Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) (No. 2) Order 2010
Lord Wallace of Saltaire
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. 2) Order 2010.
Relevant document: 10th Report from the Joint Committee on Statutory Instruments.
Lord Wallace of Saltaire
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 international co-operation we are now seeking to designate Japan as a participating country for the purpose of various sections of that Act. This designation is required so that the UK can comply with the provisions of the EU-Japan mutual legal assistance agreement. The UK opted into the Council decision to conclude the agreement on 17 March 2010 —that is to say, under our predecessor Government. The UK opted into this agreement because it will provide significant benefits for the UK in our mutual legal assistance, or MLA, dealings with Japan.
Until now, MLA has been conducted with Japan on an informal basis relying on international comity. I am sure that all noble Lords will be familiar with the concept of international comity—I have been for the past two hours since the noble and learned Baroness, Lady Scotland, gave me an informal tutorial in the corridor. This is the first comprehensive framework for MLA between the UK and Japan. It will be of huge benefit in ensuring that requests are dealt with in a timely and efficient manner, and will provide several advances in the range of MLA available, including specific provisions on banking evidence and taking evidence via video link.
The UK must now ensure that it has the necessary secondary legislation in place so that it can fulfil its obligations under the agreement. Article 18 of the agreement enables one party to request the other to ascertain whether banks within their territory possess information on whether a suspect is the holder of an account and to produce records of any such accounts, transactions or recipient accounts. The powers in domestic law through which the UK can comply with these obligations are found in the Crime (International Co-operation) Act 2003. These provisions are, however, applicable only in relation to a “participating country”.
Under the scheme of the 2003 Act, in order for the UK to seek and provide MLA to a country in accordance with these provisions, that state must fall within the definition of a “participating country”, which is contained in Section 51(2)(b) of the 2003 Act. A country falls to be regarded as a participating country under that section 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. To ensure that the UK can comply with certain obligations which arise under the agreement, it is therefore necessary for us to designate Japan as a participating country under Section 56(2)(b) for the purposes of Sections 32, 35 and 43 to 45 of the 2003 Act.
Designation for the purposes of Sections 32 and 35 of the 2003 Act will allow the UK to deal with incoming requests for customer banking information and account monitoring information made by the authorities in Japan. Designation for the purposes of Sections 43 and 44 of the Act will allow the UK to make requests for such information to Japan. Section 45 provides that requests for assistance made under Sections 43 and 44 must be sent to the Secretary of State to be forwarded to the relevant authority, unless they are urgent.
Japan is not the only non-EU country designated for those provisions. We have, for example, similar arrangements with Norway and Iceland, as EEA members, and with the United States.
The UK is committed to improving the provision of mutual legal assistance, which is a key tool for ensuring that cross-border crime can be combated and that justice is achieved for British victims of crime. The agreement is a further effort to improve international co-operation and the order, which enables us to meet the terms of the agreement, will therefore be of benefit to British victims of crime. I therefore commend the order to the Committee.
Lord Hunt of Kings Heath
I welcome the order, which the Opposition are happy to support—as the noble Lord no doubt learnt from my noble and learned friend Lady Scotland in what must have been an exciting tutorial a couple of hours ago. As the Minister said, it relates to the Crime (International Co-operation) Act, which the previous Government introduced to enable the UK to participate in improved arrangements for international co-operation in the fight against terrorism and other crime.
As the Minister informed us, the UK opted in to a Council decision to conclude a mutual legal assistance agreement between the EU and Japan. The agreement seeks to improve international co-operation. I understand from the Explanatory Memorandum that, until now, mutual legal assistance has been conducted with Japan on an informal basis. I would be grateful if the Minister could comment on how well that has worked in the past few years. What outcome does he expect from the conclusion of a rather more formal agreement? What discussions have been held between the UK and Japan to ensure smooth implementation of the agreement? We welcome such agreements. Are there discussions between the EU and other countries to extend the number of participating nations? Any information that the Minister could give on this matter would be much appreciated.
These agreements are clearly important, given the development of cross-border crime. International crime affects us all. Greater freedom to travel and live in other countries and the growth of international trade mean that crime is no longer confined by national boundaries, but the impact of international crime is often felt on a local scale. It is the larger criminal gangs who facilitate local crimes in the UK—for example, by supplying goods or drugs. Drug smuggling is one of the main cross-border crimes and the main activity of serious and organised criminals, but the problem is not confined to drug trafficking. Other cross-border crimes have an impact on society more widely, such as people trafficking, counterfeiting, money-laundering and cigarette smuggling. Terrorism is, of course, an ever present concern for all of us.
The best way to tackle international crime is to work closely with other countries. In the past, too many obstacles to international investigations have served only to protect the criminal. The success of co-operation between the many countries involved in these agreements is essential in order to combat such crime, which is why we very much support the intentions of the 2003 Act and the order. However—this point has been made both in the passage of the 2003 legislation and in debate on previous orders—it is important that there be confidence in the judicial and police systems of other countries partaking in such agreements. It would be helpful to know from the Minister how confident the Government are that satisfactory standards are in place and being maintained by the countries subject to the agreement, and that they will continue to be monitored in future. Overall, though, we are happy to support the order.
Baroness Hamwee
My Lords, I have not had the benefit of a tutorial from any colleague, in this House or otherwise, on international comity, although I was surprised to see that dealings had occurred “on an informal basis”; this does not seem the sort of subject that should be dealt with informally. Be that as it may, we are told in the Explanatory Memorandum about consultations carried out before the order was put forward. The Serious Organised Crime Agency is not mentioned, and I would be interested to know whether it was consulted. Perhaps it comes under some umbrella that is mentioned. As the noble Lord, Lord Hunt, said, the sort of serious crime with which SOCA deals is very much something to be targeted.
The noble Lord has asked almost all my questions, so I will not repeat them unless it will be for anyone’s convenience for me to talk a little longer; I have noticed some notes going to and fro. I will ask my noble friend about the position the other way around; I may have missed something on it. Are there mutual arrangements in Japan? I can deal with this fairly quickly. Whichever countries come within this arrangement, it is clearly important that there is a balance and that we can expect the same assistance from the other country involved.
Lord Wallace of Saltaire
My Lords, I thank noble Lords for the questions that they have raised. This is a complex area that we will come back to when we are discussing the EU Bill, in which the extension of mutual legal assistance—otherwise known as mutual criminal assistance—will come up in the context of the much more extensive co-operation that we have within the EU under what was the Third Pillar and is now part of the Lisbon treaty, for which Britain has various opt-ins and opt-outs. I was briefed to say that this is an EU-Japan rather than a UK-Japan agreement because it is much more convenient for the Japanese to negotiate with 27 countries as a group rather than with individual countries. I was also briefed to say that there are a number of UK bilateral agreements, including with India and a number of other Commonwealth countries. This is an area in which the European Union and the member states have shared competence, and at the moment we have a range of bilateral and multilateral agreements. I understand that at the moment there are no other negotiations under way between the EU and other member states. I am tempted to suggest to the noble Lord opposite that he might care to start putting questions down on which other countries we might usefully consider that the EU should negotiate with; but that would make more work for the Government, so of course I will not suggest it.
British officials have met the legal attaché at the Japanese embassy to ensure good implementation. While we are talking about the Japanese problem, one of the problems with the informal co-operation under the principle of international comity was that the Japanese had some sovereignty concerns, particularly about video conference links taking evidence from the territory of one country in the territory of another, which are therefore much better covered by this agreement. I can assure the noble Baroness, Lady Hamwee, that SOCA was consulted on this issue. We apologise that it is not mentioned here.
Previous experience in terms of numbers of requests is that the British have received much more information from the Japanese so far than they have received from us. We have many more requests of them. The video-link evidence has been a particular problem, but the banking evidence is also one for which, as the international financial system becomes much more complex, the agreement now gives a much firmer framework for future consultation.
I strongly agree with the noble Lord opposite that questions of people smuggling are becoming increasingly important. There is a whole range of areas in which serious crime is now almost automatically trans-national or international crime. The likelihood is that, under Governments of different characters, we will have a succession of agreements like this. All of us cling to national sovereignty, but as crime increasingly crosses frontiers, we have to have agreements like this.
I read the security and defence strategy at the weekend, as one does for light relief. I noted that this year 220 million border crossings were taking place between Britain and other countries, and it is expected that in the next 20 years the number will double. That means that these sorts of mutual legal assistance are likely to expand further. I trust that that will have the sympathy and acceptance of both Houses of this Parliament.