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The Parliamentary Under-Secretary of State, Home Office (Lord Filkin): I share with the noble Baroness, Lady Anelay, the challenge that the Bill presents at times, even though it has the benefit of being a comprehensive re-enactment of the 1990 Act rather than what we have seen in respect of other Bills whereby we have inserted amendments into prior legislation. Nevertheless, it is not always a simple matter.

Clause 1 replaces Section 1(1) and (2) of the Criminal Justice (International Co-operation) Act 1990 and differs only in that Clause 1(2) defines "process" more widely than in the 1990 Act. The amendment would restrict the service that the UK

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currently provides to overseas authorities because it would mean that we could serve overseas process documents only via the Secretary of State. In practice, that would mean the UK Central Authority based in the Home Office. We could do that only in cases involving participating countries. For the purpose of this chapter, "participating countries" would be defined as EU member states or other states designated by order.

The result of the amendment would be that process from non-participating countries could be served only directly. That would not be helpful because it is exactly countries outside the EU that need to be able to use our central authority. In practice, countries designated as "participating countries" will mainly be EU and Schengen states. Under the mutual legal assistance convention and Schengen, those countries will be expected to send process directly and not via the central authority.

Furthermore, direct process is less regulated than service via the central authority. Therefore, the effect—I am sure unintentionally—of the amendment would be that service from the further-afield countries would be less regulated than that from EU member states. For those reasons, we believe that amending the Bill in this way would represent a backwards step. There is no requirement in the 1990 legislation, which was introduced by the previous government and has in general worked well for the past 11 years, to designate countries for the purpose of service of process. For those reasons, we feel that this probing amendment is not appropriate.

The noble Baroness properly asked about situations where service by post would not be appropriate. Article 5.2 sets out the circumstances where procedural documents may be served via the central authority; for example, when the address of the recipient is not known, where the law of the requesting state requires proof of service beyond proof that can be obtained by post, and when it has not been possible to serve a document by post or where the requesting state has good reason for considering postal service to be ineffective or inappropriate.

I turn to the question regarding Iraq. Clause 1(3) is not an obligatory provision. It contains the word "may". It always remains open to the Secretary of State to decline to comply with a request. Clearly, there is a burden of responsibility on him when making an appropriate response to any such request. I hope that that has answered the probing amendment to the satisfaction of the noble Baroness, Lady Anelay.

Baroness Anelay of St Johns: I am grateful to the Minister for his opening salvo. He will not be surprised to know that we shall want to examine part of his answer in greater detail later, particularly with regard to his comment that in general the 1990 Act has worked well. As he will notice from the thrust of our amendments, we want to tease out precisely how that has worked and why the Act has been comprehensively re-enacted in this Bill, but with additions. We also want to know why there may now be opportunities to go a little further.

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The Minister is right to point out the defects in the amendment. They were intentional defects—a vehicle by which to probe the background to these issues. We would not take them further at a future stage, except with regard to the comments that the Minister made about the definition of participating counties. As he said, they are mainly EU and Schengen countries. There will be occasions in the future when we shall want to look in great detail at the definition of "participating countries" and the way in which that list may or may not be increased by the Secretary of State.

With regard to that matter, we have tabled other amendments and when debating them I can go into greater detail than is right or proper at this stage. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 2:


    Page 1, line 12, leave out subsection (2).

The noble Baroness said: In moving Amendment No. 2, I shall speak briefly to Amendment No. 3 standing in the name of my noble friend Lord Carlisle. They seek to probe the types of documents that may be served under Clause 1 and the nature of the proceedings that are covered by the power. I should particularly welcome the Minister's views on the ways in which subsection (2) of Clause 1 goes further than the existing wording of Clause 1 of the 1990 Act. In particular, subsection (2)(b) extends the provisions of the 1990 Act to a much greater range of proceedings; namely, what are called "administrative proceedings" as well as "clemency proceedings".

I hope that the Minister will be able to clarify one point on the drafting of subsection (2)(b) relating to the definition of "administrative proceedings" in Clause 52(1) That definition states that the term means:


    "proceedings outside the United Kingdom to which article 49(a) of the Schengen Convention applies (proceedings brought by administrative authorities in respect of administrative offences where a decision in the proceedings may be the subject of an appeal before a court)".

That definition of "administrative proceedings", that applies in subsection (2)(b) of Clause 1, clearly ties the term to the provision of Article 49(a) of the Schengen Convention. Article 49(a) of the convention states that it applies to:


    "proceedings brought by the administrative authorities in respect of acts which are punishable under the national law of one of the two Contracting Parties, or of both, by virtue of being infringements of the rules of law, and where the decision may give rise to proceedings before a court having jurisdiction in particular criminal matters".

Is it therefore the case that the service of overseas process under Clause 1 of the Bill in relation to such proceedings may be made only where the proceedings have originated in a country which is a party to the Schengen Convention? Is there, therefore, a distinction between the service of process in criminal proceedings—which, as I read the Bill, may be in relation to such proceedings in any foreign country—and service in administrative proceedings? I would welcome the

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Minister's views on that point. Perhaps he could also give some examples of what types of proceedings are classed as "administrative proceedings". I am sure that all Members of the Committee would be grateful for that.

Further, subsection (2) is drafted in much broader terms than those in the 1990 Act in respect of the documents to which it applies. The Bill uses terms such as,


    "any process . . . for the purposes of criminal proceedings",

and,


    "any document issued or made . . . in administrative proceedings".

Clause 52(3) defines the term "process" as including both court documents and,


    "any other document issued by a prosecuting authority".

Section 1(1) of the 1990 Act refers to a much narrower class of documents; namely:


    "a summons or other process requiring a person to appear as defendant or attend as a witness in criminal proceedings in that country or territory".

It also refers to,


    "a document issued by a court exercising criminal jurisdiction in that country or territory and recording a decision of the court made in the exercise of that jurisdiction".

There is therefore a difference in the definitions.

Can the Minister shed a little more light on the kind of documents which would be covered by the expanded definition used in the Bill, in particular, in relation to documents issued by prosecuting authorities—I know that amendments have been tabled in relation to them—and those that may be issued in connection with "administrative proceedings"? What is the full extent of the range of documents to which the provisions of Clause 1 will apply? I beg to move.

3.45 p.m.

The Deputy Chairman of Committees: I advise the Committee that, if this amendment is agreed to, I cannot call Amendment No. 3.

Lord Carlisle of Bucklow: In speaking to the earlier amendment, my noble friend Lady Anelay referred to the obvious importance of the purpose of the Bill. Clearly, it is one that we all support. We must do everything we can to improve co-operation in the service of criminal documents in criminal proceedings at a time when more major crime is of an international nature as regards drugs, the laundering of money and terrorist activity.

I have tabled a probing amendment to leave out subsection (2). While we accept the principles and purpose of the Bill, it is right that we should know in plain and simple terms, first, what changes and improvements are being made and to what extent the powers are being made wider than those in the 1990 Act and, secondly, the countries to which the powers apply. Moreover, they should be reciprocal in that those countries should be willing to act in a similar way in the process of documents provided from this country.

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I want to concentrate merely on subsection (2) and the widening of the terms which at present exist for international co-operation. Subsection (2) states:


    "This section applies—


    (a) to any process issued or made in that country for the purposes of criminal proceedings",

which, as I understand it, is similar to that which is provided in the Criminal Justice (International Co-operation) Act 1990; and,


    "(b) to any document issued or made by an administrative authority in that country in administrative proceedings recording a decision of the authority".

So far as I can see, that is a totally new power and presumably a widening of the co-operation in the service of documents on people who are living in a country other than that in which the proceedings are being taken.

Perhaps the Minister will tell us what that means. What are the administrative proceedings to which subsection (2)(b) refers? Who is the administrative authority in the country which is to make the applications? Do we have similar administrative authorities in this country? Do we have similar administrative proceedings? Are these meant to be proceedings separate from those of a criminal nature?

The Criminal Justice (International Co-operation) Act 1990 clearly is limited to the assistance in the process of summonses and documents relating to criminal matters. What is intended by "administrative matters"? In this country, an administrative matter might be said to be proceedings under the health and safety regulations; proceedings under planning matters; and possibly various taxation matters. What are the administrative proceedings to which the Home Office is intending to provide a service in this country relating to the process of documents which do not exist at the moment?

Clause 52 is a definition clause. It states that,


    "'administrative proceedings' means proceedings outside the United Kingdom to which article 49(a) of the Schengen Convention applies (proceedings brought by administrative authorities in respect of the administrative offences where a decision in the proceedings may be the subject of an appeal before a court)".

Presumably, they are to be administrative proceedings which are in some ways limited to the fact that they can be subject to an appeal before a court. But what does that mean? Almost any administrative proceedings one can look at in this country would at the end, I believe the noble Lord, Lord Clinton-Davis, would agree, be subject to judicial review. Is judicial review the equivalent of proceedings being subject to an appeal before a court? I do not say that there may not be a good explanation but I would like to know why we need to widen the powers in this way in this Bill, which appears to go far outside the field of criminal matters and open up matters of a totally different kind. To which countries will the provision apply? Is it reciprocal? There is no reference to the receipt by other countries of documents emanating from this country in the administrative procedures.

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I rise merely to learn the purpose of the clause because it is important that we do not suddenly find that we are passing provisions which may be convenient and, happily hanging around for a long time to be cleared up, can easily be dropped into a Bill that is being debated without relating to the purposes of the Bill.


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