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The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): I was trying to think of all the motives that the hon. Gentleman could have for pressing an amendment to a Division at 9.10 am. One would be to prove that he is here—I know that that is difficult for him—and another would be to show his support for the new modernised hours of the House of Commons.
The amendments would be a backward step. They would require all requests to be sent to the UK Government, and would prevent requests that relate to evidence located in Scotland being sent direct to the Lord Advocate, who is the person competent to deal with them. The expression ''territorial authority'' allows a distinction to be made between the role of the Secretary of State and the role of the Lord Advocate. The proposed change would not represent any progress, and would not adequately address the matter of devolution and Scotland's separate legal system. The hon. Gentleman is absolutely right that the phrase did not occur in the earlier legislation, which was passed in 1990—before devolution.
The issue of whether the provisions should mention the whole Government, and matters such as reshuffles and potential changes to the structure of government, are irrelevant. In this instance, ''Secretary of State'' does not necessarily mean the Home Secretary; in Northern Ireland, for instance, it means the Secretary of State for Northern Ireland. There is collective responsibility, and responsibility for the appropriate Secretary of State, so I do not understand the hon. Gentleman's point about the whole of the UK Government, unless he is attempting, rather than pursuing his usual Euro sceptic line, to unpick the
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devolution settlement. Although he says that that is not his intention and that he does not see that there is a problem, that would be the effect of his amendment.
Clause 28(9) defines territorial authorities. For England and Wales, the Secretary of State is the Home Secretary. If there were a reshuffle or a change in the structure of government, that would be reflected and the new Secretary of State—whoever it may be—would be designated as the authority. I have not been personally consulted about that, so I am disappointed. My right hon. Friend the Prime Minister never summoned to ask, ''Parliamentary Under-Secretary, what do you think about this idea?'' I only wish that he had so that I could have made him aware of my views.
The Secretary of State for Northern Ireland will deal with Northern Ireland requests at the Northern Ireland Office. For Scotland, the territorial authority is the Lord Advocate, which means that requests that relate to evidence located in Scotland will go directly the Lord Advocate's office. That reflects the devolution settlement, and what is practical and efficient. There is no value in the Secretary of State in London acting as a post box for requests aimed at Scotland or Northern Ireland. The 1990 Act required all requests to go first to the Secretary of State, but that was prior to devolution.
Amendment No. 130 would mean that any changes to the bodies competent to make requests under the treaty of the European Union will be subject to affirmative resolution. Currently, Eurojust is the only body that is able to make requests under that provision. Eurojust was established within the framework of the treaty of the European Union by a decision of the 1990 temporary council. That decision was subject to scrutiny by Committees of both Houses. If there were changes to the decision, or if a new body were set up, that would be subject to scrutiny by Parliament. If there were a new treaty, new legislation would be introduced, as happened with the Maastricht treaty—I remember that with fond memories. There is therefore no need to do what amendment No. 130 would do. If the hon. Member for Surrey Heath (Mr. Hawkins) has problems with the scrutiny arrangements agreed by Parliament, he should not take up that issue during a discussion on an amendment. I know that he has some concerns about scrutiny, which he raises from time to time—I accept that those views are valid.
Any changes to overarching treaty structure, as opposed to specific arrangements agreed under the treaty, will need to be ratified by means of primary legislation. The amendment is not necessary, and I can reassure the hon. Gentleman that Parliament will have full opportunity to scrutinise any structural changes to existing Community treaties. That includes changes to treaty structure following the forthcoming intergovernmental conference on the Convention on the Future of Europe, which will be subject to primary legislation. I therefore ask the hon. Gentleman to consider his amendment and be prepared to withdraw it in light of my strengthening position in the Committee.
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Mr. Hawkins: Now that the hon. Member for Liverpool, Walton (Mr. Kilfoyle), who definitely represents the seventh cavalry, has arrived, the Minister is in a much more comfortable position.
Mr. Peter Kilfoyle (Liverpool, Walton): I would like to put on the record that I have been in the immediate environment of the Committee Room all the way through proceedings. I would not like it to be thought that I was tardy in my attendance this morning.
Mr. Hawkins: Indeed. As the hon. Gentleman knows, I saw him in the House of Commons this morning before the Committee started and we exchanged a word or two. I knew he was here. I have to bear in mind one's knowledge of what may be happening just outside the Committee Room.
The hon. Gentleman and I were in each other's company, with many hon. Members from all parties, watching the splendid England victory against Slovakia last night. I am always delighted to see the hon. Gentleman—we all are. I am especially delighted to hear his trenchant criticism of the Government when he feels that that is appropriate.
9.30 am
The Chairman: Order. There is no need to prove the existence of the hon. Member for Liverpool, Walton. We will return to the amendment
Mr. Hawkins: With great pleasure, Mr. Benton.
I am genuinely grateful to the Minister for his reassurances on some of the matters that I raised, and I am particularly grateful for his confirmation that we were right to probe them. He is aware that there was, as I said, considerable and interesting debate in another place about these points. It is helpful that what the Minister said will be on the record. I do not seek to prolong the debate, although it has been useful. In light of the Minister's reassurances and the numerical changes, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 ordered to stand part of the Bill.
Clause 14
Powers to arrange for evidence to be obtained
Mr. Hawkins: 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.
The Chairman: With this it will be convenient to discuss the following:
Amendment No. 27, in
Amendment No. 28, in
Mr. Hawkins: We are dealing with some serious points that were debated in another place on 23 January 2003. I shall refer in a moment not only to Lord Carlisle of Bucklow, who contributed on the
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subject, but to Baroness Anelay of St. Johns. One thing about that debate that was slightly different was that even Lord Clinton-Davis, on the Government's side, supported some of the points made by Baroness Anelay of St. Johns. That was a rarity, because during other debates in another place Lord Clinton-Davis was critical of some of the arguments advanced from the Conservative Benches. It was notable that he had some sympathy and support for our views in that debate.
Before I deal with what was said in another place, I shall describe what we intend the amendments to do. Amendment No. 25 would delete clause 14(1)(b) and (c), so that the clause would apply only to criminal investigations. We have a problem, with which the Minister is familiar from some of the debates on the Extradition Bill, about the concept of administrative proceedings. Amendments Nos. 27 and 28 would provide alternative ways to address some of the same issues. Amendment No. 27 says that one could omit the passage that looks to the future of the clemency proceedings. There was an interesting debate in another place about what clemency proceedings were, during which even the Attorney-General, who is a distinguished lawyer, for once got into some confusion.
Amendment No. 28 would provide another option by explaining what are administrative proceedings. In another place, Lord Renton of Mount Harry and Baroness Carnegy of Lour got into a debate with the Attorney-General and the Government accepted our amendment No. 127. It is always a happy result when a Conservative amendment in either House is accepted by the Government. I hope that the Minister will follow the precedent that was set by the Attorney-General by accepting more of our amendments.
One of the points that Lord Carlisle of Bucklow made in another place was not answered by the Attorney-General and, having set out what amendments Nos. 25, 27 and 28 do, I want to refer to some of the things that were said in that interesting and important debate.
Baroness Anelay of St. Johns pointed out that there had been some debate about administrative proceedings in the debate in another place on clause 1. She wanted to explore exactly what administrative proceedings and clemency proceedings are here. She was probing the precise nature of the definitions, and she moved amendment No. 127 in another place, which changed the words ''removal of a penalty'' to
''removal or reduction of a penalty''.
That was the Conservative amendment that the Government happily accepted in another place.
Baroness Anelay said that she hoped that the Attorney-General would
''also be able to explain whether the definition of clemency proceedings is intended to extend the scope of the Bill's provisions, not just to the death penalty case but to other cases in which the power of clemency is exercised, such as a reduction in the length of a prison sentence.''
Lord Clinton-Davis intervened at that point, to say:
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''The words 'clemency proceedings' are used only in relation to the Schengen convention, and not in any other instrument of law in this country . . . I have never seen that expression before. Can my noble and learned friend''
—the Attorney-General—
''say whether a similar provision has been included in any other legislation?''
With regard to clause 14(1)(c), Lord Carlisle then asked:
''Why should not it be an application that relates to the administrative proceedings themselves?''
He pointed out that he was asking that because clause 52 is said to apply to
''administrative authorities in respect of administrative offences where a decision in the proceedings may be the subject of an appeal before a court''.
Lord Carlisle went on to say:
''That may be a definition of the term 'administrative proceedings', but proceedings themselves are taken before the administrative authority.''
He then quoted that a Home Office Minister had said in an earlier debate that administrative offences were
''a category of offence that does not exist in the UK but does exist in some of our partner countries. In some EU countries, for example, offences such as driving offences are dealt with in that way.''
The Minister is nodding.
Later on in the debate, it was said that Holland was an example of one of our EU partner countries where they treat driving offences as what they call administrative offences. Lord Carlisle wanted to know whether that means that one can make a request to this country if one wants to use it in an appeal—presumably against a conviction for a driving offence, which has been carried out by an administrative authority, in administrative proceedings—but one cannot respond to a request for evidence if one wants it for the purpose of bringing the case and conducting the case before the administrative authority in the first place. If it did mean that, Lord Carlisle wanted to know why, because he pointed out that that could be something of a nonsense.
The Attorney-General then made some interesting remarks. He said:
''There has already been discussion in Committee about what 'administrative proceedings' in this context means.''
It is important to bear in mind that this is the Attorney-General speaking for the Government:
''They are not straightforward to identify and define because they do not have an exact counterpart in our own legal system. The example cited in the explanatory report to the Mutual Legal Assistance Convention is a German offence. That is an offence which, whilst not classified as a criminal offence, is punishable by a fine imposed by an administrative authority. It is known as ordnungswidrigkeit. However, there is a right of appeal to the ordinary criminal courts. It is intended to be an administrative proceeding where assistance might be sought.''—[Official Report, House of Lords, 23 January 2003; Vol. 643, c. GC68–70.]
Here we have the Attorney-General, on behalf of the Government, reinforcing in another place the complication of trying to approximate our law, which is based on the common law and Acts of Parliament over many centuries, with an entirely alien system of law, which in many countries is based on the Code
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Napoléon, going back to Roman law. That is difficult to bring into harmony with UK law, which is why those on the Conservative Benches have such a problem with the whole concept of administrative proceedings. We would like this part of the Bill to be restricted to the criminal area because that is where we really need mutual legal assistance. We always want to use mutual legal assistance to crack down on crime, but it should not be extended to new kinds of administrative bodies that operate in other EU countries, which do not have similar procedures to ours. There would be great danger in trying to fit the two together.
Baroness Carnegy of Lour said that she wanted to make sure that she had understood the matter. She said:
''According to Clause 52(1), the definition of 'clemency proceedings' is the removal—and or reduction—of penalties for offences which were not tried as criminal charges, but are matters such as driving licence offences in other countries which are tried in a different court. That does not apply to criminal charges. Is that correct?''
After reading clause 52(1), that seemed to me to be a reasonable understanding of it. The Attorney-General, speaking on behalf of Her Majesty's Government, simply replied by saying: ''I think not.'' He was obviously not certain. He said:
''They are two separate issues. The administrative proceedings are those which relate to an administrative offence, something which we might well regard as a criminal offence. It is tried as an administrative offence, but there is an appeal to a court and a penalty is imposed. Clemency proceedings are quite distinct. They are a form of procedure not known to us specifically, but which may well include what we might think of as an appeal for a reduction in a sentence''.
Members will understand why I am so concerned about that. We are talking about the Attorney-General saying that he thinks something might not be right, and that we might think something is one thing when it is something else. That is a confused picture, and it would clarify matters for our courts if we took out the reference to clemency proceedings and administration proceedings and concentrated on the nub of what mutual legal assistance should be about: criminal law. That is what we want to achieve, and I hope that the Minister understands that serious points have been raised.
I shall finish by quoting one of the most senior and distinguished fellows in another place, Lord Renton, who has contributed to debates on these matters for something in the order of 40 or 50 years. He said:
''Perhaps I may make a rather bold suggestion. We all have great respect for the Attorney-General's legal ability, but instead of committing himself to an answer on these confusing and difficult questions now, perhaps he would consider between now and Report the whole use of the expressions, 'administrative proceedings', 'criminal proceedings' and 'clemency'.''—[Official Report, House of Lords, 23 January 2003; Vol. 643, c. 71.]
From all of his experience, it seemed to Lord Renton that the Attorney-General was in a rather confused position. The provisions are complex. We are trying to take out some of the complexity, bring back clarity and restrict this part of the Bill to criminal proceedings, which is the nub of what we should concentrate on.
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