Mr Nick Hawkins (Surrey Heath, Conservative)

I beg to move amendment No. 17, in

clause 7, page 5, line 14, at end insert—

'2(A) A request for assistance under this section shall include information on the procedures regarding the gathering and admissibility of evidence that apply in the part of the United Kingdom where it is proposed that the evidence shall be used, and in particular shall include details of the procedures under which evidence may lawfully be obtained for use in proceedings in that part.'.

I welcome you, Mr. Hurst, to the chairmanship of the Committee. You and I are veterans of the late night last night—I admired your patience in waiting to listen to the very last speech from the Labour Back Benches on Second Reading of the Courts Bill.

I shall deal with this clause briefly, not least because my noble Friend Baroness Anelay of St. Johns canvassed some of the issues in another place. On reading the debate of 13 Janauary 2003 in another place in Hansard, columns 35 to 38, I felt that the response to my noble Friend from the Attorney-General, for whom professionally I have enormous respect—I served on an inner cabinet, which is the general management committee of the Bar Council, when the present Attorney-General was chairman of the Bar—was not satisfactory.

Amendment No. 17 would insert new subsection 2(A), which requires there to be the inclusion of

''information on procedures regarding the gathering and admissibility of evidence''.

It is important to include that in the Bill because, as Baroness Anelay pointed out, different countries have different procedures and rules on admissibility. She made the further and particularly relevant point that our rules are about to change.

My hon. Friend the Member for South-East Cambridgeshire (Mr. Paice) and I are very much aware of the work of our hon. Friends the Members for Beaconsfield (Mr. Grieve) and for Woking (Mr. Malins), who lead for the Opposition on the Criminal Justice Bill. Over several weeks, they discussed the contents of that Bill in Committee, and one of the major changes that the Government want to introduce is a change to the way in which our rules of admissibility of evidence operate. The Government are changing many of the things that those of us who qualified as lawyers were taught in leading works, such as Professor Sir Rupert Cross's work on the law of evidence and other principles that have been regarded as the centrepiece of our law for 100 years since the Victorian reforms. In light of that, it is important that the Bill states a clear position, so that authorities of other countries are routinely informed by the UK of what rules will apply to the evidence gathered in those countries once it is in the UK and ready to be used in our investigative and judicial process.

The Attorney-General said that there was no international obligation for us to provide that information, and that there was no particular reason

to believe in any given case that the court that receives the request from abroad would need that information. He suggested that it would not be sufficiently familiar with existing procedures, and that it might be unable to obtain information about them if it was in doubt. However, admissibility of evidence and the way in which these matters will be dealt with are not minor technical points.

Mr. Ainsworth indicated assent.

Mr James Paice (South East Cambridgeshire, Conservative)

I am glad to see that the Minister acknowledges that that is the case. He always addresses these matters seriously, and I am sure that on this occasion he will do so again.

It would be tremendously helpful and important for the Bill to state a clear obligation. I am sure that the Attorney-General is right that we are not obliged to do that by any international agreements: I do not suggest that what he said in another place about that is inaccurate. However, the fact that something is not required by an international obligation does not mean that it would not be helpful. In this House, we have a duty to ensure that where there are changes to our arrangements, such as those that this law introduces, they take account of the best possible procedures that we could have.

The Bill should include something that clarifies the position, even if that is not required by any international obligations. I do not think that that will be an unnecessarily burdensome hurdle. This is an important matter, and I will listen with interest to what the Minister has to say, but I hope that he will understand the serious spirit in which I am putting this forward.

Mr. Ainsworth indicated assent.

Mr James Paice (South East Cambridgeshire, Conservative)

The Minister indicates his assent to that, for which I am grateful to him.

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

Amendment No. 17 would place an additional requirement on requesting authorities in the UK to provide information on procedures regarding the gathering and admissibility of evidence in the relevant part of the UK. The consequence of the amendment would be that requests could be rejected for not including such information. As the Attorney-General said in the other place, there is no international obligation on us to provide that information, and there is no particular reason to believe that in every case the authority receiving the request would need the information. Requesting authorities already provide that information where they consider it appropriate or where they need particular procedures to be used to make admissible what is received.

In the other place, the Attorney-General was not saying, ''Let us not do it because we have no obligation to do so.'' What he was trying to say—and what I am saying to the Committee now—is that we have no legal obligation but if we were to include that in the Bill we would provide another hurdle for prosecuting authorities to jump in order to get evidence from abroad. Where they think that that is appropriate, it is in their own interests to seek to say in what form it needs to be gathered for the purposes of

UK law, but we need the flexibility for things to continue to be dealt with on a case-by-case basis. The hon. Gentleman's amendment takes that away and makes it an obligation in every case, irrespective of whether it is necessary.

Mr Nick Hawkins (Surrey Heath, Conservative)

I am unsure whether I was correct in thinking that the Minister was coming to the end of his remarks, but I wanted to intervene on him to give him a chance to address this point. The Attorney-General said, on requesting authorities providing this information where they consider it to be appropriate:

''in many cases, good practice may indicate that they would do so.''—[Official Report, House of Lords, 13 January 2003; Vol. 643, c. GC37.]

If even the Attorney-General, after having stated his main objection that we have no international obligation, went on to say that about good practice, would it not be a good idea to have that good practice—which even the Attorney-General thinks is good practice—in the Bill?

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

I agree, of course, that good practice should be followed, and that prosecutors will seek to follow good practice in the issuing of the requests. However, we have no international obligation to do so, first, because that is a fact and, secondly, because if we put such matters in the Bill, a warrant may be received stating that the request is turned down if those circumstances are not met. In each request, it will not be necessary to give detailed explanations of the admissibility of evidence and the way in which it is considered allowable under English law. There will be cases when it is. Good practice should be followed, but flexibility should be allowed. We do not want requests to be turned down without good reason.

Mr Nick Hawkins (Surrey Heath, Conservative)

The Committee will realise that I am not entirely persuaded either by what the Attorney-General said in another place or by what the Minister said this afternoon. I hope that the hon. Gentleman will continue to consider matters in light of the Attorney-General's concession to my noble Friend, the Baroness Anelay of St. Johns, in another place that good practice may dictate that such practice should usually happen. I hope that the Minister and his officials will reflect that such a provision could be included in the Bill. I know that he is reasonable and will consider matters further on Report and, who knows, we may yet win the battle if the Government tabled an amendment later in our proceedings. However, 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. 121, in

clause 7, page 5, leave out line 32 and insert—

' ''Designated prosecuting authority'' means:

(i) the Attorney General;

(ii) the Director of Public Prosecutions;

(iii) the Director of the Serious Fraud Office;

(iv) the Commissioners of Customs and Excise;

(v) the Secretary of State for Trade and Industry;

(vi) the Attorney-General for Northern Ireland;

(vii) the Director of Public Prosecutions for Northern Ireland; and

(viii) any other prosecuting authority designated by an order made by the Secretary of State.'' '.

I dislike unnecessary secondary legislation. I dislike statutory instruments that we do not need to consider. I dislike orders being made by Ministers, when there is no need for them to do so. I may not have defined the group of prosecuting authorities correctly in the amendment; the Minister may have others in mind that I have omitted. Primary legislation can properly set out the so-called designated prosecuting authorities and avoid further secondary legislation, as that will only list exactly the same group of authorities or bodies that are in the amendment.

I wondered whether the same principle might apply to Scotland, but I am reliably informed by my hon. Friend the Member for Orkney and Shetland, who knows about such matters, that in Scotland, invariably the practice is that whatever the prosecuting authority, the matter goes through the Lord Advocate or a procurator fiscal, so the same considerations do not apply to subsection (6).

The amendment defines a list for England, Wales and Northern Ireland. I hope that I have it right; if I have omitted a body, the Minister can tell me. [Interruption.] The hon. Member for North Down is about to say that I have made an obvious omission in the case of Northern Ireland.

Lady Lady Hermon (North Down, UUP)

I was not about to say that the hon. Gentleman had made a notable omission. There has, in fact, been a change, courtesy of the Justice (Northern Ireland) Act 2002, whereby we will no longer have a Director of Public Prosecutions for Northern Ireland. In fact, we will have a prosecution service for Northern Ireland, which will be known as the Public Prosecution Service for Northern Ireland—the PPSNI. That is not to be confused with the PSNI, which is the Police Service for Northern Ireland.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I am grateful to the hon. Lady. I say in my defence that I had not spotted that distinction, nor had the Attorney-General in another place. News about what will happen in Northern Ireland obviously takes some time to travel to the English legal establishment. I accept therefore that my list is incorrect and will need to be amended. It is the principle with which I want the Minister to agree. What is the point of having secondary legislation, if something can be put properly into a Bill, avoiding the use of a great deal of extra paper? If his argument is that it would have to be amended regularly, I must say that new prosecuting authorities do not emerge like mushrooms overnight. A new prosecuting authority being designated for this purpose would be a fairly infrequent occurrence. In any case, the secondary legislation would have to be amended. I cannot imagine under what circumstances, other than a change of nomenclature, a prosecuting authority that had the powers would not have to be set up by primary legislation. The relevant amendment to the clause could be made to add that to the list. Will the Minister explain why we must have secondary legislation to

produce a relatively brief list that is fairly confined in scope?

Mr Nick Hawkins (Surrey Heath, Conservative)

I shall be brief.

I understand where the hon. Gentleman is coming from, with the helpful correction made by the hon. Lady. I had no problem with his amendment No. 121 until I came to sub-paragraph (viii). I agree that it would be a good thing to have a list in the Bill. However, I cannot understand why, if we are making a list, we would not want a complete list including the amendments suggested by the hon. Lady to ensure that we did not have any regulation or order-making power for the Secretary of State. Perhaps the hon. Gentleman might consider that as an even more helpful modification.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I put in sub-paragraph (viii) as a kind of get-out-of-jail-free card, in case I omitted something and so that the Minister would not tell me that it was obvious that in six months he would have to include it because I did not. I agree with the hon. Gentleman that sub-paragraph (viii) should not be used. The list should be complete, but if it is not complete there would be the alternatives of having something that would definitely need secondary legislation, or something that might need secondary legislation if the Government thought up a new wheeze. I would prefer the latter to the former.

Mr Nick Hawkins (Surrey Heath, Conservative)

As I anticipated, the hon. Gentleman and I are arguing from a similar perspective. Both of us would prefer there to be a complete list in the Bill. I understand his temptation to include a get-out-of-jail-free card. I am, however, concerned that we should not allow more order-making powers for the Secretary of State. I want to ensure that such matters are as clearas possible in the Bill. That is normally the position of the hon. Members for Somerton and Frome and for Orkney and Shetland. They do not like Henry VIII-type clauses—those that fall to further order-making powers and secondary legislation—any more than we do. I support in general terms what the hon. Member for Somerton and Frome is up to, but I hope that the Government will see sense and get rid not only of their original version, but also sub-paragraph (viii) and give us a complete, exhaustive list, taking into account the views of the hon. Member for North Down.

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

I am enormously grateful to the hon. Member for Surrey Heath (Mr. Hawkins) for flushing out the intentions of the hon. Member for Somerton and Frome, who was pretending that the purpose of his amendment was merely to save parliamentary time. The hon. Member for Surrey Heath has managed to ascertain that that is not correct and that the hon. Member for Somerton and Frome is trying to be more restrictive.

Under the 1990 Act, the designation of prosecuting authorities was to be done by statutory instrument. We see no reason to change that arrangement. The existing designations for England, Wales and Northern Ireland will remain in place. The concerns of the hon. Member for Somerton and Frome about our unnecessarily wasting parliamentary time are ill-founded. His noble aims are already covered.

I shall make the hon. Gentleman aware of a little-known piece of legislation. Section 17(2)(b) of the Interpretation Act 1978 provides that statutory instruments made under a provision that has been re-enacted would continue to have effect if they could be made under the re-enacted provision. The hon. Gentleman's concerns about wasting parliamentary time is not a problem; we will not have to go upstairs and put exactly the same list that is contained in his amendment through a statutory instrument. That will be automatically designated under the 1978 Act.

Lady Lady Hermon (North Down, UUP)

The Interpretation Act was enacted some years ago and the designation of the authorities is some 13 years old. Perhaps the Minister will ensure that in the designations referring to Northern Ireland, references to the Director of Public Prosecutions are removed and replaced with references to the Public Prosecution Service for Northern Ireland.

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

I turn to the other argument. Of course, there is a need to check that the designations are appropriate and up to date. From time to time, it may be necessary to change the list, but we believe that secondary legislation will be required for that purpose.

It may be argued by the hon. Member for Somerton and Frome that there may be more clarity if we put the original list in the Bill, but in all fairness that is not the case. If changes were made, we would wind up with two separate lists—a list that arises from the additions that we make by secondary legislation and a list of designations under the amendment.

The hon. Gentleman is not saving us parliamentary time, which he tried to suggest was his main motive. It is appropriate that we make the designations. There may be more for me to make—for instance, the Financial Services Authority has prosecuting powers and may be needed. Therefore, it is far more appropriate and flexible that that issue be dealt with by secondary legislation. I ask the hon. Gentleman to accept that.

Mr David Heath (Somerton & Frome, Liberal Democrat)

My motives have been impugned without an alternative motive being adduced. I am not sure what the Minister considered that I was trying to do, other than to avoid the use of a statutory instrument. However, I am grateful to him for his assertion that the Interpretation Act will have effect. It is not a simple re-enactment and I do not know what flexibility there is within the Act for re-enactments. Even the guidance notes say that it develops and expands on section 3 of the 1990 Act. I anticipate that the Interpretation Act requires a law to be substantially the same as the law that it replaces, for the interpretation to work in the way in which the hon. Gentleman suggests. Obviously the hon. Gentleman has taken advice and that that is the case.

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

The designations are required to be the same. As I said, it may be that the designations need to be added to, in which case that will be done by statutory instrument. There is no added value in having part of the list under the Bill and the other part in a statutory instrument. The designations cannot be varied. They will have to be implemented by secondary legislation through statutory instrument.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I understand that, but the designation was originally for the purposes of the previous enactment. The purpose under discussion is not identical, although it is related. I am trying to ascertain whether that is allowed for without the re-issue that the hon. Gentleman mentions. He said that he can deal with it in that way. Clearly it will have to be changed for the benefit of the change in the Northern Ireland legislation. He suggested that there may be future issues in response to the changes in financial regulatory systems. I still think that primary legislation is the best place for such matters, but I understand the argument advanced by the hon. Gentleman, and I do not want to waste parliamentary time. I 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 want to raise one brief point, Mr. Hurst. The Minister will be aware that we tabled amendment No. 18, which was subsequently withdrawn. Although we withdrew the amendment, so that it does not appear on today's amendment paper, there is a general point arising from the issue, which I think it would be relevant to raise now.

We were concerned—the Minister will be aware that the matter was debated in another place on 13 January—that subsection (7) is limited only to requests made under the 2001 protocol on information on banking transactions. We withdrew the amendment because it was explained by the Attorney-General in another place

specifically why the limitation on banking needed to exist in light of experience from previous legislation. As I mentioned when Mr. Benton was chairing the Committee this morning, I have a background as a banking lawyer, and in banking law it is particularly important to state the grounds on which the evidence is considered relevant. For the record, will the Minister say whether it would be good practice to state the reason for the request on every request? I understand what the Attorney-General said in another place, but we are talking about what is good practice so it might be helpful for the Minister to say on record that wherever possible the grounds for request should be stated openly and that that provision should not merely be restricted to banking cases.

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

The hon. Gentleman appears to be asking for a far more restrictive arrangement for all of the requests for assistance. He wants the same arrangement that applies for banking assistance under clause 7(7).

Clause 7(7) relates to requests

''made in reliance on Article 2 of the 2001 Protocol''

of MLAC. Such requests must, in addition to other material,

''state the grounds on which the person making the request considers the evidence specified in it to be relevant for the purposes of the investigation.''

The statement of those grounds is not necessary for the other requests under the clause. The hon. Gentleman

appears to want us to implement a set of requirements that would put a burden on the prosecuting authorities in this country—they would have to spell out the grounds in every case—but that would be restrictive and would certainly go beyond current legislation and all of our convention obligations. It would prevent us from seeking assistance in many cases where we are able to do so currently.

Mr Nick Hawkins (Surrey Heath, Conservative)

I hope that I made it clear that I was not suggesting, as we did in another place, that we include that in the Bill. I understand what the Attorney-General said, but it would be helpful if the Minister were able to say that, in addition to the strict international obligations on the new arrangements for banking transactions, it is good practice in cases that go wider than banking for reasons for requests to be stated wherever possible. We do not have to introduce the burdensome restrictions that the Attorney-General was concerned about in responding to my noble Friend Baroness Anelay of St. Johns, but knowing that it is good practice to state the reasons will be helpful guidance to the courts.

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

With that clarification, I am more than happy to consider whether it is practical to introduce that obligation in that it does not impose unnecessary burdens. I do not want to impose burdens, such as having to state the details of the grounds on which the assistance is being sought, that could prevent us seeking assistance in cases where we ought to be able to do so.

Mr Nick Hawkins (Surrey Heath, Conservative)

I am content with what the Minister has helpfully said. I do not want to pursue the matter further.

Question put and agreed to.

Clause 7 ordered to stand part of the Bill.