| Previous Section | Index | Home Page |
Mr. Speaker: With this it will be convenient to take the following amendments: No. 35, in page 2, line 25, after 'a', insert
'party to proceedings or as a'.
No. 2, in page 3, line 11 [Clause 3], at end insert—
'( ) must be accompanied by any translation provided under subsection 3'.
No. 3, in page 3, line 23 [Clause 4], leave out from 'Kingdom' to end of line 24 and insert
'by any method which is in accordance with Rules of Court'.
No. 4, in page 4, line 19 [Clause 5], at end insert—
'( ) must be accompanied by any translation provided under subsection 4'.
Mr. Heath: This group deals with three separate concepts, so I shall deal with each one separately.
The first relates to amendment No. 1. The more astute Member will notice that amendment No. 35 is extremely similar in effect, but my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael)—who, as we know, is learned in both Scots and Udal law—has suggested a variation that is in accord with the advice of the Law Society of Scotland. I am indebted to him for that, as it enables us to put two variations to the Minister. I hope that we will have more success than we had on previous occasions when we have discussed the matter.
The crux of the matter is that it is important to insert in this section of the Bill the concept of a party to proceedings as well as a witness. If I may remind the House, this provision deals with the service of overseas process in this country and the point of the clause is to ensure that the person on whom overseas notice is served is aware of the consequences of that.
Our difficulty is that the Government do not seem to recognise that there can be any category of a party to proceedings who is not a witness within the proceedings. That is self-evidently not the case. For example, it is clear that under this country's law and that of most countries, defendants cannot be compelled to give evidence as witnesses that would indicate their culpability. It is entirely possible that a defendant could
be a party to a case but not a witness in that case. The same situation applies if spouses are accused of offences that also apply to their partners because the concept of spousal immunity is recognised by most legal systems in the relevant area.The problem is that there are clearly specific privileges that would accrue to defendants or spouses as defendants in such circumstances so that they would not be witnesses. It simply could not be the case that the privileges of a witness could be considered to include the privileges of not being a witness. That is nonsense in the English language, let alone anything else. We disagree not with the Government's intent but with the Bill's drafting. Clause 2 should include a reference to the privileges of a party to proceedings.
Ministers have previously replied that such a provision is not necessary because anyone who is a party to proceedings is, by definition, a witness, but that is clearly not the case. Their second reply has been that clause 2(1) already deals with the situation, but it does not, because it simply identifies the area under discussion but does not apply to the process or the notice that should accompany that and the extent to which that covers the case.
I ask the Minister to think again even at this late stage because I want to get the Bill right, which it is not at the moment. The defence that the provision was lifted from previous legislation and that it has never caused any problems is no defence at all. The assertion that it has not caused any problems should be followed by the word "yet", because as sure as eggs is eggs, someone will eventually find that something has been done incorrectly because of a lacuna in the law. That will provide a great deal of employment for lawyers but will be of no advantage to any person who will be affected by the Bill.
The second and third concepts addressed by the amendments relate not to the service of overseas process—the heading of the group of amendments—but to the service of UK process overseas, which is the reciprocal, yet equally important, case. Amendments Nos. 2 and 4 relate to the translation that would be made available for a person who may be reasonably assumed not to speak English. There is no question about the Government's intent, but the Bill provides that whereas the court will be given a copy of the process in the relevant language, the person on whom the process is served will not. In a sensible world and in normal circumstances, the court would of course send the document to the person on whom the process had been served, but the Bill does not say that that must happen. It would be better if such a provision were included, which is all the amendments would do. Curiously enough, the provision applies elsewhere in the Bill. It is absurd that clause 3 states that a translation should be provided for the court yet includes no requirement for the translation to be provided to the one person involved in proceedings who does not understand the language in which the document was originally produced—English.
Amendment No. 3 deals with the process of serving a UK notice overseas when that cannot be done by post. Clause 4(1) simply says that that should be
- "in accordance with arrangements made by the Secretary of State."
The Minister's objection in Committee was that such a provision could not be drafted to provide the flexibility for all the circumstances in which difficulties might be encountered in the serving process. I accept that we might make the terms more imprecise than the rules of court as they apply in the UK, by both definition and common consent, but the fact that the provision is not to be incorporated other than in guidance gives me cause for concern. Although the Minister has assured us that that will be forthcoming, it is not required by statute.
The Bill is not satisfactory. Rules of court should apply in an overseas context as they would in a domestic serving process. I hope that the Minister has a good reason why that should not be the case.
Mr. Paice: I endorse the remarks of the hon. Member for Somerton and Frome (Mr. Heath). I hope the Minister realises that all Opposition parties are intent on making the Bill understandable, as my hon. Friend the Member for Buckingham (Mr. Bercow) said, by those whom it affects, and comprehensive so that it addresses problems that may arise even if the Government think that they will not. The amendments, especially those on translation, are designed to do just that.
Those of us who have sat on both sides of the House have probably argued at one time or another both that it is necessary and that it is unnecessary to include something in a Bill. It is better to get legislation right first time rather than revisiting or correcting it later. I concur that the amendments are designed to get it right first time. They would not weaken the Bill or make it mean something else. They are simply designed to ensure that it is clearer and covers eventualities that may arise. I hope that the Minister will respond in a similar constructive vein and not simply read out the top line of her brief, which I have no doubt says, "Resist these amendments".
Caroline Flint: We have considered amendment No. 1 carefully and at length. We remain of the view that as a matter of law it is unnecessary. However, in the light of the concern about the issue, and because the amendment does not do any harm, we are prepared to accept it as drafted. We are satisfied that the amendment adds nothing to the clause as it is currently drafted and, indeed, will not result in a different position from that which currently exists under the Criminal Justice (International Co-operation) Act 1990. I am happy to go on the record stating that to be our considered view.
When a defendant takes the stand, he does so as a witness. That is the crucial point to keep in mind. There is no reason to read the word "witness" in clause 2(3)(c) as excluding the defendant. The meaning given to "witness" in the "Concise Oxford English Dictionary" is a
- "person giving sworn testimony in a law court or for legal purposes".
I see no reason why clause 2(3)(c) is any different. There is no reason why it should be read as not requiring a notice to be given to a defendant. The notice must be given to persons both where they appear as a party to the proceedings and where they attend as a witness. That is because subsection (1) provides that subsections (2) and (3) apply to both parties and witnesses. Therefore, a notice will always be given to a party to the proceedings, as well as to a witness. However, we need refer to a witness in subsection (3) only because—I stress this point again—when a defendant takes the stand, he does so as a witness in the proceedings.
| Next Section
| Index | Home Page |