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Baroness Anelay of St Johns: My Lords, I beg leave to withdraw Amendment No. 21.

Amendment, by leave, withdrawn.

Lord Goldsmith moved Amendment No. 22:



"( ) The judicial authority is to send the order to the Secretary of State or the Lord Advocate before the end of the period of 14 days beginning with its being made."

On Question, amendment agreed to.

Baroness Anelay of St Johns moved Amendment No. 23:


    Page 8, line 1, at end insert—


"(6) The provisions of this section shall cease to have effect ten years after the day on which they are brought into effect by virtue of provision made under section 93."

25 Feb 2003 : Column 162

The noble Baroness said: My Lords, I tabled this amendment after listening to the points made in Committee by the noble Lord, Lord Clinton-Davis, and my noble friend Lord Carlisle of Bucklow, as reported at cols. GC 64 and 65 of Hansard. I agreed with the thrust of their argument.

During the clause stand part debate, the noble Lord, Lord Clinton-Davis, asked the noble and learned Lord, Lord Goldsmith, whether the Government had in mind any procedure by which to ensure that within a reasonable period the whole system introduced by the clause would be reviewed. It is, after all, a novel procedure. The Explanatory Notes make the point that Clause 11 departs from the new procedure for general direct transmission in Clause 8. Under Clause 11, the freezing orders will be sent to the relevant foreign state via the Secretary of State, or via the Lord Advocate in Scotland.

The new procedure of direct transmission has not been adopted because the mutual recognition of freezing orders is completely new, and the format and conditions that apply will be unfamiliar to those issuing and receiving them. That is true now; but, as the noble Lord, Lord Clinton-Davis, pointed out, it will not be so for long. He said:


    "People will become more aware of their responsibilities".—[Official Report, 23/1/03; GC 65.]

He is absolutely right.

Does the Minister agree that it would be sensible to build into the Bill a method by which that position could be dropped after a reasonable period so that we could adopt the direct transmission that is a feature of other parts of the Bill? Surely that would ultimately prove more effective and efficient.

There was some banter in Grand Committee between the noble Lord, Lord Clinton-Davis, and my noble friend Lord Carlisle on the length of time after which the position could be reviewed, and on what is reasonable or not. Being the gentle compromiser as ever, I proposed the limit of 10 years. It is a reasonable period after which we should be able to assess the effectiveness of the clause. I beg to move.

Lord Renton: My Lords, I warmly support the amendment. We are entering a realm of uncertainty. This is an important mass of legislation, but Clause 11—sending freezing orders—is an experiment. When we legislate for an experiment, which could lead to great confusion and which could be dealt with by different countries in different ways, surely we need to assess it after a specific period. I think that 10 years is a very generous period. It might well have been five years, but my noble friend Lady Anelay has put forward 10 years, which is generous and reasonable.

I hope that the Government realise the uncertainties that may arise under Clause 11 and will enable these provisions to be brought to an end after 10 years so that we can assess them and introduce fresh legislation. I have no doubt that in 10 years' time matters will have changed

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and some amendments may be necessary. Therefore, it is a serious amendment which well deserves the Government's support.

Baroness Carnegy of Lour: My Lords, am I right to think that if the provisions cease to have effect, freezing orders will be exchanged directly between those concerned and so fresh legislation would not be needed? As time goes on it may become natural to exchange freezing orders across borders and people will become used to it. It would be nice not to have to continue with this very elaborate arrangement indefinitely. I do not know whether the noble and learned Lord is interested in that idea. I rather hope that he is because it would be a pity to have to continue with such a complicated measure for ever, when it would very likely be unnecessary.

Lord Goldsmith: My Lords, I have more than a little difficulty with the amendment. The specific point which arose was whether the method of transmission of freezing orders should be via the Secretary of State or directly. As I indicated, and as the noble Baroness, Lady Anelay, has repeated, the reason for taking this different procedure from the rather speedier process in other areas is its newness.

In answer to the noble Lord, Lord Renton, I should make plain that it is only the method of transmission which is under consideration. There is no experiment regarding whether freezing orders should be made at all. If made, of course they will need to be transmitted. We are signing up to them, and they will be of benefit. Therefore, the only question is the issue of transmission.

I am intrigued by the proposal of the noble Baroness, Lady Carnegy, that if we removed the section it would leave us free to exchange freezing orders directly. I fear that that would not be the result, but that they would be left in a legal limbo with no method for their transmission being provided at all.

While the Government are prepared to review the effectiveness of new systems—indeed it is very much in their interest so to do—I do not think that a sunset clause of this nature, which automatically brings the measure to an end, is an appropriate way to achieve that. After all, when the review takes place, the result may indicate that the system is working well, it is not causing delay, it is the best system and we should stick with it. It would be odd in those circumstances to have to legislate to put back into the statute something which has been taken out automatically.

The noble Baroness asked the direct question: would it be sensible to build into the Bill a provision taking the clause out of the Bill altogether? The Government believe that it would not be sensible, nor would it be a desirable precedent to set. I therefore urge the noble Baroness to withdraw the amendment.

Baroness Anelay of St Johns: My Lords, before the noble and learned Lord sits down, perhaps he will answer a question which may prevent me from returning with the matter at Third Reading. I have no

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intention of pressing the amendment today. When talking about the Government reviewing the matter, the Minister used the words "when the review takes place". At what stage is it intended that that first review should take place?

Lord Goldsmith: My Lords, I cannot say. I was talking in general terms because, as with other new systems, the Government will want to keep the matter under review. They will do so at an appropriate time and having regard to experience. I cannot put down any date for that.

Baroness Anelay of St Johns: My Lords, I am grateful for the contributions to the debate from my noble friends Lord Renton and Lady Carnegy. Having listened to them, I believe that although my amendment had a laudable objective it missed its mark. I accept the contribution by the noble and learned Lord, which showed that my aim was out. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 [Requests for assistance from overseas authorities]:

Lord Goodhart moved Amendment No. 24:


    Page 8, line 19, at end insert—


"( ) The authority may, if it thinks fit, refuse a request for assistance except on condition that the evidence obtained in pursuance of the request shall not be used or disclosed (except in a public, judicial or administrative hearing related to the request) for any purposes other than for the criminal proceedings or criminal investigation in connection with which the request has been made."

The noble Lord said: My Lords, Amendment No. 24 allows the United Kingdom authority to impose a restriction on the use of evidence provided to a foreign country in response to a request for assistance for purposes other than those for which the request was made. If the amendment is incorporated, it would reflect a restriction applied by Clause 9(2) to the use of information, which has been obtained by the UK court from abroad. Amendment No. 24 is the reverse situation: it is the imposition of a restriction on evidence which is supplied by the United Kingdom to a foreign court.

The United Kingdom is not obliged to comply with the request. It can do so under the clause only if it is satisfied that there are reasonable grounds for suspecting that an offence has been committed, that proceedings have been commenced or that an investigation is being carried on.

Once that test has been satisfied and the United Kingdom has decided that it would like to supply the information for that purpose, it has no control over the use to be made of evidence by the requesting state.

The concern is that it might lead to a fishing expedition which would enable the evidence to be used for purposes beyond those for which it was sought and which would not in themselves have justified making a separate order.

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A similar amendment was tabled in Committee. In reply, the noble and learned Lord said:


    "The Government consider that the requirement imposed by that amendment would be unduly restrictive. We cannot legislate for overseas authorities. If we made such a requirement, we would have no way of enforcing it in the absence of a binding international agreement".

He went on to say:


    "We do restrict the use of material obtained using Section 2 powers of the SFO. Those are particularly powerful powers".—[Official Report, 23/1/03; col. GC 83.]

That reference is to Section 2 of the Criminal Justice Act 1987.

It is, however, plainly possible to provide for a restricted use of material by treaty. For example, Article 7(2) of the UK/USA Mutual Legal Assistance Treaty provides:


    "The requesting party shall not use or disclose any information or evidence obtained under this Treaty for any purposes other than for the proceedings stated in the request without the prior consent of the requested party".

It then states in Article 7(3) that consent is implied, unless it has been expressly refused, to the use of contents after they have been disclosed in a public hearing.

The approach adopted in the treaty is right. The United Kingdom authorities should have power to withhold evidence if it is likely to be published to the world at large and should in appropriate cases be able to impose a condition—perhaps as a result of treaty—on how evidence is handled by the requesting state to which the United Kingdom supplies it. I beg to move.

5.30 p.m.

Lord Goldsmith: My Lords, in responding to the amendment, I shall go somewhat further then I did in Grand Committee. I hope therefore to be helpful to the noble Lord, Lord Goodhart.

The general position in relation to mutual legal assistance—and the general position under the Bill and the 1990 Act—is, as I think I heard the noble Lord say, a matter for the discretion of the state that receives the request. I am told—something of which I was not aware when I responded previously, and which may be helpful—that on occasion, by relying on that general discretion, conditions are imposed in relation to particular requests where there is concern that a fishing expedition may be being conducted. There are examples where that has taken place.

There is therefore a general ability to impose a condition in certain cases. We would not want as a matter of policy and practicality to establish a general power to do so in relation to incoming requests. Indeed, in certain cases that would be impossible. The noble Lord rightly referred to the bilateral treaty with the United States, which contains restrictions, but there are international obligations that, in a sense, go the other way. Article 23 of MLAC states that certain personal data communicated under the convention can be used for specific purposes that go beyond the proceedings to which the particular request applies. So there would be a problem with the provision contained in the amendment.

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However, I hope that what I have said gives the noble Lord the reassurance that he seeks on the particular problem, and that he will therefore not feel it necessary to press the amendment.


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