Extradition Bill

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Mr. Burnett: I apologise abjectly and nakedly that my knowledge of Scottish law is probably less extensive that that of the hon. Member for Surrey

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Heath. That said, I practised as a tax specialist and occasionally came across odd expressions under Scottish law such as ''legitim''. I cannot explain what it means, but I believe that is has something to do with succession rights.

I raise the matter of legal privilege and ask the Minister to provide reassurance on subsection (4), ''Items subject to legal privilege''. It is important that legal inroads are not made into legal privilege, and that individuals who are the subject of extradition proceedings are given the same civil rights and civil protection as others under our legal system. I am anxious to extract a reassurance from the Minister that legal advice and legal correspondence will always be protected from the prying eyes of the prosecution. Additionally, we want a similar level of protection for legal advice, correspondence and documents from overseas as well as UK lawyers. I am sure that the Committee would agree that the Minister's assurances on that matter are crucial.

3.15 pm

Mr. Wills: May I say for the record that not every member of Committee shares the analysis of House of Commons modernisation put forward by the hon. Member for Surrey Heath.

I can be a little more constructive in responding to this amendment. We sympathise with its thrust and accept many of the arguments of both Opposition spokesmen. It is appropriate to include a definition of legal privilege for Scotland. As the hon. Member for Torridge and West Devon rightly said, under English law, legal professional privilege is a well recognised expression, covering communications between a client and his or her legal adviser and between them and third parties if made for the dominant purpose of pending or contemplated litigation.

The closest equivalent in Scots law is confidentiality. Section 33 of the Criminal Law Consolidation Act 1995, to which the amendment refers, is shortly to be repealed on the commencement of certain provisions of the Proceeds of Crime Act 2002. Section 412 of that Act restates the relevant definition in section 33 of the 1995 Act. We believe that it would be more appropriate to refer to the definition in the 2002 Act. On the understanding that we will table a Government amendment to achieve the same purpose on Report, I hope that the hon. Gentleman will withdraw the amendment. I also hope that that meets the hon. Gentleman's concerns.

Mr. Hawkins: The Minister has provided precisely the sort of assurance about legal privilege that we and the Law Society of Scotland wanted. As mentioned by the Under-Secretary earlier, I was one of the two Opposition spokesmen on the Proceeds of Crime Bill, so it is appropriate that I accept its definition in section 412. Clearly, the Law Society of Scotland had not realised that the 1995 Act was about to be repealed and replaced. It is encouraging to hear that our concerns have, for the first time in Committee, brought about an express commitment to table a Government amendment. It may be minor triumph, but at least we have achieved it.

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Mr. Burnett: I wish I could remember more clearly, but I believe that we extracted a concession from the Minister's colleague earlier. I remind the hon. Member for Surrey Heath that time has not yet run on the Bill.

The Chairman: I was about to call order—[Interruption.].

Mr. Burnett: I am grateful to the Minister for his confirmation.

Mr. Hawkins: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 172 ordered to stand part of the Bill.

Clause 173

Customs officers

Question proposed, That the clause stand part of the Bill.

Mr. Hawkins: It would be useful to have a brief stand part debate on the clause. Earlier this morning, we spoke about specified modifications in respect of service personnel. In that case, the Home Secretary applies this part of the Bill to service personnel with those modifications. Will the Minister explain how the modifications will apply to customs officers? In this clause, the Treasury rather than the Home Secretary is responsible. I am surprised that the clause specifies ''the Treasury''. Is that usual? The Minister may say that it is always stated in that form in legislation but I thought it was more common for a Cabinet Minister to be specified. The not-dissimilar provision about service law refers to the Secretary of State so why does not the clause state, ''The Chancellor of the Exchequer may by order provide''?

Many hon. Members, whether they sit on the Government or the Opposition Benches, are worried about the Treasury's powers. I often think that things happen in this country only if the Treasury is happy with them and I have spoken regularly in Government and Opposition about the Treasury having far too much power. That is not a party political point; it applies whichever party is in government.

We need more explanation if the Treasury is to be given yet more power. Conservative Members entirely understand that Customs officers should have powers but they need to be more clearly specified. What parliamentary scrutiny will the orders be given when ''the Treasury'' rather than the Chancellor has the power to issue them? Will they be subject to affirmative resolution? If not, they should be.

The clause is short enough, but the explanatory notes consist of only two lines, which merely restate what is in the clause. I hope that the Minister will expand on the measure, because this is a serious matter.

Mr. Burnett: I am also anxious to know the procedure. I have not seen section 6(3) of the Customs and Excise Management Act 1979, but I want to know the qualifications, seniority and experience of the individuals that the Treasury are likely to appoint to the role.

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Mr. Wills: I shall watch with great interest the campaign of the hon. Member for Surrey Heath to reduce the powers of the Treasury, something that successive generations of Ministers have tried to do. What is relevant is not so much the institution as the fact that it controls the money. The hon. Gentleman has embarked on a fairly hopeless exercise.

No one in the Committee quarrels with the purpose of the clause. In appropriate circumstances, Customs officers should be able to execute European arrest warrants. They should therefore be governed by the same procedures, and the people they arrest should be afforded the same protections, as those who are arrested by the police. The clause provides the legal basis in that respect.

The hon. Gentleman asked whether the Treasury, in some amorphous guise, or a Minister would make the order. The order will have to be laid by a Minister and it will be subject to a negative resolution.

The hon. Member for Torridge and West Devon asked about the rank, seniority and qualifications of the Customs officers. The Bill originally referred to role of inspector, which was not appropriate for Customs; it will be a rank of appropriate seniority for the job.

I hope that my reassurances will satisfy the Committee that the clause should stand part of the Bill.

Mr. Hawkins: I am not happy that the matter will be subject to a negative resolution. That is not good enough and we shall look at it again on Report and in another place. The clause is so brief, and so general, that it should come before the House under an affirmative resolution procedure. The Minister stressed that the House could debate the codes of practice under that procedure, and that should apply to this proposal. The clause, which will give the Treasury the power to do more or less what it likes, will go through the House on the nod, unless someone makes a big fuss about it, and that is not acceptable. It will no doubt be debated late on Monday night under something like order No. 18, when the Government hope that no one will challenge it. It is the sort of thing that they might try to get through on the last day before the summer recess, or Christmas. We all know how Government business managers arrange these things.

I understand the Minister's misgivings about my campaign to reduce the power of the Treasury. Before he was a Member of Parliament, I was involved with hon. Members of all parties in one of the few successful campaigns to get a Budget changed, and we got it changed not once or twice but four times, until a particular industry was happy with it. I will not go into detail now, as I would be out of order, but I can give the Minister chapter and verse about what happened outside the Committee if he wishes. That does not happen often because, as the Minister rightly said, the Treasury controls the money but it can be done and I would be happy to share the secret with the Minister. His views suggest that he is not unsympathetic to the idea that the Treasury has too

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much power, although perhaps I am intruding on private grief in that respect.

I am not happy about the proposal, but I will not divide the Committee as to do so would risk Ministers saying that the Opposition are trying to make mischief and water down the Bill. [Interruption.] We cannot win with the Under-Secretary, the hon. Member for Coventry, North-East, as he says either we are trying to water down his proposals or that we are too scared to take him on, but we are doing neither. We are making a serious point; we want Customs officers to have some power.

We may return to the issue on Report as there is a good case for having the affirmative resolution procedure on a clause that is so brief, but so wide-ranging. It is not right that measures that so affect people can be changed on the nod.

Mr. Burnett: The main reason why the affirmative resolution is appropriate is that the clause deals with one law enforcement agency, but there are several and it is important that measures affecting them are co-ordinated. It is important, too, that those agencies realise what it is happening and with a negative resolution they are unlikely to do so, as it will not be flagged up.

The Minister answered my question about the status—the seniority, qualifications and experience—of Customs officers by assuring the Committee that the officers would have appropriate seniority, experience and qualifications but it is not entirely clear what he meant by that. I hope that the Minister will elaborate on what he said.

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