Mr James Paice (South East Cambridgeshire, Conservative)

I beg to move amendment No. 4, in

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

Mr Joe Benton (Bootle, Labour)

With this it will be convenient to discuss the following:

Amendment No. 5, in

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

Amendment No. 6, in

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

Amendment No. 7, in

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

Amendment No. 117, in

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

Mr James Paice (South East Cambridgeshire, Conservative)

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

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

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

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

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

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

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

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

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

Mr Alistair Carmichael (Orkney & Shetland, Liberal Democrat)

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

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

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

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

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

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

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

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

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

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

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

Perfect.

Mr Alistair Carmichael (Orkney & Shetland, Liberal Democrat)

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

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

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

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

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

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

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

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

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

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

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

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

We see no reason why clause 2(3)(c) is any different. There is no reason why it should be read as not requiring a notice to be given to a defendant. The notice must be given to persons both where they

appear as a party to the proceedings and where they attend as a witness. That is because subsection (1) provides that subsections (2) and (3) apply to both parties and witnesses. A notice will always be given to a party to the proceedings as well as to a witness. That explains why subsection (1) refers to both a party to the proceedings and a witness—to ensure that the notice given under subsection (3) is given to both categories—whereas we need refer only to a witness in subsection (3) because when a defendant takes the stand, he will do so as a witness.

Mr Alistair Carmichael (Orkney & Shetland, Liberal Democrat)

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

My basic point is that if subsection (1) says

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

surely subsection (3) should also do so.

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

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

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

Mr Alistair Carmichael (Orkney & Shetland, Liberal Democrat)

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

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

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

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

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

Mr David Heath (Somerton & Frome, Liberal Democrat)

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

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

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

Two types of privilege afforded to defendants were mentioned in Grand Committee: the privilege against self-incrimination and spousal immunity. However, both are privileges afforded to the party as a witness. It is true that a party could not be compelled to give evidence, whereas a witness could, subject to the right not to incriminate themselves, but that is a privilege afforded to the party as a witness.

Similarly, for example, under section 80(4) of the Police and Criminal Evidence Act 1984, a spouse who is also charged in proceedings is not compellable. Again, this is a privilege afforded to the party as a witness. We have identified no rights and privileges that would be accorded to a party in addition to those that he would be accorded to a witness, and so we believe that the amendment is unnecessary.

The current drafting follows the 1990 Act. The notice given under section 1(4) of that Act covered the rights and privileges of a witness only, and we are following that approach. Clause 2 is different from the 1990 Act only in that it refers to a party to the proceedings, as opposed to a defendant. That is to cover the different Scottish nomenclatures of persons appearing before a Scottish court and the fact that some of the proceedings in question are not purely criminal. There is no difference in substance between the 1990 Act and the Bill.

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

Lady Lady Hermon (North Down, UUP)

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

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

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

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

Mr James Paice (South East Cambridgeshire, Conservative)

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

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

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

Lady Lady Hermon (North Down, UUP)

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

Mr James Paice (South East Cambridgeshire, Conservative)

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

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

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

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

Amendment, by leave, withdrawn.

Clause 2 ordered to stand part of the Bill.