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Lord Renton: I do not dispute the Government's good intentions with regard to this matter. I want to confine my remarks to Amendment No. 3 proposed by my noble friend Lord Carlisle of Bucklow. I believe that we need to be careful about the use of the expression "administrative proceedings". By implication, and bearing in mind that the expression "criminal proceedings" is used in Clause 1(2)(a), we must assume that administrative proceedings exclude all criminal proceedings and indeed exclude other judicial proceedings.

We must bear in mind that because the expression


has been used in subsection (1), subsection (2) must refer to administrative proceedings in any country in the world. They may have their own definitions of "administrative", "judicial" and "criminal" proceedings. I am not worried about the Government's intentions, but merely about the way in which subsection (2)(b) and (c) are expressed.

Lord Filkin: I thank the three Members of the Committee who have spoken on these interesting and important probing amendments. They will not be surprised to learn that our principal stand is that for reasons I will seek to outline we do not believe that they are appropriate and that they would put extra and unnecessary restrictions on the service of documents relating to overseas criminal proceedings in the UK. Therefore, we believe that we are going backwards from the procedures which have operated under the 1990 Act.

The first amendment would remove the definition of the types of process covered by Clause 1 so that the scope of subsection (1) would not be defined. That would widen the scope to cover all processes without reference to the type of proceedings and enable a completely open interpretation of "any process or other document". Again, that may not be the intention but we believe it to be the effect.

Subsection (2) is essential to provide guidance to those issuing and receiving procedural documents, especially because the category of relevant proceedings has been widened, as has been noted. Deletion of this subsection would leave it open to a judge to interpret "any process or other document" in any way he saw fit, potentially opening it up to include all types of procedural document with no relevance to criminal or related proceedings.

While the first of the two amendments would have removed the definition of the scope of subsection (1), thus expanding it unreservedly, the second of the two would have defined the scope of process, we believe, unacceptably narrowly. Paragraphs (b) and (c) list types of proceedings in relation to which, under the terms of Article 49 of the Schengen Convention, the

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UK is obliged to assist. Removing these paragraphs would render us unable to assist in relation to these proceedings and would put the UK in breach of its international obligations, which is clearly not what we wish to do.

These subsections relate to administrative offences—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. This may not be serious criminality but it is part of a general process of offering mutual legal assistance. If we are to have good relations with our EU partners and receive their full co-operation, we must be able to assist even in the more mundane cases.

I shall try to develop some of the other issues raised. Why have the arrangements been widened? Under the provisions of the Schengen Convention and the MLA convention, we are obliged to provide assistance in relation to these new types of proceedings. In certain circumstances, such as clemency proceedings and certain civil proceedings, these administrative proceedings are linked to criminal proceedings. While the UK itself does not have proceedings equating to all of those, nevertheless it must be able to assist. The current draft enables us to do so.

Administrative proceedings are not restricted to participating countries. In this context, the administrative proceedings are not ones with which we are familiar, but I have already covered that point. The powers are reciprocal on the basis that there is an obligation on all EU members states to implement them. They are clearly not reciprocal in regard to other countries because such a reciprocal agreement is not in place.

Administrative proceedings cover only those where there is an appeal to a criminal court. On that basis, I assume that the ability to apply for judicial review is not appropriate, but I shall check that point. Judicial review clearly is a form of appeal, but I do not think that the ability to appeal to a court under judicial review implies, as the noble Lord, Lord Renton, suggested, that the matter is necessarily on all fours with the administrative proceedings. The process is defined in Clause 52(3). However, in the context of administrative proceedings, we are not certain what documents might be included. We therefore have to give scope to the description of "any document" in that respect.

I believe that, at heart, these questions reflect the extent to which it is possible to define "administrative proceedings" and, therefore, the extent to which there are adequate safeguards and protections in the absence of a definition. I am not seeking to imply in my remarks that we feel that anything is wrong in the drafting. However, I should like to look with some care at the issues raised in the questions to see whether I can answer them further and more fully in writing in order to put beyond any doubt the uncertainties expressed. With that offer, which is not an unusual one to Opposition Members, I trust that, at this stage, the Committee will be happy to let matters rest.

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4 p.m.

Baroness Carnegy of Lour: I am sure that the Minister, who is very well informed on these issues, will appreciate how difficult it is for lay people to understand them. Is he saying that paragraphs (a) to (d) are all separate and mutually exclusive, or do they overlap? Are administrative proceedings—a definition of which my noble friend Lady Anelay has requested—different from the proceedings outlined in paragraphs (a) to (c), or has that been included to ensure that the list covers all possibilities? Is that a valid question or have I misunderstood the position?

Lord Filkin: It is a perfectly clear question, as the draftsmen have given us none of the benefit of the usual "ands" and "ors". I am told that, in the absence of the "ands" and "ors", the list is intended to cover everything. One may therefore imply an "or" between them; in other words, a document could be covered by one or more. The provisions are self-standing or could be dealt with in conjunction.

Lord Dholakia: I am grateful to the Minister for his explanation. When he gives some thought to those issues, will he bear in mind the point made by the noble Lord, Lord Carlisle of Bucklow, in relation to reciprocal arrangements and whether such arrangements are appropriate before an order is signed in relation to any other country designated by the Secretary of State?

Lord Filkin: Yes, indeed.

Lord Stoddart of Swindon: I have listened to what has been said. I was confused when I came into the Committee, and I am still a little confused. It is worrying that in a Bill to make,


    "provision for furthering co-operation with other countries in respect of criminal proceedings and investigations",

and,


    "to extend jurisdiction to deal with terrorist acts or threats",

driving offences were the one example of an administrative matter that the Minister gave in his reply. If driving offences can be considered as among the administrative causes, we really are widening the scope of the Bill beyond what most of us, and certainly I, would consider reasonable. Have I misunderstood what the Minister said, or am I correct that the Bill is taking powers to widen the scope far beyond what some of us think is necessary and what we were led to believe on Second Reading?

Lord Renton: Before the Minister replies, I wonder whether it would be helpful if I made a very simple suggestion. I think that the problems to which my noble friends and others have drawn attention would be easily solved if, in paragraph (b) of subsection (2), we were to leave out the expression "by an administrative authority" and, in the next line, refer not merely to "administrative proceedings" but to "judicial proceedings"—which would of course include criminal proceedings. That is a simple solution for overcoming the difficulties expressed.

Lord Carlisle of Bucklow: One would hesitate to question the views of my noble friend Lord Renton on

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any form of immediate drafting as being likely to be totally accurate and of assistance. Nevertheless, although my noble friend may have provided the Minister with the answer to his problems, the problem certainly exists. In his original reply to my request, the Minister seemed to say that we have had to bring in administrative proceedings because certain administrative proceedings are analogous to criminal proceedings in this country, and driving offences were the only example that he gave. However, where does it say that he is limited to that type of proceedings?

As my noble friend Lord Renton forcefully pointed out, as the clause states that,


    "This section applies . . . to any process issued or made in that country for the purposes of criminal proceedings",

and then goes on to say that it applies to any document in administrative proceedings, the implication is that those are not criminal. Clause 52 states that "administrative matters" are limited to those in which,


    "a decision in the proceedings may be the subject of an appeal before a court".

However, I do not think that that answers the question. Although I totally accept the Minister's statement that judicial review is not a "criminal matter", it is an appeal before a court. There is nothing in Clause 52, the definition clause, to show that "appeal" means "subject to appeal being brought before a criminal court". At the moment, the provision seems to cover administrative matters, of a civil or criminal nature, started by administrative authorities which are subject to any appeal before a court. I think that the word "criminal" should be imposed at some stage to make it clear that it is intended to limit the provision to offences of this kind.

Finally, I do not think that the Minister really answered my question about what type of proceedings the Government have in mind. Although they are not "criminal proceedings" as such, breach of planning procedures could, I imagine, end up in the criminal courts. Breach of health and safety regulations could certainly be the subject of criminal proceedings. They would be the subject of criminal proceedings rather than being brought as an administrative process. I should like to hear more from the Minister. I am particularly grateful for his kind offer to put in writing the Government's thoughts on this matter, and look forward to the opportunity to reflect on his comments.


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