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Crime (International Co-operation) Bill [HL]

Read a third time.

Clause 1 [Service of overseas process]:

Lord Filkin moved Amendment No. 1:

The noble Lord said: My Lords, the amendments alter the drafting of the references to "administrative proceedings" in Clauses 1 and 14. We have discussed

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administrative proceedings at length. In Grand Committee, my noble and learned friend the Attorney-General agreed, in response to a question from the noble Lord, Lord Carlisle, that we would look further at the drafting of Clause 14. Since then, we have considered carefully whether it enables us to assist as required by the MLAC.

On reflection, we were not satisfied that Clauses 1 and 14 were exactly in line with our obligations to assist under the MLAC in relation to administrative proceedings. The explanatory report to the MLAC states that we are obliged to assist at the investigation stage of such proceedings, as well as at the latter stage when the decision has actually led to a proceeding before the criminal court. It states that,

    "assistance can be requested . . . not only for investigations in criminal matters but also for investigations of conduct that is subject to certain administrative sanctions".

The current drafting of Clause 14 limits assistance to the appeal stage only. The second amendment therefore extends that. As revised, Clause 14(1)(a) and (b) will refer to criminal proceedings or a criminal investigation, and administrative proceedings or an investigation into an act punishable in such proceedings. That makes the circumstances in which we may assist much clearer. The first amendment makes a minor amendment to Clause 1 along the same lines, allowing any document made by an administrative authority relating to administrative proceedings to be served, not just those recording decisions of the administrative authority.

The third amendment ensures that the same safeguards will apply to requests relating to administrative proceedings as apply to requests relating to criminal proceedings. Those safeguards are that in order to assist in obtaining evidence in the UK, the territorial authority in the UK—the Secretary of State for England, Wales and Northern Ireland, and the Lord Advocate for Scotland—is to be satisfied that an offence has been committed or there are reasonable grounds for suspecting that it has, and that proceedings have been instituted or there is an investigation into it. The fourth amendment ensures that references to an "offence" in subsection (2) will cover both criminal offences and acts punishable in administrative proceedings.

We consider that the amendments to Clause 14 will enable us to provide assistance in administrative proceedings in the way required by the MLAC, and acknowledge with appreciation the intervention of the noble Lord, Lord Carlisle, in the measures. I beg to move.

Lord Renton: My Lords, the Minister has taken a great deal of trouble over the amendments, which are mainly drafting amendments. Indeed, he takes a great deal of trouble all the time.

I have one question, which I know was raised in Grand Committee. Amendment No. 4 will insert at the end of page 9, line 9: "An offence"—that means a criminal offence—

    "includes an act punishable in administrative proceedings".

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There may technically be some good reason for inserting that in a Bill with such international implications and effect. However, it is very unusual—in fact, I do not have an example in my recollection—that any administrative proceedings in themselves give rise to a criminal act in such a way. I would be grateful if the Minister would explain that.

Baroness Anelay of St Johns: My Lords, I thank the Minister for tabling the amendments, which clarify the position with regard to administrative proceedings. My noble friend Lord Renton reminds us that we have debated administrative proceedings both in Grand Committee and on Report, when we probed the Government as to what "administrative proceedings" cover. They do not exist in this country as such, nor in all other countries in the European Union.

It is important that the Government make the clarification that they have done today. I would be grateful if the Minister would respond to my noble friend. The Minister was very helpful in responding to one of my own amendments on Report, and he gave a fuller answer to the question raised by the noble Lord, Lord Renton, than he may be able to give today at Third Reading.

Lord Filkin: My Lords, I thank the noble Baroness, Lady Anelay, for her broad recognition of what we have done in this respect.

With regard to the question raised by the noble Lord, Lord Renton, concerning administrative proceedings, to begin with, in the UK administrative proceedings do not lead to a criminal offence but in other countries they do. As the noble Baroness, Lady Anelay, explained, my noble and learned friend Lord Goldsmith gave a full answer to that point on Report.

In essence, the matter goes to the heart of the Government's, and I believe the Official Opposition's, stance in that we see the cornerstone of our co-operation with other European Union member states as being built on the principle of mutual recognition rather than on an expectation that there will ever be exact harmonisation of criminal law because we feel that that would take us into directions that we do not wish to follow.

Perhaps I may quote my noble and learned friend Lord Goldsmith speaking on Report on this part of the Bill concerning the relationship between the proceedings on an appeal against a decision in administrative proceedings and the proceedings themselves. He signalled that we would consider that matter carefully. I am searching, without a great deal of success, to find the exact words that my noble and learned friend used when he went into full detail about that on Report.

However, at heart, although we do not have an exact equivalence in our own jurisdiction, nevertheless we consider it right that we should be able to co-operate with member states rather than go into harmonisation. I suspect that, with a little further devilling, I shall be able to bring to mind the explicit reference of my noble

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and learned friend Lord Goldsmith on Report. If it would be helpful, I shall drop a note to the noble Lord setting out the fuller detail.

Lord Renton: My Lords, before the noble Lord sits down, when the Bill goes to another place, it will have to consider it in detail, just as we have done. Perhaps I may suggest that some kind of explanation would be relevant for those who are to be involved in the implementation of the Bill in real life. Perhaps it could be explained that administrative proceedings are those which arise through what happens in other countries rather than just here. I do want to make that suggestion.

Lord Filkin: My Lords, as the noble Lord, Lord Renton, has pointed out that I have not yet sat down, I accept his point that we may be able to give some guidance on that matter. I turn to what my noble and learned friend Lord Goldsmith said on Report. Administrative proceedings are those which relate to an administrative offence. That much is self-evident. They concern something that we might well regard as a criminal offence here. It is tried as an administrative offence but there is an appeal to a court and a penalty is imposed.

Clemency proceedings are quite distinct. They are a form of procedure not known to us specifically but they may well include what we might think of as an appeal for a reduction in a sentence imposed on the conviction of the criminal offence. My noble and learned friend said:

    "I do not know whether it is theoretically possible to have a clemency proceeding against the finding of guilt on an administrative offence. That is not the point. They are distinct issues".—[Official Report, 23/1/03; col. GC 71.]

Perhaps I may take the spirit of what the noble Lord, Lord Renton, said and see whether we can make it absolutely clear what the offences might be and why they are necessary in the Bill. That may help to bring some economy to the proceedings in another place.

On Question, amendment agreed to.

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

Lord Filkin moved Amendments Nos. 2 to 4:

    Page 8, line 38, leave out from "proceedings" to end of line 40 and insert "or a criminal investigation, being carried on outside the United Kingdom,

(b) administrative proceedings, or an investigation into an act punishable in such proceedings, being carried on there"
Page 9, line 1, leave out from beginning to ", the" and insert "In a case within subsection (1)(a) or (b)"

    Page 9, line 9, at end insert—

"An offence includes an act punishable in administrative proceedings."

On Question, amendments agreed to.

Clause 82 [Foreign surveillance operations]:

Baroness Anelay of St Johns moved Amendment No. 5:

    Page 55, line 40, at end insert—

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"( ) A foreign police or customs officer conducting relevant surveillance in the United Kingdom under this section shall be prohibited from challenging a person under surveillance."

The noble Baroness said: My Lords, in moving Amendment No. 5, I shall speak also to Amendment No. 6, which is grouped with it. Amendment No. 5 would make it clear on the face of the Bill that when foreign police or customs officers are in the United Kingdom carrying out covert surveillance under the provisions of the Bill, in those circumstances they must not challenge a person here in the UK.

I raised this matter in Grand Committee as part of a wider amendment that also sought to prohibit the officer from entering private property and arresting the person under surveillance. At that stage, the Government maintained that all these matters could be dealt with by secondary legislation. I was grateful to the Government for changing their mind with regard to entry to private property. On Report, we all agreed to a government amendment that dealt with that issue.

However, the Government have still not changed their mind on the matter of arrest and challenge. After discussions with the Minister, I am prepared to accept that it should be clear enough that the officer cannot arrest a person when he is carrying out covert surveillance. In this country, we all understand what "arrest" means. It is clearly set out in our law. But will the Minister take the opportunity today to confirm that it would be against UK law for a foreign officer—either a customs or a police officer—to arrest a person whom he has under covert surveillance?

That still leaves the issue of the lack of clarity with regard to the matter of challenge. I have used the word "challenge" in Amendment No. 5 because that is the word in the Schengen handbook. But, so far as I am aware, as I said previously, there is no concept of that in our law. The Minister was kind enough to write to me after the Report stage to clarify the Government's position on what is meant by the word "challenge". But I am afraid that his valiant efforts at clarification only helped to worry me even more about the drafting of the clause.

In his letter of 11th March, the Minister acknowledged that, so far as he is aware, the word "challenge" is, indeed, not defined in English law. He went on to say that the Government construe the references in the convention as preventing officers from questioning or stopping a suspect or from asking him to explain or justify his actions or to identify himself. Perhaps I may say at this point that I believe that is a very practical and proper interpretation of the word "challenge". It goes far broader than what I had originally considered to be meant by "challenge", whereby a policeman would simply say, "Oi, you there. Stop". Therefore, it is a far broader definition.

As a result of that helpful—at least, helpful to me—letter from the Minister, I then tabled a further amendment—Amendment No. 6 on today's grouping list—to include the Minister's interpretation on the face of the Bill. However, at present the problem is simply that there is no clarification in the Bill as to what we mean by the word "challenge".

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I believe that in this case a mention in the Schengen handbook is simply not good enough, especially as we now know that the Government have interpreted the word "challenge" to mean that people should not be stopped or questioned. I believe that that clarity and that assurance should be on the face of the Bill and not left to the vagaries of the original definition of the word "challenge" in the Schengen handbook. Perhaps I may take the Minister into my confidence. I do not carry the Schengen handbook around with me as prescribed reading. I suspect that members of the public do not do so either, nor those who advise them at first instance if they find themselves challenged by a foreign officer from either the police or customs. I give way to the noble Lord.

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