Mr Nick Hawkins (Surrey Heath, Conservative)

I beg to move amendment No. 131, in

clause 13, page 8, line 17, leave out 'the territorial authority' and insert 'the UK Government'.

Mr Joe Benton (Bootle, Labour)

With this it will be convenient to discuss the following:

Amendment No. 132, in

clause 13, page 8, line 17, leave out second 'authority' and insert 'the Government'.

Amendment No. 130, in

clause 13, page 8, line 33, at end insert

'subject to the requirement that any modification to any such provisions or to the Treaty must be approved by both Houses of Parliament'.

Mr Nick Hawkins (Surrey Heath, Conservative)

Good morning, Mr. Benton. I welcome you back to the Chair. It is interesting that the massed ranks of the Opposition outnumber the slightly less massed ranks of the Government. I am now tempted to call for a Division, but I am reluctant to put the Government Whip under such pressure. He has been so co-operative, and I hope that he will continue to be so. I hope also that he will note that I am not taking advantage of our temporary superiority in numbers. I will store it up as a favour to be cashed in on a future occasion.

I shall refer briefly to what was said in another place on 23 January, when some pertinent remarks were made by my noble Friend Lord Carlisle of Bucklow, a distinguished former Minister in the days of the Conservative Government and a close personal friend. As always, being a distinguished and senior lawyer, Lord Carlisle alighted on some interesting points. When I first read the clause, I was puzzled about the phrase ''territorial authority''. I do not know whether members of the Committee have read clause 28(9), under which ''territorial authority'' is interpreted as the Secretary of State in England and Wales and the Lord Advocate in Scotland.

Unfortunately, the hon. Member for Orkney and Shetland (Mr. Carmichael) is not in Committee this morning, otherwise, as a distinguished Scottish lawyer himself, he could explain the role of the Lord Advocate. I do not propose to do so. I have no criticism to make of the Lord Advocate. I have picked up some Scots law in my time, but I am certainly not qualified in it.

I was worried that it would be only the Secretary of State who was regarded as the territorial authority in England and Wales. That is why we have suggested in the amendments that the United Kingdom Government be the territorial authority. There are strong rumours that the Government reshuffle will take place today, so it is particularly appropriate that we should be querying whether the territorial authority should be the Secretary of State alone or the entire UK Government. If the strong rumours in the press and the media over the past few days are true and that there will no longer be a Home Office and a Lord Chancellor's Department, but that a ministry of justice will be created, it makes it even more crucial to take into account what the Government may have in mind. No doubt the Minister is privy to at least some of what is being planned in the forthcoming reshuffle. I hope therefore that he might agree that it would be wise for the whole UK Government to be the territorial authority, not the Secretary of State.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I am a little puzzled by the hon. Gentleman's argument. Under statute, the Secretary of States means the entire Government, not an individual Secretary of States. The Bill refers to the relevant Secretary of State for the purposes of enactment.

Mr Nick Hawkins (Surrey Heath, Conservative)

That is what I wanted to tease out of the Minister. We need to be clear about what the Government have in mind. Territorial authority is a new concept. It does not appear in the preceding legislation. Clause 28(9) defines the territorial authority as the Secretary of State.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I believe that ''territorial authority'' has been used in legislation since devolution. It is not unknown to British subjects.

Mr Nick Hawkins (Surrey Heath, Conservative)

The hon. Gentleman is right that it has been used in more recent legislation since the devolution settlement, but it was not used at the time of the Criminal Justice (International Co-operation) Act 1990, which was in place pre-devolution. That is why I wanted to tease out such matters. As the hon. Gentleman understands, I am probing the Government, as well as teasing them and teasing them out.

Under amendment No. 130, any modifications to the treaties should go through both Houses of Parliament. There is great sensitivity at the moment about the way in which the proposed new European constitution arising from the European convention is being described differently by Ministers. One Secretary of State refers to it merely as a tidying-up exercise. That is certainly not how Conservative Members perceive it. We think that, in whatever form it finally takes, it will be one of the most substantial proposed changes to the British constitutional position ever contemplated. That is why we are concerned about it.

This part of the Bill covers what may happen in the event of modifications to the treaty of the European Union. That is not purely a theoretical possibility, but something that is being considered now. There are strong suggestions that the Italian Government, for example, want a new treaty of Rome. They are

determined to push through the changes in the new European constitution in their forthcoming European presidency so that any new constitution or treaty should be another treaty of Rome. In the light of the proposed changes, and if there are to be modifications to the treaty of the European Union, it is vital that they go through both Houses of Parliament.

On 23 January in another place, Lord Carlisle of Bucklow said:

''Clause 13 deals with requests from overseas for assistance by the courts in this country. Such requests must be received by the territorial authority for that part of the United Kingdom which is, by definition in Clause 28(9), the Secretary of State.''

He then drew the distinction between that and the previous clauses that we debated earlier, and said:

''under Clauses 7 and 8, if it is the other way round and the request comes from this country to another asking for its assistance in obtaining evidence, it can come directly from the judicial authority to the court in the country from which assistance is requested.''

My noble Friend therefore asked the reasonable question:

''Why must there be a system where a request from this country can go directly from the court to the court whereas a similar request from overseas cannot go directly to the court but to the Home Secretary who is required under Clause 15 to nominate a court to receive any such evidence?''

He wanted to find out why there was that difference. Lord Goldsmith, the Attorney-General said:

''At this end there are a number of different prosecuting authorities. The division between their jurisdiction is complex and based upon the type of crime involved. Therefore, it is much more difficult to identify who is necessarily the correct recipient for an incoming request.''

I shall not read the whole of what the Attorney-General said, but that is the basis of his reply. He went on:

''Territorial authority, a concept to which the noble Lord rightly draws attention, includes the devolved administrations. The territorial authority is the Secretary of State in England and Wales but is the Lord Advocate in Scotland. Enabling the request to be sent directly to the devolved administration will remove an unnecessary layer of bureaucracy. That geographical division is straightforward and easy to explain.''

We understand how the devolved settlement works, and I do not seek to unpick that; however, it would be much clearer if the clause referred to the UK Government, if there is a difference between the complexity of the courts in the one case and the simplicity of the requests going from court to court the other way round.

My noble Friend Lord Carlisle of Bucklow also raised his concern about the phrase ''administrative authority'', which appears in clause 1 but not in clause 13. He quoted from clause 13 and said:

''Is that intended to include the administrative authority whose requests we can deal with in the service of overseas process? Why are the words different in the two clauses?''

The Attorney-General replied:

''They are different concepts and different functions . . . It does not seem to me that it needs to be the same. In the different context of service of process as opposed to gathering of evidence, the provisions make sense.''

Lord Carlisle rightly said that he still found

''the difference between Clause 13 and Clause 7 surprising so far as concerns the receipt for the request for evidence. It is difficult to see how adding in an extra stage—namely, having to go to the territorial authority—will save time. If we have enough confidence in the system in Clause 7 that requests to countries can go direct from our courts to their courts, we should enable them to be able to send requests directly to our courts rather than going through the Secretary of State.''

The Attorney-General then said that clause 8

''provides a choice . . . In the United Kingdom there will be prosecutors who cannot execute requests. Therefore, it would be wrong for requests to be sent to them.''—[Official Report, House of Lords, 23 January 2003; Vol. 643, cols. GC 66–67.]

That summary of the argument that took place in the other place shows that we are talking about quite complex provisions. I hope that the Minister will understand that the amendment is seriously probing whether there might be a clearer way to proceed. We could achieve clarity by ensuring, first, that all matters were dealt with by the Government, not just one Secretary of State, and, secondly, that if a change to the European treaties were likely, the change went through both Houses of Parliament. I hope that the Minister will understand, despite my gentle teasing at the opening of my remarks, that these are serious points that are to be taken seriously.

Although the Minister now has one or two reinforcements, he does not yet have all the seventh cavalry on his side, so I am sure that he will take his numerical difficulties seriously.

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

I was trying to think of all the motives that the hon. Gentleman could have for pressing an amendment to a Division at 9.10 am. One would be to prove that he is here—I know that that is difficult for him—and another would be to show his support for the new modernised hours of the House of Commons.

The amendments would be a backward step. They would require all requests to be sent to the UK Government, and would prevent requests that relate to evidence located in Scotland being sent direct to the Lord Advocate, who is the person competent to deal with them. The expression ''territorial authority'' allows a distinction to be made between the role of the Secretary of State and the role of the Lord Advocate. The proposed change would not represent any progress, and would not adequately address the matter of devolution and Scotland's separate legal system. The hon. Gentleman is absolutely right that the phrase did not occur in the earlier legislation, which was passed in 1990—before devolution.

The issue of whether the provisions should mention the whole Government, and matters such as reshuffles and potential changes to the structure of government, are irrelevant. In this instance, ''Secretary of State'' does not necessarily mean the Home Secretary; in Northern Ireland, for instance, it means the Secretary of State for Northern Ireland. There is collective responsibility, and responsibility for the appropriate Secretary of State, so I do not understand the hon. Gentleman's point about the whole of the UK Government, unless he is attempting, rather than pursuing his usual Euro sceptic line, to unpick the

devolution settlement. Although he says that that is not his intention and that he does not see that there is a problem, that would be the effect of his amendment.

Clause 28(9) defines territorial authorities. For England and Wales, the Secretary of State is the Home Secretary. If there were a reshuffle or a change in the structure of government, that would be reflected and the new Secretary of State—whoever it may be—would be designated as the authority. I have not been personally consulted about that, so I am disappointed. My right hon. Friend the Prime Minister never summoned to ask, ''Parliamentary Under-Secretary, what do you think about this idea?'' I only wish that he had so that I could have made him aware of my views.

The Secretary of State for Northern Ireland will deal with Northern Ireland requests at the Northern Ireland Office. For Scotland, the territorial authority is the Lord Advocate, which means that requests that relate to evidence located in Scotland will go directly the Lord Advocate's office. That reflects the devolution settlement, and what is practical and efficient. There is no value in the Secretary of State in London acting as a post box for requests aimed at Scotland or Northern Ireland. The 1990 Act required all requests to go first to the Secretary of State, but that was prior to devolution.

Amendment No. 130 would mean that any changes to the bodies competent to make requests under the treaty of the European Union will be subject to affirmative resolution. Currently, Eurojust is the only body that is able to make requests under that provision. Eurojust was established within the framework of the treaty of the European Union by a decision of the 1990 temporary council. That decision was subject to scrutiny by Committees of both Houses. If there were changes to the decision, or if a new body were set up, that would be subject to scrutiny by Parliament. If there were a new treaty, new legislation would be introduced, as happened with the Maastricht treaty—I remember that with fond memories. There is therefore no need to do what amendment No. 130 would do. If the hon. Member for Surrey Heath (Mr. Hawkins) has problems with the scrutiny arrangements agreed by Parliament, he should not take up that issue during a discussion on an amendment. I know that he has some concerns about scrutiny, which he raises from time to time—I accept that those views are valid.

Any changes to overarching treaty structure, as opposed to specific arrangements agreed under the treaty, will need to be ratified by means of primary legislation. The amendment is not necessary, and I can reassure the hon. Gentleman that Parliament will have full opportunity to scrutinise any structural changes to existing Community treaties. That includes changes to treaty structure following the forthcoming intergovernmental conference on the Convention on the Future of Europe, which will be subject to primary legislation. I therefore ask the hon. Gentleman to consider his amendment and be prepared to withdraw it in light of my strengthening position in the Committee.

Mr Nick Hawkins (Surrey Heath, Conservative)

Now that the hon. Member for Liverpool, Walton (Mr. Kilfoyle), who definitely represents the seventh cavalry, has arrived, the Minister is in a much more comfortable position.

Mr Peter Kilfoyle (Liverpool, Walton, Labour)

I would like to put on the record that I have been in the immediate environment of the Committee Room all the way through proceedings. I would not like it to be thought that I was tardy in my attendance this morning.

Mr Nick Hawkins (Surrey Heath, Conservative)

Indeed. As the hon. Gentleman knows, I saw him in the House of Commons this morning before the Committee started and we exchanged a word or two. I knew he was here. I have to bear in mind one's knowledge of what may be happening just outside the Committee Room.

The hon. Gentleman and I were in each other's company, with many hon. Members from all parties, watching the splendid England victory against Slovakia last night. I am always delighted to see the hon. Gentleman—we all are. I am especially delighted to hear his trenchant criticism of the Government when he feels that that is appropriate.

Mr Joe Benton (Bootle, Labour)

Order. There is no need to prove the existence of the hon. Member for Liverpool, Walton. We will return to the amendment

Mr Nick Hawkins (Surrey Heath, Conservative)

With great pleasure, Mr. Benton.

I am genuinely grateful to the Minister for his reassurances on some of the matters that I raised, and I am particularly grateful for his confirmation that we were right to probe them. He is aware that there was, as I said, considerable and interesting debate in another place about these points. It is helpful that what the Minister said will be on the record. I do not seek to prolong the debate, although it has been useful. In light of the Minister's reassurances and the numerical changes, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 ordered to stand part of the Bill.