Crime (International Co-operation) Bill [Lords] — New Clause 1 — Driver Licensing Information

House of Commons, 14 October 2003.

Caroline Flint (Labour, Don Valley)

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

Michael Martin (Speaker, Glasgow Springburn)

With this it will be convenient to consider amendment No. 33, in clause 57, page 38, line 25, at end insert

'or in any other State in which the offender has temporarily resided'.

Caroline Flint (Labour, Don Valley)

As we embark on today's business, I hope that we have all recovered from the party conference season. The insertion of the new clause after clause 81 will provide the necessary statutory authority for the Driver and Vehicle Licensing Agency and Driver and Vehicle Licensing Northern Ireland to enter data required for Schengen purposes on the UK's national section of the Schengen information system. That will ensure that the UK meets the requirements of its Schengen application in relation to the SIS.

The statutory gateway already contained in section 71 of the Criminal Justice and Court Services Act 2000, allowing disclosure of information held by the Secretary of State for the purposes of part 3 of the Road Traffic Act 1988, is not sufficient for the UK's Schengen obligations. It allows information to be disclosed for use by constables only and, in limited circumstances, for further disclosure by them. Furthermore, section 71 does not extend to driving licences issued in Northern Ireland.

Gwyneth Dunwoody (Labour, Crewe and Nantwich)

I would be very interested to know when the decision was taken to include such greatly expanded information, which carries with it considerable implications. Anyone holding a licence for any vehicle in the United Kingdom now runs the very real risk of that information being transmitted to a foreign Government without their permission.

Caroline Flint (Labour, Don Valley)

It is necessary to legislate through insertion of the new clause because the sharing of data on driving licences for the purpose of the SIS is not within the scope of existing legislation. There is no power to disclose information that has been collected under statute—in this case, the 1988 Act—for purposes not covered by statute. Section 71 of the 2000 Act does allow for the disclosure of information held by the Secretary of State for the purpose of part 3 of the 1988 Act, but that is not sufficient for Schengen. That is for use by constables only, with limited provision for further disclosure by constables. Our Schengen obligations are wider than that, encompassing various enforcement agencies in the UK and other states. Furthermore, section 71 does not cover driving licences issued in Northern Ireland. We have therefore drafted a new clause that provides the necessary statutory power to disclose information. Such disclosure is expressly limited to the purposes of the SIS.

John Bercow (Conservative, Buckingham)

rose—

Gwyneth Dunwoody (Labour, Crewe and Nantwich)

rose—

Caroline Flint (Labour, Don Valley)

If I may, I should like to finish.

The SIS is defined in clause 81 of the Bill, and these additional arrangements will be subject to the same data protection arrangements as apply to the national section of the SIS in general. The arrangements will allow the office of the Information Commissioner to inspect all data contained on the UK national section of the SIS to ensure that the processing of personal data is in compliance with processing requirements under the existing legislation. It is the right of any individual about whom incorrect information is placed on the SIS to apply for it to be removed or corrected. It has always been the case that such information would be on the SIS; it was realised only at a late stage that existing statutory provisions were not adequate.

Gwyneth Dunwoody (Labour, Crewe and Nantwich)

My hon. Friend is confirming precisely what I said: that this power did not exist and needs to be written into new legislation. At what point was the House of Commons made aware that these commitments under Schengen had been fully accepted? As I understood it, we had not fully accepted them. Is my hon. Friend saying that we now accept all the implications of Schengen? If so, this is a matter of considerable interest. At what point did we decide to ask the House whether this information should be passed on?

Caroline Flint (Labour, Don Valley)

As I said, it was realised at a late stage that existing statutory provision was not adequate. [Interruption.]

Michael Martin (Speaker, Glasgow Springburn)

Order.

Caroline Flint (Labour, Don Valley)

Thank you, Mr. Speaker. It is for that reason that we are introducing the new clause—so that we can make good progress in realising the UK's connection to the SIS, which is envisaged for November 2004. Before we receive live data, the UK's implementing of the SIS will undergo a rigorous evaluation, conducted by partner member states. To fulfil the requirements of the evaluation process, we must demonstrate our ability to place the required data on the SIS. It has been clear since the then Home Secretary made a statement in March 1999 that we would opt into those parts of the Schengen information system. By introducing the new clause, we hope to meet our obligations in that regard, and I can add nothing further to that picture.

John Bercow (Conservative, Buckingham)

Will the Minister give way?

Caroline Flint (Labour, Don Valley)

No, I have answered the question—[Interruption.]

John Bercow (Conservative, Buckingham)

I thank the hon. Lady for giving way with her customary courtesy, albeit on this occasion after a little pressure. Further to the interventions of the hon. Member for Crewe and Nantwich (Mrs. Dunwoody), I recognise that the Under-Secretary has a departmental brief to which she wishes to adhere, and I intend no discourtesy, but does she understand that if our profession is ever again to regain public respect, we need public understanding? I appeal to her in the context of new clause 1 and amendment No. 33 to make her speech self-contained and intelligible to members of the public who will be interested to know about the impact on them of what she is describing.

Caroline Flint (Labour, Don Valley)

I did try to explain those particular circumstances. As I said, it has always been the case that this sort of information would be on the Schengen information system. As I also said, we realised at a late stage that existing statutory provision did not apply to those circumstances. The aim is to make use of information from the Driver and Vehicle Licensing Agency and from Driver and Vehicle Licensing Northern Ireland to enter data required for Schengen purposes. I have already fully explained that.

Let me now deal with amendment No. 33, which relates to part 3 of the Bill on driving disqualification. Clause 57(2) reflects the requirement in the EU convention on driving disqualifications to take account, when calculating the period to be enforced in the UK, of any period of disqualification already served in the state of the offence. That is to ensure that the total period of disqualification served does not exceed that originally imposed in the state of the offence.

The amendment would require that any period of disqualification served in another member state in which an offender temporarily resided be also taken into account in determining the period of disqualification to be enforced in the UK. I hope that I have explained that clearly.

The amendment is flawed because a disqualification of a non-resident driver by one country does not automatically have effect in another country. Under the EU convention, only the offender's normal state of residence will be notified of a foreign disqualification and be required to enforce it. For the purposes of the convention, the state of residence is the place where the driver is resident for at least 185 days in each calendar year. If an offender is not normally resident in the UK, the authorities here will not be informed of the disqualification. The only consideration, therefore, in determining the unexpired period of a foreign disqualification will be how much of the disqualification the driver served in the state that convicted him.

A driver who is disqualified abroad may lawfully continue driving anywhere outside the state that convicted him until his own state of residence has enforced the disqualification under the EU convention. So the opportunity to serve a period of disqualification as a temporary resident in another state will not arise. Once he has been disqualified by his state of residence, he loses his entitlement to drive anywhere because his licence has been removed. After disqualification takes effect in the UK, the driver will remain disqualified in the UK until the end of the period of disqualification—regardless of whether he resides temporarily in another member state during that period. To that end, I urge support for new clause 1 and oppose the amendment.

James Paice (Conservative, South East Cambridgeshire)

First, in response to her welcome to the Opposition, I welcome the hon. Lady back after her party conference. I did indeed enjoy our conference, which was not at all like the one that I read about in the newspapers. Obviously there were, two conferences going on in Blackpool last week.

The new clause clearly undermines, as did the interventions of the hon. Member for Crewe and Nantwich (Mrs. Dunwoody), the whole thrust of the legislation, which is to reverse into Schengen without proper parliamentary scrutiny of the issues. That was exposed on Second Reading, and the new clause adds a further small element to the Bill. It is not that important on its own, but the overall issue is of great importance. We are adopting a large chunk of the Schengen acquis without the House having proper opportunity to debate it.

The Minister described the intent behind amendment No. 33 clearly, and I have some sympathy for her because the muddle on the issue was not of her making. It was the responsibility of the Under-Secretary of State for Transport, the hon. Member for Plymouth, Devonport (Mr. Jamieson), who dealt with the issue in Committee. Instead of clarifying the issue, he confused it even more. He kindly wrote to me and other members of the Committee at the end of June to try to clarify the issue, but the letter served only to complicate it further. The Minister has made a better job today, despite it not being her departmental responsibility, than did the Minister in Committee.

John Bercow (Conservative, Buckingham)

What was his effort like, then?

James Paice (Conservative, South East Cambridgeshire)

I am about to tell my hon. Friend. In Committee, the Minister said:

"I am advised that disqualification cannot be served in the other country—it can be served only in the state of the offence."

A few minutes later, he said:

"I am advised that if a UK resident . . . was disqualified from driving in France, he would be disqualified everywhere because he would have no UK licence."—[Official Report, Standing Committee A, 17 June 2003; c. 231–2.]

In the letter that the Minister sent to members of the Committee, he said:

"The driver loses his entitlement to drive elsewhere as a result of being disqualified in his State of residence"—

that is clear—

"and his licence being taken away during his period of disqualification—but he is not disqualified as such in all other Member States."

It seems obtuse to make a distinction between not being entitled to drive and being disqualified.

Gwyneth Dunwoody (Labour, Crewe and Nantwich)

That is disingenuous. If someone is disqualified in this country, it is well known that they can visit another European state, buy the requisite papers and reappear on British roads with—for example—an Italian licence.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the hon. Lady for her intervention. I actually tried to be helpful to her earlier. Inadvertently, she has been helpful to me, because I seek clarification of the confusion.

If we are to adhere to a mutual recognition of disqualification to drive across all the signatory states, an issue of common justice arises. It would receive huge public support if someone who had been disqualified for causing death by dangerous driving in one part of Europe were not allowed to return to this country and drive. That is a valid intellectual argument. If that is to happen, that is what should appear in the legislation, but it does not. If I understood the Minister correctly today, she said that if a British person was disqualified from driving in Germany—I use examples of countries for simplicity's sake and not with any malice aforethought—and then moved to France, the disqualification would not apply because France was not their normal place of residence. However, if that person moved back to Britain—perhaps years later—they would have to serve out that disqualification. The person could be disqualified in Germany for six months, live in Germany for three months, thus serving out three months of the disqualification, then live in France for five years, and then finally move back to Britain—their normal place of residence as a British citizen—and serve out another three months of disqualification. There does not seem to be any justice in that.

I gave the example of a disqualified driver moving to France. Disqualification should continue after such a move. Amendment No. 33 contains the phrase "temporarily resided" for that reason. The Minister gave her definition of residence, but she ignored the fact that some disqualifications can last a long time. Some people may choose to move to a country and become normally resident there before they return to the UK and become normally resident here. I think that the Minister said that the required period was 170 days—

Caroline Flint (Labour, Don Valley)

The period is 185 days.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the Minister, but that is still only six months. A person disqualified for three or four years who has stayed only a few weeks in the country of disqualification could fulfil the 185-day requirement in two or three other countries. I do not want to exaggerate, but the Minister seems to be saying that that would not count.

We need to establish mutual recognition of disqualification among all states. The present confusion has not been helped by the contributions of the hon. Member for Plymouth, Devonport. I am sorry that he is not here to try to explain the matter. However, I hope that the Minister understands my point, which is that a disqualified person could cite one of several countries as his country of normal residence during the disqualified period. The amendment would enable the disqualification to run consecutively in whichever country the disqualified person moved to after the offence, and ensure that different approaches are not adopted in different parts of Europe or the signatory states. Otherwise, no one—not the disqualified person, nor any victims—would know the situation with regard to the disqualified person's licence.

Amendment No. 33 is not the lead amendment in this group, and that means that I will not be able to respond to the Minister's reply other than by way of intervention. However, I reserve the right to divide the House on the matter if I am not satisfied with the Minister's response.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Member for South-East Cambridgeshire (Mr. Paice) was right to say that the Under-Secretary of State for Transport, the hon. Member for Plymouth, Devonport (Mr. Jamieson), is not on the Treasury Bench this afternoon, and also to say that that Minister's presence would not have elucidated matters much this afternoon, given his performance in Committee. In parenthesis, it is a pity too that no Scottish Office Minister is here this afternoon, given that we shall be dealing with matters of Scots law later.

I have no objection to what is proposed in the new clause, and that is why I have tabled no amendment to it. However, it is a little extraordinary that one of the prime purposes of the Bill should be covered by a provision that has been introduced so late. Secondly, I am worried that the new clause is effectively a free-standing provision in this Bill, and that there is no move to amend legislation covering road traffic, freedom of information or data protection. The degree of cross-reference is therefore limited. That structural problem in the statutes may come back to haunt us.

Thirdly, I am worried that the information referred to in the new clause is not limited. The new clause covers any information held under the Road Traffic Act 1988, irrespective of what that information is. It is possible that that Act could be amended at some date in the future to include spurious information that could not properly be disclosed for the purposes of the Schengen information system.

Julian Lewis (Conservative, New Forest East)

Is it the hon. Gentleman's understanding of the new clause that only bits of driver information shall be disclosed as and when required, or that an entire database shall be fed into the system, to be dipped into as and when the Governments of other countries in Europe decide that it would be convenient for them to do so?

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the hon. Gentleman for that intervention. The latter must clearly be the case. One of the concerns about the Schengen information system is that it grows exponentially; the database is large, with a huge number of points of access, in terms of both input and output, thereby allowing the grave danger that incorrect information may be held, with the individual citizen having only limited access to proper recourse.

Julian Lewis (Conservative, New Forest East)

I am new to this legislation, so I am grateful to the hon. Gentleman for that elucidation. The new clause thus seems to be saying that all the details held about us at DVLA in connection with our driving licences will be available, on tap, to any Government who sign up to the system.

David Heath (Liberal Democrat, Somerton and Frome)

That is my understanding, but the Minister will be able to confirm the point far better than me.

Robert Smith (Liberal Democrat, West Aberdeenshire and Kincardine)

My question should perhaps be for the Minister rather than my hon. Friend, but can he tell us whether, if someone feels that the wrong information is held on the Schengen database, there is any way that they can seek redress and clarify the information?

David Heath (Liberal Democrat, Somerton and Frome)

If my hon. Friend looks at the Bill, he will see that there is—through the data protection commissioner.

Caroline Flint (Labour, Don Valley)

It is the right of any individual who has incorrect information about them placed on the SIS to apply for it to be removed or corrected.

David Heath (Liberal Democrat, Somerton and Frome)

I thank the Minister for confirming my reply to my hon. Friend the Member for West Aberdeenshire and Kincardine (Sir Robert Smith).

Can the hon. Lady help me with what may be merely a printing matter? The new clause is set out in slightly odd way. I believe that the words

"(licensing of drivers of vehicles)"

should be attached to the Road Traffic (Northern Ireland) Order 1981 rather than to the whole new clause. Can the Minister tell me whether that is the case? I assume that the rest of the provision refers to both (a) and (b), whereas the words in parenthesis apply only to (b) as, by definition, they are contained in the Road Traffic Act 1988.

On amendment No. 33, the hon. Member for South-East Cambridgeshire and I tried desperately to get this point across in Committee. On re-reading my contribution to that debate, I think that it was even more confusing than the Minister's, so I shall not repeat what I said on that occasion. However, the hon. Member for South-East Cambridgeshire is on to a good point; surely, if we want disqualifications to be transportable across national borders within the EU, it makes sense that, wherever the individual against whom a disqualification applies is resident, the clock, in terms of natural justice, should still be ticking. It does not make sense for a person to move from one country to another and, at that point, for the term of disqualification to be put on hold—pending—until that person either returns to their country of origin or, curiously, moves to the UK, where the clock would start ticking again. That cannot be the Government's intention, so someone, somewhere, is being obtuse. As many people seem to agree with the hon. Member for South-East Cambridgeshire, while few people agree with the Minister, we may be right.

Our debates have displayed, almost throughout, the desire of the Opposition parties to improve the Bill and to make it work as the Government intend. I hope that we shall not engage in a dialogue of the deaf and that the Minister will accept the fact that we are trying to improve her Bill and to make it workable both practically and in terms of natural justice for those who are affected by it. Simply repeating that the Government disagree is not sufficient to answer the argument. The hon. Member for South-East Cambridgeshire has a good point and it would as well if the Government listened to it.

Caroline Flint (Labour, Don Valley)

To emphasise a point that I made earlier in relation to new clause 1, I wish to say that there have been a series of House of Lords inquiries into the UK's participation in the Schengen arrangements, and the decision to participate was subject to parliamentary scrutiny. The Bill has provided a further chance to discuss the UK's participation in the Schengen arrangements. So there has been full discussion of the Bill's key provisions, including issues such as cross-border surveillance, which we will come to again later.

I have been asked about those who are disqualified in the UK from driving who are then resident in another country. Let us say, for example, that they have British driving licences and that they are disqualified, but that they are living in France, the parameter for which is that they do so for at least 185 days in each calendar year. I understand that, in those circumstances, the clock would be ticking and the disqualification would obviously apply when they are living in France as well.

We are trying to ensure that such things are understood not only where licences are issued and therefore where disqualification comes about, but where, given the days we live in, people reside in another EU country. If someone were temporarily moving around the EU, the disqualification would not apply in the same respect. If someone's UK driving licence is revoked, that will also apply in the country where they are resident. That should prevent them from driving anywhere. Certain procedures have to be gone through to get a licence in another country, and I imagine that that would be quite difficult to achieve. The disqualification will continue to run in the UK if the offender leaves the country to live in another member state. For these purposes, the offender must be resident abroad for at least 185 days in each calendar year.

James Paice (Conservative, South East Cambridgeshire)

I appreciate that the Minister is trying to clarify these provisions, but let me pose an example. I appreciate that, if we go too far into examples, we get to specifics, so I shall stick to the example I used in my earlier remarks. Let us suppose that a British citizen commits an offence in Germany and is disqualified from driving by a German court, that he or she then moves to France to live for 180 days—six months—and then returns to Britain. The Minister seems to suggest that that person can drive in France, but that the disqualification, which started in Germany, will be in a state of hiatus until the offender returns to the UK, when the disqualification will be completed. Is my understanding right? I should not refer to this, but I am getting indications that I am right. If that is the case, is it not unjust that that person can continue to drive in France—it could be any other European country—with a hiatus in the period of disqualification, which then resumes when he or she returns to the UK?

Caroline Flint (Labour, Don Valley)

If people are disqualified from driving and they have a UK licence, it will be revoked. Yes, someone can continue to drive before a foreign disqualification is recognised in the UK, as the disqualification only takes effect 21 days after the DVLA sends its notice of disqualification to the driver concerned. If UK citizens are disqualified in the UK and they move to France and then back to the UK, they are still disqualified in those circumstances.

James Paice (Conservative, South East Cambridgeshire)

With respect to the Minister, I am talking not about someone who has been disqualified in this country—the law seems clear about that—but about those who are disqualified for having committed an offence elsewhere. What will happen if they live elsewhere before returning to this country?

Caroline Flint (Labour, Don Valley)

My understanding is that if UK citizens are disqualified for offences in Germany, that is notified to the DVLA in this country and their licences are revoked. They are therefore disqualified from using those UK licences in France, as well as if they return to the UK—after all, they were UK licences to start with.

Information in relation to drivers' licences is only provided, as for the Schengen convention, for limited purposes. It will only be the information that is on the driving licence. As I said previously, protection exists both in terms of our data commissioner and for individuals if they want to correct information that is there.

Julian Lewis (Conservative, New Forest East)

Will the Minister give way?

Caroline Flint (Labour, Don Valley)

If I may, I shall continue for a moment.

In relation to the point raised about Northern Ireland legislation, separate Northern Ireland legislation exists for holding driving licences, and it must therefore be covered in this new clause.

David Heath (Liberal Democrat, Somerton and Frome)

I was not querying for one moment the inclusion of Northern Ireland. I was simply dealing with the printed word in front of us, and given that this is the Report stage, it is the last opportunity to correct it if it is typographically challenged. Will the Minister confirm my view that the words

"(licensing of drivers of vehicles)"

should immediately follow the previous reference in parentheses, "(S.I. 1981/154 (N.I.1))", without a comma, and that the comma should come after

"licensing of drivers of vehicles)"

to bring it into order? If I am wrong on that, I have misunderstood the construction of the clause. I think that that is logical, however, and given that it is important that we get it right, it would be good to change it. I do not know what we do about changing it other than doing so by manuscript amendment or simply accepting that it is a typographical error.

Caroline Flint (Labour, Don Valley)

My understanding is that the new clause is sufficient as it stands, and we do not see any reason to change it for the purposes of our debate this afternoon.

To return to the scenario in which the Germans regard an offender as normally resident in the UK, they will notify the UK authorities, who will enforce the disqualification. If the offender is normally resident in France, the French, not the UK, will enforce the disqualification. If a UK driver is disqualified in Germany and the driver stops off in France, he is not disqualified until the UK legislation bites. The convention does not allow Germany to notify France or France to disqualify the driver. What we are trying to introduce is a system that is understood both in the member state where a disqualification occurs and which also applies to countries where the individual is resident. I urge the House to accept the new clause and to resist amendment No. 33 for the reasons outlined.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

Clause 2 — Service of Overseas Process: Supplementary

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 1, in page 2, line 25, after 'privileges', insert 'as a party or'.

Michael Martin (Speaker, Glasgow Springburn)

With this it will be convenient to take the following amendments: No. 35, in page 2, line 25, after 'a', insert

'party to proceedings or as a'.

No. 2, in page 3, line 11 [Clause 3], at end insert—

'( ) must be accompanied by any translation provided under subsection 3'.

No. 3, in page 3, line 23 [Clause 4], leave out from 'Kingdom' to end of line 24 and insert

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

No. 4, in page 4, line 19 [Clause 5], at end insert—

'( ) must be accompanied by any translation provided under subsection 4'.

David Heath (Liberal Democrat, Somerton and Frome)

This group deals with three separate concepts, so I shall deal with each one separately.

The first relates to amendment No. 1. The more astute Member will notice that amendment No. 35 is extremely similar in effect, but my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael)—who, as we know, is learned in both Scots and Udal law—has suggested a variation that is in accord with the advice of the Law Society of Scotland. I am indebted to him for that, as it enables us to put two variations to the Minister. I hope that we will have more success than we had on previous occasions when we have discussed the matter.

The crux of the matter is that it is important to insert in this section of the Bill the concept of a party to proceedings as well as a witness. If I may remind the House, this provision deals with the service of overseas process in this country and the point of the clause is to ensure that the person on whom overseas notice is served is aware of the consequences of that.

Our difficulty is that the Government do not seem to recognise that there can be any category of a party to proceedings who is not a witness within the proceedings. That is self-evidently not the case. For example, it is clear that under this country's law and that of most countries, defendants cannot be compelled to give evidence as witnesses that would indicate their culpability. It is entirely possible that a defendant could be a party to a case but not a witness in that case. The same situation applies if spouses are accused of offences that also apply to their partners because the concept of spousal immunity is recognised by most legal systems in the relevant area.

The problem is that there are clearly specific privileges that would accrue to defendants or spouses as defendants in such circumstances so that they would not be witnesses. It simply could not be the case that the privileges of a witness could be considered to include the privileges of not being a witness. That is nonsense in the English language, let alone anything else. We disagree not with the Government's intent but with the Bill's drafting. Clause 2 should include a reference to the privileges of a party to proceedings.

Ministers have previously replied that such a provision is not necessary because anyone who is a party to proceedings is, by definition, a witness, but that is clearly not the case. Their second reply has been that clause 2(1) already deals with the situation, but it does not, because it simply identifies the area under discussion but does not apply to the process or the notice that should accompany that and the extent to which that covers the case.

I ask the Minister to think again even at this late stage because I want to get the Bill right, which it is not at the moment. The defence that the provision was lifted from previous legislation and that it has never caused any problems is no defence at all. The assertion that it has not caused any problems should be followed by the word "yet", because as sure as eggs is eggs, someone will eventually find that something has been done incorrectly because of a lacuna in the law. That will provide a great deal of employment for lawyers but will be of no advantage to any person who will be affected by the Bill.

The second and third concepts addressed by the amendments relate not to the service of overseas process—the heading of the group of amendments—but to the service of UK process overseas, which is the reciprocal, yet equally important, case. Amendments Nos. 2 and 4 relate to the translation that would be made available for a person who may be reasonably assumed not to speak English. There is no question about the Government's intent, but the Bill provides that whereas the court will be given a copy of the process in the relevant language, the person on whom the process is served will not. In a sensible world and in normal circumstances, the court would of course send the document to the person on whom the process had been served, but the Bill does not say that that must happen. It would be better if such a provision were included, which is all the amendments would do. Curiously enough, the provision applies elsewhere in the Bill. It is absurd that clause 3 states that a translation should be provided for the court yet includes no requirement for the translation to be provided to the one person involved in proceedings who does not understand the language in which the document was originally produced—English.

Amendment No. 3 deals with the process of serving a UK notice overseas when that cannot be done by post. Clause 4(1) simply says that that should be

"in accordance with arrangements made by the Secretary of State."

As I said in Committee, that dangerously imprecise term allows the Secretary of State to make up almost anything that he or she considers a sensible process. The British legal system has clear rules on that. Rules of court maintain a serving process that is fair to all. It is axiomatic that there should equally be rules of court that allow for service overseas.

The Minister's objection in Committee was that such a provision could not be drafted to provide the flexibility for all the circumstances in which difficulties might be encountered in the serving process. I accept that we might make the terms more imprecise than the rules of court as they apply in the UK, by both definition and common consent, but the fact that the provision is not to be incorporated other than in guidance gives me cause for concern. Although the Minister has assured us that that will be forthcoming, it is not required by statute.

The Bill is not satisfactory. Rules of court should apply in an overseas context as they would in a domestic serving process. I hope that the Minister has a good reason why that should not be the case.

James Paice (Conservative, South East Cambridgeshire)

I endorse the remarks of the hon. Member for Somerton and Frome (Mr. Heath). I hope the Minister realises that all Opposition parties are intent on making the Bill understandable, as my hon. Friend the Member for Buckingham (Mr. Bercow) said, by those whom it affects, and comprehensive so that it addresses problems that may arise even if the Government think that they will not. The amendments, especially those on translation, are designed to do just that.

Those of us who have sat on both sides of the House have probably argued at one time or another both that it is necessary and that it is unnecessary to include something in a Bill. It is better to get legislation right first time rather than revisiting or correcting it later. I concur that the amendments are designed to get it right first time. They would not weaken the Bill or make it mean something else. They are simply designed to ensure that it is clearer and covers eventualities that may arise. I hope that the Minister will respond in a similar constructive vein and not simply read out the top line of her brief, which I have no doubt says, "Resist these amendments".

Caroline Flint (Labour, Don Valley)

We have considered amendment No. 1 carefully and at length. We remain of the view that as a matter of law it is unnecessary. However, in the light of the concern about the issue, and because the amendment does not do any harm, we are prepared to accept it as drafted. We are satisfied that the amendment adds nothing to the clause as it is currently drafted and, indeed, will not result in a different position from that which currently exists under the Criminal Justice (International Co-operation) Act 1990. I am happy to go on the record stating that to be our considered view.

When a defendant takes the stand, he does so as a witness. That is the crucial point to keep in mind. There is no reason to read the word "witness" in clause 2(3)(c) as excluding the defendant. The meaning given to "witness" in the "Concise Oxford English Dictionary" is a

"person giving sworn testimony in a law court or for legal purposes".

The word may be used in statutory provisions as including defendants. For example, section 51 of the Criminal Justice and Public Order Act 1994 governs intimidation of witnesses. The provision, of course, also covers the intimidation of defendants in respect of their evidence.

I see no reason why clause 2(3)(c) is any different. There is no reason why it should be read as not requiring a notice to be given to a defendant. The notice must be given to persons both where they appear as a party to the proceedings and where they attend as a witness. That is because subsection (1) provides that subsections (2) and (3) apply to both parties and witnesses. Therefore, a notice will always be given to a party to the proceedings, as well as to a witness. However, we need refer to a witness in subsection (3) only because—I stress this point again—when a defendant takes the stand, he does so as a witness in the proceedings.

Two types of privilege afforded to defendants were given as examples in Grand Committee by noble Lords wishing the amendment to be carried: the privilege against self-incrimination and spousal immunity. However, both these privileges are afforded to the party as a witness. It is true that a party could not be compelled to give evidence, whereas a witness could, subject to the right not to incriminate himself. But that is a privilege afforded to the party as a witness. Similarly, for example, under section 80(4) of the Police and Criminal Evidence Act 1984, a spouse who is also charged in proceedings is not compellable. Again, that is a privilege afforded to the party as a witness. We have identified no rights and privileges that would be accorded to a party in the proceedings, in addition to those that he would already be accorded as a witness.

Clause 2 is different from the 1990 Act only in that it refers to a party to the proceedings, as opposed to a defendant, but that is to cover different Scottish nomenclature of persons appearing before a Scottish court and the fact that some of the proceedings in question are not purely criminal. There is no difference of substance between the 1990 Act and clause 2(3)(c) and, for the reasons that I have given, we are happy to accept the amendment as drafted.

I assume that amendment No. 35 will not be moved as I have accepted amendment No. 1 and see no merit in the longer variation. We strongly prefer amendment No. 1 and see no reason for introducing the reference to proceedings, as amendment No. 35 does. We do not see that this provides any further clarification.

We do not consider amendments Nos. 2 and 4 to be helpful or necessary. I have read the Hansard report of discussions on the matter with my predecessor. Subsection (3) of clause 3 refers to all process. Translations must be provided for any process where the person at whose request it is issued believes that the intended recipient does not understand English. All that subsection (4) does is to impose additional requirements where the process relates to a party or a witness. Subsection (4) creates additional obligations, but does not limit the overriding obligation for translation of all types of process to be provided in subsection (3). It would not be necessary to insert a reference to forwarding translations in subsection (4), as that is already provided for in subsection (3).

Where a translation of the process is required, it is wholly reasonable to expect the court to forward it. That goes for translations relating to parties or witnesses, as well as other types of process, such as court judgments. The act of sending the process from the court is not set out in the Bill, which is limited to setting out the requirements for issuing process, the relevant requirement being that a translation is provided. The sending procedure is currently covered by rules of court, which state that where a summons is issued or order made for service outside the UK, it shall be sent by the justice's clerk to the Secretary of State. Updated rules will reflect the options to send it either to the Secretary of State or direct to the recipient, but will otherwise reflect the existing ones. We believe, therefore, that where it is required, translation will be forthcoming and that further amendment is not necessary.

David Heath (Liberal Democrat, Somerton and Frome)

Clearly, there is provision for a translation to be made and for the notice to be transmitted to the person. I understand that. Is the Minister saying that the copy, translated into an appropriate language, will form part of the process? If so, she is right—my amendment becomes unnecessary. It would be helpful if she would confirm that.

Caroline Flint (Labour, Don Valley)

I understand that to be the case. I hope that reassures the hon. Gentleman.

David Heath (Liberal Democrat, Somerton and Frome)

It does.

Caroline Flint (Labour, Don Valley)

Finally, let me deal with amendment No. 3. As I explained in my letter of 16 July to members of the Committee, we cannot accept the amendment. In the first instance, we do not consider that rules of court are an appropriate method for setting out what the Secretary of State will do. As hon. Members are aware from our discussions in Committee, under the new arrangements for the service of process required by Schengen and MLAC—the mutual legal assistance convention—it will become routine for the majority of procedural documents to be sent directly from the issuing authority in this country, without any involvement of the Secretary of State. When he is involved, however, existing and long-established practices will be followed. Service of process via the Secretary of State is not new: it existed under the 1990 Act and has worked effectively. That was discussed in Committee. The Bill is not designed fundamentally to change our mutual legal assistance system—it builds on existing arrangements, amending them where appropriate to accommodate the new requirements of, for example, Schengen. That is a clear example of an area of mutual legal assistance in which there is no merit in creating additional bureaucracy where the established system has worked very effectively.

We do not agree that the approach that we have chosen risks successful challenges in subsequent domestic proceedings. Rules of court made under the 1990 Act already set out what constitutes proof of service of summons outside the United Kingdom. They provide that

"the service on any person of a summons issued under section 2(1) of the Act may be proved in any legal proceedings by a certificate given by or on behalf of the Secretary of State."

Those rules of court will be updated to reflect the new legislation.

Authorities issuing process will request personal service, via the overseas central authority, if proof that the recipient has received the process is required. In the case of documents bound for recipients in EU and Schengen member states, the issuing authority may itself send the documents to the overseas central authority requesting personal service, bypassing the Secretary of State. Rules governing his activity would therefore not be helpful.

Service of domestic court process on people residing in the UK is done not by the Secretary of State, but by the court. Service of summonses in the purely domestic context is very different from service on people residing overseas, most importantly because a summons served on someone present in the UK obliges them to attend court. By contrast, a summons served on someone overseas does not impose any obligations to attend, nor does failure to comply result in any sanctions being taken.

For those reasons, we accept amendment No. 1 and ask that amendments Nos. 2, 3 and 4 be rejected.

David Heath (Liberal Democrat, Somerton and Frome)

I am extremely grateful to the hon. Lady for her response to this group of amendments. We are making real progress in three respects. First, the hon. Lady accepted my amendment No. 1 and implicitly rejected that of my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael), which is a little long-winded. Secondly, she accepted the principle of what I was trying to achieve in amendments Nos. 2 and 4. I am most grateful to her for confirming that the translation forms part of the process at the point at which it is provided to the court. I was trying to ensure that it did not become a separate document that was not necessarily transmitted to the intended recipient, which would have made nonsense of the whole provision. Thirdly, in relation to amendment No. 3, the hon. Lady indicated that there would, as I had hoped, be a consequent amendment to the rules of court to deal with the provisions of the Bill, so my amendment becomes unnecessary.

I consider this to be one of the finest victories that we have achieved in the course of these proceedings and this group of amendments to be one of the best that we will debate today. I am happy to allow amendment No. 1 to be put to the vote and certainly do not intend to press any of the others.

Amendment agreed to.

Clause 7 — Requests for assistance in obtaining evidence abroad

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I beg to move amendment No. 37, in page 5, line 43 [Clause 7], at end insert—

'(8) Nothing in this section shall permit the disclosure of items subject to legal professional privilege.'.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to discuss the following amendments: No. 38, in page 13, line 33 [Clause 22], at end insert,

"other than any item subject to legal professional privilege."

No. 39, in page 15, line 7 [Clause 26], at end insert—

'( ) A court in Scotland may not issue a warrant under section 18 or 22 in respect of any evidence unless the court has reasonable grounds for believing that it does not consist of or include items subject to legal privilege.'

No. 40, in page 22, line 21 [Clause 37], at end insert—

'(9) Nothing in this section shall permit the disclosure of items subject to legal professional privilege.'.

No. 41, in page 23, line 38 [Clause 40], at end insert—

'(8) Nothing in this section shall permit the disclosure of items subject to legal professional privilege.'.

No. 42, in page 25, line 43 [Clause 43], at end insert—

'(8) Nothing in this section shall permit the disclosure of any item subject to legal professional privilege.'.

No. 43, in page 26, line 21, [Clause 44], at end insert—

'(6) Nothing in this section shall permit the disclosure of any item subject to legal professional privilege.'.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Now that we appear to be on a roll, I look forward to a similarly positive ministerial response. Like the amendments tabled by my hon. Friend the Member for Somerton and Frome (Mr. Heath), these amendments may or may not need to be in the Bill, but there is no harm in putting them there. I therefore commend the Minister for her logic on the previous group of amendments and encourage her to be consistent in her approach.

I associate myself with my hon. Friend's earlier comments about the regrettable absence of Scotland Office Ministers. Some of the matters that we are considering have a significant impact on Scots law and it is unfortunate that no one from the Scotland Office is present.

Annabelle Ewing (Scottish National Party, Perth)

Is it not also a matter for regret that no Labour Back-Bench Member who represents a Scottish constituency is present?

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

It is a matter for regret, but perhaps not of massive consequence. I am sure that the fact that Dover house is in a frenzy of activity, preparing for this evening's reception to honour the Scottish brewing industry, is unrelated to such absence. Having been party to proceedings in Committee and on the Floor of the House, I say in all candour that, given the choice between a brewery reception and today's proceedings, I understand the temptation of attending the former.

The amendments in the group are perhaps not the most exciting that will be presented in the House. None the less, they are important because they relate to the lawyer-client relationship and the privilege that attaches to it. The importance of privilege in that context cannot be overestimated. It is fundamental to the working of the relationship that both parties are secure in the knowledge that the information that passes from one to the other cannot be disclosed to a third party, other than with the client's consent. If privilege is removed, all clients will have at the back of their minds the question, "Should I be telling my lawyer this?" Once that doubt appears, we are on a slippery slope. It is therefore important to place protection of lawyer-client privilege in the Bill.

Amendments Nos. 37, 40, 41, 42 and 43 are almost identical. They would all add an extra subsection to the various clauses. They state:

"Nothing in this section shall permit the disclosure of items subject to legal professional privilege."

The clauses are 37, which deals with letters of request for assistance in obtaining evidence from abroad; 40, which relates to account information; 43, which deals with information about a person's bank account, and 44, which covers monitoring banking transactions. It is easy to understand that privileged information could be held in all those circumstances.

The purpose of the amendments is simply to incorporate in the Bill the express protection that the lawyer-client relationship should receive. The genesis of the amendments is the Law Society of Scotland, which raised its concerns with me and other hon. Members who represent Scottish constituencies. The Law Society of Scotland is not known for expressing vexatious concerns about important matters and I therefore hope that the Minister will take it on board that the amendments have that body's imprimatur.

Amendment No. 38 would amend clause 22, which affects overseas freezing orders. It would place some limit on the extent of the evidence that may be seized and retained under clause 22(1)(b). Under the Bill, courts may issue a warrant that authorises a constable to

"seize and retain any evidence".

Again, a provision should be expressly included in the Bill that that which is subject to the lawyer-client privilege should not be capable of seizure under a warrant, or, indeed, that a warrant would not extend to such information.

Amendment No. 39 to clause 26 proposes to insert Scotland into the list of countries to which the clause applies. This is to ensure that Scottish judges would not be able to issue warrants unless they believed that the material seized did not contain items that were subject to the legal professional privilege. Clause 26 currently provides that courts in England, Wales and Northern Ireland may not issue warrants for evidence

"unless the court or justice has reasonable grounds for believing that it does not consist of or include items subject to legal privilege, excluded material or special procedure material."

In Scotland, courts do not have excluded material or special procedure material, but they recognise material subject to legal professional privilege. It therefore seems eminently sensible that Scotland should be brought within the ambit of the clause. I look forward to hearing the Minister's comments on the amendments.

Nick Hawkins (Conservative, Surrey Heath)

I support what the hon. Member for Orkney and Shetland (Mr. Carmichael) has just said. I also echo his tribute to the Law Society of Scotland, which has assisted him, me and other colleagues in our consideration of this Bill and other legislation. We are grateful for the work of its director, Michael Clancy, for whom we all share a great deal of respect.

The hon. Gentleman was perhaps a little bold to say that he was on a roll after the hon. Member for Somerton and Frome (Mr. Heath) had claimed all the credit for getting the Government to accept the previous amendments, and been rather churlish about his own amendments.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I am quite accustomed to my hon. Friend the Member for Somerton and Frome (Mr. Heath) claiming all the credit, and over the last two and a half years I have learned to ignore it.

Nick Hawkins (Conservative, Surrey Heath)

I am glad that there is such amity on the re-cast Liberal Democrat Front Bench.

These are important matters, and the hon. Member for Orkney and Shetland will recall that we had a brief discussion about legal privilege in Committee on 10 June, when the issue came up under clause 10(3)(d). On that occasion, we were talking about domestic freezing orders. In the light of the Minister's helpful acceptance of what my hon. Friend the Member for South-East Cambridgeshire (Mr. Paice) and the hon. Member for Somerton and Frome said about consistency during our consideration of the previous group of amendments, I hope that she will say that the amendments in this group would do no harm to the Bill and would also add helpful safeguards and consistency.

I would particularly like to support what the hon. Member for Orkney and Shetland has just said about overseas freezing orders. Given that the Government have already referred, in clause 10(3)(d), to items subject to legal privilege in the context of domestic freezing orders, we definitely ought to have the same safeguards for overseas freezing orders. If I may pick out just one of the hon. Gentleman's amendments, that amendment in particular should commend itself to the Government. I hope that, even if the Minister cannot accept the other amendments in the group, she will accept that one, because it is quite apparent that there should be consistency between domestic and overseas freezing orders. If a legal professional privilege safeguard is already included in clause 10 for domestic freezing orders, the same safeguard should be included for overseas freezing orders.

We all share the views of the Law Society of Scotland—I am sure that the Law Society of England and Wales holds similar views—about the need for legal professional privilege to be written into the clauses for the protection of clients and the sanctity of the lawyer-client confidential relationship, and it would be of enormous help if the safeguards in all the hon. Gentleman's amendments were added to the Bill. I do not need to say more than that.

Annabelle Ewing (Scottish National Party, Perth)

I support the amendments tabled by the hon. Member for Orkney and Shetland (Mr. Carmichael). The Law Society of Scotland assisted him, and I offer my thanks for the briefing it gave me.

The amendments deal with the key principle of Scots law on legal privilege. That important principle has been recognised by the European convention on human rights, yet, curiously, no account has been taken of it in the Bill. As a Scottish National party MP, I should add that that is not too surprising, because unfortunately the interests and integrity of Scots law is overridden by Westminster time and again. In this period of consensuality, it is aided and abetted by the Labour-Liberal Democrat Scottish Executive in Edinburgh, who seem quite happy consistently to transfer the legislative competence of the Scottish Parliament to Westminster by way of Sewel motions.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Can the hon. Lady tell me how many Sewel motions the Scottish National party has opposed?

Annabelle Ewing (Scottish National Party, Perth)

No, not off the top of my head, but I shall let the hon. Gentleman know. There have been some 60 Sewel motions, despite the fact that we were told by one of the architects of the Scotland Bill—the late Donald Dewar—that they would be used only in exceptional circumstances. However, I do not want to take up time on that subject: I mention it in passing for the record. I am happy to lend my party's support for the substance of the amendments. I urge the Minister to listen carefully to what has been said, and to accept the amendments.

Caroline Flint (Labour, Don Valley)

I am afraid that I shall disappoint hon. Members. We do not believe that the amendments are necessary, so I cannot accept them. I hope that I can allay the concerns of hon. Members about the protection of legally privileged material.

There is extensive case law on legal professional privilege, which is a fundamental condition on which the administration of justice rests. In a recent House of Lords judgment, legal professional privilege was upheld as an attribute of the right to legal confidentiality that arises as a matter of substantive law. Legal advice cannot be obtained unless a client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to the client's prejudice. The judgment confirms that such a fundamental right cannot be overridden by general or ambiguous statutory words. An intention to override such rights must be expressly stated or appear by necessary implication. I suggest that nothing in the Bill explicitly or implicitly allows for the disclosure of items subject to legal professional privilege.

References to legal professional privilege in clauses 7 and 22 are unnecessary for the reasons I have given. Nothing in those clauses would override that fundamental right.

We consulted the Scottish Executive extensively on the drafting of the Bill, and on our response to the amendments to clause 26. We have good contacts at official level. I understand that the Law Society of Scotland has not approached the Scottish Executive about this matter, so we are confident that the Bill is correct.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

There is no reason for the Law Society of Scotland to approach the Scottish Executive on matters that are before this House. If approaches are to be made, they should be made to the Home Office or to the Scotland Office. An approach may have been made to the Scotland Office, but we cannot know that because no Scotland Office Minister is present. There is a need to include Scotland in the Bill, because failure to do so will surely lead any judge seeking to construe this clause in Scotland to say that Parliament intended the provision to apply to England, Wales and Northern Ireland, but that if it had intended it to apply to Scotland it would have said so.

Caroline Flint (Labour, Don Valley)

I understand that the Scottish Law Society has not contacted anyone in my Department about these issues.

Annabelle Ewing (Scottish National Party, Perth)

rose—

Caroline Flint (Labour, Don Valley)

If I may continue, I shall get to the crux of the issue and explain why I do not think that the amendment should be accepted.

I was talking about the amendment to clause 26. Search warrant procedure in Scotland differs from that in the rest of the United Kingdom, and the search warrant procedures in the Police and Criminal Evidence Act 1984 do not extend to Scotland. The common law principle of legal client confidentiality would apply to the execution of warrants granted under the Bill.

In certain circumstances it may be appropriate to have a definition in Scotland that equates to that used in the rest of the UK. That applies to some aspects of mutual legal assistance when requests for assistance are being sent to a variety of jurisdictions, as well as pertaining to international criminal investigations that may originate in both Scotland and England. Clause 10, which implements the new provisions relating to outgoing freezing orders, is one such instance. Clause 10(3)(d), which applies in Scotland, contains the term

"items subject to legal privilege".

The appropriate definition relating to Scotland is provided in clause 28(4).

Let me stress again that the amendment is not required for Scotland, particularly in relation to clause 18, as it would be tautological. The clause gives the sheriff the same powers in relation to granting a warrant as he has in domestic cases under section 134 of the Criminal Procedure (Scotland) Act 1995. He is therefore already required to take into account any question of legal client confidentiality. The amendment would also put Scotland in a different position from the rest of the UK, where search warrant provisions do not include any provisions additional to or different from the provisions in PACE. A sheriff faced with a provision as amended would be entitled to believe that there was a different standard to be applied by him in consideration of the application. That is not the intention of the Bill.

Amendments Nos. 40, 41, 42 and 43 all relate to chapter 4, which concerns banking information. Customer information cannot relate to legally privileged material—that is, communications between a professional legal adviser and a client in connection with the giving of legal advice, or in contemplation or for the purposes of litigation. Customer information orders can be made only against financial institutions that are defined by reference to the Proceeds of Crime Act 2002, and only in relation to customer information. We do not see how the subject matter of the orders could constitute legally privileged material. All four clauses covered by the amendments relate to orders made against banks and other financial institutions to obtain specified information. Any reference to legal professional privilege would be irrelevant in such circumstances.

For those reasons, I am afraid that we cannot accept any of the amendments.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

When I was a solicitor practising in the courts I often found myself engaging in arguments or debates about questions of legal or statutory construction. One would ask oneself, "How on earth did Parliament not see that coming? Why on earth did it leave such an ambiguity?" Following my election I know that Parliament usually did see it coming, but that officials told the Minister that action was not necessary, and that was the end of the matter.

May I clarify the issue of the Law Society for Scotland? I am not sure what point the Minister was trying to make when she said that there had been no contact between the society and the Scottish Executive. We do not know about the Scotland Office, and the Minister tells us that she has heard nothing from her Department. I have here a briefing letter from Michael Clancy. I do not know whether the Minister is trying to suggest that the society does not support the amendments, but that is clearly not the case.

Caroline Flint (Labour, Don Valley)

I was not suggesting for a minute that the Law Society for Scotland had not lobbied the hon. Gentleman. I merely said that I understood that no such lobbying had taken place with the Scottish Executive or with officials from my Department dealing with the Bill.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The fact remains that that is the society's view, and I hoped that it would be given rather more consideration than the Minister appears to have given it today.

The Minister was doing so well, but she seems to have lost the track. She has made me not angry, but a little sad and disappointed in her. However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn

Clause 27 — Exercise of Powers by Others

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 34, in page 15, line 35, leave out 'Treasury' and insert 'Secretary of State'.

This is a small but important matter. One reason why we tabled this amendment for consideration was to give the Government the opportunity to come back to the House. The hon. Member for Coventry, North-East (Mr. Ainsworth), who dealt with this issue previously as a Minister—he has been elevated to deputy Chief Whip—accepted that the existing brief did not clarify matters as well as he would have liked. In fact, he said:

"I am not certain to what degree I am prepared to resist."—[Official Report, Standing Committee A, 12 June 2003; c. 121.]

I previously urged the current Minister not to read out a line about resisting, and she heeded my advice and immediately accepted the amendment tabled by the hon. Member for Somerton and Frome (Mr. Heath), so I hope that she will follow the example of the hon. Member for Coventry, North-East, but perhaps her resistance will prove stronger than his did. As a Minister, he undertook to seek further advice from the Treasury about whether it wanted the Government to continue to resist the amendment, and my first request to the current Minister is to give us the benefit of that further advice.

There is a serious point that I want to reiterate. We did not debate this issue in Committee through an amendment, so this is the first time we have been able to consider amending the Bill in this way. You have much more experience of such matters than me, Mr. Deputy Speaker, but it is surely very rare, if not completely unheard of, for a Bill to include powers for "the Treasury" to grant an order. It is customary for legislation to give powers to "the Secretary of State", because such terminology covers any senior Minister and Cabinet member who is responsible for a Department. Indeed, that procedure is commonplace. We never specify the Secretary of State for a particular Department, so as to allow for future changes; however, this Bill gives power to "the Treasury".

I argue against doing that, and in two valid ways. First, if by "the Treasury" the Government mean the Chancellor of the Exchequer—or any other Treasury Minister—I see no reason why he should not be classified as a Secretary of State. Perhaps the Minister can say whether there is some legal reason why the Chancellor, despite being in charge of a Government Department, is not considered a Secretary of State. My understanding is that he is so considered—he is certainly paid the same as the other Secretaries of State—so I see no reason why the generic term cannot be used.

We face another oddity. The Treasury itself is an institution, not a person. In legislation, we carefully give powers to Ministers and to Secretaries of State. They are people—members of the Government acting on the Government's behalf to introduce orders for our consideration. It seems odd to seek to give power to an institution, to a building. If the legislation has to be related to the Treasury—I will take a lot of convincing that that is so—why does it not specify the Chancellor of the Exchequer or, as I said in Committee, the Prime Minister, who is First Lord of the Treasury? I cannot understand why the Bill should refer to a building.

Julian Lewis (Conservative, New Forest East)

Since entering this House in 1997, I have never seen a Bill that referred to a ministry rather than to a Secretary of State. The only explanation that I can think of for the failure to refer to a Secretary of State, or to the Chancellor of the Exchequer by his office, is the current state of relations between No. 10 Downing street and the Exchequer.

James Paice (Conservative, South East Cambridgeshire)

I cannot deny that the thought crossed my mind, but I am perhaps too nice a person to make such an allegation. [Interruption.] I hear the Government Whip say, "Surely not", and he is probably right. I shall make amends later.

I am making an important point. On the one hand, we are giving powers to an institution rather than specifying an individual Minister or using a generic term for a member of the Government. On the other hand, we seem to be restricting the powers to a specific Department. When we debated the issue in a stand part debate in Committee, it was argued that the Treasury might wish to make legislation about Customs and Excise. I understand that, but that is to presume that, for ever and a day, Customs will be part of the Treasury. That may or may not be the case, but the same argument could be advanced for any other Government institution.

The issue of whether an area of policy will always be associated with a specific Department is important and is precisely why we do not specify Secretaries of State for individual Departments. We always use the generic term "the Secretary of State", so I cannot understand why, in respect of making an order for the consideration of the House, the Government persist with using the term "the Treasury". The Minister was reasonable earlier when she accepted an amendment, and I hope that she will not resist this one.

David Heath (Liberal Democrat, Somerton and Frome)

The amendments need not detain us long, but the hon. Member for South-East Cambridgeshire (Mr. Paice) has put his finger on what appears to be an anomaly within the Bill. I share his view that given that countless examples of legislation refer to "the Secretary of State" in the generic sense, it is curious that these provisions differ. We have both dealt on many occasions with legislation that encompasses the duties of Her Majesty's Customs and Excise within that generic term. We have considered statutory instruments covering both the police and Customs and Excise that happily specify the Secretary of State.

The only Minister continually singled out and identified in legislation by title—chaos will be caused in abolishing the position—is the Lord Chancellor. He is not a generic Minister because of the present confused position regarding who is the head of the judiciary. I have no idea why the Treasury has been identified in the provisions. I hope that it does not encompass the Treasury in the sense of something other than the Ministers as such—not only the First Lord of the Treasury and the Chancellor of the Exchequer, but the Lords Commissioners, the Comptroller of Her Majesty's Household and the crew who sit at the far end of the Treasury Bench. If they are to determine the future of the legislation, we have very serious cause for concern.

The Minister certainly owes us an explanation—her ministerial colleague was unable to provide it in Committee—that is rather more convincing than the simple argument that because there might be a reference to Her Majesty's Customs and Excise, the Treasury has to be specified by name. I express the hope that the enforcement functions of Customs and Excise will eventually not be the responsibility of the Treasury. I have held that view for some time and I would like to see that area of responsibility under an entirely different Department. That is an aside, but the hon. Lady must explain why the Bill is formulated as it is.

Caroline Flint (Labour, Don Valley)

My predecessor, my hon. Friend the Member for Coventry, North-East (Mr. Ainsworth), said in Committee:

"I shall seek further advice from the Treasury about whether it would want us to continue to resist the amendment."—[Official Report, Standing Committee A, 12 June 2003; c. 121.]

I am afraid, however, that resist I must. We reflected further on the issue, which is connected with Customs and Excise. The power to make orders conferring powers on Customs is properly exercisable by the Treasury—the Department to which Her Majesty's Customs and Excise is answerable. We consulted Customs on that matter.

Clause 27(1) creates a power to grant certain powers specifically to Customs and Excise. It is correct that the Treasury makes the order. Similar references in other legislation—for example, section 114 of the Police and Criminal Evidence Act 1984—give the Treasury the power to make provisions by order. There are other, more recent precedents for referring to the Treasury when conferring powers on customs officers, including section 7(7) of the Criminal Justice (International Co-operation) Act 1990, as well as more recent legislation on income tax and finance. Precedents exist, and there is little more to say. That is the protocol used.

John Gummer (Conservative, Suffolk Coastal)

Why cannot the Minister accept the amendment? I understand why she says that the provision is reasonable as it stands, but now that the matter has been raised it would not matter if the words were changed to read "Secretary of State". As long as the Treasury continues to have control over Customs and Excise, the Treasury can use the powers. The refusal to accept the amendment leads many of us to suspect that there is something behind it. Why will the Government not give way on this issue when it does not seem to matter very much? Is there something behind it?

Caroline Flint (Labour, Don Valley)

No, there is nothing behind it. The issue is straightforward. The phrase "the Treasury" has been used in numerous other pieces of legislation. There is nothing to be gained by muddying the waters and changing the legislation today, and for that reason we will not accept the amendment.

James Paice (Conservative, South East Cambridgeshire)

The Minister is being unduly difficult. This is not a major issue, but it is important. I am grateful to her for producing some precedents, but that does not mean that we have to follow them. We have identified what we believe to be a misuse of language and an oddity in the reference to an institution as opposed to an officeholder. The Minister has not answered my question about whether the Chancellor is a Secretary of State.

My right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) suggested that there might be something behind the Government's use of language, and it could be concern on the Chancellor's part that some other Secretary of State might introduce an order affecting Customs and Excise without the Treasury knowing about it. However, the prospect of the present Chancellor not knowing what is going on in another Department is difficult to accept. He seems to know—if not dictate—what happens in every other Department.

I fear that the Minister has failed to persuade us on this issue. She has not told us why it would be wrong to use the usual term, so I wish to divide the House on the matter.

Clause 28 — Interpretation of Chapter 2

Caroline Flint (Labour, Don Valley)

I beg to move amendment No. 14, in page 16, line 19, leave out from 'means' to end of line 22 and insert

'the Framework Decision on the execution in the European Union of orders freezing property or evidence adopted by the Council of the European Union on 22nd July 2003'.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to take Government amendments Nos. 15 to 17 and 19 to 27.

Caroline Flint (Labour, Don Valley)

I should like to say a few words about these Government amendments, bearing in mind the fact that we were criticised—I think, unjustly—during earlier debates for not having brought new clause 1 to the House's attention earlier, during proceedings in Committee. So I want to put on record the reason why these technical amendments are being moved today.

These technical amendments have been tabled to take account of the recent adoption, on 22 July, by the European Council of the framework decision on the execution in the European Union of orders freezing property or evidence. Now that the framework decision has been formally adopted, it makes for good drafting in the Bill to refer to the final form of the decision. The Bill currently refers to the relevant framework decision, and secondary legislation would be required to identify the framework decision and the provisions of the decision defining what are listed offences covered by freezing orders and what is the specified information to be contained in a certificate accompanying the orders.

Under the amendments, the Bill will refer to the framework decision as formally adopted, giving the provisions greater clarity. The relevant definitions in clause 28 and schedule 4 will be amended to refer to the framework decision itself and to the specific provisions in the framework decision that have been formally adopted.

Amendment agreed to.

Amendments made: No. 15, in page 16, line 31 [Clause 28], leave out from 'in' to 'of' in line 32 and insert 'Article 3(2)'.

No. 16, in page 16, line 33 [Clause 28], leave out 'such an order' and insert

'an order made by the Secretary of State'.

No. 17, in page 16, line 40 [Clause 28], leave out from 'by' to 'or' in line 42 and insert

'the form of certificate annexed to the relevant Framework Decision'.—[Caroline Flint.]

Clause 33 — Making, Varying or Discharging Customer Information Orders

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 6, in page 20, line 3 [Clause 33], leave out paragraph (a).

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to take the following amendments: No. 7, in page 25, line 7 [Clause 43], leave out 'bank' and insert 'financial institution'.

No. 8, in page 25, line 26 [Clause 43], leave out 'banks' and insert 'financial institutions'.

No. 9, in page 25, line 32 [Clause 43], leave out 'bank' and insert 'financial institution'.

No. 10, in page 25, line 33 [Clause 43], leave out 'bank or banks' and insert 'financial institution or institutions'.

No. 11, in page 26, line 20 [Clause 44], leave out 'banks' and insert 'financial institutions'.

No. 12, in page 27, line 9 [Clause 46], leave out paragraph (b).

David Heath (Liberal Democrat, Somerton and Frome)

Amendment No. 6 will be familiar to members of the Standing Committee, and particularly to Conservative Front-Bench Members, who were happy to move a similar amendment in Committee. I hope that they still feel able to support the sentiment involved.

We have a serious problem with the scope of clause 33(3)(a), which allows that the application for information on monetary transactions may specify as a single entity all financial institutions. Without wishing to spend a lot of time explaining our objections to that, it seems to us that framing the provision in that way, so that every financial institution in the country must provide the relevant transaction information, or at the very least, look for it, implies a substantial burden on those institutions, to no great effect, first because the vast majority of them will be irrelevant to the investigation in question, and secondly because if all the institutions provide information, it will be extremely difficult for the investigating authorities to process it. I referred in Committee to the difficulties that the National Criminal Intelligence Service has in current circumstances in dealing with the amount of financial information involved, and such an increase would overwhelm its investigation systems. Moreover, if the evidence on the basis of which a request is made is so flimsy that it is impossible to identify even a class of financial institutions that should properly provide the necessary information, that suggests to me that that evidence is insufficient to be acceptable as a trigger for the procedure in the first instance.

In addition, as I said in Committee, I think that the drafting of clause 33(3)(b) and (c) covers all eventualities. I asked the Minister in Committee what would be the effect on any proposed investigation that she could envisage if paragraph (a) were missing. She did not give a convincing answer with regard to anything that would fall outside the provisions of paragraphs (b),

"a particular description, or particular descriptions, of financial institutions"

or (c),

"a particular financial institution or particular financial institutions".

Paragraph (b) allows for a class of financial institutions which, under the extreme circumstances adduced by the Minister—for instance, an anti-terrorism investigation—could be extended to include all financial institutions, so paragraph (a) is otiose. I hope that the hon. Lady will consider further whether including paragraph (a) will not put an unnecessary burden on our financial institutions, which the British Bankers Association identifies as the part of the Bill with which it cannot agree. The Government should think again.

Amendments Nos. 7 to 11 relate to circumstances in which account information could be sought by British authorities from overseas authorities. In Committee, I drew attention to the fact that, in considering this country, we refer to financial institutions, whereas in considering other countries, we refer to banks. I asked whether there was a reason for that, and whether it would be better to delete the word "bank" from the Bill and replace it with "financial institution", which the amendments would do. The Home Office and the Minister have considered that and I am grateful that the hon. Lady wrote to me to explain the thinking behind the Department's view.

I hope that I summarise fairly what the Minister wrote. She said that, in relation to a request from an institution in this country, since we have a loose definition of banks but a safe definition, in legal terms, of financial institutions, that is the proper term to use, which I accept entirely. However, she said that, in considering overseas authorities, definitions are necessarily enshrined in those countries' domestic legislation, and nothing to do with what we might care to say in our legislation. Those arguments are absolutely right, but I am worried that the use of the word "bank" in the Bill will limit the scope of what could properly be requested from an overseas authority to information from either what a British court would define as a bank, which is a narrow and incomplete definition compared with that of a financial institution, or what an overseas body defines as a bank, which might be a limited subset of all the financial institutions in a country. For example, there are many mutual credit organisations in France that are not banks, by definition, but are nevertheless financial institutions in which people deposit money and to which I hope the provisions would apply.

The substitution of the word "bank" for "financial institution" when dealing with our requests to overseas authorities limits ab initio what we may ask for, which is an inherently weaker position. I ask the Minister to consider again whether the arguments in her letter hold water.

Amendment No. 12 relates to provisions for introducing new offences, effectively by negative resolution, through a decision by the Council of Ministers, which would be translated into British law with minimal scrutiny in this country. That is objectionable. The argument made in Committee was that we should not wish to overload this Parliament with scrutiny. When considering overseas requests to scrutinise the bank accounts of citizens of this country, we owe it to them to apply a little more scrutiny than that implied by the provision. The offences might be determined by qualified majority voting in the future, so the Council of Ministers could vote to overrule a British Minister and add offences to the list. The British Government would be required to add offences to the list with which they did not agree because they had been outvoted under QMV and there would be only minimal scrutiny by the House. Many hon. Members, myself included, do not think that that is acceptable. At the very least, a proper process of scrutiny in the House is required so that we constituency Members of Parliament may speak up for constituents who might be affected by such a decision. I make no apologies for taking an apocalyptic view. I do not think that the circumstances that I have described would arise in a reasonable scenario, but they could. It is right that when we legislate for the UK we consider the worst case rather than the best case. That is why the amendment is necessary.

This group of amendments is important, and it needs careful scrutiny because the process, although necessary, is intrusive. We have no argument with the basic principles of what the Government are trying to achieve, but the House should have careful control of the process. The wording is important because it may reduce the measures' effectiveness by applying too heavy a burden on those on whom they bear, by incorrectly defining the circumstances in which the powers can be used or by allowing an expansion of the powers without the proper imprimatur of the House, which is an important part of our legislative process.

James Paice (Conservative, South East Cambridgeshire)

I endorse and support what the hon. Member for Somerton and Frome (Mr. Heath) said. I reminded myself that we debated the earlier version of amendment No. 6, which my hon. Friends and I tabled, 35 minutes after the Minister started her first day in Committee, having just taken up her responsibilities. She acquitted herself well, but she has had four months to reflect on her answer. I hope she realises that our case on the wide terminology of "financial institutions" has some validity.

I do not want to repeat the arguments made in Committee or by the hon. Gentleman, but the hon. Gentleman was right to refer to the Minister's justification that all financial institutions may need to be considered in a major terrorism investigation. Nothing in the amendment would remove that possibility. The hon. Gentleman said that clause 33(3)(b) and (c) will allow such an investigation to be carried out. In addition, subsection (2) allows a further application to be made ex parte to a judge in chambers if it is later found that an institution or group of institutions was not covered in a previous application. There is a belt-and-braces approach even if it is necessary for a major investigation to cover every possible definition of the term "financial institutions".

I wholly endorse the argument that to allow the application to specify all financial institutions at the outset is a scatter-gun approach. It demonstrates a lack of clarity in relation to the person or people being investigated or the information being sought. There could also be a huge waste of resources if all financial institutions are approached. The Minister rightly said in Committee that people will not willingly waste resources—she perhaps has, a slightly higher opinion than me of some of the organisations that serve us—but we should ensure that that does not happen. The amendment is wise, and I hope that the Minister follows her earlier example and accepts it.

Amendment No. 12 relates to the issue of giving the Secretary of State—an interesting phraseology in the light of the earlier debate—the power

"to give effect to any decision of the Council of the European Union under paragraph 6".

Far be it from me to challenge the hon. Gentleman's European credentials. I read that the Liberal party is rowing back slightly from its enthusiasm for Europe, and perhaps the amendment is an example of that. [Interruption.] I do not know whether the hon. Gentleman would like me to put on the record what he just said sotto voce, but I shall refrain from doing so.

The important point is the one that the hon. Gentleman made. It would not be right for the European Union by majority voting to support a proposal, with a British Government perhaps voting against it, and for Ministers to immediately translate something into a serious criminal offence to which all the Bill's provisions applied. There is a need for greater parliamentary scrutiny, and I wholly endorse the hon. Gentleman's amendment.

This is an important group of amendments. Many of them were covered to some extent in Committee, but they are worth reconsidering. In view of the time that the Minister has had to do so, I hope that she will give them a serious response and a fair wind, as she did in the case of those she accepted earlier.

Caroline Flint (Labour, Don Valley)

As hon. Gentlemen said, there was discussion in Committee of the issues raised by the amendments. The substance of amendment No. 6 was discussed at some length. I reiterate that we consider it essential to retain the provision to allow a customer information order to specify all financial institutions. Although I am happy to go on the record stating that the circumstances in which the provision might be used would be exceptional, there may be circumstances in which we would want to be able to make such an order.

For example, as we heard, in a terrorism case in which there is no specific evidence pointing to an account at a particular institution, but in which the seriousness of the offence and the need to trace any accounts are such that we consider a search of all financial institutions to be justified, it may be considered appropriate to obtain an order under the provision.

On the comments about paragraphs (a), (b) and (c) of subsection (3), we need paragraph (a), which refers to all financial institutions, because paragraphs (b) and (c) refer to particular institutions. In its natural everyday meaning, "particular" is different from "all", so how can "particular financial institutions" be read as covering "all financial institutions"? That is why we need to include paragraph (a).

The ability to target an order at all financial institutions does not open the door to fishing expeditions, as I argued in Committee. There are safeguards, which were not mentioned by either of the hon. Gentlemen who spoke, unless I did not hear correctly. The Bill gives both the Secretary of State and the court discretion as to whether to make an order. The Secretary of State will consider whether a request meets the conditions of the protocol. If he is not satisfied and the request appears to be a fishing expedition, he may refuse it.

The order has to be made by a judge, who must act in accordance with the Human Rights Act 1998, thereby taking into account matters such as proportionality. The investigator and the judge must consider whether the number of financial institutions potentially covered by a customer information order balances against the tests set. The CIO application must also be approved by a senior officer, even before the investigator can apply to the judge. That creates yet another safeguard. Those are the steps that must be taken before an order allowing coverage of all financial institutions may be met, and that will occur in pretty rare circumstances.

As was noted previously, the clause is consistent with the Proceeds of Crime Act 2002. I understand that Opposition Members were against the provisions of that Act and made their views clear while the Bill was proceeding through the House, but we stand by our position as outlined in that Act, which contains the power to make an order specifying all financial institutions. If we can do that for overseas money-laundering investigations, it is logical by extension to make similar provision in the Bill so that we can do so in the case of other serious crimes. Although, as I acknowledged in Committee, I recognise the potential burden of complying with such a request, I am afraid that I must resist the amendment.

I turn to amendments Nos. 7 to 11. In Committee, the hon. Member for Somerton and Frome (Mr. Heath) asked why the Bill referred to "financial institutions" in respect of incoming requests and "banks" in respect of outgoing requests. I have written to him with an explanation, which I will repeat for the benefit of the House. The protocol obliges us to assist participating countries in identifying whether a suspect holds bank accounts. It also allows us to receive assistance from other participating countries in relation to banks and bank accounts. Because the protocol does not define "bank", and because each participating country will define the term differently under its domestic law, as was confirmed by the hon. Member for West Aberdeenshire and Kincardine (Sir Robert Smith), we considered that the provisions on incoming requests must be drafted sufficiently broadly to enable us to assist with all properly made requests from participating countries. There is no single definition of "bank" in UK law. Even if there were, there is no guarantee that it would correspond with what another participating country considers to be a bank under its own domestic law. That is why we have adopted the term "financial institution", which is familiar in UK law and follows the provisions in section 416(4) and (6) and schedule 9 of the Proceeds of Crime Act 2002. There would be scope to limit a search in a particular case in view of the overriding discretion on the part of the Secretary of State to consider requests from other countries under chapter 4.

In terms of outgoing requests, we are entitled to seek assistance under the terms of the protocol in relation to bank accounts that are held in establishments located outside UK jurisdiction, where the UK legal concept of "financial institution" will not necessarily have any meaning. If we were to use the expression "financial institution" in respect of outgoing requests, a UK judicial authority that requested assistance under clause 43 would have to be satisfied that an account was held at an overseas establishment conforming to the UK concept of "financial institution" and carrying on

"business in the regulated sector".

It would not be correct for the Bill to require overseas banks to come within the domestic UK framework. What constitutes an overseas bank for the purposes of the protocol is interpreted in each of the member states' own legal systems. It would not be possible—or, for that matter, sensible—for us to legislate for each country's own domestic law. When making requests to the UK under the protocol, overseas authorities must interpret the term "bank" consistently with the protocol within their own legal framework. For those reasons, we are satisfied that the use of the term "bank" in clause 43 is appropriate.

Finally, let me deal with amendment No. 12. I am afraid that we cannot accept the deletion that it proposes. That would remove our ability to comply with article 1 of the protocol in the event that its scope was expanded at a future date. When the protocol was negotiated, a number of member states argued that the identification of bank accounts should be possible in relation to all crimes. As many member states do not have central registers of bank accounts, and because the measure was so new and was seen by some states, including the UK, as being potentially intrusive, it was agreed that the scope would be limited to serious crimes. However, member states agreed that it should be possible to extend the scope to allow for advances in technology and for the possibility that experience of the operation of the protocol might prove the value of the measure. Having agreed the terms and signed the protocol, we need to be in a position to comply with it, including the potential to apply article 1 to other crimes. We therefore require a mechanism to extend our legislation accordingly.

Any decision by the European Council to extend the scope of article 1 would be subject to the usual parliamentary scrutiny arrangements. The subsequent statutory instrument implementing the revised obligations would be subject to the negative resolution procedure, which we believe to be proportionate. The Delegated Powers and Regulatory Reform Committee did not comment on that power. Where it highlighted concerns about the level of scrutiny in relation to designation of non-EU countries as participating countries, we amended the Bill accordingly. We have listened and given further consideration to the concerns that have been expressed, but, for the reasons that I outlined, we cannot accept the amendment.

Nick Hawkins (Conservative, Surrey Heath)

Earlier, the Minister gave the impression that Conservative Members opposed the whole of the Proceeds of Crime Act 2002. I know that she did not intend to do so, as I was the shadow Minister who dealt with that Bill. Will she confirm for the record that we supported many of its important measures, although we had some concerns, which we expressed at the time?

Caroline Flint (Labour, Don Valley)

I am happy to confirm that sections of the Act were supported by Members from both Opposition parties represented here today. Given that we must have the scope to investigate suspects' accounts, particularly in the most grave situations involving terrible crimes, we felt that all financial institutions should be covered by that Act, and likewise, therefore, by this Bill.

David Heath (Liberal Democrat, Somerton and Frome)

I am disappointed that the Minister has not acceded to my request. In respect of amendment No. 6, I do not wear her argument. As the hon. Member for Surrey Heath (Mr. Hawkins) pointed out in Committee, one of the problems with having such blanket cover is that there is no way of challenging the procedure, which involves an ex parte application by judges in chamber with no possibility of the institutions that will bear the burden playing any part in the decision. We are therefore right to be extremely cautious about the way in which such an application is made. I recognise, however, that I will not persuade the hon. Lady at this stage.

On the definition of banks and financial institutions, I would accept the Minister's argument if the word "bank" had a connotation that went wider than the term "financial institution", because it would be logical to use the widest term, which can then be interpreted by the local jurisdiction consonant with its domestic legislation. However, she is saying the reverse—that we must limit the term to that which has a narrower definition even before the application is made. If we are able to understand what the term "financial institution" means within our domestic law for incoming requests, I have every confidence that overseas jurisdictions would be able to do so in terms of their own legislation for outgoing requests. That creates an anomaly whereby we effectively place a self-denying ordinance on the requests that we can make by using a term that is not consistent with the wider definition of "financial institution" that applies overseas. I accept, however, that having had this dialogue we are not going to agree.

On amendment No. 12, the Minister is being a little disingenuous in saying that were it to be accepted it would be impossible for the Government to make appropriate provision to bring into effect any decision of the Council. Of course it would be possible—I am simply saying that we should not do it via the Secretary of State. It occurred to me after the previous debate that perhaps we should go through legislation crossing out "Secretary of State" and inserting "Treasury": in reality the Treasury makes the decisions, so why not say so in statute? Setting that aside, the mechanism is not entirely appropriate for what the Minister wants to do.

Clearly, we can make no further progress at this stage. I do not intend to press the amendment to a Division, because that would be pointless. We have made our comments and they stand on the record. If the Bill does not work as the Government hope, we will be able to tell the Minister that we told her so. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 47 — Transfer of UK Prisoner to Assist Investigation Abroad

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I beg to move amendment No. 44, in page 28, line 9,leave out,

'cannot be withdrawn after the issue of the warrant'

and insert

'can only be withdrawn on cause shown and with the consent of the court.'

As with previous amendments, the genesis of the amendment is the Law Society of Scotland. I had hoped that the hon. Member for Perth (Annabelle Ewing) would be in her place. Earlier, she chided Labour Back Benchers who represent Scottish constituencies for their absence. The hon. Lady, who always tells us that she is prepared to stand up for Scotland, has presumably gone to have her tea for Scotland.

David Heath (Liberal Democrat, Somerton and Frome)

At the Scotland Office.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Indeed, she may be having her tea at the Scotland Office tonight.

The amendment is simple. Clause 47 provides that once a prisoner has given his or her consent in writing to be transferred to another country to help with a criminal investigation, it cannot be withdrawn. The amendment would provide for opportunities to withdraw that consent

"on cause shown and with the consent of the court."

It appears draconian that, once written consent has been given and a warrant has been issued, there is no point of return. Surely the Minister accepts that a change of circumstances in the foreign jurisdiction might mean that it is appropriate for consent to be withdrawn. It may also become apparent that consent was given on the basis of false, misunderstood or misleading information.

The reason for withdrawing consent would have to be of the nature that I outlined because the test of "cause shown" is exacting and consent could not be withdrawn willy-nilly. It would require a substantial reason, and the opportunity would be available in few circumstances because it is not simply a question of fulfilling the test of "cause shown"; there will be only a short time between issuing the warrant and departure to the foreign jurisdiction. The amendment does not therefore open the gate especially wide, but it includes an important safeguard. I commend it to the Minister.

James Paice (Conservative, South East Cambridgeshire)

I support the hon. Member for Orkney and Shetland (Mr. Carmichael). We supported the thrust of the amendment in Committee when we discussed the need for a safeguard. In my experience, it is rare for legislation to contain such a bold and bald provision, without ifs, buts or caveats, that consent cannot be withdrawn after the issue of the warrant. That appears slightly dogmatic, especially when circumstances could change, both in the country to which the person is about to be extradited and for the individual.

Under clause 47(4)(a), "the prisoner" may give the necessary written consent to being transferred, but subsequently suffer an extreme illness such as a mental breakdown. We may therefore find not only that the individual's circumstances have changed but that subsection (4)(b), which provides for someone else to act on the prisoner's behalf applies. In the extreme circumstances of someone suffering a mental breakdown, other illness or serious accident—one assumes that the latter will not happen to those in custody, but it is possible—it is unreasonable that there is no mechanism for review.

As the hon. Member for Orkney and Shetland said, the amendment would not open the door to abuse of the system or drive a coach and horses through the option to transfer prisoners abroad. I would not support it if that were its effect. However, there is a need for a safeguard in the event of circumstances changing so dramatically that it could be shown that, at the time of transfer, the consent might be unreasonable and that the individual might not have given it in the altered circumstances. The person who gave consent on the prisoner's behalf under subsection (4)(b) might have taken a different stance in the different circumstances. I hope that the Minister appreciates the need for some, albeit small, safeguards. As a non-lawyer, the proposal of the Law Society of Scotland appears to me suitable in providing an opportunity for review in extremis. I hope that the Minister will support it.

Caroline Flint (Labour, Don Valley)

We debated this issue on several occasions in Committee. We have considered the matter further, but we remain firmly of the opinion that amendment to the clause is not necessary. I hope that I can explain practically our intentions and our reasons for wanting to transfer a prisoner to another European country to help with a UK investigation.

Clause 47 deals with circumstances in which a transfer is arranged from the UK, at its request, when UK investigations require a UK prisoner's presence, generally in the capacity of witness, in another country to assist with investigations into an offence committed here. For example, a prisoner might have been involved with or known about other people who had offended in the UK by, for example, being party to human trafficking or drug smuggling. Perhaps that prisoner could identify people known to him or her by attending an identity parade in, for example, France. Prisoners might also be able to identify a property that they had visited and at which those who had offended in the UK were present. Such events do not happen every day but,, given that crime knows no national boundaries and that we are trying to deal with that through co-operation, we need to be prepared for them. I have tried to give a practical example to show reasons for wanting to transfer a prisoner abroad to assist with a UK investigation. I hope that it gives hon. Members, people in the Gallery or those listening outside the Chamber an idea of what we are talking about.

We envisage that such circumstances will be rare and the provision does not deal with giving evidence abroad in relation to overseas investigations. Section 5 of the 1990 Act will continue to cover that.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Would it be competent to raise a bill of suspension in respect of a warrant issued under clause 47?

Caroline Flint (Labour, Don Valley)

I shall refer to that point shortly.

Let me consider the amendment, which deals with the warrant and whether, once a warrant has been authorised, someone can go back on an agreement to be transferred. I stress that the warrant authorises but does not require the prisoner's transfer. It enables the transfer to happen, making it legal. It also enables the prisoner to be held in legal custody for the duration of the transfer.

There is a process whereby the authorities engage a prisoner in the whys and wherefores of seeking that person's co-operation. It can take several months for the warrant to be authorised. At any point until the warrant is authorised, the relevant individual can refuse to take part. Police officers in such cases deal with prisoners in the same way as they deal with witnesses or suspects in a purely domestic investigation. They would interview a prisoner whose transfer was desirable in the same way as they would interview members of the public with a view to their providing evidence in a UK proceeding. Prisoners who are purely witnesses would be treated like any other witness; they would be interviewed by an officer and asked to sign a written statement. Suspects would be cautioned like any other suspect. The fact that they are prisoners does not result in different treatment.

The clause requires prisoners, or someone acting on their behalf, to provide written consent to any transfer before it takes place. They will sign a consent form, witnessed by a prison official. Although they are not automatically entitled to legal advice—we discussed that in Committee—prisoners are entitled to seek it before agreeing to a transfer. Indeed, the standard consent form contains a statement which confirms that prisoners have been given the opportunity to seek legal advice. I can provide hon. Members with a copy of the form if that is helpful.

Once consent has been granted, the practical arrangements for the transfer will be put in place by the authorities concerned. When these arrangements are all in place, the Secretary of State will issue a warrant authorising the transfer of the prisoner a few days before the transfer is scheduled to happen. Once that warrant has been issued, the prisoner will be unable to withdraw his consent. There is a process to be gone through in which a person is entitled to change their mind, but the warrant authorises the activity. It provides the framework in writing for proceeding with the transfer. As I have said, the prisoner may change his mind before the warrant is issued.

James Paice (Conservative, South East Cambridgeshire)

I appreciate that the process will take only a few days, as the Minister has reminded us. Will she not accept, however, that a prisoner's health could change dramatically, even in a few days? They could have a mental breakdown, or suffer a serious stroke or heart attack. Something could happen quite suddenly that would dramatically change their circumstances, which could jeopardise their ability to make decisions for themselves. Their conditions would therefore not be the same when the warrant was executed as when they gave their consent.

Caroline Flint (Labour, Don Valley)

We discussed this matter in Committee. If someone has had a heart attack, broken a leg or had a mental breakdown, the people facilitating the transfer would hardly be in a position to take that person in those circumstances. I mentioned the example of a national emergency in the country of destination. We would not necessarily want to transfer a prisoner into such a situation; indeed, we might not want to send the people taking the prisoner into such a situation either. In Committee, I said that in the event of

"a national emergency in the country of destination or a person being unwell and unfit to travel . . . there is an opportunity for the Secretary of State to act. We want to ensure that at the end of the process there is a safeguard, so that we do not undermine all the work that has been done preceding the warrant's authorisation."—[Official Report, Standing Committee A, 17 June 2003; c. 203.]

There is nothing to be gained by the people investigating a UK offence if the person in question is unable to take part because of ill health or for other reasons. There would be no point in the investigating officers pursuing a case to that end. In refusing to accept the amendment, we are trying to safeguard against a cat-and-mouse game ensuing, at the end of a process which contains built-in safeguards, and work that has been legitimately pursued—including the signing of a form—not being adhered to.

James Paice (Conservative, South East Cambridgeshire)

I would like to pursue this matter a little further. I understand the Minister's point that it would not be in the interest of the investigating authority to take someone who would be unable to participate in their investigation. I would point out, however, that clause 47(5) defines the circumstances in which

"it appears to the Secretary of State to be inappropriate for the prisoner to act for himself, by reason of his physical or mental condition or his youth."

The fact that the Government have put this in the Bill, and that under clause 47(4)(b), someone else could give consent on behalf of the person in question, implies that the Government are envisaging situations in which a prisoner could be transferred abroad despite a physical or mental condition that might reduce his ability to participate in the investigation. We seem to have that eventuality covered if it arises before consent is given, but if the prisoner's condition should change after consent was given, the situation could not be re-addressed. A change to that provision is all the hon. Member for Orkney and Shetland and I are asking for.

Caroline Flint (Labour, Don Valley)

My understanding of clause 47(5) is that it acknowledges that the Secretary of State may find it inappropriate that a person should be transferred, by reason of his physical or mental condition or his youth. That provision is in the Bill as a safeguard in terms of the proceedings.

James Paice (Conservative, South East Cambridgeshire)

I am sorry to have to say this to the Minister, but that is not what subsection 5 says. It defines the circumstances in which the Secretary of State believes that, if the individual cannot make the decision for himself, he can allow another person to give consent on his behalf. It is not to do with a decision that the person would be no use to the investigation, as the Minister suggests.

Caroline Flint (Labour, Don Valley)

I think that the provision states that a prisoner may ask someone to act on their behalf in such circumstances. The clause as drafted requires the prisoner—or, as the hon. Gentleman says, someone acting on his behalf—to provide written consent to any transfer before it takes place. I can provide copies of the forms that are currently available for this purpose, which should allay some of the fears that hon. Members raised in Committee about whether people would be informed about what was happening, and whether they would have the opportunity to resist certain procedures if they did not want to take part. They have that right, up to the point at which the warrant is authorised. There are enough safeguards to ensure that the system operates in a full manner which will give the individual rights and which recognises that there might be circumstances such as ill health or events in the country of destination that would make the transfer inappropriate.

As I have said, when the arrangements are all in place, the Secretary of State will issue a warrant authorising the transfer, a few days before it is scheduled to happen. Once the warrant has been issued, the prisoner will be unable to withdraw his consent, but he may change his mind before the warrant is issued.

Prisoners in these circumstances are being transferred in order to be of assistance to a domestic investigation, so there would be no merit in transferring a prisoner who was unwilling to co-operate, for whatever reason. It would cost the investigating force a large amount of money, with no benefit to the investigation. Prisoners would not be transferred if ill or otherwise unfit to travel.

Robert Smith (Liberal Democrat, West Aberdeenshire and Kincardine)

The implication of what the Minister has just said is that, although she does not want to place in the Bill any process by which the prisoner could change their mind, even after this stage had been reached the authorities could decide that the prisoner was not going to co-operate and that it would not be worth the effort of transferring them.

Caroline Flint (Labour, Don Valley)

The suggestion would be that, in order to transfer a prisoner, there would have to be a voluntary agreement to do so. There would be no merit in the investigating officers pursuing such an action if the person were unwilling to take part. We want to avoid a situation in which, after months of work, someone decides at the last minute and for no good reason that they do not want a transfer.

Robert Smith (Liberal Democrat, West Aberdeenshire and Kincardine)

rose—

James Paice (Conservative, South East Cambridgeshire)

rose—

Caroline Flint (Labour, Don Valley)

I shall not give way, because I have answered the question on this matter.

We want a process that is understood by the investigating officers and the prisoners concerned. These provisions are used in other parts of UK law relating to the transfer of prisoners. Under sections 5 and 6 of the Criminal Justice (International Co-operation) Act 1990, the UK can request that a prisoner held overseas be transferred to the UK, and it can transfer prisoners out of the UK when other countries make requests for prisoners here to be transferred to that country. Clauses 47 and 48 of the Bill implement different arrangements, enabling a country to make a request to transfer a prisoner from its own territory when its own investigations require the presence of the prisoner in another country. These clauses reflect the terms used not only in the 1990 Act, but in the Repatriation of Prisoners Act 1984, section 1(6) of that which prohibits a prisoner from withdrawing consent once granted. That provision is therefore contained in another piece of UK legislation.

Repatriation—permanently transferring a prisoner from one country to another to serve the remainder of their sentence—is a much more definite and final act than the one that we are talking about in this Bill, which simply deals with the temporary transfer of a prisoner to assist with a specific aspect of an investigation. Having different arrangements in this Bill would call into question the basis of existing related legislation. Finally, the warrant in this section is issued by the Secretary of State, not by a court, so the amendment is incorrect in referring to a power of the court that does not exist. For these reasons, we cannot accept the amendments, and I urge the House to resist them.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I would disagree with very little that the Minister has said. She spoke at some length about the safeguards that are in place prior to the granting of the warrant, and I commend her on the thoroughness of her approach to that. Had I had any quibble with the provisions in the clause, I would have tabled an amendment, but I did not. Instead, I tabled a tightly framed amendment relating to the withdrawal of consent after the issue of a warrant.

I asked the Minister in an intervention whether a warrant issued by the Secretary of State could be the subject of a bill of suspension. Those who advise the Minister did not pick up on that intervention, so I do not expect her to be able to answer it off pat. An answer may be forthcoming even as I speak. It is not unknown for bolts of lightening to hit Ministers in these circumstances.

If it is possible to suspend a warrant, it is still possible to get round this provision. The bill of suspension is an unnecessarily cumbersome procedure in these circumstances. Is it still a remedy available to citizens affected by this provision? I do not know whether the Minister has an answer for me. One can never say never, but I suspect that if a bill of suspension were not competent, a petition to nobile officium would remain competent. In Scots law at least, there is always a means by which one can find a remedy when no other exists.

Caroline Flint (Labour, Don Valley)

The question which the hon. Gentleman alludes to involves a complicated part of Scottish law and I do not have the answer to hand. We may have to consult further on that point to see how it would fit in with the exercise of a warrant to transfer a prisoner. I shall get back to him on that point if that is helpful to him.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

That would be helpful to me and, no doubt, to others who will deal with this legislation in the courts if and when it makes its way on to the statute book. However, even under subsection (6) as it stands, a prisoner could avoid being transferred. The procedure is exceptionally lengthy, cumbersome and expensive. Surely the sensible thing would be to allow the amendment in the terms that we have proposed to enable consent to be withdrawn on cause shown.

I cannot say that the Minister has put any argument for refusing the amendment. However, we will clearly not make any progress with it, so with some reluctance and disappointment, and with all the questions that we have at the start of the debate still unanswered, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 82 — Foreign Surveillance Operations

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 13, in page 55, line 44 [Clause 82], at end insert—

'( ) the officer does not seek to stop or question the person under surveillance'.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

With this it will be convenient to discuss Government amendment No. 18 and amendments (a) and (b) thereto:

Amendment No. 32, in page 56, line 43 [Clause 82], at end insert

'"Enters the United Kingdom" shall mean when the officer arrives at a port or airport in the United Kingdom or when a train on which he is travelling emerges from the tunnel into the UK.'.

David Heath (Liberal Democrat, Somerton and Frome)

We now come to a group that is again, I am delighted to say, the subject of qualified harmony. By accepting the arguments, as the Government amendment shows, the Minister has avoided the inevitability of the Bill returning from the other end of the corridor with the inclusion of something similar to the original amendment to clause 82 passed in the other place. That would be unfortunate, because I do not think that there was any difference of opinion between the Opposition parties and the Government on the intention, but there was a distinct difference on whether this provision should be included in the clause. The Government felt that it was not necessary—perhaps they still feel that—whereas many others felt that it was extremely important.

The issue is whether an officer from overseas entering this country while performing a covert surveillance operation should be prohibited from stopping, searching or questioning the person under surveillance. We know that there is no difference between us on the intention that such officers should have no such ability. That was clear in the Schengen handbook and the protocols. The question is whether that should be explicit in the Bill. It was felt by a majority in the other place that it should, but in Committee the view of the Government was that the amendment to that effect passed in the other place should be excised without providing an effective alternative.

The argument in Committee was interesting. The Government's principal objection was that the other place had framed its amendment in the form of a prohibition. They felt that that was not acceptable in terms of parliamentary draftsmanship and that they would be much happier with a qualification under subsection (4). I set myself the task of finding a form of words that would meet the Government's objection and fulfil our common objective, and that is amendment No. 13. Though I say it myself, it is a brief and elegant way of incorporating the sentiment.

Subsequently, the Government tabled their own amendment No. 18, which comes to the same thing. I am grateful to the Minister for producing that amendment, as it is extremely helpful to us. However, I have two quibbles with it. They are minor quibbles rather than quibbles of substance. The first is that it is slightly clumsy and long-winded, but that is a matter of style rather than substance. It is perhaps inevitable that I happen to prefer my wording.

My second quibble is dealt with in my amendment (a) to Government amendment No. 18. The Government's amendment contains a potential pitfall. It would insert the words

"but no surveillance is lawful by virtue of this subsection if the officer subsequently seeks to stop and question the person in relation to the relevant crime".

If that is understood to mean during the process of covert surveillance within the United Kingdom, that is fine, but that is not what it says. The word "subsequently" creates a difficulty.

I shall put a hypothetical case to the Minister. Supposing that a Belgian police officer was investigating a smuggling operation between Belgium and Britain.

David Blunkett (Labour, Sheffield, Brightside)

Chocolate.

David Heath (Liberal Democrat, Somerton and Frome)

All right, the smuggling of chocolate, although I am not sure that that is the most heinous crime even under the current provisions of criminal law. If it pleases the Home Secretary, let us suppose that the person is smuggling chocolate between Brussels and Dover. Under the provisions of the Bill, the Belgian police officer properly undertakes covert surveillance in the United Kingdom. He does not seek to stop and question the person—who incidentally is a British subject—in Dover, and he complies entirely with the legislation.

The police officer returns to Brussels and so does the person under surveillance. That British subject commits further acts in Brussels in connection with the smuggling operation for which the officer stops, questions and arrests him. It transpires that the crime committed under Belgian law is part of a conspiracy based in Britain, and should be prosecuted by the British authorities—a huge conspiracy of chocolate smuggling, according to the Home Secretary.

The person is brought back to Britain to stand trial—but under the wording in Government amendment No. 18, because the officer subsequently stopped and questioned that person, albeit in Belgium and not in London, the evidence that that officer can provide by virtue of the covert surveillance in the United Kingdom is no longer admissible in a British court. That is not the intended consequence. It may be a very fanciful consequence, and a very extraordinary sequence of events might be required to bring it about; but it is nevertheless a possible consequence of the unqualified use of the word "subsequently".

That difficulty would be entirely removed by the addition of the words "in the United Kingdom", which would make it absolutely clear that the surveillance is invalidated only if the person concerned is stopped and searched here. I put it to the Minister that we could remedy a potential difficulty quite happily by that means. I hope that my argument has been cogent and not too complicated, and I hope that the Minister will either accept my wording or amend the existing wording by means of a Government amendment. In any event, I am glad that we have won the basic argument, and grateful to the Minister for listening carefully to what we have had to say.

James Paice (Conservative, South East Cambridgeshire)

I, too, welcome Government amendment No. 18. In Committee, the Government were determined, despite behind-the-scenes discussions, to reject out of hand the Lords amendment proposing the removal of a subsection from the Bill, and to revert to the position that obtained when the Bill was presented to the other place—only for wiser heads to prevail later.

Let me chide the Minister slightly by reminding her that in Committee she said

"However, I am being asked to withdraw my amendment and allow an imperfect bit of the Bill to go forward."—[Official Report, Standing Committee A, 19 June 2003; c. 267.]

I suggest that seeking to amend the Bill was tantamount to admitting that she was allowing an imperfect Bill to go forward at the time, but I am glad that the Government have seen the necessity of making the position absolutely clear.

I understand the Minister's reasons for not liking the original Lords amendment. It was effectively a double negative, making illegal something that was already illegal. The Minister and, in different terms, the hon. Member for Somerton and Frome (Mr. Heath), have come up with wordings that serve exactly the same purpose and achieve the same ends by ensuring that someone being followed by an overseas officer cannot be stopped and searched.

I have discussed the matter with my colleagues in the other place, to whom the Bill will have to return. I cannot prejudge or commit myself to what they will decide, but I understand that they are content with the Minister's amendment, and I welcome her albeit belated recognition that the position should be stated clearly.

Amendment No. 32 relates to the definition of United Kingdom territory. It seeks to add to the Bill words used by the Minister in Committee. My hon. Friend the Member for Surrey Heath (Mr. Hawkins) rightly pointed out that where the territory entered by the overseas officer began was open to debate. Did it begin with the beginning of airspace, or with our territorial waters? What would happen if a surveillance officer was in a boat only a mile or so from the shores of Britain, watching the famous chocolate smuggler coming over from Belgium with his chocolate? The boat might be in British territorial waters.

In reply, the Minister said

"We will consider the UK to have been entered when the foreign officer arrives at a port or airport or, in the case of Eurostar, when the train leaves the tunnel and enters Kent."—[Official Report, Standing Committee A, 19 June 2003; c. 288.]

That is a very precise definition. As I implied, there could have been other terminologies—especially in respect of the tunnel, which has led to a situation unique to this country. British territory is normally considered to begin halfway through the tunnel, and we have customs officers operating in France, but there is a debate about the location of the boundary. In Committee, however, the Minister clearly stated that in that instance—probably one of the more common instances—the UK would be considered to have been entered when the train left the tunnel and entered Kent. All we have tried to do is put that into the Bill, which I think is entirely reasonable. I hope that the Minister will accept that hers are the correct words, and that they should therefore be in the Bill.

The fundamental point is that the words "enters the United Kingdom" are vague and, as I have tried to demonstrate, open to different interpretations. Earlier today, the Minister agreed that the Bill should be clear about what it means. I hope she also agrees—she did nod just now—that "enters the United Kingdom" is vague. We now seek to turn her words into clarity in the Bill, and I hope that she will be able—perhaps uniquely—to incorporate her own words in legislation.

Caroline Flint (Labour, Don Valley)

The hon. Member for Somerton and Frome (Mr. Heath) had me slightly worried. I thought that I was going to disagree with something with which I hoped to agree. By the end of his speech, however, I realised that we would be able to give him some comfort, particularly in regard to the words "in the United Kingdom".

I am grateful to the hon. Gentleman, and to the hon. Member for Orkney and Shetland (Mr. Carmichael), for amendment No. 13. We discussed the issue at length in Committee—we discussed what constituted hot pursuit and hot, lukewarm or cold surveillance. Although not convinced at the end of our proceedings, I said that I would see whether we could come up with a form of words that would deal with Members' concerns without making a fool of the law. The Liberal Democrats have obviously been working on their own wording, but I am pleased to say that during the recess our officials were beavering away to produce an acceptable amendment.

I hope—and I think what has been said so far suggests—that the amendment's response to what was said in Committee makes it clear that when foreign officers conduct relevant surveillance in the UK, that surveillance will no longer be lawful if officers subsequently stop and question the target about the crime. However, we do not think that such a situation is likely to arise. As I said in Committee, the Schengen convention provides explicitly that foreign officers may neither challenge nor arrest the target. To stop and question the target about the crime would not be consistent for the purposes of covert surveillance. There would be no operational advantage, and there would be risks of legal action against the foreign officers.

If the foreign officers identified themselves to the target, he would have no obligation to speak to them or even to remain in their presence. They would have no power to detain him physically or to force him to answer questions. Indeed, were they to detain or physically restrain him, they might be committing assault, and could therefore be prosecuted or sued for damages by him.

However, the Government appreciate that the amendment, as an unequivocal declaration in the Bill, would reflect the existing clear understanding between the Schengen states that to stop and question the target within the framework of cross-border surveillance is not acceptable.

The Government's amendment differs from amendment No. 13 in that, although it would be a distinct part of what will be subsection (4) of section 76A of the Regulation of Investigatory Powers Act 2000, it would be distinguished from the existing conditions specified in the subsection. At present, the subsection provides that relevant surveillance by foreign officers during the permitted period is lawful for all purposes if the conditions in the subsection are satisfied. The amendment removes that cover of lawfulness if the target is subsequently stopped and questioned in relation to the relevant crime, even if all his specified conditions are satisfied.

There is a further difference in the drafting, in that we have not used the phrase "stop or question". Article 40 of the Schengen convention provides that the foreign officers conducting the surveillance may not challenge the person under observation. We interpret "challenge" as meaning "stop and question", which in our view better reflects the convention's intention. A further amendment has been tabled to Government amendment No. 18, and I am pleased to say that we are able to accept it because it provides clarification. The illuminating example of Belgian chocolate smuggling focused our attention on how the law might be applied, and it is no bad thing to try to create a practical situation to which to apply the Bill. I therefore hope that the House will accept amendment No. 18, as amended by amendment (a), and that hon. Members will not press amendment No. 13 to a vote.

Let me now deal with amendment No. 32, which, as has been pointed out, looks very familiar because it is very similar to what I said in Committee. It will come as no surprise to the hon. Members for South-East Cambridgeshire (Mr. Paice) and for Surrey Heath (Mr. Hawkins) when I say that I find the amendment very attractive. However, although I support its purpose, it should not be included in the Bill, and I shall try to explain why.

We had a lengthy discussion in Committee in which we tried to grapple with real-life scenarios. For example, we considered the question of at what point someone travelling by air would be in British airspace, and at what point those travelling by ferry or hovercraft would be in British waters. As I explained in Committee, the term "enters the United Kingdom" will indeed be interpreted as meaning when a foreign officer arrives at a port or airport or, in the case of Eurostar, when the train leaves the tunnel. I said that this was a practical approach. It is a workable definition that provides a point that can readily be identified by officers, who cannot afford to be distracted from immediate operational imperatives by questions about the precise moment at which they enter British airspace or waters. That approach is also in line with the Schengen convention's intention that the foreign officer conducting the surveillance must notify the authorities of the visited state immediately that the border has been crossed. Clause 82(6) uses the phrase:

"immediately after the officer enters the United Kingdom".

In the Government's view, in the case of entry by sea or by air, that phrase can be interpreted as meaning as soon as the foreign officer arrives at the port or airport, because only then can he make contact with our own officers.

However, the underlying approach that I described is a general one. Although we intend that it should be adhered to, it is difficult to find a precise wording that would be appropriate in practical terms. Indeed, that is my difficulty with the proposed amendment: its wording is not precise and it is also too narrow. For example, the precise moment at which a person enters a seaport could appropriately be regarded as when the vessel enters the harbour, when it docks, when the target disembarks, or when he passes through passport control or customs control. Indeed, it is possible that a particular vessel might not arrive at port at all. An incident might occur at the port in question, causing the vessel to be docked for some hours. Foreign officers could use that as an opportunity to connect with their UK counterparts, in order to pick up the surveillance when they disembark. So particular circumstances could arise in which it would be possible and appropriate to regard the five-hour period as commencing before the vessel arrives at the port.

These practical issues must of course be addressed, but not in the Bill, as I said in Committee. The appropriate place in which to set out the Government's approach, and to explain more precisely what is meant by "enters the United Kingdom", is the Schengen handbook. As was pointed out in Committee, the handbook is a practitioners' document that is constantly updated, and which can therefore be amended from time to time, as appropriate, to take account of evolving experience in operating the convention. What is important is that the definitions and explanations we provide in the handbook are in line with the practical approach that I have described.

I recognise that the courts' interpretation of the term "enters the United Kingdom" might not be in line with the practical approach that I have described. In the event that the courts ruled that a different approach was necessary, we would need to modify our entries in the Schengen handbook. In that way, the new practicalities would be made clear to our law enforcement agencies and to their counterparts abroad. I am grateful to hon. Members for this opportunity to provide further elaboration.

James Paice (Conservative, South East Cambridgeshire)

I am grateful to the Minister for giving way; otherwise, I would not be able to respond to her remarks. In giving her reasons for rejecting my amendment, she has emphasised the huge confusion that will arise and illustrated precisely why we feel that the amendment is necessary. I understand the case that she makes, but it will lead to even more confusion. Who will determine when the clock starts ticking for the five-hour period? If it is the overseas surveillance officers who will make that decision, what is to prevent them from counting the five hours from the point at which they want to start counting? I am thinking in particular of the situation that the Minister describes—of a boat that is just offshore, either in or just outside the harbour. Someone has to start counting the five-hour period, but it surely should not be the person who is supposed to keep to it.

Caroline Flint (Labour, Don Valley)

The hon. Gentleman outlines the difficulty in establishing in the Bill a precise definition that can cover the practical implications. That is why the handbook is so important, and why the surveillance commissioner has a very important role in monitoring the ways in which the surveillance powers outlined in the Bill are used. We discussed in Committee the question of how to deal with foreign officers who do not comply with surveillance rules. As I said then, each activity undertaken would have to be accountable, and the surveillance commissioner would have to deal with any discrepancies arising. In terms of carrying out their functions in this regard, foreign officers would have to keep in touch with the National Criminal Intelligence Service.

The hon. Gentleman highlights the difficulty in trying to apply these powers without a practical example to address. I stand by my position: the wording in the Bill is the best way forward and the practitioners of the Schengen handbook will undertake to update or to vary the practical application, subject to the rulings of the courts. The Schengen handbook should reflect practical application, and amendments should be made within that to reflect changes to the practical definitions that may be required in the light of operational experience.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I want to be sure that I understand the Minister. The Schengen handbook and NCIS guidance are exactly that: guidance. As I think the hon. Lady said earlier, ultimately it is the courts that will determine whether an act has been carried out within the five-hour limit. Is she really saying that the Government will give best-guess guidance at the moment, but that, if it all goes wrong and they lose a court case, they will change the guidance in future?

Caroline Flint (Labour, Don Valley)

No, I am saying that it is difficult, for the reasons that I have outlined, to determine the absolute point at which a person is on UK soil, and to include that definition in the Bill. This issue would therefore better be covered within the Schengen handbook, which is the practitioners' guide. It will be constantly updated and can be amended to take account of evolving experience in operating the convention. What is important is that the definitions and explanations that we provide in the handbook are in line with the practical approach that I have described. As I said, the courts' interpretation of the phrase "enters the United Kingdom" might not be in line with this approach. In the event that the courts ruled that a different approach was necessary, we would need to modify our entries in the Schengen handbook.

After much discussion in Committee, we feel that safeguards are in place; indeed, there are other safeguards as well. As was pointed out in relation to other possible surveillance infringements, the surveillance commissioner will take up and monitor each case. On NCIS guidance, its officers have the power to tell foreign officers to stop at any time—they have the power to tell those officers when to stop surveillance. Indeed, it is NCIS with which foreign officers will need to keep in touch.

For those reasons, I am pleased to meet hon. Members halfway in respect of issues of surveillance, but we feel that the particular wording in the amendment would create problems for the future without allowing the required flexibility in respect of those powers.

David Heath (Liberal Democrat, Somerton and Frome)

I consider this afternoon to be a minor triumph, and I shall leave the Chamber rather pleased with the progress that we have made in respect of a couple of areas.

The hon. Member for South-East Cambridgeshire (Mr. Paice) made a valiant attempt to provide precision in an area that remains very imprecise. It seems inevitable that if something can be overturned by the courts, it will eventually be overturned by them. Without the necessary precision, the courts will make an interpretation, which may be adverse to whatever guidance is given.

As an island state entering the Schengen agreement for the first time, we are almost unique. I say almost unique, because although other member states are not islands, they nevertheless have maritime borders, and I am sure that something similar must occasionally have occurred in respect of the current operation of the Schengen protocols between, say, Sweden and Germany. Nevertheless, we are entering a new area, so it is important to have as watertight a definition as possible. The better the formulation within the handbook, the more likely are we to avoid aborted cases when a court rules evidence as non-admissible on the grounds that provisions have been inadvertently broken.

It is, of course, in everyone's interest not to break the rules, and it is not in the interest of an overseas officer to stay longer than required, because to do so will be a waste of time. It is not in the interest of the National Criminal Intelligence Service to give advice to those officers, who will want to use the evidence provided by the surveillance operation. Any imprecision would be extremely unhelpful.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

My hon. Friend is right that it is in everyone's interest to work within the rules, which is why we need to know exactly what the rules are. Leaving it to our best-guess guidance in the handbook and refining it when the courts tell us we have got it wrong is simply not satisfactory.

David Heath (Liberal Democrat, Somerton and Frome)

I have considerable sympathy with my hon. Friend and indeed with the hon. Member for South-East Cambridgeshire. I hope that the Home Office will give careful thought to providing as much precision as possible.

On the subject of stopping and questioning, I am delighted with the Minister's response, as she would expect me to be. I shall adopt a term used in parliamentary procedure and hardly anywhere else, and say that it would be churlish of me to persist with amendment No. 13 in the face of the Minister's agreement to accept my amendment to her amendment No. 18. I shall formally move my amendment (a) in due course, and in respect of amendment No. 13, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 82

Foreign Surveillance Operations

Amendment proposed: No. 18, in page 56, line 6, at end insert—

'but no surveillance is lawful by virtue of this subsection if the officer subsequently seeks to stop and question the person in relation to the relevant crime'.—[Caroline Flint.]

Amendment proposed to the proposed amendment: (a), in line 2, after 'person', insert 'in the United Kingdom'.—[Mr. Heath.]

Amendment No. 18, as amended, agreed to.

Schedule 4 — Terrorist Property: Freezing Orders

Schedule 5 — Minor and Consequential Amendments

Schedule 6 — Repeals

Caroline Flint (Labour, Don Valley)

I beg to move, That the Bill be now read the Third time.

I should like to thank my hon. Friends and both Opposition parties for their positive and co-operative approach throughout the Bill's passage. Our discussions have helped to improve and clarify the Bill, and I hope that the arguments are now more or less settled.

My thanks go to all hon. Members who contributed to the debates in Committee. I particularly thank the hon. Members for Surrey Heath (Mr. Hawkins), for South-East Cambridgeshire (Mr. Paice), for Somerton and Frome (Mr. Heath) and for Orkney and Shetland (Mr. Carmichael) for their contributions to the constructive spirit in which the Bill has been debated today. I should also like to thank my hon. Friend the Member for Coventry, North-East (Mr. Ainsworth), from whom I took over responsibility for the Committee after his well-deserved promotion. He made a major contribution to the initial stages of the Bill.

I also thank my hon. Friends the Members for Plymouth, Devonport (Mr Jamieson) and for Nottingham, East and other Labour colleagues who supported us in Committee, and such as my hon. Friends the Members for Brent, North (Mr. Gardiner), for Wirral, West (Stephen Hesford), for Bolton, South-East (Dr. Iddon), for Liverpool, Walton (Mr. Kilfoyle), for Rugby and Kenilworth (Andy King), for Mitcham and Morden (Siobhain McDonagh), for Alyn and Deeside (Mark Tami) and for St. Helens, South (Mr. Woodward). I thank those Labour colleagues most profoundly, as the Bill is the first measure for which I have been responsible and I am now seeing it through to its Third Reading here today.

My thanks also go to noble Lords in another place—particularly Lord Filkin—for their excellent work in sending us the Bill in such good shape. I hope that when it returns to them, they will be satisfied with the further changes that we have made.

The Bill, though technical, marks a significant advance in co-operation against serious crime and terrorism within the EU. International crime affects us all. Reduced border controls and the growth of international trade mean that crime is not confined by national boundaries, so our investigation services also have to work across national boundaries and co-operate with EU states and those outside the EU in the fight against crime. We are already working with our EU partners, but the Bill will enable us to work even more closely and more effectively with them, as well as more widely with our partners outside the EU.

Part of the Bill will make the changes needed to enable the UK to participate in the Schengen agreement. The Schengen arrangements provide a clear framework for effective co-operation, especially for cross-border police operations. It is some time since we first proposed that the UK should participate in the police and judicial co-operation elements of Schengen. With this Bill in place, we will be able to move forward rapidly to make that proposal a reality.

The Bill is about fighting crime on an international and European level and is also associated with fighting crime at home. We have a record number of police officers, we are tackling antisocial behaviour, and we are assessing the problems that blight our communities—particularly drugs and human trafficking, which recognise no national boundaries. The passing of the Bill will partly help to deal with those problems. There is an onus on us all to ensure that our constituents understand how important this Bill is to fighting crime in Europe and internationally, as well as to fighting it in the neighbourhoods that we represent. I commend the Bill to the House.

James Paice (Conservative, South East Cambridgeshire)

As the Minister reminded us, the Committee stage of the Bill witnessed—not for the first time, because of the way in which we operate—a change of Minister mid-way through proceedings. I congratulated the Minister at the time on her promotion, and I do so again tonight. She has acquitted herself well as a new Minister and I am grateful for her constructive approach to most of our deliberations, although we still have an element of dissent on one or two areas.

I echo the Minister's congratulations to the hon. Member for Coventry, North-East (Mr. Ainsworth), who has moved on to a more powerful position—greater may not be the right word—as deputy Chief Whip. The Minister will be conscious of his presence all the time. I also echo her comments about the other members of the Committee, including my hon. Friend the Member for Surrey Heath (Mr. Hawkins), the Liberal Democrat Front Benchers and others who participated in making the Bill's passage through Committee mostly constructive.

I cannot help but recall that a large part of the Bill is a repetition of the Criminal Justice (International Co-operation) Act 1990. The Minister's predecessor reminded us of that frequently in Committee. We were either told that something had to be in the Bill because it was in the 1990 Act or that things had to be changed because the 1990 Act was not quite right. The Government's arguments in Committee had an element of inconsistency, but that is nothing new.

The Bill seeks to put into statute the undertakings and commitments given by the Government on Schengen and the mutual legal assistance convention. As the Minister rightly said, it addresses several issues of international crime. Perhaps uniquely for a Bill on crime, it does not create a raft of new offences. Most crime Bills create many new offences, but this Bill is largely not about such creation. It is about improving co-operation on international crime, and the Opposition support such moves. We strongly support the provisions on driving disqualifications, on the mutual provision of evidence and, of course, on the issue of jurisdiction for terrorist offences. The latter is a sensible extension of legislation. As I said earlier, we have some reservations on aspects of investigation of banking transactions and cross-border surveillance.

I welcome the belated recognition of the validity of our argument on confusion, but I remain concerned about the implications for this country, because it is—as the hon. Member for Somerton and Frome (Mr. Heath) remarked—relatively unusual in Europe in being an island nation, although we do have one land boundary with Ireland. There is a bridge between Denmark and Sweden, which provides a comparison to the channel tunnel. We have reservations about how the legislation will work and we will watch carefully. The issues of drugs and people trafficking—an horrendous crime, especially when it involves children, which is worsening all the time—require cross-border co-operation, and we will always support the Government on measures to address them, as we have done on the issue of terrorism.

Our reservations are not substantial. The amendment in the other place that the Government overturned has now been put right and I am grateful for that. We will send the Bill back to the other place with our good wishes. The Opposition will not oppose Third Reading, and I congratulate the Minister on the way in which she has handled the first, but not the only, Bill that she will deal with in her job.

David Heath (Liberal Democrat, Somerton and Frome)

Like the proverbial month of March, the Bill came in like a lion and went out like a lamb. There was much huffing and puffing in the early stages of consideration of the Bill's consequences for sovereignty and the state of policing. The careful consideration that the Committee gave the Bill was, however, based not on any false fears about its consequences but on an understanding of the importance of international co-operation in fighting crime effectively, on an understanding of the importance of the provisions on extra-territorial jurisdiction in terrorist crime and on a wish to get the practicalities and the details right.

The approach that pervaded our consideration was based on that constructive principle. We asked how we could improve the Bill, and the areas that gave cause for concern included the issue of reciprocity and whether it was working effectively; the resources available to give meaning to the provisions, and I still have concerns about effective resourcing of our border control services and will wish to return to that issue; and the structure of our border controls, because too often they are the responsibility of different Departments and could be more effectively applied. The same applies to the National Criminal Intelligence Service, and it is unfortunate that the Schengen information system for the UK is called NSIS, which is pronounced in the same way as NCIS. That could cause great confusion and I wish that somebody had thought of that before developing the acronym.

Proper concerns were expressed about the integrity of our security systems and they have largely been addressed. Concern was also expressed about the resilience of the information bank, and we are still concerned about the amount of information that is held and whether it is sufficiently robust in its accuracy and about who has access to it. The Bill widens powers of the state that are essentially intrusive, so it is right that we have had repeated arguments about the proportionality of intrusion and the problems that it seeks to remedy, and whether the Bill is couched in terms that are legally appropriate.

We have made progress. By common consent, we have established a dialogue with the present Minister, whom I congratulate on taking up the reins of the Bill halfway through Committee and seeing it to a successful conclusion, and with her predecessor, the hon. Member for Coventry, North-East, for whom I have great respect. He contributed greatly to our proceedings. I also congratulate the Under-Secretary of State for Transport, the hon. Member for Plymouth, Devonport (Mr. Jamieson), about whom I was a little rude earlier, but whom we were happy to welcome to the Committee. I know that I get the hon. Member for Nottingham, East (Mr. Heppell) into terrible trouble by complimenting him on all occasions on the sensible way in which he provides support to our Committees, but it is appreciated and makes for better control of Government business than the alternative approach. I commend him for that. I also commend Conservative Front Benchers and my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael), who says that I claim responsibility for all his triumphs, although I cannot ever remember that happening. I am tempted to say that I normally try to dissociate myself from most of what he says, but that would be unfair. My hon. Friend has played a very useful role, and I am grateful to him—especially because, as I said on Second Reading, he has experience of serving these overseas processes. As far as I know, that makes him unique in the House. His level of expertise is therefore unmatched.

We have been well served by all the staff associated with the Bill. We will send back to the other place a Bill that has been marginally improved. I should have liked it to be improved more, but I recognise that it is nevertheless an extremely valuable Bill and that it will do a lot that is necessary when it comes to providing an effective basis for fighting crime internationally.

I commend the Bill to the House.

Question put and agreed to.

Bill accordingly read the Third time, and passed, with amendments.