Select Committee on Delegated Powers and Regulatory Reform Second Report


ANNEX 1

CRIME (INTERNATIONAL CO-OPERATION) BILL

Memorandum by the Home Office

1.  This Memorandum is concerned with the Crime (International Co­operation) Bill, which was introduced in the House of Lords on 19 November 2002. It identifies each provision of the Bill which confers powers for delegated legislation, and explains in each case the reason why the power has been taken to make delegated legislation, and the nature and the reason for the procedure selected.

PART 1 - MUTUAL ASSISTANCE IN CRIMINAL MATTERS

Clause 7: Requests for assistance in obtaining evidence abroad

2.  Clause 7 of the Bill provides that judicial authorities in the United Kingdom may request assistance in obtaining evidence abroad where it appears that an offence has been committed or there are reasonable grounds for suspecting this, and proceedings in respect of that offence have been instituted or an investigation is under way. In addition to judicial authorities, a prosecuting authority may request assistance, subject to the conditions set out in subsection (5), if the prosecuting authority has been designated by an order made by the Secretary of State.

3.  Clause 51 provides that the power to make an order conferred on the Secretary of State by Part 1 of the Bill is exercisable by statutory instrument. (This also applies to orders made by the Treasury, the Scottish Ministers or the Lord Advocate.) Statutory instruments which contain an order made under Part 1 of the Bill will be subject to the negative resolution procedure.

4.  The power to designate a prosecuting authority by order made by the Secretary of State is considered necessary to maintain flexibility as to the types of prosecuting authorities which may be designated in the future, and the negative resolution procedure is considered an appropriate level of Parliamentary scrutiny given the nature of the order in question. It reflects existing arrangements under the Criminal Justice (International Co­operation) Act 1990. These arrangements will continue under the new provisions.

Clause 27: Exercise of powers by others

5.  Clause 27(1) contains an order-making power to provide that functions conferred on the Secretary of State under sections 13 to 27 of the Bill (which apply to requests from overseas authorities to obtain evidence in the UK, and overseas freezing orders) may, in circumstances prescribed in the order, be exercisable by the Commissioners of Customs and Excise. In addition, functions conferred on a constable may, in circumstances prescribed in the order, be exercised by a Customs and Excise officer. Subsection (2) contains an order-making power for the Secretary of State to provide by order that functions conferred on him, or a constable, may, in the circumstances prescribed in the order, be exercised by another person.

6.  Currently, the authorities which execute requests for legal assistance, such as Customs and Excise, do not have the power to nominate courts to receive evidence or issue warrants in relation to requests for mutual legal assistance: although they do perform much of the work of executing requests, they have to seek the authority of the Secretary of State. Exercise of this power would enable requests to be made directly to Customs and Excise, bypassing the Secretary of State, and enable Customs and Excise fully to execute these requests. This will facilitate direct transmission of incoming requests for mutual legal assistance in a wider range of cases. Direct transmission is a central tenet of the Mutual Legal Assistance Convention (established by Act of the Council of the European Union of 29 May 2000) ("MLA Convention") which this Bill implements.

7.  The provisions contained in clause 27(2) empower the Secretary of State to provide by order that other authorities may also exercise the functions in relation to the execution of requests. This is a power which may be used in the future to enable the Crown Prosecution Service, for example, to take an active role in the execution of requests, although it is not at present involved in the process. This order­making power gives maximum flexibility for the future. As with other orders under Part 1, orders made under clause 27 will be subject to parliamentary scrutiny, and subject to the negative resolution procedure which is considered appropriate given that clause 27 extends to other bodies functions the Bill already confers on the Secretary of State or a constable.

Clause 28: Interpretation of Chapter 2

8.  The provisions of Chapter 2 of the Bill on freezing orders, (both domestic orders as defined in clause 10, and overseas orders as defined in clause 20), implement the draft Framework Decision of the Council of the European Union on the execution of orders freezing property or evidence. Although provisional agreement has been reached on the Framework Decision, it is still technically in draft form, and the possibility remains that there could be textual changes. Therefore, it is not possible in the Bill to refer precisely to the finalised version of the Framework Decision. The definition of "the relevant Framework Decision" in clause 28(1) provides a power for the Secretary of State by order to identify the Framework Decision once it is finalised - again, as with other orders under Part 1 of the Bill, clause 51 provides that the order will be subject to the negative resolution procedure.

9.  Freezing orders apply to offences listed in the Framework Decision - by virtue of clause 10(1) in relation to domestic freezing orders, and clause 20(4) in relation to overseas freezing orders. The Framework Decision sets out a number of serious criminal offences. However, given that the Framework Decision has not yet been formally adopted, clause 28(5) contains an order­making power for the Secretary of State to identify the particular provision of the Framework Decision which lists the criminal offences to which the Framework Decision applies. If the Secretary of State needs to cover a broader range of offences than those listed in the Framework Decision, clause 28(5)(b) contains an order­making power to prescribe offences other than those described in a provision of the Framework Decision. The Framework Decision envisages that participating countries will apply its provisions beyond the offences listed in the Decision itself.

10.  Clause 28(7) provides that the certificate which must accompany either an overseas or domestic freezing order is the information specified either in the Framework Decision itself, or that the certification should contain information prescribed by order made by the Secretary of State. Again, this order-making power is necessary given that that the Framework Decision has not yet been formally adopted.

11.  As with other orders under Part 1 of the Bill, such an order will be subject to the negative resolution procedure under clause 51. These provisions are not considered particularly controversial, and are designed to enable the Bill to refer to a Framework Decision which has not yet been formally adopted, and the negative resolution procedure is considered appropriate.

Clause 29: Hearing evidence through television links or by telephone

12.  1Section 32 of the Criminal Justice Act 1988, which allows the use of video links in court proceedings in limited circumstances, remains unaffected by this Bill. (The position is the same in relation to Scotland under section 273 of the Criminal Procedure (Scotland) Act 1995.) However, clause 29 provides an order­making power for the Secretary of State, or the Scottish Ministers, to extend the offences covered by both these Acts. This order-making power gives flexibility to extend the types of criminal proceedings in which television evidence may be transmitted to the UK and is subject to the negative resolution procedure under clause 51. This should allow Parliament sufficient scrutiny of the proceedings which may, in the future, be covered by these Acts.

Clause 43: Information about a person's bank account

13.  Clause 43 makes provision for the UK to request assistance from other countries participating in the Protocol to the MLA Convention (established by Act of the Council of the European Union of 16 October 2001) (the "Protocol") in obtaining details of any bank accounts held by a person who is subject to an investigation into criminal conduct. As well as UK judicial authorities requesting assistance under this clause, a prosecuting authority may make a request itself, rather than having to route this request through a judicial authority, under clause 43(3). This reflects existing practice and is replicated in relation to other requests for assistance in clause 7(5). The prosecuting authorities which are capable of making a request in this way are those which are designated by an order made by the Secretary of State or, in Scotland, the Lord Advocate or a procurator fiscal. This is the effect of clause 43(4). It is necessary to retain flexibility in relation to the particular prosecuting authorities which may be designated. The Secretary of State (or, as the case may be, the Lord Advocate or Procurator Fiscal) will want to monitor developments in this field, and assess which prosecuting authorities are considered suitable to make direct requests for assistance. Accordingly, the Bill contains an order-making power which, under clause 51, is subject to the negative resolution procedure. This is considered an appropriate level of parliamentary scrutiny for the power to designate prosecuting authorities.

Clause 44: Monitoring banking transactions

14.  As with clause 43 above, a UK judicial authority may make a request to other countries participating in the Protocol to monitor transactions if it appears relevant to a UK investigation into criminal conduct. As with clause 43, a designated prosecuting authority may itself make a request under this clause, rather than having to route a request through a judicial authority, and an order designating such an authority will be subject to the negative resolution procedure.

Clause 46: Interpretation of Chapter 4

15.  The provisions of clause 32 on customer information orders, and of clause 43 on a request from the UK for information about a person's bank account, relate to serious criminal conduct. The Protocol envisages that the types of criminal conduct covered by the Protocol may be extended at a later date. It is, therefore, necessary to provide in clause 46(3)(b) for the Secretary of State or, in Scotland, the Scottish Ministers, to be able to specify further types of offence covered by the notion of serious criminal conduct, and to which the Protocol may in future apply. As with other orders under this Part of the Bill, clause 51 provides that it is to be subject to the negative resolution procedure.

Clause 51: Subordinate legislation

16.  Clause 51 provides that the power to make an order conferred on the Secretary of State by Part 1 of the Bill is exercisable by statutory instrument. (This also applies to orders made by the Treasury, the Scottish Ministers or the Lord Advocate.) As discussed above, an order made under Part 1 of the Bill will be subject to the negative resolution procedure.

Clause 52: General interpretation

17.  Clause 52(2)(b) relates to the definition of a participating country. The provisions of Part 1 of the Bill governing freezing orders and requests for assistance in obtaining information about banking transactions apply in relation to participating countries only. A participating country is a Member State of the European Union (other than the UK) on the day a particular provision of the Bill applying to participating countries enters into force, and other countries which may be designated by an order made by the Secretary of State under clause 52(2)(b). Norway and Iceland, for example, are members of Schengen, but are not Member States of the European Union. As such, they will participate in parts of the MLA Convention and Protocol. The power to designate a country as a participating country is necessary for the provisions of the Bill governing service of process and obtaining information about bank accounts to apply to these countries. It is necessary in relation to the provisions on freezing orders as these will only apply between EU Member States that have implemented the Framework Decision in accordance with Article 14 of that Decision. The power is also necessary to extend these provisions of the Bill to accession countries which become Member States of the European Union in the future but are not Member States on the day a particular provision of the Bill applying to participating countries enters into force. By virtue of clause 51 as described above, this order­making power will be subject to the negative resolution procedure.

PART 2 - TERRORIST ACTS AND THREATS: JURISDICTION

Clause 53: Jurisdiction for terrorist offences

18.  This clause inserts new sections 63A to 63E into the Terrorism Act 2000. Section 63C relates to terrorist attacks abroad on UK nationals, residents and diplomatic staff and gives the UK extra-territorial jurisdiction over various terrorist offences when they are committed against such persons outside the UK. Article 9(1)(e) of the Framework Decision on Combatting Terrorism 2002 requires Member States to take extra-territorial jurisdiction over offences against institutions of the European Union which are established on their territory. Subsection (3)(c) of section 63C includes, therefore, in the definition of a person protected under this section employees of the European Agency for the Evaluation of Medicinal Products, which is, at present, the only European Union institution based in the UK. If further EU agencies are established in the UK in the future, the order-making in subsection (3)(d) will enable the Secretary of State to add further bodies. Schedule 4 amends section 123 of the Terrorism Act 2000 to confirm this would be by the negative resolution procedure, which is considered an appropriate level of Parliamentary scrutiny for any such order.

PART 3 - ROAD TRAFFIC

Clause 55: Application of clause 56 (duty to give notice to foreign authorities of a driving disqualification of a non-UK resident)

19.  This provision relates to the recognition by another Member State of the European Union of a driving disqualification imposed in the UK on a resident of that State. Clause 56 places a duty on the appropriate Minister (the Secretary of State in Great Britain), or the Department of the Environment in Northern Ireland) in the circumstances specified in clause 55 to notify a driving disqualification to the authorities in the Member State where the offender is normally resident. However, under clause 55(4), this duty does not apply in prescribed circumstances. Furthermore, under clause 55(3) there will be no duty to give notice to a prescribed state where the period of disqualification in relation to that state is less than a prescribed period (that period being shorter than 6 months).

20.  Clause 75(1) provides that "prescribed" means prescribed by regulations made by the appropriate Minister. Under clauses 73 and 74, regulations made under Chapter 1 of Part 3 of the Bill will be subject to the negative resolution procedure, and, to allow flexibility in the application of the regulations, may make different provision for different purposes. It was considered appropriate to take a power to prescribe the matters referred to in paragraph 19 above which may differ between each of the Member States, and the negative resolution procedure is considered an appropriate level of scrutiny given that Parliament will, during the passage of the Bill, scrutinise the general duty to notify a driving disqualification to the authorities in the Member State concerned.

Clauses 57 and 58: Application of clause 58 (recognition in the UK of foreign driving disqualification)

21.  These provisions relate to the recognition by the UK of a driving disqualification imposed by another Member State on a UK resident. Clause 58 provides for the disqualification in the UK of a person disqualified in another Member State, to whom the circumstances set out in clause 57 apply, to whom the appropriate Minister has sent a notification. As with clause 55 above, under clause 57(4) these provisions do not apply in relation to a prescribed state if the period of disqualification is less than the period prescribed for that state.

22.  Clause 57(6) also provides that the disqualification will not be recognised in the UK if proceedings overseas were brought later than the time at which summary proceedings for any corresponding offence in the UK could have been brought. The appropriate Minister may, under clause 57(8), make regulations which provide that offences under the law of a part of the UK correspond to offences under the law of a Member State of the EU other than the UK for the purposes of clause 57(6).

23.  The period during which a person is disqualified from driving in the UK is set out in clause 58. This clause provides that the appropriate Minister may make regulations which determine the unexpired period of a foreign disqualification, and these regulations may include provision in connection with the period of time during which the overseas authority has seized a driving licence but has not returned it to a driver. Where the foreign disqualification applies until a condition is satisfied, clause 58(4) provides that the condition, or a corresponding prescribed condition, will have to be satisfied. Any corresponding UK condition will be set out in regulations. If the foreign disqualification is removed in circumstances other than those prescribed in regulations, clause 58(6) provides that the UK disqualification will cease. There is also the power in clause 58(7) to extend the period before the commencement of the UK if this is considered necessary in the future. This provision matches that in clause 60(4).

24.  The matters which are to be prescribed under clauses 57 and 58 and the regulations made will be subject to the negative resolution procedure. It was not considered appropriate to set out on the face of the Bill detailed provisions as to determine unexpired periods of disqualification, particularly where these may vary according to procedures and practice in different Member States. This is material considered more suitable for delegated legislation, and the negative resolution procedure is considered an appropriate level of Parliamentary scrutiny.

Clause 60: Appeal against disqualification

25.  Where a person is disqualified from driving in the UK under this Part of the Bill, he may give notice of an intention to appeal. This appeal must be brought within the period specified in clause 60(3), but the appropriate Minister is given the power under clause 60(4) to make regulations substituting a longer period. This regulation-making power will maintain flexibility in relation to appeals which may be brought. The appropriate Minister will monitor the bringing of appeals under clause 60, and may consider it necessary to alter the appeal period in the future.

Clauses 73, 74 and 75: Regulations, and Interpretation of Chapter 1 of Part 3

26.  As mentioned in the note to clause 55 above, clause 75(1) provides that "prescribed" means prescribed by regulations made by the appropriate Minister. This is the Secretary of State in Great Britain, and the Department of the Environment in Northern Ireland. Under clauses 73 and 74, regulations made under Chapter 1 of Part 3 of the Bill will be subject to the negative resolution procedure.

PART 4 - MISCELLANEOUS

Clause 83: Foreign surveillance operations

27.  Clause 83 inserts new section 76A into the Regulation of Investigatory Powers Act 2000, and allows for automatic authorisation of overseas officers to carry out surveillance in the UK for up to five hours, in the very limited circumstances set out in section 76A. This is to enable urgent cross-border surveillance where an advance request to the UK authorising the surveillance has not been possible. Section 76A sets out the conditions which must be satisfied before urgent cross-border surveillance will be lawful, and this includes surveillance in relation to a relevant crime. Subsection (3)(b) sets out that a relevant crime, as well as those which fall within Article 40(7) of the Schengen Implementing Convention 1990, may be an act which is classed as a crime in an international agreement to which the UK is a party. The Secretary of State (with the consent of the Scottish Ministers) is given the power by order to specify any such international agreement for this purpose. This order-making power is necessary to provide the flexibility to cover crime set out in international agreements to which the UK may in the future become a party. Powers may be conferred on overseas police or customs officers under international agreements, other than the Schengen Convention, and the Secretary of State may wish these officers to have the powers contained in section 76A in relation to foreign surveillance operations in the UK. The Secretary of State (with the consent of the Scottish Ministers) is accordingly given an order-making power to specify international agreements under subsection (9)(b). Orders under subsections (3)(b) or (9)(b) will be subject to the negative resolution procedure under clause 78(4) of the 2000 Act, and this is considered an appropriate level of Parliamentary scrutiny for an order specifying an international agreement in this context.

28.  Subsection (4) of new section 76A provides that urgent cross-border surveillance will be lawful if certain conditions are complied with. Failure to comply with these conditions will mean that the surveillance in the UK is not lawful under this new section. To maintain flexibility as to the contents of these conditions, subsection (4) contains an order-making power to specify these conditions. However, given the significance of allowing overseas officers to conduct surveillance in the UK which will be lawful for all purposes if the conditions are satisfied, subsection (8) provides that such an order is subject to the affirmative resolution procedure. It is anticipated that the first order under this power will include the conditions contained in Article 40(2) and (3) of the Schengen Convention

29.  Subsection (7) provides the Secretary of State with an order-making power to designate a person to notify the overseas officer that the surveillance ceases to be lawful once that person gives notification. This will be subject to the negative resolution procedure, given that this relates to a notification process only, rather than the content of conditions to be imposed on overseas officers.

Clause 86: Schengen-building provisions of the 1996 Extradition Convention

30.  Clause 86 provides a power for the UK to bring into force various provisions of the 1996 Convention relating to extradition between the Member States of the European Union which opened for signature on 27 September 1996. This power is exercisable by Order in Council subject to the negative resolution procedure. The Order may include supplementary, incidental, saving or transitional provisions so as to enable the Order in Council to come into effect at a particular time without necessarily affecting extradition arrangements which may already be being carried out. This power is likely to be used in relation to Norway and Iceland, (which are members of Schengen but not Member States of the European Union and not party to the 1996 Convention) and may choose, subject to the approval of the Member States, to participate in various provisions of the 1996 Convention which build on the Schengen arrangements. The power may also be exercised in relation to other states if necessary. The extradition arrangements which would apply as a result would be those that already apply between the UK and other Member States under the 1996 Convention. The negative resolution procedure is considered to be an appropriate level of parliamentary scrutiny to extend these existing arrangements to other states.

Clause 87: States in relation to which 1995 and 1996 Extradition Conventions not in force

31.  This clause is designed to allow the UK unilaterally to apply the provisions of the 1995 and 1996 Conventions to countries which have not ratified the Conventions themselves. The clause is necessary so that the UK is able to fulfil its Schengen obligations in relation to Italy, which has ratified the Schengen extradition provisions, but has not ratified the subsequent 1995 and 1996 Conventions, which repealed and replaced the Schengen extradition provisions in relation to Member States. It was not considered desirable to introduce a different extradition regime for Italy to that for the other EU Member States, and this clause creates enabling power which may be used to extend to Italy the relevant provisions of the 1995 and 1996 Conventions. The power is exercisable, as with clause 86, by Order in Council subject to the negative resolution procedure. Clause 87 will extend to Italy, and any other specified State, extradition arrangements which are currently in force in relation to the other Member States, and this is therefore considered an appropriate level of parliamentary scrutiny. As with clause 86, any Order in Council may include supplementary, incidental, saving or transitional provisions for the reasons given above.

Clauses 88 and 89: False monetary instruments

32.  These clauses implement Article 2 of the Framework Decision of 28 May 2001 on combating fraud and counterfeiting of non-cash means of payment. Article 2 requires Member States to make it a criminal offence to misuse specified "payment instruments", where misuse includes possession of a stolen instrument or a counterfeit instrument for fraudulent purposes. Section 5 of the Forgery and Counterfeiting Act 1981 criminalise possession of an instrument in relation to a specific list of forged instruments, and this list is not as extensive as that covered by the Framework Decision. Clause 88 therefore extends this list of instruments, and new subsection (7) of section 5 of the 1981 Act creates a power for further monetary instruments to be added by order made by the Secretary of State, should future developments require this. This power is subject to the negative resolution procedure which is considered appropriate in the circumstances. It is to be noted that a similar power to specify monetary instruments in section 289(7) of the Proceeds of Crime Act 2002 is subject to the negative resolution procedure.

33.  Clause 89 inserts new section 46A into the Criminal (Consolidation) (Scotland) Act 1995, and sets out the offence of counterfeiting or falsifying a specified monetary instrument, as well as possession of such an instrument or a means of designing or adapting a specified monetary instrument. Subsection (8) of new section 46A provides that the Scottish Ministers may by order specify by order which monetary instruments are covered by this provision, and this order is subject to a negative resolution of the Scottish Parliament.

PART 5 - FINAL PROVISIONS

Clause 91: Supplementary and consequential provision

34.  This clause provides a power for the appropriate Minister (the Secretary of State, or the Scottish Ministers where the subject matter falls within the competence of the Scottish Parliament) to make supplementary, incidental, consequential, transitory, transitional or saving provision which is necessary or expedient to give effect to any provision of this Bill. This clause provides the necessary flexibility if the provisions of this Bill require that an amendment be made to any enactment or other instrument. This power may be used, for example, if an order is made under clause 29 referred to above (which would extend the types of proceedings in which witnesses abroad may be heard through television links in UK proceedings) and it is to apply to criminal proceedings instituted after a certain date. Such orders will be subject to the negative resolution procedure of the Westminster Parliament where an order is made by the Secretary of State, and of the Scottish Parliament where an order is made by the Scottish Minister.

Clause 92:  Commencement

35.  This clause provides that the Bill (except clauses 91 to 94 which govern such matters as the extent of the Bill and its short title, and amendments and repeals made necessary by its provisions) will come into force on such day as the Secretary of State may by order appoint. This power may be used, for example, to provide that the provisions of the Bill on overseas and domestic freezing orders, referred to in the note to clause 28 above, will come into force once the Framework Decision also referred to in that note is formally adopted. It may also be used to commence the provisions of Part 3 of the Bill relating to recognition of driving disqualifications at different times with respect to different states, depending on when those states implement their obligations in this regard so as to ensure mutuality of enforcement. (Subsection (2) specifies certain clauses of the Bill which will come into force on a day appointed by the Scottish Ministers.)

26 November


 
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