Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) Order 2022

Tuesday 18th October 2022 Grand Committee

Considered in Grand Committee

18:13

Moved by

[Lord Sharpe of Epsom]

That the Grand Committee do consider the Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) Order 2022.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, in an increasingly interconnected world where crime knows no borders, international co-operation that promotes justice and helps to keep the British public safe has never been more important. The instrument before the Committee will enhance our international judicial co-operation framework, specifically in relation to mutual legal assistance.

Before I come on to the contents of this instrument, I will briefly outline the context. Mutual legal assistance is a method of co-operation between states for obtaining assistance in the investigation or prosecution of criminal offences. The UK is a party to the Council of Europe’s 1959 European Convention on Mutual Assistance in Criminal Matters and its additional protocols, which form an essential part of our fight against transnational crime and our co-operation with other contracting parties in relation to criminal proceedings.

The second additional protocol to the 1959 convention widens the scope of available mutual legal assistance among contracting parties and includes specific provisions regarding requests for hearings by video or telephone conference, joint investigation teams and the temporary transfer of prisoners. The UK ratified this additional protocol in 2010.

Under our domestic framework, mutual legal assistance is governed by the Crime (International Co-operation) Act 2003, henceforth referred to as the 2003 Act. The 2003 Act states that, for the UK to request and facilitate certain types of mutual legal assistance, the country in question must be designated as a participating country as defined by Section 51(2).

18:15

Therefore, the purpose of this instrument is to designate Georgia, Liechtenstein, Luxembourg, the Republic of Moldova, Switzerland and Turkey as participating countries. These countries have ratified the second additional protocol to the 1959 European Convention on Mutual Assistance in Criminal Matters, and designation will allow us to co-operate with them in relation to specific types of mutual legal assistance.

This instrument establishes only the ability to provide or seek certain types of assistance to or from the reference countries; it does not create an obligation to do so. Incoming mutual legal assistance requests from a designated participating country will be reviewed in line with existing practices. This includes a human rights assessment.

With this in mind, I now turn to the specific effect of the provisions for which these countries are to be designated. First, designation for the purposes of Section 31 of and paragraph 15 of Schedule 2 to the 2003 Act enables the UK to facilitate requests for a person in the UK to give evidence by telephone in criminal proceedings before a court in a participating country, where that witness gives their consent.

Secondly, designation for the purposes of Sections 32 and 35 of the 2003 Act enables the UK, on request from a participating country, to obtain customer and account information to assist an investigation in the participating country. Designation for the purposes of Sections 43 and 44 of the 2003 Act are the reciprocal provisions, which enable the UK to make requests for the same information to a participating country. Additionally, designation under Section 45 provides that requests for assistance under Sections 43 and 44 must be sent to the Secretary of State for transmission, unless the request is urgent.

Finally, Section 47 makes provision for the temporary transfer of UK prisoners to a participating country to assist with an investigation if the prisoner has given their consent to the transfer. Section 48 makes a directly reciprocal provision for prisoners in the participating country to be temporarily transferred to the UK to assist with investigations if consent has been given.

In summary, this instrument will help to strengthen the UK’s ability to investigate and prosecute criminality at home and promote the same objectives abroad.

I should also be clear about what this instrument does not do. It does not designate Russia. Following the invasion of Ukraine, the Council of Europe expelled Russia—a decision that is unprecedented in its 73-year history. However, Russia remains party to the 1959 European Convention on Mutual Assistance in Criminal Matters and its first and second additional protocols, the latter of which Russia ratified in 2019. Given Russia’s unprovoked, premeditated and barbaric attack against a sovereign democratic state, and as law enforcement and criminal justice co-operation is based on mutual trust and respect for international law, we are not seeking to designate Russia at this time.

The UK is committed to improving the provision of mutual legal assistance across borders and this order will enhance the level of co-operation that the UK can offer to, and seek from, other countries. Mutual legal assistance is a key tool in combating cross-border crime and ensuring justice for British victims of crime. I therefore commend the order to the Committee, and I beg to move.

[Lord Paddick (LD)]

My Lords, I thank the Minister for introducing this order. As he just said, criminality is increasingly cross-border and anything that mitigates the reduction of the UK’s ability to tackle international crime as a result of the UK leaving the European Union has to be welcomed. I have only a couple of questions.

Paragraph 8.1 of the Explanatory Memorandum to the order states:

“This instrument does not relate to withdrawal from the European Union.”


Yet paragraph 6.3 explains that Switzerland is included in this order because it was previously included

“on the basis of the Cooperation Agreement between the European Community and its Member States on the one part, and the Swiss Confederation, on the other part”—

the so-called “Swiss Agreement”. Paragraph 6.5 states,

“When the UK left the European Union (“EU”), the obligations that previously applied to the UK as a member of the EU, under the Swiss Agreement, ceased to apply.”


Albeit only in relation to Switzerland, it appears that this instrument does relate to withdrawal from the European Union. Will the noble Lord explain? Will he also explain why these countries—Georgia, Lichtenstein, Luxembourg, Moldova, Switzerland and Turkey—have now been included and why now, bearing in mind that the primary legislation dates from 2003 and the 1959 convention was ratified in 2010? I am reassured that Russia is not included as part of this instrument, and we support the order.

[Lord Coaker (Lab)]

My Lords, I agree with the noble Lord, Lord Paddick, and the Labour Benches support the order. I have a couple of questions. Luxembourg was the latest country to ratify the second additional protocol in 2021. When did the other states in this order ratify it? Is there any reason why we have waited until now to designate them?

Brexit impacted some of the collaboration we had on criminal matters with Switzerland, as the noble Lord, Lord Paddick, mentioned, and the statutory instrument will rectify that. Were there any other consequences on international co-operation from Brexit? Have they also been rectified? Are there any other countries apart from Russia—I totally agree with what the Minister said—we wish to designate but are unable to at present? If so, which are they?

The order refers to Sections 47 and 48 regarding prisoner transfer if consent is given. What happens if consent is refused, if a prisoner does not agree? What then takes place? Is there a process or are there other ways by which a prisoner can be moved between countries? Are all the arrangements outlined in this protocol reciprocal? How many requests do we typically make under this Act each year? One of my favourite questions: this order relates to England, Wales and Northern Ireland; will the Minister explain how Scotland operates with respect to this protocol?

[Lord Sharpe of Epsom (Con)]

My Lords, I should say I thank all noble Lords, but I can be specific: I thank the noble Lords, Lord Coaker and Lord Paddick, for contributing to this debate. As I set out at the start, this instrument will enhance mutual legal assistance with these six countries and strengthen the UK’s overall ability to combat transnational crime. Mutual legal assistance is a critical tool in tackling cross-border criminality and promoting a pathway to justice here in the UK and overseas. As we have all said, this form of international co-operation has never been more important. Not only does it help to ensure that borders are not barriers to justice, but it allows us better to defend our public safety interests.

To go on to the specific points that have been raised, I am grateful to both noble Lords for supporting the non-designation of Russia at this time. I will have to come back to the noble Lord, Lord Coaker, on his question about other countries that may have been non-designated in the past, because I do not know the answer. I will find out.

The noble Lord, Lord Paddick, asked about Switzerland and the EU and why we are redesignating Switzerland. Its designations for certain sections of the 2003 Act were removed following the UK’s departure from the EU, as the co-operation agreement between the European Community and its member states on the one part, and the Swiss Confederation on the other part, to combat fraud and any other illegal activity to the detriment of their financial interests, also known as the Swiss agreement, no longer applied. However, Switzerland remains a signatory to the 1959 European Convention on Mutual Assistance in Criminal Matters and its additional protocols, so it has been determined that it should be redesignated for the relevant provisions of the 2003 Act. Inasmuch as that relates to the EU, the question is correct: our departure from the EU meant that we had to redesignate Switzerland. Switzerland is obviously an important partner in the fight against cross-border crime and it is important legally and operationally for the UK to seek and provide effective assistance.

I hope I can reassure the noble Lord on whether there has been any capability gap between the UK and Switzerland in the period since the 2019 regulations and this order. We are unaware of any requests which have not been facilitated while these additional Swiss designations have not been in place.

[Lord Paddick (LD)]

Is it right then that what the Explanatory Memorandum says about this order being nothing to do with the UK’s withdrawal from the EU is wrong?

[Lord Sharpe of Epsom (Con)]

I am reluctant to comment on the Explanatory Memorandum, simply because I have not read it. It sounds like it is, from what the noble Lord has said. I will seek clarification on that.

Both noble Lords asked why these countries are being grouped together. To be honest, it is in the spirit of efficiency and maximising the use of parliamentary time. It was decided that one instrument should be used to make a number of designations, rather than designating Switzerland and the other countries listed through separate instruments.

The countries that have ratified the second additional protocol to the European Convention on Mutual Assistance in Criminal Matters 1959 since the previous designation in 2013 are those that we have listed. I will not run through them again, but the most recent country to ratify was Luxembourg, which did so in 2021.

The noble Lord, Lord Coaker, asked for the total number of outgoing MLA requests sent to all countries over the past few years. I can run through them in detail. In 2017, the number of outgoing requests was 346; in 2018, it was 350; in 2019, it was 320; in 2020, it was 235; and in 2021, it was 371, making a total of 1,622. I can go into much more detail on incoming requests if the noble Lord wishes me to, but I hope he does not. I will also more than happily come back to him on the reciprocal question that he asked because I do not have the information on that to hand.

[Lord Coaker (Lab)]

I also asked about Scotland.

[Lord Sharpe of Epsom (Con)]

The noble Lord is quite right and is just in time. Scotland will need to make its own order as this power is delegated. Officials from the Scottish Government and the Crown Office and Procurator Fiscal Service are in the process of preparing parallel legislation. I had forgotten that question—my apologies.

To conclude, mutual legal assistance is a key tool in the UK’s fight against international criminality. This form of judicial co-operation enables the UK to seek and provide various forms of assistance to ensure that regardless of where a crime is committed perpetrators can be bought to justice. The instrument we have considered today helps to achieve this outcome and in turn to protect the British public and the wider international community. I therefore commend the order to the Committee.

Motion agreed.