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Baroness Anelay of St Johns moved Amendment No. 24:
- Page 5, line 28, leave out from beginning to second "the" in line 30.
The noble Baroness said: Amendment No. 24 relates to the requirement in subsection (7) of Clause 7 to state the relevance of the information requested when requesting information about banking transactions in connection with an investigation.
The Explanatory Notes state at paragraph 34:
- "Subsection (7) requires that any outgoing requests for information about banking transactions made to participating countries under Article 2 of the 2001 Protocol to the MLAC must clearly state the relevance of the evidence to the investigation. This is in line with the conditions set out in the Protocol".
That sounds like an eminently sensible precaution. There are no problems with that.
My question to the Government is this: why do the requirements of subsection (7) apply only to banking transactions and not to all requests for information? Are there good operational reasons why the relevance of the information should not be specified, perhaps in relation to terrorism or drugs investigations? We accept that that may be the case. Are the Government saying that the requirement to state the relevance of the information sought should apply only to banking transactions, or that it should apply to all transactions but that because of the requirements of the protocol to the MLAC it is necessary to state that provision on the face of the Bill for the avoidance of doubt?
Is the Minister aware of the way in which overseas authorities will approach their decisions about information sought here in the United Kingdom? Will there be a like provision on requests for information on banking transactions in overseas countries? I beg to move.
Lord Goldsmith: The Committee will be aware that subsection (7) is the new part of the clause. The rest of the clause essentially re-enacts the 1990 Act provisions. As the noble Baroness, Lady Anelay, said, subsection (7) is there because of the extension brought about by the 2001 protocol to the convention.
The position in relation to requirements for assistance outside this area of information on banking transactions is dealt with in the convention. As the Committee will know, all that the convention requires—I am reading from Article 14 of the 1959 convention—is the starting point in relation to all of these provisions. It is the "mother convention", the Council of Europe convention. That requires that requests for mutual assistance—ignoring irrelevant parts—shall indicate,
- "the object of and reason for the request".
The first and formal answer is that it is only in the context of this kind of request for information on banking transactions that the international requirement is that information should be stated. That is an answer. I shall take it a stage further. Why have such a situation? As I understand it, the reason is because of the particular demands that such a request for information can impose. I would anticipate that it would require investigative time and expense precisely because of the potential complexity of financial banking transactions. Because of that, when the negotiators set out the protocol they decided that specific additional requirements should apply to requests for the measures to be taken. In contrast to ordinary mutual legal assistance cases, where the general requirements that I have identified apply, they considered it was appropriate that in this kind of case there should be the additional requirement.
The answer goes to the protocol. Plainly at the time it was thought about by the negotiators for good reason. I answer the noble Baroness's question in that way. We would not want to add additional requirements to the category of cases, the ordinary—if I can term them so—mutual legal assistance cases where this additional requirement does not at the moment exist. That is the reason why we resist the amendment.
Baroness Anelay of St Johns: I am grateful to the Minister for that response. He has highlighted some difficulties that I have had in eliciting the information. As he so rightly says, the mother of this is the 1959 convention. It has been a nightmare trying to track through from the original documents the various additional protocols. As I have never served as a Member of the European Parliament or indeed on the Council of Europe, I find the documents more impenetrable than our own. I am grateful to him for his assistance.
As the Minister points out, the protocol has taken a further stance on this particular category of banking issues. We shall return to the theme, but I am grateful to him for his explanation today, which has satisfied me. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 7 shall stand part of the Bill?
Lord Carlisle of Bucklow: Will the noble and learned Lord the Attorney-General be good enough to explain exactly what is the difference between a prosecuting authority and a designated prosecuting authority? Perhaps more appropriately I should ask: who are the prosecuting authorities and who are the designated prosecuting authorities?
If I understand the Bill correctly, the powers are very different. Under Clause 7 an application is made to a judicial authority. The clause states:
- "If it appears to a judicial authority . . .
- (a) that an offence has been committed or that there are reasonable grounds for suspecting that an offence has been committed, and
- (b) that proceedings in respect of the offence have been instituted or that the offence is being investigated,
- the judicial authority may request assistance under this section".
In subsection (5), we find that if the prosecuting authority or the person who is the prosecuting authority who makes an application is a designated prosecuting authority, he or she does not have to apply for judicial approval but can straightaway ask for assistance. Therefore, the difference between a prosecuting authority and a designated prosecuting authority is considerable. I realise that I have looked at the matter quickly, but a similar situation occurred under the 1990 Act. Is the Crown Prosecution Service a designated prosecuting authority? Is the Serious Fraud Office a designated prosecuting authority? If not, how will people become designated? Will that happen by order of the Home Secretary? In the 1990 Act it is done by statutory instrument. How can a prosecuting authority become designated and is it intended that there should be a form of parliamentary scrutiny of the appointment of designated as against non-designated prosecuting authorities?
Lord Goldsmith: The noble Lord, Lord Carlisle, correctly picks up the distinction between the two categories. A prosecuting authority that is a designated prosecuting authority, as defined, can directly make a request for assistance. A prosecuting authority that has not been designated cannot directly make a request for assistance; it will have to come to the court and ask the court to make the order. That is the difference. The non-designated prosecuting authority will have to look to the court to assist in order that the request can be made. Therefore, it will make its application under Clause 7(1), whereas a designated prosecuting authority can—it says "may"—request assistance under the clause if the conditions are satisfied.
Who is a designated prosecuting authority? As the noble Lord rightly says, designation is by way of statutory instrument. I am pleased to find that I am the first in the list of the designated prosecuting authorities and the noble Baroness, Lady Carnegy, will be troubled that the Lord Advocate appears only at number six on the list. Other designated prosecuting authorities include the Director of Public Prosecutions and any Crown prosecutor; the director of the Serious Fraud Office; certain other people including the Commissioners of Customs and Excise; the procurator fiscal; the Attorney-General for Northern Ireland; and the Director of Public Prosecutions for Northern Ireland.
Those people are designated. If it would help I could add to the letter of my noble friend Lord Filkin and provide a list of them, although I have mentioned virtually all of them. If I add the Secretary of State for
Trade and Industry, that may be the entire list. From time to time other public bodies will prosecute. The prosecutors for the Department for Work and Pensions are not designated prosecutors and therefore would have to seek assistance from the court.
Lord Carlisle of Bucklow: The vast majority will be designated.
Lord Goldsmith: As the Crown Prosecution Service in England and Wales, the Serious Fraud Office, and Customs and Excise deal with the vast majority of prosecutions, and certainly the vast majority of prosecutions that are likely to require international assistance, I believe that the noble Lord is right to suggest that the majority will be designated.
Given that this matter arose on the Question whether the clause stand part, I ask the noble Lord to withdraw his opposition to the Question.
Clause 8 [Sending requests for assistance]:
Baroness Anelay of St Johns moved Amendment No. 25:
- Page 5, line 44, leave out "In cases of urgency,"
The noble Baroness said: In moving Amendment No. 25 I shall speak also to Amendments Nos. 26 and 27. These amendments relate to the situation envisaged by subsection (3) of Clause 8 where requests for information may, in cases of urgency, be submitted either via Interpol or any other body able to receive them under any provisions adopted under the Treaty on European Union.
Amendments Nos. 25 and 27 deal with the issue of what kinds of circumstances would be deemed to be a case of urgency under the provisions of subsection (3). These amendments invite the Government to spell out in greater detail the procedure that will be followed for determining whether a particular case is indeed urgent, and how the procedure specified in subsection (3)—namely, the submission of the request via an international body—will speed up the obtaining of the evidence in question.
Amendment No. 26 seeks to clarify which organisations are covered by the definition in paragraph (b) of subsection (3), which states:
- "any body or person competent to receive it under any provisions adopted under the Treaty on European Union".
6.15 p.m.
Lord Goldsmith: The purpose of these provisions is to enable, in accordance with the mutual legal assistance convention, certain requests to be dealt with in a particular way. The provision on urgent requests,
Clause 8(3), to which the noble Baroness, Lady Anelay, has referred, is intended to implement Article 6.4 of the convention on mutual legal assistance. That states that in urgent cases certain measures, particularly in relation to Interpol, may be used. It does not provide for routine requests to be transmitted in that way, so we do not believe that the convention would be implemented appropriately if Amendment No. 25 were to be accepted, as it would leave out the words, "In cases of urgency".Amendment No. 26 includes a category beyond Interpol. That is the category identified as,
- "(b) any body or person competent to receive it under any provisions adopted under the Treaty on European Union".
The purpose of the provision is that once such a body or a person—perhaps a national member of that body—is authorised to receive a request, the provisions will apply. The noble Baroness, Lady Anelay, asked about this matter. We do not want to limit the provision so that it constantly has to be amended. I suggest that that is the benefit of putting the provision in general terms rather than trying to specify a particular body.
Amendment No. 27 invites the Government to make regulations prescribing the circumstances in which a situation is or is not deemed to be a case of urgency. I suggest that that would not be a helpful provision. Like beauty, to some extent what is urgent is in the eye of the beholder. To try to specify in an exhaustive way what "urgency" is in all circumstances would deprive this provision of the flexibility and a degree of discretion that it should have. I suggest that there will be no difficulty identifying what is and what is not urgent and that to try to spell it out in regulations would be counterproductive. Those are the reasons for inviting the noble Baroness not to press Amendments Nos. 25, 26 and 27.
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