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Baroness Anelay of St Johns: The Minister has given the answer that I expected. My difficulty still remains. We shall be enforcing a system whereby someone could be accused of an offence of contempt which was not committed in this country. I shall examine the provisions carefully. The Minister's answer is the most that he could possibly have given in the circumstances. I beg leave to withdraw the amendment.
The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 81 to 84. They cover the giving of evidence by television links. Amendment No. 80 asks the Government to explain what authorities the Secretary of State considers will have the function to make requests as envisaged in the clause. Will they be courts, police, prosecuting authorities or public defenders? Who will be the authorities? I ask the question in order to have an answer on the record.
Amendment No. 81 inserts a new subsection which provides extra protections. The request should specify the reason why it is not desirable or possible for the witness or expert to attend in person; it should state the name of the judicial authority and the names of the
Amendment No. 83 introduces an element of good practice into the procedure. It provides that the attention of the witness should be drawn to subsections (4) and (5) before he gives evidence, so that he is aware of the possible consequences of giving that evidence. In particular, it is important that people should be aware that UK rules on contempt and perjury will apply before they give their evidence.
As to Amendment No. 84, what happens if the contempt constitutes an offence of contempt under UK law but not under the law of the state where the evidence is being received? Would any further action be taken on that matter? I beg to move.
Lord Renton: I agree with three of my noble friend's amendments, but there are two that I find rather difficult to support; namely, Amendments Nos. 80 and 82. She has a very powerful reason for seeking the Government's views on the need for Amendments Nos. 81, 83 and 84. Those or similar amendments are essential to ensure that justice is done. I shall not trouble the Committee with the detail at the moment, but the Government need to consider the matter very carefully. Perhaps the Minister would rather not give an answer today on Amendments Nos. 81, 83 and 84. However, I think that the points in those amendments must be dealt with.
Amendment No. 80 deletes the explanation of the term "external authority". The noble Baroness was kind enough to explain that she is seeking guidance to what "external" authorities are. My understanding is that these are the same authorities that generally make requests for mutual legal assistance. They would be courts, prosecutors, central authorities, examining magistrates, official persons and bodies with investigative and prosecuting functions. I think that I am right in saying that these are drawn from arrangements that existed under the 1959 convention on mutual assistance in criminal matters. Article 24 of
Amendment No. 81 would require incoming requests from overseas authorities to include the three pieces of information specified. We are not about to accept this amendment, although the Government understand the intention behind it; and we considered including the first two requirements on the face of the Bill. We concluded, however, that it would make the clause unnecessarily restrictive.
The first two conditions are requirements of article 10 of the Mutual Legal Assistance Convention. The problem with including these conditions in a clause of general application is that other future agreements containing provisions on television evidence might not be expressed in precisely the same terms as the convention. For that reason, we do not want the Bill to be drafted so narrowly as to exclude the granting of assistance under other agreements, although in practical terms we would expect these conditions to be met in order to be able to make the necessary administrative arrangements to set up the hearing.
That does not mean that we shall apply a lower standard to requests from outside the EU. In contrast, we consider that the current drafting provides for greater discretion in the absence of an international agreement, because of the general discretion provided for in subsection (3), which provides that the Secretary of State is to nominate a court to hear the evidence unless he considers it inappropriate to do so.
Imposing the third proposed conditionthat a witness is willing to give evidencewould also run contrary to the provisions of the convention, so we could not possibly agree to its inclusion. It is possible to impose such a condition only in relation to hearing accused personsif member states choose, in accordance with Article 10(9), to extend the provision to hearing accused persons. The Government do not propose to enable accused persons to be heard in that way at all.
Subsection (3) gives the Secretary of State discretion not to take forward a request. That is the issue addressed by the third amendment in the group, Amendment No. 82. The point of having that discretion is to enable the Secretary of State not to comply with a request where that request would contravene national law. We consider that the approach in the Bill is preferable because it retains an overall discretion for the Secretary of State in all cases, while not being unduly prescriptive in the conditions that it imposes in relation to overseas requests. We consider that the discretion conferred on the Secretary of State in subsection (3) should be sufficient to meet the concerns that the second amendment seeks to address. In other words, he will be able to refuse requests if they do not contain the necessary information.
The fourth amendment, Amendment No. 83, would introduce a statutory requirement to inform witnesses of their rights and obligations as defined in the clause. It is hard not to be sympathetic to the intention behind the amendment. However, we consider that Schedule 2 contains sufficient safeguards regarding the rights of witnesses and think the amendment unnecessary.
Witnesses who provide evidence in that way will be subject to the same rules on contempt of court and perjury as if they were testifying in a normal domestic court proceeding. They are also protected by any additional rights and privileges that they would have if physically present at the overseas proceeding.
The fifth amendment, Amendment No. 84, would limit the circumstances in which a witness summoned to give evidence before a UK court would be deemed to be in contempt of court. It is unacceptable because it would place an undue burden on the domestic court to have to establish whether an act by a witness in its presence that is contemptuous of court in the UK would also be in contempt of court in the overseas country. The Committee will understand that that would require detailed knowledge of many other legal systems, which is, frankly, impractical.
The clause is designed to protect the domestic court system. After all, the overseas court will be conducting the proceedings. As I explained, it will be for it to establish whether anything that occurs at the UK hearing constitutes contempt for its purposes. We feel that that is a sufficient safeguard.
Baroness Anelay of St Johns: I thank my noble friend Lord Renton for his support for three of the five amendments. I certainly dare not return to the two that he did not support: Amendments Nos. 80 and 82; I shall take his advice on them. I am grateful to the Minister for giving such a full and helpful explanation in response to all the amendments. I was intrigued by his comment in passing on Amendment No. 81 that the Government had considered including paragraphs (a) and (b) in the Bill, but decided that that would be an unnecessary restriction. I shall reconsider that and may return to it on Report, but I do not want to commit myself at this stage. I beg leave to withdraw the amendment.