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Standing Committee A
Thursday 12 June 2003
(Morning)
[Mr. Joe Benton in the Chair]
9.10 am
Clause 13
Requests for assistance from
overseas authorities
Mr. Nick Hawkins (Surrey Heath): I beg to move amendment No. 131, in
clause 13, page 8, line 17, leave out 'the territorial authority' and insert 'the UK Government'.
The Chairman: 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
Mr. Hawkins: 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.
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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 and Frome): 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. Hawkins: 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. Heath: I believe that ''territorial authority'' has been used in legislation since devolution. It is not unknown to British subjects.
9.15 am
Mr. Hawkins: 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
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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.''
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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.
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