Mr Nick Hawkins (Surrey Heath, Conservative)

I beg to move amendment No. 21, in

clause 9, page 6, line 33, leave out 'allowed' and insert 'make provision for'.

Mr Alan Hurst (Braintree, Labour)

With this it will be convenient to discuss the following:

Amendment No. 22, in

clause 9, page 6, line 35, at end insert—

'(4A) The Lord Chancellor shall arrange for training in the law and procedure of such countries other than the United Kingdom as he considers appropriate to be given to judges and magistrates before they sit in proceedings where evidence is obtained pursuant to a request for assistance under section 7 is to be adduced.'.

Mr Nick Hawkins (Surrey Heath, Conservative)

That is what I call cutting it fine.

On amendment No. 21, we suggest that the words ''make provision for'' are better than the word ''allowed''. This is a small amendment, but I believe

that the debate in another place on 13 January, at columns GC43 and 44, is important and I look forward to the Minister's response.

Amendment No. 22 is important; we want it to be included in the Bill. Proposed new subsection (4A) would insert a requirement for the Lord Chancellor to arrange training for judges and magistrates in the law and procedure of countries other than the UK before they sit in relevant proceedings. That would be helpful. In another place on 13 January, at columns GC46 and 47, a comparison was made with the relevant provisions of the Nationality, Immigration and Asylum Act 2002. Although Lord Goldsmith, the Attorney-General, suggested that the amendment was not essential, it would be helpful if it were included in the Bill.

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

The hon. Gentleman may now sit down and get his breath back while he listens.

The amendments seek further clarification on the gathering and use of evidence obtained abroad. The Government cannot accept either of them. In explaining why, it might be helpful if I provide the Committee with further detail about the procedures involved and the use to which evidence obtained is put.

UK authorities may request that evidence be taken in the form of sworn testimony from a witness overseas. That evidence will generally be taken in accordance with the law of the requested country, although the UK may request the country to follow certain procedures if they are a necessary prerequisite for such evidence to be admissible. Ultimately, admissibility cannot be established until the evidence is presented to the court. Under the MLAC, EU countries will be under a general obligation to comply with requests for necessary formalities and procedures to be followed, provided that they are not contrary to fundamental principles of their law. That will help to ensure that the evidence is taken in a way that is useful to the UK.

Once the evidence has been obtained in the form of a sworn witness statement, the requesting authority will decide what further action to take. In some cases, it might ask whether the witness is willing to travel to give evidence at a trial, at which they could be cross-examined. In other cases, it might seek to admit a written statement as evidence. Admissibility is for the court to establish, having taken into account the matters in subsection (4), such as whether the person to be represented was present when the evidence was obtained.

Amendment No. 22 is inappropriate for inclusion in the Bill. Many aspects of the Bill, including the provisions under discussion, require the training of the judiciary as well as of other prosecutors. That aspect of the Bill is not new, however, and replicates section 3 of the 1990 Act. Evidence from overseas has been used successfully in domestic prosecutions since 1991 and the courts have been capable of making the necessary provisions. I would therefore argue that to include the requirement for training in the Bill is unnecessary and would arise in many other pieces of legislation, which is the reason not to include it. We

cannot prejudge what is admissible—the court will decide that at the end of the day. That rules out the hon. Gentleman's amendment. The training requirements should not be in the Bill.

Mr David Heath (Somerton & Frome, Liberal Democrat)

We, the Liberal Democrat members of the Committee, added our names to the amendments of the hon. Member for Surrey Heath. Although I understand what the Minister said about the matter being for the discretion of the court, the relevant subsection gives guidance to the courts on how they should apply that discretion in determining the admissibility of evidence. That is a critical element: the question is not only whether there is a general omission for parties in proceedings to be legally represented, but whether they have had the opportunity so to do. The court should necessarily consider that key issue, which should not be a delimiting factor, when determining whether a piece of evidence is admissible.

There are a limited number of occasions on which evidence obtained through the relevant mechanism will be admissible—it will be used largely for investigative purposes and not for probative purposes. I would have grave doubts about the admissibility of some types of evidence that might be adduced in court in the United Kingdom if obtained overseas. I am thinking, for instance of the changes that are currently under way through the Criminal Justice Bill concerning hearsay evidence. Multiple hearsay evidence obtained by witnesses abroad without corroboration seems somewhat remote from the concept of admissibility in the English court system, but there is no clear provision for excluding such evidence. The basic principle that it should be possible for someone to be legally represented and that the legal representative should have the opportunity to cross-examine on the basis of evidence to be used in court proceedings cannot be denied.

The hon. Member for Surrey Heath has a point in tabling the amendment, which is why we support it. With respect, I do not think that the Minister has quite answered the case, although that is a matter for the hon. Gentleman to pursue as the mover of the amendment.

Mr Nick Hawkins (Surrey Heath, Conservative)

I am grateful for the hon. Gentleman's support. Not only has the Minister not dealt effectively with the point today—unusually, because his is normally thorough—but the question that Baroness Anelay of St. Johns put to the Attorney-General in another place, to which I referred in moving the amendment, has not been answered. Perhaps I can repeat that question to see whether the Minister will remedy the omission of the Attorney-General. Baroness Anelay said:

''The provisions of the Bill replicate those of the 1990 Act. I hope that the Minister will be able to tell the Committee something of the experience of the United Kingdom authorities and the courts in relation to the admission of evidence obtained abroad in the absence of legal representation.''—[Official Report, House of Lords, 13 January 2003; Vol. 643, c. GC43.]

The Attorney-General did not really answer the point. He said, using very general wording for someone in his distinguished position:

''What is more, as matters stand at present, the strong likelihood is that the evidence that is obtained abroad will not be directly admissible in that form in any event. The evidence will be obtained, and if it is evidence that it is important to put to the defendant, the likelihood is that some way will have to be found of doing that. The most likely way is to try to get that person to give evidence in the United Kingdom or via the video link procedures mentioned in the Bill.''—[Official Report, House of Lords, 13 January 2003; Vol. 643, c. GC45.]

There are three ''likely's'' in that phrase. It is not really an answer to Baroness Anelay's request for specific examples of how the system has operated over the past 13 years. I realise that the Minister might not have that information here, but I hope that he will do us the courtesy of indicating, perhaps by intervening on me, that he will look into the matter. It was sensibly raised by Baroness Anelay in the House of Lords and was not answered, and it has not been answered by the Minister today. Perhaps he can do what he often does and write to the Committee to give us all the experience of the courts over the past 13 years. It is an important point.

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

The hon. Gentleman is right. I do not have with me evidence that suggests how individual cases have been handled during the 13 years since the enactment of the 1990 legislation. I have said that evidence must be presented to the court in a way that satisfies the court.

Sitting suspended for a Division in the House

On resuming—

Mr Alan Hurst (Braintree, Labour)

Order. We return to clause 9, amendment No. 21. Mr. Ainsworth was intervening. He may wish to extend that intervention.

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

I wish to satisfy the hon. Member for Surrey Heath that evidence would need to be in a form that would satisfy a court. There are various steps that could be taken if that was not the case, such as the use of video evidence, or persuading a person to give evidence. The hon. Gentleman seemed to be asking for evidence of how the regulation has worked over the last 13 years. I do not believe that we will be able to provide that. The evidence provided has been passed on to the prosecuting authorities and used in court cases, but has not been scored and analysed centrally. I will do what I can for the hon. Gentleman to see if there is any available evidence concerning the last 13 years. I do not think that there will be anything other than anecdotal evidence. Evidence has not been stored or analysed by the Home Office in order to come up with any analysis of how that evidence was provided, or whether it has always been provided in a satisfactory way. I will see whether there is anything, but I do not think that there will be.

Mr Nick Hawkins (Surrey Heath, Conservative)

I am grateful to the Minister for his lengthy intervention, which has enabled me to gather my thoughts. The Minister has tried to be helpful and will try to bring forward whatever he can find. We will look at that with interest when the Minister writes to us. However, at this stage, I do not seek to pursue the matter any further. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 ordered to stand part of the Bill.

At the very least, the amendment can only make explicit that which is implicit. If it is the Minister's view that it is not necessary, it is certainly not unnecessary to make it clear that compliance with human rights legislation is something on which courts should take a view in considering an application. Although courts may be aware of their responsibilities in that area, it does no harm whatever to remind them—and perhaps the magistrate considering an application to judicial authority—that that is one consideration that they must take into account before arriving at a decision on a specific application. These are both serious amendments. They would add to the understanding of the Bill, and I welcome any comments from the Minister.

Mr Nick Hawkins (Surrey Heath, Conservative)

I am pleased that the hon. Gentleman and the hon. Member for Orkney and Shetland have added their names to amendment No. 24. I shall return the compliment by saying that Conservative Members support the lead amendment, No. 123, and think it helpful to suggest that the word ''probative'' would add to the force of clause 10. It would then be much clearer that we are talking not merely about the vague word ''substantial'', but ''probative'', which has a technical meaning in the law of evidence.

I hope that the Minister can say that he entirely accepts the amendment. That would be a rare event, but he has done it once or twice regarding recent pieces of legislation. We are talking about a one-word amendment, and as is so often the case the shortest amendments can have the most beneficial effect. There is no doubt that this part of the Bill would be stronger and clearer if the clause read ''substantial probative value'', not merely ''substantial value''. It would then mean something. I agree with the hon. Member for Somerton and Frome that the current wording does not mean much.

I now turn to amendment No. 24. As the Minister is aware, it addresses an issue that was debated in another place, where Baroness Anelay of St. Johns tabled an amendment to similar effect. It is far clearer to have the word ''will'' rather than ''is likely to''. Surely it should be absolutely clear that the evidence ''will'' be admissible.

I shall refer to what was said in another place, not solely by Baroness Anelay, but by Lord Goodhart on behalf of the Liberal Democrats. He made important points in debating this amendment on 13 January, in column GC52. He said that he was not altogether happy with the use of the phrasing, ''domestic freezing order'' because it was rather confusing, and that it might appear to mean that an order is a domestic freezing order because it applies to evidence in this country. However, that is not what it does. As we know, a so-called domestic freezing order is one made by a court in the UK for the protection of evidence in another participating country. Lord Goodhart had a good point.

In response to the points raised by Baroness Anelay and Lord Goodhart, the Attorney-General said that the provisions mirrored the Police and Criminal Evidence Act 1984, as if that were a complete answer to the point. As I explained earlier, I have professional reasons for appreciating his professional skills but, with great respect to him, I do not believe that that is a sufficient answer. Just because something is appropriate for the Police and Criminal Evidence Act in this country, that does not mean that it is appropriate under the Bill.

The Police and Criminal Evidence Act applies to what happens in this country. We are talking about the courts in this country. The Act does not apply to what takes place overseas. Our amendment would make it clear that the evidence must be clearly admissible. If the word ''probative'', under the Liberal Democrat amendment No. 123, were added to the Bill, it would undoubtedly strengthen it. I do not have the same worries about amendment No. 124, although I understand where the hon. Member for Somerton and Frome is coming from. I will listen with interest to what the Minister says. If he cannot accede to amendment No. 24 today, I want him to think carefully about whether it would strengthen the Bill. I hope, with even greater force, that the Government will at least accept that ''probative'' would be a helpful addition. It cannot be said that it would weaken the Bill. It would merely be a clarification. The same would be true of amendment No. 24.

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

It is at moments like this that I feel deprived that I am not a lawyer. As the clause is drafted, it includes conditions for obtaining a freezing order for evidence that is situated abroad that are as similar as possible to the conditions for obtaining a domestic search warrant established under the Police and Criminal Evidence Act 1984. That contains a requirement of substantial value. Amendment No. 123 would introduce dissimilarities between the freezing order conditions and those in PACE. Although the hon. Gentleman may not accept my answer, we believe that there is good sense in keeping the provisions for domestic freezing orders in line with PACE. It could be problematic if we depart from such requirements without good reason.

Amendment No. 24 would require that the evidence be admissible in the United Kingdom, rather than likely to be admissible. The requirement that the evidence be likely to be admissible is contained for search warrants in the UK in PACE. Again, the Government do not consider that the conditions should be different simply because the evidence is situated abroad. They consider that, as with domestic investigation, it is sufficient that the evidence is likely to be admissible. The amendment would introduce an unnecessarily high requirement that would be difficult to prove to the court. At the stage of the making of an order, it will only be possible to ascertain that the material is likely to be admissible. Whether it is ultimately admitted will be a matter for the discretion of the court that deals with the case.

Amendment No. 124 would ensure that a freezing order could not be made if it was incompatible with the European convention on human rights. The

amendment is unnecessary because section 6(1) of the Human Rights Act 1998 imposes an obligation on the courts to comply with the convention rights. The Human Rights Act applies to all legislation and to include additional references to the European convention on human rights may imply that the provisions of the Act do not apply to a particular Bill or that the European convention on human rights always needs repetition in Bills if they are to take effect. That would be incorrect and clearly undesirable, and we are content that the provisions of the Bill are compatible with the ECHR. If, in a particular case, the court is not satisfied that the order would be ECHR compliant, it will not issue the order.

The hon. Member for Somerton and Frome sought to pray in aid the Joint Committee on Human Rights. He can read out a part of the submission of the Joint Committee, which says that certain ECHR rights are engaged in this part of the Bill. That is the normal language that is used when seeking to address such issues. However, he will know that the Joint Committee on Human Rights made representations, that we responded to them and that it was satisfied with the response. The response was public and accepted by the Joint Committee on Human Rights. It is not right for the hon. Gentleman to suggest, as he does, that in some way the Joint Committee is unhappy with the provisions of the Bill, when he knows that it accepted the response that was given.

Mr David Heath (Somerton & Frome, Liberal Democrat)

The hon. Gentleman is uncharacteristically over-sensitive today. I am not suggesting anything of the sort. The Joint Committee on Human Rights drew attention to such serious business and the best possible practice in drafting the Bill should be adhered to. He is no doubt about to tell me why it is necessary under clause 21 to do exactly what he says is not necessary under the clause.

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

I love it when people accuse me of being over-sensitive. It is not a weakness that I recognise in myself.

I turn to the issue that the hon. Gentleman raised about the overseas freezing orders under clause 21. We need to refer to convention rights, because it is mutual recognition and the court could breach its own duties if it automatically recognised an overseas order. Therefore, when considering whether we should recognise an overseas order, there needs to be a requirement on the court to consider convention rights. With domestic rights, we are talking about our courts and the decisions that they take will be compatible with the Human Rights Act 1998.

The hon. Gentleman also sought to argue that in some way—this is where I feel deprived of a legal qualification—''substantial'' was not substantial. The clause, as written, requires that the evidence is likely to be of substantial value. I think that the hon. Gentleman came close to saying that that was not a substantial level at which to set the bar. He suggests the word ''probative''. I do not know about that. He said himself that he was not sure that it added very much. I am prepared to reflect on whether it would add anything to the clause. My understanding of the meaning of probative—the dictionary meaning—is evidential. Therefore, he is effectively suggesting that

we say that the evidence must be or is likely to be of substantial evidential value.

Mr Nick Hawkins (Surrey Heath, Conservative)

I think that the word ''probative'' goes slightly further than that and the Minister has already helpfully said that he will reflect on the matter. It is not merely that it is of some evidential value, but it is of evidential value that helps to prove a case. That is the etymological origin of ''probative''—that it has some value towards proving the case.

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

But it is evidence. The hon. Gentleman is a refugee from the proceedings on the Proceeds of Crime Act 2002, as I am. We are not talking about confiscation for the purpose of depriving a criminal of his ill-gotten gains, but about the gathering of evidence. I will reflect on the matter. Obviously, there are legal minds that might have more—I was about to say twisted—understanding of ''probative'' than the ''Oxford English Dictionary'', but I am not certain that it would add anything. I think that we have set the clause at the right level. The evidence must be, or be likely to be, of substantial value.

As the hon. Gentleman accepted, the threshold has been taken seriously and set at an appropriately serious level. However, he asks us to move it a little higher. I am not sure whether that is desirable, but I will certainly reflect on the points that he makes.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I am grateful to the hon. Gentleman for what he has just said. If it is any comfort to him, I am not a lawyer either and I share some of his concerns about the use of language in a judicial context. However, I am aware, through long hours of Committee work, of the way in which the word ''probative'' is and has been used. Indeed, the concept of probative value is used in other legislation that is passing through the House at the moment. I hope that the hon. Gentleman will reflect on it.

The word ''substantial'' is one of those words that, we are told when we try to insert it in amendments, has no real meaning because it cannot be interpreted by the courts. With respect, what is good for the goose must be good for the gander. However, I am grateful to the hon. Gentleman for considering the matter further. On that basis, I am prepared to withdraw the amendment. With regard to the Human Rights Act 1998, I am still puzzling over the reason for its being referred to in clause 21, not clause 10.

Lady Lady Hermon (North Down, UUP)

I am very grateful to the hon. Gentleman for giving way. May I help him out of his puzzlement? On this occasion, the Minister is absolutely right. There is a distinction, because the opening words of the European convention oblige every signed-up member state, including the United Kingdom, to guarantee the convention rights within its own jurisdiction. Therefore, the UK has an obligation under the convention to ensure that, on clause 20 and overseas freezing orders, it is compatible with those rights. However, we are talking about domestic freezing orders in another jurisdiction, and the UK cannot be required to enforce the convention rights outside its own jurisdiction. That is the distinction.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I understand that entirely, but in each instance it is a court in the UK that considers whether the case that has been made to it is manifestly incompatible with convention rights. I understand that the initial request on one hand, or the implementation of the request on the other, will take place in a country beyond the UK's jurisdiction, so it is a matter for that country—which, as we know, is identified as a participating country in the context of the Bill, will come within Schengen and other protocols and will be a signatory to the European convention on human rights.

However, at the same time, there is a point of consideration, which in each instance is in a British court, either in transmitting the request from a British authority or implementing the request from an overseas authority. It is at that point that I want to be satisfied that the British court has regard, as we are by obligation required to have regard, to the human rights convention. Quite correctly, the Human Rights Act 1998 assigns that obligation, so I accept that this is a belt-and-braces exercise, but I still cannot accept entirely why the reference is there in one instance but not in the other. I would prefer it to be there in both, so that everyone could clearly see that it was a major consideration to be taken into account.

The Minister says that that measure is not necessary and he gets very sensitive, as I said, about why I should even suggest that it might be necessary. I am sorry, but I am trying, in my inept way, to improve the Bill. It seems that in this case the Minister does not accept that I am doing so. I will seek leave to withdraw the amendment, but I should be grateful for any further aper¢us that the Minister receives on the subject. We may want to return to it at a later stage in our consideration.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I beg to move amendment No. 125, in

clause 10, page 7, line 19, at end insert 'or customs officer'.

Mr Alan Hurst (Braintree, Labour)

With this it will be convenient to discuss the following:

Amendment No. 33, in

clause 16, page 10, line 15, after 'constable', insert 'or customs officer'.

Government amendment No. 87.

Mr David Heath (Somerton & Frome, Liberal Democrat)

This is a sudden rash of Customs officers. All three amendments would add exactly the same words, but to different places in the Bill. It is just pure luck that mine happens to be to the first clause under consideration, unlike the Conservatives' amendment No. 33, which would add the words ''or customs officer'' to clause 16, and Government amendment No. 87, which adds those words to clause 18.

I have a track record of success in this area. I added the words, ''and customs officers'' to the Criminal Justice Bill earlier in the year. Those words were included through a Government amendment, because the Home Office, in its wisdom, had forgotten its colleagues in Customs and Excise and needed to give powers to its officers as well as to Home Office police

forces. I ask the Minister to consider my words carefully before they are rejected.

I have considered clause 10 carefully and I know that the Minister is trying to replicate as far as possible the position on the Police and Criminal Evidence Act 1984, which is why the words in the clause are set out as they are. However, it is not quite the same, because Customs officers derive their powers from other legislation, but they may also carry out investigations that require evidence to be acquired from abroad. They may also require that evidence in the same way that a police constable does. If they wish to do that, it would be an unnecessary bureaucratic procedure if a Customs officer had to go to the appropriate police force and ask for a sworn constable, with the permission of his senior officer, to go and make the request to a justice of the peace.

I do not believe that Customs officers have any other means by which they could apply the novel procedure of a domestic freezing order other than by that mechanism. The Minister may tell me I am wrong and that there is already analogous legislation elsewhere, but I do not think that there is. There are two options. Either we do not want Customs officers to be able to continue their investigations in such a way, which is not the case in the context of domestic law and investigations, or we have forgotten to add them to the subsection.

I can think of more instances in which it is likely that Her Majesty's Customs and Excise, rather than the police, would be carrying out an investigation that includes evidential material from overseas. I ask the Government to consider seriously whether there are not circumstances in which Customs officers and Customs and Excise would need to use this power, which they could use to their advantage. If that is so, the words that I have suggested must be added to the clause to give that some validity.

Mr Nick Hawkins (Surrey Heath, Conservative)

I can be extremely brief because, as the hon. Gentleman rightly said, there are three amendments in the group: one from the Liberal Democrats, one from us and one from the Government. Those seek to introduce the words, ''customs officer'' to different parts of the Bill. I hope that the Minister will say, ''Let's have all three,'' because then we will be consistent throughout the Bill. However, I am sure he will bear in mind the hon. Gentleman's success in getting those words into the Criminal Justice Bill.

I do not need to add to that, but there is a serious point, too. We always recognise that the Customs and Excise is an important part of the law and order enforcement procedure in this country. Whenever Customs officers ought to be included among the categories dealing with such matters, it would be helpful if they could be included. If the Government forgot them by mistake in the Criminal Justice Bill, perhaps the Minister will tell us they forgot them in this Bill. Perhaps that is why the Government tabled their own amendment to clause 18. If they have forgotten and they need to insert those words in clause 18, why not insert them in clauses 10 and 16?

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

How do I persuade the Committee to insert my ''customs officer'' and not those of others hon. Members?

Mr Nick Hawkins (Surrey Heath, Conservative)

With difficulty.

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

We shall see.

Amendments Nos. 125 and 33 would extend to Customs officers the powers given to police officers under the Bill. Amendment No. 125 would give Customs officers the power to apply for a freezing order and amendment No. 33 would give them the same power as a police officer to apply for a search warrant or production order in relation to their activities as part of the joint investigation team. In both cases, the amendments are unnecessary, not because the powers are conferred elsewhere, as the hon. Member for Somerton and Frome suspected, but because they are given to Customs officers by dint of clause 27(1)(b). He will see that clause 27(1) refers only to England, Wales and Northern Ireland. Clause 27(1)(b) says

''For any function conferred on a constable under those sections to be exercisable instead in prescribed circumstances by a customs officer or a person acting under the direction of such an officer.''

So we are in error, but we are in error with regard to Scottish jurisdiction, not to that of England, Wales and Northern Ireland. I would ask the hon. Members for Somerton and Frome and for Surrey Heath to accept that the issue is the structure of the Bill and their reading of it, rather than an omission on our part.

Lady Lady Hermon (North Down, UUP)

There is a very serious point here. I do not agree exclusively with the amendments. The Minister has addressed the extension to Customs officers, which occurs later in the Bill. There is a problem in Northern Ireland with paramilitary smuggling from the Republic of Ireland into Northern Ireland and the whole of the United Kingdom. The Assets Recovery Agency—a wonderful agency that was set up in February—needs to be able to apply for freezing orders, because there is paramilitary property outside the jurisdiction of the United Kingdom, specifically in the Republic of Ireland. That extension would be very helpful.

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

I am trying to recall the extensive powers that we have given to both the Assets Recovery Agency's office in Northern Ireland and its main office in London to conduct investigations. The extension of those overseas would require treaty capacity and the preparedness of the overseas state to recognise the breadth of power that we have enacted in our legislation. Many authorities do not do that, although the authorities in the Republic of Ireland have been fairly forward thinking in terms of confiscation. I shall look into the issue that the hon. Lady raises, both because I recognise that there is a real problem and because we wish to develop a good working relationship between the Criminal Assets Bureau in Dublin and the new Assets Recovery Agency in Belfast and London so as to be effective against such problems. We want to ensure that there is no gap.

Let me return to the amendment. Customs officers can be given the power to apply for freezing orders and

to obtain search warrants and production orders in relation to international joint investigation teams in which they participate; there is no need to specify that power elsewhere as it is covered by clause 27(1)(b).

Amendment No. 87 is a Government amendment that relates only to the provisions in Scotland. Clause 18(1) provides that if a sheriff is satisfied that certain conditions are fulfilled, he has the power to grant a warrant authorising entry, search or seizure by any constable. Clause 18(2) provides that an application for such a warrant may be made only if it is in pursuance of a direction given under clause 13 or if an application is made at the request of an international joint investigating team. The investigating team may include constables and Customs officers, or it may comprise solely the latter. Clause 18(1) as drafted expressly provides that the authority for a search warrant can be issued only by a constable; that would cause difficulty should a team consist solely of Customs officers. I put it to the Committee that we are in error and need to correct the clause using my amendment, but that we do not need to do so in either of the other cases. I think, from the looks on hon. Members faces, that I have proven my case.

Mr David Heath (Somerton & Frome, Liberal Democrat)

The Minister has entirely proven his case. My only comment on this is that it was a slightly odd way of doing that, in terms of the drafting, because it seems unnecessary for the Treasury to have now to prescribe these powers by order, when it is clear that they are going to be necessary to Customs officers. We know that there will be instances where a Customs officer will wish to use the power under clause 10, which is to be exercised by a constable.

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

May I clarify the position?

The hon. Gentleman knows that we have got a devolved settlement in Scotland, and clause 27 applies only to England, Wales and Northern Ireland because it goes far wider than the point that we are making now. The Scottish Executive rightly plans to make provisions for some of the matters covered by clause 27. We are not able to cover the Scottish situation in the same way that we are covering the situation in England, Wales and Northern Ireland.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I understand the point about Scotland, and the need to make separate arrangements there. Even having heard the Minister's explanation and having now understood the way that the clauses in question interlock, it would be better to give the power ab initio to Customs officers and police officers on the same terms, because that will be necessary, and it is not sensible to have to require secondary legislation in order to extend that power at some stage in the future. We know that they will need that: why do we not just say so clearly in the Bill, rather than do it by secondary legislation?

The Minister has proved his case to me—and, I suspect, to the satisfaction of the hon. Member for Surrey Heath—and I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mr Nick Hawkins (Surrey Heath, Conservative)

I do not wish to detain the Committee for long, but I want to put on the record a couple of points that relate to the debate in another place to give the Minister the opportunity to respond. At this stage, I am perfectly happy for the Minister to write to me and other Committee members if he is not in a position to answer them this afternoon.

I may have missed something, but when I was reading clause 10(1)(a) I was slightly puzzled by the phrase ''a listed offence'', which does not seem to be otherwise defined in this part of the Bill. Can the Minister shed some light on that?

As for clause 10(1)(c), I wonder how the Government envisage that it is to be determined how a court could be satisfied that a request ''will be made''. If a request has been made, that is something that we know about, and evidence can be brought. However, it seemed to me that that looked to the future, and it is slightly peculiar to state:

''If it appears to a judicial authority . . . that a request . . . will be made''.

Perhaps the Minister can explain, if not today, then in a letter, the sort of circumstances in which a court might be satisfied that a request will be made. I am always a little unhappy about legislation that contains that sort of conditionality.

There was quite a debate in another place on 13 January—columns GC56 and 57—about whether these sorts of applications should always go to Crown courts and the High Court. I do not want to take up the Committee's time by re-running that argument, but it occurred to me that one thing that was not mentioned in another place was where one is applying for injunctions in civil cases to try to freeze assets. That is the sort of thing that the Minister and I debated when we talked about the proceeds of crime legislation last year. When I was practising at the Bar and trying to get these orders they were known as Mareva injunctions or Anton Piller orders. There have been some developments in the law since I practised in that field, but it seemed to me that, as was suggested in another place, these sort of applications would be more appropriately made to the High Court or at the least to a Crown court, and it might not be appropriate for them to go to lay justices. In another place, it was suggested that they might more normally be made to stipendiary magistrates, district judges or deputy district judges.

I have a worry. On the one hand the Government might seem to be providing an opportunity for the lay magistracy to be involved. On the other hand, they are saying that they do not anticipate such things going to the magistrates, but to professional stipendiary magistrates. I hope that the Minister can deal with some of these points, although I reiterate that I do not mind if he cannot deal with them today, because I do not wish to take up too much of the Committee's time.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I shall refer only briefly to the last point made by the hon. Gentleman about the debate that occurred in the other place on whether such applications should be made to a circuit judge rather

than a justice of the peace. I shall now ingratiate myself with you, Mr. Hurst, by saying that I have no problem with justices of the peace dealing with these issues, when they are of a level with section 8 of the Police and Criminal Evidence Act 1984, as is envisaged by clause 10. I believe that the Attorney-General gave a reply to that effect in another place. He suggested that there had been some confusion with the Mareva orders, and that the Law Society, which was exercised by this particular issue, had perhaps misinterpreted the Bill with regard to legally privileged material.

I accept entirely the Government's position on the matter, in that what they suggest specifically excludes, under clause 10(3)(d),

''items subject to legal privilege.''

However, that raises the question of what happens if the material concerned would normally fall within section 9 of the 1984 Act, because such applications would normally be made to a circuit judge rather than to a justice of the peace. Such a provision exists in PACE, but there does not appear to be an analogous provision in the Bill. Can the Minister tell us in what circumstances legally privileged material which was of substantial probative value in a domestic court proceeding would be held in another country? As I understand it, that is excluded from the provisions of the clause. Is that intentional on the part of the Government, and, if so, what is the rationale behind it? If it is not intentional, how can it be amended, and would the Government like to consider whether a further new clause would be needed to deal with that circumstance?

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

The clause provides for making domestic ''freezing orders'' to secure evidence overseas. It implements part of the framework decision on the execution of orders freezing property or evidence, enabling the UK to make freezing orders for the purpose of securing evidence. The framework decision is an instrument involving the concept of mutual recognition, rather than mutual legal assistance.

A domestic freezing order is an order made by a UK judicial authority for protecting evidence in a participating country pending a mutual legal assistance request for its transfer to the UK. The clause specifies the circumstances in which a judicial authority in the UK may make a freezing order.

The clause is necessary because there is currently no provision for UK authorities to issue domestic orders that will be recognised and enforced abroad. It is possible to make a mutual legal assistance request to obtain evidence, and that happens frequently. Currently, any such request would be considered and the evidence obtained in accordance with the requested country's laws and procedures, not in accordance with our laws and procedures, as mutual recognition would provide that they should be.

Freezing orders will, however, enable faster and more efficient co-operation to occur, in circumstances where it is necessary to freeze evidence quickly. For example, a UK police team investigating a UK-based armed robbery might obtain intelligence that the weapons used in the robbery were located abroad.

The UK police would be able to get a court order to search for the weapons at a specified location. The authorities abroad would be required to notify an initial decision on execution of an order as quickly as possible, and whenever practicable within 24 hours of receipt, as required by article 5 of the framework decision. In contrast to a request for mutual legal assistance, there are limited grounds on which such an order can be rejected in the receiving state, provided it meets the conditions specified in the framework decision. For example, it must be accompanied by a properly completed certificate and relate to relevant offences.

The hon. Gentleman was concerned about the list. The list is in the framework decision, which requires investigation of proceedings relating to listed offences. Member states are required to recognise a freezing order only if it relates to one of the offences listed in the framework decision. The offence is punishable in the issuing state by a maximum sentence of at least three years.

Mr Nick Hawkins (Surrey Heath, Conservative)

Will the Minister give way?

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

I give way. I know the road down which we are travelling.

Mr Nick Hawkins (Surrey Heath, Conservative)

I am sure that the Minister can anticipate me, but if the offence is listed in the framework directive, surely it should be in the Bill.

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

That is a similar debate to the one that we had during consideration of the Extradition Bill. It is well-trodden ground between us. The list is in the framework document. At the moment, I see no reason why it should be in the Bill. We did not include such a list in the Extradition Bill, and I do not see why we should define that treaty obligation in this Bill.

Mr David Heath (Somerton & Frome, Liberal Democrat)

A listed offence clearly must be defined, which it is in clause 28(5). Happily, we are therefore in accord.

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

The hon. Member for Surrey Heath will see a list of offences in clause 28.

The provision is not about freezing assets, but about evidence. The courts to be used must be the same courts that deal with requests for evidence. Those are orders for evidence, not for freezing assets or for asset recovery. The court that is making the request is the appropriate court.

The hon. Gentleman invites me to write to him in response to his other points, which I shall do to save the Committee's time.

Question put and agreed to.

Clause 10 ordered to stand part of the Bill.