The
Committee consisted of the following
Members:
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
persons 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
Mr.
David Ruffley (Bury St. Edmunds) (Con): It is a pleasure
to serve under your chairmanship, Mr. Taylor. As the
Minister said, article 3 of the order designates
Albania, Bosnia and Herzegovina, Croatia, the former Yugoslav Republic
of Macedonia, Israel, Montenegro, Serbia and Switzerland as
participating countries for the purposes of sections 31, 47, 49 and
paragraph 15 of schedule 2 to the 2003 Act.
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
prisoners 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 Governments
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 authoritiesperhaps even the
Financial Services Authorityto 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 Majestys 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
Paul
Holmes (Chesterfield) (LD): The order is a straightforward
extension of the number of countries participating in the original 1959
European convention on mutual assistance in criminal matters via the
Crime (International Co-operation) Act 2003. It is not concerned with
controversial matters of extraditing someone for
trial into another criminal jurisdiction. The controversies that
sometimes ariseas with, for example, the McKinnon case or some
European jurisdictions where anxieties are sometimes raised about the
quality of the judicial processneed not concern us in
considering the order. It simply facilitates the giving of evidence by
prisoners, mostly, it is envisaged, over the phone and
occasionallyrarely, we are toldby a temporary transfer
to another jurisdiction, but only with the consent of the prisoner. I
have two questions, both of which have been touched upon
already.
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 countrys
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.
The
hon. Member for Bury St. Edmunds asked about the ratification date and
the number of states involved. At present, 19 states have ratified the
protocol, of which
11 are in the European Union, and 17 states are signatories. A further
12 states that are party to the 1959 convention have neither signed,
nor ratified the protocol, but they may do so in future. To clarify,
the states that have ratified the protocol are Albania, Belgium, Bosnia
and Herzegovina, Bulgaria, Croatia, the Czech Republic, Denmark,
Estonia, Israel, Latvia, Lithuania, Montenegro, Poland, Portugal,
Romania, Serbia, Slovakia, Switzerland and the former Yugoslav Republic
of Macedonia. The 17 states that have signed but not yet ratified are
Armenia, Cyprus, Finland, France, Germany, Greece, Hungary, Iceland,
Ireland, Luxembourg, Malta, the Netherlands, Norway, Slovenia, Sweden,
Ukraine and the United Kingdom. The 12 states that have neither signed
nor ratified the protocol are Andorra, Austria, Azerbaijan, Georgia,
Italy, Lichtenstein, Moldova, Monaco, Russia, San Marino, Spain and
Turkey.
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.