The Chairman: Does a member of the European Scrutiny Committee wish to make a brief explanatory statement about the decision to refer the relevant document to this Committee?

Mr. Bob Laxton (Derby, North) (Lab): The purpose of the agreement that we are debating today is to provide mutual legal assistance between the EU and Japan in connection with criminal proceedings. Mutual legal assistance covers all aspects of investigating and prosecuting crime, but does not apply to extradition.

For the most part, the agreement contains standard terms. However, under article 11, headed “Grounds for refusal of assistance”, two grounds are worthy of attention. The first is if the offence in Japan carries the death penalty or life imprisonment. The second is that the dual criminality requirement—that the criminal offence in Japan must be recognised as an offence in the EU requesting state—can be a ground for refusing to assist only if “coercive measures” in obtaining the evidence are required. An annexe to the agreement indicates that two member states, Austria and Hungary, are unhappy with this and that they will apply the full dual criminality test when responding to requests for assistance from Japan.

That gives rise to two points of general concern. First, EU member states have abolished the death penalty. In contrast, Japan applies the death penalty to a range of crimes, most commonly murder. The method of execution is hanging. Amnesty International reports that in the three years 2006, 2007 and 2008, there were four, nine and 15 hangings respectively.

Information provided to the European Scrutiny Committee by the House of Commons Library, taken from an article last year in American Chronicle, says this of the Japanese criminal justice system:

There are reports of an informal moratorium on the death penalty in Japan, with the appointment of a new Justice Minister, but equally there are reports that 102 prisoners are still on death row.

Secondly, the requirement of dual criminality is an important safeguard, ensuring that EU member states do not provide assistance to third countries for offences that would not be prosecuted in the EU. The assumption is that if we consider that the facts do not amount to a criminal offence, we should not help prosecutions in countries that do. Why then, in this agreement, has the dual criminality been diluted to apply only to requests where “coercive measures” are required to obtain the evidence? And what, in practice, is meant by “coercive measures”?

The Minister’s explanatory memorandum asked the Scrutiny Committee to clear the agreement from scrutiny at the first occasion, because of the timetable in Brussels, but it failed to say how the UK should approach requests for assistance for offences that carry the death penalty in Japan. It also failed to address the absence of a full dual criminality test. For those two reasons, the Committee recommended a debate.

The Chairman: Thank you, Mr. Laxton. I now call the Minister to make an opening statement.

The Parliamentary Under-Secretary of State for the Home Department (Meg Hillier): It is a pleasure, Mr. Brady, to serve under your chairmanship for the first time. I shall touch briefly on the main issue and then quickly cut to the issues raised by my hon. Friend the Member for Derby, North.

We all acknowledge that mutual legal assistance in criminal matters is a vital tool in the fight against international crime. It provides a formal route for requesting assistance when evidence relating to a crime in one country is located in another. With crime becoming increasingly global in nature, the need to have strong mutual systems in place is essential in order to achieve justice for British victims of crime.

The agreement before us today represents considerable progress in mutual legal assistance with Japan. Until now, assistance in that direction has been conducted on the basis of international comity, and this is the first time that we have had a comprehensive framework for mutual legal assistance between the UK and Japan. That will be of huge benefit in ensuring that requests are dealt with in a timely and efficient manner, as well as leading to several advances in the range of assistance available.

For example, the agreement provides for requests to be made between parties for banking evidence such as customer information orders and account monitoring orders, which is a considerable advance, as such assistance has not previously been available to us under the rules of international comity. The agreement also allows for prisoners in one state to transfer temporarily, with their consent, to the requesting state in order to give testimony—the subject of a previous debate in this place, so I shall not repeat the arguments. The provision ensures that vital testimony is not lost simply because a witness is incarcerated in another state.

I understand the points raised by my hon. Friend the Member for Derby, North and by the Committee generally. I start by apologising, first, for the delay in depositing the explanatory memorandum with the Committee, which was an error. I apologise on behalf of the Government as a whole. Measures are being put in place to ensure that that does not happen again. Christmas came in between, but that is not an excuse and should not be used as one—we shall make sure that it does not happen again. I also apologise that the original explanatory memorandum, which I have brought with me, did not mention in enough detail the issue around the death penalty. The Committee made a fair point, and I can answer some questions today.

The two points of concern raised by my hon. Friend were the absence of a dual criminality test and the Government’s policy on assistance given in cases involving offences that would attract the death penalty in Japan. Agreed Government policy, in mutual legal assistance cases in which there is a risk of the death penalty being imposed for the crime under investigation, is that we would seek assurances that anyone found guilty would not face the death penalty before providing assistance. That policy has been found to work effectively and we have in the past received assurances from countries that the death penalty would not be imposed or, if imposed, not implemented.

The death penalty is, of course, not unique to Japan and it is not uncommon for the UK to have a treaty or agreement with a country that has the death penalty. For example, the United States of America and India are both countries that have the death penalty and with which we have mutual legal assistance treaties. The Government are always extremely cautious with any cases that may impact on our public policy interests, and the Secretary of State retains discretion as to whether to accede to a request for mutual legal assistance. That discretion is informed by the terms of the relevant international agreement, as in the EU-Japan agreement, which allows for the refusal of assistance if the requested party is of the opinion that the request, if granted, would impair its sovereignty, security or other essential interests, or would be contrary to public policy—for example, the death penalty.

The European Scrutiny Committee also expressed concerns about the absence of a dual criminality test in the agreement. I think I can reassure the Committee. Dual criminality is not included within the actual agreement, but is a matter for individual states as to what their laws require when they agree to provision of mutual legal assistance. However, as is provided for in article 11(2) of the agreement, relating to the refusal of assistance, requested states are able to impose a dual criminality requirement for assistance that would necessitate coercive measures.

For most types of assistance, the UK does not require dual criminality although it is required for some coercive measures, such as searches and also assistance relating to fiscal offences, where banking measures may come in. It is common within such assistance that the domestic laws of each country will vary on the forms of assistance that will require dual criminality. It is appropriate for that to be determined at a domestic level.

I am hopeful that I have addressed the concerns raised by the Committee and am happy to take questions.

The Chairman: We now have until 5.30 for questions to the Minister. I remind the Committee that questions should be brief. Subject to my discretion, related supplementary questions may be asked.

Andrew Rosindell (Romford) (Con): It is a pleasure to serve under your chairmanship, Mr Brady. On a point of clarification, I have a number of questions to ask on behalf of the Opposition, but should I do so consecutively, or ask each question one at a time? I wonder if you could clarify that, Mr Brady.

The Chairman: Mr. Rosindell, you may continue to try and catch my eye, although I may disperse your questions with questions from other members of the Committee if there is a clamour to question the Minister.

Andrew Rosindell: I am grateful for the clarification.

The Minister made it clear in the explanatory memorandum that the United Kingdom is always bound by section 6 of the Human Rights Act 1998 to ensure that any such decisions are consistent with rights occurring under the European convention on human rights. What consideration has the Minister given to the compatibility of such an agreement with the traditionally low standards of Japanese prisons and associated rights of Japanese prisoners? What consideration has he given to how the agreement could be used to raise such standards to European Union levels?

Meg Hillier: When considering this matter, it is important to recognise that Japan approached the European Union to facilitate discussions. When we offer mutual assistance, it does not often lead to someone being imprisoned in the UK. Sometimes—I can give details of a number of requests if hon. Members wish—evidence might contribute to a Japanese citizen or citizens of other countries being in prison. If a British citizen were involved, our normal process would be to ensure that we were satisfied about human rights issues and those that I raised during my opening comments before agreeing to offer assistance. We would also seek assurances about the treatment of any British citizen.

However, we must recognise—this is the whole point about mutual assistance—that if someone commits a crime in a country, we must allow that country to take action against that person. If we have real concern, we can obviously refuse assistance and continue to press for a worldwide rise in standards, as my colleagues in the Foreign Office always do.

Andrew Rosindell: I thank the Minister for her reply. Article 11 on grounds for refusal of assistance raises particular concerns because of the potential clash of state laws on the death penalty. Only the most serious offences carry the statutory punishment of the death penalty under Japanese law—homicide and treason—but those are the very offences for which the UK Government would consider refusal of assistance. What assessment have the Government made of the difficulty of dealing with such an anomaly? Will Her Majesty’s Government develop a policy of consistency in assistance for such offences?

Meg Hillier: I will happily write to the hon. Gentleman to clarify some of his points, but we seek consistency in the matter. The issue of dual criminality is important, and we would provide mutual legal assistance only when we have assurances about the treatment of individuals.

Paul Holmes (Chesterfield) (LD): Continuing the theme of article 11, Home Office policy states that when there is a risk of the death penalty, it would normally seek assurances that the death penalty would not apply, but in special circumstances it may nevertheless provide assistance. Will the Minister clarify what sort of special circumstances might lead to the Government providing assistance, even if the death penalty may be involved?

Meg Hillier: Clearly, if we have an arrangement for mutual legal assistance, we are making it clear that we recognise that if someone commits a crime, wherever in the world that may be, they must face justice for that crime. We include in our measures, both in this agreement and generally in our approach to such matters, safeguards to ensure that mutual legal assistance would not result in any British citizen being put to death. The separation of powers means that we cannot absolutely give a guarantee.

The way it often works is that we receive strong assurances from the Executive of our opposite number—Government to Government. In most countries—certainly in those with which we have agreements, such as Japan—the judiciary is separate and makes its own judgment, but if, in extremis, a death sentence were passed despite assurances, it would be for the Executive to sign the order for the sentence to be carried out. That is another safeguard, because if we had had strong assurances that the death penalty would not be carried out, we would expect that the order would not be signed.

That is how the situation has often worked, and I hope that the hon. Gentleman is reassured that we would not put British citizens in the face of the death penalty, but we would not stop someone facing justice if they had committed a crime.