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1 Apr 2003 : Column 812—continued
Mr. Mark Francois (Rayleigh): The hon. Gentleman is, like me, a veteran of the Criminal Justice Bill, which
is still making its way through Parliament. He has mentioned the importance of maintaining English common law. Will the Liberal Democrats hold true to that in their reaction to whatever finally emerges from the European Convention's examination of the proposed new constitution?
Mr. Heath: I do not think that there are any proposals to abolish English common law. We shall deal with hypotheticals when we reach them, rather than pre-empting discussion.
The third test is defence of the liberties of the individual. Parts of the Bill concern intrusion, lack of remedy and inappropriate use of information. We must be on our guard against those. In the other place, my noble Friend Lord Dholakia said that
- "any threats to the fundamental right to privacy must be legitimate, proportionate and necessary".—[Official Report, House of Lords, 2 December 2002; Vol. 641, c. 984.]
What we must not do is adopt an approach coloured by any xenophobic insistence on the inadequacies of all systems except ours. We should recognise the enormous mutual interest in arrangements of this kind to secure as effective a policing and judicial system as possible. Such a system needs to be based on reciprocity and respect for other legal systems.
Like the hon. Member for South-East Cambridgeshire, I am worried about what may happen if the Bill's provisions extend well beyond EU countries with which we have familiar relationships to countries whose jurisdictions are wildly different. We should be careful about that. The most likely candidate is the United States, with which we have many dealings and which is, I understand, the source of most extraditions—or, at least, the source of more than any other country with which we have dealings.
Whatever respect we have for the Americans and their system of government, we must accept that their jurisdiction is different from ours in many respects. The situation is complicated by the fact that we are not dealing with a single jurisdiction: because the United States is a federal nation, we are dealing with 50 jurisdictions, which differ among themselves. One reason for my concern is that only yesterday a new extradition treaty and asset-sharing agreement was signed by the Home Secretary and the US, bringing procedures between the UK and the US more in line with extradition arrangements with European countries. I do not necessarily decry that, but the House should be aware of its happening and of the possibility of problems of interpretation arising between jurisdictions and the non-transportability of judicial concepts between the United States—particularly, some states in the US—and this country. We will not debate a Bill on the treaty agreement in the same form as the provisions before us today and that worries me, because it will have as many consequences for our citizens as anything produced by the EU.
Mr. Cash: Would the hon. Gentleman extrapolate on his comments about jurisdictions in respect of countries within the European Union or the accession countries?
Does he agree that significant differences exist between our judicial system and that of almost all other countries in Europe, which presents a serious difficulty for these proposals?
Mr. Heath: With due respect to the hon. Gentleman, I have just said that. However, we share a common European standpoint in being signatories to the European convention on human rights and we are also co-signatories to the Council of Europe convention. We therefore start on a basis of similar safeguards, which is not the case with countries outside the European family. We should understand the importance of that difference.
Turning to the specifics of the Bill, part 1 deals with mutual assistance in criminal matters in the service of process, covering requests for assistance both from abroad to us and from the United Kingdom to other countries. I hope to be assisted in further consideration of the Bill by my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael), who has the distinction of being the only Member who has, in his previous role in the Scottish legal system, drafted letters of request to overseas authorities. It would be valuable to reflect on the changes that apply in that respect.
Part 1 also deals with the freezing of orders, and questions need to be asked about issues of dual criminality—already dealt with in other legislation—particularly whether requests will have adequate judicial scrutiny, rather than simply administrative scrutiny, which would be a retrograde step. For example, should this country accept a request for evidence that would not be admissible in the British system, but might be admissible under a different legal system? Would such a process be acceptable? What safeguards would apply to the defence in respect of access to information provided in that way? Also, what safeguards would apply in respect of requiring direct relevance to a judicial procedure of any evidence requested? Those are all questions that we should reflect on carefully when we address these matters in Committee.
The same applies to information about banking transactions and there is a real fear that fishing expeditions might be undertaken in the guise of these proposals. We must be careful to ensure the rights of our citizens in that respect, particularly that they have a right to privacy for their transactions unless they are directly related to the investigation of a criminal offence.
Ms Debra Shipley (Stourbridge): On the question of banking, does the hon. Gentleman agree that Operation Ore, which worked through credit cards, has had a shocking effect on the country? The response of the banking sector so far has been somewhat limited, but the Government now have an opportunity to require banks to do more to stop payments for pornography and other things pertaining to criminal offences.
Mr. Heath: The hon. Lady makes an important point, though there is a fine line between requiring banks to assist in the investigation of criminal transactions and requiring them to do so in respect of matters that are not illegal but disapproved of. I would be careful to draw that line and make it clear that only specifically criminal behaviour should be covered. The National Criminal Intelligence Service has good systems for dealing with
financial transactions. The problem is that the system is overwhelmed by the information that it collects. The Government need to address the issue of resourcing. If we are to deal with requests not just from British investigating authorities, but from other European authorities, the ability to meet the demands placed on the system could be a serious problem that has to be overcome.The last section of part 1 deals with the transfer of UK prisoners to give evidence abroad. I do not share the view expressed earlier that that should not be subject to consent. We are talking about giving evidence rather than facing charges in another jurisdiction. I would go the other way and seek to ensure that the prisoner agreeing to such an arrangement does so on the basis of proper information and advice from legal representatives. That safeguard should apply.
Mr. Llwyd: I am following the hon. Gentleman's argument carefully. Some jurisdictions in the European Union do not have a rule against self-incrimination. I wonder whether that should be taken into account and responded to at some stage.
Mr. Heath: The hon. Gentleman, who has great experience in this area, makes a valid point and we should deal with that problem as we examine the Bill in greater detail.
Part 2 deals with extra-territorial jurisdiction in respect of terrorism. That is welcome: we must have the capacity to deal with terrorist attacks on British Crown territories abroad, such as our diplomatic missions, and to deal with British subjects who commit acts of terrorism. I have no difficulty with that. In a spirit of inquiry, however, I ask whether the provisions would apply to British subjects currently incarcerated in Guantanamo bay. If they are not prisoners of war, they must surely be suspects of terrorist activity. When the Bill is passed, will a request be passed to the United States authorities to return those prisoners to face trial in the United Kingdom, instead of being incarcerated sine die as they are now?
Simon Hughes : Through my hon. Friend, may I ask the Minister to respond to that specific point at the end of the debate? Hon. Members have made various attempts on behalf of their constituents who are incarcerated in Guantanamo bay. It would be helpful to know what representations the Government have made, are making and will make in the near future when the Bill is passed.
Mr. Heath: I agree with my hon. Friend and I look forward to hearing the Minister's response.
Part 3 deals with the convention on driving disqualification. Mutual recognition of driving qualifications is long overdue, but some questions of detail still need to be asked. First, the Government have gradually introduced the concept of using disqualification from driving as a sanction for non-driving offences. I am not sure how that would fit within the legislative framework, or whether similar legislation in other European countries could be difficult to translate into British law.
I am concerned that a British driver convicted and disqualified abroad might not have the same opportunity as a British driver charged in a UK court to
put arguments about the threat that disqualification would pose to his or her livelihood. British lorry drivers convicted of minor offences might be punished by disqualification, which could have a disastrous effect on their ability to earn their living and maintain their livelihood in the UK and abroad. That is simply a concern—I am not sure how it could be addressed.It is astonishing that mutual recognition of driving disqualifications does not exist within the UK. It is extraordinary that disqualifying a person in Northern Ireland has no resonance on the mainland of Great Britain, and vice versa. The same is true for the Channel Islands, the Isle of Man and Gibraltar. Will the Minister say whether our recognition of disqualification in Gibraltar will be matched by the Spanish Government's recognition of qualification in Gibraltar? The longstanding disagreement between the British and Spanish Governments about the recognition of Gibraltarian driving licences needs to be addressed. If that is not achieved by the mutual recognition provisions in the Bill, it is hard to see the point of trying to recognise mutual qualifications across the EU.
Two major elements of the Bill are dealt with in part 4. I have no problem with Britain entering the Schengen information system. I can see all sorts of advantages in that, and I welcome the enhanced role of the Information Commissioner. However, I worry that that massive information system is only as good as the data that are put into it, as the hon. Member for South-East Cambridgeshire said. At the last count two years ago, 49,000 terminals were already attached. Tens of thousands of people across Europe access the system. Thousands of people input information, and the capacity for information to be inputted that is incorrect or inappropriate is extraordinarily large. That concern needs to be addressed.
My final point in connection with part 4 has to do with hot surveillance, which I consider to be rather a misnomer. I have heard much nonsense spoken about it. People have a vision of Inspector Clouseau bumbling around the Kent countryside doing all sorts of extraordinary things, but I am not filled with immediate alarm at the prospect of overseas police officers being able to engage in surveillance, as the period of time will be very limited and they will have no power of arrest or questioning and will not be able to carry firearms.
However, I am concerned about the lack of remedy for UK citizens in the event of malpractice by such officers. I worry, too, about the operational difficulties that might arise. I can foresee all sorts of occasions when the intervention of an overseas police officer in a carefully planned operation on this side of the English channel might have disastrous consequences. It must be spelled out very clearly that notification at the earliest opportunity—ideally, in advance—should be the norm rather than the exception.
There are serious difficulties about what happens at borders. For example, the carabiniere with the pistol in his holster is not excused immigration procedures or border controls in this country so, very unobtrusively, he will have to show his passport and hand in his gun while the person he is tailing skedaddles out of the other side of the airport or port. That is a serious problem to which I am not sure there is an easy answer.
I share the curiosity of the hon. Member for South-East Cambridgeshire about territorial waters, whether in connection with British-flagged ships or with a train in the channel tunnel. Will the Minister say precisely what is the situation in connection within our territorial waters, and what is our assumed territorial responsibility in respect of the Channel tunnel?
Will the Minister further say whether she intends to reverse the amendment passed in another place to clause 82? Clause 82(4) now prohibits foreign police officers from stopping, questioning and searching a UK citizen within the UK. The Minister may consider that that was implicit in the Bill as originally drafted, but I believe that making it explicit is even more helpful. It certainly does not run counter to our treaty obligations.
The interventions that I have taken mean that I have spoken for longer than I intended, but I consider this to be an important Bill that deserves the closest possible scrutiny by the House as it is capable of further improvement. Liberal Democrat Members want a Bill of this kind to pass through the House in the very near future, so that we can be assured of the best co-operation between our police and judicial systems and those of our neighbours and partners. We want to work with them to fight terrorism and international crime effectively.
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