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Mr. Hawkins: Earlier, the Minister gave the impression that Conservative Members opposed the whole of the Proceeds of Crime Act 2002. I know that she did not intend to do so, as I was the shadow Minister who dealt with that Bill. Will she confirm for the record that we supported many of its important measures, although we had some concerns, which we expressed at the time?
Caroline Flint: I am happy to confirm that sections of the Act were supported by Members from both Opposition parties represented here today. Given that we must have the scope to investigate suspects' accounts, particularly in the most grave situations involving terrible crimes, we felt that all financial institutions should be covered by that Act, and likewise, therefore, by this Bill.
Mr. Heath: I am disappointed that the Minister has not acceded to my request. In respect of amendment No. 6, I do not wear her argument. As the hon. Member for Surrey Heath (Mr. Hawkins) pointed out in Committee, one of the problems with having such blanket cover is that there is no way of challenging the procedure, which involves an ex parte application by judges in chamber with no possibility of the institutions that will bear the burden playing any part in the decision. We are therefore right to be extremely cautious about the way in which such an application is made. I recognise, however, that I will not persuade the hon. Lady at this stage.
On the definition of banks and financial institutions, I would accept the Minister's argument if the word "bank" had a connotation that went wider than the term "financial institution", because it would be logical to use the widest term, which can then be interpreted by the local jurisdiction consonant with its domestic legislation. However, she is saying the reverse—that we must limit the term to that which has a narrower definition even before the application is made. If we are able to understand what the term "financial institution" means within our domestic law for incoming requests, I have every confidence that overseas jurisdictions would be able to do so in terms of their own legislation for outgoing requests. That creates an anomaly whereby we effectively place a self-denying ordinance on the requests that we can make by using a term that is not consistent with the wider definition of "financial institution" that applies overseas. I accept, however, that having had this dialogue we are not going to agree.
On amendment No. 12, the Minister is being a little disingenuous in saying that were it to be accepted it would be impossible for the Government to make appropriate provision to bring into effect any decision of the Council. Of course it would be possible—I am simply saying that we should not do it via the Secretary of State. It occurred to me after the previous debate that perhaps we should go through legislation crossing out "Secretary of State" and inserting "Treasury": in reality the Treasury makes the decisions, so why not say so in statute? Setting that aside, the mechanism is not entirely appropriate for what the Minister wants to do.
Clearly, we can make no further progress at this stage. I do not intend to press the amendment to a Division, because that would be pointless. We have made our comments and they stand on the record. If the Bill does not work as the Government hope, we will be able to tell the Minister that we told her so. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6 pm
Mr. Carmichael: I beg to move amendment No. 44, in page 28, line 9,leave out,
'cannot be withdrawn after the issue of the warrant'
'can only be withdrawn on cause shown and with the consent of the court.'
As with previous amendments, the genesis of the amendment is the Law Society of Scotland. I had hoped that the hon. Member for Perth (Annabelle Ewing) would be in her place. Earlier, she chided Labour Back Benchers who represent Scottish constituencies for their absence. The hon. Lady, who always tells us that she is prepared to stand up for Scotland, has presumably gone to have her tea for Scotland.
Mr. Heath: At the Scotland Office.
Mr. Carmichael: Indeed, she may be having her tea at the Scotland Office tonight.
The amendment is simple. Clause 47 provides that once a prisoner has given his or her consent in writing to be transferred to another country to help with a criminal investigation, it cannot be withdrawn. The amendment would provide for opportunities to withdraw that consent
- "on cause shown and with the consent of the court."
The reason for withdrawing consent would have to be of the nature that I outlined because the test of "cause shown" is exacting and consent could not be withdrawn willy-nilly. It would require a substantial reason, and the opportunity would be available in few circumstances
because it is not simply a question of fulfilling the test of "cause shown"; there will be only a short time between issuing the warrant and departure to the foreign jurisdiction. The amendment does not therefore open the gate especially wide, but it includes an important safeguard. I commend it to the Minister.
Mr. Paice: I support the hon. Member for Orkney and Shetland (Mr. Carmichael). We supported the thrust of the amendment in Committee when we discussed the need for a safeguard. In my experience, it is rare for legislation to contain such a bold and bald provision, without ifs, buts or caveats, that consent cannot be withdrawn after the issue of the warrant. That appears slightly dogmatic, especially when circumstances could change, both in the country to which the person is about to be extradited and for the individual.
Under clause 47(4)(a), "the prisoner" may give the necessary written consent to being transferred, but subsequently suffer an extreme illness such as a mental breakdown. We may therefore find not only that the individual's circumstances have changed but that subsection (4)(b), which provides for someone else to act on the prisoner's behalf applies. In the extreme circumstances of someone suffering a mental breakdown, other illness or serious accident—one assumes that the latter will not happen to those in custody, but it is possible—it is unreasonable that there is no mechanism for review.
As the hon. Member for Orkney and Shetland said, the amendment would not open the door to abuse of the system or drive a coach and horses through the option to transfer prisoners abroad. I would not support it if that were its effect. However, there is a need for a safeguard in the event of circumstances changing so dramatically that it could be shown that, at the time of transfer, the consent might be unreasonable and that the individual might not have given it in the altered circumstances. The person who gave consent on the prisoner's behalf under subsection (4)(b) might have taken a different stance in the different circumstances. I hope that the Minister appreciates the need for some, albeit small, safeguards. As a non-lawyer, the proposal of the Law Society of Scotland appears to me suitable in providing an opportunity for review in extremis. I hope that the Minister will support it.
Caroline Flint: We debated this issue on several occasions in Committee. We have considered the matter further, but we remain firmly of the opinion that amendment to the clause is not necessary. I hope that I can explain practically our intentions and our reasons for wanting to transfer a prisoner to another European country to help with a UK investigation.
Clause 47 deals with circumstances in which a transfer is arranged from the UK, at its request, when UK investigations require a UK prisoner's presence, generally in the capacity of witness, in another country to assist with investigations into an offence committed here. For example, a prisoner might have been involved with or known about other people who had offended in the UK by, for example, being party to human trafficking or drug smuggling. Perhaps that prisoner could identify people known to him or her by attending an identity parade in, for example, France. Prisoners might also be able to identify a property that they had
visited and at which those who had offended in the UK were present. Such events do not happen every day but,, given that crime knows no national boundaries and that we are trying to deal with that through co-operation, we need to be prepared for them. I have tried to give a practical example to show reasons for wanting to transfer a prisoner abroad to assist with a UK investigation. I hope that it gives hon. Members, people in the Gallery or those listening outside the Chamber an idea of what we are talking about.We envisage that such circumstances will be rare and the provision does not deal with giving evidence abroad in relation to overseas investigations. Section 5 of the 1990 Act will continue to cover that.
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