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Baroness Carnegy of Lour: That was an interesting reply. As the Minister said, Clause 33 provides that the judge must be satisfied that the order is sought for the purposes of the investigation. If he does not know the precise reason for the request for the order, how can he know that it is sought for the purposes of the investigation? I appreciate that we are balancing protecting those who bank with banks and so on with our determination to catch the criminals, and that it is a difficult balance to strike. However, can the judge know that the order is sought for the purposes of the investigation if he does not know the precise reason for the request?
Lord Filkin: I would not want to second-guess judicial discretion, but, essentially, the judge will look at the information and evidence that he has before him when he has to discharge his duty under the Act. If he is not satisfied with that information, he will say no to the request. It will then be up to the requesting authority to provide further and better particulars. One hopes that it does not reach that stage because it would be a waste of the court's time. One therefore hopes that the prior discretion which the Secretary of State can exercise will have been exercised vigorously to ensure that such requests do not reach court unless the Secretary of State feels that the duty under the Act had been adequately answered by the information provided by the requesting state.
In practice, that will not blind the relevant officials administering the arrangements. If they are in doubt, they will ask for further information, until they feel that it is reasonable for the Secretary of State to exercise his discretion to allow a request to go before the court. So it should not be a passive process. If there is any doubt at an earlier stage, the Secretary of State or, more likely, his officials will have challenged the adequacy of the order by the means I have outlined.
Baroness Carnegy of Lour: That is what my noble friend Lord Bridgeman is saying in Amendment No. 95A. The Minister seems to be saying that what my noble friend wants will happen anyway if the Secretary of State and his officials do their job. Is that right?
Lord Filkin: Yes; I was really giving a further gloss on how, in the situation which the noble Baroness instancedof a judge being in some hesitationone would hope that, if the Home Office officials had done their work vigorously, they would already have challenged a draft order which seemed to them to
Viscount Bridgeman: I am grateful for that explanation. Returning to the point made by the noble Lord, Lord Goodhart, we are always modest in our requests. I feel that the provisions of the protocol should be incorporated in the legislation. If the Minister does not feel prepared to give way at this stage, I think that we should like to revisit the matter at a later stage. Meanwhile, I beg leave to withdraw the amendment.
The noble Lord said: In speaking to Amendment No. 96, I shall, with the leave of the Committee, also speak to Amendments Nos. 100, 103 and 108, all of which are in the names of my noble friend Lord Dholakia and myself.
Customer information orders under Clause 32, account monitoring orders under Clause 35 and the equivalent Scottish orders under Clauses 37 and 40 intrude into the right of privacy under Article 8 of the European Convention on Human Rights. They will contravene Article 8 unless they are justifiable as being prescribed by law and necessary in a democratic society and so on.
Lord Filkin: The amendments would insert explicit references to the safeguards provided by the Human Rights Act in the four clauses covering provision of customer information and account information. For reasons which I shall seek to explain, we consider this to be unnecessary and even potentially confusing. The Joint Committee on Human Rights raised this issue. Having considered it again, I am satisfied that the response that I gave to the Committee was appropriate. I shall try to explain why.
Customer information orders and account monitoring orders potentially engage Article 8(1) of the European Convention on Human Rights, but the respect for private and family life enshrined in Article 8(1) is qualified by Article 8(2). Any proportionate infringement of Article 8(1) must be justified if it is in accordance with the law and necessary in a democratic society in the interests of the prevention of disorder or crime or for the protection of the rights and freedoms of others. For that reason, the Government consider that the making of customer information and account monitoring orders in the circumstances set out in the identified clauses is justified within Article 8(2).
As the Committee well knows, these provisions support the fight against international crime. They will enable the UK to respond to requests from EU partners for banking information that would help progress an international investigation. They will implement the reciprocal obligation created by the protocol, which will, once in force, enable our investigators to seek valuable information relating to overseas bank accounts of suspects whose criminal activities are being investigated here.
The Human Rights Act applies to all legislation. It would therefore be confusing and superfluous to include additional references to ECHR rights, which would then imply that the provisions do not apply to a particular Bill, or that the ECHR rights always need repetition in Bills in order to take effect.
It may assist if I go a little further. I hope that it is not too technical, but I should like to address the issue of why there is no reference to the ECHR in relation to incoming requests under the protocol whereas there is such reference for overseas freezing orders, to which I have referred.
Clause 21(7) refers to the ECHR for overseas freezing orders. That is to cover situations in which it would be manifestly clear to the UK court that has to give effect to an overseas order that there has been a flagrant breach by the overseas court of the ECHR. In this situation, the UK must not automatically give effect to the overseas freezing order without considering ECHR issues as that could place the UK court itself in breach of its own ECHR obligations.
The framework decision on freezing orders is a mutual recognition measure and provides for only very limited grounds for non-recognition of orders. The protocol, by contrast, is a mutual legal assistance measure. The key difference is that, under the framework decision, refusal by the court is possible in explicit circumstances as set out in Clause 21(6) and (7) of the Billnamely, incompatibility with the ECHR where the principle of Ne bis in idem (that is, not being prosecuted where there is a previous acquittal or conviction on the same facts) is infringed. Those two grounds are therefore specified in the legislation.
The whole point of mutual recognition is that, apart from these limited circumstances, the overseas freezing order should be recognised. Mutual legal assistance involves a greater level of judicial discretion. The judicial decision is reached here, and so will be subject to the Human Rights Act, rather than in the requesting executing state.
Lord Goodhart: I think it is, but I should like clarification. Obviously, it is possible that someone who is affected by the making of a customer information order or an account monitoring order might challenge the order because, on the facts of that particular case, it is not proportional and is therefore caught by Article 8. Whether or not such a claim succeeds, in that case, would the Government accept that they could not simply say to the court, "You cannot hear this argument; all you can do is decide whether there is an incompatibility"?
Lord Renton: Before the Minister replies, perhaps I may say that we must be very careful. If we are not we shall find that provisions of the Bill will be incompatible with other provisions and with our obligations under the European Convention on Human Rights as implemented by the Human Rights Act. At some point we have to make sure that the customer information given in Clause 32(8) does not lead people into a breach of Clause 21(7) or indeed with the Human Rights Act.
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