Mr David Heath (Somerton & Frome, Liberal Democrat)

I beg to move amendment No. 118, in

clause 4, page 3, line 23, leave out from 'Kingdom' to end of line 24 and insert

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

Mr David Heath (Somerton & Frome, Liberal Democrat)

The amendment deals with the vagueness in the wording of clause 4(1), which reads:

''Process to which section 3 applies may, instead of being served by post, be served on a person outside the United Kingdom in accordance with arrangements made by the Secretary of State.''

In terms of legal process, that is extraordinarily vague, but I think that it is that way for a purpose, and there may be many circumstances in other countries that cannot reasonably be anticipated. However, the rules governing service of process in the UK are clearly set out in rules of court, and one would expect, if not the same rules of court to apply, then at very least that the Secretary of State would consider that the broad categories of alternatives that might be permissible within the legal system should be set out in the rules of court. Otherwise, we are effectively throwing away both legal control and, through the fact that the issue is a matter for resolution of the House of Commons, democratic control of the process. Perhaps ''process'' comes into these debates too often, and in too many different senses; we are talking about the process of process, or the way in which process is served.

There must be some ground rules to ensure compatibility with human rights legislation—that was mentioned by the hon. Member for North Down (Lady Hermon)—and many other things if we are to avoid challenge. That is not because there is no obligation to comply; clearly, the matter is not open to challenge in the first instance. However, once someone has come back to this country as a result of process being served, and has possibly had further processes served on him or her as a result, or has received a requirement to appear in court in the United Kingdom, the issue of whether that process was acceptable might be open to challenge, if there were no rules to govern it.

Lady Lady Hermon (North Down, UUP)

To help the hon. Gentleman with the point he is making, he will, I am sure, know that 13 years ago under the Criminal Justice (International Co-operation) Act 1990, which he mentioned this morning, the words

''in accordance with arrangements made by the Secretary of State''

appear. Could the hon. Gentleman inquire of the Minister what arrangements were made by the Secretary of State to serve process during those 13 years?

Mr David Heath (Somerton & Frome, Liberal Democrat)

That is a helpful suggestion, but I am sure that the Minister will tell us is that no problems have ensued. That will often be the case; the previous legislation has not created a great number of legal problems. I am happy that that is so, but that does not reduce our requirement, in giving the Bill proper scrutiny, to consider the matter, including whether the provisions might cause a possibility of challenge in future. If there are ways of avoiding that challenge, it is sensible for us to use them and to adopt a different

wording, if appropriate. Perhaps the Minister could satisfy the hon. Lady on that point, and say what arrangements have been used, whether they would have been in accordance with rules of court had they been applied, and how often those exceptional circumstances arise. At the very least, the Minister could give a few examples for the benefit of the Committee.

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

Welcome to the Chair, Mr. Hurst. You have arrived at what might be a rather unfortunate time. This is certainly one of the most exciting Bills that we have had to deal with.

The amendment is not acceptable. It would require documents, when not served by post, to be served in accordance with rules of court rather than with arrangements made by the Secretary of State. Specifying arrangements in statute, whether in rules of court or in any other form, has the potential to cause problems. Not specifying them has the advantage of flexibility, which it is important to retain, because different arrangements might be suitable in different circumstances.

Documents destined for countries not designated as participating countries for the purposes of the clause will be sent to the Secretary of State, who will send them to the central authority in another country, which will serve them on the recipient. There may also be other arrangements. For instance, in the case of EU-bound documents, the issuing authority will send them to the overseas central authority for onward transmission, either by post or personal service, depending on its particular requirements. Alternatively, the issuing authority might send the documents to the Secretary of State, who will send them on to the overseas central authority, again for onward transmission from that authority either by post or personal service.

There will inevitably be occasions on which an issuing authority will send documents to the Secretary of State in error when direct service would have been the correct route. We intend that in those circumstances, the Secretary of State will simply forward the documents directly to the recipient overseas. We would not want a situation where a statutory provision required him to send the documents back to the issuing authority because they had been sent to him incorrectly, when the simple and far more sensible solution would be for him to forward them himself. To set out such an option in statute, however, risks giving the impression to issuing authorities that it is acceptable to send all documents to the Secretary of State, as he will do the work of routing documents overseas for them. That will encourage issuing authorities not to bother using the correct procedure, which is undesirable.

We will need to issue updated guidelines for this clause and the rest of part 1, advising authorities on how to send procedural documents overseas. Guidelines are attached to existing legislation, but changes have been made so they will need to be updated. Guidance will therefore be provided on how people should perform their duties. To enshrine that

methodology in statute, however, would lead to unnecessary inflexibility in the issuing of process.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I thank the Minister for his comments, although many of them seemed to address an issue that I did not raise: whether the clause should stand part. I did not question whether the clause should stand part; I simply suggested that rather than having the wishy-washy phrase of

''arrangements made by the Secretary of State'',

that should be incorporated into the rules of court. That is hardly a radical suggestion, as it already exists for the serving of process in this country. I accept that there needs to be greater flexibility when dealing with overseas countries, but it is not acceptable for something to be stuck on a tree at the end of the road rather than sent by post. That would not be an acceptable serving of process. I would have hoped for some minimal standards that it is incumbent on the Secretary of State and others to meet in the service of process.

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

If we do not do that in guidance, how does the hon. Gentleman expect us to have the flexibility that he acknowledges is needed when dealing with authorities abroad?

Mr David Heath (Somerton & Frome, Liberal Democrat)

Rules of court could easily lay out basic issues about the way in which process could be served.

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

In guidance?

Mr David Heath (Somerton & Frome, Liberal Democrat)

Yes. The Minister can write the guidance. If he can do that, why cannot that be incorporated in rules of court? I genuinely do not understand what the Minister's problem is with this, although I do not propose to press the amendment to a Division. If the Minister intends to write guidance, why should that be different in kind from the circumstances that would apply within the United Kingdom, and why should it therefore not be set out in rules of court—in general terms, because extra flexibility is needed for serving a process overseas, but with basic caveats that ensure that no one is disadvantaged legally as a consequence?

The Minister has not responded to the point raised by the hon. Member for North Down. That is unsatisfactory. The civil service could have provided better substance to the Minister's remarks on this amendment. He did not address the issue that I raised either. It cannot have been a surprise that I raised it, because it was already addressed in another place in Committee, with an equally unsatisfactory conclusion.

I do not intend to proceed with this matter now, but I may have to return to it at a later stage, unless we get a more satisfactory response in the meantime. 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. 12, in

clause 4, page 3, line 31, leave out

'there are good reasons for thinking'

and insert

'the Secretary of State is satisfied'.

Mr Alan Hurst (Braintree, Labour)

With this it will be convenient to discuss amendment No. 13, in

clause 4, page 3, line 32, leave out 'or is inappropriate'.

Mr James Paice (South East Cambridgeshire, Conservative)

Moving on a little from the previous amendment that the hon. Member for Somerton and Frome spoke to, these two amendments address subsection (3)(c). The first of them addresses the phrase, ''good reasons for thinking''. We had a debate this morning about odd language that seems to be creeping into legislation. I am not against the modernisation of legislative language, but some of it seems incredibly woolly. To state that one of the conditions that prevents service by post is

''that there are good reasons for thinking that service by post will not be effective or is inappropriate''

begs this question: who thinks they are good reasons? What is the lodestar by which these reasons will be judged?

If we are to have arrangements laid down by the Secretary of State—as the Minister has persuaded the Committee, at least at the moment—we should adopt the same type of language that is used everywhere else in legislation and state that

''the Secretary of State is satisfied''

that service by post will not be affected. That does not mean that the Secretary of State will have to deliberate on every case. We all know that the phrase ''the Secretary of State'' also refers to his appointees and senior officials. However, that statement would be more precise than the woolly,

''there are good reasons for thinking that service by post''

is ineffective.

In the other place, there was a debate on another Home Office Bill, now the Nationality, Immigration and Asylum Act 2002, in which the word ''thinks'' was originally included. There was a long discussion about that, which resulted in the Government conceding by getting rid of that word and replacing it with ''satisfied that''—believe it or not. That is much more acceptable.

I hope that the Minister will look at this again, and accept the precedent that has been set in the other place on that legislation, as

''there are good reasons for thinking''

is a nebulous concept. That should be rephrased to state that

''the Secretary of State is satisfied that''

service by post would be ineffective. That is a clear, precise statement and gives someone the responsibility for making the decision.

Amendment No. 13 is a probing amendment that would change the next line in the clause. Perhaps the Minister could tell us what difference there is between something that is not effective and something that is inappropriate, at least in the context of serving of process, about which we are talking. As we have said earlier on other groups of amendments, all Committee members are interested in ensuring that a British process from a British court is served properly. There will be occasions on which it is not possible to serve a process by post, for various reasons including the reason given in subsection (3)(a),

''that the correct address of the person is unknown''.

According to subsection (1), the Secretary of State will lay down arrangements for dealing with that. There must be good reasons for the Secretary of State to be satisfied that service by post will not be effective. That is what matters. We are concerned about whether the service is effective and whether the person on whom the process or document is to be served actually receives it.

Mr Peter Kilfoyle (Liverpool, Walton, Labour)

I am quite taken by the words ''good reasons''. Does the hon. Gentleman think that those words would provide a charter for lawyers to raise objections to the delivery of the process? Presumably, that could be challenged in the courts.

Mr James Paice (South East Cambridgeshire, Conservative)

I suspect that the hon. Gentleman is correct. That is why I prefer the words,

''the Secretary of State is satisfied'',

which is the conventional phrase in such situations. The proposed legislation is full of that and the hon. Gentleman will recognise that that is a more precise statement. The words ''good reasons'' would be wide open to challenge and would be a charter for lawyers to exploit.

Similarly, who would decide whether something was inappropriate? The current form of words adds nothing to the clause and it opens up the opportunity for weakness and vagueness. What matters is that service is effective. That is covered in the subsection and I challenge the Minister to explain what the words ''or is inappropriate'' add to the effectiveness of service.

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

On amendment No. 12, the Secretary of State will not make the decision about whether a document should be served other than by post. The person requesting the process to be served—the prosecuting authority, for example—will assess whether there are good reasons why service by post would not be effective or appropriate at the time that the process is issued. A prosecuting authority might consider that direct service would be ineffective if it believed that the recipient would refuse to sign for a letter sent by a recorded delivery postal service.

On amendment No. 13, service by post might be considered inappropriate in cases where confirmation of service is a necessary procedural step in some proceedings. For example, if a document were a summons served on a defendant, personal service would prove that they were aware of the proceedings. In some circumstances that proof may enable the proceedings to commence.

The wording in subsection (3)(c) follows that of article 5(2)(d) of the mutual legal assistance convention. That puts the decision-making process about whether the postal service would be ineffective or inappropriate firmly with the requesting state. Ultimately, it is up to the issuing authority to use its discretion.

It is not the Secretary of State who will decide whether in a particular case the postal service is effective, but the person who makes the application.

Mr James Paice (South East Cambridgeshire, Conservative)

If that is so, what arrangements will the Minister make under subsection (1)? It seems that

under the provision either the Secretary of State is making arrangements for delivery mechanisms other than by post or it will be up to someone else. I cannot see why the Secretary of State is making those arrangements, only for someone else to act differently.

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

That is the guidance that will need to be updated to cover the methods that will be used in the case of service for people overseas. The Secretary of State will not involve himself in individual cases. Guidance will be available, and arrangements and facilities will be put in place, but the decision about what is appropriate in each case will be governed by knowledge of the case and the requirement that comes back. As I have said, if it is a summons, personal service will be necessary. It will not be the Secretary of State who will make that decision, but the prosecuting authority that is seeking to use the information in court when it comes back to this country.

Mr Peter Kilfoyle (Liverpool, Walton, Labour)

I am fascinated by what my hon. Friend has been saying. I shall take the example used earlier of Nigeria. Will he tell a simple-minded soul, such as myself, if Nigerians wanted a summons to be delivered in the United Kingdom, would they be the authority that determined how it was delivered in this country? Would they be making the decision that we would then be obliged to follow up?

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

The country overseas will request service in a manner that supports the way in which it wants to use the information in the court. If it is a summons, it will need to convince the court that something was received. It would be no use delivering it by post if it believed that receipt would be denied. Unless there are good reasons why we should refuse, we need to try to comply with requests from countries abroad; otherwise, the information that is received will not be in usable form. As I have said, that does not prove an obligation on people in UK law in any way.

The reverse also applies: we will need to request information in a way that will be usable in our courts. Therefore, it will be for the prosecuting authority in our country to decide whether service by post is appropriate. It will not be for the Secretary of State to decide in each case whether that is the most appropriate method and whether it would be effective. The onus is on the people who are making the application.

Mr James Paice (South East Cambridgeshire, Conservative)

The Minister has explained clearly that amendment No. 12 is inappropriate because of the different responsibilities of the Secretary of State, as opposed to the court. I give him credit for convincing me on that point, but I am less convinced about the issue of inappropriateness. He argues that the post might not work because a signed receipt of a summons is needed; I should have thought that that was well covered by the phrase ''not effective'', as service would not be effective if receipt was not achieved. Nevertheless, I accept that the Minister has brought back the argument of what is already enshrined in the convention, so I will not pursue that at length. I am grateful for his explanation. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 ordered to stand part of the Bill.