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Lord Renton: The logical conclusion of what the noble and learned Lord says would seem to be that there can be no clemency in relation to criminal proceedings elsewhere.
Lord Goldsmith: I apologise to the noble Lord for partly not hearing and partly not understanding his point. Perhaps he would be kind enough to repeat it.
Lord Renton: Perhaps I may explain. The Attorney-General is trying to persuade us that clemency in relation to proceedings outside this country refers not to criminal proceedings but to administrative proceedings, as defined elsewhere. But I cannot believe that there is no clemency in relation to criminal proceedings outside this country.
Lord Goldsmith: If the noble Lord is picking up on what I said before, I do not think that he cites me—or at least my intention—accurately. No doubt that is my fault, not his. The best way to deal with the matter is for me to say that we shall consider it and, if there is something wrong in what I said, ensure that that is communicated. I was suggesting that this appears to be a form of procedure not known to us. I tried to give the closest analogy of which I could think.
As the definition identifies, it involves proceedings before a body that is not a court exercising criminal jurisdiction but is considering the removal or reduction of a penalty that has been imposed on conviction of an offence. I do not think that I can take that any further today.
Lord Carlisle of Bucklow: Before the noble Baroness withdraws whichever amendment she is going to withdraw, I thank the Attorney-General for saying that he would consider the point that I raised about the wording, "administrative proceedings".
Baroness Anelay of St Johns: First, I accept with alacrity the offer by the noble and learned Lord to take on board Amendment No. 127, in its modest drafting of a couple of words. If I had such luck with all probing amendments, I should be happy indeed, but I cannot expect that.
The Committee's debate on the other amendments has highlighted the confusion that is so easily caused by the subject matter of the Bill and, occasionally, its manner of drafting. I do not say that in any way to criticise the draftsmen—far from it. It is an extremely difficult Bill to write in a form that is applicable to our system, given that its provision is sometimes pan-European and sometimes pan-World. We shall consider more closely the amendment that I am about to withdraw, especially having heard what has been said by my noble friends Lady Carnegy and Lord Renton. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Anelay of St Johns moved Amendment No. 38:
- Page 8, line 29, leave out ", or intended to be carried on,"
The noble Baroness said: In moving Amendment No. 38 I shall speak also to Amendment No. 39. Amendment No. 38 is intended to probe the significance of the words,
- "or intended to be carried on",
What level of certainty is required for the test laid down in the Bill of an "intention" to carry on such proceedings to be met and a request made? Can the noble and learned Lord comment on whether mere suspicion that proceedings may be commenced at some time would be enough for a request to be made? We are trying to probe the level of certainty.
Amendment No. 39 is intended to allow us to consider more fully the definition of "administrative proceedings", in the light of last week's debate. We have just had a further snapshot of that. I hope that the Attorney-General can return to that in this context to give us a further burst of clarity.
The amendment would restrict the definition of "administrative proceedings" to proceedings that if carried on in the United Kingdom would be proceedings before a court. I beg to move.
Lord Goldsmith: On Amendment No. 38, the noble Baroness asked what degree of certainty is required before one can say that something is intended to be carried on. Let me first explain the purpose of those words.
Amendment No. 38 would restrict assistance in relation to clemency and administrative proceedings to where proceedings had already started. That would introduce an unacceptable restriction on assistance. It would be in contrast to existing mutual legal assistance arrangements, by which we assist at the investigative stage. We can see that if we compare Clause 14(1)(c) with Clause 14(1)(b), which specifically provides that assistance can be given not only where criminal proceedings but where criminal investigations are being carried on.
As for when it is right to say that clemency proceedings or other proceedings are intended to be carried on, the only answer that I can give is that they are intended to be carried on when they are intended to be carried on. That question will depend on the facts of the case.
I accept that Amendment No. 39 has been tabled to probe further what is meant by "administrative proceedings". In a sense, it does that well, because it would widen their scope far too far. It would define administrative proceedings as:
- "proceedings that if carried on in the United Kingdom would be proceedings before a court".
The definition of administrative proceedings in Clause 52(1) is deliberately precise and intended to catch the sort of administrative offences that we have been doing our best to illustrate and identify, but not to go further. So, I must resist both amendments.
Baroness Anelay of St Johns: I shall not take up the Committee's time. I appreciate the noble and learned Lord's answer and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Anelay of St Johns moved Amendment No. 40:
- Page 8, line 36, at end insert—
The noble Baroness said: I shall speak also to Amendment No. 41. Amendment No. 40 would introduce the concept of dual criminality into the definition of criminal proceedings used in Clause 14.
Of course, I recognise that the Bill replicates and develops what already exists in Section 4 of the 1990 Act. However, I should be grateful if the noble and learned Lord would explain the extent to which the provisions of the 1990 Act have been used in respect of crimes abroad that are not offences under United Kingdom law, and to what extent the Government envisage that the provisions of the Bill will be so used in future.
Amendment No. 41 relates to the issuing of certificates by authorities in other countries that will be conclusive in relation to the question of whether an offence under the law of another country has been committed and whether proceedings have been instituted there. The noble Lords, Lord Filkin and Lord Bassam, and I are all old hands from the proceedings of the Nationality, Immigration and Asylum Act 2002. We all recall the debate on such certificates on a hot evening on 23rd July last year at col. 289 of the Official Report and remember the unhappiness that was expressed with some implications of those certificates.
So although I realise that the Bill's provisions expand on those of the 1990 Act, I ask the noble and learned Lord about the operation of such certificates and whether the United Kingdom authorities have yet encountered any problems with the operation of the system. I beg to move.
Lord Carlisle of Bucklow: I shall speak briefly in support of my noble friend Lady Anelay on Amendment No. 40. I hereby undertake that this will be the last time I shall speak this afternoon.
I ask the following question. As my noble friend has pointed out, if one looks at the power to arrange for the evidence to be obtained, the court has to be satisfied that,
My real question is the following: why is there a distinction as regards fiscal offences? Clause 14(4) states:
"(aa) that if the conduct constituting the offence were to occur in a part of the United Kingdom, it would constitute an offence in that part, and"
4.45 p.m.
"an offence under the law of the country in question has been committed"—
that is, the country making the application. It does not necessarily have to be satisfied that similar conduct would be a crime in this country. Does that change the current law or not? I suspect that it does not. I believe that the 1990 Act has a similar provision.
"If it appears to the territorial authority that the request for assistance relates to a fiscal offence in respect of which proceedings have not yet been instituted, the authority may not arrange for the evidence to be so obtained unless—
(a) the request if from a country which is a member of the Commonwealth or is made pursuant to a treaty to which the United Kingdom is a party, or
(b) the authority is satisfied that if the conduct constituting the offence were to occur in a part of the United Kingdom, it would constitute an offence in that part".
It appears that, so far as fiscal offences are concerned—which I presume may or may not include money laundering—the court has to show that it is satisfied that the offence in question constitutes an offence in this country, whereas, as regards general applications, the court does not have to satisfy itself in that regard. What is the reason for that distinction?
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