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Mr. Ainsworth: In principle, I would accept what the hon. Gentleman is saying, if it were not for the fact that we are talking about the Delegated Powers and Regulatory Reform Committee, whose function is to consider proposals for delegated powers and decide whether they are set at a particular level. It took such action and said nothing about it. If it had thought that the negative procedure was inappropriate, it would be pretty strange that it said nothing about it.
Mr. Hawkins: I hear what the Minister says, but I wanted to warn him that I do not think that he is wise to say that because a Committee says nothing about something, it necessarily connotes that it is happy with it. The hon. Gentleman knows what I am saying. He said that, in general terms, he agrees with me. He understands where we are coming from on the issue.
We think that, if there is to be an order-making power as set out in clause 29(1) and that power is to be used, the House of Commons should scrutinise it. The Minister says that the Government do not have in mind any extension at the moment and they did not think that the Bill was the appropriate vehicle to use, but they wanted to give an order-making power. We are always unhappy with open-ended, order-making powers for the Secretary of State, because at some stage matters can go through on the nod under the negative resolution procedure. That is why we considered that it would be better to have the affirmative resolution procedure.
The Minister knows that we will be returning to the issue, and I hope that the Government will use the affirmative resolution procedure more often. He has put his views on the record, and I have put our views on the record. I do not wish to pursue the matter. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 29 ordered to stand part of the Bill.
Clause 30
Hearing evidence through television links
or by telephone
Mr. Paice: I beg to move amendment No. 86A, in
clause 30, page 17, line 25, leave out 'appears to'.
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The Chairman: With this it will be convenient to discuss the following:
Amendment No. 44, in
clause 30, page 17, line 25, after 'State' insert 'knows'.
Amendment No. 45, in
clause 30, page 17, line 26, at end insert—
'(2A) A request under subsection (1) must—
(a) specify the reason why it is not desirable or possible for the witness or expert to attend in person;
(b) give the name of the judicial authority and the names of the persons who will be conducting the hearing; and
(c) state that the witness is willing to give evidence by television link in the proceedings before that court.'.
Amendment No. 46, in
Amendment No. 51, in
schedule 2, page 65, line 5, leave out 'appears to him to' and insert 'he is satisfied will'.
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Mr. Paice: I am interested in the way that this afternoon's proceedings are going. We seem to have lost the massed ranks on the Government Benches. They might be sitting by the telephone waiting for a call—on such occasions hope springs eternal. However, there will be disappointments. [Interruption.] The Whip is laughing as if he knows the inner secrets of what is going on. Whips always pretend to do that, whether they know or not. If the Minister is called away suddenly during the course of the afternoon, we shall understand why—much as I should like to think it would be because he realised he had lost the argument, it might not be.
Clause 30 relates to the hearing of witnesses in the UK using television links to a court in another country. Amendments Nos. 86A and 44 do stand separately and must run together. Amendment No. 51 is the same and applies to schedule 2. We are concerned about the vagueness of the statement in clause 30(2), which refers to
''the authority in that country which appears to the Secretary of State to have the function of making requests of the kind to which this section applies.''
The phrase ''which appears to'' is incredibly vague. Bearing in mind that we are talking about countries with which we have signed some sort of convention, we should know which authorities have the function of making requests. I tabled the amendment to extract from the Minister why that subsection has to be so vague. Will the Government contemplate granting the power to hear witnesses in UK courts through television links to a court overseas if the Secretary of State is not absolutely satisfied that the request comes from a body that has the right power? The phrase ''which appears to'' is vague and, given that the geography of the world keeps changing and countries break up as well as join together, it is essential that we know which authority can make such a request.
Amendment No. 45 would insert a new subsection in clause 30. It supports what I have been saying in so far as it would ensure that the Secretary of State is
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properly assured of why the request is being made. It specifically states that the request should
in such proceedings. The amendment should be accepted not only because it would support the obligation behind the request, but because it has been taken from the text of the second additional protocol to article 10 of the mutual legal assistance convention—those words appear in paragraph 8 on page 7. If we have already signed up to that convention—and we have, which is why we are passing this Bill—I do not understand why that text cannot be in the Bill.
The amendment is reasonable. The Minister—I was going to say the Secretary of State, but I should not jump to conclusions—will probably say that it is not necessary because all that information will be given in the request anyway. If that is the case, it enhances my argument that it should be included in the Bill.
When we consider proposed legislation, we must bear in mind not only the situation today, but what things might be like while it is still current. It is important to consider authorities in other countries, for we do not know what might happen to the office of Secretary of State in years to come. It is important that the Secretary of State should be given the authority, so that if the request does not contain all the information he needs, he can refuse to accede to it, even if, as the Minister will no doubt assure me, he can refuse to accede to it anyway.
Amendment No. 46 is a probing amendment. Subsection (3) starts with a vague piece of phraseology:
''Unless he considers it inappropriate to do so the Secretary of State must by notice in writing nominate a court''.
What could be construed as inappropriate? There seems to be a change in drafting jargon running through much of the Bill. On various occasions I and other hon. Members have questioned the vagueness of some aspects of the Bill; this is another example. What does it mean? What checks and balances are there on the Secretary of State as to whether something is inappropriate? What if he believed, for example, that the authority in the country that made the request was not the proper authority? What if he did not agree with the Government of that country? Is that inappropriate enough for him to nominate the court in writing? It is odd that such a vague term is used.
The amendment does not require much introduction; it is a challenge to what on earth the Government mean by placing something so vague in the Bill. What kinds of example did they think about in which the Secretary of State might consider things to be inappropriate? The group of amendments covers various issues surrounding the role of the Secretary of State in making decisions on a request to hear witnesses in the UK through TV links. All the amendments are important. I look forward to
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hearing the Minister's response to various issues that bear further investigation.
Mr. Ainsworth: Whether or not anyone knows what has happened in the reshuffle, the hon. Member for South-East Cambridgeshire should reflect on the fact that I have failed to resist two resistable amendments. Perhaps I am already aware of my demise and have become rather demob happy—[Laughter.] He should bear that in mind.
David Cairns (Greenock and Inverclyde): If he is going, can he not take us with him?
Mr. Ainsworth: There are too few of you here.
The amendments relate to requests received by the UK to provide for TV evidence at the request of an overseas authority. Amendments Nos. 86A and 44 relate to authorities that may request assistance via a TV link. I shall explain which authorities will have the function of making requests, and I hope that that will deal with the hon. Gentleman's concerns.
The purpose of the drafting of subsection (2) is to give flexibility to ensure that the UK is in a position to consider all requests made by legitimate overseas authorities, however those are defined in different national legislation, while retaining the final discretion for the Secretary of State about whether to execute the request in a particular case. I understand what the hon. Gentleman says. There is an issue to do with flexibility and checks and balances. We are not talking about extradition or intrusive surveillance: we are talking about someone giving evidence via television link. I hope that the hon. Gentleman will bear that in mind. To what degree do we want to tie down in statute the flexibility in this particular case? It would be useful to maintain that flexibility.
What are these authorities? In the case of the signatories to the 1959 Council of Europe convention on mutual legal assistance, which forms the basis of MLAC, judicial authorities are defined by each state. Therefore, where we are dealing with another Council of Europe country, the appropriate authority will be set out in its Council of Europe declaration.
However, in the case of both Council of Europe and non-Council of Europe states, the authority will be a court, a prosecuting authority or other authority with a role in the investigation and prosecution of crimes and in mutual legal assistance. In some cases, a central authority might be responsible for making requests of this nature: the Home Office may perform that function in certain regards, and there might be a similar organisation in the requesting country that handles such cases on its behalf. The Secretary of State's discretion regarding execution provides a safeguard against requests from inappropriate authorities.
Amendment No. 45 would require incoming requests from overseas authorities to include three pieces of information, which are specified. The first two are requirements of article 10 of MLAC. However, their inclusion in the Bill is unnecessary. The drafting gives the Secretary of State the ability to refuse to nominate a court for a hearing if all the requirements are not met. He will make his decision
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with the MLAC requirements in mind. The matters listed in the amendment are not the only pieces of information that must be included in a request for a hearing by video link. All requests, including those for a hearing by video link, must include information referred to in article 14 of the European mutual assistance convention. Those requirements are not listed in the 1990 Act or the Bill. The decision not to list the additional requirements here is consistent with that approach.
It was suggested in another place that inclusion of these matters in the Bill would help to ensure that witnesses were fairly treated and that countries did not abuse the opportunity to take evidence by video link. However, these requirements are not about the protection of witnesses: they are mainly practical matters to ensure that administrative arrangements for the hearing can be made. Protection of witnesses' rights is adequately provided for, particularly in schedule 2.
To impose the third proposed condition—that a witness is willing to give evidence—would be contrary to the provisions of MLAC, so we cannot agree to its inclusion. It is only possible to impose such a condition in relation to hearing accused persons if member states choose, in accordance with article 10(9), to extend the provision to hearing accused persons. The Government are not proposing to enable accused persons to be heard in this way.
Subsection (3) gives the Secretary of State discretion not to take forward a request. Amendment No. 46 would remove that discretion. The provision will enable the Secretary of State not to comply with a request when that request would contravene national law. It retains an overall discretion for the Secretary of State in all cases, while not being unduly prescriptive in the conditions that it imposes on overseas requests. That would enable the Secretary of State to refuse requests if they do not contain the necessary information.
3.30 pm
We consider that amendment No. 51 is a drafting amendment, and that the current drafting is appropriate. It would require the Secretary of State to be satisfied that the overseas authority has the specified function, which reflects an earlier amendment to clause 30. In the context of schedule 2, the Government consider that the current drafting has the advantage of consistency with other clauses and that the test that an authority seems to be appropriate provides sufficient safeguards. It may be that different authorities are involved in making arrangements for the protection of witnesses rather than making the request for the hearing. Dedicated witness protection teams or the police might be involved in the requesting country, for example, in the request that is being made.
I understand the hon. Gentleman's argument, but we are not surrendering people. We are obliging them to give evidence by video link, if abroad. There are so many variables. We are not necessarily talking about
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convention countries only, but any country. There is a desire to maintain flexibility and we are concerned about the degree to which we want to tie down the Secretary of State and Executive to respond appropriately and be able to block inappropriate responses. I do not believe that the safeguards for which the hon. Gentleman is calling are necessary. The schedule provides good and comprehensive safeguards.
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