Clause 14 - Powers to arrange for evidence to be obtained
Crime (International Co-operation) Bill [Lords]
9:45 am
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.