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Baroness Anelay of St Johns moved Amendment No. 14:

The noble Baroness said: With the leave of the Committee, I wish to speak also to Amendment No. 15, which is grouped with this amendment. The amendments seek to probe the nature of the arrangements that will apply when United Kingdom criminal process is served overseas otherwise than by post. It would require that the arrangements be prescribed in secondary legislation. Paragraph 29 of the Explanatory Notes states:

    "The arrangements that will apply will be that documents will be sent via the Secretary of State to the central authority of the other country, which will transmit the process to the recipient".

If those are the only arrangements that can be used, why not include that statement on the face of the Bill? Without its inclusion, one is led to believe that there must be other arrangements that will apply at other times. Is the Secretary of State considering making other arrangements in the future? If so, what are they?

One could argue that, in practice, the arrangements will be made by the Central Authority in the other country rather than by the Secretary of State. There is no reference in Clause 4 to the sorts of issues dealt with by Clause 1(3) or Clause 2, which spell out in greater detail how the personal service of overseas process is to take place in the United Kingdom. I beg to move.

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Lord Filkin: These amendments would require an order setting out the arrangements for the service of procedural documents to persons outside the UK where they are not served by post. We do not believe that anything could be gained by having such arrangements in cases where direct transmission is not used for whatever reasons set out by order. The 1990 Act referred to arrangements made by the Secretary of State in precisely the same way as this Bill does. Those arrangements were never defined by order. The Government consider it unnecessary to define them now.

In practice, the procedural law of the overseas country involved will govern when a document is deemed to have been served. There will be variations among countries. Under the 1959 convention, service can be made by post, and proof of service may be a receipt. For those reasons, we think that the 1990 Act was sound and that the corresponding provision in this Bill is appropriate.

Lord Goodhart: I have a good deal of sympathy for this amendment. Provision on service abroad should be spelt out in more detail than at present. After all, service in the United Kingdom is dealt with in rules of court, which are statutory instruments; therefore, they do not necessarily require the approval of either House of Parliament, and are not subject to parliamentary control.

I understand that problems will arise and that the practice used may depend on the procedure of the country where the process is to be served. But it is not good enough to leave arrangements to be made by the Secretary of State.

Baroness Anelay of St Johns: I am grateful to the noble Lord for his remarks. I am not trying to overburden the system with more bureaucracy, but this is one of several areas that need to be clarified. The Minister has still not stated what other arrangements might be considered. I give notice that we will need to return to the matter. Perhaps the Minister will consider it before Report stage. As the noble Lord, Lord Goodhart, said, we need clarity, particularly in provisions relating to service abroad. On this occasion, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 15 not moved.]

Baroness Anelay of St Johns moved Amendment No. 16:

    Page 3, line 31, leave out "there are good reasons for thinking" and insert "the Secretary of State is satisfied"

The noble Baroness said: I wish to speak also to Amendment No. 17. Members, not least the noble Lords, Lord Filkin and Lord Bassam—whom I note is also in his place—will recall the debate in your Lordships' House on 8th July on the desirability of using the word "thinks" in legislation during the passage of the Nationality, Immigration and Asylum Bill in the previous Session—the debate is recorded at col. 482 of Hansard. I am sure that it is fresh in all our minds. In another place, the Government responded

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to the concerns raised and replaced the phrase "the Secretary of State thinks" with "the Secretary of State is satisfied that". Noble Lords welcomed that.

However, Clause 4(3)(c) contains the condition,

    "that there are good reasons for thinking that service by post will not be effective or is inappropriate".

My amendment seeks to raise the issue of what those good reasons must be. Who will have to do the thinking now that they are present; and, most importantly, to what standard? Will it be the Secretary of State or the Central Authority of the other country? The Minister, in responding to a previous amendment, gave us reason to think that the Central Authority might make the decisions. One assumes that the other country must be a participant in the arrangements before the conditions in subsection (3) would apply at all.

Amendment No. 17 also seeks to probe the nature of the circumstances in which service will be effected in a participating country in accordance with the arrangements made by the Secretary of State because service by post is inappropriate. It is reasonably easy to understand how service by post may be ineffective, as the preceding words of the paragraph state—we have already discussed the issue—but in what circumstances do the Government envisage that service by post will be inappropriate? After all, as the Bill is currently drafted, paragraphs (a) and (b) are absolutely obvious and seem to cover all eventualities. I am having difficulty in thinking of others. Paragraph (a) states that the correct address of the person is unknown; and paragraph (b) states that it has not been possible to serve the process by post. So what is left that could be covered by paragraph (c)? Who makes the decisions and on what basis? I beg to move.

5.30 p.m.

Lord Filkin: Clause 4 makes clear that the service of process by post is the norm for process from one member state to be served on a person in another member state. The clause makes service by post optional to persons in countries which are not in the EU and which have not been designated as "participating countries". Service other than by post to participating countries is possible only in strictly limited circumstances. Service by post should be quicker and more efficient than service through the Central Authority, provided that a full address is known and there are no other circumstances applying which make it inappropriate—for example, if the intended recipient was known to be living in France but his exact address was not known, the documents could realistically be served only by the French central authority.

Amendment No. 16 seeks to require the Secretary of State to make a decision as to whether it is inappropriate to serve documents directly. But the Secretary of State will not be the authority making the decision. The court issuing the document will assess whether there are good reasons why service by post is not appropriate.

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Amendment No. 17 would limit the reasons for not serving by post. It would remove the discretion of the courts to rely on personal service in cases where, for some reason, postal service would be inappropriate and ineffective. Service by post should be quicker and more efficient than service through the Central Authority, provided the full address is known and there are no other circumstances making it inappropriate.

As to the question about "good reasons", the good reasons will be in the mind of the person issuing the document, not the Secretary of State. There may be a procedural requirement that the document be served other than by post to allow a particular procedure—for example, trial in absence—to be followed. I hope that that explains why we believe that the clauses as drafted deal most appropriately with the intent.

Baroness Anelay of St Johns: I am grateful to the Minister for that reply. At the end of his explanation he answered my main question of what is covered by paragraph (c). His answer made me more concerned than relieved and I shall need to look at it further. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 17 not moved.]

Clause 4 agreed to.

Clause 5 [General requirements for effecting Scottish citation etc.]:

Lord Filkin moved Amendment No. 18:

    Page 3, line 39, at end insert—

"( ) Where citation or issue is by the prosecutor, is to be effected or the document to be served outside the United Kingdom and the prosecutor believes that the person against whom it is to be effected or on whom it is to be served does not understand English, the citation or document must be accompanied by a translation of it (or, in the case of a document, by a translation of so much of it as is material) in an appropriate language."

The noble Lord said: These are technical amendments tabled at the request of the Scottish Executive. Their purpose is to ensure that the Bill accurately reflects Scottish procedure. The usual situation in Scotland is that the citation is effected or the document issued without reference to the court. Because in certain circumstances the court may be involved, the references to that situation are retained within the clause.

In Scotland, it is usually the case that the procurator fiscal will effect the citation without the need for reference to the court. In that case, it will be for the procurator fiscal to ensure that if he believes the intended recipient does not understand English, a translation should be provided in an appropriate language.

However, it is also the case in Scotland that there are certain circumstances where the court may be involved—for example, where the accused fails to appear. For these circumstances, therefore, the reference to the court has been retained in the clause.

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The amendment relating to Clause 52 defines processes for Scotland to take account of Scottish procedure in this respect. It is a technical matter and relates to the Scottish procedure of citation. Whereas the terms "process" and "summons" are appropriate for the remainder of the United Kingdom, in Scotland "citation" is used to describe the situation in criminal proceedings whereby someone is called to court to answer the proceedings or to give evidence as a witness. Amendment No. 134 is necessary to reflect these Scottish procedures in the Bill. I beg to move.

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