Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland) Order 2013

Lord Rosser Excerpts

Thursday 7th February 2013 Grand Committee

[Baroness Stowell of Beeston]

My Lords, the Crime (International Co-operation) Act 2003 provides a framework within which the UK can make and execute requests for mutual legal assistance. In an effort to further improve international co-operation, we are seeking to designate the Republic of Armenia, the Republic of Chile and Ukraine as participating countries for the purpose of various sections of that Act. The designations that will be made under the order are necessary as these three countries have ratified the second additional protocol to the European Convention on Mutual Assistance in Criminal Matters 1959.

This convention is an important instrument as it forms the international basis for numerous incoming and outgoing requests. The second additional protocol is aimed at strengthening mutual legal assistance among parties and widening the scope of available mutual legal assistance. Under the 2003 Act, a state must fall within the definition of participating country contained in Section 51(2)(b) of the Act in order for the UK to seek and provide mutual legal assistance to a country in accordance with these provisions.

A country falls to be regarded as a participating country if it was a member state of the European Union on the date at which the relevant provisions of the 2003 Act were commenced or if it has been designated as a participating country by an order made by the Secretary of State. As Armenia, Chile and Ukraine are not EU member states, this order seeks to designate them as participating countries for the purpose of various sections of the Act.

The effect of the designations will be as follows. First, designation of 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 ensure that where such evidence is given the process is supervised by a court in the participating country.

Secondly, designation of 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 which was, or may have been, committed in the UK. Thirdly, designation for the purpose of Section 48 will allow the temporary transfer of prisoners from a participating country to the UK to assist with investigations into an offence which was, or may have been, committed in that participating country.

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

[Lord Rosser]

My Lords, it would probably be an exaggeration to say that there was an enormous amount of interest in this order. Nevertheless, I thank the Minister for the explanation of the purpose of the order, which activates powers within the Crime (International Co-operation) Act 2003 to add to the list of countries with which mutual legal assistance in criminal matters exists. The 2003 Act was enacted to implement ratification of the EU Convention on Mutual Assistance in Criminal Matters 2000. The 2000 convention extended and improved the facilities for mutual legal assistance created under the earlier non-EU convention of 1959.

The 2000 EU convention requires participating member states to meet requests from each other to facilitate criminal investigations, including sharing of investigation documents, transmission of stolen objects, video conferencing of witnesses, covert investigations and interception of telecommunications.

Non-EU countries which have ratified the second additional protocol to the 1959 European Convention on Mutual Assistance in Criminal Matters can be added to the list of EU member states that are required to participate, but this designation as a participating country must be done by order, and this order adds the Republic of Armenia, the Republic of Chile and the Ukraine to the list of participating countries. The second additional protocol, to which I have referred, provides for hearings by teleconference, as the Minister has said, and for the temporary transfer of detained persons to another country.

In view of recent pronouncements, it is not clear whether the order we are being invited to approve will have a long shelf life. Last October, the Home Secretary announced that the Government planned to opt out of all 134 EU crime and policing measures negotiated prior to the Lisbon treaty through the UK’s prerogative under Protocol 36. That approach is, of course, in line with the apparent majority government view that the EU should be a free trade area and not much else beyond that.

The 2000 EU convention is now due to be amended by the directive on the European investigation order, which is currently waiting for adoption by the European Parliament. As I understand it, if the European investigation order directive is not adopted by the time the Government decide to exercise their opt-out from the 134 EU policing and crime measures, which the Government could do at any time before 31 May 2014, the EU 2000 Convention on Mutual Legal Assistance between the UK and EU member states on criminal investigation matters would cease to apply to the United Kingdom.

Other significant mutual agreements that would also be lost by the 2000 EU convention ceasing to apply to the UK include: the establishment of the European arrest warrant, which has seen 600 criminals returned to Britain to face justice, including terrorists, and, most recently, a teacher suspected of abduction; minimum standards across the EU for counterterrorism co-operation, skills and expertise; sharing of criminal records, which would include, for example, those of a known sex offender travelling to Britain from another EU member state; co-operation on the identification of laundered money; co-operation between member states in tracing and freezing criminal assets; agreements with Interpol on sharing intelligence; and agreements with the United States on the processing of passenger name records data by airlines.

Given that the Home Secretary has already indicated her preference to opt out of all 134 EU crime and policing measures, including, presumably, the 2000 EU convention, what is the Government’s purpose in seeking to add to the list of partner countries with which mutual assistance under the 2000 convention applies? Can the Minister say what will happen to the mutual assistance agreements with these three additional countries referred to in this order if the Government proceed with their declared wish to exercise their opt-out from the 134 EU crime and policing measures, including, presumably, the 2000 EU convention? Will we still have a mutual assistance agreement with the three countries referred to in this order or is the mutual assistance agreement with these three countries dependent on our not having opted out of the 134 EU crime and policing measures, including the 2000 EU convention, since the agreement with these three countries is not bilateral but through the European Union?

If the Government feel that there is merit in having mutual assistance agreements with the Republic of Armenia, the Republic of Chile and the Ukraine, will the Minister say what effect the 2000 EU convention ceasing to apply to the United Kingdom would have in terms of our ability to pursue criminal investigations and bring to justice offenders based in these three additional participating countries?

[Baroness Stowell of Beeston]

Although he did not say it, I take it from his comments that the noble Lord, Lord Rosser, supports the order. I am grateful to him for that.

On his broader point about the Government’s decision on opting out from the European justice and home affairs measures in the European Union, as he knows, discussions about this are taking place within the Government and an assessment is being made of the value of those arrangements to the UK. As my right honourable friend the Home Secretary said very clearly to Parliament, the Government’s current intention is to opt out of all measures and to seek to rejoin those where it is in the national interest to do so. The Government have committed to a vote in both Houses before a final decision is made. The priority is to ensure that the final decision is, as I say, in the UK’s national interest.

If the UK decides to opt out, en masse, of all 134 EU measures, we still have the Council of Europe convention of 1959. This is not an EU measure and so it does not fall within the scope of the 2014 opt-out decision. However, in light of the fact that, as the noble Lord said, there are no other noble Lords participating in the debate today, my answer to the point that he raised is clear: this order is necessary to allow the UK to continue to fulfil its international obligations and to ensure that the UK can successfully prosecute international crime and achieve justice for British victims of such crime. Again, I commend it to the Committee.

--- Later in debate ---

[Lord Rosser]

I am certainly not going to oppose the order but if the European Investigation Order directive is not adopted by the time the Government decide to exercise an opt-out from the 134 EU policing and crime measures—which they could do at any time before 31 May 2014—is it true that the EU Convention on Mutual Assistance in Criminal Matters between the UK and EU member states ceases to apply to the United Kingdom? If that is the case, what effect does it have on the mutual assistance agreements with the three countries referred to in the order?

[Baroness Stowell of Beeston]

As I have made clear, the Government’s intention is to opt out of the measures and seek to rejoin those where it is in the national interest to do so. That is clearly what the Home Secretary has said and that is what we will do.

[Lord Rosser]

I have asked a specific question. I do not mind if the Minister is not able directly to answer the question today—I do not expect her to be a walking encyclopaedia—and I will be happy if she undertakes to write to me with a response. That would be quite satisfactory.

[Baroness Stowell of Beeston]

As I understand it, we have already opted in to the European Investigation Order and have subscribed to that. Yes, it is in scope but, as I have already said to the noble Lord, our intention is to rejoin those measures where it is in the national interest to do so. I think I have now answered his question.