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Lord Goldsmith: Under the definition of "participating country" in Clause 52, the only participating countries that would be designated without a further order would be those countries that are member states on the day appointed for the commencement of this provision, and all of those are signatories to the European Convention on Human Rights.
Lord Goldsmith: As the noble Lord, Lord Goodhart, said, there are two forms of order. There is the situation in which an order is made by a court in the United Kingdom and is then executed abroad, and there is the converse case. The Bill provides a speedy procedure for freezing evidence. For example, it may come to the notice of police officers investigating an actual robbery or a conspiracy to rob a bank that important evidence, in the form of firearms, is in a flat in Brussels. The Bill provides a procedure under which law enforcement officials can go to an English, Scottish or Northern Irish court and ask for an order to freeze that evidence.
The order will identify the evidence and will be transmitted speedily to the authorities in the other country, who will execute it, subject to the conditions set down. They will then hold the material until a request for mutual legal assistance is obtained and is granted. The evidence has been frozen, as it has been possible to move quickly to avoid allowing it to
Lord Carlisle of Bucklow: The power to execute the order depends on the actions of the other country. Presumably, they will be required to have domestic legislation that provides for that. At the moment, none of them has.
Lord Goldsmith: None of them has it at the moment because the framework decision is not yet a decision, as has rightly been pointed out. Once it is, there will be an obligation on them to put in place domestic procedures that will give effect to the framework decision. The noble Lord is right to say that, in those circumstances, it would be for them to execute. As I said, all the countries concerned subscribe to the European Convention on Human Rights.
Lord Dholakia: I wanted to probe that point. The noble Lord, Lord Carlisle of Bucklow, asked about reciprocal arrangements, with particular regard to Clause 52(2), which allows the Secretary of State to designate other countries by order. The noble Lord, Lord Filkin, said that he would take that into account in a letter that he would send us.
The noble and learned Lord just said that the Secretary of State would take the human rights convention into account before making such an order. Am I right? Is that what he meantor implied? If it is, we do not need to worry about countries such as Zimbabwe and others, as the convention would not apply in any case. Are there some complications? Can the noble and learned Lord explain what he has in mind?
Lord Goldsmith: I should not be taken as giving any undertakings on behalf of the Secretary of State. I am not in a position to do that. It does not mean anything more than that I think that it would need to be considered. I was saying that, under the terms of the Bill, certain countries would stand as participating countries because they are members of the European Union when the provisions come into force. They will have to bethey aresubscribers to the European Convention on Human Rights.
All that I said in addition to that was that, in the event that further countries were to be designated, it would be open to anybody to make a point about the standards that applied in that country when the Secretary of State put forward a proposal for designation. It is not necessary, at this stage, to speculate on the considerations that the Secretary of State will have in mind. That matter will be considered at that stage.
The Minister's answer to the noble Lord, Lord Goodhart, made me think that we may find ourselves examining even more carefully the order-making power to extend the list of countries beyond "participating countries" when we come to that part of the Bill. The noble and learned Lord sought to reassure the Committee by saying that there were protections and that, when the list was extended, the Secretary of State would take into account the human rights position in those countries. Gosh! It would be nice and easy to tick a box and think that that was it. We will have to consider that order-making power carefully.
The underlying objective of the amendment is to ensure that the procedure in Clause 10 is consistent with existing practice. I am advised by the Law Society that applications for freezing orders to take effect in the domestic jurisdiction are usually heard by a circuit judge. The clause allows for applications for freezing orders to take effect in other jurisdictions to be heard by any judicial authority, including magistrates. That could mean, for example, that an application could be made on a Friday afternoonI am not sure how many magistrates' courts outside the metropolitan areas sit on Friday afternoonin an area unused to cases involving other jurisdictions for a freezing order to be made in relation to a journalist's notebook held, perhaps, in Paris. The Law Society may be referring to a particular case.
It is not appropriate that an unfamiliar application that involves complex proprietorial rights should be put before an inexperienced Bench. It would be more appropriate for any evidence defined as excluded evidence or that would otherwise come under the special procedure rules to be dealt with by the appropriate judicial authority in the United Kingdom. On principle, our procedures should require as much
A freezing order is a significant order, and it may raise difficult issues. As we know, it may give rise to problems under the Human Rights Act 1998. Such orders are unlikely to be made every day, unlike search warrants, which are made frequently. By long-standing practice, search warrants are made by justices of the peace. It is appropriate that freezing orders should be made only by circuit judges and not by magistrates.
Lord Clinton-Davis: I do not automatically disagree with the noble Lord, Lord Goodhart. I am surprised that, on this occasion, when the Government are widening the provision relating to judges to include a circuit judge, the noble Lord is attacking the Government's proposal.
Magistrates would invariably be advised by a legally qualified clerk. That is a useful provision. It does not follow automatically, but, as the noble Lord said, if such applications are infrequent, it will almost invariably be the case that a legally qualified clerk would be in post.
Lord Goodhart: The Bill does not say that the judicial authority is a magistrates' court; it says that it is a justice of the peace. The decision can be made on an application made over the telephone to a magistrate. The application need not be made in court, in the presence of the justice's clerk.
Lord Clinton-Davis: That is right, but, as a matter of practice, that is unlikely to be the case. My wife was a justice of the peace. If, in her view, she was not qualified to deal with a matter, she would say so.
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