Clause 1 - Service of overseas process
Crime (International Co-operation) Bill [Lords]
9:15 am
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.''