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Session 2009 - 10
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Delegated Legislation Committee Debates



The Committee consisted of the following Members:

Chairman: David Taylor
Blears, Hazel (Salford) (Lab)
Burns, Mr. Simon (West Chelmsford) (Con)
Clarke, Mr. Charles (Norwich, South) (Lab)
Hillier, Meg (Parliamentary Under-Secretary of State for the Home Department)
Holmes, Paul (Chesterfield) (LD)
Huhne, Chris (Eastleigh) (LD)
Jack, Mr. Michael (Fylde) (Con)
McNulty, Mr. Tony (Harrow, East) (Lab)
Munn, Meg (Sheffield, Heeley) (Lab/Co-op)
Ruffley, Mr. David (Bury St. Edmunds) (Con)
Russell, Christine (City of Chester) (Lab)
Seabeck, Alison (Plymouth, Devonport) (Lab)
Stuart, Mr. Graham (Beverley and Holderness) (Con)
Syms, Mr. Robert (Poole) (Con)
Tami, Mark (Alyn and Deeside) (Lab)
Turner, Mr. Neil (Wigan) (Lab)
Mark Oxborough, Committee Clerk
† attended the Committee

Third Delegated Legislation Committee

Tuesday 15 December 2009

[David Taylor in the Chair]

Draft Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) (No. 3) Order 2009
10.30 am
The Parliamentary Under-Secretary of State for the Home Department (Meg Hillier): I beg to move,
That the Committee has considered the draft Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) (No. 3) Order 2009.
It is a pleasure to serve under your chairmanship, Mr. Taylor. The order, I hope, is fairly straightforward. It is a key tool against organised crime and enables us to be ready to ratify the second additional protocol of the Council of Europe. Previously, hon. Members of all parties have agreed, in principle and in practice, to the measures that we are proposing today.
The order will further improve international co-operation by designating Albania, Bosnia and Herzegovina, Croatia, the former Yugoslav Republic of Macedonia, Israel, Montenegro, Serbia and Switzerland as participating countries for the purpose of various sections of the Crime (International Co-operation) Act 2003.
The designation has the effect of allowing the UK to execute requests for witnesses in this country to give evidence in foreign proceedings by telephone, and ensures that when such evidence is given, the process is supervised by a court in the participating country, according to section 31 and paragraph 15 of schedule 2 to the Act. The order will also allow the temporary transfer of UK prisoners to the participating countries, which I have just listed, for the purposes of section 47: to assist with investigations into an offence that was, or may have been, committed in the UK. That power has so far never been used, but it is an important tool for witness identification. Similarly, the order will allow temporary transfers of prisoners from a participating country to the UK, as is the nature of mutual arrangements.
Finally, the designation under sections 4 and 4B of the 2003 Act will mean that the service of process, written charges or requisitions from the UK to persons in participating countries must be by post, save where the person’s correct address is unknown.
I trust that the latest order to designate countries will enhance the level of judicial co-operation that the UK can offer to and seek from other countries, and that hon. Members will continue to support that sensible and proportionate approach to applying the 2003 Act.
10.32 am
Section 31 of the Act enables the Secretary of State, on request, to nominate a court so that a witness located in the UK may provide evidence by telephone. Paragraph 15 of part 2 of schedule 2 to the Act provides that the court in the participating country making the request must supervise the giving of the evidence. Section 47 enables the transfer of a UK prisoner to a participating country to assist with a criminal investigation into an offence that was, or may have been, committed in the UK. That is subject to the consent of the prisoner and to an agreement being reached with the relevant participating country. Section 48 makes similar provisions for the transfer of prisoners to the UK from a participating country.
As I am sure the Minister appreciates, a person on remand or a convicted prisoner is potentially vulnerable to pressure to consent to transfer orders. What assurances can she provide today about whether any such prisoner being transferred to any country in the order will receive the appropriate legal advice, and that they will not be placed under any implied or actual pressure to give consent? Once consent is given, it is not possible to withdraw it. That question has added pertinence, given that the provisions do not exclude the transfer of vulnerable prisoners, such as those under the age of 18, although an appropriate adult may be required. Can the Minister assure us that a transferred prisoner’s return to the United Kingdom from the countries listed in the order, which includes the Balkans and Israel, will be guaranteed and that steps will be taken to ensure their safety while in those countries’ custodies? What steps are likely to be taken to ensure their safety?
The Government have said that they expect the power to transfer prisoners to be used rarely. What does “rarely” mean? Is there an estimate of the frequency of use of the powers? Perhaps, to give us an indication, the Minister could tell the Committee how many prisoners have been transferred to and from other countries to date under the current arrangements. In how many cases were those transfers used to assist in the investigation of crimes alleged to have taken place in the United Kingdom? Can she assure the Committee today that the Government will not permit transfers, either from or to the United Kingdom within the EU, the Balkans and Israel, which go against our understanding and sense of proportionality and fairness?
Section 4 of the 2003 Act establishes that when a person is located in a participating country, process must be served on them directly and by post. Section 4B establishes that the same rules apply in relation to a written charge or a requisition that is served. The order seeks to add almost identical countries to the participating list for the powers, with one exception: Switzerland is not included on the second list. Why has Switzerland been included on the participating list for the first set of powers, but not the second?
I have one final question for the Minister: have the efficacy and reliability of the postal services in the new countries been assessed? If they are inadequate, it may undermine practical use of the powers.
I shall consider several smaller points before concluding. In extending the number of states designated as participating countries, the order is required before the United Kingdom can ratify the second additional protocol to the European convention. We know, and the explanatory notes to the order make it clear, that it is the Government’s intention to ratify the protocol. The House of Lords European Union Committee has been critical of the fact that it has taken the Government since 2001 to reach this point. In evidence to that Committee, a Home Office official said that this was because of
“one or two policy issues... around mutual recognition in areas like control, delivery, covert surveillance... and joint intelligence teams.”
Is the Minister able to explain to the Committee what those issues are? I say “able to” not because of her capability, which is manifest, but because there may be security issues.
Earlier in the year, the Government made it clear that they would ratify the protocol in the autumn, but they missed that target. When do they expect to ratify it? What steps is the Home Office taking to ensure that other countries are ratifying the protocol? Are any other European countries not participating?
The explanatory memorandum to the order states that:
“An Impact Assessment has not been prepared for this instrument as no impact on the private, public or voluntary sector is foreseen.”
Can the Minister confirm that and expand on it a little further? Presumably, we are expecting some sort of impact; otherwise, the question will be why we are doing this in the first place. It is about ensuring that we bring people to justice and about whether there will be any impact on police forces or other prosecution authorities—perhaps even the Financial Services Authority—to ensure compliance with these additional requirements.
The explanatory memorandum also states:
“The outcome will be subject to internal review after twelve months to assess if any unexpected impact has occurred.”
Can the Minister give an indication of what that impact might be? It might be unknown because it is unexpected, but does she have any thoughts on that? It is odd that the explanatory memorandum says that there has been no need for any kind of impact assessment.
May I also urge the Minister to make the anticipated internal review public, so that, if the Government seek to add any further countries to the list of mutual assistance participating countries, Parliament will have the opportunity to understand what impact these powers have already had? Her Majesty’s Opposition recognise the importance of mutual legal assistance in the cross-border fight against crime. That is clear, but we need answers to some of the questions I have posed and we must ensure that the measure is operated with due care. On the basis that the Minister can give the assurances that I seek, we will not vote against the order.
10.42 am
First, in the case of all the countries that already operate the system, how many times have prisoners been transferred? Just how rare are these occasions? Secondly, if a prisoner is going to move to another country to give evidence in person, do they have to give consent? It has been suggested that that consent cannot be withdrawn.
When this was debated in the other place, Baroness Hamwee asked whether consent, having been given by the prisoner, can be withdrawn at any time if they change their mind. Lord Brett, who was responding for the Government, did not know the answer but, looking at nods and winks from his civil servants, assured the other place that a prisoner could indeed withdraw consent if they wanted. Will the Minister confirm that that is the case?
These are non-controversial extensions to an existing process. We support them.
10.44 am
Meg Hillier: I welcome the support of hon. Members of all parties on this matter. Hon. Members have rightly highlighted the case of prisoners. I stress that, so far, no prisoners have been dealt with in this way. Such a method has not been used to date, and we do not expect it to be used a great deal. It would be used, for example, if someone needed to identify a particular place in a country and they needed to be in custody to do that, perhaps where something was buried or to witness something.
There are safeguards in place. We will seek a number of assurances under the order to transfer prisoners temporarily, including that legal advice will be given to prisoners and that their right of return and safety will be assured. That includes under-18s. We will also seek assurances about the security in different countries, and that the power will be used proportionately.
It is entirely a matter for the prisoner concerned whether they wish to give consent. No pressure will be applied and there will be no adverse consequences if they choose not to consent. They will have to seek their own legal advice if they feel it necessary. They will be able to withdraw at any point until the Secretary of State issues a warrant. However, once a warrant is issued, such consent cannot be withdrawn. It is important that the safeguards are in place before the point of no return. I believe that that is well organised. That covers all the points about safety in custody that the hon. Member for Bury St. Edmunds raised.
Switzerland is not on the second list because it is designated in sections 4 and 4B of the 2003 Act.
Postal services can mean a range of things, and can include FedEx. We know that there can be delays to postal services in any country for any reason. At the moment, services can be sent by post. The order will make it an obligation to send them to minimise bureaucracy and to have the documents served as quickly as possible.
For the record, I want to be clear about the consent of the prisoner. It is implicit that the consent of the prisoner can be withdrawn at any time. The position, as set out in section 47 of the 2003 Act, is that any consent given by a prisoner to his transfer to a participating country in order to assist in an investigation into an offence that was or may have been committed in the UK may be withdrawn at any point up to the moment at which the Secretary of State issues a warrant, as I have said. However, once a warrant is issued, such consent cannot be withdrawn.
Notwithstanding that under the scheme consent cannot be formally withdrawn after the issue of the warrant for transfer, were a prisoner to indicate to the Secretary of State that he or she no longer wished to be transferred to assist in an investigation, the warrant would, as a matter of policy, be withdrawn immediately. I ask forgiveness if I unintentionally misled the Committee earlier.
The sole purpose of transfer is to allow the prisoner to assist with the investigation, so it would be pointless to proceed if the prisoner did not want to do so. Similarly, if a prisoner indicated that he or she no longer wished to co-operate once they had been transferred to a particular country, the UK could communicate the fact to the state in question and request their immediate return. That possibility is provided for in article 13(4) of the second additional protocol. That underlines what I said earlier.
On postal services, services of process to other countries can be effected by post or by sending the relevant documents to the country’s central authority and requesting personal service. Most often, private companies such as FedEx are used so the quality of the postal service is not of concern.
It has been a long-held intention to ratify the protocol. The UK receives about 5,000 new requests for mutual legal assistance every year. Priority was given to ensuring that casework was progressed. However, we recognise the need to ensure that the correct legislative framework to facilitate ratification is in place. That is why we are bringing the order forward. That has not stopped progress, but it is important to have that legal base. Clearly we all agree on that issue.
The hon. Member for Bury St. Edmunds raised the impact assessment. There is already a duty on the affected bodies, which picks up on the point I just made. We have been doing this without the legislative back-up. There will therefore be no additional impact from the proposals in relation to EU countries. That is why the explanatory memorandum came to the conclusion that it did. At this point, there is no plan to make the review of the operation of these provisions public. I will keep an eye on that and am happy to receive representations from hon. Members.
Question put and agreed to.
10.50 am
Committee rose.
 
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