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

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 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? 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 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 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"," 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.