Mr Nick Hawkins (Surrey Heath, Conservative)

I beg to move amendment No. 25, in

clause 14, page 8, line 40, leave out from beginning to end of line 3 on page 9.

Mr Joe Benton (Bootle, Labour)

With this it will be convenient to discuss the following:

Amendment No. 27, in

clause 14, page 9, line 2, leave out

', or intended to be carried on'.

Amendment No. 28, in

clause 14, page 9, line 3, at end insert—

'(1A) In this section ''administrative proceedings'' means proceedings that if carried on in the United Kingdom would be proceedings before a court.'.

Mr Nick Hawkins (Surrey Heath, Conservative)

Mr David Heath (Somerton & Frome, Liberal Democrat)

I welcome you, Mr. Benton, to the Committee this morning. I am sure that we are all intensely grateful to the hon. Member for Surrey Heath for reading out almost the entire transcript of a Lords debate. I am not sure, however, that he quoted the best of the debates on the Bill from another place. There was much confusion, not from the Attorney-General, but from some of the noble Lords as to exactly what they were talking about.

The fact is that legal systems vary between different countries in the European Union. We not only accept but applaud it. We do not believe in harmonisation of legal systems, and we do not want to have the same Code Napoléon as the basis of our legal system. We rejoice in English common law and Scots law, and have never attempted harmonisation between those two jurisdictions, let alone with our continental counterparts. That means that there will be different definitions for the proceedings that we are used to in England, those that Scotland is used to, and those that are considered the norm in continental Europe. Some criminal offences in this country have equivalents that are dealt with through administrative proceedings in other countries. Also, what other countries know as ''clemency proceedings'' are not known in English law in the same form; such cases are dealt with by the Court of Appeal in English law, in terms of administration, but they are not dealt with in the same way.

The basis for any mutual legal assistance treaty must be respect for, and accommodation of, each other's legal systems where possible. That is the basis on which the treaty was signed, and that is why administrative and clemency proceedings are expressly included. I do not have a problem with that.

However, I might have a problem if the mutual assistance arrangements were extended beyond Schengen countries to those with grossly different judicial systems that are not based on adherence to the European convention on human rights and the other norms of western Europe. I share that serious concern, if that is the issue that is meant to be addressed in the amendments. The Minister did not address that point when we discussed the issue earlier this week. On Second Reading, I gave the Minister the example of the United States of America, which has 51 jurisdictions with grossly different laws and proceedings. What is the norm for the commonwealth of Massachusetts is not the norm for the state of Mississippi. It would worry me intensely if we were to extend the proposals to American jurisdictions. There are other countries for which the effect would be even worse, because their systems are so alien.

On countries that are signed up to Schengen and the mutual legal aid convention, we have a problem not with the reliability of proceedings, but merely with the definition. We have to accept that mutuality is the key. There will be areas of English and Scots law that are unknown to German, Dutch or Spanish courts, but we expect their co-operation, because it is in our interests to expect it. It would be a mistake to take out substantial swathes of the legal systems of other

countries, simply because they are not expressed in precisely the same form in English or Scots law. The hon. Member for Surrey Heath is mistaken in his belief that that would be to our advantage, and I will not support his amendments.

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

The amendments relate to the assistance that the UK is obliged to provide, under Schengen and the mutual legal assistance convention, in cases of administrative and clemency proceedings, in certain circumstances. In some EU countries, such as Germany, Austria and Belgium, we are informed that certain traffic offences that would be criminal offences in this country are classified as administrative offences there. We must assist in proceedings brought by administrative authorities prosecuting such offences, provided that there may be a judicial phase to the proceedings—that is, that there is the possibility of an appeal to a court with criminal jurisdiction.

Mutual legal assistance may be sought—and, under the mutual legal assistance convention, must be provided—at earlier stages of the proceedings, and not only at the later stage, when proceedings come before a criminal court. In another place, the Government introduced an amendment to clause 14, so that the clause would more accurately reflect, and would pick up more fully, our obligations, and enable us to assist in the earlier stages of such proceedings.

The term ''clemency proceedings'' is difficult to define. After lengthy consideration, we do not think there are UK domestic procedures that could correctly be described as such and we have not sought to legislate to enable the UK to request assistance in such cases. We are, however, informed by our European partners that some of them have proceedings that may, in some cases, be analogous to what we might describe as appeal applications, which they describe as clemency proceedings. Again, there may not be a true equivalent between the UK legal system and those of our European partners.

Clemency proceedings were relevant to the original Schengen countries—Belgium, the Netherlands, Luxembourg, Germany and France—but the UK was a latecomer, so we had no influence on the drafting. Some of the terms are difficult to interpret, being based, as the hon. Gentleman says, on the civil law systems of the original member states.

Amendment No. 25 would mean that the UK could not provide assistance on administrative procedures or clemency proceedings, so we would be outside our treaty and international obligations. Amendment No. 27 would restrict assistance in clemency and administrative proceedings to cases in which proceedings have already been instituted. The use of the words

''or intended to be carried on''

is intended to equate to the investigation stage prior to the proceedings, in line with the stage at which we would assist in strictly criminal cases. For assistance to be granted, the requesting authority must pursue formal inquiries with a view to instigating proceedings at the same stage that assistance may be

requested when pursuing an investigation with a view to a criminal prosecution.

The hon. Gentleman said he desired to limit administrative proceedings, but Amendment No. 28 would widen their scope too much and would cover proceedings before a court, such as general civil proceedings, which are not covered by mutual legal assistance.

The hon. Gentleman's amendments would prevent us from fulfilling our international obligations on Schengen and the mutual legal assistance convention, so we cannot agree to them. The hon. Member for Somerton and Frome (Mr. Heath) has picked out a theme running through what the hon. Gentleman says, which is that there is almost a sense that unless other countries have exactly the same proceedings as us, which they call by the same names as we do and which have the same outcomes, we cannot co-operate and they must follow our legal system exactly.

I am also a little bit confused by the suggestion by the hon. Member for Somerton and Frome that we should do that for European countries, but not for the United States. Of course, the United States has a different legal system from us, but surely he does not suggest that we cannot co-operate with it, offer it mutual legal assistance or expect it to offer us such assistance in return. Within the framework of the Bill, we should be co-operating to the full on normal mutual legal assistance and, when we get into intrusive procedures, we should apply a dual criminality test before we are prepared to do that. That is exactly what we want to do in the Bill.

I do not understand why the hon. Gentleman appears to apply one set of rules to the United States and another to the EU. We should be prepared to co-operate with everyone on ordinary mutual legal assistance. When procedures become intrusive, we should make certain checks—for example, on dual criminality requirements.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I agree that we should co-operate in broad terms with the authorities in the United States, or those in any other country. There comes a point, however, where we have to ask whether the foundations of that law are based on the same principles as those in Europe. We are co-signatories of the European convention on human rights: some other countries are not. That is an obstacle in the provision of some areas of mutual assistance, including exchange of evidence for the purposes of—for instance—exercising the death penalty.

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

The hon. Gentleman is right: he used the word ''some.'' With regard to mutual legal assistance, we should, in general, be prepared to co-operate, whether or not the foundation of law is different. However, in some cases we should apply some kind of a test.

Mr David Heath (Somerton & Frome, Liberal Democrat)

Exactly.

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

So the hon. Gentleman and I agree.

I ask the hon. Member for Surrey Heath to accept that we did make amendments in the House of Lords in response to issues that were raised. On this clause, the amendment that was made brings us into line with

our treaty obligations. His amendments would effectively oblige us to be in breach of them, so I cannot accept them.

Mr Nick Hawkins (Surrey Heath, Conservative)

It has been useful that some things have been said on the record. I agree with the remarks of the hon. Member for Somerton and Frome about celebrating our differences but, having celebrated the differences in our legal systems, I come to a conclusion that is different from his.

It has been helpful that the Minister has confirmed that he agrees with me that these are complex and confusing matters—which is also what his colleague, the Attorney-General, said in another place, and I welcome the fact that the Minister accepted one of our amendments in another place on this clause.

I will not press this amendment to a Division, but I want to put on the record that we should not be in the situation that the Minister has just said that we are in. He effectively said, ''We—the British Government—have already signed up to this in a treaty, so Parliament must rubber stamp it.'' Committee members on these Benches are always very uncomfortable when we hear him say that, because it rather demeans the purpose for which we are all here. As I and many of my party colleagues have repeatedly said, the Government should get parliamentary authority before they sign up to all these things in treaties. If we did things that way around, we would have proper debate and Parliament would have its proper place.

Having said that, 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. 29, in

clause 14, page 9, line 8, at end insert—

'(aa) that if the conduct constituting the offence were to occur in a part of the United Kingdom, it would constitute an offence in that part, and'.

Mr Joe Benton (Bootle, Labour)

With this it will be convenient to discuss amendment No. 30, in

clause 14, page 9, line 13, leave out

'is to regard as conclusive a'

and insert

'may have regard to any'.

Mr James Paice (South East Cambridgeshire, Conservative)

Good morning, Mr. Benton. I stand up and everybody else leaves.

Mr Barry Gardiner (Brent North, Labour)

Is that an invitation?

Mr James Paice (South East Cambridgeshire, Conservative)

Yes, I assure the hon. Gentleman that it is an invitation. If he wishes to leave, he is welcome to do so. If the Minister were to leave as well, I would not take umbrage—I would rapidly force through a number of amendments.

The Minister said that this was a complex area, and these amendments demonstrate some of that complexity. I have broached what the hon. Member for Somerton and Frome said earlier: this issue was debated in another place, and I will not repeat it. However, some of the key points were not thoroughly explored. Debates in the other place are short and

succinct: that is a feature of them. Sometimes that is a strength, but at other times it means that issues are not properly covered.

These amendments address dual criminality. Amendment No. 29 would require that powers to arrange for evidence to be obtained should take place only if the offence that is being investigated would be an offence in that part of the United Kingdom as well as in the country that is making the request for evidence to be obtained. The Minister will undoubtedly point out to me that that is precisely what the 1990 Act states, and therefore that what we are proposing is an amendment to that Act. That is true. However, I made a mental note on an earlier comment: the Minister is already significantly changing that Act to reflect changes in constitutional arrangements, and so on. From here on, we can put behind us the issue of whether that Act should be changed. We could debate whether the Act has worked satisfactorily over 13 years in the context of dual criminality—perhaps the Minister can reassure us—but the key thing is that a request could be made to United Kingdom authorities to gather evidence in relation to an investigation or proceedings relating to an act that is not an offence in this country. That is a matter of some concern. Generally, as the hon. Member for Somerton and Frome said, we share standards and approaches to law with the countries with which we signed up at the genesis of this legislation. However, there are variations; some things are offences in some countries and not in others.

There is great concern about the extension of this legislation beyond those countries. The way things are changing, I do not think that it is extreme to suggest that we might receive an application from a country that practises sharia law. Its legislation will be based on a completely different religious ethos from ours. We must, therefore, question whether this country should assist other countries' authorities in prosecuting in this country a person who is accused of something that we would not dream of considering to be a crime. That important point is highlighted by some contradictions in the legislation. Subsection (2) clearly omits reference to an offence being an offence in this country, but says that it should be an offence in the country in question, whereas subsection (4) relates to fiscal offences that must also be offences in this country. That contradiction is not easy to explain.

Clause 16 deals with the extension of statutory search powers. That is part and parcel of obtaining evidence, which is what this clause is about. It contains the caveat in subsection (1)(b) that it

''would, if it occurred in England and Wales, constitute a serious arrestable offence.''

In other words, there is a contradiction between the collecting offence—the statutory search powers that might be necessary—and the fiscal offences.

We face an issue of principle—should we help to prosecute or provide evidence that might lead to the prosecution of a person for something that is not an offence in this country?—and also the problem of what appear to be contradictions between clauses and even

parts of clauses. I hope that the Minister can address those matters.

I shall not quote at length from another place, but the Attorney-General said in reply to the debate:

''To require a demonstration that the offence is an offence in this country would require an overseas authority investigating an offence under its own law to take on an unnecessary burden.''—[Official Report, House of Lords, 23 January 2003; Vol. 643, c. GC76.]

My first response to that is, ''so what?'' Our principal responsibility must be to protect our own citizens. I should have thought that the rights, privileges and freedoms that we take for granted in this country should take precedence. The Attorney-General's argument is completely undermined by the contradiction between the fiscal legislation and the terms of the statutory search powers in clause 16. I hope that the Minister will not again parade that as an argument, because it does not stand up to examination.

Amendment No. 30 reflects the same issue. Line 16 on page 9 states:

''If it appears to the territorial authority that the request for assistance relates to a fiscal offence''.

Elsewhere there is use of the phrase, ''regard as conclusive''. We have been celebrating the differences between legal systems, but the suggestion is that we should automatically regard as conclusive anything that comes forward. As far as administrative proceedings are concerned, the Secretary of State needs an element of discretion. The obligation to regard as conclusive is therefore not necessarily correct, and we propose to remove that and insert,

''may have regard to any''

information. That leaves the Secretary of State with an element of discretion over whether to proceed and provide the assistance that is sought.

The amendment relates to some of the arguments of the previous debate, but I shall not repeat those. It relates to the vagueness about what is an administrative proceeding. It is because that definition is vague, and because of the point made by my hon. Friend the Member for Surrey Heath that things considered as administrative proceedings in some countries are not considered so in this country, that the Secretary of State should retain an element of discretion that is not apparent in the legislation as drafted.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I congratulate the hon. Member for South-East Cambridgeshire (Mr. Paice), who took the trouble to make the arguments afresh. My only criticism of the previous debate was that reading out large parts of the Lords debate is otiose. To make the arguments, however, is perfectly proper.

The issue of dual criminality is important. The Minister needs to say whether criminality becomes an issue at the point of an intrusive procedure or at the point when the original request is received. The argument of the hon. Member for South-East Cambridgeshire is that that should be included in this clause, and that criminality should come into effect at the point at which the request is received. I

suspect that the Government will say that that is not the right point, and that criminality should come into effect when investigations of an intrusive nature are instigated in this country.

That debate is arguable in either direction, but accepting the argument for inclusion at an earlier stage would obviate the need to have it later. That, however, could prevent basic information from being passed on in co-operation with an overseas authority, such as information on police records about the identity or existence of a person in a country. It might be possible for such information properly to be passed to an overseas authority without the instigation of intrusive procedures for collection of evidence. I can see that there are arguments either way, and I look forward to the Minister's reply. The provisions will not have as serious a consequence as the hon. Member for South-East Cambridgeshire thinks because safeguards exist in later clauses. He was good enough to accept that point.

I have a problem with amendment No. 30, which is not based simply on the fact that I think we should respect each other's authorities, and that a basic level of trust is appropriate. I am not sure whether an authority in this country would be in a position to challenge the institution of proceedings in another country, or challenge whether there was reasonable suspicion that an offence had been committed in that country. I should have thought that only the legal authorities in that country were in a position to say that, so the certificate must be accepted at face value unless it is manifestly absurd. I have a degree of confidence that judicial authorities in other countries would not put forward a certificate that was so absurd.

We must always consider the reciprocal arrangements. For example, would we expect a Belgian authority not to accept the fact that the Cambridgeshire constabulary had started investigative or legal proceedings against a person and that those proceedings were based on an offence in the United Kingdom? We would not expect that to be challenged by an authority in another country, when making a request for mutual assistance. Although I understand the hon. Gentleman's point, I am not sure that there are circumstances in which such a challenge would be sustainable or open to sensible investigation, other than in an extreme situation when a certificate was manifestly absurd. I note that he is about to give me an example.

Mr James Paice (South East Cambridgeshire, Conservative)

I am not about to give the hon. Gentleman such an example, but I thank him for giving way. The provision states that the certificate that is to be regarded as conclusive is

''a certificate as to the matters mentioned in subsection (2)'',

which states

''that an offence under the law of the country in question has been committed or that there are reasonable grounds for suspecting that such an offence has been committed'',

or that an investigation is being carried out. There is nothing in the provision that necessarily relates such matters to evidence that may exist in this country. Before we expend resources on searching for evidence or arranging for evidence to be obtained, it is right that

the territorial authority in this country should have information on whether there is evidence in this country to support it. Such action does not constitute an argument about whether an offence has been committed in another country. We would take that as an honest statement. The matter is critical, given that British resources will be used. I am worried about whether there will be an implication for this country.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I am grateful to the hon. Gentleman for his intervention. I understand his point but, with great respect, if that were his intention, the amendment is aimed in the wrong direction. He should be adding a requirement to subsection (2) that needs to be satisfied. At present, the only things that remain to be satisfied are the two points under subsection (2), the first of which is that an offence has been committed or that there are reasonable grounds for suspecting that an offence has been committed and, secondly, that legal or investigative proceedings have been undertaken. Both issues are conclusive. They are not open to sensible challenge from the authorities in this country.

The hon. Gentleman is asking for a third condition, which is that there are reasonable grounds for suspecting that there is evidence that is pertinent to those conditions in this country. Had he tabled an amendment to that effect, it would have given rise to a more considered debate.

Mr James Paice (South East Cambridgeshire, Conservative)

I take the hon. Gentleman's point. There is another way in which to go about matters. I want to introduce an element of discretion. The certificate may be conclusive in respect of subsection (2)(a) and (b), but it should not be conclusive that the authority should commit British resources. Saying that it should be regarded as conclusive, but that it may have regard to a certificate reassures us about part 2, and leaves open the discretion that there should be some sign of the matter being relevant to this country. The hon. Gentleman's alternative suggestion may be a different way in which to proceed, but I strongly contend that my proposed amendment also opens up that element of discretion, which is all that I am trying to achieve.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I am grateful, but I still have to argue with the hon. Gentleman about the adequacy of his amendment. Discretion is covered under clause 14(1), which states:

''The territorial authority may arrange for evidence''.

That deals with his point. He is trying to allow for the question of the certificate under subsection (2). That is an open and shut case. Obviously, I have not persuaded the hon. Gentleman of the logic of my argument. However, I have entirely satisfied myself.

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

It is good to know that the hon. Gentleman is satisfied. Amendment No. 29 would require dual criminality in respect of any requests for evidence. There is currently no requirement for that in respect of requests for evidence to be taken before a court. To introduce it would be a backward step. It is contrary to international agreements, including the 1959 Council of Europe convention on mutual legal assistance, which the United Kingdom ratified in 1991.

We would not want other countries to make a dual criminality requirement in respect of all requests from the United Kingdom. That would hinder an effective investigation of crime. The hon. Member for South-East Cambridgeshire says that we should not tell him that such measures were in the 1990 Act, but explain how the 1990 Act has operated. We do not keep records that show how frequently we assist in matters that are not considered to be offences in this country.

There is no requirement to establish whether there is dual criminality, so it would be a poor use of resources to require case workers to assess that in every case. I cannot therefore inform the hon. Gentleman of how many times or in what ways we have given assistance when the dual criminality measure would not apply. I am sorry that I am not able to do that, because records have not been kept.

Amendment No. 30 would introduce discretion where none currently exists. It would require the territorial authority to establish the validity of the basis of a certificate independently of the confirmation provided by the requesting authority. We consider that the subsection is correctly drafted. It replicates the existing provision and provides that a certificate from an overseas authority is to be regarded as conclusive about the matters covered by the request. In all but exceptional cases, the certificate is not required.

The letter of request will contain sufficient information for the territorial authority to be satisfied over the measures in subsections (1) and (2). It is not a requirement for us to go behind the request and independently establish the facts of the case. As the hon. Member for Somerton and Frome said, we would not necessarily expect in such cases that an overseas authority would go behind a request that we made to find out whether a police force were carrying out such an investigation or whether a matter appeared before a court.

A certificate is useful in particularly complex cases as it sets out exactly which matters are being investigated when that is not clear from the request. In such cases, the territorial authority may ask the requesting state to send a certificate setting out further information to support the original request. Under the 1990 Act, there have been infrequent occasions when the central authority has insisted on a certificate, but the provision has been used to good effect in those cases where it has not been clear what the purpose of the request was from the original letter or subsequent inquiries that have attempted to clarify the position.

As the hon. Member for Somerton and Frome says, it comes down to when we impose the dual criminality requirement. In past years, we have imposed it only when coercive investigative procedures or searches have been involved. I do not believe that problems have arisen from that, but I cannot give the hon. Gentleman chapter and verse on the subject. We plan to replicate the provisions of the old legislation in the Bill, and we will not do what the hon. Gentleman asks us to do—impose a dual criminality requirement in areas where we have not previously done so, and where we do not perceive there to be a problem.

Mr James Paice (South East Cambridgeshire, Conservative)

Well, the seventh cavalry has left, and the sixth-and-a-half, in the form of the hon. Member for Somerton and Frome, has come to the Government's rescue. It seems today that the Lib-Lab pact is riding high again, and is trying to knock down the amendments that my hon. Friends and I have tabled. We should table several more amendments. [Interruption.] If the hon. Member for Somerton and Frome tempts me, I shall table considerably more.

The issue of dual criminality is clearly a matter of judgment and opinion. I understand the Minister's arguments on why the provision should not come in, but I remain of the view that it should. However, he is clearly adamant on the subject. I was interested to hear that he does not actually know what the impact has been—he explained why—or whether the issue has arisen in the 13 years since the 1990 legislation was passed. I was really trying to extract that information.

On amendment No. 30, it came out in the Minister's reply that what I am seeking is actually taking place; there are occasions on which the authority will ask for further information. I think that that is what the Minister said. He said that there are occasions when the authority may go back to the country that is asking for assistance.

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

In my understanding, not after the certificate; the certificate is effectively what brings the matter to a close. An original request is made. Sometimes, clarification of the request is sought, and sometimes—although rarely—there are difficulties getting that. The certificate is the last method used to impose clarity on what exactly is being asked for.

Mr James Paice (South East Cambridgeshire, Conservative)

That is a helpful intervention. Clearly, I slightly misunderstood the Minister's earlier comment. None the less, what the Minister says means that it is not simply the receipt of a certificate that takes place, but an exchange of information before that. In practice, what I am seeking to achieve is that some evidence apart from what appears baldly in Bill, which is the simple fact that

''an offence . . . has been committed or that there are reasonable grounds for suspecting that such an offence has been committed, and . . . that proceedings . . . have been instituted'',

all of which could be put into two lines of a document. The Minister is telling us that there is more to the matter than that. I am puzzled as to why that is not made clearer in the Bill. The point is that, from what the Minister has said, what I am seeking to achieve, which is that authorities should be given more information than the bald facts outlined in subsection (2), is already provided for, so it is pointless to pursue that amendment.

That brings me back to the issue of dual criminality, which remains a matter of debate and judgment, and on that basis we had better leave the amendment this time. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14 ordered to stand part of the Bill.