Mr James Paice (South East Cambridgeshire, Conservative)

I beg to move amendment No. 49, in

clause 31, page 18, line 20, at end insert—

'(d) confirm that the witness has received independent legal advice'.

After the previous debate, I would be interested to be a fly on the wall when the Minister has a private session with his officials later. I am reminded of an occasion when I was occupying a similar role in a different Department. I foolishly stated to a large audience that the speech that I had been given was so boring that I was not going to deliver it, and that I had written one of my own. Immediately afterwards, a grovelling official came up to me to apologise for writing such a boring speech. I had not realised that she had been present when I made that statement. It is very easy to say the wrong thing.

As for amendment No. 49, we have cantered round the course in a different context. However, where we are seeking to require that the witnesses received independent legal advice, there is a unique context. We have been discussing that we are addressing something that does not exist in the British legal system—the giving of evidence by telephone. For a witness who may well be accustomed to the British system, this would be completely foreign—I use that word advisedly—territory: they will not know about it. If a witness is giving evidence by telephone—albeit accepting the Minister's earlier comment that that is voluntary—there is a case for saying that the Secretary of State should be sure that that witness has received the proper legal advice about what he may or may not be doing and the possible implications of that, especially in the light of our debate. Whatever the Minister's deliberations may demonstrate, there could be legal implications at home for what the witness may or may not say over the telephone to someone else. That is important, because we are dealing with something that is novel in the British legal system—that the witness should be given some legal advice. It is right that that should be included in the Bill.

The Minister may well refer to the fact that that was debated in the other place—it was—but the answer received then was extremely thin; it seemed to suggest that the witness was already sufficiently protected by schedule 2. That answer is not adequate. Part 2 of schedule 2—''Evidence given by telephone''—refers to the notification of the witness and the conduct of the hearing. It says simply:

''The evidence is to be given in accordance with the laws of that country'',

where the court proceedings would take place. Nowhere in part 2 is there any reference to the witness being informed of their rights, or of the legal implications of giving evidence by telephone to the country in question, or of the implications back home that may be consequential on that. That is a short, simple point, but we are talking about something novel in the British judicial system and it deserves particular investigation. I hope that the Minister will understand the importance of that matter, so that British citizens, and others who may be brought to use the system under clause 31, are fully aware of their rights.

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

Although we understand the desire to protect the rights of witnesses, we do not consider that the amendments are necessary. Witnesses agreeing to give evidence in such a way have sufficient protection. Article 11(2) of the MLAC provides that witnesses may be heard by telephone only if they agree to the hearing. There is no question of issuing summonses to unwilling witnesses, because there is no power to summons witnesses for telephone hearings. The Bill provides for a court to make arrangements to hear evidence, but not for it to compel witnesses.

Under domestic law, there is no obligation for anyone appearing as a witness to seek legal advice, nor is there any automatic right to it. It would not be right or consistent to require that a person has received legal advice in such circumstances, when the UK does not require that in respect of domestic criminal proceedings, either for witnesses, whether willing or unwilling, or even defendants, who are not covered by the provision.

The clause as drafted requires the requesting country to confirm that the witness is willing to give evidence by telephone in proceedings before the overseas court. As an additional safeguard, the court is also required to be satisfied that the witness is willing, thereby protecting him if, having agreed to give evidence, he changes his mind by the time of the hearing.

The provision does not have general application and we do not expect it to be used frequently—not all member states are able to request that kind of assistance. We understand that it is mainly used by Scandinavian countries. Schedule 2 provides that such hearings, like those via television link, will be conducted under the supervision of the requesting state and in accordance with its law.

That is our fairly firm position. The only doubt that creeps into my mind is our preceding conversation and the issue of circumstances. I am not sure whether that would impact on anything, because there is no requirement to ensure that legal advice is given to witnesses in domestic proceedings. The witnesses must be certified as being willing, and the court must check that they are willing. To insist that they receive legal advice is an unnecessary step.

Mr James Paice (South East Cambridgeshire, Conservative)

I hear what the Minister says. In the light of earlier amendments, and the fact that he says that he will go away and think about them, he might

want to reflect on this one too. I understand what he is saying, but because we are talking about something that is completely new for a British system—giving evidence by telephone—this is a special case. However, it is not appropriate to pursue that now, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 ordered to stand part of the Bill.