming reshuffle. I hope therefore that he might agree that it would be wise for the whole UK Government to be the territorial authority, not the Secretary of State.

David Heath (Liberal Democrat, Somerton and Frome)

I am a little puzzled by the hon. Gentleman's argument. Under statute, the Secretary of States means the entire Government, not an individual Secretary of States. The Bill refers to the relevant Secretary of State for the purposes of enactment.

Nick Hawkins (Conservative, Surrey Heath)

That is what I wanted to tease out of the Minister. We need to be clear about what the Government have in mind. Territorial authority is a new concept. It does not appear in the preceding legislation. Clause 28(9) defines the territorial authority as the Secretary of State.

David Heath (Liberal Democrat, Somerton and Frome)

I believe that ''territorial authority'' has been used in legislation since devolution. It is not unknown to British subjects.

Nick Hawkins (Conservative, Surrey Heath)

The hon. Gentleman is right that it has been used in more recent legislation since the devolution settlement, but it was not used at the time of the Criminal Justice (International Co-operation) Act 1990, which was in place pre-devolution. That is why I wanted to tease out such matters. As the hon. Gentleman understands, I am probing the Government, as well as teasing them and teasing them out.

Under amendment No. 130, any modifications to the treaties should go through both Houses of Parliament. There is great sensitivity at the moment about the way in which the proposed new European constitution arising from the European convention is being described differently by Ministers. One Secretary of State refers to it merely as a tidying-up exercise. That is certainly not how Conservative Members perceive it. We think that, in whatever form it finally takes, it will be one of the most substantial proposed changes to the British constitutional position ever contemplated. That is why we are concerned about it.

This part of the Bill covers what may happen in the event of modifications to the treaty of the European Union. That is not purely a theoretical possibility, but something that is being considered now. There are strong suggestions that the Italian Government, for example, want a new treaty of Rome. They are

determined to push through the changes in the new European constitution in their forthcoming European presidency so that any new constitution or treaty should be another treaty of Rome. In the light of the proposed changes, and if there are to be modifications to the treaty of the European Union, it is vital that they go through both Houses of Parliament.

On 23 January in another place, Lord Carlisle of Bucklow said:

''Clause 13 deals with requests from overseas for assistance by the courts in this country. Such requests must be received by the territorial authority for that part of the United Kingdom which is, by definition in Clause 28(9), the Secretary of State.''

He then drew the distinction between that and the previous clauses that we debated earlier, and said:

''under Clauses 7 and 8, if it is the other way round and the request comes from this country to another asking for its assistance in obtaining evidence, it can come directly from the judicial authority to the court in the country from which assistance is requested.''

My noble Friend therefore asked the reasonable question:

''Why must there be a system where a request from this country can go directly from the court to the court whereas a similar request from overseas cannot go directly to the court but to the Home Secretary who is required under Clause 15 to nominate a court to receive any such evidence?''

He wanted to find out why there was that difference. Lord Goldsmith, the Attorney-General said:

''At this end there are a number of different prosecuting authorities. The division between their jurisdiction is complex and based upon the type of crime involved. Therefore, it is much more difficult to identify who is necessarily the correct recipient for an incoming request.''

I shall not read the whole of what the Attorney-General said, but that is the basis of his reply. He went on:

''Territorial authority, a concept to which the noble Lord rightly draws attention, includes the devolved administrations. The territorial authority is the Secretary of State in England and Wales but is the Lord Advocate in Scotland. Enabling the request to be sent directly to the devolved administration will remove an unnecessary layer of bureaucracy. That geographical division is straightforward and easy to explain.''

We understand how the devolved settlement works, and I do not seek to unpick that; however, it would be much clearer if the clause referred to the UK Government, if there is a difference between the complexity of the courts in the one case and the simplicity of the requests going from court to court the other way round.

My noble Friend Lord Carlisle of Bucklow also raised his concern about the phrase ''administrative authority'', which appears in clause 1 but not in clause 13. He quoted from clause 13 and said:

''Is that intended to include the administrative authority whose requests we can deal with in the service of overseas process? Why are the words different in the two clauses?''

The Attorney-General replied:

''They are different concepts and different functions . . . It does not seem to me that it needs to be the same. In the different context of service of process as opposed to gathering of evidence, the provisions make sense.''

Lord Carlisle rightly said that he still found

''the difference between Clause 13 and Clause 7 surprising so far as concerns the receipt for the request for evidence. It is difficult to see how adding in an extra stage—namely, having to go to the territorial authority—will save time. If we have enough confidence in the system in Clause 7 that requests to countries can go direct from our courts to their courts, we should enable them to be able to send requests directly to our courts rather than going through the Secretary of State.''

The Attorney-General then said that clause 8

''provides a choice . . . In the United Kingdom there will be prosecutors who cannot execute requests. Therefore, it would be wrong for requests to be sent to them.''—[Official Report, House of Lords, 23 January 2003; Vol. 643, cols. GC 66–67.]

That summary of the argument that took place in the other place shows that we are talking about quite complex provisions. I hope that the Minister will understand that the amendment is seriously probing whether there might be a clearer way to proceed. We could achieve clarity by ensuring, first, that all matters were dealt with by the Government, not just one Secretary of State, and, secondly, that if a change to the European treaties were likely, the change went through both Houses of Parliament. I hope that the Minister will understand, despite my gentle teasing at the opening of my remarks, that these are serious points that are to be taken seriously.

Although the Minister now has one or two reinforcements, he does not yet have all the seventh cavalry on his side, so I am sure that he will take his numerical difficulties seriously.

Bob Ainsworth (Labour, Coventry North East)

I was trying to think of all the motives that the hon. Gentleman could have for pressing an amendment to a Division at 9.10 am. One would be to prove that he is here—I know that that is difficult for him—and another would be to show his support for the new modernised hours of the House of Commons.

The amendments would be a backward step. They would require all requests to be sent to the UK Government, and would prevent requests that relate to evidence located in Scotland being sent direct to the Lord Advocate, who is the person competent to deal with them. The expression ''territorial authority'' allows a distinction to be made between the role of the Secretary of State and the role of the Lord Advocate. The proposed change would not represent any progress, and would not adequately address the matter of devolution and Scotland's separate legal system. The hon. Gentleman is absolutely right that the phrase did not occur in the earlier legislation, which was passed in 1990—before devolution.

The issue of whether the provisions should mention the whole Government, and matters such as reshuffles and potential changes to the structure of government, are irrelevant. In this instance, ''Secretary of State'' does not necessarily mean the Home Secretary; in Northern Ireland, for instance, it means the Secretary of State for Northern Ireland. There is collective responsibility, and responsibility for the appropriate Secretary of State, so I do not understand the hon. Gentleman's point about the whole of the UK Government, unless he is attempting, rather than pursuing his usual Euro sceptic line, to unpick the

devolution settlement. Although he says that that is not his intention and that he does not see that there is a problem, that would be the effect of his amendment.

Clause 28(9) defines territorial authorities. For England and Wales, the Secretary of State is the Home Secretary. If there were a reshuffle or a change in the structure of government, that would be reflected and the new Secretary of State—whoever it may be—would be designated as the authority. I have not been personally consulted about that, so I am disappointed. My right hon. Friend the Prime Minister never summoned to ask, ''Parliamentary Under-Secretary, what do you think about this idea?'' I only wish that he had so that I could have made him aware of my views.

The Secretary of State for Northern Ireland will deal with Northern Ireland requests at the Northern Ireland Office. For Scotland, the territorial authority is the Lord Advocate, which means that requests that relate to evidence located in Scotland will go directly the Lord Advocate's office. That reflects the devolution settlement, and what is practical and efficient. There is no value in the Secretary of State in London acting as a post box for requests aimed at Scotland or Northern Ireland. The 1990 Act required all requests to go first to the Secretary of State, but that was prior to devolution.

Amendment No. 130 would mean that any changes to the bodies competent to make requests under the treaty of the European Union will be subject to affirmative resolution. Currently, Eurojust is the only body that is able to make requests under that provision. Eurojust was established within the framework of the treaty of the European Union by a decision of the 1990 temporary council. That decision was subject to scrutiny by Committees of both Houses. If there were changes to the decision, or if a new body were set up, that would be subject to scrutiny by Parliament. If there were a new treaty, new legislation would be introduced, as happened with the Maastricht treaty—I remember that with fond memories. There is therefore no need to do what amendment No. 130 would do. If the hon. Member for Surrey Heath (Mr. Hawkins) has problems with the scrutiny arrangements agreed by Parliament, he should not take up that issue during a discussion on an amendment. I know that he has some concerns about scrutiny, which he raises from time to time—I accept that those views are valid.

Any changes to overarching treaty structure, as opposed to specific arrangements agreed under the treaty, will need to be ratified by means of primary legislation. The amendment is not necessary, and I can reassure the hon. Gentleman that Parliament will have full opportunity to scrutinise any structural changes to existing Community treaties. That includes changes to treaty structure following the forthcoming intergovernmental conference on the Convention on the Future of Europe, which will be subject to primary legislation. I therefore ask the hon. Gentleman to consider his amendment and be prepared to withdraw it in light of my strengthening position in the Committee.

Nick Hawkins (Conservative, Surrey Heath)

Now that the hon. Member for Liverpool, Walton (Mr. Kilfoyle), who definitely represents the seventh cavalry, has arrived, the Minister is in a much more comfortable position.

Peter Kilfoyle (Labour, Liverpool, Walton)

I would like to put on the record that I have been in the immediate environment of the Committee Room all the way through proceedings. I would not like it to be thought that I was tardy in my attendance this morning.

Nick Hawkins (Conservative, Surrey Heath)

Indeed. As the hon. Gentleman knows, I saw him in the House of Commons this morning before the Committee started and we exchanged a word or two. I knew he was here. I have to bear in mind one's knowledge of what may be happening just outside the Committee Room.

The hon. Gentleman and I were in each other's company, with many hon. Members from all parties, watching the splendid England victory against Slovakia last night. I am always delighted to see the hon. Gentleman—we all are. I am especially delighted to hear his trenchant criticism of the Government when he feels that that is appropriate.

Joe Benton (Labour, Bootle)

Order. There is no need to prove the existence of the hon. Member for Liverpool, Walton. We will return to the amendment

Nick Hawkins (Conservative, Surrey Heath)

With great pleasure, Mr. Benton.

I am genuinely grateful to the Minister for his reassurances on some of the matters that I raised, and I am particularly grateful for his confirmation that we were right to probe them. He is aware that there was, as I said, considerable and interesting debate in another place about these points. It is helpful that what the Minister said will be on the record. I do not seek to prolong the debate, although it has been useful. In light of the Minister's reassurances and the numerical changes, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 ordered to stand part of the Bill.

Clause 14 - Powers to arrange for evidence to be obtained

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 25, in

clause 14, page 8, line 40, leave out from beginning to end of line 3 on page 9.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following:

Amendment No. 27, in

clause 14, page 9, line 2, leave out

', or intended to be carried on'.

Amendment No. 28, in

clause 14, page 9, line 3, at end insert—

'(1A) In this section ''administrative proceedings'' means proceedings that if carried on in the United Kingdom would be proceedings before a court.'.

Nick Hawkins (Conservative, Surrey Heath)

We are dealing with some serious points that were debated in another place on 23 January 2003. I shall refer in a moment not only to Lord Carlisle of Bucklow, who contributed on the

subject, but to Baroness Anelay of St. Johns. One thing about that debate that was slightly different was that even Lord Clinton-Davis, on the Government's side, supported some of the points made by Baroness Anelay of St. Johns. That was a rarity, because during other debates in another place Lord Clinton-Davis was critical of some of the arguments advanced from the Conservative Benches. It was notable that he had some sympathy and support for our views in that debate.

Before I deal with what was said in another place, I shall describe what we intend the amendments to do. Amendment No. 25 would delete clause 14(1)(b) and (c), so that the clause would apply only to criminal investigations. We have a problem, with which the Minister is familiar from some of the debates on the Extradition Bill, about the concept of administrative proceedings. Amendments Nos. 27 and 28 would provide alternative ways to address some of the same issues. Amendment No. 27 says that one could omit the passage that looks to the future of the clemency proceedings. There was an interesting debate in another place about what clemency proceedings were, during which even the Attorney-General, who is a distinguished lawyer, for once got into some confusion.

Amendment No. 28 would provide another option by explaining what are administrative proceedings. In another place, Lord Renton of Mount Harry and Baroness Carnegy of Lour got into a debate with the Attorney-General and the Government accepted our amendment No. 127. It is always a happy result when a Conservative amendment in either House is accepted by the Government. I hope that the Minister will follow the precedent that was set by the Attorney-General by accepting more of our amendments.

One of the points that Lord Carlisle of Bucklow made in another place was not answered by the Attorney-General and, having set out what amendments Nos. 25, 27 and 28 do, I want to refer to some of the things that were said in that interesting and important debate.

Baroness Anelay of St. Johns pointed out that there had been some debate about administrative proceedings in the debate in another place on clause 1. She wanted to explore exactly what administrative proceedings and clemency proceedings are here. She was probing the precise nature of the definitions, and she moved amendment No. 127 in another place, which changed the words ''removal of a penalty'' to

''removal or reduction of a penalty''.

That was the Conservative amendment that the Government happily accepted in another place.

Baroness Anelay said that she hoped that the Attorney-General would

''also be able to explain whether the definition of clemency proceedings is intended to extend the scope of the Bill's provisions, not just to the death penalty case but to other cases in which the power of clemency is exercised, such as a reduction in the length of a prison sentence.''

Lord Clinton-Davis intervened at that point, to say:

''The words 'clemency proceedings' are used only in relation to the Schengen convention, and not in any other instrument of law in this country . . . I have never seen that expression before. Can my noble and learned friend''

—the Attorney-General—

''say whether a similar provision has been included in any other legislation?''

With regard to clause 14(1)(c), Lord Carlisle then asked:

''Why should not it be an application that relates to the administrative proceedings themselves?''

He pointed out that he was asking that because clause 52 is said to apply to

''administrative authorities in respect of administrative offences where a decision in the proceedings may be the subject of an appeal before a court''.

Lord Carlisle went on to say:

''That may be a definition of the term 'administrative proceedings', but proceedings themselves are taken before the administrative authority.''

He then quoted that a Home Office Minister had said in an earlier debate that administrative offences were

''a category of offence that does not exist in the UK but does exist in some of our partner countries. In some EU countries, for example, offences such as driving offences are dealt with in that way.''

The Minister is nodding.

Later on in the debate, it was said that Holland was an example of one of our EU partner countries where they treat driving offences as what they call administrative offences. Lord Carlisle wanted to know whether that means that one can make a request to this country if one wants to use it in an appeal—presumably against a conviction for a driving offence, which has been carried out by an administrative authority, in administrative proceedings—but one cannot respond to a request for evidence if one wants it for the purpose of bringing the case and conducting the case before the administrative authority in the first place. If it did mean that, Lord Carlisle wanted to know why, because he pointed out that that could be something of a nonsense.

The Attorney-General then made some interesting remarks. He said:

''There has already been discussion in Committee about what 'administrative proceedings' in this context means.''

It is important to bear in mind that this is the Attorney-General speaking for the Government:

''They are not straightforward to identify and define because they do not have an exact counterpart in our own legal system. The example cited in the explanatory report to the Mutual Legal Assistance Convention is a German offence. That is an offence which, whilst not classified as a criminal offence, is punishable by a fine imposed by an administrative authority. It is known as ordnungswidrigkeit. However, there is a right of appeal to the ordinary criminal courts. It is intended to be an administrative proceeding where assistance might be sought.''—[Official Report, House of Lords, 23 January 2003; Vol. 643, c. GC68–70.]

Here we have the Attorney-General, on behalf of the Government, reinforcing in another place the complication of trying to approximate our law, which is based on the common law and Acts of Parliament over many centuries, with an entirely alien system of law, which in many countries is based on the Code

Napoléon, going back to Roman law. That is difficult to bring into harmony with UK law, which is why those on the Conservative Benches have such a problem with the whole concept of administrative proceedings. We would like this part of the Bill to be restricted to the criminal area because that is where we really need mutual legal assistance. We always want to use mutual legal assistance to crack down on crime, but it should not be extended to new kinds of administrative bodies that operate in other EU countries, which do not have similar procedures to ours. There would be great danger in trying to fit the two together.

Baroness Carnegy of Lour said that she wanted to make sure that she had understood the matter. She said:

''According to Clause 52(1), the definition of 'clemency proceedings' is the removal—and or reduction—of penalties for offences which were not tried as criminal charges, but are matters such as driving licence offences in other countries which are tried in a different court. That does not apply to criminal charges. Is that correct?''

After reading clause 52(1), that seemed to me to be a reasonable understanding of it. The Attorney-General, speaking on behalf of Her Majesty's Government, simply replied by saying: ''I think not.'' He was obviously not certain. He said:

''They are two separate issues. The administrative proceedings are those which relate to an administrative offence, something which we might well regard as a criminal offence. It is tried as an administrative offence, but there is an appeal to a court and a penalty is imposed. Clemency proceedings are quite distinct. They are a form of procedure not known to us specifically, but which may well include what we might think of as an appeal for a reduction in a sentence''.

Members will understand why I am so concerned about that. We are talking about the Attorney-General saying that he thinks something might not be right, and that we might think something is one thing when it is something else. That is a confused picture, and it would clarify matters for our courts if we took out the reference to clemency proceedings and administration proceedings and concentrated on the nub of what mutual legal assistance should be about: criminal law. That is what we want to achieve, and I hope that the Minister understands that serious points have been raised.

I shall finish by quoting one of the most senior and distinguished fellows in another place, Lord Renton, who has contributed to debates on these matters for something in the order of 40 or 50 years. He said:

''Perhaps I may make a rather bold suggestion. We all have great respect for the Attorney-General's legal ability, but instead of committing himself to an answer on these confusing and difficult questions now, perhaps he would consider between now and Report the whole use of the expressions, 'administrative proceedings', 'criminal proceedings' and 'clemency'.''—[Official Report, House of Lords, 23 January 2003; Vol. 643, c. 71.]

From all of his experience, it seemed to Lord Renton that the Attorney-General was in a rather confused position. The provisions are complex. We are trying to take out some of the complexity, bring back clarity and restrict this part of the Bill to criminal proceedings, which is the nub of what we should concentrate on.

David Heath (Liberal Democrat, Somerton and Frome)

I welcome you, Mr. Benton, to the Committee this morning. I am sure that we are all intensely grateful to the hon. Member for Surrey Heath for reading out almost the entire transcript of a Lords debate. I am not sure, however, that he quoted the best of the debates on the Bill from another place. There was much confusion, not from the Attorney-General, but from some of the noble Lords as to exactly what they were talking about.

The fact is that legal systems vary between different countries in the European Union. We not only accept but applaud it. We do not believe in harmonisation of legal systems, and we do not want to have the same Code Napoléon as the basis of our legal system. We rejoice in English common law and Scots law, and have never attempted harmonisation between those two jurisdictions, let alone with our continental counterparts. That means that there will be different definitions for the proceedings that we are used to in England, those that Scotland is used to, and those that are considered the norm in continental Europe. Some criminal offences in this country have equivalents that are dealt with through administrative proceedings in other countries. Also, what other countries know as ''clemency proceedings'' are not known in English law in the same form; such cases are dealt with by the Court of Appeal in English law, in terms of administration, but they are not dealt with in the same way.

The basis for any mutual legal assistance treaty must be respect for, and accommodation of, each other's legal systems where possible. That is the basis on which the treaty was signed, and that is why administrative and clemency proceedings are expressly included. I do not have a problem with that.

However, I might have a problem if the mutual assistance arrangements were extended beyond Schengen countries to those with grossly different judicial systems that are not based on adherence to the European convention on human rights and the other norms of western Europe. I share that serious concern, if that is the issue that is meant to be addressed in the amendments. The Minister did not address that point when we discussed the issue earlier this week. On Second Reading, I gave the Minister the example of the United States of America, which has 51 jurisdictions with grossly different laws and proceedings. What is the norm for the commonwealth of Massachusetts is not the norm for the state of Mississippi. It would worry me intensely if we were to extend the proposals to American jurisdictions. There are other countries for which the effect would be even worse, because their systems are so alien.

On countries that are signed up to Schengen and the mutual legal aid convention, we have a problem not with the reliability of proceedings, but merely with the definition. We have to accept that mutuality is the key. There will be areas of English and Scots law that are unknown to German, Dutch or Spanish courts, but we expect their co-operation, because it is in our interests to expect it. It would be a mistake to take out substantial swathes of the legal systems of other

countries, simply because they are not expressed in precisely the same form in English or Scots law. The hon. Member for Surrey Heath is mistaken in his belief that that would be to our advantage, and I will not support his amendments.

Bob Ainsworth (Labour, Coventry North East)

The amendments relate to the assistance that the UK is obliged to provide, under Schengen and the mutual legal assistance convention, in cases of administrative and clemency proceedings, in certain circumstances. In some EU countries, such as Germany, Austria and Belgium, we are informed that certain traffic offences that would be criminal offences in this country are classified as administrative offences there. We must assist in proceedings brought by administrative authorities prosecuting such offences, provided that there may be a judicial phase to the proceedings—that is, that there is the possibility of an appeal to a court with criminal jurisdiction.

Mutual legal assistance may be sought—and, under the mutual legal assistance convention, must be provided—at earlier stages of the proceedings, and not only at the later stage, when proceedings come before a criminal court. In another place, the Government introduced an amendment to clause 14, so that the clause would more accurately reflect, and would pick up more fully, our obligations, and enable us to assist in the earlier stages of such proceedings.

The term ''clemency proceedings'' is difficult to define. After lengthy consideration, we do not think there are UK domestic procedures that could correctly be described as such and we have not sought to legislate to enable the UK to request assistance in such cases. We are, however, informed by our European partners that some of them have proceedings that may, in some cases, be analogous to what we might describe as appeal applications, which they describe as clemency proceedings. Again, there may not be a true equivalent between the UK legal system and those of our European partners.

Clemency proceedings were relevant to the original Schengen countries—Belgium, the Netherlands, Luxembourg, Germany and France—but the UK was a latecomer, so we had no influence on the drafting. Some of the terms are difficult to interpret, being based, as the hon. Gentleman says, on the civil law systems of the original member states.

Amendment No. 25 would mean that the UK could not provide assistance on administrative procedures or clemency proceedings, so we would be outside our treaty and international obligations. Amendment No. 27 would restrict assistance in clemency and administrative proceedings to cases in which proceedings have already been instituted. The use of the words

''or intended to be carried on''

is intended to equate to the investigation stage prior to the proceedings, in line with the stage at which we would assist in strictly criminal cases. For assistance to be granted, the requesting authority must pursue formal inquiries with a view to instigating proceedings at the same stage that assistance may be

requested when pursuing an investigation with a view to a criminal prosecution.

The hon. Gentleman said he desired to limit administrative proceedings, but Amendment No. 28 would widen their scope too much and would cover proceedings before a court, such as general civil proceedings, which are not covered by mutual legal assistance.

The hon. Gentleman's amendments would prevent us from fulfilling our international obligations on Schengen and the mutual legal assistance convention, so we cannot agree to them. The hon. Member for Somerton and Frome (Mr. Heath) has picked out a theme running through what the hon. Gentleman says, which is that there is almost a sense that unless other countries have exactly the same proceedings as us, which they call by the same names as we do and which have the same outcomes, we cannot co-operate and they must follow our legal system exactly.

I am also a little bit confused by the suggestion by the hon. Member for Somerton and Frome that we should do that for European countries, but not for the United States. Of course, the United States has a different legal system from us, but surely he does not suggest that we cannot co-operate with it, offer it mutual legal assistance or expect it to offer us such assistance in return. Within the framework of the Bill, we should be co-operating to the full on normal mutual legal assistance and, when we get into intrusive procedures, we should apply a dual criminality test before we are prepared to do that. That is exactly what we want to do in the Bill.

I do not understand why the hon. Gentleman appears to apply one set of rules to the United States and another to the EU. We should be prepared to co-operate with everyone on ordinary mutual legal assistance. When procedures become intrusive, we should make certain checks—for example, on dual criminality requirements.

David Heath (Liberal Democrat, Somerton and Frome)

I agree that we should co-operate in broad terms with the authorities in the United States, or those in any other country. There comes a point, however, where we have to ask whether the foundations of that law are based on the same principles as those in Europe. We are co-signatories of the European convention on human rights: some other countries are not. That is an obstacle in the provision of some areas of mutual assistance, including exchange of evidence for the purposes of—for instance—exercising the death penalty.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman is right: he used the word ''some.'' With regard to mutual legal assistance, we should, in general, be prepared to co-operate, whether or not the foundation of law is different. However, in some cases we should apply some kind of a test.

David Heath (Liberal Democrat, Somerton and Frome)

Exactly.

Bob Ainsworth (Labour, Coventry North East)

So the hon. Gentleman and I agree.

I ask the hon. Member for Surrey Heath to accept that we did make amendments in the House of Lords in response to issues that were raised. On this clause, the amendment that was made brings us into line with

our treaty obligations. His amendments would effectively oblige us to be in breach of them, so I cannot accept them.

Nick Hawkins (Conservative, Surrey Heath)

It has been useful that some things have been said on the record. I agree with the remarks of the hon. Member for Somerton and Frome about celebrating our differences but, having celebrated the differences in our legal systems, I come to a conclusion that is different from his.

It has been helpful that the Minister has confirmed that he agrees with me that these are complex and confusing matters—which is also what his colleague, the Attorney-General, said in another place, and I welcome the fact that the Minister accepted one of our amendments in another place on this clause.

I will not press this amendment to a Division, but I want to put on the record that we should not be in the situation that the Minister has just said that we are in. He effectively said, ''We—the British Government—have already signed up to this in a treaty, so Parliament must rubber stamp it.'' Committee members on these Benches are always very uncomfortable when we hear him say that, because it rather demeans the purpose for which we are all here. As I and many of my party colleagues have repeatedly said, the Government should get parliamentary authority before they sign up to all these things in treaties. If we did things that way around, we would have proper debate and Parliament would have its proper place.

Having said that, 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. 29, in

clause 14, page 9, line 8, at end insert—

'(aa) that if the conduct constituting the offence were to occur in a part of the United Kingdom, it would constitute an offence in that part, and'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss amendment No. 30, in

clause 14, page 9, line 13, leave out

'is to regard as conclusive a'

and insert

'may have regard to any'.

James Paice (Conservative, South East Cambridgeshire)

Good morning, Mr. Benton. I stand up and everybody else leaves.

Barry Gardiner (Labour, Brent North)

Is that an invitation?

James Paice (Conservative, South East Cambridgeshire)

Yes, I assure the hon. Gentleman that it is an invitation. If he wishes to leave, he is welcome to do so. If the Minister were to leave as well, I would not take umbrage—I would rapidly force through a number of amendments.

The Minister said that this was a complex area, and these amendments demonstrate some of that complexity. I have broached what the hon. Member for Somerton and Frome said earlier: this issue was debated in another place, and I will not repeat it. However, some of the key points were not thoroughly explored. Debates in the other place are short and

succinct: that is a feature of them. Sometimes that is a strength, but at other times it means that issues are not properly covered.

These amendments address dual criminality. Amendment No. 29 would require that powers to arrange for evidence to be obtained should take place only if the offence that is being investigated would be an offence in that part of the United Kingdom as well as in the country that is making the request for evidence to be obtained. The Minister will undoubtedly point out to me that that is precisely what the 1990 Act states, and therefore that what we are proposing is an amendment to that Act. That is true. However, I made a mental note on an earlier comment: the Minister is already significantly changing that Act to reflect changes in constitutional arrangements, and so on. From here on, we can put behind us the issue of whether that Act should be changed. We could debate whether the Act has worked satisfactorily over 13 years in the context of dual criminality—perhaps the Minister can reassure us—but the key thing is that a request could be made to United Kingdom authorities to gather evidence in relation to an investigation or proceedings relating to an act that is not an offence in this country. That is a matter of some concern. Generally, as the hon. Member for Somerton and Frome said, we share standards and approaches to law with the countries with which we signed up at the genesis of this legislation. However, there are variations; some things are offences in some countries and not in others.

There is great concern about the extension of this legislation beyond those countries. The way things are changing, I do not think that it is extreme to suggest that we might receive an application from a country that practises sharia law. Its legislation will be based on a completely different religious ethos from ours. We must, therefore, question whether this country should assist other countries' authorities in prosecuting in this country a person who is accused of something that we would not dream of considering to be a crime. That important point is highlighted by some contradictions in the legislation. Subsection (2) clearly omits reference to an offence being an offence in this country, but says that it should be an offence in the country in question, whereas subsection (4) relates to fiscal offences that must also be offences in this country. That contradiction is not easy to explain.

Clause 16 deals with the extension of statutory search powers. That is part and parcel of obtaining evidence, which is what this clause is about. It contains the caveat in subsection (1)(b) that it

''would, if it occurred in England and Wales, constitute a serious arrestable offence.''

In other words, there is a contradiction between the collecting offence—the statutory search powers that might be necessary—and the fiscal offences.

We face an issue of principle—should we help to prosecute or provide evidence that might lead to the prosecution of a person for something that is not an offence in this country?—and also the problem of what appear to be contradictions between clauses and even

parts of clauses. I hope that the Minister can address those matters.

I shall not quote at length from another place, but the Attorney-General said in reply to the debate:

''To require a demonstration that the offence is an offence in this country would require an overseas authority investigating an offence under its own law to take on an unnecessary burden.''—[Official Report, House of Lords, 23 January 2003; Vol. 643, c. GC76.]

My first response to that is, ''so what?'' Our principal responsibility must be to protect our own citizens. I should have thought that the rights, privileges and freedoms that we take for granted in this country should take precedence. The Attorney-General's argument is completely undermined by the contradiction between the fiscal legislation and the terms of the statutory search powers in clause 16. I hope that the Minister will not again parade that as an argument, because it does not stand up to examination.

Amendment No. 30 reflects the same issue. Line 16 on page 9 states:

''If it appears to the territorial authority that the request for assistance relates to a fiscal offence''.

Elsewhere there is use of the phrase, ''regard as conclusive''. We have been celebrating the differences between legal systems, but the suggestion is that we should automatically regard as conclusive anything that comes forward. As far as administrative proceedings are concerned, the Secretary of State needs an element of discretion. The obligation to regard as conclusive is therefore not necessarily correct, and we propose to remove that and insert,

''may have regard to any''

information. That leaves the Secretary of State with an element of discretion over whether to proceed and provide the assistance that is sought.

The amendment relates to some of the arguments of the previous debate, but I shall not repeat those. It relates to the vagueness about what is an administrative proceeding. It is because that definition is vague, and because of the point made by my hon. Friend the Member for Surrey Heath that things considered as administrative proceedings in some countries are not considered so in this country, that the Secretary of State should retain an element of discretion that is not apparent in the legislation as drafted.

David Heath (Liberal Democrat, Somerton and Frome)

I congratulate the hon. Member for South-East Cambridgeshire (Mr. Paice), who took the trouble to make the arguments afresh. My only criticism of the previous debate was that reading out large parts of the Lords debate is otiose. To make the arguments, however, is perfectly proper.

The issue of dual criminality is important. The Minister needs to say whether criminality becomes an issue at the point of an intrusive procedure or at the point when the original request is received. The argument of the hon. Member for South-East Cambridgeshire is that that should be included in this clause, and that criminality should come into effect at the point at which the request is received. I

suspect that the Government will say that that is not the right point, and that criminality should come into effect when investigations of an intrusive nature are instigated in this country.

That debate is arguable in either direction, but accepting the argument for inclusion at an earlier stage would obviate the need to have it later. That, however, could prevent basic information from being passed on in co-operation with an overseas authority, such as information on police records about the identity or existence of a person in a country. It might be possible for such information properly to be passed to an overseas authority without the instigation of intrusive procedures for collection of evidence. I can see that there are arguments either way, and I look forward to the Minister's reply. The provisions will not have as serious a consequence as the hon. Member for South-East Cambridgeshire thinks because safeguards exist in later clauses. He was good enough to accept that point.

I have a problem with amendment No. 30, which is not based simply on the fact that I think we should respect each other's authorities, and that a basic level of trust is appropriate. I am not sure whether an authority in this country would be in a position to challenge the institution of proceedings in another country, or challenge whether there was reasonable suspicion that an offence had been committed in that country. I should have thought that only the legal authorities in that country were in a position to say that, so the certificate must be accepted at face value unless it is manifestly absurd. I have a degree of confidence that judicial authorities in other countries would not put forward a certificate that was so absurd.

We must always consider the reciprocal arrangements. For example, would we expect a Belgian authority not to accept the fact that the Cambridgeshire constabulary had started investigative or legal proceedings against a person and that those proceedings were based on an offence in the United Kingdom? We would not expect that to be challenged by an authority in another country, when making a request for mutual assistance. Although I understand the hon. Gentleman's point, I am not sure that there are circumstances in which such a challenge would be sustainable or open to sensible investigation, other than in an extreme situation when a certificate was manifestly absurd. I note that he is about to give me an example.

James Paice (Conservative, South East Cambridgeshire)

I am not about to give the hon. Gentleman such an example, but I thank him for giving way. The provision states that the certificate that is to be regarded as conclusive is

''a certificate as to the matters mentioned in subsection (2)'',

which states

''that an offence under the law of the country in question has been committed or that there are reasonable grounds for suspecting that such an offence has been committed'',

or that an investigation is being carried out. There is nothing in the provision that necessarily relates such matters to evidence that may exist in this country. Before we expend resources on searching for evidence or arranging for evidence to be obtained, it is right that

the territorial authority in this country should have information on whether there is evidence in this country to support it. Such action does not constitute an argument about whether an offence has been committed in another country. We would take that as an honest statement. The matter is critical, given that British resources will be used. I am worried about whether there will be an implication for this country.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the hon. Gentleman for his intervention. I understand his point but, with great respect, if that were his intention, the amendment is aimed in the wrong direction. He should be adding a requirement to subsection (2) that needs to be satisfied. At present, the only things that remain to be satisfied are the two points under subsection (2), the first of which is that an offence has been committed or that there are reasonable grounds for suspecting that an offence has been committed and, secondly, that legal or investigative proceedings have been undertaken. Both issues are conclusive. They are not open to sensible challenge from the authorities in this country.

The hon. Gentleman is asking for a third condition, which is that there are reasonable grounds for suspecting that there is evidence that is pertinent to those conditions in this country. Had he tabled an amendment to that effect, it would have given rise to a more considered debate.

James Paice (Conservative, South East Cambridgeshire)

I take the hon. Gentleman's point. There is another way in which to go about matters. I want to introduce an element of discretion. The certificate may be conclusive in respect of subsection (2)(a) and (b), but it should not be conclusive that the authority should commit British resources. Saying that it should be regarded as conclusive, but that it may have regard to a certificate reassures us about part 2, and leaves open the discretion that there should be some sign of the matter being relevant to this country. The hon. Gentleman's alternative suggestion may be a different way in which to proceed, but I strongly contend that my proposed amendment also opens up that element of discretion, which is all that I am trying to achieve.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful, but I still have to argue with the hon. Gentleman about the adequacy of his amendment. Discretion is covered under clause 14(1), which states:

''The territorial authority may arrange for evidence''.

That deals with his point. He is trying to allow for the question of the certificate under subsection (2). That is an open and shut case. Obviously, I have not persuaded the hon. Gentleman of the logic of my argument. However, I have entirely satisfied myself.

Bob Ainsworth (Labour, Coventry North East)

It is good to know that the hon. Gentleman is satisfied. Amendment No. 29 would require dual criminality in respect of any requests for evidence. There is currently no requirement for that in respect of requests for evidence to be taken before a court. To introduce it would be a backward step. It is contrary to international agreements, including the 1959 Council of Europe convention on mutual legal assistance, which the United Kingdom ratified in 1991.

We would not want other countries to make a dual criminality requirement in respect of all requests from the United Kingdom. That would hinder an effective investigation of crime. The hon. Member for South-East Cambridgeshire says that we should not tell him that such measures were in the 1990 Act, but explain how the 1990 Act has operated. We do not keep records that show how frequently we assist in matters that are not considered to be offences in this country.

There is no requirement to establish whether there is dual criminality, so it would be a poor use of resources to require case workers to assess that in every case. I cannot therefore inform the hon. Gentleman of how many times or in what ways we have given assistance when the dual criminality measure would not apply. I am sorry that I am not able to do that, because records have not been kept.

Amendment No. 30 would introduce discretion where none currently exists. It would require the territorial authority to establish the validity of the basis of a certificate independently of the confirmation provided by the requesting authority. We consider that the subsection is correctly drafted. It replicates the existing provision and provides that a certificate from an overseas authority is to be regarded as conclusive about the matters covered by the request. In all but exceptional cases, the certificate is not required.

The letter of request will contain sufficient information for the territorial authority to be satisfied over the measures in subsections (1) and (2). It is not a requirement for us to go behind the request and independently establish the facts of the case. As the hon. Member for Somerton and Frome said, we would not necessarily expect in such cases that an overseas authority would go behind a request that we made to find out whether a police force were carrying out such an investigation or whether a matter appeared before a court.

A certificate is useful in particularly complex cases as it sets out exactly which matters are being investigated when that is not clear from the request. In such cases, the territorial authority may ask the requesting state to send a certificate setting out further information to support the original request. Under the 1990 Act, there have been infrequent occasions when the central authority has insisted on a certificate, but the provision has been used to good effect in those cases where it has not been clear what the purpose of the request was from the original letter or subsequent inquiries that have attempted to clarify the position.

As the hon. Member for Somerton and Frome says, it comes down to when we impose the dual criminality requirement. In past years, we have imposed it only when coercive investigative procedures or searches have been involved. I do not believe that problems have arisen from that, but I cannot give the hon. Gentleman chapter and verse on the subject. We plan to replicate the provisions of the old legislation in the Bill, and we will not do what the hon. Gentleman asks us to do—impose a dual criminality requirement in areas where we have not previously done so, and where we do not perceive there to be a problem.

James Paice (Conservative, South East Cambridgeshire)

Well, the seventh cavalry has left, and the sixth-and-a-half, in the form of the hon. Member for Somerton and Frome, has come to the Government's rescue. It seems today that the Lib-Lab pact is riding high again, and is trying to knock down the amendments that my hon. Friends and I have tabled. We should table several more amendments. [Interruption.] If the hon. Member for Somerton and Frome tempts me, I shall table considerably more.

The issue of dual criminality is clearly a matter of judgment and opinion. I understand the Minister's arguments on why the provision should not come in, but I remain of the view that it should. However, he is clearly adamant on the subject. I was interested to hear that he does not actually know what the impact has been—he explained why—or whether the issue has arisen in the 13 years since the 1990 legislation was passed. I was really trying to extract that information.

On amendment No. 30, it came out in the Minister's reply that what I am seeking is actually taking place; there are occasions on which the authority will ask for further information. I think that that is what the Minister said. He said that there are occasions when the authority may go back to the country that is asking for assistance.

Bob Ainsworth (Labour, Coventry North East)

In my understanding, not after the certificate; the certificate is effectively what brings the matter to a close. An original request is made. Sometimes, clarification of the request is sought, and sometimes—although rarely—there are difficulties getting that. The certificate is the last method used to impose clarity on what exactly is being asked for.

James Paice (Conservative, South East Cambridgeshire)

That is a helpful intervention. Clearly, I slightly misunderstood the Minister's earlier comment. None the less, what the Minister says means that it is not simply the receipt of a certificate that takes place, but an exchange of information before that. In practice, what I am seeking to achieve is that some evidence apart from what appears baldly in Bill, which is the simple fact that

''an offence . . . has been committed or that there are reasonable grounds for suspecting that such an offence has been committed, and . . . that proceedings . . . have been instituted'',

all of which could be put into two lines of a document. The Minister is telling us that there is more to the matter than that. I am puzzled as to why that is not made clearer in the Bill. The point is that, from what the Minister has said, what I am seeking to achieve, which is that authorities should be given more information than the bald facts outlined in subsection (2), is already provided for, so it is pointless to pursue that amendment.

That brings me back to the issue of dual criminality, which remains a matter of debate and judgment, and on that basis we had better leave the amendment this time. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14 ordered to stand part of the Bill.

Clause 15 - Nominating a court etc. to receive evidence

Nick Hawkins (Conservative, Surrey Heath)

I have a brief point to raise. The clause was not debated at all in the other place, because there were a couple of amendments that Baroness Carnegy of Lour did not move, for reasons that she explained. In effect, the clause went through the other place on the nod. We on the Conservative Benches do not have a problem with the clause; in fact, we strongly approve of subsection (2), which is about the Secretary of State referring matters that relate to serious or complex fraud to the director of the Serious Fraud Office.

I hope the Minister will be able to answer just one question. If he cannot answer it today, I hope that he will, with his usual courtesy, do me the honour of writing to me to explain things. Subsection (1) says:

''Where the evidence is in England and Wales or Northern Ireland, the Secretary of State may by a notice nominate a court to receive any evidence to which the request relates which appears to the court to be appropriate for the purpose of giving effect to the request.''

What form will that notice take? If that has, as I anticipate, been going on since the 1990 Act, perhaps the Minister could show me an example of the notices that are used. If he cannot answer now, perhaps he will write to me and other Committee members.

Bob Ainsworth (Labour, Coventry North East)

If there is a standard notice, I shall provide all Committee members with a copy.

Sylvia Hermon (UUP, North Down)

I am delighted to see you in the Chair, Mr. Benton.

Will the Minister clarify yet again his point on the Assets Recovery Agency? It does useful work tackling serious fraud and basic criminality, committed principally by loyalist and republican paramilitaries in Northern Ireland, but has extensive powers throughout the UK. Will the Minister consider whether under the clause a request for evidence would impinge on the good work that the agency is doing?

Bob Ainsworth (Labour, Coventry North East)

The hon. Lady suggests a request for evidence from an overseas authority. It is difficult for me to respond off the top of my head. I do not see how, by the mere fact of having established an agency to try to seize and confiscate criminal assets, we can or should refuse to give mutual legal assistance on requests from abroad. I am not certain that one will cut across the other. I am happy to explore that outside with the hon. Lady, to try to satisfy her that that is not the case. I know that she is concerned that the Assets Recovery Agency should be as effective as possible, especially in Northern Ireland. I am reaching for her concerns, but I do not understand how those arise as a result of our giving mutual legal assistance and cutting across the Assets Recovery Agency.

Sylvia Hermon (UUP, North Down)

The Minister will appreciate that it tracks devious individuals who are well organised through their paramilitary links and connections that they have built up over many years. I am concerned that if a request came from a court, tribunal or body in

the Republic of Ireland, which shares a land frontier with Northern Ireland, it could jeopardise ongoing investigations carried out by the Assets Recovery Agency.

Bob Ainsworth (Labour, Coventry North East)

There is no requirement on us to give assistance if ongoing procedures in this country could be jeopardised by giving evidence or assistance offered abroad. We would have to be certain about that. A problem could potentially arise, because people would need to be aware of all the investigations that are taking place, including those carried out by the Assets Recovery Agency. I can see the hon. Lady's point. I shall consider that further and contact her outside the Committee.

Question put and agreed to.

Clause 15 ordered to stand part of the Bill.

Schedule 1 agreed to.

Clause 16 - Extension of statutory search powers in

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 34, in

clause 16, page 10, line 16, after first 'investigation', insert

'of which he has personal knowledge'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following:

Amendment No. 35, in

clause 19, page 11, line 33, at end insert

'within such time as the Secretary of State may by order prescribe'.

Amendment No. 36, in

clause 19, page 11, line 33, at end insert—

'(1A) A constable who has seized evidence under or by virtue of sections 16, 17 or 18, shall make and retain a copy (or, where appropriate, a photograph or other representation) of that evidence in accordance with regulations which shall be made by the Secretary of State by order.'.

Amendment No. 133, in

clause 19, page 11, line 32, after 'sent', insert

'after a period of seven days'.

James Paice (Conservative, South East Cambridgeshire)

The Conservatives have three disparate amendments in this group, which includes one tabled by the Liberal Democrats. In amendment No. 34, I return to a point that I raised in a previous sitting. There appears to be a discrepancy between the Bill and the explanatory notes in relation to obtaining the warrant for statutory search powers and whether the officer who seeks such a warrant knows what he or she is talking about.

As drafted, the Bill refers to the person making the application as a member of the international joint investigation team. Simply being a member of a team does not necessarily mean that every member is fully up to speed with the details of the case, and paragraph 61 on page 11 of the explanatory notes states:

''The constable making the application for the warrant or order would have personal knowledge of the joint investigation as he would in making such an application in a domestic investigation.''

Although it may seem pedantic, the amendment would put in the Bill precisely what the explanatory notes

lead us to expect would be the case: that anyone making an application for a warrant knows what they are talking about and has personal knowledge of the case rather than simply being part of a team, which could be a loose association. It may be difficult to define precisely who is a member of a team.

I am delighted to point out to the hon. Member for Somerton and Frome that the issue raised in amendment No. 35 was not debated in the other place, nor was the issue raised in amendment No. 36, before the hon. Gentleman rushes to assert his reason for tabling his amendment.

Clause 19, which refers to seized evidence, presumably the result of search powers, should include a time frame in which to comply with the request for assistance. Amendment No. 35 proposes that the time scale be laid down by the Secretary of State, and the hon. Gentleman's amendment proposes a period of seven days. It is a matter for debate; an element of discretion would be appropriate because seven days may not be enough time in some cases. The Secretary of State should have discretion, but he and the authorities need some discipline to deal with the matter within a reasonable period. Requiring the Secretary of State to lay down a time frame would make things clear and clarify the issue for the overseas authorities who seek information from this country. They would know the time they had to operate, how long they had to wait and when they could proceed to the next part of their proceedings.

Amendment No. 36 is important. It would require a replica or copy of the evidence obtained in this country to be made before it is passed to an authority from another country. The Minister will challenge me by asking why we need a copy in this country—the answer might be that I do not know—and I will tell him that it is because it is not possible to foresee the circumstances in which that information could be useful. We do not know whether subsequent investigations may hinge on that evidence. This country could commence a criminal investigation on the back of what has taken place in a court in another country. That happens, and the evidence may become useful at a later stage. It is important therefore that a copy, replica or representation should be made so that our authorities have a record of the evidence that has been handed over.

Sylvia Hermon (UUP, North Down)

The hon. Gentleman has raised an important point. One example of its significance would be if evidence were requested by the Republic of Ireland in the ongoing investigations into the Omagh bombing, because there are persons who have not faced trial in the Republic but whom we believe to be connected with the bombing. If evidence left Northern Ireland under this legislation—properly, as I welcome co-operation between member states—I would hope that in pursuing those within Northern Ireland who are responsible and have never been brought to justice for the deaths of 31 people in Omagh, we would be able to avail ourselves of the evidence that had been sent to the Republic of Ireland.

James Paice (Conservative, South East Cambridgeshire)

The hon. Lady has filled a gap in my knowledge and argument, and I am grateful to her. She gave a good example and clear answer to the question that I suggested that the Minister might ask.

Another point, on which the hon. Lady's intervention allowed me to refresh my mind, is about protecting our officers from accusations that they have tampered with evidence. The police have raised their concern about protecting British officers from misplaced accusations, which is relevant for several parts of the Bill, especially clause 82. If a copy, replica or representation of evidence is taken, it could help prevent or respond to accusations that the police in this country have tampered with evidence, collected incorrect evidence or failed to send it all. Although the three amendments are in some ways disparate, they are all important. However, amendment No. 36, which is about keeping a copy, is the most important.

David Heath (Liberal Democrat, Somerton and Frome)

I thank the hon. Gentleman for tabling the interesting and novel amendments. They explore important areas, and I have some sympathy with each of the three. I shall speak briefly to those amendments before covering my own.

The hon. Gentleman is right that amendment No. 34 could be held to be pedantic. I have not had a chance to look at the Police and Criminal Evidence Act 1984, so I have not checked whether a similar requirement is written in law for domestic search warrants. He drew the analogy of practice in an English court, and it is a question that would not normally be asked by a magistrate or circuit judge who agreed to a search warrant. Irrespective of whether it is written into statute, it raises an important point and I hope that the Minister will respond appropriately.

The hon. Gentleman's point about keeping a record of evidence is serious, and I agree that amendment No. 36 is the most important of his group. One can envisage circumstances in which evidence requested and removed from the United Kingdom on this basis might have evidential value in future proceedings in the UK or in disciplinary hearings against officers who were accused of improperly discharging their duties. It would be entirely appropriate to have some sort of record, and I hope that the Minister will seriously consider the point. If he cannot accept the amendment, I hope that he will at least take advice on the value of the proposed procedure.

On the time frame, amendment No. 133, which is in my name and that of my hon. Friend the Member for Orkney and Shetland, and amendment No. 35 work in opposite directions. The time frame in one would mean that evidence could not be passed on before a certain time, while the time frame in the other would limit the length of time that the overseas authority could reasonably expect to wait before evidence was transmitted. Both amendments have their value.

My amendment was suggested by the Law Society and is intended to deal with one of its concerns, which I hope that the Minister will address. The society does not want to frustrate the principle or the reality of mutual recognition, or to impede the passing on of evidence. However, it is concerned about the position of legally privileged material, as set out in the Criminal

Justice and Police Act 2001 and in code B of the 1984 Act. The protections in those Acts reappear in clause 26, but if evidence is passed on before a reasonable time—it need only be a short time—there will be no opportunity to make an application in respect of legally privileged material. In other words, the safeguards will be rendered useless by the fact that the evidence has already been passed on. One could complain as much as one liked to the court that it was legally privileged, but that would have no effect once it had passed to another jurisdiction. The Law Society therefore suggests that there should be at least a short period to allow that process to take place and the safeguards to become a reality.

I think that the Minister understands the point, and it is not unreasonable. I leave it to him to decide whether seven days is an appropriate length of time. The purport of the comments by the hon. Member for South-East Cambridgeshire was that there should be an upper limit, although I do not know what would constitute a reasonable period—one could almost pluck a figure out of the air. However, it would be reasonable at least to give authorities guidance as to what would constitute a reasonable upper limit.

This is an interesting group of amendments, all of which have a purpose and all of which would make a significant difference to the operation of the Bill. The Minister would do well to take careful note of them.

Bob Ainsworth (Labour, Coventry North East)

The purpose of the amendments is to impose greater safeguards on the acquisition and communication of evidence obtained in response to an overseas request. However, the Bill already provides sufficient safeguards.

Amendment No. 34 relates to subsection (2)(b) and to international joint investigation teams. Article 13 of the mutual legal assistance convention provides a framework for establishing such teams. Their purpose is to carry out joint investigations into crimes with cross-border elements, with a view to improving and speeding up the investigation of such crimes. Teams will be set up by two or more member states for a specific purpose and for specific investigations, which may be carried in any of the participating member states. All team members must act under the direction of the team leader, who must be provided by the competent authorities of the member state where the team carries out its investigation. If the investigation moves into another member state's territory, the team leader will change. Teams based in the UK and led by a senior UK customs officer, for instance, would be answerable, through him, to Her Majesty's Customs and Excise. Teams led by a senior UK police officer, while in the UK, would be answerable to their own chief of police.

Nick Hawkins (Conservative, Surrey Heath)

When I read in the response from the Attorney-General in another place what the Minister has just read out about the fact that, when a cross-border investigation is taking place, the team leader will change as soon the investigation moves to another state, I was slightly puzzled. It seemed to me that it would be more sensible, as long as officers from the state that it had just moved into were still involved, if

the team leader remained the same throughout. Otherwise, the situation is a recipe for confusion. Will the Minister reflect on that? I realise that he cannot change the practice now, but will he at least talk to his officials about whether it might be talked about with our European partners? Knowing a little about investigations, I submit that the system would surely work better if the team leader stayed the same throughout.

Bob Ainsworth (Labour, Coventry North East)

I am not sure that I agree with the hon. Gentleman. The point that I am making on the amendment is that the team will not be loosely defined, as the hon. Member for South-East Cambridgeshire suggested. The members have to be seconded to the team, and there has to be an agreement to set up the team. The composition of the team is as set out in the original agreement. I am not sure that the hon. Member for Surrey Heath would want that for which he asks. Is he seriously suggesting that a joint investigation team should carry on its operations in this country with a Dutchman or German in charge? I would probably be much more comfortable with that than the hon. Gentleman would be, but that is the purport of what he says. It is not what the convention says, and I am not certain that it would be acceptable.

When an operation took place in our country, we would require that the person leading the team was a senior police officer or a customs officer, and of course they would need other members in order to be able to co-operate with foreign jurisdictions, establish lines of communication and cut out the bureaucracy that would otherwise be imposed. I shall reflect on what the hon. Gentleman says, but I hope that he will, too, because he would have many more concerns about what he asks for than I would.

Sylvia Hermon (UUP, North Down)

I am grateful to the Minister for taking yet another intervention. I have mentioned this point to him privately, and it concerns me greatly. In the operation of a joint investigation team, with the best will in the world, sometimes things go wrong. Could the Minister confirm that if something goes wrong in Northern Ireland, the complaint will go to the police ombudsman—who does a terrific job against a lot of opposition and who takes a lot of unjust criticism—and that if something goes wrong elsewhere in the United Kingdom, the complaint will go to the Police Complaints Commission?

Bob Ainsworth (Labour, Coventry North East)

The accountability that the hon. Lady talks about is the reason why the joint team needs to be led by a person covered by the jurisdiction in which it operates. Only if it is led by a British police officer operating in the UK can that team be accountable through that senior person, who is in charge of the team and leading the team for that duration. If it is led by a foreign police officer or foreign customs officer, the lines of accountability would become blurred and difficult.

Sylvia Hermon (UUP, North Down)

I have to press the Minister a little further, because I was bitterly disappointed by the written reply of 19 May from the Minister of State, Northern Ireland Office. I asked whether any consultations had taken place with the Police Ombudsman for Northern Ireland. Her reply was:

''No consultations have taken place with the Police Ombudsman in relation to the Crime (International Co-operation) Bill.''—[Official Report, 19 May 2003; Vol. 405, c. 591W.]

That was a very disappointing response. I expected there to be consultation.

There might be a joint investigation team with officers from the Garda Siochana. Sensitivities are involved, which must be recognised by the UK Government. If there is a joint investigation team, the ombudsman—or the Police Complaints Authority, elsewhere in the UK—must have jurisdiction to investigate complaints against such officers. That is important.

Bob Ainsworth (Labour, Coventry North East)

I understand that point. When we were drawing up the legislation, we consulted the Northern Ireland Office. It has been involved, and it is happy with the current drafting, but it is difficult for the Home Office to become involved in matters such as the people it chose and how it came to that conclusion. Those are matters for Northern Ireland, but the hon. Lady is seeking to draw me into them. I do not know what consultations took place or whom the Northern Ireland Office chose to consult on the framing of the legislation before it returned to us.

Sylvia Hermon (UUP, North Down)

I am grateful to the Minister for giving way again: I promise not to interrupt him for at least another five minutes.

I wish to put it on the record that I have no criticism to make of the Home Office. It has worked hard with representatives from my party—on the Criminal Justice Bill, for example—and the Minister has tried to co-operate with my colleagues and I. The difficulty is with the Northern Ireland Office.

Bob Ainsworth (Labour, Coventry North East)

I fear that the hon. Lady is drawing me into something that she is more familiar with than I am, and that this is an axe that she has chosen to grind—I do not use that phrase in a derogatory way—for some time. I do not understand every aspect of the matter, so I hope that she will forgive me if I do not seek to go into it any further.

David Heath (Liberal Democrat, Somerton and Frome)

I shall move the Minister away from Northern Ireland, which may come as a relief to him.

As we are considering amendments to clause 19 and the position of the international joint investigation teams, I hope that it will not be out of order for me to ask this: how will the evidence that is obtained under a warrant by a member of a joint investigation team get to the traditional authorities in the country in question, given that clause 19(3) appears to delete references to the international joint investigation team from the arrangements for transmitting evidence to the judicial authorities?

Joe Benton (Labour, Bootle)

Order. As we are not yet debating clause 19, it might be more appropriate if that question were debated when we do so.

David Heath (Liberal Democrat, Somerton and Frome)

Thank you, Mr. Benton. I am happy to raise it then.

Bob Ainsworth (Labour, Coventry North East)

I will comply with that. However, if the hon. Gentleman reflects on this matter, perhaps he will recognise that a request from a joint investigation team should go back to the joint investigation team. It is for that team to continue its investigation: it is not

obliged to transmit such things to a requesting authority, as it is effectively the requesting authority itself. We can discuss that when we deal with clause 19.

I shall continue dealing with the amendments that we are discussing. On amendment No. 34, subsection (2)(b) enables constables acting as members of international joint investigation teams to apply for search warrants or production orders under the Police and Criminal Evidence Act 1984. That implements article 13(7) of the mutual legal assistance convention, which provides that members of a team should be able to request their own authorities to take such measures as they would be able to request in a domestic investigation. A UK member of a team who is a police officer would be able to apply for a search warrant or a production order for evidence in the UK in relation to an overseas investigation, without a formal request from abroad. Such a request would not be necessary—to go on to the point that the hon. Gentleman was just making—as the police officer would be able to apply for such a warrant or production order on the basis of his own knowledge of the investigation. The usual domestic safeguards set out in PACE would apply to such applications.

Amendment No. 34 seeks to ensure that the constable has personal knowledge of the investigation in question. That is unnecessary, because the constable applying for a search warrant or production order in these circumstances must be a member of the joint investigation team, and the warrant on the order must be sought for the purposes of that investigation. Officers in joint investigation teams will clearly have personal knowledge of the joint investigation, just as they would if seeking a search warrant as part of a domestic investigation.

Amendment No. 35 would impose a time limit for the transmission of seized evidence to the requesting authority, which is to be set by the Secretary of State in an order. Amendment No. 133 would delay the transmission of evidence with the effect that evidence must be held for seven days before it can be transmitted. Both amendments present problems. The imposition of a deadline would be restrictive. The UK is under no obligation to return evidence within a specific period and current legislation does not set time limits. It is a matter of good practice that evidence will generally be returned as soon as possible. Transmission will usually be immediate, but that does not mean that a specified time limit would be of benefit.

There may sometimes be good reason not to return evidence immediately. For example, a request might involve multiple searches, in which case it may be practical to wait until all the evidence has been obtained and consolidated rather than sending a stream of different items back separately. Alternatively, there might be an application for a judicial review, which needs to be resolved before the evidence is transmitted. Other cases will be straightforward and involve a single production order, and it should be possible to send the evidence

back straight away. In such cases, retaining the evidence would cause unnecessary delays.

Amendment No. 36 would impose a mandatory requirement to keep a copy of all evidence obtained in response to a mutual legal assistance request. I can tell the hon. Member for North Down (Lady Hermon) that the police are free to make such a copy if they want to and believe that it will assist them, or they need to because they want the safeguards that the hon. Member for South-East Cambridgeshire mentioned. If a particular investigation was subsequently started in this country, we would be able to request evidence required for our own investigation to be returned under the same jurisdiction that we provided the evidence in the first place. To move from that to a requirement in statute to keep a copy of every item of evidence required is quite different.

The hon. Member for Somerton and Frome asked whether there was a problem with legally privileged material, whether an application could be made and whether there was a potential problem with the immediate transmission. I shall reflect on whether there is a real problem and return to him later. I understand his point, and we would not want to delay straightforward pieces of legislation; I am sure that the hon. Gentleman would not want us to sit on information for seven days without good reason. However, there might be practical problems if people wanted to make a challenge, and we had denied them that opportunity. I shall check the procedures to see whether I can satisfy the hon. Gentleman.

Stephen Hesford (Labour, Wirral West)

Will my hon. Friend give way?

Bob Ainsworth (Labour, Coventry North East)

My hon. Friend may be able to help me.

Stephen Hesford (Labour, Wirral West)

It is possible—anything is possible.

I am listening to the Minister with interest. If we help a foreign jurisdiction collect evidence, and we send the evidence to that jurisdiction under these procedures, is there any duty on it to look after the evidence and treat it properly? My hon. Friend has just made the reasonable point that if we started an investigation, we could request the evidence back. However, if the evidence has been destroyed, lost or mishandled, we will not be able to get it back. Is there at least an expectation or duty to look after the evidence?

Bob Ainsworth (Labour, Coventry North East)

I do not believe that any duty is imposed by the treaties, but there are, obviously, procedures and requirements within each jurisdiction for maintaining and keeping records, and for looking after evidence that is being used in a court case. They might differ from ours; they might not be as extensive as ours and we might not be able to help with subsequent requests for return of evidence that has been supplied to us. I accept my hon. Friend's point, but the only way round that would be for us to keep copies of every single thing that we send in every case and to be prepared to retain them for long enough to cover all eventualities.

David Heath (Liberal Democrat, Somerton and Frome)

First, I thank the Minister for agreeing to consider my earlier point. I am not trying to be a barrack-room lawyer or to pose difficulties, but I wonder whether police really have the power to make copies and to retain material that they have seized under warrant for the specific purposes of an offence under another jurisdiction, which does not relate to investigation of an offence under British jurisdiction and is not clearly of value in investigative or judicial procedures. Might they not fall foul of data protection legislation in such circumstances? I do not know the answer, and I am not trying to be clever, I just wonder whether that is an issue.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman might not be trying to be clever, but he seems to want to have his cake and eat it. Let us keep everything by statute—

David Heath (Liberal Democrat, Somerton and Frome)

By statute, that is the point.

Bob Ainsworth (Labour, Coventry North East)

Absolutely. I am told that the police can keep information gathered in response to a request from a foreign jurisdiction if they believe that it is appropriate to do so. If the situation is different, I shall clarify it.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to hon. Members who have participated in the debate and to the Minister for his reply. The issue of making and retaining copies or replicas seems, by common consent, to be the most significant. I understand what the Minister says, but I am not convinced about the ability to do so, if it exists, and I share the doubts of some hon. Members about whether there are constraints in the way of the police. I seem to recall that the copying of some evidence is not permitted, but I might be wrong. It is a big issue.

The Minister seems to be saying that if I had used the word ''may'' instead of ''shall'' make and retain a copy, he would have said that it is not necessary because they already can. He seems to be taking issue with the obligation represented by the word ''shall''. I recognise that that might be seen as sometimes onerous. However, as I said in my opening remarks, one cannot always predict events. It is all very well saying to the police that they can if they want to, but they might not know what is coming either. As the hon. Member for Wirral, West (Stephen Hesford) said earlier, one cannot be certain that one will get the material back, whatever the intention might be. I hope that the Minister will revisit the issue. It is important, and we shall want to return to it.

Of the earlier amendments, amendment No. 35 concerns the time scale. The hon. Member for Somerton and Frome read into it that I was working in an opposite direction to his. I was merely leaving the Secretary of State with the flexibility to set minima and maxima. I am reluctant to admit it, but I am probably persuaded by the Minister's argument that there are so many variables that the object would be difficult to achieve, so we shall pass on that.

On the question whether the officer has personal knowledge, I do not see why that should not be in the Bill if it is current practice and if it is described in the explanatory notes. Nevertheless, I recognise the Minister's argument, especially when he referred to

the team being a discrete team, not a loose association. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 ordered to stand part of the Bill.

Clause 17 ordered to stand part of the Bill.

Clause 18 - Warrants in Scotland

Clause 19 - Seized evidence

Nick Hawkins (Conservative, Surrey Heath)

I know that the hon. Member for Somerton and Frome has already said that he wants to raise a point about the clause, but I want to ask the Minister a one-sentence question. The clause states:

''where the evidence consists of a document, the original or a copy is to be sent''.

The Minister will recall that some very important terrorist cases in the Irish Republic collapsed because the prosecuting authorities in this country did not manage to send the right documents: they sent copies when they should have sent originals. I am not making a politically partisan point, because that has happened under Governments of both parties.

Will the Minister reassure the Committee for the record that we will not have any problems with other countries, especially the Irish Republic, by inserting into our law a clause that states that where the evidence consists of a document, the original or a copy is to be sent? I hope that the Minister understands the serious point that I am trying to make. I am trying to be helpful, and I want to ensure that the Minister and his officials can reconsider the subsection if they need to ascertain whether they need to insert a subsection that says, in effect, ''But we know that we always need to send an original if the other court requires it'', or something along those lines.

David Heath (Liberal Democrat, Somerton and Frome)

I want to pursue an issue that I attempted to raise earlier. I am trying to ensure that subsection (3) does not introduce any difficulty. An international joint investigation team may investigate offences in this country or under another jurisdiction. There is no problem if, for the purposes of its investigation, the team seeks a search warrant and seizes material that is to be used in proceedings in this country. If it seizes material to be used under another jurisdiction, would the court in that jurisdiction have to make a new request to enable the material collected by the joint investigation team to be transmitted to that court? In what circumstances could the team use evidence in an investigation into a matter that was already the subject of proceedings under another jurisdiction? Will the disclaimer in subsection (3) prove to be an obstacle to using what common sense

dictates: that once a team has a search warrant, and goes in and finds the evidence, it should be able to use it in the proceedings for which it was gathered? I do not know the answer, but the subsection appears to introduce an unnecessary obstacle. I do, of course, understand that the joint investigation team would be the requesting authority in an investigation alone. I am simply trying to ensure that the evidence is available for proceedings subsequent to that investigation.

Bob Ainsworth (Labour, Coventry North East)

I shall deal first with the point made by the hon. Member for Surrey Heath. The hon. Gentleman is right that there have been problems. Mutual legal assistance between two countries will never be a foolproof procedure. Domestic law differs. The key is the framing of the request and ensuring that the requested material will be in a form that the jurisdiction seeking to bring the case before the court can use. The hon. Gentleman is right that problems could arise if the request for information is not framed in that form. That is why we are obliged to respond to requests in a particular way. The only get-out is if there is some fundamental legal reason why it is not possible to respond to those requests. The hon. Gentleman raises an issue that will always be a potential difficulty if people do not frame requests correctly.

I gave the hon. Gentleman an answer in response to his question about joint investigation teams, but he now chases the argument one stage further back. The reason for the subsection is that the joint investigation team would have been originator of the request, which he accepts. The team would have been set up to undertake a specific operation with a view to bringing a prosecution. I do not want to respond off the top of my head to the question about the flexibility given to the joint investigation team at that stage to pass on information that comes its way that might be peripheral to the original reason for its establishment. The hon. Gentleman makes a good point in trying to check whether we are imposing inappropriate restrictions on passing on information that may come to hand. I shall try to ascertain what the procedures are for going wider than the original intent of the joint investigation team in passing on the information. There may be restrictions that are appropriate.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the Minister for considering the issue. His response addresses part of it, but the core intent of the investigation also bothers me. The member of the investigating team can secure evidence for the purposes of investigating the specific crime to which it relates. As I read it, however, there must be a second request to pass that evidence to a court under another jurisdiction so that proceedings can take place. What bothers me is the introduction of a two-stage process where a one-stage process would suffice. I may be misreading the clause, but that is how I interpret it.

Bob Ainsworth (Labour, Coventry North East)

I am fairly sure that that is not the case. The point of the joint investigation team was to gather evidence, to bring a prosecution and to present it to an appropriate court. The core reason is probably

covered, but I shall check. Issues that arise and information that the team comes across during its investigation is another point.

Question put and agreed to.

Clause 19 ordered to stand part of the Bill.

Clause 20 - Overseas freezing orders

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 134, in

clause 20, page 12, line 16, after 'other', insert 'judicial'.

The amendment would introduce ''judicial'' into line 16 of the clause so that it would read, ''any other judicial authority in the country.'' That would act as a safeguard against the extension of the quite significant powers given to administrative authorities that are outside the judicial process. We have already debated the difficulty of translating terms used in other jurisdictions into British law, and I understand why some of the proposals set out in the debate in another place were not acceptable to the Government, because they defined matters in terms of a court exercising criminal jurisdiction. We still have the problem of whether the administrative courts have a criminal jurisdiction. I hope that by inserting ''judicial'' we make it clear that we are talking not about purely administrative authorities in other countries having such a right, and that it must be via a judicial process. That is to say, it must be subject to judicial approval at some point within that country, but it also means that it is open to appeal mechanisms and so on, which are the necessary safeguards to ensure a fair process.

There may still be authorities that will fall outside the judicial category, but I cannot think of authorities to which we would want to extend the arrangement that would not be defined as judicial. It seems a sensible precaution to have in the Bill.

Nick Hawkins (Conservative, Surrey Heath)

Despite the fact that the hon. Gentleman has been quite critical of my comments on earlier groups of amendments and some of the things that my hon. Friend the Member for South-East Cambridgeshire said, it is a genuine pleasure to rise to support him. There are occasions on which we agree, and it is not a Lib-Lab pact flying high. On this occasion, the Conservatives and the Liberal Democrats are both trying to introduce some sensible safeguards. I strongly support the hon. Gentleman's remarks on amendment No. 134. We feel that the Bill would be clearer if the word ''judicial'' were introduced.

Sylvia Hermon (UUP, North Down)

Will the hon. Gentleman comment on clause 20(4), which makes it clear that any order must relate to criminal proceedings or a criminal investigation? Does that clarify his doubts about which authority he might be requesting the order from?

Nick Hawkins (Conservative, Surrey Heath)

No, it does not entirely clarify them. I agree with what the hon. Member for Somerton and Frome said. I will listen with interest to what the Minister has to say about the matter, but this part of the Bill would be improved if it were made clear that it was a judicial authority. Of course, I understand the hon. Lady's point.

Bob Ainsworth (Labour, Coventry North East)

I am very pleased that the hon. Gentleman intervened so that I cannot be accused of Lib-Labbery. The hon. Member for Somerton and Frome may be on to something worth considering. I do not want to accept his amendment at this point because there may be consequences. Like him, I cannot think of authorities with which we should be co-operating at present. If he will agree to withdraw the amendment, we will consider whether it is an appropriate clarification. If it is, we will table an appropriate amendment to enact his suggestion.

David Heath (Liberal Democrat, Somerton and Frome)

I am most grateful to the Under-Secretary for his helpful response. The hon. Member for Surrey Heath should not feel abashed at supporting my amendments on occasion, as I am happy to support his amendments when I agree with them. Having sat through many months in Committee on the Criminal Justice Bill, there were many occasions when Conservative Front Bench Members, myself, my hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes) and the hon. Member for Nottingham, North (Mr. Allen) found common ground. One of the interesting results is that almost everything we said during the Bill's passage has now become an announcement by the Home Secretary and is new Government policy.

Nick Hawkins (Conservative, Surrey Heath)

I am well aware of what the hon. Gentleman says. An interesting new coalition is building up. It is particularly fascinating that it includes the hon. Member for Nottingham, North. If there is one decision in his premiership that the Prime Minister now deeply regrets, I am sure that it was the extraordinary decision to sack him from the Whips Office. It has opened up a subsequent can of worms in terms of his support for some of the things that we have said, which has been useful—

Joe Benton (Labour, Bootle)

Order. Let us return to the amendment.

David Heath (Liberal Democrat, Somerton and Frome)

Of course, Mr. Benton. I can only say that if we are to act corporately as a think-tank for the Home Office, we are delighted.

On the basis of the Minister's helpful response, 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. 135, in

clause 20, page 12, line 29, at end insert—

'( ) manifestly correspond with the freezing order'.

The amendment is fairly simple. It would insert a new condition of

''manifestly correspond with the freezing order''.

That is entirely in line with article 7 of the draft framework decision, which sets out the grounds on which a competent judicial authority of the executing state may refuse to apply the freezing order. One of the conditions is that the certificate is not produced, is incomplete or manifestly does not correspond to the freezing order. That enables a freezing order that is clearly wrong to be rejected as such in an early stage in the proceedings, without further complication. There is no obvious reason why that has been left out of the

Bill, which is why I am trying to put it back in.

Nick Hawkins (Conservative, Surrey Heath)

Once again, it is a pleasure to support an amendment tabled by the hon. Gentleman. We think that it is a sensible, helpful change, and I agree with him that the provision should be put back in the Bill. I hope that the Minister's response is as helpful as the one that he gave to the hon. Gentleman's previous amendment.

Bob Ainsworth (Labour, Coventry North East)

I will bring this happy consensus to an end, I think, before it goes too far.

I am sorry, but I cannot accept the amendment. Freezing orders may be rejected on the ground that the certificate and the freezing order are manifestly incompatible. The wording of the amendment does not represent a requirement under the framework decision. I am satisfied that the point it seeks to address, which is that the order and the certificate must adequately relate to each other, is covered by the current drafting. Subsection (5) contains a requirement for an order to be

''accompanied by a certificate which gives the specified information''.

Clause 28(7) defines what the specified information must be. Any information is required to be given in

''a document annexed to the relevant Framework Decision''.

That is a reference to the certificate. The reason for that formulation is that the framework decision has not yet been formally adopted. It is clear in the current drafting that the certificate must relate to the freezing order.

I am afraid that the consensus has broken down. The amendment is unnecessary, and I ask the hon. Member for Somerton and Frome to withdraw it.

David Heath (Liberal Democrat, Somerton and Frome)

I hope that the consensus has not broken down irretrievably—I shall cajole the hon. Gentleman back into it.

I anticipated that the hon. Gentleman would say that the amendment was unnecessary. I have read and reread the relevant clause several times. Clause 20(6) simply says what must be included in the certificate, including

''a statement as to the accuracy of the information.''

Information can be completely accurate and still manifestly not correspond to the freezing order—one does not preclude the other.

The hon. Gentleman's argument is that we should not include ''from the framework decision'' in the clause, but ''framework decision'' in clause 28(7) will appear in statute. The hon. Gentleman argues that we have not yet signed up to that decision, therefore it should not constitute the basis for the clause, or for my amendment. I do not understand that rather circular argument.

Bob Ainsworth (Labour, Coventry North East)

It is not just the accuracy; the certificate is required to contain the specified information.

David Heath (Liberal Democrat, Somerton and Frome)

Indeed, it must contain the specified information, including the offences under investigation, and so forth. However, someone must assess whether that information is factually accurate

and whether it corresponds to the requested freezing order. That is the dichotomy—

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

Crime (International Co-operation) Bill [Lords]

David Heath (Liberal Democrat, Somerton and Frome)

That needs to be addressed. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 ordered to stand part of the Bill.

Clause 21 - Considering the order

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 37, in

clause 21, page 12, line 41, leave out 'a court' and insert 'the High Court'.

The amendment deals with a matter that was discussed in another place on 23 January. An amendment was moved by my noble Friend Baroness Anelay of St. Johns and supported by the distinguished and experienced lawyer, the noble Lord Renton, a former Home Office Minister. Lord Renton said:

''I should have thought that the Secretary of State, instead of merely referring the matter to some relatively minor local court—which he could do under the Bill as drafted—should refer it to the High Court.''

The Attorney-General, resisted our amendment, and said:

''The Government could not accept the amendment that imposed the obligation to limit execution of these orders simply on the High Court . . . Requests for evidence from overseas are currently generally dealt with by a magistrates' court. The Secretary of State has the power to put it to someone else, but there seems no reason why that procedure should not be followed for evidence freezing orders under the new procedure.''—[Official Report, House of Lords, 23 January 2003; Vol. 643, c. GC 86–87.]

In the other place, we were seeking clarity; I want to go a little further. These are important matters. I have enormous respect for the lay magistracy, and we on the Conservative Benches have tried to defend it from the assaults and depredations of the Government. I do not blame the Minister for what has happened, because it is the Lord Chancellor's Department that has boxed in magistrates courts committees so tightly that they have been forced to close magistrates courts even when they did not want to, as they had to follow what are, in my view, completely misguided Government diktats on what magistrates courts had to have. Since the Government came to power, more than 100 magistrates courts have closed.

Power is being taken away from the lay magistracy, and we are getting away from the concept of local justice. As there are fewer magistrates courts, when important international matters come up, they should be required to go to the High Court. I have read what the Attorney-General said on the subject in another place, but I wanted to hear a little more from the Minister, and I wanted to place our continuing concerns on the record.

Bob Ainsworth (Labour, Coventry North East)

Freezing orders will be executed by issuing a domestic search warrant or production order, and will be dealt with by the same courts that handle mutual legal assistance requests to seize evidence. The magistrates court is nominated to issue search warrants—unless the material requested is excluded or is special procedural material, in which case the Crown court is nominated to issue a production order. The terms ''special procedural material'' and ''excluded material'' have the same meanings as they do in the Police and Criminal Evidence Act 1984.

We intend to continue with the current practice when nominating a court under the Criminal Justice (International Co-operation) Act 1990, of nominating a court that is local to where the evidence is thought to be. Full training will be provided for magistrates, clerks of magistrates courts, the Crown Prosecution Service, the Crown court, Customs and the police. I do not think that it is appropriate that the use of the freezing orders and the ability to deal with them should be restricted to the High Court. It would be inappropriate and costly to use a court that was not local to the incident. Similar powers have been exercised under the old legislation, which was passed by previous Governments since 1990.

Nick Hawkins (Conservative, Surrey Heath)

I hear what the Minister has to say. Of course, we do not want to make matters more costly, but I am sure that the Minister understands our worries, in that some complex issues would be more appropriately dealt with in the High Court. We may need to return to such matters, but the Minister has placed the Government's view on the record and I shall not pursue the matter. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put and agreed to.

Clauses 21 ordered to stand part of the Bill.

Clauses 22 to 24 ordered to stand part of the Bill.

Clause 25 - Release of evidence held under the order

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 136, in

clause 25, page 14, line 27, leave out 'may' and insert 'must'.

The clause is a puzzlement to me. I hope that the Minister will be able to help me. It deals with the release of evidence that has been held under the order. Subsection (1) states that

''the nominated court may authorise the release of any evidence retained by a constable under section 24 if, in its opinion—

the condition in section 21(6) or (7) is met, or

the overseas freezing order has ceased to have effect in the participating country.''

I refer the Committee back to the condition under clause 21(6) or (7), which concern the circumstances in which the person who is the subject of the freezing order would be entitled to be discharged under any rule of law relating to previous acquittal or conviction. In other words, that person cannot be convicted of the offence to which the investigation and the evidence relates.

The second condition described under subsection (7) refers to

''giving effect to the overseas freezing order would be incompatible with any of the Convention rights (within the meaning of the Human Rights Act 1998''.

Surely to goodness if either of those conditions apply, there should not be a discretion about whether the court releases evidence that is properly the property of the person in question. It must release it.

The second condition under 25(1)(b) is if

''the overseas freezing order has ceased to have effect in the participating country.''

Again, there is no case to answer. Therefore, what are the circumstances in which a court may hold that it is lawful for a constable to retain evidence on the basis of an order, which was shown either to have been extinguished, which was improper because it related to an offence to which the supposed defendant was entitled to be acquitted, or was a breach of convention rights under the Human Rights Act 1998? There is no potential doubt about the matter. The court must release the property. Not to release the property would be a contravention of the Human Rights Act, in that that person is entitled to peaceful enjoyment of his property.

Unless I have grievously misread the clause, the Minister must accept this amendment or give a very good reason why it will not be accepted, because I fail to understand in what circumstances the court would retain—or cause the constable to retain—such evidence without challenging the law, which would be improper.

Nick Hawkins (Conservative, Surrey Heath)

Once again, it is a pleasure to support the hon. Member for Somerton and Frome (Mr. Heath). I am sure that the Minister will accuse us of having a new Lib-Con pact, as he did before lunch. However, on a serious point, the hon. Member for Somerton and Frome is right: I cannot envisage any situation in which this information could possibly not be handed over, and the clause would be much better if ''may'' was replaced by ''must''. I am hopeful that on this occasion the Minister will surprise us all by saying that he accepts the amendment and supports what the Liberal Democrats are trying to do.

Bob Ainsworth (Labour, Coventry North East)

Mr. Hurst, you were not in the Chair this morning, so I have to say to you that I never started this. It was Lib-Labbery to start off with, and I only ever did what I often do, which was to retaliate a bit. I was provoked.

The hon. Member for Somerton and Frome makes his case very well, but I cannot at the moment give the

Committee what he asks for, which is an instance when the court might not authorise such a release. Where the European convention on human rights was being infringed, that would be apparent to the court, and it would comply, and release the information. The issue is whether we compel the court to do that or rely on it to do so.

If we cannot think of any reason why there should be some discretion in this area, we will give some consideration to the amendment. If the hon. Gentleman withdraws the amendment, we will reflect on it and return to it on Report, with a view to justifying the discretion in the Bill or to considering a similar amendment.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the Minister for that. As a parting shot, I draw his attention to the fact that ''must'' is used in line 41 of page 14. Therefore, the idea of a discussion being available at all levels is not true.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman should not seek to capitalise on his position. The word ''may'' is used in many places in the Bill.

David Heath (Liberal Democrat, Somerton and Frome)

Yes, but this use of ''must'' is in the same clause as that which the amendment addresses, and it has the same intention of providing for the release of evidence held under an order that is no longer valid. I was seeking to help the Minister's consideration of this matter, rather than score additional points.

On the basis of the assurance that he has just given, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put and agreed to.

Clause 25 ordered to stand part of the Bill.

Clause 26 ordered to stand part of the Bill.

Clause 27 - Exercise of powers by others

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 40, in

clause 27, page 15, line 35, leave out 'Treasury' and insert 'Secretary of State'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following:

Amendment No. 41, in

clause 27, page 15, line 43, at end insert

'and guidance issued by the Secretary of State'.

Amendment No. 42, in

clause 27, page 16, line 1, leave out subsection (2).

James Paice (Conservative, South East Cambridgeshire)

We now come to another group of slightly disparate amendments. Amendment No. 40 is straightforward and simple. There may be a clear reason for the phraseology of the clause, but it seems odd that, under its heading,

''Exercise of powers by others'',

reference is made to ''The Treasury''. Such measures are almost unique because, invariably, Bills refer to the Secretary of State.

This morning, the Minister said, ''The Secretary of State does not necessarily mean the Home Secretary.'' He wanted to put it on the record that the ''Secretary of State'' covers each member of the Government. Thus, ''The Treasury'' seems somewhat out of kilter with normal practice.

David Heath (Liberal Democrat, Somerton and Frome)

As always.

James Paice (Conservative, South East Cambridgeshire)

The hon. Gentleman suggested that the Treasury is normally out of kilter with everything anyway. He is probably right.

Usually, Bills refer to the Secretary of State, which is a term that covers all Ministers, including those acting under the Secretary of State. I therefore do not understand why the Treasury is referred to in the clause. It may be many other things, but the Treasury is not a person. It is an institution. The Bill states that it may ''by order provide'' for functions to be transferred. That is odd. If the person involved must be someone from the Treasury, surely reference should be made to the Chancellor of the Exchequer, as its head, or even the First Lord of the Treasury, the Prime Minister. I accept that it is a minor point, but the reference to the Treasury struck me as odd. It jars with the usual way in which Bills are drafted.

Amendment No. 41 relates to circumstances under which the commissioners can prescribe the functions to be conferred on the Secretary of State. We consider that guidance should be issued by the Secretary of State. The amendment would require that when the Treasury has conferred on a Customs officer the same functions as those exercised by a constable, the Customs officer should still follow guidance issued by the Secretary of State so that it follows the same pattern as the one whereby functions would be operated by a constable who issues guidance to officers, albeit rarely. Much of what the Bill deals with will not happen often; it may happen even less often for a Customs officer. Therefore, it would be a significant step forward to issue guidance to ensure that we have consistency in implementation and activity.

Amendment No. 42 would omit subsection (2), which concerns the power being given to the Secretary of State to delegate by order his responsibility to another person. The subsection refers to functions being conferred

''in prescribed circumstances by a prescribed person'';

in other words, it refers to whoever the Secretary of State decides to put into the order. The measure is a Henry VIII clause. However, it goes beyond that because we need to know who the Secretary of State is likely to want to prescribe by order. It is not impossible to imagine a situation in which the Secretary of State might want an individual to do something and that individual was neither a constable nor a Customs officer. However, an individual cannot be prescribed in an order. If we are to have more than one order, clearly the Secretary of State is envisaging categories of people or employees of organisations who would receive such functions. It would be helpful if the Minister told us who he imagined that would be. One possibility is CSOs—community support officers—and there are countless others, such as the

Crown Prosecution Service and the Serious Fraud Office, on which powers might be conferred. If the Minister can tell us which organisations will be included, I would have preferred to see those in the Bill. It seems odd that we are giving the Secretary of State a wide-ranging power to provide by order powers to any person or group. If he knows who that will be, why cannot it be included in the Bill? It could be added, even if we wanted to keep the open power in case things change. If the Government cannot tell us who these people are, I am not convinced that we need the order-making power at all.

The amendment is exploratory, but important because the clause gives a significant power to the Secretary of State. We need to know the Government's real intentions. I understand that the CPS and the SFO do not want the powers. If that is the case, the Bill should not include a power for the Secretary of State to give powers to those bodies. I look forward to the Minister's comments on the three amendments, which all address slightly different issues. I hope that he can reassure me on some of them, and that he will be generous enough to recognise the point behind the amendment relating to the Treasury.

David Heath (Liberal Democrat, Somerton and Frome)

I hope that it will not inconvenience the hon. Member for South-East Cambridgeshire (Mr. Paice) too much if I agree with him on all three amendments.

The Treasury appears to have a semi-mythic status in Government. As I understand it, the Treasury must be treated with the greatest of respect, certainly if a Department wants anything from the next comprehensive spending review. However, there does not seem to be any reason for it to be singled out in legislation, but perhaps the Home Office has to render unto Caesar that which is Caesar's. I shall not be distraught if the amendment is unsuccessful, but I think that we are seeing yet another oddity in the way in which we make law in this country.

The point about guidance is more substantive. I have argued many times in statutory instrument Committees, particularly those relating to PACE and the guidance notes that are given to police in the execution of their duties, that almost invariably parallel functions are exercised by other non-police enforcement officers, especially those who work for Her Majesty's Customs and Excise. It seems sensible to ensure that the guidance that is issued to Customs and Excise is the same as that issued to police officers in the exercise of their duties when they are doing the same thing. There is an invisible, or even visible, wall between the Home Office and the Treasury, which prevents full co-operation—not operationally, but structurally. It would be much better if both Departments considered matters initially and they came to a common view. They could then produce common advice to those who need to operate legislative functions on the ground.

We have already had an argument about the power to make secondary legislation. My view is that if powers are conferred on organisations or individuals they should, where possible, be named in primary legislation; they should not be reserved for secondary legislation. I support the hon. Gentleman.

Bob Ainsworth (Labour, Coventry North East)

First, on amendment No. 40, I tell the hon. Member for South-East Cambridgeshire that at the top of my page is the word, ''Resist''—not that that means anything; the previous one said the same thing.

The Government considers that the power to make orders conferring powers on Customs is properly exercised by the Treasury, because it is responsible for Customs and Excise so it holds the power to make orders on its behalf. Similar powers were given to the Treasury in section 7(7) of the Criminal Justice (International Co-Operation) Act 1990. That is the extent of my argument. I have inquired who provided me with that argument—would hon. Members believe that it was the Treasury?

I am not certain to what degree I am prepared to resist. I remember that once upon a time I was a Treasury Whip and on one occasion, when I asked why the Finance Bill was not due to meet in the mornings, I was told that it was because it was the Finance Bill Committee. That has changed, but we seem to have a similar defence in this case. In light of the points that have been made in the Committee, I assure hon. Members that I shall seek further advice from the Treasury about whether it would want us to continue to resist the amendment.

Amendment No. 41 has a bit more substance to it. I accept the point that was made earlier. Let us consider it and see whether it makes sense. The amendment would require the Secretary of State to issue guidance describing the circumstances in which a Customs officer might exercise powers.

The ability to confer powers on Customs is a key provision. The key effect of conferring powers would be to enable direct transmission of requests to Customs and Excise, without granting it certain powers that are currently only available to the Secretary of State, such as the ability to nominate courts. It is pointless to allow direct transmission to Customs, because it would still have to return requests to the central authority to obtain a court nomination or a search warrant. The UK is under an obligation to move towards direct transmission of requests. The clause represents a practical way to achieve that with Customs.

Customs and Excise is experienced in handling mutual legal assistance requests. It has indicated that it would like to be able to receive and execute requests directly. It already receives requests directly, but it must revert to the Secretary of State if a court nomination or a search warrant application is required. That bureaucratic process could be fulfilled entirely properly by Customs.

James Paice (Conservative, South East Cambridgeshire)

The Minister has admitted that the first brief was garbage and, if he reflects, he will see that his current brief is garbage, too. No one is contesting whether Customs officers should have the power. We debated that on Tuesday. We are now talking about whether it should operate under the guidance of the Secretary of State.

Bob Ainsworth (Labour, Coventry North East)

Much of the Bill is about how we devolve some of the powers from the centre and

whether guidance from the Secretary of State is necessary to do that.

Let me continue for a minute to see whether I can satisfy the hon. Gentleman. There are many cases in which Customs investigators take the lead and where it would be entirely appropriate for them to have the same powers to seek assistance as the police—for instance, Customs and Excise takes the lead in many international drug trafficking cases.

There is no need for further guidance. The conditions will be described by order, and they will be binding. It will be open to the Secretary of State to issue guidance on this point, if that seems appropriate, but it is unnecessary to refer to that in the legislation. There will, of course, be extensive guidance covering all the Bill's new provisions. I do not know whether that satisfies the hon. Gentleman.

Amendment No. 42 would also restrict a key enabling provision, which is intended to allow other authorities to take on executing powers in the same way as is provided for Customs. Including this power gives the Government flexibility to allow for greater use of direct transmission, should that be desirable in future. We have no immediate plans to confer powers on other authorities, but a general review of our mutual legal assistance system is in progress.

The hon. Gentleman asked what other organisations we are envisaging as well as Customs. He mentioned some of them: the Serious Fraud Office, the police and the Crown Prosecution Service do not currently have the appropriate remit, but that is being looked at. As I have said, we are under an obligation to consider decentralisation in these matters. These are the sorts of organisation that will be doing this, but I cannot be specific by naming them in the Bill at this stage. Our reason for seeking the order-making powers is to enable us to act appropriately at the time. We are not talking about community support officers or other named individuals—potentially, it is the organisations, but that must be considered in the review of our mutual legal assistance provisions.

The power was considered by the House of Lords Delegated Powers and Regulatory Reform Committee, which appeared to accept our explanation—that we needed to provide flexibility for the future. It found that the power was appropriately delegated. As the hon. Gentleman knows, all such delegated powers are examined, and this one was recommended for approval.

In light of what I have said about guidance—that it will probably be needed but that it is unnecessary to include it in the Bill—and the appropriateness of the delegated powers, I ask the hon. Gentleman to withdraw amendments Nos. 41 and 42. I assure him that I will make the Hansard report of the Committee's proceedings available not to any individual but to the Treasury with regard to amendment No. 40, so that we may hear what it has to say.

James Paice (Conservative, South East Cambridgeshire)

Not only with this Bill, but with other Bills over which the Minister and I have sparred, he has always shown considerable common sense, even in

the face of contradictory briefs, and I am grateful to him for that on this occasion. Common sense is not a phenomenon that often crosses the portals of the Treasury, but I am appreciative that he realises the import of the fact that the Treasury is not a person: it is a building or institution, so the concept of it giving powers is odd.

I am grateful to the Minister for his comments. I chided him when he was responding to amendment No. 41, because it seemed as though practically everything he said was about justifying giving the powers to Customs and Excise officials, and no one is contesting that. Indeed, on Tuesday, amendments from both the Liberal Democrats and the Conservatives sought to insert ''Customs and Excise'' into the Bill, so it can hardly be considered controversial for it to have the powers.

My much narrower point was that when Customs and Excise is operating these powers, it should do so under the guidance of the Secretary of State for the purposes of consistency. The last paragraph of the Minister's brief addressed that point, and I am grateful for his comments and reassurance. However, I still take the view that it would have been better to insert the phrase in the Bill, but fair enough.

On subsection (2) and the delegation of powers to others by order, it obviously sticks in my throat a little to accept that the Secretary of State should effectively have power to prescribe any organisation by order. Of course I accept what the Minister says—that a review is taking place, that there is no immediate hidden agenda, and that it is not as though as soon as the Bill receives Royal Assent the Government will come up with an order giving the powers to a range of other organisations. However, I still think that it is a shame that the Secretary of State should require the power to seek an order, and we will need to reflect on whether any such order should not at least be made by affirmative procedure, and whether the details of any power of significance should be considered by the House of Commons.

However, I am half-persuaded by the Minister's argument that we should not remove the subsection altogether. Particularly in light of the Minister's words about amendment No. 40, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 27 ordered to stand part of the Bill.

Clause 28 ordered to stand part of the Bill.

Clause 29 - Hearing witnesses abroad through

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 43, in

clause 29, page 17, line 12, at end insert—

'(1A) An order under subsection (1) shall be made by statutory instrument and may not be made unless a draft of the statutory instrument containing the order has been laid before and approved by a resolution of each House of Parliament.'.

The amendment would insert new subsection (1A), which would require the affirmative procedure to be used. The Committee will be familiar with the belief of

those on the Opposition Benches that that is an important safeguard.

We strongly support the use of television and video links. Indeed, when I practised as a corporate lawyer, I had the happy experience of using the very first video link suite installed north of the border. I am particularly sorry that the hon. Member for Orkney and Shetland (Mr. Carmichael) is not on the Liberal Democrat Benches this afternoon, because it was a particularly enterprising firm of Writers to the Signet of Edinburgh that had installed one of the video suites. I used it for video conferencing, from the offices of the company south of the border to which I was group legal adviser, with the Scots lawyers that we were working with north of the border, on a matter that had not yet gone to court, but might subsequently have done so.

I therefore saw for myself, in the early days of video conferencing suites, how useful they could be in legal cases. I am pleased that they are now used much more extensively, particularly in cases in which witnesses are overseas or that involve child witnesses, and their use has grown in all parts of the legal profession. Nothing that I say about the clause is intended to deprecate the use of the new facilities; I think that they can be extremely useful, and it is good that a general expansion of their use is set out in the clause. However, I would prefer to have the affirmative resolution procedure in the clause.

David Heath (Liberal Democrat, Somerton and Frome)

I concur.

Bob Ainsworth (Labour, Coventry North East)

The clause allows us to expand, by negative resolution, the types of proceedings in which the UK may request the sort of evidence mentioned in the clause from overseas. The amendment would require such orders to be made by affirmative resolution. We do not believe that that is necessary. The courts can already request such assistance from overseas in certain proceedings by virtue of section 32 of the Criminal Justice Act 1988. The types of proceedings covered include homicide, serious fraud cases and cases involving the evidence of children.

The clause provides for those sections to apply to further types of proceedings. There are no immediate plans to make the power more widely available. We did not consider that the Bill was the appropriate vehicle to make such amendments, although we consider that clause 29 provides a practical solution, as it ensures that section 32 of the Criminal Justice Act 1988 may be extended in future.

The general application of the clause is not restricted to participating countries. That reflects the existing position under the Criminal Justice Act. We consider that those arrangements have a particular benefit in respect of countries outside Europe, which pose greater obstacles in respect of travel for witnesses. That sort of assistance is a useful tool in trials to deal with offences that take place in more than one state, which are often those in which organised and criminal groups are involved. The Delegated Powers and Regulatory Reform Committee report on the Bill considered that and made no comment on the power. Therefore, we understand that the Committee was

satisfied with the level of scrutiny given and that the negative procedure was appropriate.

Nick Hawkins (Conservative, Surrey Heath)

The Minister is introducing the novel concept that because another Committee of the House of Commons does not comment on something, it means that it agrees with it. A silence does not indicate consent or assent, and the Minister should be stern with the officials who wrote that brief because there are many occasions when a Committee does not comment on something. That does not necessarily mean that it agrees with it. If the Delegated Powers and Regulatory Reform Committee had said that it was quite happy with matters, the Minister would be entitled to say that he sees no problem. However, just because it did not mention it at all does not mean that the Minister can assume that the Committee was happy with it.

Bob Ainsworth (Labour, Coventry North East)

In principle, I would accept what the hon. Gentleman is saying, if it were not for the fact that we are talking about the Delegated Powers and Regulatory Reform Committee, whose function is to consider proposals for delegated powers and decide whether they are set at a particular level. It took such action and said nothing about it. If it had thought that the negative procedure was inappropriate, it would be pretty strange that it said nothing about it.

Nick Hawkins (Conservative, Surrey Heath)

I hear what the Minister says, but I wanted to warn him that I do not think that he is wise to say that because a Committee says nothing about something, it necessarily connotes that it is happy with it. The hon. Gentleman knows what I am saying. He said that, in general terms, he agrees with me. He understands where we are coming from on the issue.

We think that, if there is to be an order-making power as set out in clause 29(1) and that power is to be used, the House of Commons should scrutinise it. The Minister says that the Government do not have in mind any extension at the moment and they did not think that the Bill was the appropriate vehicle to use, but they wanted to give an order-making power. We are always unhappy with open-ended, order-making powers for the Secretary of State, because at some stage matters can go through on the nod under the negative resolution procedure. That is why we considered that it would be better to have the affirmative resolution procedure.

The Minister knows that we will be returning to the issue, and I hope that the Government will use the affirmative resolution procedure more often. He has put his views on the record, and I have put our views on the record. I do not wish to pursue the matter. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 29 ordered to stand part of the Bill.

Clause 30 - Hearing evidence through television links

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 86A, in

clause 30, page 17, line 25, leave out 'appears to'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following:

Amendment No. 44, in

clause 30, page 17, line 25, after 'State' insert 'knows'.

Amendment No. 45, in

clause 30, page 17, line 26, at end insert—

'(2A) A request under subsection (1) must—

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

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

(c) state that the witness is willing to give evidence by television link in the proceedings before that court.'.

Amendment No. 46, in

clause 30, page 17, line 27, leave out

'Unless he considers it inappropriate to do so'.

Amendment No. 51, in

schedule 2, page 65, line 5, leave out 'appears to him to' and insert 'he is satisfied will'.

James Paice (Conservative, South East Cambridgeshire)

I am interested in the way that this afternoon's proceedings are going. We seem to have lost the massed ranks on the Government Benches. They might be sitting by the telephone waiting for a call—on such occasions hope springs eternal. However, there will be disappointments. [Interruption.] The Whip is laughing as if he knows the inner secrets of what is going on. Whips always pretend to do that, whether they know or not. If the Minister is called away suddenly during the course of the afternoon, we shall understand why—much as I should like to think it would be because he realised he had lost the argument, it might not be.

Clause 30 relates to the hearing of witnesses in the UK using television links to a court in another country. Amendments Nos. 86A and 44 do stand separately and must run together. Amendment No. 51 is the same and applies to schedule 2. We are concerned about the vagueness of the statement in clause 30(2), which refers to

''the authority in that country which appears to the Secretary of State to have the function of making requests of the kind to which this section applies.''

The phrase ''which appears to'' is incredibly vague. Bearing in mind that we are talking about countries with which we have signed some sort of convention, we should know which authorities have the function of making requests. I tabled the amendment to extract from the Minister why that subsection has to be so vague. Will the Government contemplate granting the power to hear witnesses in UK courts through television links to a court overseas if the Secretary of State is not absolutely satisfied that the request comes from a body that has the right power? The phrase ''which appears to'' is vague and, given that the geography of the world keeps changing and countries break up as well as join together, it is essential that we know which authority can make such a request.

Amendment No. 45 would insert a new subsection in clause 30. It supports what I have been saying in so far as it would ensure that the Secretary of State is

properly assured of why the request is being made. It specifically states that the request should

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

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

(c) state that the witness is willing to give evidence by television link''

in such proceedings. The amendment should be accepted not only because it would support the obligation behind the request, but because it has been taken from the text of the second additional protocol to article 10 of the mutual legal assistance convention—those words appear in paragraph 8 on page 7. If we have already signed up to that convention—and we have, which is why we are passing this Bill—I do not understand why that text cannot be in the Bill.

The amendment is reasonable. The Minister—I was going to say the Secretary of State, but I should not jump to conclusions—will probably say that it is not necessary because all that information will be given in the request anyway. If that is the case, it enhances my argument that it should be included in the Bill.

When we consider proposed legislation, we must bear in mind not only the situation today, but what things might be like while it is still current. It is important to consider authorities in other countries, for we do not know what might happen to the office of Secretary of State in years to come. It is important that the Secretary of State should be given the authority, so that if the request does not contain all the information he needs, he can refuse to accede to it, even if, as the Minister will no doubt assure me, he can refuse to accede to it anyway.

Amendment No. 46 is a probing amendment. Subsection (3) starts with a vague piece of phraseology:

''Unless he considers it inappropriate to do so the Secretary of State must by notice in writing nominate a court''.

What could be construed as inappropriate? There seems to be a change in drafting jargon running through much of the Bill. On various occasions I and other hon. Members have questioned the vagueness of some aspects of the Bill; this is another example. What does it mean? What checks and balances are there on the Secretary of State as to whether something is inappropriate? What if he believed, for example, that the authority in the country that made the request was not the proper authority? What if he did not agree with the Government of that country? Is that inappropriate enough for him to nominate the court in writing? It is odd that such a vague term is used.

The amendment does not require much introduction; it is a challenge to what on earth the Government mean by placing something so vague in the Bill. What kinds of example did they think about in which the Secretary of State might consider things to be inappropriate? The group of amendments covers various issues surrounding the role of the Secretary of State in making decisions on a request to hear witnesses in the UK through TV links. All the amendments are important. I look forward to

hearing the Minister's response to various issues that bear further investigation.

Bob Ainsworth (Labour, Coventry North East)

Whether or not anyone knows what has happened in the reshuffle, the hon. Member for South-East Cambridgeshire should reflect on the fact that I have failed to resist two resistable amendments. Perhaps I am already aware of my demise and have become rather demob happy—[Laughter.] He should bear that in mind.

David Cairns (Labour, Greenock and Inverclyde)

If he is going, can he not take us with him?

Bob Ainsworth (Labour, Coventry North East)

There are too few of you here.

The amendments relate to requests received by the UK to provide for TV evidence at the request of an overseas authority. Amendments Nos. 86A and 44 relate to authorities that may request assistance via a TV link. I shall explain which authorities will have the function of making requests, and I hope that that will deal with the hon. Gentleman's concerns.

The purpose of the drafting of subsection (2) is to give flexibility to ensure that the UK is in a position to consider all requests made by legitimate overseas authorities, however those are defined in different national legislation, while retaining the final discretion for the Secretary of State about whether to execute the request in a particular case. I understand what the hon. Gentleman says. There is an issue to do with flexibility and checks and balances. We are not talking about extradition or intrusive surveillance: we are talking about someone giving evidence via television link. I hope that the hon. Gentleman will bear that in mind. To what degree do we want to tie down in statute the flexibility in this particular case? It would be useful to maintain that flexibility.

What are these authorities? In the case of the signatories to the 1959 Council of Europe convention on mutual legal assistance, which forms the basis of MLAC, judicial authorities are defined by each state. Therefore, where we are dealing with another Council of Europe country, the appropriate authority will be set out in its Council of Europe declaration.

However, in the case of both Council of Europe and non-Council of Europe states, the authority will be a court, a prosecuting authority or other authority with a role in the investigation and prosecution of crimes and in mutual legal assistance. In some cases, a central authority might be responsible for making requests of this nature: the Home Office may perform that function in certain regards, and there might be a similar organisation in the requesting country that handles such cases on its behalf. The Secretary of State's discretion regarding execution provides a safeguard against requests from inappropriate authorities.

Amendment No. 45 would require incoming requests from overseas authorities to include three pieces of information, which are specified. The first two are requirements of article 10 of MLAC. However, their inclusion in the Bill is unnecessary. The drafting gives the Secretary of State the ability to refuse to nominate a court for a hearing if all the requirements are not met. He will make his decision

with the MLAC requirements in mind. The matters listed in the amendment are not the only pieces of information that must be included in a request for a hearing by video link. All requests, including those for a hearing by video link, must include information referred to in article 14 of the European mutual assistance convention. Those requirements are not listed in the 1990 Act or the Bill. The decision not to list the additional requirements here is consistent with that approach.

It was suggested in another place that inclusion of these matters in the Bill would help to ensure that witnesses were fairly treated and that countries did not abuse the opportunity to take evidence by video link. However, these requirements are not about the protection of witnesses: they are mainly practical matters to ensure that administrative arrangements for the hearing can be made. Protection of witnesses' rights is adequately provided for, particularly in schedule 2.

To impose the third proposed condition—that a witness is willing to give evidence—would be contrary to the provisions of MLAC, so we cannot agree to its inclusion. It is only possible to impose such a condition in relation to hearing accused persons if member states choose, in accordance with article 10(9), to extend the provision to hearing accused persons. The Government are not proposing to enable accused persons to be heard in this way.

Subsection (3) gives the Secretary of State discretion not to take forward a request. Amendment No. 46 would remove that discretion. The provision will enable the Secretary of State not to comply with a request when that request would contravene national law. It retains an overall discretion for the Secretary of State in all cases, while not being unduly prescriptive in the conditions that it imposes on overseas requests. That would enable the Secretary of State to refuse requests if they do not contain the necessary information.

We consider that amendment No. 51 is a drafting amendment, and that the current drafting is appropriate. It would require the Secretary of State to be satisfied that the overseas authority has the specified function, which reflects an earlier amendment to clause 30. In the context of schedule 2, the Government consider that the current drafting has the advantage of consistency with other clauses and that the test that an authority seems to be appropriate provides sufficient safeguards. It may be that different authorities are involved in making arrangements for the protection of witnesses rather than making the request for the hearing. Dedicated witness protection teams or the police might be involved in the requesting country, for example, in the request that is being made.

I understand the hon. Gentleman's argument, but we are not surrendering people. We are obliging them to give evidence by video link, if abroad. There are so many variables. We are not necessarily talking about

convention countries only, but any country. There is a desire to maintain flexibility and we are concerned about the degree to which we want to tie down the Secretary of State and Executive to respond appropriately and be able to block inappropriate responses. I do not believe that the safeguards for which the hon. Gentleman is calling are necessary. The schedule provides good and comprehensive safeguards.

James Paice (Conservative, South East Cambridgeshire)

Having heard the Minister's opening remarks, I hope sincerely that they were made in jest and that we are not about to see his demise. If we are, it shows what desperate straits the Government are in. The hon. Gentleman has gained huge respect from this side of the House for his ability and diligence. If he remains in the Government, as I sincerely hope he does, it should be at a higher rather than a lower level—well, there cannot be a lower level. [Laughter.] I do not know why members of the Committee are laughing. I have been there. I know exactly the low level that the Minister occupies, because I used to occupy it. I am not beating around the bush, even though when an hon. Member does not have such a job, he sits on the Back Benches praying to goodness that perhaps the phone will ring. I am fully cognisant of the reality of the situation.

As for amendments Nos. 86A and 44, I understand the Minister's reason for wanting flexibility. Of course, he is right. We are not discussing matters as heavy and intrusive as extradition. In some ways, however, his closing remark underlined the issues involved. He might want to reflect on it. He said that the issue applies not only to convention countries, but to any country. On one hand, that requires flexibility but, on the other, it would increase the possibility of a request coming from an authority that was not the right authority. I am slightly more worried about the phrase ''appears to''. It is easy to imagine an authority masquerading as the right authority, even if it were not. It may be following a constitutional change. There may have been a coup, for example, in a particular country.

I come now to amendment No. 45. I take the Minister's point that the protection of witnesses is slightly different from paragraphs (a) and (b) in the amendment. Nevertheless, all paragraphs in the amendment are important. If the amendment would contravene the convention I can understand why the Minister would wish to reject it, but as proposed paragraphs (a) and (b) come within the convention, I am less certain about the wisdom of resisting it.

On amendment No. 46, the Minister again pleaded the need for flexibility. I understand his arguments; we are talking about a matter of judgment, relating to checks and balances and flexibility. I hope that, in future, no Secretary of State errs in the wrong direction, but on this occasion I am happy to accept that there is a need for flexibility. However, it has been useful to challenge the Minister on some of the more vague phrases that are creeping into the Bill. In light of his remarks, 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. 137, in

clause 30, page 17, line 28, after 'court', insert 'or other place'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following:

Amendment No. 47, in

clause 30, page 17, line 29, at end insert—

'(3A) The provisions of subsections (4) and (5) shall be drawn to the attentions of any person giving evidence by virtue of this section before he gives evidence.'.

Amendment No. 48, in

clause 30, page 17, line 32, at end insert

'(unless the conduct in question would not constitute contempt of the court in the country outside the United Kingdom before which the proceedings in questions are being carried on)'.

Amendment No. 50, in

schedule 2, page 64, line 30, at end insert—

'(3) The nominated court must be notified that the witness is willingly giving evidence by television link.'

Amendment No. 54, in

schedule 2, page 65, line 38, at end insert—

'(16A) The nominated court shall intervene where it considers it necessary to do so in order to safeguard the rights of the witness.'.

Amendment No. 139, in

clause 31, page 18, line 22, after 'court', insert 'or other place'.

Amendment No. 141, in

schedule 2, page 65, line 8, at end insert

'to ensure that proceedings are understood by

(a) the witness or witnesses; and

(b) the nominated court.'.

Amendment No. 142, in

schedule 2, page 66, line 2, at end insert

'to ensure that proceedings are understood by

(a) the witness or witnesses; and

(b) the nominated court.'.

David Heath (Liberal Democrat, Somerton and Frome)

There are two pairs of amendments in our name in the group: Nos. 137 and 139, which would add ''or other place''; and amendments Nos. 141 and 142, which deal with interpreters.

Amendments Nos. 137 and 139 are, essentially, probing amendments; I accept straight away that they are not proper amendments that can pass into law. I am seeking from the Minister a definition of what comprises a court, in the context of the clause. Is a court any place at which a presiding judicial officer—either a magistrate or a judge—sits, or does it have the geographical sense of a courthouse? I ask because I can conceive of many circumstances in which a convening court will not have the facilities for television links; it might not even have telephone links, although that is less likely.

Also, there may be circumstances in which it is not possible for a witness to be present in a courthouse equipped with television links, and it might then be better to make arrangements from another place. I had two examples in mind. The first was that of very remote communities that might have access to a satellite television studio, but not to a courthouse that is so equipped, and under those circumstances, for the convenience of all concerned, it would be better for

a court to convene in the television studio. The other circumstance is when a witness cannot be moved out of a hospital; it might be more appropriate for a television link to be brought to the witness than for the witness to be brought to a television link. It may be that the Bill already allows for that, and that a court is defined as anywhere that—

The Chairman's attention having been called to the fact that seven members were not present, he suspended the proceedings; and other Members having come into the room and seven Members being present, the proceedings were resumed.

Alan Hurst (Labour, Braintree)

Order. We now return to amendment No. 137.

David Heath (Liberal Democrat, Somerton and Frome)

Thank you, Mr. Hurst. I am glad that we are now quorate again, and that the Committee members on the Government Benches who were assiduously sitting by their phones have returned to the fold in order to concentrate on the proceedings.

It is unclear to me whether the court is the institution or the locality in this instance. The Minister may be able to help me on that, and if there is a deficiency here, we might be able to correct it—although, as I have said, probably not through the words that I have proposed.

The other point that I want to make relates to amendments Nos. 141 and 142, which amend Schedule 2. I wish to identify what precisely the Government intend to provide in terms of interpretation. Uncharacteristically, Lord Bassam of Brighton seemed to have got himself into a bit of a muddle in another place on this subject. There is a need for translation facilities, but there is a need for that at two points. First, it is essential that the witness can understand the proceedings of the court to which his evidence is being transmitted; otherwise, he cannot be adequately protected or effectively give evidence. Therefore, interpretation facilities are necessary that allow that witness to understand the proceedings. However, it is also essential that the presiding judge in the United Kingdom court is able to understand the proceedings—what is going on at the other end of the television or telephone link and what the witness is saying—so that they can provide the protection under the law that is envisaged.

Therefore, there are two points of interpretation. Lord Bassam first indicated that that would be available, but he then spoiled that by suggesting that he would expect the relevant proceedings to take place in English, which is surprising under the circumstances, because a Portuguese court that is interviewing a Portuguese witness who happens to be on the Isle of Orkney will be very unlikely to take the view that the English language is the most appropriate medium in which to conduct its business. There will be a further complication if the witness in the Portuguese court is a monoglot Serbo-Croat: the proceedings from—let us say—Lisbon are in Portuguese, the witness gives their evidence in Serbo-Croat, and a poor English or Scots judge has to try to understand what is happening because, although they have no direct interest in the proceedings, they are, effectively,

the umpire whose role is to ensure that proceedings are in good order.

I am seeking to clarify the muddle that we got into in another place and to ensure that those two levels of interpretation will be available. Sometimes both levels will not be required because only two languages will be involved; but at other times three languages will be involved, and in both instances interpretation facilities will be necessary if everyone is to have the safety of knowing that their proceedings are understood. That is why I tabled these amendments.

Nick Hawkins (Conservative, Surrey Heath)

I shall be brief. Some Conservative Committee members' amendments—Nos. 47, 48, 50 and 54—have been grouped with those of the hon. Member for Somerton and Frome.

There is one matter that I should correct for the Committee. There is a typographical error in amendment No. 47, which I am sure is our fault: it states ''attentions'', whereas that word should be ''attention''—that is only one letter, but I thought I should put it on the record.

In amendment No. 47, we are suggesting that it would be sensible to make it clear in the Bill that witnesses are to have the provisions of this law explained to them in advance. I hope that the Minister will not resist the spirit of our amendment, although he may not be able to accept the wording.

I very much echo the comments of the hon. Member for Somerton and Frome on the confusion that occurred in another place. I shall not bore the Committee by repeating what was said there, as he admirably summarised that. Earlier I referred to this from a sedentary position—sotto voce—as a ''Bassam special'', which is the phrase used by Baroness Anelay of St. Johns. I agree with the hon. Gentleman that there was a great deal of confusion on the Government side in another place. One only has to read the Hansard of the debate to see that.

Amendment No. 48 would insert a new condition on whether conduct would be in contempt of court in the country outside the UK. We think that the rest of clause 30 should be valid only if the conduct was in contempt of court in the country outside the UK. I appreciate that in another place it was said that British courts could not judge on every occasion whether something was in contempt of court in another country. Nevertheless, we thought it worth having a debate to find out whether the Minister had had any further reflections since the debate in another place.

Amendments Nos. 50 and 54 would amend schedule 2, and are related to the same matters. On amendment No. 50, we feel strongly that it is vital to include in the Bill a requirement that the nominated court is notified that the witness is willingly giving evidence. There was an important debate in another place at columns GC112 to 114. I point in particular to what Baroness Anelay said at column GC114. I know that the Minister is aware of what was said, so I shall

not take up Committee time by quoting extensively from that debate.

Amendment No. 54 would add a new subsection (16A), which contains an overarching witness protection provision, to part 2 of schedule 2. It is sensible to include that in the Bill. The words of proposed new subsection (16A) make it clear beyond doubt that the witness is to have that protection. I cannot see any good reason why the Minister would resist that. I hope that the Minister stands up and says, ''Well, all right then, we'll accept amendment No. 54.'' He might do so because he is demob happy or for any other reason. I also agree with the amendments tabled by the hon. Member for Somerton and Frome. They are sensible, and I need not go through them again.

I hope that the Minister will consider the matters that we have raised. We have tried to be sensible and constructive; we genuinely think the amendments will improve the Bill and provide clarity about the protection of witnesses. We think that that is important, and I know that the Minister does too.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman will forgive me if I do not deal with the amendments in the order in which they have been listed.

Amendment No. 47 would introduce a statutory requirement in relation to contempt of court and perjury to inform witnesses of their rights and obligations under clause 30. However, schedule 2 contains sufficient safeguards for the rights of witnesses, so the amendment is unnecessary. Witnesses who provide evidence in this way will be subject to the same rules of contempt of court and perjury as would apply if they were testifying in a normal, domestic court proceeding. They are also protected by any additional rights and privileges that they would have if they had been physically present at the overseas proceedings. They are therefore doubly protected, by the proceedings, protections and rules of court of our own country and those of overseas jurisdictions.

Amendment No. 48 would limit the circumstances in which a witness summoned to give evidence before a UK court would be deemed to be in contempt of court. An undue burden would be placed on the domestic court if it had to establish whether an act by a witness in its presence, which would be contempt of court in the UK, would also be contempt of court in the overseas country. That would require detailed knowledge of many other legal systems, which is impractical. The clause is designed to protect the domestic court system, so that if a witness committed contempt of our court, action could be taken against that person.

Amendment No. 50 would restrict the power of the court to secure the attendance of witnesses to circumstances in which the witness is willing to attend. That is unacceptable for the reasons I gave on amendment No. 45. The UK cannot restrict the application of the provisions to circumstances in which witnesses are willing to give evidence without falling foul of article 10 of the MLAC. That applies to all witnesses, not just those who are willing. It is appropriate for there to be a power to compel

witnesses to attend. We will achieve that by issuing a summons. That would be done if they were required to appear as a witness in a domestic criminal proceeding.

The hon. Gentleman made a special plea for amendment No. 54. That would replicate the provision in part 1 of the schedule—on the intervention of the court to safeguard the rights of witnesses in television link hearings—in part 2, which deals with telephone hearings. The Government do not think that that is necessary or appropriate. It could have a potentially confusing effect. Under clause 30 and part 1 of the schedule, which governs television links, witnesses may be required to attend. In fact, they are compellable, subject to the privileges referred to in paragraph (9). Clause 31 and part 2 of the schedule, on the other hand, offer no more than a facility to give evidence by telephone. There is no power to secure the attendance of a witness if they are not willing to attend, and they cannot be required to give evidence unwillingly. The two proceedings are quite different. To add an equivalent to paragraph (5) to part 3 of the schedule would cause confusion about the position of the witness before the court.

On amendments Nos. 137 and 138 tabled by the hon. Member for Somerton and Frome, there is no need for the Secretary of State to nominate any place other than a court to hear witnesses by television or telephone link—both kinds of hearing would be conducted by a court. If we received a request to arrange such hearings on behalf of overseas authorities, we would generally use magistrates courts. More than 150 magistrates courts have been set up to receive remand TV links; those currently only operate between courts and prisons for use in remand hearings. However, the technology is in place, and linking with overseas courts would be technically straightforward. The witness would be in a UK court and the camera would be linked to the court in the UK.

All such hearings must be conducted before a court. Generally, the court nominated by the Secretary of State would be the one most conveniently located for the witness that has the necessary facilities. Whether the link was set up in the usual courtroom or outside it is irrelevant. The court would be conducting the hearing, so it would be nominated. As for remote communities and potential problems, I understand what the hon. Gentleman is saying. The court might nominate facilities outside its existing court buildings, but they would be designated as part of the court. On a Scottish island, for example, the court could designate a particular building on the island, which would become part of the court and be covered for convenience. There would be no need for any amendment.

I emphasise that interpretation would always be provided in respect of both the judicial authority and the witness. Let me say to the hon. Gentleman that amendments Nos. 141 and 142 are not necessary. It is not that we do not agree with him, and I hope that I can reassure him that they are not necessary.

It is likely to be a frequent scenario that one party—the witness or the domestic judicial authority—does not understand the language in which the overseas

proceedings are conducted. It is superfluous to refer to the court and the witness explicitly when making reference to rules of court. We may receive a request from Poland where the witness is Polish and would understand the proceedings. However, the court here would not understand them and therefore could not fulfil its obligations under clauses 30 and 31 and schedule 2, which impose responsibilities on the nominating court to protect the rights of the witness and the fundamental principles of domestic law. It needs to understand the proceedings to fulfil those responsibilities, so interpretation would have to be provided.

Let us suppose that a witness did not speak English, but we were conducting proceedings with the United States of America, so the court here would be able to understand them. If the witness did not understand the language of the proceedings in the requesting country, the court would not be serving the interests of justice or protecting the rights of the witness if it did not provide interpretation for him. Therefore, interpretation will always be provided if it is needed by the witness or the court. It must always be available. It is not necessary for the proceedings to take place in English. In the case of the Polish witness and the Polish jurisdiction, they could take place in Poland, but the court would need an English interpretation. I hope that I have reassured the hon. Gentleman that interpretation will always be provided. It is a requirement to ensure that justice is done. We do not disagree with the amendments, but they are not necessary.

David Heath (Liberal Democrat, Somerton and Frome)

I thank the Minister for clearing up the confusion that was created by rather contradictory statements made by Lord Bassam in another place. The Minister has said explicitly today that it is necessary for both the witness and the court to understand the proceedings and that interpretation will be available to achieve that. That is the assurance that I sought by tabling my amendments and I am entirely content with it. I am also grateful to the Minister for his explanation that a court is the place where the court chooses to constitute itself, which need not be solely in a courthouse, and that there is provision, where necessary, for the court to move outside the premises of the courthouse and constitute its court elsewhere for the instances that I gave.

The hon. Gentleman raised one other issue in passing, which is that of a prisoner not being brought into court, but being kept in prison. I presume that, under those circumstances, it would be necessary to constitute the court in the prison, rather than to use the link from the prison to the court and then for the court to communicate with the overseas court. That is perhaps a conundrum too far.

Bob Ainsworth (Labour, Coventry North East)

It would seem to me that that is a possibility, in theory. There must already be provisions, because there is coverage on remand, and if the court chose to constitute itself in a prison, the same situation would apply. If that is not the case, I shall come back to the hon. Gentleman, but that would be common sense. If the court can extend itself beyond its boundaries to cover remote communities, it

can probably do the same to cover people incarcerated in prison.

David Heath (Liberal Democrat, Somerton and Frome)

That is certainly the common-sense interpretation. I am grateful to the Minister, and on the basis of the assurances that he has been happy to give me, 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. 138, in

clause 30, page 18, line 3, at end insert

'but may subsequently be used as evidence, if admissible, in proceedings in the United Kingdom.'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss amendment No. 140, in

clause 31, page 18, line 39, at end insert

'but may subsequently be used as evidence, if admissible, in proceedings in the United Kingdom.'.

David Heath (Liberal Democrat, Somerton and Frome)

This is another probing amendment. There is a clear provision in subsection (7), which says:

''Subject to subsections (4) and (5) and the provisions of that Schedule, evidence given pursuant to this section is not to be treated for any purpose as evidence given in proceedings in the United Kingdom.''

I understand that the evidence is not before a British court; it is administered partly by it, but it is not evidence in proceedings in the United Kingdom. My small concern is whether that precludes evidence given under those circumstances from being used subsequently in proceedings in a United Kingdom court. It seems that that might not be the intention.

Let me give an instance. Supposing the witness in a case in a foreign country looked up suddenly, halfway through giving evidence, which is sworn, is before a district judge, and is recorded, and said, ''Oh, by the way, I killed Mrs. Jones last week.'' It would be absurd for that evidence not to be brought up in subsequent British proceedings in court—but, of course, only if admissible; and that is a big question.

Stephen Hesford (Labour, Wirral West)

But that is the point—if it is admissible. If it were not, what the hon. Gentleman says would have no point.

David Heath (Liberal Democrat, Somerton and Frome)

I am trying to discover whether, all other things being equal, and there being no reason to suppose that what was said was not admissible because of any other consideration in UK law, the evidence would be admissible and would not be precluded by the clause. I would like some clarity on that. The hon. Gentleman will recall our long debates on hearsay evidence in connection with the Criminal Justice Bill. The clause refers to privileged, rather high-powered hearsay evidence; it is hearsay in the hearing of a court, a district judge and a recorder who is providing a record of the proceedings to the satisfaction of the United Kingdom courts. The evidence is really classy hearsay, in the context of what was envisaged under the Criminal Justice Bill.

Stephen Hesford (Labour, Wirral West)

I am not sure where our discussion is going, but I think that the hon.

Gentleman is wrong; we are not talking about hearsay. If it came from the defendant's mouth, it is direct evidence against him, not hearsay.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman has the advantage of me in being a lawyer—

Siobhain McDonagh (Labour, Mitcham and Morden)

Disadvantage.

David Heath (Liberal Democrat, Somerton and Frome)

If the hon. Lady will forgive me, I shall continue.

The evidence is not coming directly from the witness's mouth, because we are not talking about proceedings in a UK court. That witness may not give the same evidence in proceedings before a UK court. As what is said will be brought before the court as a result of the record of the proceedings, which are not before a UK court and have been witnessed by a district judge and the court authorities, it constitutes hearsay evidence under the interpretation normally accorded it. It is not direct evidence because it has not been given in the context of the proceedings of a UK court. Unless I have completely misdirected myself, it seems that, all things considered and provided that the evidence is not prevented from being admissible in other circumstances and is available to a British court as a record of proceedings, it should be potentially used in proceedings against the witness or anyone else. Despite the Minister's attempts to divert me from such a course, I wonder whether he believes that such action is possible and whether subsection (7) would prevent it from happening. I might be making a tortuous point, but there is the potential for such action to happen. I would hate it for us to have got it wrong.

James Paice (Conservative, South East Cambridgeshire)

I support the hon. Gentleman's probing amendments. We are on new territory and discussing the giving of evidence by telephone, which is not admissible in British courts. The hon. Gentleman was right to want to explore a range of issues with the Government. It is clear from clause 31(4) that the giving of the evidence will be taking place physically in a British court, but that does not mean that it is taking place within British court proceedings, and under their constraints. Such matters need to be more clearly understood. The Minister must explain them.

Secondly, although the giving of evidence by telephone is not permitted in British court proceedings—although I consider that it is perfectly correct—what the witness says may be heard other than by the telephone. Court officials will be present during the proceedings who hear literally rather than by telephone. With respect to the hon. Member for Wirral, West (Stephen Hesford), the matter is more confusing than he suggested when he referred to admissibility. We know that telephone evidence is not admissible in this country. If a person listened to evidence being given by telephone, it is not admissible. However, if a court official was physically sitting at the hearing, heard the witness give evidence and made the admission to which the hon. Member for Somerton and Frome referred, it would not have been heard over the telephone and that should be taken into account. The hon. Gentleman has put his finger on an important point, and I am interested in how the Minister will wriggle out of it.

Bob Ainsworth (Labour, Coventry North East)

The Minister will do his best. As it is Thursday afternoon, I cannot resist sharing something with the Committee. I have a note that says, ''Resist. These are new amendments. We have no idea what their purpose is. They do not make sense as drafted. You might wish to offer to write to the hon. Gentleman.''

I have a couple of comments to make about what has been said. The Committee must bear in mind that the telephone evidence was given willingly and that there was no compulsion on the individual to give it. That is different from video link evidence. I say to the hon. Member for South-East Cambridgeshire that we think that its use in domestic proceedings is precluded. We may have to seek the evidence ourselves from the overseas authority, in which case it could be used. However, the point that the hon. Gentleman makes is valid: it may have been heard, so it might be admissible. That is our view at present.

I will do what my note advises me to do, which is to get some consideration on it and respond to the Committee in writing.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the Minister for giving way, and for saying that. However, he should reflect on what he said earlier when he deliberates on this matter. Evidence that is given over the telephone is not admissible in British courts. Even if we get evidence from another country, it could not be used in a British court because it would have been gained over the telephone—but he seemed to suggest that it could be used.

Bob Ainsworth (Labour, Coventry North East)

No, I was making a point about there being two different types of evidence. I was also seeking to allude to the fact that the person was not obliged to give the evidence by telephone: if he was overheard, and rendered himself liable in a British court, more fool he. We must clarify the position, because this is an important point and we need to understand exactly what we are doing.

David Heath (Liberal Democrat, Somerton and Frome)

I agree with the hon. Member for South-East Cambridgeshire that evidence that is given by telephone to an overseas court cannot come back here and be admissible. However, under schedule 2(10), the rules of court

''must make provision—

(a) for the drawing up of a record of the hearing''.

Therefore, this is not a question of what some court official may remember. A court official will be producing a record of the hearing. Will that record subsequently be available for use in a British court? The Minister's initial response suggested that that was precluded, and I am seeking to ensure that it is not, because it might be a valuable piece of evidence.

Bob Ainsworth (Labour, Coventry North East)

The hon. Gentleman tabled his amendments yesterday, and they address an interesting area, which we need to examine. I will write to the Committee before Report so that it knows exactly what the situation is.

David Heath (Liberal Democrat, Somerton and Frome)

That was extremely helpful. I am not trying to catch anybody out. The thought that this might be a problem occurred to me only two days ago.

I am sorry if the Minister's officials were baffled when I first tabled the amendment.

We have had a useful debate, and the Minister now understands my point and accepts that it has some validity, even if I am not right. I look forward to reading his letter, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30 ordered to stand part of the Bill.

Clause 31 - Hearing witnesses in the uk by telephone

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 49, in

clause 31, page 18, line 20, at end insert—

'(d) confirm that the witness has received independent legal advice'.

After the previous debate, I would be interested to be a fly on the wall when the Minister has a private session with his officials later. I am reminded of an occasion when I was occupying a similar role in a different Department. I foolishly stated to a large audience that the speech that I had been given was so boring that I was not going to deliver it, and that I had written one of my own. Immediately afterwards, a grovelling official came up to me to apologise for writing such a boring speech. I had not realised that she had been present when I made that statement. It is very easy to say the wrong thing.

As for amendment No. 49, we have cantered round the course in a different context. However, where we are seeking to require that the witnesses received independent legal advice, there is a unique context. We have been discussing that we are addressing something that does not exist in the British legal system—the giving of evidence by telephone. For a witness who may well be accustomed to the British system, this would be completely foreign—I use that word advisedly—territory: they will not know about it. If a witness is giving evidence by telephone—albeit accepting the Minister's earlier comment that that is voluntary—there is a case for saying that the Secretary of State should be sure that that witness has received the proper legal advice about what he may or may not be doing and the possible implications of that, especially in the light of our debate. Whatever the Minister's deliberations may demonstrate, there could be legal implications at home for what the witness may or may not say over the telephone to someone else. That is important, because we are dealing with something that is novel in the British legal system—that the witness should be given some legal advice. It is right that that should be included in the Bill.

The Minister may well refer to the fact that that was debated in the other place—it was—but the answer received then was extremely thin; it seemed to suggest that the witness was already sufficiently protected by schedule 2. That answer is not adequate. Part 2 of schedule 2—''Evidence given by telephone''—refers to the notification of the witness and the conduct of the hearing. It says simply:

''The evidence is to be given in accordance with the laws of that country'',

where the court proceedings would take place. Nowhere in part 2 is there any reference to the witness being informed of their rights, or of the legal implications of giving evidence by telephone to the country in question, or of the implications back home that may be consequential on that. That is a short, simple point, but we are talking about something novel in the British judicial system and it deserves particular investigation. I hope that the Minister will understand the importance of that matter, so that British citizens, and others who may be brought to use the system under clause 31, are fully aware of their rights.

Bob Ainsworth (Labour, Coventry North East)

Although we understand the desire to protect the rights of witnesses, we do not consider that the amendments are necessary. Witnesses agreeing to give evidence in such a way have sufficient protection. Article 11(2) of the MLAC provides that witnesses may be heard by telephone only if they agree to the hearing. There is no question of issuing summonses to unwilling witnesses, because there is no power to summons witnesses for telephone hearings. The Bill provides for a court to make arrangements to hear evidence, but not for it to compel witnesses.

Under domestic law, there is no obligation for anyone appearing as a witness to seek legal advice, nor is there any automatic right to it. It would not be right or consistent to require that a person has received legal advice in such circumstances, when the UK does not require that in respect of domestic criminal proceedings, either for witnesses, whether willing or unwilling, or even defendants, who are not covered by the provision.

The clause as drafted requires the requesting country to confirm that the witness is willing to give evidence by telephone in proceedings before the overseas court. As an additional safeguard, the court is also required to be satisfied that the witness is willing, thereby protecting him if, having agreed to give evidence, he changes his mind by the time of the hearing.

The provision does not have general application and we do not expect it to be used frequently—not all member states are able to request that kind of assistance. We understand that it is mainly used by Scandinavian countries. Schedule 2 provides that such hearings, like those via television link, will be conducted under the supervision of the requesting state and in accordance with its law.

That is our fairly firm position. The only doubt that creeps into my mind is our preceding conversation and the issue of circumstances. I am not sure whether that would impact on anything, because there is no requirement to ensure that legal advice is given to witnesses in domestic proceedings. The witnesses must be certified as being willing, and the court must check that they are willing. To insist that they receive legal advice is an unnecessary step.

James Paice (Conservative, South East Cambridgeshire)

I hear what the Minister says. In the light of earlier amendments, and the fact that he says that he will go away and think about them, he might

want to reflect on this one too. I understand what he is saying, but because we are talking about something that is completely new for a British system—giving evidence by telephone—this is a special case. However, it is not appropriate to pursue that now, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 ordered to stand part of the Bill.

Schedule 2 - Evidence given by television link or telephone

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 52, in

schedule 2, page 65, line 8, at end insert

'including those competent in sign language'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss amendment No. 55, in

schedule 2, page 66, line 2, at end insert

'including those competent in sign language'.

Nick Hawkins (Conservative, Surrey Heath)

I can be brief. Both amendments would have the same effect, and would insert in the schedule the phrase,

''including those competent in sign language''.

There was a brief debate in another place on this subject, and on that occasion Lord Bassam of Brighton sought to reassure Baroness Anelay of St. Johns. Having read that debate, I am not clear whether Lord Bassam had got it right. It was helpful of him to put it on the record that he felt that sign language

''must be a language all of its own and therefore I see no problem with that.''

He also said:

''We see no reason why the term 'interpreters' should not include those competent in sign language.''—[Official Report, House of Lords, 23 January 2003; Vol. 643, c. GC116.]

If that is so, it would be helpful to avoid doubt and include it in the Bill. I hope that the Minister will be happy to do that. Baroness Anelay was, of course, working on behalf of the British Deaf Association and the Royal National Institute for Deaf People—two extremely worthwhile organisations, the work of which I am sure that Members and peers on both sides of both Houses would support.

Years ago, when I was working in the courts, I had a lot of experience of interpretation of different forms. In the spirit of Thursday afternoon—as the Minister puts it—perhaps I should briefly share a couple of experiences that show how easy it is to get things wrong, not just in relation to sign language for the deaf, but in interpretation of other languages. Two particular experiences from my years of practice at the Bar spring to mind. I realise that the following might present one or two challenges to the Hansard writer, so I apologise.

It was well known in the courts around the west midlands—my chambers were in Birmingham and Northampton—that there were two groups of interpreters that worked for the Crown courts and the magistrates courts. One group had extensive experience of working overseas in Asian countries. It contained people who had retired from the Army in

India who had learned a number of languages on the subcontinent. They were precise, knowledgeable and always gave an accurate interpretation. The second, less reliable group of interpreters, instead of interpreting what the witness said, used to try to help the witness with his statement or the defendant with the case.

There could be a situation in court in which a lengthy reply was given in another language. I cannot speak any Asian languages, but it would be something like, ''Blblblblll Blblblblll Blblblll''—which will be a challenge for the Hansard writer. The best way to describe it for the benefit of Hansard would be to say, ''a long phrase in an Asian language.'' The interpreter would then translate that as, ''The witness says yes.'' or ''The witness says no.'' It would be clear that the witness or the defendant had said a great deal more than that. Therefore, the interpreter would not be assisting the court.

The other experience that I had in a long and big fraud case was a situation in which all the prosecution witnesses, who were crucial to the prosecution's case, were Breton farmers, none of whom spoke a word of English. Unfortunately, the principal witness had had a tracheotomy, which many hon. Members will remember was the operation that the famous actor, Jack Hawkins—no relation to me, I am sad to say—had undergone. It meant that the witness had to speak through a hole in his throat, having had an operation for throat cancer. A special microphone had to be installed in the Crown court in Northampton, so that he could be understood.

However, not only was the witness speaking French, but in a Breton dialect. Unfortunately, the prosecution chose as the interpreter a lady who spoke fluent French and English, but who had never acted as a court interpreter. From the point of view of the Court Service, that was a catastrophic error, because it meant that the interpreter would have huge problems. She was not from Brittany and did not understand the Breton dialect. What made the situation even worse was that a crucial part of the allegation that the prosecution was making in respect of this fraud related to how agricultural markets operated in Brittany.

In this country, we might call the way in which such markets worked a candle auction or a clock auction. I was one of the defending barristers, and I know that the prosecution experienced enormous difficulties. The Breton farmer would say through the throat microphone, ''Il y a une horloge.'' The interpreter would say, ''Zer is a clock.'' We spent literally hours—I kid the Committee not—trying to work out how on earth the Breton potato and wheat markets worked, through an interpreter, with all the difficulties that that involved. I hope that I have described the sensitivity of problems of interpretation that can arise in courts.

Stephen Hesford rose—

Nick Hawkins (Conservative, Surrey Heath)

I will give way to the hon. Gentleman in a moment, although I am sure that you will not want us to be detained too long with my recollections, Mr. Hurst. I must explain why, for the avoidance of doubt, I want a clear provision in the Bill that that sort of interpretation should include sign language. Finally,

before I give way to the hon. Gentleman, I must say that we might have got along better in the fraud case if we had had sign language, rather than having someone trying to translate a Breton dialect.

Stephen Hesford (Labour, Wirral West)

That story could be categorised as a long phrase in English, which is as impenetrable as the hon. Gentleman's ''long phrase'' in Urdu, or whatever he attempted to convey. The relevance of it escapes me. Returning to the amendment, paragraph 8 of schedule 2 states that

''Rules of court under section 49 must make provision for the use of interpreters.''

What other definition could someone signing on behalf of someone else to demonstrate to the court what that deaf or dumb person is trying to say be listed under, other than interpreters? It is an administrative convenience for the court to obtain the right interpreter for the right purpose. It is not necessary to spell that out, otherwise we could spell out an entire list of what might be an appropriate interpreter for a specialised situation. I think that the hon. Gentleman is mistaken about that.

Nick Hawkins (Conservative, Surrey Heath)

The hon. Gentleman understands—I hope that he was listening to what I said—that the amendments were originally tabled in another place by Baroness Anelay of St Johns at the request of two worthwhile charities, the Royal National Institute for Deaf People and the British Deaf Association. We did not consider on reflection that the Minister's answer that it is bound to be covered because he thought that the phrase ''interpreters'' covered sign language was sufficient. We cannot see any reason why such a provision should not be in the Bill, for the avoidance of doubt. That is all I need to say.

Bob Ainsworth (Labour, Coventry North East)

Obviously, the hon. Gentleman used to enjoy himself so much in his past life, so we are all bemused about why he chose to trade it in and join us in Committee Room 9 so often. I can satisfy him by firming up the language, if that is what is upsetting him, without putting the term ''sign language'' in the Bill. My hon. Friend the Member for Wirral, West was right. If ''sign language'' were incorporated into the Bill, other languages would have to be covered by it.

I say to the hon. Member for Surrey Heath that ''interpreters'' is a general term. It would include those who are competent in sign language. The provision will meet the requirements of article 10 of the convention but, in practice, domestic courts will always provide interpretation in the event of a witness not understanding the language in which the proceedings were being conducted. The interests of justice would not be served without interpretation. That applies to sign as well as to verbal interpretation. Under the terms of schedule 2, rules of court must already make provision for the use of interpreters. The term ''interpreters'' would include those competent in sign language, whenever that was necessary. I have firmed up the language used in another place, if that is what concerned the hon. Gentleman, and it should now be clear that such a provision will be made. It is inappropriate to put it in the Bill.

Nick Hawkins (Conservative, Surrey Heath)

I am happy with the Minister's further firming up of what his noble Friend Lord Bassam of Brighton said in another place. It was helpful. In response to his initial canard, what used to frustrate me in the seven-plus years that I was practising at the Bar was that so often I came across parts of the law that needed changing. The more frustrating it became for those of us practising in the courts, the more determined I was to try to get here to do something about it. That is why I am in this Room.

Alan Hurst (Labour, Braintree)

Order. I have shown a certain degree of tolerance, but we should draw a line under that point.

David Heath (Liberal Democrat, Somerton and Frome)

I wonder whether the hon. Member for Surrey Heath can help me. I will have to display my ignorance about the number of international variants of sign language. Is it an international language? What is the possibility of finding a person who is capable of interpreting from sign language into English a version of sign language that is in another language, as it were? There may be a practical difficulty.

Nick Hawkins (Conservative, Surrey Heath)

I cannot answer that question off the top of my head, but the person to whom I could most usefully refer the hon. Gentleman is my hon. Friend the Member for Chesham and Amersham (Mrs. Gillan). To my certain knowledge, she has been trained in signing for the deaf. There may be other hon. Members who have received the same training. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.

New clause 1 - Freezing orders

James Paice (Conservative, South East Cambridgeshire)

I beg to move, That the clause be read a Second time.

The new clause is self-explanatory. It would require that an annual report be made to Parliament on the use of freezing orders. We debated such orders in a previous sitting, especially domestic freezing orders, which—despite the phrase—are freezing orders that apply elsewhere. My interpretation of a domestic freezing order is what I shall receive if I do not arrive home at a reasonable time tonight.

The whole issue of freezing orders is a significant development in the legal process. In clauses 10 to 12, we are effectively giving a British court the opportunity to protect evidence overseas before it comes to this country. As we said the other day, that opens up a range of issues.

The point is simple: we think that there should be an annual report, so that we can see how the legislation is settling down. It is interesting that, so far in Committee, we have referred back to the 1990 legislation on a number of occasions. Indeed, we have asked the Minister how certain parts of it have worked, and he, with respect, has not been able to answer because nobody knows. We cannot turn back

the clock and start investigating all those issues, but as we are doing something significantly different, it is probably right that we require annual reports, so that we know how the provisions are settling down. It may well be that in a few years everything will be running all right, and an annual report will become less relevant; however, in the early stages, such reports would be extremely useful, and I would be grateful if the Minister would consider that.

Stephen Hesford rose—

James Paice (Conservative, South East Cambridgeshire)

I have finished.

Alan Hurst (Labour, Braintree)

Mr. Hesford, do you wish to speak?

Stephen Hesford (Labour, Wirral West)

I was going to intervene; I do not wish to speak.

Robert Syms (Conservative, Poole)

Good speech.

Alan Hurst (Labour, Braintree)

You are a little late for intervening, Mr. Hesford, but obviously you may address the Committee.

Bob Ainsworth (Labour, Coventry North East)

I say to the hon. Member for South-East Cambridgeshire that the new clause would involve unnecessary bureaucracy, impose a considerable burden, and not produce any significant benefits. Orders to freeze evidence are new, and it is impossible to predict how many will be issued. It is likely that numbers will increase as the authorities become more familiar with the procedures involved. The central authority will monitor the numbers to ensure that it is appropriately staffed, in the same way that we monitor the number of mutual legal assistance requests at present.

The effect of such orders is not fundamentally different from mutual legal assistance requests to seize evidence in another state. Freezing orders are a new, faster method of obtaining evidence, but we can already request and obtain evidence. The burden that freezing orders will place on our authorities will not be significantly different. Furthermore, the evidence provided for in clauses 10 to 12 only implements part of a requirement introduced by a framework decision on orders to freeze property and evidence.

Schedule 4 implements provisions relating to freezing terrorist property, and further legislation will be required to implement the provisions relating to the freezing of other property with a view to confiscation. A report on the use of freezing orders made under part 1 of the Bill would therefore present an incomplete picture. I do not know how many reports the hon. Gentleman wants.

A similar amendment was tabled in another place to say that Parliament should know how the provisions are working. I should say to the hon. Gentleman that information about numbers of orders will be available via parliamentary questions. In the same way, we would not reveal information about individual mutual legal assistance requests, but would be held to account in the normal way. I am sorry to say that I am not prepared to accept the hon. Gentleman's new clause, and, for the reasons that I have given, I ask him to consider withdrawing it.

James Paice (Conservative, South East Cambridgeshire)

Well, there is a surprise. In light of earlier comments that the Minister made, reading from

his brief, his point is comprehensible, and he obviously supports it. I understand that; I knew he would oppose the new clause. Governments always do, including the Government of whom I was a member. We opposed similar clauses. That is the nature of the beast, but it is still important that the issue is debated. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New clause 2 - Application of sections 30 and 31

Nick Hawkins (Conservative, Surrey Heath)

I beg to move, That the clause be read a Second time.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following:

New clause 3—Application of sections 30 and 31 (No. 2)—

'.—(1) This section applies for the purposes of sections 30 and 31.

(2) For the avoidance of doubt, proceedings before a nominated court are not to be treated as proceedings before a court of any country other than the United Kingdom, and nothing in sections 30 and 31 confers any jurisdiction on a court of any country other than the United Kingdom in respect of anything done in the United Kingdom.'.

Nick Hawkins (Conservative, Surrey Heath)

It would be helpful to have new clause 2 as a safeguard in respect of clauses 31 and 32. The information—what I might call the warnings—to the witnesses should be written in ordinary language. I shall not detain the Committee by stressing in great detail the support on the Opposition Benches for the use of plain English, but as the Minister knows from previous debates I have always been a strong supporter of the plain English campaign. I say that despite being a lawyer. I am one of those lawyers who used to support the plain English campaign even when I practised.

New clause 3 is a sensible provision for the avoidance of doubt. It would ensure that we do not get into danger of surrendering our sovereignty. Some of the relevant issues were debated in another place on 23 January in columns GC 104 to 105. There is no point repeating what my noble Friends Baroness Anelay of St. Johns and Lord Renton of Mount Harry said. I am sure that the Minister has read that, too. I beg to move new clauses 2.

Bob Ainsworth (Labour, Coventry North East)

We believe that proper safeguards for witnesses are already provided in clauses 30 and 31, combined with schedule 2. The two sorts of hearing are subject to different rules. Television evidence is governed by clause 30, which says that witness can be compelled to attend the court. Telephone evidence is governed by clause 31, which says they cannot be

compelled. Schedule 2 makes it clear that there is a significant difference between these hearings.

Paragraph (1) of part 1 of schedule 2, entitled ''Securing attendance of witnesses'', relates to the television link and states that the nominated court has powers for securing the attendance of a witness, as it does for proceedings before the court. By contrast, paragraph (11) of part 2, entitled ''Notification of witness'', relates to the telephone link and only gives the court the power to inform the witness of when the hearing will take place. That paragraph states that the court must be satisfied that the witness is willingly giving evidence by telephone.

The usual domestic summons procedures will apply in relation to television hearings. The summons will be issued by the domestic court in accordance with our law under section 97 of the Magistrates' Courts Act 1980. Summonses set out when and where the witness should appear, the consequences of failure to comply and details of who to contact for more information. We consider that the existing summons procedures are appropriate.

Schedule 2 sets out the circumstances in which a witness cannot be compelled to give evidence by television link. A witness could not be compelled to give any evidence if he could not be compelled to give it in criminal proceedings in the UK, were he participating in domestic proceedings, if giving any evidence would be prejudicial to the security of the UK, or in his capacity as an officer or servant of the Crown. The first point ensures that the witness is granted at least the same protections as in domestic proceedings, even though the hearing is being conducted by an overseas court.

The requirement in the second part of new clause 2 is not appropriate. It is extremely unlikely that our authorities would be able to provide witnesses with information about the uses for which their evidence may be put. The overseas authority conducting the hearing would inform the witness of as much as necessary on the use of evidence under its law.

Turning to new clause 3, other than for the purposes of contempt of court and perjury, television and telephone hearings are not proceedings before a UK court. The Bill enables witnesses to be heard as part of the proceedings before an overseas court, and they take place under the law of the state that requested the hearing. The witness would give evidence as part of foreign proceedings and the foreign court would not be conducting proceedings in the UK. The mutual legal assistance convention and the Bill are designed to ensure that witnesses are adequately protected under the law of the country in which they are present, even though the evidence they are giving is taken in accordance with the law of a country outside the UK. The provisions ensure that while a domestic court is not conducting the hearing, it has the appropriate powers to safeguard the rights of the witness.

The protections are adequate. They cover the position where the court has the ability to take sanctions against witnesses who commit perjury or contempt as defined in our law, while they are present

in our domestic court. I am unable to accept the hon. Gentleman's new clauses.

Nick Hawkins (Conservative, Surrey Heath)

As I expected, the Minister has given a similar response to that which was given in another place by his noble Friend Lord Bassam of Brighton. The Minister has slightly expanded on what was said at column GC105. However, my noble Friend Baroness Anelay of St. Johns said, on 23 January:

''My difficulty still remains. We shall be enforcing a system whereby someone could be accused of an offence of contempt which was not committed in this country.''—[Official Report, House of Lords, 23 January 2003; Vol. 643, c. GC105.]

We are still not entirely satisfied on this issue, but nothing will be served by taking the matter forward any further today. My hon. Friend the Member for South-East Cambridgeshire and I will confer with our noble Friends in another place, because they might want to return to this matter.

However, for the moment, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Further consideration adjourned.—[Mr. Heppell.]

Adjourned accordingly at fourteen minutes to Five o'clock till Tuesday 17 June at ten minutes past Nine o'clock.