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4.30 pm
Two types of privilege afforded to defendants were given as examples in Grand Committee by noble Lords wishing the amendment to be carried: the privilege against self-incrimination and spousal immunity. However, both these privileges are afforded to the party as a witness. It is true that a party could not be compelled to give evidence, whereas a witness could, subject to the right not to incriminate himself. But that is a privilege afforded to the party as a witness. Similarly, for example, under section 80(4) of the Police and Criminal Evidence Act 1984, a spouse who is also charged in proceedings is not compellable. Again, that is a privilege afforded to the party as a witness. We have identified no rights and privileges that would be accorded to a party in the proceedings, in addition to those that he would already be accorded as a witness.
Clause 2 is different from the 1990 Act only in that it refers to a party to the proceedings, as opposed to a defendant, but that is to cover different Scottish nomenclature of persons appearing before a Scottish court and the fact that some of the proceedings in question are not purely criminal. There is no difference of substance between the 1990 Act and clause 2(3)(c) and, for the reasons that I have given, we are happy to accept the amendment as drafted.
I assume that amendment No. 35 will not be moved as I have accepted amendment No. 1 and see no merit in the longer variation. We strongly prefer amendment No. 1 and see no reason for introducing the reference to proceedings, as amendment No. 35 does. We do not see that this provides any further clarification.
We do not consider amendments Nos. 2 and 4 to be helpful or necessary. I have read the Hansard report of discussions on the matter with my predecessor. Subsection (3) of clause 3 refers to all process. Translations must be provided for any process where the person at whose request it is issued believes that the intended recipient does not understand English. All that subsection (4) does is to impose additional requirements where the process relates to a party or a witness. Subsection (4) creates additional obligations, but does not limit the overriding obligation for translation of all types of process to be provided in subsection (3). It would not be necessary to insert a reference to forwarding translations in subsection (4), as that is already provided for in subsection (3).
Where a translation of the process is required, it is wholly reasonable to expect the court to forward it. That goes for translations relating to parties or witnesses, as
well as other types of process, such as court judgments. The act of sending the process from the court is not set out in the Bill, which is limited to setting out the requirements for issuing process, the relevant requirement being that a translation is provided. The sending procedure is currently covered by rules of court, which state that where a summons is issued or order made for service outside the UK, it shall be sent by the justice's clerk to the Secretary of State. Updated rules will reflect the options to send it either to the Secretary of State or direct to the recipient, but will otherwise reflect the existing ones. We believe, therefore, that where it is required, translation will be forthcoming and that further amendment is not necessary.
Mr. Heath: Clearly, there is provision for a translation to be made and for the notice to be transmitted to the person. I understand that. Is the Minister saying that the copy, translated into an appropriate language, will form part of the process? If so, she is right—my amendment becomes unnecessary. It would be helpful if she would confirm that.
Caroline Flint: I understand that to be the case. I hope that reassures the hon. Gentleman.
Caroline Flint: Finally, let me deal with amendment No. 3. As I explained in my letter of 16 July to members of the Committee, we cannot accept the amendment. In the first instance, we do not consider that rules of court are an appropriate method for setting out what the Secretary of State will do. As hon. Members are aware from our discussions in Committee, under the new arrangements for the service of process required by Schengen and MLAC—the mutual legal assistance convention—it will become routine for the majority of procedural documents to be sent directly from the issuing authority in this country, without any involvement of the Secretary of State. When he is involved, however, existing and long-established practices will be followed. Service of process via the Secretary of State is not new: it existed under the 1990 Act and has worked effectively. That was discussed in Committee. The Bill is not designed fundamentally to change our mutual legal assistance system—it builds on existing arrangements, amending them where appropriate to accommodate the new requirements of, for example, Schengen. That is a clear example of an area of mutual legal assistance in which there is no merit in creating additional bureaucracy where the established system has worked very effectively.
We do not agree that the approach that we have chosen risks successful challenges in subsequent domestic proceedings. Rules of court made under the 1990 Act already set out what constitutes proof of service of summons outside the United Kingdom. They provide that
- "the service on any person of a summons issued under section 2(1) of the Act may be proved in any legal proceedings by a certificate given by or on behalf of the Secretary of State."
Authorities issuing process will request personal service, via the overseas central authority, if proof that the recipient has received the process is required. In the
case of documents bound for recipients in EU and Schengen member states, the issuing authority may itself send the documents to the overseas central authority requesting personal service, bypassing the Secretary of State. Rules governing his activity would therefore not be helpful.Service of domestic court process on people residing in the UK is done not by the Secretary of State, but by the court. Service of summonses in the purely domestic context is very different from service on people residing overseas, most importantly because a summons served on someone present in the UK obliges them to attend court. By contrast, a summons served on someone overseas does not impose any obligations to attend, nor does failure to comply result in any sanctions being taken.
For those reasons, we accept amendment No. 1 and ask that amendments Nos. 2, 3 and 4 be rejected.
Mr. Heath: I am extremely grateful to the hon. Lady for her response to this group of amendments. We are making real progress in three respects. First, the hon. Lady accepted my amendment No. 1 and implicitly rejected that of my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael), which is a little long-winded. Secondly, she accepted the principle of what I was trying to achieve in amendments Nos. 2 and 4. I am most grateful to her for confirming that the translation forms part of the process at the point at which it is provided to the court. I was trying to ensure that it did not become a separate document that was not necessarily transmitted to the intended recipient, which would have made nonsense of the whole provision. Thirdly, in relation to amendment No. 3, the hon. Lady indicated that there would, as I had hoped, be a consequent amendment to the rules of court to deal with the provisions of the Bill, so my amendment becomes unnecessary.
I consider this to be one of the finest victories that we have achieved in the course of these proceedings and this group of amendments to be one of the best that we will debate today. I am happy to allow amendment No. 1 to be put to the vote and certainly do not intend to press any of the others.
Mr. Alistair Carmichael (Orkney and Shetland): I beg to move amendment No. 37, in page 5, line 43 [Clause 7], at end insert—
'(8) Nothing in this section shall permit the disclosure of items subject to legal professional privilege.'.
Mr. Deputy Speaker (Sir Alan Haselhurst): With this it will be convenient to discuss the following amendments: No. 38, in page 13, line 33 [Clause 22], at end insert,
- "other than any item subject to legal professional privilege."
'( ) A court in Scotland may not issue a warrant under section 18 or 22 in respect of any evidence unless the court has reasonable grounds for believing that it does not consist of or include items subject to legal privilege.'
No. 40, in page 22, line 21 [Clause 37], at end insert—
'(9) Nothing in this section shall permit the disclosure of items subject to legal professional privilege.'.
No. 41, in page 23, line 38 [Clause 40], at end insert—
'(8) Nothing in this section shall permit the disclosure of items subject to legal professional privilege.'.
No. 42, in page 25, line 43 [Clause 43], at end insert—
'(8) Nothing in this section shall permit the disclosure of any item subject to legal professional privilege.'.
No. 43, in page 26, line 21, [Clause 44], at end insert—
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