Mr James Paice (South East Cambridgeshire, Conservative)

I beg to move amendment No. 1, in

clause 1, page 1, line 9, leave out

'country outside the United Kingdom'

and insert 'participating country'.

Mr Joe Benton (Bootle, Labour)

With this it will be convenient to discuss the following:

Amendment No. 116, in

clause 1, page 1, line 9, leave out

'country outside the United Kingdom'

and insert 'reciprocating country'.

Amendment No. 126, in

clause 13, page 8, line 25, leave out

'country outside the United Kingdom'

and insert 'reciprocating country'.

Amendment No. 127, in

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

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

Amendment No. 128, in

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

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

Amendment No. 129, in

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

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

(a) the Schengen Convention;

(b) the Mutual Legal Assistance Convention; and

(c) the 2001 Protocol.'.

Mr James Paice (South East Cambridgeshire, Conservative)

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

The amendment proposes leaving out the reference to

''a country outside the United Kingdom''

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

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

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

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

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

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

''a country outside the United Kingdom'',

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

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

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

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

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

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

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

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

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

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

''country outside the United Kingdom''

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

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

Mr David Heath (Somerton & Frome, Liberal Democrat)

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

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

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

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

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

Mr Nick Hawkins (Surrey Heath, Conservative)

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

Mr David Heath (Somerton & Frome, Liberal Democrat)

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

''(a) the Schengen Convention;

(b) the Mutual Legal Assistance Convention; and

(c) the 2001 Protocol'',

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

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

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

''(a) the Schengen Convention;

(b) the Mutual Legal Assistance Convention; and

(c) the 2001 Protocol'',

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

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

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

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

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

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

Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)

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

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

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

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

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

Mr James Paice (South East Cambridgeshire, Conservative)

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

Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)

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

Mr David Heath (Somerton & Frome, Liberal Democrat)

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

Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)

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

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

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

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

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

Mr Nick Hawkins (Surrey Heath, Conservative)

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

Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)

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

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

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

Mr David Heath (Somerton & Frome, Liberal Democrat)

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

Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)

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

Mr Nick Hawkins (Surrey Heath, Conservative)

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

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

Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)

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

Mr Nick Hawkins (Surrey Heath, Conservative)

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

Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)

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

Mr James Paice (South East Cambridgeshire, Conservative)

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

''to be served by post or''

directs

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

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

Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)

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

Mr Nick Hawkins (Surrey Heath, Conservative)

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

Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)

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

Mr David Heath (Somerton & Frome, Liberal Democrat)

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

Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)

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

Mr James Paice (South East Cambridgeshire, Conservative)

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

''a country outside the United Kingdom''.

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

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

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

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

Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)

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

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

Mr Nick Hawkins (Surrey Heath, Conservative)

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

Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)

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

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

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

Mr David Heath (Somerton & Frome, Liberal Democrat)

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

Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)

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

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

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

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

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

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

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

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

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

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

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

Mr James Paice (South East Cambridgeshire, Conservative)

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

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

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

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

Mr David Heath (Somerton & Frome, Liberal Democrat)

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

Mr James Paice (South East Cambridgeshire, Conservative)

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

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

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

Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)

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

Mr James Paice (South East Cambridgeshire, Conservative)

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

Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)

Formidable.

Mr James Paice (South East Cambridgeshire, Conservative)

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

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

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

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

Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)

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

Mr James Paice (South East Cambridgeshire, Conservative)

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

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

Amendment, by leave, withdrawn.

Mr James Paice (South East Cambridgeshire, Conservative)

I beg to move amendment No. 3, in

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

'(3A) The Secretary of State may by Order make regulations prescribing the circumstances in which a document is (or is not) to be deemed as having been served for the purposes of subsection (3).'.

Mr Joe Benton (Bootle, Labour)

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

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

Mr James Paice (South East Cambridgeshire, Conservative)

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

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

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

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

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

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

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

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

Mr Bill Wiggin (Leominster, Conservative)

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

Mr James Paice (South East Cambridgeshire, Conservative)

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

Mr Alistair Carmichael (Orkney & Shetland, Liberal Democrat)

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

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

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

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

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

Mr Nick Hawkins (Surrey Heath, Conservative)

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

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

Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)

I thank the hon. Members for Orkney and Shetland and for Surrey Heath for making my case for me. Amendment No. 3 would introduce a power to make regulations setting out when a document issued from an overseas authority is deemed to have been served on the recipient. We do not think that such a power is necessary. The hon. Member for South-East Cambridgeshire asked me how the process has been working under current legislation. Our assessment is that it has worked well since the 1990 Act came into power. The amendment is not appropriate, as what constitutes an effective service under clause 1 is ultimately, as the hon.

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

Clause 1 deals with documents issued by judicial authorities overseas. The law of the country in question, not that of the UK, will determine whether the document has been served. Issuing authorities may request a particular means of service. In practice, we expect most documents from EU countries to bypass entirely a central authority. The clause applies only where documents are not sent directly but via the Secretary of State. In those circumstances, the issuing state will request a particular form of service: either postal or, because of the requirements of the case, personal. Such proof of service as is obtained, whether a recorded delivery receipt or a receipt from the police, will be returned to the issuing authority, and it is for that authority to establish whether the form of service effected, and any proof of such service, constitutes effective service under its law.

The effect of amendment No. 8 would be to make personal service of process valid only if the person carrying out the service obtained a receipt signed by the person on whom it was served. Although the Government understand the reason for the amendment—to safeguard the rights of the recipient—we know from current practice that it would create unnecessary barriers to service of process.

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

Mr Nick Hawkins (Surrey Heath, Conservative)

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

Mr Bob Ainsworth (Parliamentary Under-Secretary, Home Office; Coventry North East, Labour)

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

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

Mr James Paice (South East Cambridgeshire, Conservative)

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

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

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

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

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.