Crime (International Co-operation) Bill [Lords]

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Mr. Heath: I am grateful to the hon. Gentleman for his intervention. I understand his point but, with great respect, if that were his intention, the amendment is aimed in the wrong direction. He should be adding a requirement to subsection (2) that needs to be satisfied. At present, the only things that remain to be satisfied are the two points under subsection (2), the first of which is that an offence has been committed or that there are reasonable grounds for suspecting that an offence has been committed and, secondly, that legal or investigative proceedings have been undertaken. Both issues are conclusive. They are not open to sensible challenge from the authorities in this country.

The hon. Gentleman is asking for a third condition, which is that there are reasonable grounds for suspecting that there is evidence that is pertinent to those conditions in this country. Had he tabled an amendment to that effect, it would have given rise to a more considered debate.

Mr. Paice: I take the hon. Gentleman's point. There is another way in which to go about matters. I want to introduce an element of discretion. The certificate may be conclusive in respect of subsection (2)(a) and (b), but it should not be conclusive that the authority should commit British resources. Saying that it should be regarded as conclusive, but that it may have regard to a certificate reassures us about part 2, and leaves open the discretion that there should be some sign of the matter being relevant to this country. The hon. Gentleman's alternative suggestion may be a different way in which to proceed, but I strongly contend that my proposed amendment also opens up that element of discretion, which is all that I am trying to achieve.

Mr. Heath: I am grateful, but I still have to argue with the hon. Gentleman about the adequacy of his amendment. Discretion is covered under clause 14(1), which states:

''The territorial authority may arrange for evidence''.

That deals with his point. He is trying to allow for the question of the certificate under subsection (2). That is an open and shut case. Obviously, I have not persuaded the hon. Gentleman of the logic of my argument. However, I have entirely satisfied myself.

10.15 am

Mr. Ainsworth: It is good to know that the hon. Gentleman is satisfied. Amendment No. 29 would require dual criminality in respect of any requests for evidence. There is currently no requirement for that in respect of requests for evidence to be taken before a court. To introduce it would be a backward step. It is contrary to international agreements, including the 1959 Council of Europe convention on mutual legal assistance, which the United Kingdom ratified in 1991.

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We would not want other countries to make a dual criminality requirement in respect of all requests from the United Kingdom. That would hinder an effective investigation of crime. The hon. Member for South-East Cambridgeshire says that we should not tell him that such measures were in the 1990 Act, but explain how the 1990 Act has operated. We do not keep records that show how frequently we assist in matters that are not considered to be offences in this country.

There is no requirement to establish whether there is dual criminality, so it would be a poor use of resources to require case workers to assess that in every case. I cannot therefore inform the hon. Gentleman of how many times or in what ways we have given assistance when the dual criminality measure would not apply. I am sorry that I am not able to do that, because records have not been kept.

Amendment No. 30 would introduce discretion where none currently exists. It would require the territorial authority to establish the validity of the basis of a certificate independently of the confirmation provided by the requesting authority. We consider that the subsection is correctly drafted. It replicates the existing provision and provides that a certificate from an overseas authority is to be regarded as conclusive about the matters covered by the request. In all but exceptional cases, the certificate is not required.

The letter of request will contain sufficient information for the territorial authority to be satisfied over the measures in subsections (1) and (2). It is not a requirement for us to go behind the request and independently establish the facts of the case. As the hon. Member for Somerton and Frome said, we would not necessarily expect in such cases that an overseas authority would go behind a request that we made to find out whether a police force were carrying out such an investigation or whether a matter appeared before a court.

A certificate is useful in particularly complex cases as it sets out exactly which matters are being investigated when that is not clear from the request. In such cases, the territorial authority may ask the requesting state to send a certificate setting out further information to support the original request. Under the 1990 Act, there have been infrequent occasions when the central authority has insisted on a certificate, but the provision has been used to good effect in those cases where it has not been clear what the purpose of the request was from the original letter or subsequent inquiries that have attempted to clarify the position.

As the hon. Member for Somerton and Frome says, it comes down to when we impose the dual criminality requirement. In past years, we have imposed it only when coercive investigative procedures or searches have been involved. I do not believe that problems have arisen from that, but I cannot give the hon. Gentleman chapter and verse on the subject. We plan to replicate the provisions of the old legislation in the Bill, and we will not do what the hon. Gentleman asks us to do—impose a dual criminality requirement in areas where we have not previously done so, and where we do not perceive there to be a problem.

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Mr. Paice: Well, the seventh cavalry has left, and the sixth-and-a-half, in the form of the hon. Member for Somerton and Frome, has come to the Government's rescue. It seems today that the Lib-Lab pact is riding high again, and is trying to knock down the amendments that my hon. Friends and I have tabled. We should table several more amendments. [Interruption.] If the hon. Member for Somerton and Frome tempts me, I shall table considerably more.

The issue of dual criminality is clearly a matter of judgment and opinion. I understand the Minister's arguments on why the provision should not come in, but I remain of the view that it should. However, he is clearly adamant on the subject. I was interested to hear that he does not actually know what the impact has been—he explained why—or whether the issue has arisen in the 13 years since the 1990 legislation was passed. I was really trying to extract that information.

On amendment No. 30, it came out in the Minister's reply that what I am seeking is actually taking place; there are occasions on which the authority will ask for further information. I think that that is what the Minister said. He said that there are occasions when the authority may go back to the country that is asking for assistance.

Mr. Ainsworth: In my understanding, not after the certificate; the certificate is effectively what brings the matter to a close. An original request is made. Sometimes, clarification of the request is sought, and sometimes—although rarely—there are difficulties getting that. The certificate is the last method used to impose clarity on what exactly is being asked for.

Mr. Paice: That is a helpful intervention. Clearly, I slightly misunderstood the Minister's earlier comment. None the less, what the Minister says means that it is not simply the receipt of a certificate that takes place, but an exchange of information before that. In practice, what I am seeking to achieve is that some evidence apart from what appears baldly in Bill, which is the simple fact that

''an offence . . . has been committed or that there are reasonable grounds for suspecting that such an offence has been committed, and . . . that proceedings . . . have been instituted'',

all of which could be put into two lines of a document. The Minister is telling us that there is more to the matter than that. I am puzzled as to why that is not made clearer in the Bill. The point is that, from what the Minister has said, what I am seeking to achieve, which is that authorities should be given more information than the bald facts outlined in subsection (2), is already provided for, so it is pointless to pursue that amendment.

That brings me back to the issue of dual criminality, which remains a matter of debate and judgment, and on that basis we had better leave the amendment this time. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14 ordered to stand part of the Bill.

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Clause 15

Nominating a court etc. to receive evidence

Question proposed, That the clause stand part of the Bill.

Mr. Hawkins: I have a brief point to raise. The clause was not debated at all in the other place, because there were a couple of amendments that Baroness Carnegy of Lour did not move, for reasons that she explained. In effect, the clause went through the other place on the nod. We on the Conservative Benches do not have a problem with the clause; in fact, we strongly approve of subsection (2), which is about the Secretary of State referring matters that relate to serious or complex fraud to the director of the Serious Fraud Office.

I hope the Minister will be able to answer just one question. If he cannot answer it today, I hope that he will, with his usual courtesy, do me the honour of writing to me to explain things. Subsection (1) says:

''Where the evidence is in England and Wales or Northern Ireland, the Secretary of State may by a notice nominate a court to receive any evidence to which the request relates which appears to the court to be appropriate for the purpose of giving effect to the request.''

What form will that notice take? If that has, as I anticipate, been going on since the 1990 Act, perhaps the Minister could show me an example of the notices that are used. If he cannot answer now, perhaps he will write to me and other Committee members.

 

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Prepared 12 June 2003