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Lady Hermon: To help the hon. Gentleman with the point he is making, he will, I am sure, know that 13 years ago under the Criminal Justice (International Co-operation) Act 1990, which he mentioned this morning, the words
appear. Could the hon. Gentleman inquire of the Minister what arrangements were made by the Secretary of State to serve process during those 13 years? Mr. Heath: That is a helpful suggestion, but I am sure that the Minister will tell us is that no problems have ensued. That will often be the case; the previous legislation has not created a great number of legal problems. I am happy that that is so, but that does not reduce our requirement, in giving the Bill proper scrutiny, to consider the matter, including whether the provisions might cause a possibility of challenge in future. If there are ways of avoiding that challenge, it is sensible for us to use them and to adopt a different Column Number: 043 wording, if appropriate. Perhaps the Minister could satisfy the hon. Lady on that point, and say what arrangements have been used, whether they would have been in accordance with rules of court had they been applied, and how often those exceptional circumstances arise. At the very least, the Minister could give a few examples for the benefit of the Committee.
2.45 pmMr. Ainsworth: Welcome to the Chair, Mr. Hurst. You have arrived at what might be a rather unfortunate time. This is certainly one of the most exciting Bills that we have had to deal with. The amendment is not acceptable. It would require documents, when not served by post, to be served in accordance with rules of court rather than with arrangements made by the Secretary of State. Specifying arrangements in statute, whether in rules of court or in any other form, has the potential to cause problems. Not specifying them has the advantage of flexibility, which it is important to retain, because different arrangements might be suitable in different circumstances. Documents destined for countries not designated as participating countries for the purposes of the clause will be sent to the Secretary of State, who will send them to the central authority in another country, which will serve them on the recipient. There may also be other arrangements. For instance, in the case of EU-bound documents, the issuing authority will send them to the overseas central authority for onward transmission, either by post or personal service, depending on its particular requirements. Alternatively, the issuing authority might send the documents to the Secretary of State, who will send them on to the overseas central authority, again for onward transmission from that authority either by post or personal service. There will inevitably be occasions on which an issuing authority will send documents to the Secretary of State in error when direct service would have been the correct route. We intend that in those circumstances, the Secretary of State will simply forward the documents directly to the recipient overseas. We would not want a situation where a statutory provision required him to send the documents back to the issuing authority because they had been sent to him incorrectly, when the simple and far more sensible solution would be for him to forward them himself. To set out such an option in statute, however, risks giving the impression to issuing authorities that it is acceptable to send all documents to the Secretary of State, as he will do the work of routing documents overseas for them. That will encourage issuing authorities not to bother using the correct procedure, which is undesirable. We will need to issue updated guidelines for this clause and the rest of part 1, advising authorities on how to send procedural documents overseas. Guidelines are attached to existing legislation, but changes have been made so they will need to be updated. Guidance will therefore be provided on how people should perform their duties. To enshrine that Column Number: 044 methodology in statute, however, would lead to unnecessary inflexibility in the issuing of process.Mr. Heath: I thank the Minister for his comments, although many of them seemed to address an issue that I did not raise: whether the clause should stand part. I did not question whether the clause should stand part; I simply suggested that rather than having the wishy-washy phrase of
that should be incorporated into the rules of court. That is hardly a radical suggestion, as it already exists for the serving of process in this country. I accept that there needs to be greater flexibility when dealing with overseas countries, but it is not acceptable for something to be stuck on a tree at the end of the road rather than sent by post. That would not be an acceptable serving of process. I would have hoped for some minimal standards that it is incumbent on the Secretary of State and others to meet in the service of process. Mr. Ainsworth: If we do not do that in guidance, how does the hon. Gentleman expect us to have the flexibility that he acknowledges is needed when dealing with authorities abroad? Mr. Heath: Rules of court could easily lay out basic issues about the way in which process could be served. Mr. Ainsworth: In guidance? Mr. Heath: Yes. The Minister can write the guidance. If he can do that, why cannot that be incorporated in rules of court? I genuinely do not understand what the Minister's problem is with this, although I do not propose to press the amendment to a Division. If the Minister intends to write guidance, why should that be different in kind from the circumstances that would apply within the United Kingdom, and why should it therefore not be set out in rules of court—in general terms, because extra flexibility is needed for serving a process overseas, but with basic caveats that ensure that no one is disadvantaged legally as a consequence? The Minister has not responded to the point raised by the hon. Member for North Down. That is unsatisfactory. The civil service could have provided better substance to the Minister's remarks on this amendment. He did not address the issue that I raised either. It cannot have been a surprise that I raised it, because it was already addressed in another place in Committee, with an equally unsatisfactory conclusion. I do not intend to proceed with this matter now, but I may have to return to it at a later stage, unless we get a more satisfactory response in the meantime. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Mr. Paice: I beg to move amendment No. 12, in
'there are good reasons for thinking' and insert 'the Secretary of State is satisfied'.
The Chairman: With this it will be convenient to discuss amendment No. 13, in
Column Number: 045 Mr. Paice: Moving on a little from the previous amendment that the hon. Member for Somerton and Frome spoke to, these two amendments address subsection (3)(c). The first of them addresses the phrase, ''good reasons for thinking''. We had a debate this morning about odd language that seems to be creeping into legislation. I am not against the modernisation of legislative language, but some of it seems incredibly woolly. To state that one of the conditions that prevents service by post is
begs this question: who thinks they are good reasons? What is the lodestar by which these reasons will be judged? If we are to have arrangements laid down by the Secretary of State—as the Minister has persuaded the Committee, at least at the moment—we should adopt the same type of language that is used everywhere else in legislation and state that
that service by post will not be affected. That does not mean that the Secretary of State will have to deliberate on every case. We all know that the phrase ''the Secretary of State'' also refers to his appointees and senior officials. However, that statement would be more precise than the woolly,
is ineffective. In the other place, there was a debate on another Home Office Bill, now the Nationality, Immigration and Asylum Act 2002, in which the word ''thinks'' was originally included. There was a long discussion about that, which resulted in the Government conceding by getting rid of that word and replacing it with ''satisfied that''—believe it or not. That is much more acceptable. I hope that the Minister will look at this again, and accept the precedent that has been set in the other place on that legislation, as
is a nebulous concept. That should be rephrased to state that
service by post would be ineffective. That is a clear, precise statement and gives someone the responsibility for making the decision. Amendment No. 13 is a probing amendment that would change the next line in the clause. Perhaps the Minister could tell us what difference there is between something that is not effective and something that is inappropriate, at least in the context of serving of process, about which we are talking. As we have said earlier on other groups of amendments, all Committee members are interested in ensuring that a British process from a British court is served properly. There will be occasions on which it is not possible to serve a process by post, for various reasons including the reason given in subsection (3)(a),
Column Number: 046 According to subsection (1), the Secretary of State will lay down arrangements for dealing with that. There must be good reasons for the Secretary of State to be satisfied that service by post will not be effective. That is what matters. We are concerned about whether the service is effective and whether the person on whom the process or document is to be served actually receives it.
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