Draft Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) (No. 2) Order 2010

The Committee consisted of the following Members:

Chair: Mr James Gray 

† Bebb, Guto (Aberconwy) (Con) 

† Brake, Tom (Carshalton and Wallington) (LD) 

† de Bois, Nick (Enfield North) (Con) 

† Docherty, Thomas (Dunfermline and West Fife) (Lab) 

† Green, Damian (Minister for Immigration)  

† Hames, Duncan (Chippenham) (LD) 

† Hepburn, Mr Stephen (Jarrow) (Lab) 

† Hoey, Kate (Vauxhall) (Lab) 

† Joyce, Eric (Falkirk) (Lab) 

† Mahmood, Shabana (Birmingham, Ladywood) (Lab) 

† Metcalfe, Stephen (South Basildon and East Thurrock) (Con) 

† Rutley, David (Macclesfield) (Con) 

† Shannon, Jim (Strangford) (DUP) 

† Stewart, Bob (Beckenham) (Con) 

† Tredinnick, David (Bosworth) (Con) 

† Watkinson, Angela (Lord Commissioner of Her Majesty's Treasury)  

† Watts, Mr Dave (St Helens North) (Lab) 

† Wright, David (Telford) (Lab) 

Eliot Wilson, Committee Clerk

† attended the Committee

First Delegated Legislation Committee 

Tuesday 25 January 2011  

[Mr James Gray in the Chair] 

Draft Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) (No.2) Order 2010 

4.30 pm 

The Minister for Immigration (Damian Green):  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.2) Order 2010. 

It is always a pleasure to serve under your chairmanship, Mr. Gray. The Crime (International Co-operation) Act 2003 provides a streamlined and modernised framework within which the United Kingdom can both make and execute requests for mutual legal assistance, or MLA. 

In an effort to improve further international co-operation, we are now seeking in this order to designate Japan as a participating country for the purpose of various sections of that Act. This designation is required so that the United Kingdom may comply with the provisions of the EU-Japan MLA agreement. The UK opted into the Council decision to conclude the agreement on 17 March 2010 because it will provide significant benefits for the UK in our MLA dealings with Japan. This agreement is the first comprehensive framework for MLA between the UK and Japan. It will be of benefit in ensuring that requests are dealt with in a timely and efficient manner and will advance the range of assistance available. 

The UK has sent significantly more requests to Japan than it has sent to us, but until now MLA has been conducted with Japan on an informal basis, relying on international comity. UK prosecutors say that there have been particular difficulties in seeking the use of video-link evidence from witnesses in Japan. That can, at least in part, be attributed to the lack of a formal framework through which both sides operated and has meant that time-consuming negotiations have been required to resolve such issues. In addition, requests between parties for banking evidence, such as account monitoring orders, are not currently available under international comity. The agreement addresses those issues. 

The UK must ensure that it has the necessary secondary legislation in place so that it can fulfil its obligations under the agreement, article 18 of which enables one party to request that the other ascertains whether banks within their territory possess information on whether a suspect is the holder of an account and to produce records of any such accounts, transactions or recipient accounts. The powers in domestic law through which the UK can comply with these obligations are found in the Crime (International Co-operation) Act 2003. Those provisions are, however, applicable only in relation to a participating country. 

Thomas Docherty (Dunfermline and West Fife) (Lab):  On a point of clarification, the Minister is referring all the time to the UK, but if I understand it correctly, the order only seems to apply to England, Northern Ireland and Wales. As a new Member, can the Minister clarify why that is? 

Damian Green:  That is because it is a devolved matter. The hon. Gentleman will be pleased to hear that the order has already been passed by the Scottish Parliament. He is right that the order we debating today only covers the other parts of the UK, but it has already gone through the legislative process in Scotland. 

Under the scheme of the 2003 Act, in order for the UK to seek and provide MLA to a country in accordance with these provisions, that state must fall within the definition of a “participating country”, which is contained in section 51(2)(b) of the 2003 Act. 

Jim Shannon (Strangford) (DUP):  The Minister said that Scotland had passed the legislation. Did the Scottish Parliament identify any issues during that process that could appropriate for us to consider today? 

Damian Green:  I am not aware of any particular issues that were raised when the order was debated in Scotland or, indeed, in the other place, because we in the Commons are coming to this last as it has already gone through various other legislative stages. I am sure that the hon. Gentleman will have read the Lords Hansard on the proceedings—an illuminating debate. Questions were raised, and I hope they were answered satisfactorily by my noble Friends. Certainly, their lordships found nothing wrong with the order, and I am happy to assure the hon. Gentleman that Scottish Ministers welcomed the measure and are confident that it will be beneficial to Scotland. I am similarly confident that it will be beneficial to all the other parts of the United Kingdom. 

Mr Dave Watts (St Helens North) (Lab):  If we were to refuse to endorse this order, how would that affect the Scottish decision that has already agreed it? Would it be enforceable in England? 

Damian Green:  I will not take up the hon. Gentleman’s invitation to follow him down a hypothetical path because I have every confidence that the Committee will endorse the legislation. I appreciate that he is following the argument closely, and in terms of the informal arrangements that applied before the framework now available to us, the exchange of MLA has been much more beneficial to Britain than to Japan. We have made far more applications than the Japanese have, so it would be an act of some perverseness were the Committee to choose not to take this advantageous step. I hope that he and others will follow the example of our Scottish colleagues, and those in another place. 

A country falls to be regarded as a participating country if it was a member state of the European Union on the date on which the relevant provision of the 2003 Act was commenced or if it has been designated as a participating country in an order made by the Secretary of State. In order for the UK to comply with certain obligations that arise under the agreement, it is

therefore necessary for us to designate Japan as a participating country under section 51(2)(b) of the Act for the purposes of sections 32, 35, 43, 44 and 45 of that Act. Designation for the purposes of sections 32 and 35 of the 2003 Act will allow the UK to deal with incoming requests for customer banking information and account monitoring information made by the authorities in Japan. 

Designation for the purposes of sections 43 and 44 of the Act will allow the UK to make requests for such information to Japan. Section 45 provides that requests for assistance made under sections 43 and 44 must be sent to the Secretary of State to be forwarded to the relevant authority, unless they are urgent. There are similar arrangements in Japan, so it can already provide such assistance to the UK. Japan is not the only non-EU country designated for these provisions. We have, for example, similar arrangements with the US and Norway. 

The UK is committed to improving the provision of MLA—a key tool in ensuring cross-border crime can be combated and justice achieved for British victims of crime. The agreement is a further effort to improve international co-operation and this order, which enables us to meet the terms of the agreement, will therefore be of benefit to British victims of crime. I accordingly commend the order to the Committee. 

4.37 pm 

Shabana Mahmood (Birmingham, Ladywood) (Lab):  Thank you, Mr. Gray. It is a pleasure to serve under your chairmanship for the first time. 

I am grateful to the Minister for setting out the reasons why the Government are seeking to make the order. Given that the draft order gives legal effect to one article of a MLA between the EU and Japan that was opted into by the then Labour Government on 17 March 2010, I will not be seeking to divide the Committee and will not detain Members for very long. 

I have a couple of questions about the explanatory note. Paragraph 7 of the note states 

“Until now MLA has been conducted with Japan on an informal basis”. 

The Minister gave us a few details about that informal basis, and I wonder whether he could give us some further clarification regarding the previous basis on which relations were conducted so that the Committee can better understand the difference that the terms of today’s order will make. What are the current arrangements between the UK and Japan? Paragraph 12 of the explanatory note also states 

“The outcome will be subject to internal review after twelve months to assess if any unexpected impact has occurred.” 

I assume that that outcome is the implementation of this particular order. Will that review be a one-off, to be conducted one year from today, or will the order and similar ones be subject to a rolling, annual review? 

The order essentially gives effect to article 18 of the European Union and Japan agreement, which relates to mutual obligations regarding banking transactions. That agreement has 31 articles in total, some of which relate to the freezing, seizure and confiscation of proceeds or instrumentalities; the giving of evidence via video conference, to which the Minister referred; and the transfer of individuals in custody. Is article 18 the only article of the agreement that requires secondary legislation

in order to give full legal effect to the agreement? Are any further orders required, or are all parts of the UK legislative framework now fully compliant with the terms of the EU-Japan agreement? 

Finally, what is the degree of co-operation between the devolved and the national legislature in terms of agreeing such orders? I am trying to ascertain whether it is usual policy to ensure that all parts of the United Kingdom come into line with such agreements at roughly the same time. 

4.41 pm 

David Tredinnick (Bosworth) (Con):  It is always a pleasure to serve under your chairmanship, Mr. Gray, and thank you for calling me. 

I have a number of additional questions for my hon. Friend the Minister. Why are we considering this order now? Did a particular event or series of events or criminal activities mean that this order was needed, right now, or is the order part of the run-of-the-mill European legislation with which we must comply? If is has been introduced for a specific reason, I wonder why nothing was done about it by the previous Government, who were in office for a very long time. Is it another example of this Government having to clear up the mess of their predecessor and, in this case, take on the additional burden of improving the gathering of information for disposing of criminals? 

Would my hon. Friend kindly elaborate upon the legal assistance concerning persons under investigation, which seems very sensible, and the assistance in terms of looking at bank accounts and general problems to do with fraud and banking? Why is video-link evidence a specific problem? This order relates to Japan—I assume that it has been cleared by the Joint Committee on Statutory Instruments—and I wonder whether it is the first of a series. Are we about to see an order that relates to China, Malaysia or Indonesia? Why has Japan suddenly come up? I would be most grateful to my hon. Friend for his comments. 

4. 43 pm 

Tom Brake (Carshalton and Wallington) (LD):  I rise only to pose a couple of questions to the Minister. 

Is the arrangement with Japan completely reciprocated? Is it a mirror image? Is the EU commitment matched by an identical Japanese commitment? Further to the points raised by the hon. Member for Bosworth, is the agreement purely financial and banking related, or could it be extended to other matters that might lead to the UK Government assisting Japan in cases involving treason or homicide, where those offences are subject to the death penalty? 

4.44 pm 

Damian Green:  I thank colleagues for asking a number of pertinent questions. 

The hon. Member for Birmingham, Ladywood asked about the background to the order, and perhaps I can go back over the past 17 years, but I will do so briefly. We have received a total of 12 requests from Japan for assistance, and we sent 69 requests to Japan in the same period. If that pattern continues, it seems likely that the UK will stand to benefit more from the agreement.

Indeed, the more recent one looks, the more obvious the disparity, in that between 2005 and 2010 there were 25 requests sent from the UK to Japan, and only one request received by the UK from Japan. To answer the question about whether this is just about banking, I can tell the Committee that a wide variety of different types of evidence have been sought. 

My hon. Friend the Member for Bosworth asked whether a specific event had triggered the agreement. I am sure that he will understand that for obvious reasons the Government do not confirm or deny whether a specific MLA request has been made, because it will tend to pertain to specific cases under investigation at the time by the police in one country or another. I was asked whether anything will now change, and whether there will be a sudden influx of requests to the UK if the agreement comes into force. We are obviously entering into a new era, so it is not possible to give a definitive answer, but given the relatively low volume of MLA requests between the UK and Japan, we do not anticipate a sudden rise in the number of such requests. 

Jim Shannon:  Has anyone been convicted of any illegal criminal activity through the informal arrangement that has been place? Does he believe that making that arrangement legal through the legislation before the House will ensure that criminals involved in any type of activity will be more easily convicted than under the existing informal arrangement? 

Damian Green:  The main difference will be in the amount of administrative time and difficulty that will be put upon the British police and Home Office officials in obtaining evidence. The order enables us to obtain such evidence, so the question of conviction is clearly a matter for the courts. It was always possible to obtain that evidence, so I will not claim that the balance of advantage for the criminal has changed, but it is absolutely true that it often took several weeks of effort to set up a single video-link conference. The order will make such arrangements much more automatic and therefore much more efficient. 

Thomas Docherty:  Paragraph 4.6 of the explanatory memorandum refers to the “Secretary of State” and I assume that means the Secretary of State for the Home Office. In the case of Scotland, would a request be made direct to the Secretary of State for Scotland, or would it be made via the Home Secretary? 

Damian Green:  My understanding is that a request would come through the Home Secretary, given that person has overall responsibility. The hon. Gentleman will be aware that some parts of the Home Office’s responsibilities are devolved, whereas others, including immigration, which is my own responsibility, are not devolved. Essentially, the Home Secretary will be the lead point of contact. 

The hon. Member Birmingham, Ladywood also asked about the internal review, and I am happy to assure her that it will be a one-off. We do not propose to spend huge amounts of time reviewing it every year. She also asked whether article 18 was the only article that required secondary legislation, to which the answer is yes. She also asked about the proposed changes. The UK does

not require a treaty to provide MLA, but such agreements help to ensure the co-operation of other states. Before this agreement, we would have provided assistance under the provisions of CICA—the Crime (International Co-operation) Act—which does not require designation, pursuant to the other MLA powers that we can ask the police and other law-enforcement bodies to exercise. In the past, arrangements were just slightly more difficult and slightly more cumbersome. 

I believe that the hon. Lady asked about co-operation with the devolved Administrations, and such co-operation has been very good on MLA matters. Obviously, we work closely with the Crown Office in Scotland, which I hope will also reassure the hon. Member for Dunfermline and West Fife. 

My hon. Friend the Member for Bosworth asked what led to the agreement, and he was inviting me down a path to criticise the previous Government. I will not accept that invitation because the agreement was being implemented by the previous Government at the end of their term of office, and we are putting it into effect. It is beneficial, because in the past we have had some problems in obtaining MLA from Japan. To answer the question “Why now?”, it was Japan that approached the EU to seek the agreement. One can see the advantage from the Japanese point of view, in that rather than having to sign 27 different national agreements, they could have one agreement with the entire EU. For those who are interested in the arcana of European treaties, this is a matter of shared competence. It is not a matter of our moving anything over to European competence that was not covered by such shared competence previously. 

Thomas Docherty:  Have the other 26 nations ratified the treaty as well with Japan? Have any other countries had any issues about the agreement? 

The Chairman:  Order. Could we focus on the statutory instrument before us, which does not cover any of the other nations of the world, nor, indeed, any of the devolved nations within the UK? We must focus simply on the statutory instrument before us. 

Damian Green:  I will take your guidance, Mr. Gray. 

I was asked about reciprocity. States provide MLA in accordance with their domestic powers, but the international obligations under agreement apply equally to both parties. There is genuine reciprocity. 

I was asked why I emphasised the importance of the video link. In the past the Government of Japan have expressed serious reservations about such conferencing, and they have previously taken the view that the use of video conferencing to obtain evidence from witnesses in Japan might infringe their sovereignty and could place their citizens at the risk of the jurisdiction of another country. As a result, the Japanese Government have required a number of assurances from the UK before agreeing to facilitate a video conference, some of which we were unable to give under our legislation. The agreement will therefore be of particular importance in alleviating some of their concerns. 

My hon. Friend the Member for Carshalton and Wallington asked about the Japanese death penalty. The Secretary of State retains discretion as to whether

or not to accede to a request for MLA, and that discretion is informed by the terms of the relevant international agreement. The EU-Japan agreement 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. The death penalty is specifically referenced in the agreement as an example where the state’s essential interest may be impaired and would therefore be a ground on which MLA could be refused. I hope that my hon. Friend is reassured by that. 

I thank members of the Committee for a considered and useful debate. The order is necessary to allow the UK to meet the terms of the EU-Japan MLA agreement, and doing so clearly has benefits for the UK in fighting crime and achieving justice. As such, I commend the order to the Committee. 

Question put and agreed to.  

4.54 pm 

Committee rose.