|Previous Section||Back to Table of Contents||Lords Hansard Home Page|
Baroness Anelay of St Johns moved Amendment No. 7:
The noble Baroness said: I move Amendment No. 7 separately because it refers to the seeking of advice, something to which we shall return in more depth later in the passage of the Bill.
Subsection (3) replicates, with minor amendments, what is in the 1990 Act. The amendment was tabled to probe the nature and quality of the advice that would be available to persons on whom overseas process is served in the United Kingdom under Clause 1.
We spoke about the administrative proceedings included in the scope of Clause 1. However, the exact nature of what is happening may not be readily apparent to persons on whom process in administrative proceedings is served. We may have a better understanding when we receive the Minister's letter in which he will give examples of what the administrative proceedings may comprise, but it may be difficult for people who have grown accustomed to and who one hopesunderstand the United Kingdom's system of justice fully to comprehend what such proceedings in other countries are all about.
Can the Minister say a little more than he did a moment ago to my noble friend Lord Carlisle of Bucklow, about the kind of advice that the Government expect people to seek? The Minister referred to the citizens advice bureaux. I declare a non-pecuniary interest as president of my local NACAB. I have served as adviser to and chair of the management committee for a quarter of a century. I am aware that, although the bureaux are funded locally, they would not normally have the expertise on-site to answer questions relating to such judicial matters and might have to send people to solicitors. That raises the question of who bears the cost. I beg to move.
Lord Filkin: As the Committee will recognise, the thrust of Clause 2(3) is to try to ensure that, when people are served with a notice, they have it made clear to them that they may wish to seek advice before responding. It is right and proper that the state should do that, so that such persons are in no doubt that it could be a significant issue for them. However, we do not think that it is right, proper or necessary to go further and second-guess what form of advice they should receive. We need only indicate that the people may wish to seek advice on the meaning of the documents and their potential implications.
The amendment would require the notice accompanying the process to indicate that the recipient may wish to seek "legal advice". The 1990 Act does not specify that that advice should be legal, so we see no reason to change the legislation in that
The standard notice that accompanies the overseas process suggests that the recipient seek legal advice. Given the nature of the documents, it is highly likely that the recipient would turn to a legal adviser for assistance. Persons on whom documents are served often telephone the UK Central Authority or seek advice from their solicitor. There are solicitors who have specialist expertise in such areas. For those reasons, we think that it is right to draw people's attention to the fact that they may wish to seek advice, without thinking that it is right or proper to spell out the exact form of that advice, which may differ according to circumstances or the preference of the recipient.
Baroness Anelay of St Johns: I am grateful for the Minister's response, but I would be grateful if he could consider giving some information at a later stage on the Government's view on whether legal advice is necessary in addition to other advice. Do the Government think that this is such a complex area that legal advice is as much required as anything else?
I heard the Minister say that people often phoned the UK Central Authority. Can he elicit for us information about the kind of advice that it gives? Is the authority telephoned simply for advice on the possible procedure or on whether people will need to present themselves to give evidence by television or telephone? Does the advice for which the Central Authority is asked go to the nub of the legal issues? People may have to ask for advice on many matters. It may be straightforward getting advice on how to fill in a form asking for personal details, but finding out how to respond to a particular legal process could be a detailed matter. I hope that the Minister will consider that.
We may return on Report to the subject of legal advice and the importance of access to it, not in the narrow form implied by this amendment but more widely. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Goodhart moved Amendment No. 9:
The noble Lord said: This is a brief amendment. Clause 2(1) states:
Lord Filkin: Clause 2 provides that overseas process must be accompanied by a notice covering such matters as the rights and privileges accorded to persons appearing in overseas proceedings. The notice must be given to persons appearing as a party and to those attending as a witness. That is because subsection (1) provides that subsections (2) and (3) apply both to parties and witnesses. The note that accompanies the process falls within subsection (3) and will be given to someone whether he or she appears as a party or as a witness.
The note will be the same in both cases and will use standard wording, indicating that the person may not be given the same rights and privileges as a witness as would be accorded in UK proceedings. The amendment would mean that the notice would also have to indicate that the recipient may not have the same rights and privileges as a party.
The drafting of the subsection reflects Section 1(4)(c) of the 1990 Act, which has not, to our knowledge, caused any problems. We are changing the term "defendant" in the 1990 Act to "party", but that is simply because "overseas process" can relate to some overseas administrative and clemency proceedingsour old friends againas well as ordinary criminal proceedings. The use throughout of the term "defendant" would not be appropriate, as we would not always be talking about criminal proceedings. However, there is no difference of substance from the 1990 Act, and we see no reason to change the existing legislative position, which appears to work well.
A party to proceedings must already be given a notice setting out his rights and privileges as a witness. We have identified no additional rights and privileges that would be accorded to a party to the proceedings, so we cannot see the need for the amendment. That is particularly so given the fact that the Bill is based on the corresponding provision in the 1990 Act. The intention is that the notice will be given to parties to proceedings and to witnesses. Having taken advice, I am happy that the current drafting achieves that. We respect the thrust of the amendment, but, for the reasons that I have given, it is not necessary.
Lord Goodhart: I am dissatisfied with that reply. The Minister appears to be saying that the notice will, under the terms of subsection (3), indicate that there are rights and privileges as a witness and as a party. In fact, the rights of a party and the rights of a witness are not necessarily the same. In some cases, the rights of a party may be different. For instance, under UK law, a
It would be appropriate to recognise that rights may be different. The fact that no problems have been caused because the drafting was got wrong in the 1990 Act is no reason to say that the drafting should not be corrected in the Bill. It is a minor matter, but I ask the Government to think again about it. We shall probably bring it back for a further short discussion on Report. I beg leave to withdraw the amendment.
Lord Filkin: We will always consider with care what is said in Committee.
Amendment, by leave, withdrawn.
Clause 3 [General requirements for service of process]:
Baroness Anelay of St Johns moved Amendment No. 11:
The noble Baroness said: I forbore to speak on the last amendment because I thought that your Lordships might have had enough. It is like a monologue from me at the moment, so it was intriguing to listen to the debate.
In moving Amendment No. 11, I shall speak also to Amendments Nos. 12 and 13. The amendments go back to the question of language. They raise the question of the language that will be used when the United Kingdom process is served overseas, if the person on whom the process is to be served does not understand English.
Amendments Nos. 12 and 13 relate to the issue of the specific language in which the translation will be provided. The Bill uses the phrase "an appropriate language". To whom, what or where is it appropriate? The Bill does not define how a language is to be judged to be appropriate in each case. Nor does it say who will make that judgment. In Belgium, for instance, there is more than one language in current use, and that is not the only example. It might not be immediately obvious
I hope that the Minister will clarify the issue, particularly in the light of the requirements of paragraph 3(a) of Article 6 of the European Convention on Human Rights, which specifies that a person has the right,
|Next Section||Back to Table of Contents||Lords Hansard Home Page|