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Lord Clinton-Davis: I asked whether there are similar procedures to the amendment.

Lord Goldsmith: If I have correctly understood the question put by the noble Lord, Lord Clinton-Davis, I cannot say whether other countries require an annual report on the use of freezing orders to be placed before Parliament. I was going to say—perhaps I may complete this point and the noble Lord can then intervene to make clear his question—that when the framework decision is in place and when it has been adopted, other countries will set up the procedures for the basic provision; that is, for the freezing orders to be both sought and executed.

Lord Clinton-Davis: I should be very surprised if the procedures which have been adumbrated by the noble Baroness are copied in any other jurisdiction whatever. I know that my noble and learned friend will write to me if I am wrong about that and particularly if anyone has adopted the procedures outlined by the noble Baroness. But, as I said previously, I doubt whether that is the case.

Baroness Carnegy of Lour: When the framework decision is made, does the noble and learned Lord think it possible that the Bill may be wrong? The Government are obviously ahead of the game on this matter. He indicated that thus far no other country had begun legislating in this way, or did I misunderstand?

Lord Goldsmith: My understanding is that, so far as concerns evidence, the provisions in relation to freezing orders are well set out in the draft. There is no reason to think that there will be any difficulty in that respect. Indeed, I can go further than that. The substance has been agreed and it is the only thing outstanding. I was rather more cautious in my words previously. The only matter outstanding in terms of negotiation is the accompanying certificate.

Lord Goodhart: Before the noble and learned Lord sits down, can he tell us, either now or later, what information will be contained in the annually published judicial statistics in terms of orders requested and orders made and a breakdown of the other countries concerned?

Lord Goldsmith: I certainly cannot answer that question at present but I shall ensure that inquiries are

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made. If a helpful answer can be given, the noble Lord will be told by letter, as will other Members of the Committee. Whatever the answer is, I shall ensure that his query is passed on. It is possible that a decision will not be made until rather later when the orders are in place and being used.

Baroness Anelay of St Johns: Again, I am grateful to the Minister for his response. As I said at the beginning, the amendment was a device in order to ask questions about what kind of scrutiny there would be. I can reassure the noble Lord, Lord Clinton-Davis, that I am not in the business of carrying out gold-plating here. This provision is not applied overseas. On the other hand, there may be times when we need to have parliamentary scrutiny in position which would not be possible overseas but which would be entirely proper here. I accept that on this occasion there may be other, far better ways of achieving that scrutiny than by means of an annual report.

I was grateful for the intervention of the noble Lord, Lord Goodhart, and I shall certainly consider the issue of judicial statistics. That is a very practical route to pursue. I am also grateful to my noble friend Lady Carnegy for her intervention. It meant that the Minister was able to give greater clarity on the issue of the draft framework decision. I believe we shall need to look at that matter further.

Like all Ministers, the noble and learned Lord was keen to assure us that, in order to hold the Government to account, we need only to table a few Written Questions. That is one of the battery of weapons that we have and it is one that I certainly do not underestimate. Particularly in this House, it has brought about some very fruitful and careful responses from the Government. I give my word that I shall try to find the energy and the time to ensure that we continue to hold the Government to account wherever possible. We are always sure to realise too late when we have left great black holes that should have been filled. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 [Domestic freezing orders]:

[Amendment No. 31 not moved.]

Baroness Anelay of St Johns moved Amendment No. 32:


    Page 7, line 1, leave out "is likely to" and insert "will"

The noble Baroness said: In moving the amendment, I want to explain to the Committee that I did not believe it was appropriate to spend time on Amendment No. 31 as the Minister had already obliquely made some response to it. I did not believe that it would be right to take up more time.

Amendment No. 32 raises the question of admissibility of evidence at a trial. How will the court approach the issue of deciding whether or not a particular piece of evidence is "likely" to be admissible, given the high degree of discretion which a trial court enjoys in deciding whether or not a piece of evidence should be admitted? Again, what tests will be applied and what standard of proof is involved?

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I shall leave the proper explanation of Amendment No. 33 to the noble Lord, Lord Dholakia, but it may be helpful if I make a brief comment on it now to save me having to return to it later. As one reads the amendment, it looks completely acceptable. How could one object to it? It appears to be absolutely right in principle.

However, as I understand the situation, a domestic freezing order that is incompatible with one or more of the ECHR rights could not, in any event, lawfully be made by a UK court—I hope that that is the case—as the court making the order would be acting unlawfully under Section 6 of the Human Rights Act and would not be able to use the defence under subsection (2) of that section that it could not have acted differently because Clause 10(1) allows the court a discretion by the use of the word "may" in line 38 rather than "shall". If I have that wrong, I shall back the noble Lord, Lord Dholakia, to the hilt, but I hope that this is one small matter that I have understood. I beg to move.

Lord Goodhart: I shall speak to Amendment No. 33, which, as the noble Baroness has just said, is grouped with Amendment No. 32 and is in the names of my noble friend Lord Dholakia and myself.

I start by saying that I am not altogether happy with the use of the word "domestic" freezing order because it seems to me rather confusing. It may be easier to say that an order is a domestic freezing order because it applies to evidence in this country. In fact, that is not what it does. As we know, a domestic freezing order is one made by a court in the United Kingdom for the protection of evidence in a participating country.

The reason that we tabled the amendment was largely because of the report of the Joint Committee on Human Rights. A freezing order is one which deprives a person who is entitled to the benefit of property of the right to make use of it. The Joint Committee on Human Rights said in its First Report of the present Session that:


    "The Bill engages a good many rights. The following seem to us to be in particular need of justification on human rights grounds—


    —orders to freeze evidence under Chapter 2 of Part 1 engage the right to the peaceful enjoyment of possessions under Article 1 of . . . the ECHR . . . and the right to respect for private and family life, home and correspondence under ECHR Article 8".

I note that in relation to overseas freezing orders, which are made by an overseas court for the freezing of property in the United Kingdom, a specific condition is attached under Clause 21(7) that giving effect to the order must not be incompatible with a convention right. No similar proviso is attached to Clause 10, and I simply seek confirmation of why it is not.

I suspect that the noble Baroness, Lady Anelay, is right and that the Government take the view that that is implicit because a requirement of the Human Rights Act that statutes must be construed wherever possible as compliant with the Act would cover this situation. However, I would like confirmation of that and also an explanation as to why Clause 21(7) is needed. Would there not be a similar implication that an order made

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by an overseas court cannot be given effect to in this country where it is inconsistent with the Human Rights Act?

Lord Goldsmith: I want to deal separately with the two amendments that have been spoken to. Amendment No. 32 would require that the condition for the order should be that the evidence must be shown to be admissible in the United Kingdom rather than that it would be likely to be admissible. This simply tracks precisely the same provision in relation to search warrants in the United Kingdom as required by PACE—the Police and Criminal Evidence Act. That, as the Committee will be well aware, sets out the safeguards which it has been thought are appropriate for intrusion into privacy, into people's homes or into the use of their property where domestic proceedings are at issue. To obtain a search warrant in the United Kingdom, Section 8(1)(c) of PACE, when read with Section 8(4), requires simply that the material is likely to be relevant evidence, and that implies an issue of admissibility. I would suggest that to require it to be demonstrated in front of a court which does not have the whole of the material in front of it that the material will be admissible is imposing far too high a burden and requirement.

As many if not all Committee members will know, questions of admissibility sometimes depend on what other evidence is available and on what the issues turn out to be. In those circumstances, to impose a requirement that it be shown that the evidence is admissible would be too high a burden. So in the Government's view there is no reason to go beyond the similar requirement under PACE in relation to United Kingdom search warrants. That is why we resist Amendment No. 32.

I turn to Amendment No. 33, to which the noble Lord, Lord Goodhart, has spoken. I make two initial comments. First, the noble Baroness, Lady Anelay, is right to say that Section 6(1) of the Human Rights Act imposes an obligation on courts to comply with the convention rights. Secondly, in the light of that, I am not sure what it is that the noble Lord, Lord Goodhart, is worried about. We are talking about a form of order to be sought in circumstances in which particular conditions apply. Those conditions are that there are proceedings or at least investigations into a listed offence, which is a serious offence; and that there are reasonable grounds to believe that there is evidence of substantial value in relation to that investigation or prosecution which is likely to be admissible and not subject to legal privilege. I would suggest that, in those circumstances, just as with the United Kingdom search warrant, the intrusion on privacy and property is likely to be entirely justified by the requirement that it be used for the purposes of prosecution for serious crime.

So I am not sure what concern the noble Lord, Lord Goodhart, has in mind. We are talking about countries that are themselves signatories to the European Convention on Human Rights. The foreign authority asked to execute the order will itself have to give consideration in the same way as the United Kingdom

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court would be able to do. That relates also to the point that the noble Lord raised on Clause 21(7), where it is manifestly clear that to give effect to an overseas order would be a breach of ECHR obligations.

7 p.m.

Lord Goodhart: There is nothing in the Act, is there, that specifies that a participating country must subscribe to the European Convention on Human Rights? It can be any country designated by an order made by the Secretary of State and could include countries that are not even European countries.


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