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Lord Goldsmith: The noble Lord asks whether there is a procedure for ensuring that the whole situation will be considered within a reasonable time. Legislation of this kind and its operation is kept under review. If it does not work and does not produce benefits, that will become apparent to those who are operating it, to those who are trying to benefit from it and to Ministers. I cannot take the matter further at present. I have given the reasons for this different procedure being proposed in this specific area, which I understand, at least for the time being, the noble Lord, Lord Clinton-Davis, sees as understandable and reasonable. I ask the noble Lord to withdraw his opposition to the Question.

Lord Carlisle of Bucklow: I am grateful to the noble and learned Lord the Attorney-General for that explanation. As the noble Lord, Lord Clinton-Davis, stated, it seems a perfectly acceptable explanation in the early days of the freezing order. However, I hope that it shall not be continued as an unnecessary bureaucratic intervention once the freezing orders are recognised in the same way as other requests for evidence. The noble Lord asked how often such matters are reviewed. I suppose that the last action in this area was 1990. Perhaps in about 14 years' time someone may be around to delete the need in Clause 11 to go to the Secretary of State.

Lord Clinton-Davis: Before the noble Lord sits down, why is he so impatient? He mentioned 14 years. We could make it 25 years.

Lord Carlisle of Bucklow: As was mentioned in last night's debate in the House, it all depends on whether any of us will be here in 20 years.

Clause 11 agreed to.

Clause 12 agreed to.

On Question, Whether Clause 13 shall stand part of the Bill?

Lord Carlisle of Bucklow: The same point arises. Clause 13 deals with requests from overseas for assistance by the courts in this country. Such requests must be received by the territorial authority for that part of the United Kingdom which is, by definition in

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Clause 28(9), the Secretary of State. Yet, under Clauses 7 and 8, if it is the other way round and the request comes from this country to another asking for its assistance in obtaining evidence, it can come directly from the judicial authority to the court in the country from which assistance is requested. Clause 8 states:

    "A request for assistance under section 7 may be sent—

    (a) to a court exercising jurisdiction in the place where the evidence is situated, or

    (b) to any authority recognised by the government".

Why must there be a system where a request from this country can go directly from the court to the court whereas a similar request from overseas cannot go directly to the court but to the Home Secretary who is required under Clause 15 to nominate a court to receive any such evidence? Perhaps I have misunderstood but it appears that in one way the court deals directly with the court yet an incoming request comes through the Secretary of State. I wondered why there is that difference.

Lord Goldsmith: The answer to the question raised by the noble Lord, Lord Carlisle, concerns the difference in the structure in the United Kingdom and that in other countries for how jurisdiction for prosecution is set out. At this end there are a number of different prosecuting authorities. The division between their jurisdiction is complex and based upon the type of crime involved. Therefore, it is much more difficult to identify who is necessarily the correct recipient for an incoming request. In that direction, it is appropriate that that should be assisted by coming through the territorial authority, and I shall return to what that means.

The advantage is that that will speed up the provision of assistance. It will mean that requests are directed to the correct place. We would not want, nor would the Committee, situations in which important requests from another country were misdirected to some part of the Crown Prosecution Service or to an inappropriate court in some part of the country. That could lead to great delay.

On the other hand, in many other countries the prosecution is based more on territorial division, and the investigation and prosecution stages may be more closely linked. That is why Clause 8 provides for the possibility of sending requests directly to the executing authority. However, notwithstanding that, there is an important speeding-up in the process.

Territorial authority, a concept to which the noble Lord rightly draws attention, includes the devolved administrations. The territorial authority is the Secretary of State in England and Wales but is the Lord Advocate in Scotland. Enabling the request to be sent directly to the devolved administration will remove an unnecessary layer of bureaucracy. That geographical division is straightforward and easy to explain. The other territorial and functional divisions between courts and prosecuting authorities are more difficult to explain. I hope that that answers the question raised by the noble Lord. If it does, or

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perhaps even if it does not, I ask the noble Lord to withdraw his opposition to the Question whether the clause stand part of the Bill.

Lord Carlisle of Bucklow: I shall consider what has been said by the noble and learned Lord. The other matter I wish to raise concerns the happy phrase, "The administrative authority", which appears in Clause 1 but not in Clause 13. Clause 1 states that a request for an overseas process relates to,

    "any document issued or made by an administrative authority".

Clause 13 states:

    "The request for assistance may be made only by—

    (a) a court exercising criminal jurisdiction . . . in a country outside the United Kingdom, [or]

    (b) any other authority in such a country which appears to the territorial authority to have the function of making such requests for assistance".

Is that intended to include the administrative authority whose requests we can deal with in the service of overseas process? Why are the words different in the two clauses?

Lord Goldsmith: Clause 1 deals with service of process, whereas Clause 13 deals with evidence, as does Clause 7. They are different concepts and different functions. I do not immediately follow why the noble Lord might think that the situation should be the same. It does not seem to me that it needs to be the same. In the different context of service of process as opposed to gathering of evidence, the provisions make sense.

Lord Carlisle of Bucklow: I think that the noble and learned Lord the Attorney-General is right about that. However, I still think the difference between Clause 13 and Clause 7 surprising so far as concerns the receipt for the request for evidence. It is difficult to see how adding in an extra stage—namely, having to go to the territorial authority—will save time. If we have enough confidence in the system in Clause 7 that requests to countries can go direct from our courts to their courts, we should enable them to be able to send requests directly to our courts rather than going through the Secretary of State.

Lord Goldsmith: Perhaps I may remind the noble Lord that Clause 8 provides a choice. The request can be sent via an authority as well as being sent directly. I have done my best to answer the question raised by the noble Lord. I do not share his confidence that if we require incoming requests to be sent to wherever the overseas authority thought appropriate that would not give rise to delay and to a risk of requests being lost in the post.

In the United Kingdom there will be prosecutors who cannot execute requests. Therefore, it would be wrong for requests to be sent to them. It is much better, therefore, for requests to be sent to the Secretary of State who will obviously deal with them as expeditiously as possible and speed them on their way to the correct place.

Clause 13 agreed to.

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The Deputy Chairman of Committees (Lord Skelmersdale): Before calling Amendment No. 36 I must inform the Grand Committee that if that amendment is agreed to, I cannot call Amendments Nos. 37, 38 or 39.

Clause 14 [Powers to arrange for evidence to be obtained]:

Baroness Anelay of St Johns moved Amendment No. 36:

    Page 8, line 28, leave out paragraph (c).

The noble Baroness said: In moving Amendment No. 36 I shall speak also to Amendments Nos. 37 and 127. Amendment No. 36 is a probing amendment which seeks to clarify the precise nature of the situation in which evidence may be obtained in the United Kingdom in connection with the proceedings in other countries specified in Clause 14(1)(c).

Paragraphs (a) and (b) of that subsection refer to criminal proceedings and criminal investigations. Paragraph (c) is wider and refers to clemency proceedings, which I shall consider in a moment, and to proceedings on an appeal before a court against a decision in administrative proceedings. As was recalled by my noble friend Lord Carlisle, last week the Committee debated the question of administrative proceedings in relation to Clause 1. The reference to such proceedings in Clause 14 is to an appeal before a court against a decision made in administrative proceedings, whereas in other parts of the Bill—such as Clause 1—the administrative proceedings themselves are referred to.

I hope that the Minister can clarify why it has been decided to refer to an appeal before a court rather than to the administrative proceedings themselves.

Amendments Nos. 37 and 127 relate to the term "clemency proceedings", which is used in Clause 14 and elsewhere in the Bill. Specifically, they refer to the definition of such proceedings contained in Clause 52(1), which says that it means,

    "proceedings in a country outside the United Kingdom, not being proceedings before a court exercising criminal jurisdiction, for the removal of a penalty imposed on conviction of an offence".

Amendment No. 127 would amend that definition by changing the words,

    "removal of a penalty",


    "removal or reduction of a penalty".

It seeks to probe the precise nature of the definition. Do the words "removal of a penalty" cover the situation in which the power of clemency is exercised to commute a death sentence to a period of imprisonment? If one was being pedantic, one could say that that is not a penalty being removed because there would still be a penalty.

I hope that the noble and learned Lord will also be able to explain whether the definition of clemency proceedings is intended to extend the scope of the Bill's provisions, not just to the death penalty case but to other cases in which the power of clemency is exercised, such as a reduction in the length of a prison

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sentence. If that is the Government's intention, I may be pedantic about the use of the word "removed". I beg to move.

4.15 p.m.

Lord Clinton-Davis: I should have asked this question in relation to Clause 1. The words "clemency proceedings" are used only in relation to the Schengen convention, and not in any other instrument of law in this country. I may be entirely wrong about that, but I have never seen that expression before. Can my noble and learned friend say whether a similar provision has been included in any other legislation?

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