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The relationship between the information on the identity card and that on the national identity register was raised by our Liberal Democrat colleagues during the passage of the borders Bill. Information about individuals who apply for identity cards will be recorded on the national identity register; that is a simple fact.

Lord Skelmersdale: My Lords, before the noble Lord gets on to that point, he gave the example of chip-and-PIN cards, such as debit and credit cards, eventually being read in shops and banks. Does that mean that the readers for these biometric cards are expected to be provided by the private sector and by local authorities but not by central Government?

Baroness Hamwee: As part of that question, does the Minister accept that there is a fundamental difference here in that retailers wish to encourage purchasers to make purchases by making that process as convenient as possible for them? I do not think that is comparable to the ID card situation.

Lord Brett: I was responding to the broader question of the rollout of card readers. The noble Baroness is absolutely right; that is a responsibility of Government. That is why we are placing them at ports of entry and airports. In the broader and longer term-and I should probably have tried to avoid this debate by not commenting at all-when the value of chip and PIN was seen by the retail and finance industries they were prepared to invest. We believe that it will be similar with identity cards. In the experiments of the past and the rollout that we have now, there is an indication that, for example, an advantage that applies to a student population does not necessarily apply to someone of my venerable age. The ID card can be used in a nightclub or another establishment that requires people to carry their passports to prove their age at the moment. It can also be carried around all the countries of Europe and the EEA, without the requirement to have a passport. Those are not necessarily arguments for this debate-they may be for a broader area of debate-but we do not anticipate a further order on this issue or related issues in the next six months. I think that that will bring noble Lords some relief.

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4.15 pm

I turn to some of the other questions, although I am not sure that I will get them all. The noble Lord, Lord Skelmersdale, has a tremendous appetite for questions that require detailed answers, which I am more than happy to respond to, although I am not sure that I can respond to them orally and do justice to their value. However, I can almost certainly provide a written response.

We do not believe that we see, so far at least, any black market in identity cards. There may be one in identity cards for other purposes, but the cards that are being produced are quite difficult to copy. There was a Daily Mail article a year ago-or in the summer, at least-that pretended that an identity card had been cloned, but it demonstrably did not clone the national identity card that is produced under these regulations. It took a blank card and put its own information on it. Although there is always a danger that technology, criminality and ingenuity go together to defeat us, at the moment we certainly do not believe that that is happening. Indeed, we think that we have designed a card that it would be extremely difficult to clone or forge.

A question was asked about discrimination, and I hope that we have dealt with that. The current vignette that is placed in the passport will be replaced by 2014, when it is assumed that 90 per cent of foreign nationals will have an identity card. That achievement will provide third-country nationals with a single document to confirm identity, status and entitlement to work and facilitate access to services. We believe that that is a reverse of discrimination and provides employers, universities and others that provide such services with a single document that can be accepted as identity and entitlement. At the moment there are numerous documents that can be produced as proof of identity and entitlement, but that causes confusion and a considerable burden in authenticating documentation and confirming identity and entitlement. We hope that what we are putting forward is a much simpler but non-discriminatory way of protecting our borders and the individuals concerned.

A number of other questions need to be answered, but we have taken a considerable time in a long day of statutory instruments. I wonder whether the noble Lord, Lord Skelmersdale, in particular, would be content for me to respond in writing to the questions that he put, or whether any particular question burns into his heart and soul so badly that he cannot live without an answer given orally.

Lord Skelmersdale: My Lords, if that is a reference to my amateur dramatic past, I think that we had better forget it. There is only one question from the list that I produced that the Minister has not answered to which I would be extremely grateful for an answer today, on the subject of students, given that we have a Starred Question on Tuesday on students, artists and that sort of thing.

Lord Brett: My Lords, it is tempting to say that, if there is a Starred Question, why would I spoil the theatre of the Chamber by answering it now? I will be

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contradicted if I get it wrong, but I will launch into it. The problem referred to may indeed be part of the gestation for the Starred Question-that there is more difficulty around people who come to the United Kingdom for a short period with visas under the new regime. By including sport personalities and others, we seek to overcome that. I suspect that there will still be some problems for people with short-term requirements who come on short-term visas, but there has always been a problem in relation to people in the business sector who may have an engagement in London or Manchester at very short notice. We do not seek to do anything different; we certainly do not intend to make things more difficult for them. I suspect that the question has been raised on several occasions and that my Home Office colleagues are sympathetic to finding a solution to it. The regulations do not make life more difficult in any way; I hope that they would ease the situation somewhat. If that is an inadequate answer, I will ensure that I get another answer to the noble Lord in quick time-before the beginning of next week.

Lord Skelmersdale: I am very grateful. I probably made a mistake in mentioning Tuesday's Question. Of course, the noble Baroness and I both asked questions about students in specific relation to the regulations, but if the noble Lord is happy to write I am sure that she, and certainly I, would be happy to receive his missive.

Lord Brett: I can answer one simple point. I was asked whether visas for students were time-related. They are related to the course that they are on. A problem raised with us was about students having a course in medicine or what have you that went beyond the normal period of a university degree. That is one of the issues that has been taken care of.

Motion agreed.

Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) (No. 3) Order 2009

Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) (No. 3) Order 2009.
1st Report Joint Committee Statutory Instruments

Considered in Grand Committee

4.22 pm

Moved By Lord Brett

That the Grand Committee do report to the House that it has considered the Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) (No. 3) Order 2009.

Relevant Document: First Report from the Joint Committee on Statutory Instruments.

Lord Brett: My Lords, the Crime (International Co-operation) Act 2003 provides a streamlined and modernised framework pursuant to which the United Kingdom can both make and execute requests for mutual legal assistance. In an effort to further improve

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international co-operation we seek to designate Albania, Bosnia and Herzegovina, Croatia, the former Yugoslav Republic of Macedonia, Israel, Montenegro, Serbia and Switzerland as participating countries for the purpose of various sections of that Act.

The designations that will be made under the order are required to enable the UK to ratify the second additional protocol to the European Convention on Mutual Assistance in Criminal Matters, which the noble Lord, Lord Skelmersdale, and I discussed on Monday evening as part of the debate on an excellent report from one of your Lordships' Select Committees. The convention is an important instrument in the provision of mutual legal assistance between states and forms the treaty basis for a high proportion of both incoming and outgoing requests for criminal mutual legal assistance. The second additional protocol is aimed at strengthening mutual legal assistance among the parties to the convention and widening the scope of mutual legal assistance which is available. As I said, it is worth noting that the House of Lords Select Committee on the European Union made clear in its recent report on money-laundering and terrorist financing, which was the subject of an excellent debate on Monday, that it is keen that the UK move swiftly towards ratification of the second additional protocol. That is what we are taking forward in this order.

I shall read my brief slowly, because it confuses me when I read it quickly. To ratify the second additional protocol the UK needs, among other things, to be able to deal with requests for mutual legal assistance in accordance with Sections 31, 47 and 48 of, and paragraph 15 of Schedule 2 to, the Crime (International Co-operation) Act 2003, and to ensure that UK criminal process is served overseas in line with the provisions of Sections 4 and 4B of the same Act.

Under the scheme of the 2003 Act, for the UK to seek and provide mutual legal assistance to a country in accordance with these provisions, it is stated that it must fall within the definition of a "participating country" in Section 51(2)(b) of the 2003 Act.

A country falls to be regarded as a participating country under Section 51(2)(b) if it was a member state of the European Union on the date on which the relevant provision of the 2003 Act was commenced or if it has been designated as a participating country in an order made by the Secretary of State.

While most of the countries which are parties to the second additional protocol were member states of the EU on the date on which Sections 4, 4B, 31, 47 and 48 of, and paragraph 15 of Schedule 2 to, the 2003 Act were commenced, and therefore fall to be regarded as participating countries for the purpose of those provisions, some of the ratifying states were not. Accordingly, this order seeks to designate those states as participating countries for the purpose of those provisions.

The effect of the designations will be as follows. Designating the relevant states as participating countries for the purposes of Section 31 of, and paragraph 15 of Schedule 2 to, the 2003 Act will allow the UK to execute requests for witnesses in this country to give evidence in foreign proceedings by telephone and to ensure that where such evidence is given the process is supervised by a court in the participating country.

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Designating the relevant states as participating countries for the purposes of Section 47 will allow the temporary transfer of UK prisoners to that participating country to assist with investigations into an offence that may or may not have been committed in the UK. Similarly, designation for the purpose of Section 48 will allow the temporary transfer of prisoners from a participating country to the United Kingdom to assist with investigations into an offence which was, or may have been, committed in that participating country.

Designation as participating countries for the purposes of Sections 4 and 4B of the 2003 Act will mean that service of process, written charges or requisitions from the UK to persons in participating countries must be by post, save where the person's correct address is unknown, where it has not been possible to serve the process by post, where there are good reasons for thinking that service by post will not be effective or where it is inappropriate. Switzerland is not designated here as it has already been designated as a participating country for the purpose of these sections at an earlier date.

The UK is committed to improving the provision of mutual legal assistance, which is a key tool in ensuring that cross-border crime can be combated and that justice is achieved for British victims of crime. Ratifying the second additional protocol will further these aims. This order, which will allow us to ratify the second additional protocol, will therefore be of great benefit to British victims of crime. I accordingly commend the order to the Committee.

Lord Skelmersdale:My Lords, I am most grateful to the Minister for explaining this order, which designates a number of countries as participating countries for the purposes of the Crime (International Co-operation) Act 2003. This means that the number of arrangements for mutual legal assistance for criminal matters that the UK can have with other countries and vice versa is increased. That is good. As the Minister also said, this order covers the temporary transfer of prisoners to assist in investigations, allows a witness to provide evidence by telephone for use in proceedings in another participating country and states the procedure by which process must be served on an individual. The countries being designated today are members of the Council of Europe, and many of them are candidate countries for EU membership or are observer states, such as Israel. The Council of Europe has done much to harmonise legal standards between countries. Mutual legal assistance in criminal matters is no exception and is important.

As we agreed in Monday's debate on the EU committee's report, crime is increasingly cross-border. The problem is that differences between national procedures can mean that information gathered in one country cannot be used in another because the way that the information was obtained does not fit with the national procedural requirements. This was the rationale for the 1959 European Convention on Mutual Assistance in Criminal Matters, which provides that a requesting state can ask another state to comply with some formalities or procedural requirements essential under the former's national legislation. However, the backdrop of our consideration of this order must be how far we have confidence in the judicial and police systems of

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other countries that will be parties to the reciprocal agreements. Can the Minister therefore say how the adherence of participating countries to agreements on mutual legal assistance, including standards of treatment in criminal matters, is monitored and ensured?

4.30 pm

This is particularly important in the context of Chapter 5. I am dealing with this a little more broadly than the Minister did with his specific references to sections of and schedules to the Act. These provisions deal with the transfer of UK prisoners to a participating country to assist with a criminal investigation into an offence which was, or may have been, committed in the United Kingdom. Corresponding provisions allow for the transfer of prisoners to this country.

The noble Lord will know that people in prison, either on remand or as convicted prisoners, are potentially vulnerable to pressure to consent to transfer orders. Can he therefore, on behalf of the Government, give your Lordships' Grand Committee a clear assurance that any such prisoner being transferred to any of the countries listed in the order will receive appropriate legal advice and say what that appropriate legal advice will be; and can he assure us that they will not be placed under implied or actual pressure to give their consent? This is important because-it should be noted-this consent cannot be withdrawn once given. This has an added importance, given that the provisions also do not exclude the transfer of particularly vulnerable prisoners, such as those under the age of 18, albeit that provision is made for an appropriate adult to give consent in certain circumstances on behalf of a youthful or physically or mentally disadvantaged person. Can the Minister assure us that a transferred prisoner's return to the United Kingdom from the countries listed in this order, which include the Balkans and Israel, will be guaranteed and that steps will be taken to ensure their safety while in these countries' custody? Can the Minister clearly state what steps will be taken to ensure their safety?

Finally, the Government have said that they expect the power to transfer prisoners to be used rarely. How many prisoners have been transferred to other countries to date under the current arrangements, particularly to assist in the investigation of crimes that are alleged to have taken place here in the United Kingdom? Can the Minister give your Lordships' Committee a clear assurance that the Government will not permit transfers, either from or to the United Kingdom, within the EU, the Balkans and Israel, which offend this country's understanding and sense of proportionality and fairness?

I turn now to a related matter. In extending the number of states designated as participating countries, this order is required before the United Kingdom can ratify the second additional protocol to the European convention, of which we heard quite a lot on Monday. We know that it is the Government's intention to ratify the protocol. The European Union Select Committee was critical that it had taken the Government since 2001-eight years-to reach this point. In evidence to the committee, a Home Office official said that this was because of,

"one or two policy issues ... around mutual recognition in areas like control, delivery, covert surveillance",

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and "joint intelligence teams". Can the Minister please expand on what these issues are and how the Government have addressed and are addressing them? Earlier this year the Government estimated that the UK would ratify the protocol by the autumn. Clearly this is no longer the case, so when do the Government now expect to do so? Also, how are the Government encouraging other countries to ratify the protocol? I will not repeat the obvious question that I asked on Monday because I am awaiting the Minister's missive on that and other subjects.

As I said, mutual legal assistance is important, but the Government must be careful about how it is used. On the basis that the Minister can give your Lordships' Committee the appropriate assurances that I have asked for, we can support the order.

Baroness Hamwee: My Lords, a number of my questions were very similar to those of the noble Lord, Lord Skelmersdale, so I will not take the time of the Committee by repeating them. I thank the Minister for his presentation of the order and assure him that we support what the Government propose and that my comments will be easier than those on the last order.

When I saw the order, I asked my noble friend Lord Wallace whether he had any comments, leading as he does on foreign affairs. Almost inevitably, he pointed to the juxtaposition of Albania, Bosnia-Herzegovina and Switzerland, and asked whether the Government had previously considered the quality of the Swiss police and prosecuting authorities to be on the same level as those of the states of the western Balkans, and co-operation with them to have been comparably difficult. I take his point that Switzerland is not now being designated, as it already has been. I do not know whether it is fully participating or will be when this is passed, if that is the right way to put it. Perhaps more sloppily, are all aspects now covered as regards Switzerland?

I have warned the Minister of these questions. Are there any remaining European countries which are not participating? With regard to the service of process to be undertaken by the post, how reliable are the postal services in the countries in question? How is service achieved now, before the order comes into effect? I ask that question from my background as a solicitor. I no longer practise but the scars of failing, or being aware of other people failing, to serve something stay painfully deep with one. I should say that my firm was never in that position. It was from observing others.

I would imagine that any expenses attached to the new arrangements for travel, telephone and so on would be de minimis, but the Minister might like to comment on that. The noble Lord, Lord Skelmersdale, has asked about the protection of prisoners going to certain other countries. Will the Minister comment on custody conditions in the countries concerned? We will all have read about the luxurious accommodation in Gstaad made available to one person who is being held in Switzerland, but I hardly think that that is typical. The more serious question is with regard to some of the countries whose facilities are perhaps not as developed as those in western Europe.

Lord Brett: My Lords, I thank noble Lords who have participated. Their questions are rightly raised in terms of not only our willingness to work with colleagues

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abroad but to ensure that anyone who is subject to the transfers is treated as he would be, and no worse than, in the United Kingdom. To deal with the questions more or less in the order that they were raised, the noble Lord, Lord Skelmersdale, asked about the adherence of participating countries.

Parts of the 1959 convention undertake to give the widest measure of mutual assistance possible within domestic law. The MLA process relies on good faith, mutual trust and a common interest in fighting crime. MLA arrangements between the UK and countries designated in this order have been good and ratification of the second additional protocol should only strengthen those relations. If any problem arises in relation to the MLA, the aim will be to deal with these problems at official level and to escalate them to a ministerial level if necessary. If that does not prove to be successful were there to be a problem, there is a provision in the second additional protocol, Article 29, to support the friendly settlement of any problem arising out of the application of the convention and its protocols through the European Committee on Crime Problems of the Council of Europe.

On ratification and entry into force, the Government are bringing forward another piece of necessary secondary legislation to ratify the protocol. This statutory instrument is in relation to civil and criminal liability of officers in international joint investigation teams. It will be subject to a negative resolution. Once this is laid before Parliament, and if this secondary legislation is passed by the House, the UK Government will be in a position to prepare instruments of ratification with the second additional protocol. It would then enter into force on the first day of the month following the expiry of three months after the date on which the UK deposits the instrument of ratification with the Secretary-General of the Council of Europe. The aim is to complete that process as quickly as possible.

Ratification of the second additional protocol is necessary for the UK to be able to access the full range of mutual legal assistance available under it. It provides a framework for a broad range of mutual legal assistance and is specifically available to states that have ratified it. This includes assistance in relation to joint investigation teams, covert investigations and controlled deliveries. The protocol also provides a number of operational benefits. By requiring process to be sent directly to individuals and by allowing direct transmission of mutual legal assistance requests by prosecutors, bureaucracy is reduced and the entire mutual legal assistance process expedited. It is important for the UK to show its commitment to MLA internationally and the importance that it attaches to it as a tool in the fight against international crime. We hope that this move will encourage other countries which have not signed or ratified the protocol to go through the same process, perhaps without the great expanse of time between signing and ratification which was a criticism of the committee of the noble Lord, Lord Jopling, which I found hard to argue against.

On legal assistance, it is entirely a matter for the prisoner concerned whether they wish to consent to any temporary transfer. No pressure would be applied, and there would be no adverse consequences for them

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if they chose not to consent. They would need to seek legal advice if necessary, but it would be their responsibility and not that of the state.

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