Official Report of the Grand Committee on the Crime (International Co-operation) Bill [H.L.]

HL Deb 29 January 2003 vol 643 cc167-226GC

(Fourth Day)

Wednesday, 29th January 2003.

The Committee met at half past three of the clock.

[The Deputy Chairman of Committees (Lord Tordoff) in the Chair.]

Clause 53 [Jurisdiction for terrorist offences]:

Lord Lloyd of Berwick moved Amendment No. 134A: Page 31, line 13, leave out "rape,

The noble and learned Lord said: The purpose of this clause is to give our courts extra-territorial jurisdiction in respect of certain offences, which are set out in Article 1 of what is known as the framework decision, which was promulgated last summer, on 13th June 2002. That is in order to comply with our obligations under Article 9 of that decision. So far, so good.

The purpose of my amendment is simply to draw attention to what seems to me to be the extraordinary way in which the Government seek to achieve that in the Bill. I start with the simple point in the amendment because I cannot see rape mentioned in Article 1 of the framework decision. I may have missed it, but I do not think that I have, unless it could possibly be said to be included under Article 1.1(b). Article 1.1(a) says: Attacks upon a person's life which may cause death". Article 1.1(b) says: Attacks upon the physical integrity of a person". It is hard to believe that the Council had rape in mind when it used those words. I find the notion of a terrorist rape hard to envisage. It might intimidate the individual who is being raped, but how do you intimidate the public, or even a section of the public, by committing a rape? How do you seek to influence a government by committing a rape? It seems that the draftsman has added rape at this point with no real thought about what was intended, unless—if I may say so rather frivolously—he had a picture in his mind of those scenes often depicted by 17th century painters of the rape of the Sabine women, or something of that kind. Surely that is not what the Council expected when it required us, by Article 9, to provide for extraterritorial jurisdiction.

There is a wider point that goes beyond the mere omission of rape. Clause 53 confers jurisdiction on our courts where they would not otherwise have it. As I understand it, we already have jurisdiction in respect of numerous countries that are designated under the Suppression of Terrorism Act 1978. That long list of countries is set out on page 77 of my report. It includes all the member states of the Union and many others besides. No doubt the list has been added to since my report. I cannot see any proposal to repeal the 1978 Act—if indeed it could be repealed conveniently, which I doubt. As far as I know it is still on the statute book. So why do we have to go through the whole process a second time? Is not the Suppression of Terrorism Act 1978 a sufficient compliance with our obligation under Article 9 of the framework decision? Do we really need a belt as well as braces in conferring jurisdiction on our courts? My experience is that when you have both belt and braces, they both tend to fail just when you most want them.

Thirdly, even supposing that we have to do something to bring some other country within the 1978 Act—I am not sure which country that might be—surely we are setting about it in as clumsy a way as can be. Why do we have to say that a person who has committed a rape in France, or wherever, is deemed to have committed it in England? Why not say in simple, straightforward words, which is all that Article 9 requires, that our courts shall have jurisdiction in such a case? Sir Winston Churchill said that there was too much damned deeming in our legislation. This is a perfect example of unnecessary deeming when all we need to do is say that in those cases our courts shall have jurisdiction. That is the language of the framework decision.

The Minister is already aware of my fourth point, because I wrote to him about it after Second Reading. He was kind enough to see me about it. We need a comprehensive list of terrorist offences, set out in a new Schedule 1 to the Terrorism Act 2000. That is where all the offences ought to be brought together. That list of offences could be added to from time to time as new conventions are agreed and new international terrorist offences are created. I recommended that in my report, but for some reason—I have never been sure why—that recommendation was not accepted. As a result, nowhere in our legislation is there a definition of what is a terrorist offence. One has to go far and wide to find out what they are.

The most obvious terrorist offence—a terrorist murder—is still nowhere included as a terrorist offence. There are all sorts of little offences, such as wearing uniform or drilling the public, but nowhere is a terrorist murder described as a terrorist offence. Even if we pass the Bill as it stands, a terrorist offence of murder will still exist only by implication where it has been committed by or against a United Kingdom national abroad. There will still be nothing about a terrorist murder committed in England. That is not the way to legislate. I beg to move.

Lord Goodhart

The noble and learned Lord, Lord Lloyd of Berwick, has raised an important issue. He is an expert because of the very valuable and thoroughly researched report that he produced. I remember attending a seminar at which a number of us discussed many of the issues that he raised. I therefore regret that I do not feel able to support his amendment, mainly because I feel that rape can be a terrorist offence. In some countries, particularly Islamic countries, it can be used effectively as a weapon of terror. About 10 years ago I was involved in an investigation into human rights in Kashmir. There were allegations that some of the Indian government's troops were using gang rape as a method of punishment. That was not terrorism, because a state force was allegedly involved. I am not saying that the allegations were true. They were hotly contested. However, in countries where rape is a source of disgrace to the victim, it is possible for terrorist organisations to use rape or the threat of rape as a method of terrorising and intimidating the population. Although it would be unusual for rape to be a terrorist offence, it is by no means impossible. I would be happy for the word to be left in the clause.

Lord Carlisle of Bucklow

As I understand it, a terrorist offence is an act designed to influence a government or intimidate the public and made for the purpose of advancing a political, religious or ideological cause. What the noble and learned Lord, Lord Lloyd, said was compelling. Serious, horrible and dreadful though rape is, it is difficult to see how it can be said to be perpetrated for the purpose of advancing a political, religious or ideological cause. I hope the Minister will carefully consider the suggestion that rape does not fit in with the other offences mentioned in the clause.

Baroness Anelay of St Johns

I am grateful to the noble and learned Lord, Lord Lloyd of Berwick, for raising these issues. By homing in on a specific issue, he has enabled the Committee to look at the broader picture. Paragraph 117 of the Explanatory Notes, refers to the specific offences listed in new Section 63B(2) and goes on to say: These reflect those found in Article 1 of the FD"— that is the framework directive. The noble and learned Lord has asked how accurate that reflection is. I wanted to ask the Minister the same question, so that he could put on the record the Government's interpretation of the reflection of Article 1 of the framework directive.

The noble and learned Lord posed a second vital question. Are we adopting belt and braces unnecessarily? Are we already compliant? In the language that the Government have used on the Floor of the House on the Courts Bill, what is the added value of having this extra compliance? The Government need to persuade us that we are not already compliant before we add this.

The noble and learned Lord returned to the intriguing point that he made on Second Reading, which found much favour on the Floor of the House. He said that there should be a clear and plain schedule of terrorist offences to which everyone can find ready reference. I should be interested if the Minister could put on the record any further reflections that the Government have had since Second Reading.

I am aware that the habit of the Minister will be to write to the noble and learned Lord. Other noble Lords will not have seen that letter. If it exists, perhaps there have been discussions. It would be helpful to the Committee if information about that could be given so that others, such as me, could consider what approach we might take to these matters on Report.

Finally, I come to the kernel of the issue. The noble and learned Lord has hung the amendment on rape—I am mixing my metaphors. I find this a difficult issue to tackle. A couple of years ago, in a debate on the Floor of the House about asylum and some of the methods used in countries around Bosnia and Serbia, questions were raised about how rape was used as a weapon against specific communities. I was helpfully briefed by the Black Women's Rape Action Project. That certainly focused my mind carefully on whether rape could be a terrorist offence. My noble friend Lord Carlisle said that he can envisage the first ground of it being satisfied, but how can it then be linked to whether it is being used for the promotion of a religious ideology?

As the noble Lord, Lord Goodhart, said, there may be some circumstances in which people of a particular religious persuasion perceive rape as a way of terrorising some members of a community in order to force them to change their religion, or at least to stop practising their current religion. I believe that may be the case in some communities in the Indian sub-continent.

Although I had some briefing on the issue two years ago, I have been unable to obtain any current briefing for the Bill. That is a problem because there are organisations outwith the House which I believe should have interested themselves in this matter. I suspect that they will do so now because of the service that the noble and learned Lord has done the Committee, by raising the issue. It is important that we have a full response from the Minister, so that we can obtain opinions from those who are active in these matters outside the House. I hope that we shall be able to consider the issue further on Report.

3.45 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Filkin)

As the noble and learned Lord, Lord Lloyd of Berwick, signalled, he spoke eloquently on those points at Second Reading. After Second Reading, it was very useful to the Government to have lengthy discussions with him to explore the issues, to ensure that we understood fully his argumentation and to reflect on it. However, I believe that the noble and learned Lord will know from the tenor of that discussion and our subsequent reflections that the Government are still of the view, as we set out on Second Reading, that we have positioned this correctly. I shall explain why.

Initially, I address the question of whether it is right to include rape under specific offences. It is our judgment that we would be unable to fulfil the requirement of Article 1 of the framework decision, which states that we must include offences that are classified as attacks upon the physical integrity of a person. In our view, it is clear that the offence of rape falls within this category.

I hoped that I should not be pressed to go further, given how particularly unpleasant this matter is as a topic. But, in a sense, the noble Lord, Lord Carlisle of Bucklow, challenged me to articulate circumstances in which it would be a terrorist offence. Members of the Committee will recollect the Iranian Embassy siege involving the SAS. At one point, the terrorists demonstrated their determination to achieve their aims by killing someone and throwing them out of the door. If the police constable concerned in that situation had been female, I believe that it would have been conceivable that the threat or the actuality of rape could have been used to demonstrate the seriousness of the terrorists' demands. Some might say, horrific though rape is, that it would be less bad than murdering a policewoman. In that circumstance, rape would have been terrorist rape and would have been carried out for a terrorist purpose. Therefore, although it is a horrific thought, I do not believe that it is inconceivable that rape could be a terrorist offence. I hope that illustration makes the point.

I also believe that example illustrates a further reason why the current situation is correct. As I said on Second Reading, the essence of our interpretation of terrorist offences is that they are acts or threats that are defined as terrorist by the context and the motive. The example of the Iranian siege illustrates that neatly. While one would not normally consider rape a terrorist offence, in that particular example it clearly would have been had it taken place.

Therefore, how are terrorist offences defined in that situation in order to encapsulate all the circumstances when the context and the motive—peculiar though they might be—together with the act or the threat, combine to make a terrorist act rather than a simple criminal offence? That is one—if not the only—reason why we believe that the current thrust of legislation is right.

I shall go into a little more detail. The purpose for which acts are carried out determines whether they are terrorist acts. The pragmatic point, which is not irrelevant, is that current legislation works well. The scope of the powers is well understood by the police and the security and intelligence agencies. To dismantle such legislation would be impractical, costly and time-consuming. Therefore, we do not see the benefit of doing so. We are not aware of the mischief to which this amendment would be a remedy. I do not think that when the noble Lord, Lord Carlile of Berriew, carried out his important and valuable review of terrorist legislation, he highlighted that this was a problem. Maybe I am wrong on that.

Noble Lords

Wrong Carlisle!

Lord Filkin

I was referring to what I thought was the recent review by the noble Lord, Lord Carlile of Berriew.

The clauses currently make it clear exactly which offences we seek to take extra-territorial jurisdiction for. United Kingdom legislation is the most practical and appropriate means of ensuring that we can prosecute those involved in terrorist activity. To list or attempt to list all crimes that could be committed by terrorists in counter-terrorism legislation is not necessary or desirable.

I turn now to specifics. When we were reflecting on the offences found in Article 1, we listed all those offences in normal criminal law which could be covered by the framework decision. In general, there are no exclusively terrorist offences under United Kingdom law. Therefore, we had to interpret the offences listed in the framework decision. The Suppression of Terrorism Act concerns extraterritorial jurisdiction over offences carried out in states who are signatories to the European Convention on the Suppression of Terrorism. Those clauses cover acts outside European states by and against UK nationals or residents.

The language used is standard to that used to take extra-territorial jurisdiction. Similar language is used in the Terrorism Act 2000 and other legislation. It gives jurisdiction to England and Wales, Scotland and Northern Ireland if the act committed would have been an offence there.

Finally, is there a real difference between UK tourists being attacked and physically assaulted in order to deter their presence in a foreign state or to make a point to the local government and the same terrorists conducting a campaign against UK tourists to achieve the same end? We believe that situation is unlikely, but possible.

For these reasons, we do not believe that there is a significant problem. Therefore, there is no need to change. For the reasons given, we believe that rape can be a terrorist offence. Therefore, with regret, we resist the argumentation put forward by the noble and learned Lord, Lord Lloyd.

Baroness Carnegy of Lour

When the Minister was describing the Iranian siege terrorist attack—which I found very useful because I recently saw it repeated on television and could picture it—he said that rape or the threat of rape could have been an offence. Is the threat of rape included here or was that a slip of the tong ue?

Lord Filkin

Yes, it is, under Article 1.1(a), threatening to commit any of the acts listed in (a) to (h).

Lord Lloyd of Berwick

I am very grateful in particular to the Minister for answering so fully. I may have misheard him on one point when he said that there are no specific terrorist offences in the Act. Among other places, they are all set out in Part 6 of the 2000 Act. That is my fourth and final point. All the offences should be listed together in one place, not scattered, as now, through three different Acts, which I find very confusing. I am grateful to the Minister.

He did not deal with the point on the Suppression of Terrorism Act, but as I had not given notice on that issue, perhaps that is easily understood. However, I hope that he will think again about the broader points that I have tried to mention—not necessarily the specific point on rape. I fully understand those arguments. In particular, I hope that he will think about the extraordinarily clumsy way of drafting the jurisdiction provision. I beg leave to withdraw the amendment.

Lord Filkin

Before we close, it is always a mistake for Ministers to attempt to do things themselves. While I am absolutely clear that threatening to commit any of the acts under Article 1 is covered in the treaty, I am advised that the threat of rape is not an offence under domestic law. Therefore, we do not take extraterritorial jurisdiction for it. Attempts, conspiracy, and so forth are in domestic law, so we take extraterritorial jurisdiction over them. I am surprised that the threat of rape is not an offence, but I am so advised.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 135: Page 31, line 27, at end insert— (i) aiding, abetting, counselling, procuring or inciting the commission of, or attempting or conspiring to commit, any of the offences in paragraphs (a) to (h)

The noble Baroness said: Having heard that exchange, I am now more confused about my own amendment than I was before. In a sense, I am returning to the underlying theme of the noble and learned Lord's argument—whether we have a belt and braces position here. Are we doing more than is compliant? In addition, are we doing enough? The issue of the threat of committing an offence is relevant.

As the noble and learned Lord said, Clause 53 inserts a number of new sections into the Terrorism Act 2000 to provide for extra-territorial jurisdiction in respect of offences linked to terrorism that are committed abroad by UK nationals and residents. To cut to the chase on this, when I first looked at the list of offences in the Bill, I noticed that—unlike when, as a magistrate, one just sees them listed—there was no reference to the related offences, such as, aiding, abetting, counselling, procuring or inciting the commission of, or attempting or conspiring to commit", any of those offences. I was not thinking only of threatening. Threatening can be one of those, but it is possible to aid and abet without personally threatening—a person may not be present when an offence takes place or is attempted. Therefore, as I read the Bill, there will be no assumption of extraterritorial jurisdiction in cases of terrorist conspiracies or attempts to commit the terrorist offences listed in these sections.

I tabled Amendment No. 135 to find out if that is what the Government intend. It would mean that terrorists could not be prosecuted under the new extraterritorial jurisdiction provisions for conspiracies or attempts, but only for the commission of the actual terrorist atrocities. Perhaps I have missed the provision in the Bill or there is something in the convention that gives this interpretation to it.

Certainly, I am not clear and I should be extremely grateful if the Minister would explain whether aiding and abetting are covered and, if so, how.

I also wondered why other terrorist offences, such as causing an explosion likely to endanger life or property and attempting or conspiring to cause an explosion, are not listed. I believe that I am asking a supplementary to the question asked by the noble and learned Lord about terrorist murder. I beg to move.

Lord Filkin

We interpreted this as a probing amendment to determine whether we had taken extraterritorial jurisdiction in the secondary offences highlighted in the amendments to fulfil the requirements of Article 4. In that respect, they are right and proper probing amendments. I assure the Committee that we have and I shall explain the detail of how this has been done.

Article 4 of the framework decision requires member states to ensure that inciting, aiding, abetting or attempting to commit an offence is made punishable. Under UK law jurisdiction for secondary and inchoate offences, such as aiding, abetting, attempting, inciting, conspiring, counselling and procuring, is dependent on whether we have taken jurisdiction for the substantive offence in the UK. As we are taking extra-territorial jurisdiction over the substantive offences listed in Article 1.1, 1.2 and 1.3 of the framework decision in certain circumstances, we do not need to legislate specifically in order to take extra-territorial jurisdiction over aiding, abetting, attempting, inciting, conspiring, counselling or procuring to commit the offences listed in Sections 63B and 63C in the particular circumstances described in those sections.

Rather, where an extra-territorial offence is created, extra-territorial jurisdiction is also automatically taken over secondary and inchoate offences. No further legislation is necessary in order to achieve that. I hope that answers the very necessary probing amendment raised by the noble Baroness, Lady Anelay.

4 p.m.

Baroness Anelay of St Johns

I am grateful to the Minister for his clarification that secondary and inchoate offences are covered.

Lord Filkin

I regret the fact that I am moving up and down like a Jack-in-the-box, but a further question was raised which it would be better to answer now rather than troubling the noble Baroness with a letter. We already take extra-territorial jurisdiction over explosives offences under Section 62 of the Terrorism Act 2000. This also covers chemical and biological offences; nuclear offences are covered by the Nuclear Material (Offences) Act 1983.

Baroness Anelay of St Johns

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 135 A and 136 not moved.]

Baroness Anelay of St Johns moved Amendment No. 137: Page 32, line 5, after "of" insert "or employed by

The noble Baroness said: I shall speak also to Amendment No. 138. These amendments relate specifically to proposed new Section 63C of the Terrorism Act 2000, which is contained in Clause 53.

When I first read the provision, with recent events in mind, my thoughts turned to Zahoor Shah and Sayed Afzal, the two Afghans who worked at the English Embassy in Kabul and were awarded the MBE last year for guarding and maintaining the embassy through decades of war and civil strife. I am sure that Members of the Committee will agree that the honour was well deserved.

Thinking of the New Year's Honours List, I wondered whether the Bill's provisions would cover not only UK nationals working in British embassies abroad, but also foreign nationals working in any capacity in our embassies. There are so many such people who give long service.

A crucial term in new Section 63C is "protected person", the definition of which is contained in subsection (3)(c). Paragraph 118 of the Explanatory Notes states: 'Protected persons' includes all diplomatic and consular staff, whether of UK nationality or not". Subsection (3) provides that, a person is a protected person if … he is a member of a United Kingdom diplomatic mission … [or] … consular post". My amendments would simply change that definition by inserting the words "or employed by".

I confess that there may be other protections that I have not looked into—for example, under the Vienna Convention on Diplomatic Relations or the Vienna Convention on Consular Relations. Therefore, are there any other ways in which such persons would be given protection as opposed to what appears to be a gap in the Bill'? I beg to move.

Lord Filkin

New Section 63C(1) of the Terrorism Act gives the UK extra-territorial jurisdiction over certain domestic offences where they are committed against UK nationals or residents and "protected persons" outside the UK as an act of terrorism or for the purposes of terrorism.

Subsection (3) of this section specifies those persons who are "protected persons". This includes, inter alia, a member of a UK diplomatic mission within the meaning of Article 1(b) of the Vienna Convention on Diplomatic Relations 1961.

Therefore, the definition of a member of a diplomatic mission and consular post as contained in these provisions includes the employees of the mission and consular post, as the definition includes diplomatic, technical, administrative and service staff. So employees are already covered.

The Vienna convention defines members of diplomatic and consular mission as including diplomatic staff, administrative and technical staff and service staff. Service staff are persons in the domestic service of the mission. Accordingly, this definition includes all those employed by the mission whatever their nationality. Therefore, for those reasons I am happy to be able to reassure the noble Baroness that they are so protected.

Baroness Anelay of St Johns

I am grateful for the clarity of that assurance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 138 not moved.]

Clause 53 agreed to.

Clause 54 agreed to.

Clause 55 [Application of section 56]:

Barness Anelay of St Johns moved Amendment No. 138A: Page 35, line 24, leave out subsection (4).

The noble Baroness said: We now turn to a very long part of the Bill, but one which is almost entirely uncontroversial—certainly to Members on these Benches. I refer to the issue of driving disqualifications and reciprocal recognition of those disqualifications. In moving this amendment, with the leave of the Committee, I shall speak also to Amendment No. 139.

The Bill states that the duty to inform foreign authorities of the disqualification of a non-UK resident does not apply in prescribed circumstances. I am attempting to ascertain what those circumstances are. Will the Minister explain how and when the regulations will be made? Will they be published; and, if so, under what conditions?

Paragraph 123 of the Explanatory Notes states: Notification would not be required, for example, where another Member State has declared that it will apply certain discretionary conditions to the recognition of the disqualifications, as described in Article 6(2) of the Convention". I merely included that wording in the substance of my amendment, in order to ask the Minister just what is meant by that example. What other examples are there? If this is merely "an" example of what can happen, on what other basis can certain discretionary conditions be applied? We are told that the circumstances will be prescribed in regulations. So far as I am aware, Members of the Committee have not yet received any information about the regulations. I beg to move.

Lord Bassam of Brighton

Under Article 6(2) of the EU convention, the state of residence may declare that it will always refuse to recognise a disqualification where the conduct involved does not constitute an offence in its legislation or where a disqualification would not be an applicable penalty for the offence. It may also refuse to act where the remaining period of disqualification to be enforced is less than one month.

The UK is not required under the EU convention to notify a disqualification to a member state which has declared that it will always apply conditions that would preclude the recognition of the disqualification. The Bill therefore provides for regulations to state when the duty to notify a disqualification will not arise.

The second amendment—which would disapply the duty to notify a member state where it has made a declaration in respect of Article 6.2—addresses the issue but does not provide the full remedy.

The EU convention allows a member state to declare that it will always apply the conditions in Article 6.2, in whole or in part". Regulations allow us to reflect the exact terms of the declaration made by each member state.

We do not know at this stage how many member states will make a declaration in respect of Article 6.2. That will only become clear as and when other member states ratify the convention and we are able to conclude agreements with them to implement the convention on a bilateral basis. It is at that point that regulations will be made to detail clearly the circumstances in which the duty to notify a disqualification will not apply in respect of that state.

Regulations will be made on a bilateral basis with other member states to ratify the convention. It is probably widely known that, at present, only Spain has ratified the convention. We shall seek to begin negotiations with the Spanish to decide the terms of the regulations shortly after the Bill comes into force.

The noble Baroness asked what regulations would be made as regards other prescribed circumstances. They might cover such matters as the conduct for which the driving disqualification had been imposed; the remaining period of disqualification that might have to be enforced; and where disqualification was not a measure available under the legislation of the state of residence. I have probably not satisfied the noble Baroness on every point raised, but I hope that I have covered most.

Baroness Anelay of St Johns

I am grateful to the Minister for his reply. He has gone a long way towards satisfying me on these matters. I was certainly grateful to him for his comment on the bilateral basis on which implementation will take place. That is important and his response was very helpful. As the Minister will know, the Automobile Association, among others, has been very concerned about whether there will be reciprocal agreements and whether we shall jump the gun and put the provisions of this Bill into effect before there is a bilateral agreement.

I need to examine the Minister's remarks carefully. There remain other possible situations in which discretion might be applied. I do not think that I shall need to return to any major point, but further clarification may be required. I shall need to ensure that the Automobile Association is fully satisfied. Naturally, as we are in Grand Committee, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 139 not moved.]

On Question, Whether Clause 55 shall stand part of the Bill?

Lord Carlisle of Bucklow

I shall refer specifically to Clause 55(5), but, first, I want to raise a general issue which I hope will warm the heart of my noble friend Lord Renton and strike a chord with other Members of the Committee. Ever since the noble Lord, Lord Clinton-Davis, and myself entered Parliament, at about the same time, in 1964—in fact, the noble Lord won his seat shortly after that —we have heard every incoming government state, before taking office, that it is their intention to pass less legislation and to do it in a clearer and simpler form.

One has only to stand in the Library of either House and look at the expansion in the volumes of legislation that has occurred year by year, to see not only that governments have failed to pass less legislation, but that they have certainly not done it in shorter and simpler form. I am concerned about the complexity in the drafting of every Bill—so much so that it is almost impossible to follow what is being said.

In this Bill, we have an example, not of complexity leading to a failure to understand what is being said, but of unnecessary verbosity and repetition. Clauses 55 and 56 require that the appropriate Minister—in this case the Secretary of State—shall give notice where an individual from another country has been convicted of a motoring offence in this country and has been disqualified.

Clause 55 starts by stating that Section 56, which gives the Home Secretary a duty to notify the appropriate authority abroad, will apply where, an individual … who is normally resident in a member State other than the United Kingdom is convicted of an offence". That is simple. Secondly, it states that, no appeal is outstanding in relation to the offence". That is simple. And, thirdly, it provides that, the driving disqualification condition is met in relation to the offence". That is also simple. Why do we need subsection (5), which is a further seven lines, to define what is meant by the words "no appeal is outstanding"? Subsection (5) states that, no appeal is outstanding in relation to an offence if— (a) no appeal is brought against an offender's conviction of the offence, or any order made on his conviction, within the time allowed for making such appeals, or"— alternatively, if he has brought an appeal— (b) such an appeal is brought and the proceedings on appeal are finally concluded". Surely, any appeal is outstanding until the time limit has passed during which he can make an appeal, or he has already made an appeal. Equally, an appeal is outstanding from the time that notice has been given of an intention to appeal until those appeal proceedings have been finally concluded. How can "no appeal is outstanding" mean anything other than what is said in subsection (5)?

Subsection (5) is a good example of a totally otiose and unnecessary subsection, which defines a matter that does not need defining and which is well known to all the courts in this country. I know that I shall be shot down in flames and told that it means many other things, but I cannot think—and I challenge any other member of the Bar immediately to think—what "no appeal is outstanding" can possibly mean, other than that no appeal has been made, that the time for making any appeal has been completed, or, if one has been made, that it has been concluded.

If we start with the simple exercise of taking out subsection (5) and then apply the same consideration consistently to other clauses in the Bill and other Bills, perhaps we shall achieve shorter, simpler and easier to follow legislation.

4.15 p.m.

Lord Renton

I support my noble friend Lord Carlisle. I confess that more than a quarter of a century ago I was made the chairman of the only official parliamentary committee since 1870 to advise on how Acts of Parliament should be drafted. In our report we tried to prevent over-zealousness in drafting, such as inserting unnecessary matters or entering into unnecessary detail. For the reasons that my noble friend Lord Carlisle has given, subsection (5) is not only unnecessary, but confusing.

Lord Bassam of Brighton

Far be it for me to contradict both noble Lords who have spoken of their length of time in their Lordships' House and in another place, and who have knowledge and experience. In particular, the noble Lord, Lord Renton, obviously occupied a special place when he reviewed how legislation should be written. My guess is that there are drafting conventions and that they change from time to time.

I am advised that subsection (5) is required because it makes clear—perhaps not to the satisfaction of the noble Lords who have spoken—that strict time limits apply and that the Minister need not wait to see whether special leave is granted in special circumstances. That is its purpose.

The subsection may appear unnecessary and otiose to the noble Lords who spoke, but it is there for a specific purpose. Certainly, I shall reread it in relation to the rest of the clause, but that is the explanation. Perhaps when the noble Lords have reflected on what I have said and have reread the provision, they may also see the point being made.

Lord Clinton-Davis

I find my noble friend's explanation rather unconvincing. I think that the least he can do is to say that he will take what has been said back and reconsider the situation. There is no point in including unnecessary provisions in legislation. Not only is it confusing for the advocates, but, more importantly, it is confusing to those who are charged with offences. I do not want to reach a hard and fast conclusion now because I believe that it is possible that on reflection my noble friend will be advised in another way, but I think that we should return to the situation on further consideration of the Bill.

Baroness Carnegy of Lour

It seems extraordinary that it is necessary to say that no appeal is brought if it has not been brought within the time allowed. However, if it is the convention to say that, I suggest it might be changed.

Lord Goodhart

I reluctantly get involved in this argument. I feel that the problem may be slightly the other way round. For example, if a month has been given during which time a convicted person can decide whether to make an appeal and he does not decide to appeal for three weeks, how within that three weeks can one say that an appeal is outstanding in the ordinary sense of the word because no appeal has been brought? So, it may be that this wording intends to make sure that a disqualification order cannot come into effect in the UK during a period while an appeal can still be brought within the time limits, but no appeal has in fact been brought.

Baroness Anelay of St Johns

I add my six pennyworth. I had problems with this subsection, but with paragraph (b). I could understand why paragraph (a) inserted time limits, but (b) refers to when, proceedings on appeal are finally concluded", which seems not to refer to time limits as such. Therefore, I should be grateful if the Minister could reflect on the matter between now and Report.

Lord Carlisle of Bucklow

Like the noble Lord, Lord Clinton-Davis, I am not totally convinced by the Minister's explanation of why the words are necessary. I hope that he will look at the matter again because I believe that the principle that we should not put in unnecessary clauses and subsections is a valid one.

Lord Bassam of Brighton

I do not disagree with that argument. That would not be sensible. We all want matters to be brief, clear, plain and simple. The answer to the point made by the noble Lord, Lord Goodhart, is that his understanding fits into the category of "as well". So, it adds something. We are always willing to look at whether wording can be improved, but I say that without giving a commitment. We should all try to keep legislation as brief and to the point as we possibly can.

Clause 55 agreed to.

Schedule 3 agreed to.

Clause 56 [Duty to give notice to foreign authorities of driving disqualification of a non-UK resident]:

Baroness Anelay of St Johns moved Amendment No. 139ZA: Page 36, line 5, at end insert— (g) state that there is written evidence that the offender has had adequate opportunity to defend himself and to gain access to legal advice

The noble Baroness said: I shall speak also to Amendments Nos. 139ZB, 139ZC, 139ZD and 139ZF. They are probing amendments that invite the Government to clarify the part of the provision dealing with driving disqualification. I seek to ensure that a defendant in disqualification proceedings is dealt with in a clear and proper manner. We wish to ensure that an individual has access to the proper legal advice and that he receives proper written notice of notification of proceedings against him.

We seek to probe the drafting of some of the subsections relating to driving, which appear so vague that at some stages I was unsure of their purpose. I refer back to what my noble friend Lord Carlisle said in his clause stand part argument.

I hope the Government accept that an accused person should have proper legal advice in whatever country the proceedings commence. Would that not be especially important in a country where English is not the first language and a motorist has problems understanding what is happening? Will the Minister make provision in the Bill for fairness in legal proceedings and provide the legal help that should be available? Of course there will be many questions about how it can be taken up and the costs that might be involved and who should bear them.

Beyond the initial encounter with the police and after the hearing, the Bill states that, where the offender did not take part in the proceedings, a notice informing the foreign authorities of a driving disqualification of a non-UK resident would be accompanied by evidence that the offender was duly notified.

I am curious as to how that evidence would be presented. Would it merely be a copy of any correspondence that had been sent to the individual? If so, how do we know that the individual had actually received it; that there was good service?

Finally, I must admit that I was puzzled by some of the subsections in the clause. For example, subsection (3) states: A notice under this section may contain such other information as the appropriate Minister considers appropriate". That is not the most felicitous drafting. The term seems rather vague. I should be grateful if the Minister could give us a fuller flavour of its meaning. What other information does the Minister envisage would come under that subsection? When will the other information be necessary, and which Minister would intervene in such proceedings? I beg to move.

Lord Renton

Amendment No. 139ZB would leave out subsection (3). I think that it should be left out. It gives rise to uncertainty as to whether the information referred to is to be considered as appropriate by the appropriate Minister without his giving any reasons for it. In any event, it is an excess of zeal to invite the opinion of the appropriate Minister.

4.30 p.m.

Lord Carlisle of Bucklow

I support what the noble Lord, Lord Renton, and my noble friend Lady Anelay have said. Presumably, Clause 56 deals with offences, including careless driving, set out in Schedule 3.

If a Frenchman were stopped in this country by the police and charged with careless driving, one could state whether or not the offender took part in the proceedings during which the disqualification was imposed. But how could one confirm that an offender who was moving around the country had been duly notified? Out of genuine ignorance I seek clarification. Normally, service of the notice would be effected by registered post and would be deemed to have occurred on its acceptance. Could one state with certainty that an offender travelling about the country on holiday had been duly notified of the proceedings?

Lord Clinton-Davis

Uncharacteristically, the noble Lord has misinformed himself. As I understand it, the authorities must only give notice by registered post where it is prescribed. Notice can be effected by other means. If the authorities cannot find someone who is travelling about the country—by caravan, for example—the service of notice is effected by registered post or whatever means the statute confers. It is not important that the individual should always be found.

Lord Bassam of Brighton

Committee Members have asked several questions. In setting out the thinking behind Clause 56, I hope that I can answer them.

In general, the amendments would place additional evidential requirements on the notification and recognition of driving disqualifications between the United Kingdom and member states. They would also restrict the information that the UK could provide to a foreign authority or a disqualified driver resident in the UK.

As is plain, our starting point for this part of the Bill is the EU Convention on Driving Disqualifications and what it says should be required to recognise a foreign disqualification. The convention requires us to notify a driver's state of residence of a disqualification covered by the convention. The notification and driver's licence must be accompanied by information to locate the driver; the original or certified copy of the order of disqualification; a brief statement of the circumstances of the offence and the legal provisions that gave rise to the disqualification; details of the disqualification; and a statement that no appeal is outstanding.

If the offender did not take part in the proceedings that resulted in disqualification, the convention requires that the notification should also include evidence that the offender was duly notified of the proceedings. That is the information that the convention has determined will normally be sufficient to allow the driver's state of residence to satisfy itself that the offender had an adequate opportunity to defend himself, and to allow it to give effect to the disqualification. If it is not satisfied that the offender had an adequate opportunity to defend himself, it may ask for additional information, and, ultimately, it could refuse to recognise the disqualification. Those are comprehensive and very equitable arrangements to allow the recognition of a driving disqualification in another member state.

Amendment No. 139ZA would require a notice of disqualification given to another member state to include a statement to the effect that there is, written evidence that the offender has had adequate opportunity to defend himself and to gain access to legal advice". At first glance, the amendment is perfectly sensible and reasonable. But it would take the requirements for what is to be included in the notification sent to a driver's state of residence beyond the factual information required by the convention. It would also introduce a test concerning access to legal advice, which is not covered by the convention.

The convention rightly leaves it to the driver's state of residence to form a view on whether someone has had an adequate opportunity to defend himself, based on the factual information provided by the state of the offence. The Bill provides for the information to include either confirmation that the offender took part in the proceedings resulting in disqualification or, if he did not participate, evidence of notification and that he had the opportunity to participate. Amendment No. 139ZA would require the UK to make a statement that written evidence exists of the adequacy of the driver's opportunity to defend himself and to gain access to legal advice. That statement would involve a subjective assessment of the fairness of the court proceedings. Without the evidence itself being transmitted, it would add nothing of value to the procedure.

Likewise, Amendment No. 139ZD, which deals with the recognition of foreign disqualifications in the UK, goes beyond what is required for the purposes of the convention to confirm that an offender has had an adequate opportunity to defend himself. It would make it a condition of recognition of a foreign disqualification in the UK that there is written evidence that the offender has had adequate opportunity to defend himself and to gain access to legal advice. The Bill already makes the recognition of a foreign disqualification conditional on the offender's having been duly notified of, and entitled to take part in, the proceedings. This is a less subjective test than that envisaged by the amendment. It also reflects, in line with the general application of the principle of mutual recognition of criminal decisions in the EU, that all member states are signatories of the European Convention on Human Rights, which guarantees the right to a fair hearing.

Amendment No. 139ZB would restrict the content of a notice of a disqualification given to another member state to only those details specified in Clause 56(2) and no other information. That would impede the effective operation of the notification procedures by preventing the UK from including additional information that would assist the driver's state of residence in executing the disqualification. It might include information relating to the court proceedings, or to the period of the disqualification already served in the UK, which the driver's state of residence must take into account. Member states may also have particular information requirements in order to give effect to a disqualification. Those will become apparent only during our concluding agreements for the bilateral implementation of the convention. Amendment No. 139ZB would prevent us from doing that.

Amendment No. 139ZC, which requires that evidence should be "written", is unnecessary and potentially restrictive, particularly at a time when steps are being taken to introduce electronic transmission. Although the notification sent to the driver's state of residence is likely to rely on written evidence to show that he was duly notified of the proceedings against him, the convention requirement is only for "evidence". To go beyond that could create problems with other states.

Amendment No. 139ZF concerns the notice given to a driver resident in the United Kingdom that a foreign disqualification is to be recognised here. It would restrict the content of that notice to only those details specified in Clause 59(1). It would be unduly restrictive, preventing the appropriate Minister from including additional information, as he considers appropriate, in a notice of disqualification sent to a UK resident disqualified abroad. That would not be terribly helpful in those circumstances. Information would be included in the notice only where it was relevant to the offender in respect of the disqualification imposed on him. The offender may, for example, be required to surrender his licence where it has not been seized by the state in which the offence was committed. Information on how to reapply for a licence might also be usefully included. It is helpful to ensure that that takes place.

Baroness Carnegy of Lour

In his response to the amendments that would ensure that the offender could defend himself and get advice, the noble Lord said that all participating countries would have signed the European Convention on Human. Rights, and, therefore, they would be bound to make such provision. Is he sure that that is the case? Have we been told that disqualification can result from actions that are not a criminal offence in some countries? If so, does the European Convention on Human Rights apply in those cases? I ask out of ignorance. It is important that we know.

Did the noble Lord reply to Amendment No. 139ZB, which would omit Clause 56(3)?

Lord Bassam of Brighton

I thought that I did. I explained that the amendment would be unduly restrictive. In some circumstances it would be helpful to include additional information that the Minister considers appropriate.

In response to the first point, all EU states have signed the European Convention on Human Rights.

Baroness Carnegy of Lour

Does that mean that a disqualification cannot be imposed in any of those countries without the offender having had the possibility of speaking up for himself in court and having access to assistance?

Lord Renton

While the Minister's advisers are considering an answer, I draw attention to a circumstance that I do not think the Minister's reply covered. A person can be disqualified from driving without being convicted. The DVLA in this country considers that some people's health makes them unfit to drive. People can, therefore, be deprived of their driving licence simply on those grounds rather than as the result of an offence.

Lord Bassam of Brighton

In response to the noble Baroness's point, the convention applies only to road traffic offences that constitute a criminal offence. Does that answer her point?

Baroness Carnegy of Lour

I thought that I had heard in previous discussions that some non-criminal offences result in disqualification, and, therefore, they might not be covered by the European Convention on Human Rights. I may be missing the point, but I thought that that was a gap in the Minister's argument.

Lord Bassam of Brighton

I am prepared to accept that it might be. We shall take that point away and reflect on it further.

To answer the point made by the noble Lord, Lord Renton, I must say that the circumstances to which he referred are not covered by the convention. It relates to revocation.

Lord Monson

In resisting Amendment No. 139ZB, which would leave out subsection (3), the Minister said that he could think of circumstances in which it would be useful for the Minister to have the power to furnish additional information. Can the Minister give specific examples of occasions when that might be useful?

Lord Bassam of Brighton

I provided examples as I ran through the amendments. I said, I think, that it might include information relating to the court proceedings themselves or to the period of disqualification already served in the United Kingdom, which must be taken into account by the driver's state of residence. Does that help the noble Lord?

Lord Monson

Yes, it does.

4.45 p.m.

Baroness Anelay of St Johns

I have much to reflect upon, and I have one or two further questions for the Minister. The Minister gave full answers and tried to be as helpful as possible.

My noble friend Lady Carnegy of Lour raised an important issue about the status of administrative proceedings that may cause a driving disqualification. In our earlier discussion on administrative proceedings, I understood that it might include such an eventuality. As that would not count as criminal proceedings, it would not come under the ECHR and provisions relating to fairness of access to legal advice. There may be some way of defining administrative proceedings that cover driving disqualifications so that they fall within the definition of criminal proceedings. That is not beyond the realms of possibility. However, the Minister has not yet told us that, and it would be helpful if he reflected on it between now and Report and gave us a further explanation. When we discussed administrative proceedings before, I thought that I was happy about what they were. There may be further issues to explore.

I have some problems with another issue, to which we may need to return on Report. I shall give the Minister notice of a couple of questions that may lie behind amendments to be tabled at that stage. If a non-UK national has not taken part in proceedings, we must give evidence that he was duly notified, as the Minister said. Thus, we come back to the question of what is good service?

Until I came to the House, I sat as a magistrate, as did my noble friend Lady Seccombe. I have not sat for five years, so I may be out of touch with changes in procedure or in the law. I accept that. However, I sat for 13 years or more on a Bench for an area in which 7 per cent of the local population were—still are—Italian. Those people hold Italian citizenship, not British citizenship, and they and their visitors travel between this country and Italy with great regularity. A significant number of drivers on the roads of Woking hold foreign driving licences. It was not uncommon for our court in Woking—north-west Surrey—to impose a disqualification on persons who had not taken part in proceedings.

Normally, as my noble friend Lady Seccombe reminds me, the first thing to be done if a magistrate thinks that he or she is going to impose a disqualification is to call the person to the court. Certainly, there were occasions on which we imposed disqualification on a person who did not attend, after we offered them goodness knows how many occasions to do so. There could be a lacuna. It could happen that someone who has been disqualified might not have received proper evidence of proceedings, even if we thought that such evidence had been provided. We must consider more carefully how the Bill will bite on such people. What is proper evidence that the document has been received?

The questions that we will ask next time around in the context of our amendments will be the following: what steps will the Government take to ensure that the evidence has been duly notified to somebody, what processes will the Government put in place—they do not exist now in the court system—and what negotiations are the Government having with our EU partners about what will be acceptable evidence, both ways? The Minister has already referred to Spain, which may be the first candidate. I am aware from personal experience that, when the Guardia Civil stop motorists on the roads in Spain, they do not necessarily follow proper procedure. It can be an interesting situation over there, so, if we have reciprocal arrangements, we must ensure that they work properly both ways.

Having given notice of a possible amendment for the purposes of elucidation on Report, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 139ZB and 139ZC not moved.]

Clause 56 agreed to.

Clause 57 [Application of section 58]:

[Amendment No. 139ZD not moved.]

Baroness Anelay of St Johns moved Amendment No. 139ZDA: Page 37, line 17, after "disqualifications" insert "(contained in Schedule (Annex to the Convention drawn up on the basis of Article k.3 of the Treaty on European Union on Driving Disqualifications)

The noble Baroness said: In moving Amendment No. 139ZDA, I shall speak also to Amendment No. 156ZB.

They are, perhaps, the simplest of all the amendments. They are designed to get the Government to explain why they did not, for the sake of clarity, put into the Bill the annex to the convention on driving disqualifications. We go back to the point made by the noble Lord, Lord Clinton-Davis, and by the noble and learned Lord, Lord Lloyd of Berwick, on other issues. For the sake of clarity for those who will have to operate the Bill, it would be helpful if such a schedule were in the Bill. Why did not the Government decide to do it? I beg to move.

Lord Bassam of Brighton

The reason is as simple as the amendment. It would not add to or subtract from the effect of the clause. We specified that an offence fell within the terms of the clause if it was constituted by conduct that fell within any of the paragraphs of the annex to the convention.

There is no good reason for reproducing the annex to the convention in the Bill. The EU convention is a public document, and anyone who wants can access it and find out what is in the annex. That is consistent with the approach that we adopted elsewhere in the Bill. It would be unwieldy to replicate the text of EU provisions in the Bill, unless there were extremely compelling reasons to do so. Comments have already been made about the length and complexity of Bills; I am not sure that, if we did what the noble Baroness suggests, we would do much to keep the Bill as simple as we would like.

Lord Skelmersdale

I have tried to follow the argument. I think that I have now got it correct. I want to take up the point made by my noble friend Lord Renton a few moments ago.

A close member of my family is epileptic. Paragraph 5 of the schedule to be inserted by Amendment No. 156ZB shows that the convention covers driving a vehicle while disqualified. Under the clauses that we are discussing, someone need not go anywhere near a court to be disqualified. I cannot find any reference to a duty on the appropriate Minister to notify a decision by the DVLA to disqualify to the General Secretariat. Surely, that is what should happen.

Lord Renton

My noble friend and I have taken the view that there is such a thing as disqualification without the commission of an offence. The disqualification is simply imposed by the DVLA without the person coming before any court. That is relevant to the provisions that we are considering.

If the Government and their advisers have not contemplated such a situation, it would be right for the Minister to give an undertaking that, between now and Report, that situation will be considered. Either, it should be made subject to the same provisions as those relating to a conviction or some other arrangements should be made.

Lord Bassam of Brighton

I confess that I was slightly thrown by the question. I think that the answer is that the situation that both noble Lords described is outside the scope of what we are considering today. The convention applies only to road traffic offences; as I understand it, it does not apply to what both noble Lords described as administrative circumstances. I might be wrong about that, as I am prepared to accept, at all times, that I can be wrong about such things. We need to investigate the points made by the noble Lords in more detail. I think that that is why the disqualification to which they refer is not covered by the convention in the way in which they think it might be.

Baroness Carnegy of Lour

If I run into the back of a lorry in my car, am taken to court and am disqualified because I did it in such a monstrous way, that would be one thing. However, if my doctor advises me that I have become rather old and should stop driving and I hand my licence in, that is another thing. If I hang on to my licence and use it in another country, that would be wrong. However, that is not what we are talking about. Am I right?

There is a difference between being disqualified because one has an illness or because one is old or blind and committing a driving offence. Is that what the Minister is saying? That is what I was thinking.

Baroness Anelay of St Johns

I shall try to be helpful to the Minister. As I understand from having examined driving law, one is disqualified for driving by age, if one is too young, too old or has a disability. However, the offence does not occur until, having been disqualified for driving, one actually drives. That is the difference that the Government are trying to explain between what is in the proposed schedule and the circumstances described by my noble friends.

Lord Bassam of Brighton

We have got to the same point. We have agreement on that.

Baroness Anelay of St Johns

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 57 agreed to.

Clause 58 [Recognition in United Kingdom of foreign driving disqualification]:

Baroness Anelay of St Johns moved Amendment No. 139ZE: Page 38, line 21, leave out subsection (7).

The noble Baroness said: I shall also speak to Amendments Nos. 139ZH and 139ZK. I have tabled the amendments to ask the Government when these subsections will be used. The provisions give power to the Minister and the Secretary of State respectively to extend the time for appeals and the production of a licence. I seek clarification of when the Minister thinks that that power would be used. Are there any criteria that would automatically allow for an extension of time? Can the defendant ask for an extension, or is it merely a matter of executive decision? I beg to move.

5 p.m.

Lord Bassam of Brighton

The decision to give effect to a foreign disqualification necessitates giving the offender notice that he is disqualified. Although the offender should have been aware of the proceedings in the state of the offence, the notice given under Clause 58 will be used to inform the driver of disqualification in the UK. We consider that a period of 21 days before the disqualification takes effect is reasonable, sensible and appropriate. As I understand it, the period follows on from the time period allowed in relation to domestic disqualifications and the decision of the magistrates' court. The noble Baroness will of course have more knowledge and insight into magistrates' courts than I could possibly have.

The power to prescribe a period longer than 21 days is needed because it would allow us to make adjustments in line with any changes to the appeal rules and also in the light of experience in the operation of the convention procedures. If experience shows that drivers consistently experience difficulties in complying with the requirements within the 21-day period, we can of course prescribe a longer period. The regulations would not prescribe different time limits for different circumstances. The time limits would be common to all cases. Nor would the regulations prescribe a period shorter than 21 days.

Baroness Anelay of St Johns

I am grateful to the Minister for that most helpful response. I should perhaps add that, in the light of our discussions a few moments ago on the receipt of proof of notice, I think it would be inappropriate for me to move Amendment No. 139ZG today. As I was not able to send a note to Members of the Committee to give them notice of that, I thought that I would inform the Committee now. I think that the questions I was going to ask in that debate would be more properly dealt with on Report, when we return to the issue of how one serves due notice. I beg leave to withdraw Amendment No. 139ZE.

Amendment, by leave, withdrawn.

Clause 58 agreed to.

Clause 59 [Notice under section 58]:

[Amendment No. 139ZF not moved.]

Clause 59 agreed to.

Clause 60 [Appeal against disqualification]:

[Amendments Nos. 139ZG to 139ZJ not moved.]

On Question, Whether Clause 60 shall stand part of the Bill?

Lord Carlisle of Bucklow

I should like to raise one general point. We move now to the right of appeal. As I understand it, if someone was convicted of a motoring offence in a court abroad and disqualified and the conditions of Clause 57 have been complied with, then, under Clause 58, the Minister would give the notice to the offender which effectively told him that he is disqualified for the equivalent period in this country. Clause 60 states: A person who is disqualified by virtue of section 58"— namely, because he has been disqualified by a court abroad and notified of that disqualification in accordance with the provisions of this legislation— may, after giving notice to the appropriate Minister of his intention to do so, appeal to the appropriate court against that disqualification". The appropriate court is said to be the appropriate magistrates' court.

To what is the appeal limited? Is it limited to the technical matters in Clause 58? Subsection (3) says that if the appropriate court is satisfied that Section 58 does not apply to the applicant's case, it must allow the appeal; otherwise it must dismiss the appeal. Or is it a full and wide right of appeal on the facts of the original conviction and the original disqualification?

Let us say that someone was convicted in France of the equivalent offence of dangerous driving. Does the clause say that he has the right to appeal against that conviction in this country? If he has the right to appeal on the facts, how will that appeal be heard? I suspect that the answer is that his appeal will be limited to merely technical matters, but I should be grateful if the Minister would clear that up.

Lord Bassam of Brighton

I am grateful to the noble Lord for the question. As he surmised, the right of appeal does not extend to the circumstances of the original offence and conviction. However, it does allow a driver to appeal on the grounds of any of the criteria for recognising a foreign disqualification which are set out in Clause 57. For example, and as we have already discussed, an appeal could be brought where the offender considered that he had not been properly notified of the proceedings. An appeal could also be brought on the grounds that an appeal is outstanding in the state of the offence—the effect of which has consistently been considered in relation to the convention.

Lord Carlisle of Bucklow

I thank the Minister for that answer.

Clause 60 agreed to.

Clauses 61 to 63 agreed to.

Clause 64 [Production of licence: Great Britain]:

[Amendment No. 139ZK not moved.]

Clause 64 agreed to.

Clauses 65 to 80 agreed to.

Baroness Anelay of St Johns moved Amendment No. 139A: Before Clause 81, insert the following new clause—

"FIREARMS: INTERNATIONAL CO-OPERATION AND

GENERAL DUTY OF THE SECRETARY OF STATE (1) It shall be the duty of the Secretary of State to facilitate the work of —

1. (a) police forces in Great Britain;
2. (b) the Police Service of Northern Ireland;
3. (c) the National Criminal Intelligence Service;
4. (d) the National Crime Squad;

in preventing the unlawful importation of firearms into the United Kingdom by ensuring effective international co-operation between those bodies and other foreign and international law enforcement agencies. (2) When the Secretary of State is—

1. (a) preparing a National Policing Plan under section 36A of the Police Act 1996 (c. 16);
2. (b) determining objectives for the policing of the areas of all police authorities under section 37 of that Act;
3. (c) determining objectives for the National Criminal Intelligence Service under section 26 of the Police Act 1997;
4. (d) determining objectives for the National Crime Squad under section 71 of that Act;

he shall have regard to the desirability of ensuring effective cooperation with foreign and international law enforcement agencies to prevent the unlawful importation of firearms into the United Kingdom.

The noble Baroness said: This amendment would insert a new clause on international co-operation and the general duty of the Secretary of State in relation to firearms. The issue of firearms-related crime has been much in the press recently. It is an issue on which there is no division between the parties—it is not a party political matter at all.

We were all shocked by the events of New Year's Eve, when four teenagers—innocent bystanders— were caught up in a gangland shoot-out on our streets. On Monday evening this week, Tasawar Hussain was tragically killed in Bradford, in West Yorkshire. He was shot in cold blood in a city street in the early evening after giving chase to two armed robbers. It was another reminder, if one were needed, of how dangerous some of our streets have become for honest citizens. I am sure that, over the past few days, we have all thought about the families and how tragic the events have been for them.

The question is what we should do about gun crime. We very much look forward to the government proposals that will be coming before the House. I do not know whether we will see those proposals soon, and I do not want to enter the realms of testing the Government on when they will be presented. The proposals will, however, be given proper and due consideration when they are brought forward.

In considering the Bill, the Committee has looked very much at international co-operation on criminal matters. I have tried to link my proposals with that. In this amendment, I have looked at focusing on the work done by the Home Office and the law enforcement agencies in preventing the importation of firearms into the United Kingdom. I pay tribute to the work already being undertaken in this field by the men and women of the National Criminal Intelligence Service, the National Crime Squad, the police and other law enforcement agencies, not least Customs and Excise, which is at the front end of trying to find these items.

The amendment would require the Secretary of State to facilitate the work of law enforcement agencies in this field by ensuring effective international co-operation between the police forces of the United Kingdom and the authorities in other countries. It would also require the Home Secretary to have regard to the desirability of ensuring such effective cooperation to prevent the importation of firearms when he is setting the priorities, plans and objectives for police forces under the legislation, which authorises him to set those priorities, plans and objectives.

Sadly, there is no shortage of foreign countries from which firearms can be illegally imported. In the Sunday Times of 6th January, an article entitled "Silenced by the rule of the gun" listed several sources. It stated: Nobody knows the exact number of handguns illegally circulating in Britain: experts estimate the figure could be anything from 250,000 to 10 million". It is a horrifying number. The article continued: Many weapons have been smuggled into the country from places such as eastern Europe, the central Asian republics and the Balkans, sometimes traded for drugs by organised crime groups". The National Criminal Intelligence Service's annual report entitled Threat Assessment of Serious and Organised Crime, published last July, stated at paragraph 7.16: There have been recent recoveries in the UK of illegal firearms originating from Argentina. Australia, South Africa, Israel, Croatia and Switzerland, and especially the USA. There appears also to have been an increase in firearms traced to Central and Eastern European countries". The report goes on to state that, as a result of the recent adoption of the United Nations Protocol Against the Illicit Manufacturing and Trafficking in Firearms, Their Parts and Components and Ammunition, foreign governments may rush to sell their surplus firearms stocks before the protocol is incorporated into law in the signatory countries and they are prevented from doing so. The report also reveals that there has been a recent seizure in this country of a consignment of firearms manufactured in the 1950s, unused and in their original packaging, believed to have come from the surplus stock of a foreign government. So that potential source of imported firearms must also be of concern.

I have proposed this new clause now to give the Government an opportunity to put on the record the approach that they intend to take to the problem of firearms which are already in the United Kingdom and the conversion of replica weapons and airguns. The amendment seeks to prompt an explanation from the Government of what work they and the law enforcement agencies are carrying out to stop guns coming into the United Kingdom from abroad. I think that that objective puts the provision very firmly within the scope of the Bill. It is also a call for the Government to address the issue of creating a long-term strategy to prevent firearms getting into this country and on to our streets. When the Government come forward with such a strategy, they will find support for it from these Benches. I beg to move.

Lord Goodhart

The use and carrying of unlawful guns is clearly a rapidly growing problem which, in recent months, has become increasingly serious in many of our cities and across the country. I therefore certainly welcome and support Amendment No. 139A. The Government must plainly see that effective international co-operation is an important step. Although there is, unfortunately, a very large supply of weapons already in the United Kingdom, there is every possibility that those dealing in these awful things may seek to import them from abroad as well. I, too, certainly hope that the Minister will be able to tell us more about the Government's plans for co-operation in preventing the inward trade of weapons from foreign countries into the United Kingdom.

5.15 p.m.

Lord Stoddart of Swindon

I shall be very interested in the reply to this timely and useful amendment. If the Committee does not mind, I should like to go back to 1997, when there were two firearms Bills, which subsequently became two firearms Acts. Some of us who opposed those Bills, which penalised decent innocent people, pointed to the fact that the real danger was from smuggled arms. We urged both governments at the time—a Conservative government followed by a Labour government—to concentrate on stopping the importation of illegal arms rather than penalising the decent, honest citizens who wished to have pistols for their sport of shooting.

Now the innocent have been punished, but the guns are still coming in and will continue to come in from all over the world. They are being smuggled not only from places such as Russia, where virtually everybody seems to own a gun, but from France and Switzerland, where gun laws are much more lenient than here. It is essential that the Government turn their attention to the issue. Let us not make any mistake about the fact that this will need additional staff. We will need more Customs officers and more police on the streets. However, it is essential to deal with the real problem and to catch the guilty rather than punish the innocent, which I fear is what will be done in response to the recent shocking shootings in a couple of communities. We are not going to deal with the importation problem. Instead, we are going to stop the manufacture of replica weapons and the carrying of toy water pistols. Please forgive me for using the Committee to get this off my chest. The amendment gives an opportunity to remind the Committee and Parliament of the mistakes that have been made in the past and to put those mistakes right now, to ensure that these awful weapons are not imported into this country, where they can be used illegally.

When we banned pistols, they were held legally by decent people. I hope we are not going to go along the same path. One way of ensuring that we do not is to take note of the amendment. I am sure that it will not be pressed, although I would support it if it were. I think everyone in the Committee and far and wide shares the views expressed in the amendment.

Lord Lloyd of Berwick

I suppose I should declare an interest, although it seems rather remote, as president of the Sussex Rifle Club. For reasons given by other noble Lords, I fully support the amendment.

Lord Filkin

I am glad of the opportunity to respond to the amendment, which, as the noble Baroness, Lady Anelay, said, gives the Government an opportunity to put on the record what they are doing about this issue and to trail some of the wider measures that she indicated an interest in as potential elements of the Criminal Justice Bill when it comes before this House. I shall do so.

Clearly, we are utterly committed to working with our international partners to prevent the unlawful importation of arms and to minimise the use of the many weapons already in this country. We would be foolish if that were not so. I know the former from my direct role as the Home Office's EU Minister. A regular topic of conversation is how we can better work with our international partners and other member states to try to address our domestic challenges. That is the central thrust of our thinking in Europe. We want to use Europe to address our domestic problems rather than some more utopian objectives.

We already have some of the toughest gun controls in the world. We have been working with the police to ensure good security of legally held weapons to prevent them being stolen. We are looking at the need to establish stricter controls on deactivation standards. We want the same standards to apply throughout Europe. We have been working closely with the European Commission to that end.

UK law enforcement agencies represent us on the United Nations panel of experts for small arms and light weapons tracing and marking. The UN protocol resulting from this work is expected to lead to tighter controls. We also sit on the EU small arms policy committee.

The National Crime Squad and the National Criminal Intelligence Service are playing a key role in the intelligence-led approach to gun crime in London as elsewhere. NCIS has a national firearms tracing service that provides intelligence on the source and use of guns used in crime. This will be complemented by a new national computerised forensic firearms intelligence database, set up with funding from the Home Office. This is to be run within the Forensic Science Service. It will help to track the provenance of guns and ammunition used in crime and will be able to identify any links with a gun that may have been used in a number of crimes.

The objectives of the National Criminal Intelligence Service already require it to, provide high quality assessments and actionable intelligence in order to increase disruption of criminal enterprises engaged in other forms of serious and organised crime … and maximise mutual support and co-operation with law enforcement agencies at … international level". It is already an explicit part of the service's objectives and responsibilities, as well it should be. Similarly, the National Crime Squad is tasked, to dismantle or disrupt criminal enterprises engaged in other forms of serious and organised crime … maximising co-operation with law enforcement agencies at … international levels". The national policing plan identifies gun crime as a high priority for the police and refers to the critical role they play in tackling it.

More specifically, in addition to the collaborative work with our partner law enforcement agencies, NCIS and NCS and intelligence agencies in-country work to improve our knowledge and understanding of the many complex issues that result in what has increasingly been happening on our streets. We are also working collaboratively in the international context. That includes actively seeking out examples of best practice all over the world from those who face or have faced similar issues. Promulgating and sharing intelligence is frequently the best way of targeting law enforcement resources. It also includes shared operations with international partners.

The FCO, HMCE, DfID and other agencies are assisting governments and law enforcement agencies in those countries that are at the head of the chain and are the source of many of the problems that we are experiencing on our streets, and those that are the major transit areas through which the criminal commodities pass on their way to markets in the UK and western Europe. For example, assistance to countries such as Jamaica, Turkey, the Balkan states, Columbia and Pakistan comprises training; funding for necessary equipment; and help in drawing up appropriate legislation and seeking to reduce the supply at source and taking out of play the major players, disrupting their activities at all stages of the chain. Those are all major objectives, as, especially, is seizing the illegally gained assets. They are being actively pursued directly and through bilateral agreements with other EU member states, the various UN bodies or other countries.

The noble Baroness, Lady Anelay, asked some other questions about what else has been done or will be done. She will know that the Firearms (Amendment) Act 1997 introduced the toughest gun laws in any democracy. That was followed by a 10 per cent drop in the number of homicides. Unfortunately, since then a new pattern of gun crime and gang wars has emerged, usually highly related to extensive patterns of drug abuse in our society. Many of us are especially concerned about that. Some 60 per cent of gun crimes are related to gang feuds in our cities.

To give one example of how that is being tackled, the Metropolitan Police's Operation Trident is a major initiative to crack down on London's black communities where there has been extensive gun crime activity. I shall not give full details, but as of January 2002, 200 suspects had been arrested and charged, 130 guns seized and 500 kilos of class A drugs seized. Operation Trident has increased the detection rate of gun crimes to 80 per cent in those areas, which has been extremely encouraging.

The Criminal Justice Bill will introduce a mandatory minimum sentence for possession of illegal firearms. We are introducing a ban on the import, manufacture, sale and unlicensed possession of tandem cartridge systems. We are tightening the law on air guns. Going outside the Bill for a minute, following the gun crime summit Her Majesty's Customs and Excise are to undertake a major mapping of supply of weapons and are to be given new powers to prevent the illegal import of banned weapons. We are also working closely with the police to ensure better enforcement of existing legislation. A comprehensive review of all firearms legislation is also being implemented. That will examine whether there is more primary legislation than necessary. Lastly the National Criminal Intelligence Service is expanding its firearms section significantly in the light of these threats.

No one pretends that the scale of these threats means that we can be certain that these measures alone will do everything that can be done. We shall return to those issues when the Criminal Justice Bill comes before the House. The only point that I want to mark is that, while we fully respect the probing amendment giving an opportunity almost for a preliminary Second Reading debate on some of these issues before we come back to them later, the duties that at would impose already exist in practice in the operational forces that are challenged with dealing with the issues. The Government could not be more committed to using international efforts to reinforce our domestic efforts to grip the problem. For these reasons, I invite the noble Baroness to withdraw the amendment.

Lord Carlisle of Bucklow

I hope the Minister will bear in mind the powerful speech of the noble Lord, Lord Stoddart. Looking back over the years, our reaction has often been to put far tighter controls on those who are legally in possession of guns, when the real problem has always been the amount of illegally held guns that have been flooding through the country. I hope the Government will bear that in mind in any legislation that they bring forward.

On a Question in the House the other day, some Members were confessing to having changed their mind on these matters. The one point on which I disagreed with the noble Lord, Lord Stoddart, was his comment about replica guns. This came up in, I think, 1970, when I was a junior Minister in the Home Office. We had a delegation from the gun lobby telling us to take more seriously the issue of replica guns coming into this country. I suspect that we did not give their arguments the careful consideration that they deserved. We may have thought that they were trying to turn the argument to another aspect of gun control. What we now know about replica guns and the ease with which they are converted to real lethal weapons means that we ought to have control over them.

Finally, I was disappointed beyond words to hear the Minister repeat that the Government were intending to go ahead with mandatory minimum sentences. I do not believe they will do any good. They will simply lead to unfairness, as mandatory sentencing will always do in the long run. They remove flexibility. On hearing the answers of the noble and learned Lord the Attorney-General and of the noble and learned Lord, Lord Falconer, in a recent debate, I had hoped that the Government were beginning to accept that flexibility was a necessary element in a court's sentencing powers if injustice is to be avoided. When there is already a maximum sentence of life for carrying a gun with intent to commit some other offence, a mandatory sentence of three years will make no difference. A mandatory sentence of three years on conviction for being in possession of a gun in circumstances that are currently tried merely in the magistrates' court seems to be equally out of line.

5.30 p.m.

Lord Renton

We are discussing a new clause dealing with firearms. It has been well supported by a number of Members of the Committee. But it is surely in the national interest that we should consider weapons of mass destruction of various kinds. It would be a tragedy if the British people were protected by a clause dealing only with firearms. Between now and Report the Government should apply their minds to the broader issue. I hope that I am not out of order in referring to that point.

Baroness Anelay of St Johns

I am grateful to the Minister for his response. I thank the noble Lords, Lord Goodhart and Lord Stoddart, and the noble and learned Lord, Lord Lloyd of Berwick, for their support. I am grateful also for the interventions by my noble friends Lord Renton and Lord Carlisle. My noble friend Lord Carlisle raised the important issue of mandatory sentences. We shall have some difficult and interesting discussions on that subject when we debate the Criminal Justice Bill. He was right to focus on it.

As the noble Lord, Lord Stoddart, said in his remarkable and welcome speech, governments of both persuasions have perhaps not always taken the course that they might have done had they thought about these matters for slightly longer. We are left with a situation where huge numbers of illegal firearms are imported, and the Government face a very difficult task in trying to ensure that their importation is stopped. The noble Lord, Lord Stoddart, also raised the important question of the resources that will be involved in ensuring that our borders can be properly secured against the importation of arms.

My noble friend Lord Renton raised the issue of other weapons. I wonder whether the Export Control Act, which completed its passage at about this time last year, might cover that. I should be grateful if the Minister would write to my noble friend on that point between now and Report. There may be provisions which address the point, but they may not address all his concerns.

I should be grateful if, between now and Report, the Minister might answer one detailed question. I was intrigued by his helpful description of international cooperation on matters of best practice. He referred to what we hope will be best practice in this country; namely, the creation of an intelligence database tracking guns used in crime. Will the tracking of those guns relate only to crimes committed in this country, or will our agencies have access to information on guns used in crimes overseas? Will that be part of the exchange of information? I do not expect an answer today, but it would be helpful in the context of this Bill, and, more particularly, in our debates on the Criminal Justice Bill.

I agree with my noble friend Lord Carlisle that the issue of mandatory sentences will be a tough one. The Government will have to come up with some persuasive answers and a cogent argument about how these will be put into practice if the Bill is not to have a bumpy ride through this House.

I am grateful for the care and attention that all Members of the Committee have given to this proposed new clause. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 81 and 82 agreed to.

Clause 83 [Foreign surveillance operations]:

Lord Filkin moved Amendment No. 139B: Page 55, line 13, leave out from "circumstances" to "an" in line 14 and insert "for a United Kingdom officer to carry out the surveillance in the United Kingdom in accordance with

The noble Lord said: Before speaking specifically to the government amendment itself, as this is our first opportunity to discuss Clause 83, and as it may aid some of our subsequent discussions, I wondered whether it might help if I set out some of the essential features of Clause 83 and explain why we think that the provision is right, necessary and proportionate. The provision is meant essentially to enhance co-operation so that British police forces are better able to obtain evidence and apprehend those who committed crime, and whom they have under surveillance, in order to bring them to justice.

From our perspective, at heart, the measures will deal with circumstances which have occurred in the past whereby people under surveillance by the British police forces have crossed the Channel and contact with them was lost, frustrating the police's ability to collect the evidence that they thought might assist in bringing prosecutions and convictions. The same is true in reverse. There have been occasions when our neighbours on the Continent had people under surveillance whom they believed had committed an offence. They thought it necessary to continue that covert surveillance in order to collect further evidence for a prosecution. When the people crossed into this country, our neighbours were unable to pursue.

To take it more sharply, most of the cross-border operations will be brought in as a result of the Bill and implementation of Article 40.2 of the Schengen convention. Let me illustrate how the operations will work in practice. Most of the cross-border operations that come from the EU into this country will be pre-planned and authorised in advance. We expect that the vast majority will be of that nature. I am slightly labouring the point because, in pre-planned operations, the surveillance operation will be taken over by British forces—in practice, the National Crime Squad—upon the suspect's entry to the UK. We expect that that is what will happen in the vast majority of cases.

There are, however, urgent cases—the focus of this clause and this issue—where it is not always possible to get either the authorisation or the authorisation and a UK surveillance team in place at the port in time to take over the surveillance operation. It is about putting in place highly limited and circumscribed regulations which, in such tightly circumscribed circumstances, allow the surveillance to continue in the United Kingdom for a limited time, until such time as British police forces can take over the surveillance. So it applies only when it is not possible to get a British force to take over the surveillance immediately, and then only in very tightly circumscribed circumstances. I shall try to illustrate those circumstances.

Foreign officers cannot operate here until they have requested assistance—as soon as it seems probable that the suspects they are following will be crossing into the United Kingdom. So there is a duty to notify NCIS as soon as it seems probable that their suspect will be coming to the United Kingdom. They must also notify NCIS as soon as they have arrived in the United Kingdom. I stress again that that applies only when it has not been possible to arrange through advance notification a joint investigatory team or a UK force at the point of entry. NCIS will be the point of contact for all requests and will authorise or refuse the operation. They have the right of refusal. The National Crime Squad or a local force will be notified by NCIS, and will identify officers to link up with the incoming foreign officers as soon as possible.

The period for which foreign officers may operate alone is strictly limited under the Schengen convention, and under the Bill's provisions, to five hours. There is a maximum of five hours to allow time for the British police forces to take over the surveillance. If they have not done so within that period, surveillance must stop. The UK may require foreign officers to stop at any time within the five hours. So, having given authorisation, they can rescind it if they think it appropriate to do so at any time within that period.

I shall labour the next point because it is germane. Foreign officers may not carry their firearms. They will be prohibited from bringing their guns into the United Kingdom. They may not enter private property. They may not challenge or arrest a suspect. They must submit a report of every operation in which they have entered the United Kingdom at short notice. In all those circumstances, even though it will not always be possible to put in a UK force before they come in, they must notify NCIS before their feet touch UK soil. So we will know that they are coming; we will know who is coming; and we will authorise their entry. We will simply be allowing them to continue for a short period in the very limited number of circumstances where it has not been possible to get our own surveillance forces into place in time. I hope that the Committee will bear with me in setting out those issues, as we are bound to revert to them on subsequent amendments. It is the novelty of leading on these amendments rather than responding to them that has led me to behave in that way.

The purpose of the amendment is straightforward. It allows officers from other countries to carry out under tight conditions lawful surveillance of a person suspected of a serious crime. I emphasise that we are talking about only serious criminal offences, not minor offences or misdemeanours. We are making the changes as part of our wider commitment to fight international crime with our EU partners. It will allow better co-operation at every instance. The measure is supported by the Association of Chief Police Officers and the National Criminal Intelligence Service. Other EU countries have been running Schengen arrangements on cross-border surveillance for years. They have managed to make them work well despite some shared difficult histories.

I shall now discuss the substance of the amendments. In the Explanatory Notes, we outlined why foreign officers should be allowed to continue surveillance into the UK, in particular to take account of the time needed to mobilise a UK surveillance team. In reviewing the text of the Bill in response to the proposed amendments from Committee Members, we realised that the text of the Bill as it stands would not allow for situations where the UK authorities are notified before the team enters the UK. These amendments ensure that the five-hour period applies not only where it is not reasonably practicable for foreign officers to make an advance request; it applies also where an advance request is made from abroad but it is not reasonably practicable for our authorities to secure the necessary authorisation before the foreign officers reach the UK. The amendments will also cover cases where a request is made from abroad, and the surveillance by UK officers is authorised in advance, but it is not reasonably practicable for those UK officers physically to take over the surveillance when the foreign officers enter the UK.

Amendment No. 154A simply defines "United Kingdom officer" for the purposes of Amendment No. 139B. The police, Customs, the NCIS or the NCS will take over this sort of surveillance. It also includes the Scottish Drug Enforcement Agency, formerly the Scottish Crime Squad, and anyone who might take over their functions. The wording of the amendment is needed to ensure that Section 76A would cover any other body that might be established under any future collaborative agreements between the Scottish police forces. It will perform the same functions as the SDEA.

We consider that all those cases should count as urgent cases covered by Article 40.2 of Schengen. We do not want to run the risk of being unable to take over surveillance operations because of unforeseen and insurmountable difficulties in getting UK officers to the port within the hour or two it might take for an officer to cross from Calais. The consequences of that might be that important criminal suspects would be allowed to enter the UK without supervision. I cannot believe that the Committee would wish that to happen.

I may respond further to questions from the Committee. I hope that I have set out the broad picture of why we think these measures are essential. I have had to weary the Committee with these amendments simply to ensure that the measures were effective in all respects. I beg to move.

5.45 p.m.

Baroness Anelay of St Johns

The Minister opened his speech about the principles underlying Clause 83 in general terms. As he is aware from comments made from these Benches at Second Reading, we have concerns about the operation of the powers of surveillance. He puts the argument in the context that there is a quid pro quo and that if our police forces are engaged in surveillance that they consider necessary to continue across the Channel, they will wish to have the ability to carry that forward.

We want to ensure that it is possible for criminals who have no respect for borders to be hunted down by democracies whose police forces must have respect for borders. We do not object in principle to what the Government are trying to achieve, but we want to ensure that the quid pro quo is not achieved at too high a price. That is what our amendments are aimed at.

I have a couple of questions. The first relates to the generality of the Minister's introduction. I may have misunderstood something that he said. He rightly explained that the vast majority of operations would be pre-planned and would be taken over by our police in this country. He said that the Bill would cover the rest. They would be small in number, but they might be significant in themselves. The Minister then said, I think, that advance notice would always be given before the officers carrying out the surveillance set foot in this country. That is not what I understood to be the case from the Bill or from the Explanatory Notes.

I understood that they would be able to travel to the country even if they had been unable to give prior notice and give notice once they were in the country. I may have misunderstood the explanation given at Second Reading and the way in which the Explanatory Notes set it out. If so, I would be grateful to be put right by the Minister. Before setting foot in this country to carry out surveillance, must a foreign officer who is not accompanied by an officer from a police force in England, Scotland or Wales have given notification? He will have five hours during which he will not have such permission and will be waiting for it, but must he have made the application before one foot steps on British soil?

The Minister referred to other matters that, we thought, were not sufficiently clear in the Bill. We will come to the relevant amendments later. The Minister said categorically that foreign officers would be prohibited from carrying guns, entering private property or making a challenge. Our amendments would create clarity in the Bill similar to the clarity of the Minister's pledge.

When I read the amendment, I wondered whether there might not still be a problem with it. If it is manifestly impossible for a United Kingdom officer to carry out surveillance but it is still possible for telephone calls to be made for authorisation under Part 2 of RIPA, would not the amendment remove the threshold for that? I do not necessarily expect an answer today, but I would be grateful if the Minister could write to me or if we could address it on Report. When such amendments are presented to the Committee new and fresh, it is difficult for us to seize on the details of the Government's explanation and ask the right questions.

Lord Carlisle of Bucklow

I shall follow my noble friend Lady Anelay of St Johns by asking exactly what degree of reciprocity there is in the clause. As I understand it, the Minister said that we were providing the new right to surveillance in this country because we were implementing the Schengen convention. Have all the other signatories to the convention signed up to the new right of surveillance? Does our police force have similar rights in those countries?

Lord Goodhart

We are having a preliminary debate on the surveillance provisions of Clauses 83 to 85, which are in some ways the most controversial element in the Bill. I should make clear that we, as indeed does the noble Baroness, Lady Anelay, support the principle behind this form of surveillance. Cooperation on surveillance, as on other matters, is we believe of great importance.

In Article 40 of the 1990 convention, which implements the Schengen agreement, the power of hot surveillance is more likely to be used on mainland Europe than in the United Kingdom because of obvious geographical issues that arise. It is easy and quick nowadays to cross a border in mainland Europe from one member state to another, whereas in this country—with the exception of the border between Northern Ireland and the Republic of Ireland, to which, as I understand it, Article 40 does not apply—the only way in, whether by boat, aeroplane or by the Channel Tunnel, involves a fair amount of time. Therefore, mostly there will be a chance to notify the authorities in advance and to get someone from a police force in the UK to carry out the surveillance here. I would be interested to know how often the Government expect that these powers will need to be used.

We are particularly concerned to note that a number of the limitations which are contained in Articles 40.2 and 40.3 are not set out on the face of the Bill. The Government have announced their intention that they should be observed, but we feel that they should be on the face of the Bill. That is why the relevant amendments stand in the name of my noble friend Lord Dholakia as well as the noble Baroness, Lady Anelay, and the noble Lord, Lord Kingsland. We shall support, in particular, the amendments which seek to place these restrictions on the face of the Bill.

It was suggested at Second reading that the Government did not wish to see such amendments on the face of the Bill because they were anticipating further changes to the 1990 convention and it might therefore be more convenient if these matters were simply dealt with by means of regulations. We should be unlikely to be happy with that, if it is indeed the reason why the Government do not want the full level of restrictions under Article 40 to be on the face of the Bill. This power of surveillance, even if used relatively infrequently, will be controversial and intrusive. Therefore, we think it highly desirable that the restrictions should be on the face of the Bill.

Lord Stoddart of Swindon

It was most helpful of the noble Lord, Lord Filkin, to give a general overview of these clauses. The Committee will welcome the fact that there will be a complete prohibition on the carrying of firearms. Since there is a general prohibition for our own police, it would be absurd if foreign policemen could come to this country with firearms. I should like to know exactly how the restriction will be enforced.

At Second Reading, I raised the problem of a foreign policeman who has a gun and who is in hot pursuit of a criminal having to discard that gun somewhere on his way over here. How and where will he do it? Will he dump it in the sea, chuck it out of the Eurostar window or what? I should welcome further information. It is also good to know that foreign police may not enter private property—that is the subject of an amendment which I hope the Government will accept—and that they may not arrest people.

As I understand it, these provisions do not apply to the Irish Republic; so IRA people who bomb in Northern Ireland and flee to the south will not be able to be hotly pursued by British policeman. Is that right? Perhaps the noble Lord could tell us later.

The Minister referred to operations being pre-planned. Has he any idea exactly how many such operations there will be—tens, fifties, hundreds, or thousands? It would be useful to know, because we should like to know just how many foreign policemen would be operating in Britain at any given time. That is important.

If someone is in hot pursuit—say, from the Continent, America or anywhere else where we have an arrangement—and arrives in this country, I am not quite sure how the person knows who to get in touch with. It is not only a central intelligence agency that needs to know; the local police also need to know, because they are responsible in their own area. It would be useful to know how that is to be achieved and how the five-hour limit will be enforced. For example, when the chap is chasing someone along a road and the five-hour period expires, what happens then? Or what happens if he thinks, "Never mind about the international agreement, I have to go on". How is this provision to be supervised? How is discipline to be enforced? We ought to know.

Finally, I am not sure whether the agreement that we have made with other countries allows the five-hour period to be extended without the introduction of further primary legislation. We ought also to know that. I hope that the Minister will be able to answer all these questions.

6 p.m.

Baroness Carnegy of Lour

The Minister assured us that such hot pursuit would happen only in the case of someone suspected of serious crime. He said that foreign officers would not be allowed to carry guns, nor to enter private property. I was unclear how we would know that. I believe that the noble Lord, Lord Goodhart, raised that point, but I did not know whether those points were set out in previous legislation. Is that what he is telling us?

Baroness Anelay of St Johns

I hope to assist the Minister. In his general introduction to this clause, he has opened up the issue rather more widely than the Government might have anticipated at this stage, given that a substantial number of amendments are to follow. However, Committee Members have very properly seized the opportunity to ask questions.

Perhaps I may assist the noble Lord, Lord Stoddart of Swindon, who asked about the carrying of firearms. We hope to probe the Government closely on Amendment No. 148, which would prohibit the carrying of firearms by a foreign police officer or a Customs officer. We have further amendments—Amendments Nos. 153 and 154—that concern the period during which foreign officers may carry out surveillance within this country. I assure the Minister that when I asked for clarification on his statement that all applications must be made before a foreign officer's foot stepped on this soil, I sought only clarification. I do not expect him to go into any detailed explanation of the policy. Obviously, we shall probe those issues when we come to our amendments. We shall try to require not only that the application be made, but that permission should have been granted before the surveillance may continue.

Lord Filkin

I thank all noble Lords who have spoken. As they have signalled, I, in seeking to set the scene, inevitably opened up discussions on forthcoming amendments that will be considered later. Nevertheless, perhaps I may give some initial responses, as far as I am able, to as many points as I can. That may assist our subsequent consideration of future amendments. However, noble Lords deserve a reply, if I can give one.

I turn to the first question asked by the noble Baroness, Lady Anelay, concerning advance notice or prior notification. There are two circumstances. First, when an operation is pre-planned, clearly, the foreign force is expecting something to happen. Therefore, they telephone the National Criminal Intelligence Service, and there is plenty of time to put in place a UK surveillance operation. That situation is clear. The noble Baroness was correct in saying that I was not simply referring to that situation. I was also referring to the urgent situations when it has not been possible to put in place a plan to take over the surveillance.

As the noble Baroness rightly observed, foreign officers will be expected to request assistance as soon as it seems probable that the suspects they are following will cross into the UK. That will be our general expectation; as soon as the foreign officers are aware of that situation arising, they will make contact. In strict legality, they could board the ferry and continue the surveillance into the United Kingdom. As I signalled earlier, and will come to on subsequent amendments, immediately the foreign officers arrive in the United Kingdom they would have to give notification of their presence.

Those circumstances are expected to be few because, while the foreign officers are waiting for their car or whatever to be loaded on to a ferry or a hovercraft, it would be relatively simple to call NCIS on the telephone number in their Schengen handbook and notify it of their arrival.

The noble Baroness, Lady Anelay, also asked a technical question on which she had the grace to signal that she would like a written answer. That I shall give. The question of other Schengen countries was also raised. Please bear with me if I am unable to spot exactly who asked which question. The position is that all other Schengen countries, apart from Ireland, are signed up to the convention. It is not new; the Schengen system has been in operation since 1990.

The noble Lord, Lord Goodhart, is right in saying that surveillance—it is surveillance to which we are referring and not hot pursuit, which I shall turn to later—is much more likely to be used in mainland Europe, for the reasons that he accurately observed. Because of the delay in crossing the Channel, the likelihood is increased of being able to put a UK surveillance team into position at the point of entry of the suspect being tailed. That does not apply to Ireland, which does not want to participate in Article 40 of Schengen—that is entirely a matter for the Irish Government, as the noble Lord, Lord Stoddart, correctly surmised.

How often would the measure be used? It is hard to judge, but for the reasons given by the noble Lord, Lord Goodhart, one would expect that most circumstances would be pre-planned and prearranged, rather than having to take advantage of the particular circumstances that we are debating under this clause.

The limitations of the measures are important; I have signalled them. Clearly, they will be put into legislative force. We intend to do that through secondary legislation. For recollection, in virtually all cases, they will be by the affirmative procedure. But we shall return to those measures in more detail subsequently.

The noble Lord, Lord Stoddart, asked about firearms. The foreign officers will be aware that they must deposit their guns within their own country. That is for two reasons. First, it will be in the Schengen handbook— surveillance officers will be expected to carry a copy. The handbook will set out the rules of entry to the UK. Secondly, it is such—how shall I put it?—a highly apparent issue that it is hard to believe that a French or a Belgian officer would not be aware that they were prohibited from bringing their gun into this country. On the mechanism of doing so, we would expect gun-carrying foreign officers to hand over their gun to an appropriate official at the embarkation port while waiting to board the ferry. I can see no reason whatever why they could not do that.

Baroness Anelay of St Johns

Perhaps I should give the Government the opportunity to think about this situation before we reach the firearms amendment. This is a matter that I raised with the Minister when he was kind enough to have a meeting with officials and noble Lords. Does the Minister not foresee circumstances where foreign officers are very properly involved in surveillance in which they are, themselves, under cover? Therefore, it would not be safe for them to carry out the procedure as laid down. In other words, in front of a gang of which they were a part, a foreign officer could not exactly say, "Excuse me while I stop and deposit my gun before I join you on the illegal boat that we are using to cross the Channel". Will those circumstances be taken into account in the firearms amendment?

Lord Filkin

I shall take advantage of the notice rather than respond immediately. We believe that there are practical solutions and that it would be perfectly possible to do so.

Should there be breaches, they will be dealt with in the same way as any other breach of firearms law by UK citizens. If a foreign policeman came into the country in the circumstances described, carrying his firearm covertly, he would be in breach of UK law and, as a consequence, would be open to UK prosecution. In such a situation, he could and would be arrested.

In many circumstances, the suspect may be in a car and the police officer also in a car. The relevance is that it is sometimes operationally difficult to put in place sufficient covert UK police cars to take up the surveillance—it is not a chase—immediately. It cannot be done with just one covert police car. I said that it was not hot pursuit merely for clarification. Hot pursuit is a term to be used when police officers are pursuing a suspect with a view to arrest. That is not what we are referring to; we are referring to the continuation of surveillance operations.

How will the five-hour period be enforced and supervised? Again, as soon as foreign police officers put a foot on British soil, they would be expected to notify NCIS. In most cases, we would expect to be notified from the other side of the Channel. Therefore, we would know the start period of when they are due to arrive and would add five hours to that. If they continued their operation, it would be without legality. They would have no legal authority to operate after the expiry of those five hours, or any shorter period that NCIS has imposed. A question was asked concerning the extension of the five-hour period. There is no intention to extend the five hours. In theoretical circumstances, it would need primary legislation if we changed our mind.

The noble Baroness, Lady Carnegy of Lour, asked what are the serious crimes. They are set out in Article 40.7 of the Schengen convention. Perhaps I may put them on the record now, even though we may touch on them later. Serious crimes are limited to a number of generic offences, all of a serious nature. They are murder, manslaughter, rape, arson, counterfeiting, armed robbery and receiving stolen goods, extortion, kidnapping and hostage-taking, trafficking of human beings. elicit trafficking of narcotic drugs and psychotropic substances, breach of the laws on arms and explosives, use of explosives, and illicit transportation of toxic and dangerous waste.

I am sure that noble Lords will say that there are one or two points that I have not answered.

Baroness Carnegy of Lour

Just before leaving that point; I did not actually ask what the crimes were. I asked how we know that it is only serious crime. How do we know that the police cannot carry arms or go on to private property? Is that all in the framework agreement?

Lord Filkin

It will all be in the Schengen handbook, in which we shall have the right to set out the operational effect of UK legislation on applying the framework agreement. Effectively, in the Schengen handbook—I wait to be corrected if I am wrong—there will be a British section which states, "You cannot do X, Y and Z".

The further question asked by the noble Baroness was how will we know that they are following the regulations. In strict—

Baroness Carnegy of Lour

My question was really relevant to my noble friend's forthcoming amendments. If the Minister says that the amendments are not necessary, he will say that all those facts are known. The Minister said that he could assure us that this would occur only as a result of serious crime. He assured us that foreign officers would not go into private property and that they would not carry guns. What is the basis of the Minister's assurance? I believe that I am being told that all that information is in the handbook. Is that correct?

Lord Filkin

You are being told that all that information will be in the handbook. It will be in the handbook as a consequence of us legislating through primary and secondary legislation to make that the application of the convention, which will then give us the right to put those conditions into the Schengen handbook. The handbook will then be a legal obligation on foreign forces, in the limited circumstances that we are describing, to obey when they enter this country. Effectively, the Schengen handbook will be an operational expression of the law that they must obey, if they are not to be in breach of the law.

I turn now to further points. Clause 76A(3) covers that point. It states that "relevant crime" means crime which falls within Article 40.7 of the Schengen convention. I can send the noble Baroness a copy, if that answers her point. However, I am not sure whether it does.

On Question, amendment agreed to.

Lord Filkin moved Amendment No. 139C: Page 55, line 15, leave out "for the carrying out of the surveillance

On Question, amendment agreed to.

Baroness Anelay of St Johns moved Amendment No. 140: Page 55. line 16, at end insert— ( ) In subsection (1)(c) it is "not reasonably practicable" to make such request as is mentioned therein only if the duration of the foreign police or customs officer's travel to the United Kingdom is shorter than could reasonably allow for prior authorisation to be sought.

The noble Baroness said: This amendment stands also in the name of the noble Lord, Lord Dholakia. The discussion on the previous group of government amendments has been very helpful in telescoping some of the debate that we shall have on the individual amendments as they arise.

Amendment No. 140 would place on the face of the Bill the wording of the Home Office's description of the United Kingdom's intent in acceding to Article 40 in its own commentary on the Schengen convention in the letter from the right honourable Jack Straw to the presidency of the Council, requesting United Kingdom accession to Schengen, as given to the Lords European Select Committee and printed at annex 2 to its fifth report of 1999–2000.

The letter states in respect of Article 40: In view of the United Kingdom's island geography, it is expected that surveillance which takes place without prior authorisation would be limited to those situations where the duration of travel to the UK is shorter than could reasonably allow for prior authorisation to be sought". This is one of many amendments where I simply ask: why is that clarity, that restriction, not on the face of the Bill? I beg to move.

Lord Goodhart

We support this amendment because we think it desirable that restrictions of this kind, which have been acknowledged by the Government, should be on the face of the Bill.

6.15 p.m.

Lord Filkin

Clause 83 implements the requirement of Article 40.2 of the Schengen convention for officers from one member state to be allowed to cross a border to conduct unaccompanied surveillance in another Schengen member state for up to five hours in exceptional circumstances when the subject has unexpectedly entered the other member state. When the UK applied to participate in Schengen, we chose to opt into this provision because UK law enforcement sees it as a key operational development.

Clause 83 simply ensures that the surveillance that the foreign officers will be carrying out is lawful. We do not expect these situations to arise very often. I touched on these points in previous explanations. We believe that our participation in the Schengen convention arrangements on cross-border surveillance will help to block the loophole where, currently, people coming into the United Kingdom can disappear and traces can be lost, and the reverse happening when we have been seeking to keep suspected criminals under surveillance with a view to collecting information for a prosecution.

The amendment, which I recognise as probing would limit these conditions by amending the definition of "reasonably practicable". It would narrow the circumstances in which this type of surveillance was allowed, so it would be "reasonably practicable" for a foreign officer not to request surveillance in advance only if his travel time to the UK would be less than the time that it would take to seek prior authorisation.

Enforcing such a condition would be very difficult. It may be helpful if I explain what we mean by "reasonably practicable". It includes other circumstances besides timing which might prevent prior authorisation being sought. Although it may seem slightly bizarre, it is, for instance, conceivable that an officer might be unable to make contact because of a dead battery in a mobile phone or a radio. Also—and more usually—circumstances might be such that there was not sufficient time both to secure the authorisation in the UK and to arrange for the UK team to take over the surveillance.

The amendment fails to take account of the complexity of mounting surveillance operations at short notice. It would impede the UK's ability to undertake its own cross-border surveillance operations, and to assist Schengen partners with theirs.

Consultation with the operational agencies and the practical implementation of Article 40.2 identified that in view of the UK's wish to take over the handling of all foreign surveillance operations entering the UK, situations would arise which would make implementation difficult if we continued to maintain our original approach.

For example, identification of the appropriate operational agency force to take over the operation and for it to seek authorisation under RIPA may take longer than the time it takes to travel to the United Kingdom, even if we receive the request at the point at which the foreign team are embarking for the United Kingdom.

I hope that I have answered all the questions raised on this amendment.

Baroness Anelay of St Johns

I am grateful to the Minister for his response. I can well understand the Government's approach. They are attempting to ensure that surveillance can continue in cases where serious crime is being investigated, and that surveillance will not be hampered unnecessarily. We are trying to ensure that the proper safety procedures are in place.

The Minister said that enforcing the proposal in the amendment would be difficult. We are not trying to prevent surveillance taking place when it is proper; but, as the Minister is aware, prior authorisation is our preferred option. We are trying to ensure that "where reasonably practicable", that is the right way to go forward.

If this surveillance power is to be exercised, it must be in circumstances where foreign officers—and indeed British officers carrying out their duties overseas—are carrying out these procedures in the best possible way. Their practices must be water-tight. They must not see this merely as the easy option.

I was disappointed, therefore, that the Minister sought to justify this procedure by saying that it could be the case that someone had a dead telephone battery. I jolly well hope that if these people are carrying out such important international investigations they will charge up their batteries. That was the weakest part of the Minister's argument. I shall take other parts of his argument far more seriously between now and Report. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 141: Page 55, line 25, after "party" insert "and which is an offence under the law of any part of the United Kingdom,

The noble Baroness said: This amendment stands also in the name of the noble Lord, Lord Dholakia.

The amendment would require the relevant crime being investigated by foreign officers under the powers given by the clause to be an offence under United Kingdom law where it is one specified by order by the Secretary of State, with the consent of Scottish Ministers, rather than one already specified in the Schengen convention.

All the crimes listed in Article 40.7 of the Schengen convention appear to satisfy this test. But that does not appear to be the case for new Section 76A(3)(b), which allows the Secretary of State to specify further crimes by order. I am trying to ascertain what kind of offences that are not crimes in the UK might be investigated by foreign officers on our soil as a result of these provisions. I beg to move.

Lord Filkin

The amendment—which I recognise is probing—would seek to restrict any subsequent extension of these arrangements to agreements other than the Schengen convention. It would mean that if we wanted to enable this type of surveillance to be carried out in respect of another international agreement besides the Schengen convention, we could do so only if the crimes specified within that further agreement were also crimes in the United Kingdom.

Subsection (3)(b) gives the Government flexibility should we wish to join a new international agreement that included provisions on cross-border surveillance. It is likely that any such agreement would take a similar approach to Schengen and refer to generic offences.

The Committee will be aware that, even where progress has been made in reaching agreement on the definition of an offence in European Union instruments, variations still occur when these are adapted at national level, and it is often good that they do so. Generic descriptions of offences enable member states to take account of variations of detail and they enable international agreements to be reached without the need for harmonisation of the offences covered.

One can see where the alternative takes us: to have effective international co-operation, one would be on a slippery slope towards seeing the need for harmonisation of laws. That is not the United Kingdom's position. We are opposed to that, but build our co-operation on the principle of mutual recognition.

Our resistance to the amendment is not any sort of attempt to evade parliamentary scrutiny. Any EU agreement that might be covered by this clause would be deposited for scrutiny by the relevant committee of both Houses, which would provide the opportunity to raise any concerns about its scope.

Broader international agreements would also be subject to parliamentary oversight before they could be ratified. In response to the invitation to identify a specific example—which is possibly dangerous—rather than merely illustrating why we believe the generic terms are the right way forward, perhaps I may give an example. In a case where a United Kingdom police officer was seeking to keep under surveillance someone whom he or she believed had been involved in child molestation or child pornography, our laws would be tighter and stronger than those of some other countries and we would wish still to be able to have that pursuit continue without being limited by what would effectively be a dual criminality requirement—which is clearly what a foreign state would expect if we were insisting that it had to be UK law.

For those various reasons, while respecting the nature of the probing amendment, we do not believe that it is necessary or appropriate.

Lord Stoddart of Swindon

The Minister said that any additions to the Schengen list would have to go through parliamentary procedure. Parliamentary procedure in this instance presumably means scrutiny by this House in particular and by another place.

We know perfectly well that scrutiny in either House means nothing. In the final analysis, if the Government have already made an agreement, whatever Parliament's decision, it does not matter. Indeed, if the discussions of both Houses are against one of the Government's proposals, that in no way binds the Government from making a decision in Europe.

Furthermore, even if Parliament disagrees with a proposal and the Government agree with Parliament and then take the matter to Europe, and the proposal is defeated by qualified majority voting, what Parliament says will mean nothing. Am I right? Or does Parliament really have a say in additions to the Schengen list?

Lord Filkin

The noble Lord invites me to go rather wide of the amendment in discussing the nature of legislative scrutiny of European agreements. Nevertheless, I shall make one or two points.

The foundation of scrutiny of European agreements is essentially based on pre-legislative scrutiny. It is based on the deposit before the relevant committee of each House of the working documents while they are in negotiation and before agreement has been reached.

That is the first stage of' the process. Those who have taken part in it will know the vigour of that process, and what an influence it has on Ministers when they are considering the stance that they will take in Europe. I speak from direct personal experience of knowing beforehand what this House or another place may think of certain measures because they have seen them. I do not say that the system is perfect, but it works well. The second stage of scrutiny is when the measures are put into primary or secondary legislation by either House.

The formal position is that the Government may have made an agreement, but this House is sovereign. It makes its decision on such matters. The Government would be seriously embarrassed if they did not get their legislation through, but the House will make its decision as it wishes.

Qualified majority voting is not yet relevant for justice and home affairs issues. It may be in the future, but that is not the case at present.

Baroness Anelay of St Johns

I am grateful to the Minister for his response. Again, he is saying: "We want flexibility", and, "Let's trust parliamentary scrutiny", when we know, as the noble Lord, Lord Stoddart, said, that in terms of parliamentary scrutiny, however good our best efforts are, they may not be the best that we should achieve. We get frustrated in those matters.

The Minister refers to the fact that the Government are opposed to the harmonisation of laws. He certainly has our support on that issue. We have concerns when he talks about generic descriptions of offences being the solution. As he knows, when the Government bring the Extradition Bill before this House, there will be debates on the definition of offences such as xenophobia, which appear to be generic in terms but which would not necessarily be applicable in this country. The Minister's explanation has not persuaded me not to return to the matter on Report. There are issues that I shall need to raise at that stage. Within the confines of Grand Committee, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 142: Page 55, line 27, at end insert— ( ) A foreign police or customs officer conducting relevant surveillance in the United Kingdom under this section shall ensure that such persons as may be designated by order made by the Secretary of State are immediately informed of the fact that the United Kingdom's border has been crossed.

The noble Baroness said: The amendment stands also in the name of the noble Lord, Lord Dholakia. It replicates the provision in Article 40.2(a) of the Schengen convention regarding informing host authorities once the border has been crossed. Article 40.2(a) states: Where, for particularly urgent reasons, prior authorisation cannot be requested from the other Contracting Party, the officers carrying out the surveillance shall be authorised to continue beyond the border the surveillance of a person presumed to have committed criminal offences listed in paragraph 7, provided that the following conditions are met: (a) the authority of the Contracting Party designated under paragraph 5, in whose territory the surveillance is to be continued, must be notified immediately, during the surveillance, that the border has been crossed". Surely, not only is that the right thing to do, but it promotes operational effectiveness, so that UK police forces will at least know that the foreign police or Customs officers are on their territory carrying out surveillance.

Why is this provision in the Schengen convention, which is a condition of compliance, not on the face of the Bill? The Government state in paragraph 156 of the Explanatory Notes that they will make an order under the powers given in new Section 76A(4) incorporating these conditions into the requirements to be followed by foreign officers. Therefore, why not put them on the face of the Bill as they are mandatory provisions of Schengen?

Finally, my practical question is: how shall we know when the border has been crossed? What will be the level of proof? I beg to move.

Lord Goodhart

I am happy to support the amendment in principle. I should like to know where, for the purposes of the clause, the border is. The customary rule is that the border where there are countries on opposite sides of an arm of the sea, such as the North Sea or the Channel, is halfway between the two. Is that the point at which technically a country becomes bound to notify the authorities here of what is happening? In practice, I assume that it would notify them earlier anyway, even if that is the point at which the border is crossed.

I have a slight doubt about the way in which the amendment is framed. It seems that the information might be provided not by the people actually conducting the hot surveillance, but by their minders who would know what was happening and would transmit the information. That is a matter of detail. In principle, I am happy to support the amendment.

Baroness Carnegy of Lour

Both my noble friend and the Minister will know that there are many places on the coast of Scotland where one cannot use a mobile telephone.

Lord Filkin

I had noticed. I always seem to go on holiday to places where one cannot use a mobile phone, but that may be my perversity.

As the noble Baroness, Lady Anelay, rightly says, the amendment reflects the condition set out in Article 40.2(a) of the Schengen convention, which states that foreign police and Customs officers conducting this type of surveillance must contact the relevant authority in the territory they are entering the moment they cross the border.

The requirement to make contact immediately is an important part of the cross-border arrangements, which is why we intend to specify that condition in the order. The order-making power will be subject to the affirmative procedure.

The provision is not on the face of the Bill because it is possible that, once we have some practical experience of the handling of this type of surveillance operation, we shall wish to add further conditions. The order-making power would allow us swifter access to Parliament to introduce further conditions if it was felt necessary. I hope the Committee feel that that is desirable to ensure that we have the tightest possible circumstances of control consistent with not frustrating the objective that we jointly seek to achieve.

As to how we shall know the border has been crossed—perhaps it is related to the question of where the border is—without straying into international law, about which I know nothing, operationally that will be hard to define. Therefore, we shall take the stance that as soon as the officers reach UK entry controls they will have to notify. Notwithstanding the comment of the noble Baroness, Lady Anelay, that it may be difficult to communicate if one is keeping someone under surveillance, if one is on a ferry one's suspect will not escape while on that ferry; so it would be perfectly possible to notify the authorities in advance. Therefore, that does not have to be left to the last moment. It may be down to common sense.

The specific legal answer is that, we would say, if the officers went past the entry point they would have breached the agreement and the law. I trust that those remarks address the questions raised on the amendments.

Baroness Anelay of St Johns

I am grateful to the Minister. I shall certainly consider what he has said between now and Report. The response from the Minister about where the border is and when someone shall be judged as having crossed the border was that the border will effectively be when he touches soil rather than where the territorial waters start. If that is the case, one could argue that if officers are carrying out surveillance in this country, having come from France, they will get five hours plus, whereas if they are carrying it out across the border from France to Belgium they will get five hours maximum. That is an interesting point that I had not thought of before because I had always thought that the five hours would start from where the territorial waters began and not when the officers landed on British soil. I need to look at that matter.

The noble Lord, Lord Goodhart, is absolutely right about the drafting of the amendment. It is purely my fault. I drafted this before Christmas and never managed to change it. I left it merely as a device to stimulate debate in Committee.

I was interested when the Minister said that the Government may wish to add further conditions after this provision has operated for a while. I can well understand the need for flexibility on the matter. Of course one wants to be able to add extra conditions if matters are working badly. My worry is that in the mean time we are guinea pigs in a system that may not be the right one and may be open to abuse. We need to consider that further between now and Report.

Lord Stoddart of Swindon

I have probably missed something. The Minister said that he did not want the amendment because the Government might want to strengthen the conditions. Is the noble Baroness satisfied that, bearing in mind what the Minister said, they could also weaken the conditions?

Baroness Anelay of St Johns

The noble Lord, Lord Stoddart, raises a vital point. One needs to ask the Government that question or the Minister may be prepared to give the assurance that they would not weaken conditions today. Perhaps I may both assist and harm the Government's case by saying that I can envisage circumstances where the Government might put forward alterations which they maintain would toughen up the conditions but which might unintentionally end up weakening them.

I do not know whether the Minster wishes to reply at this stage, or whether he would like to leave the matter until Report. It looks as though he is going to leave it until then. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 143: Page 55, line 27, at end insert— ( ) A foreign police or customs officer conducting relevant surveillance in the United Kingdom under this section shall be prohibited from—

1. (a) entering a private home or any other place not accessible to the public, and
2. (b) challenging or arresting a person under surveillance."

The noble Baroness said: Amendment No. 143 stands in my name and that of the noble Lord, Lord Dholakia. At this stage we feel that it is essential that there should be clarity on the face of the Bill. We return to more of the mandatory provisions of the Schengen convention that are not on the face of the Bill. In this case it is Article 40.3(e), which states: The surveillance referred to in paragraphs 1 and 2 shall be carried out only under the following general conditions: (e) Entry into private homes and places not accessible to the public shall be prohibited".

In paragraph 156 of the Explanatory Notes the Government say—and the Minister in his general introduction to Clause 83 repeated and expanded on this matter—that they will make an order under the powers given in new Section 76A(4) incorporating these conditions into the requirements to be followed by foreign officers.

The Minister earlier appeared to be saying that these prohibitions would be subject to statute. We are saying, "Here is the statute. This is the right place to put it and at the moment we cannot see a good reason why these prohibitions should not be inserted on the face of the Bill". I beg to move.

Lord Renton

I warmly support this very important amendment. Even our own police are not always free to enter a person's private house without having prior authority. The Government should regard this matter with great sympathy. There is one very minor drafting amendment that I would suggest. At the end of paragraph (a) instead of "and" the word should be "or".

Lord Goodhart

Once again we strongly support the amendment. We support this amendment more than any other in the group. It prevents the exercise of a power that would enable officers carrying out hot surveillance to enter people's houses or to arrest people. Clearly, in no circumstances should they do so. We think that the case is very strong for putting this matter on the face of the Bill. This amendment directly affects individual people. It does not merely regulate the communications between the officers carrying out the surveillance and the authorities in this country; it directly restricts the powers of those carrying out surveillance to do certain things that would impinge directly on the lives of ordinary people. It is spelled out in black and white in the convention and we think the case therefore is overwhelming for putting this issue on the face of the Bill.

Lord Monson

I agree with the noble Lord, Lord Goodhart. This is a vital amendment. The noble Lord, Lord Filkin, will correct me if I am wrong, but as I understand the situation, a police officer in Vermont who pursues a suspect over the border into New Hampshire has no powers of arrest in New Hampshire. Therefore, why should someone coming from France have a power of arrest in the United Kingdom?

6.45 p.m.

Lord Stoddart of Swindon

I support very much this vital amendment. In the light of the comment by the noble Lord, Lord Filkin, at the outset that officers may not enter private property or arrest, I feel sure that he will accept the amendment.

Lord Carlisle of Bucklow

Since the rest of the Committee supports the amendment, I shall add to the unanimity by saying that I do also.

Lord Filkin

There is always one fly in the unanimity ointment. On this occasion, and not for the first time, it will be me.

In essence, there is not much distance between our positions. We are all clear that, in the limited circumstances of foreign officers coming here, they will be prohibited from entering a private home. We intend to prohibit any such action by using the powers in 76A(4) through the affirmative resolution procedure. That is a clear statement of policy commitment by the Government. The matter will come before the House to ensure that it is adequately complied with.

Nothing in the Schengen arrangements makes it possible to challenge or arrest a person under surveillance. Rather, the Schengen handbook makes clear that foreign officers in those circumstances do not have powers of arrest and should not seek either to arrest or to approach a suspect. Therefore, we have no intention to give foreign officers any powers of arrest.

They have no powers of arrest at present; therefore it does not need to be spelt out that they cannot have one.

Baroness Anelay of St Johns

Naturally, I am very disappointed by the Minister's response. I thank him for his explanation of the Government's approach. I am grateful to my noble friend Lord Renton for his comment on drafting. I always take everything that he says on drafting to heart. I will come back with something better next time—because there will be a next time. I am grateful for the support of the noble Lords, Lord Goodhart, Lord Monson, Lord Stoddart and Lord Carlisle.

As the noble Lord, Lord Goodhart, said, there is an overwhelming case for putting these matters in the Bill. I started by saying that there were questions of quid pro quo. What price do we pay for this yielding of our own rights? It would be a price too far. The Minister says that there is no problem and that we have given a commitment to make the provision by order. It is not appropriate to do so by order. We know about it; the Government have given a clear commitment; it is straightforward; it is right to do it; and so it should be on the face of the Bill.

If we were not in Grand Committee, I would not withdraw my amendment. But I follow the Committee rules. Notwithstanding my protests that I feel I am doing the wrong thing simply because of procedure, I must beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Dean of Harptree)

If Amendment No. 144 is carried, I cannot call Amendments Nos. 145 or 146.

Baroness Anelay of St Johns moved Amendment No. 144: Page 55, leave out lines 28 to 32.

The noble Baroness said: I shall speak also to Amendments Nos. 145 to 147. These amendments are also in the name of the noble Lord, Lord Dholakia.

Amendment No. 144 refers to the conditions that will be laid down by the Secretary of State for the operation of "hot surveillance", as the noble Lord, Lord Goodhart, so rightly called it. Are they the only conditions in the Schengen convention? If so, why not put them on the face of the Bill? The Explanatory Notes do not tell us whether additional conditions beyond those in the convention are being considered. Earlier, in response to other amendments, the Minister said that the Government want flexibility so that if tougher conditions need to be imposed, they may be. But, at this stage, we need to know whether any discussions are going ahead within the remit of these amendments. Are the Government aware that additional conditions might ultimately be imposed?

Amendments Nos. 145 and 147 cover the instance where surveillance is to be "lawful for all purposes" if it complies with the conditions to be laid down in secondary legislation. Can, and will, those conditions allow types of surveillance that would not normally be allowed under UK law? Other noble Lords have said in respect of other amendments that it would be improper to give powers to foreign officers and Customs officers that are not available to our own police enforcement agencies and Customs officers.

Amendment No. 146 reflects my concern about whether, under this Bill, the conduct of a foreign police officer can be always lawful. The Bill implies that they can never do anything unlawful. That is extraordinary; it cannot be the case. There must be occasions when foreign officers' actions would be unlawful. For example, what would be a police officer's position if he committed a criminal offence in the course of surveillance? Earlier, the Minister said an officer who carried a gun in this country would be arrested. I assume that some actions would be considered unlawful. I beg to move.

Lord Filkin

The amendments all appear to deal with what would constitute lawful surveillance under the provisions, which is clearly important. I hope to be able to clarify the position.

The purpose of inserting new Section 76A(5) into RIPA is to make lawful the act of cross-border surveillance, both in ECHR terms and under UK law. That type of surveillance would not contravene those fundamental rights. As the Committee will be aware, surveillance in the UK is strictly governed by the Regulation of Investigatory Powers Act 2000, which, therefore, we need to amend to make this type of surveillance lawful, until UK officers either take it over or instruct foreign officers to cease doing so. The clause applies only to types of surveillance that could otherwise be authorised under RIPA. That is affected by the definition of "relevant surveillance" in Section 76A(2). Legality prevails only in those circumstances.

The aim of Amendment No. 147 seems to be a desire for the lawfulness of the surveillance to be conditional on similar surveillance being lawful if undertaken in the UK. However, Schengen requires that, provided that the surveillance is lawful abroad, it should be automatically lawful in the UK, so long as it fulfils the conditions specified in Article 40.2, which I shall deal with. The amendment is inconsistent, therefore, with the concept of automatic authorisation subject to the conditions.

The provisions will not allow foreign officers to conduct themselves in a way that would be unlawful for UK officers. As I have explained, surveillance will be automatically authorised only in limited circumstances. First, it must be lawful in the country of origin, and foreign officers will be obliged to contact UK police as soon as the border has been crossed. Secondly, the type of urgent surveillance may be carried out only if the person under surveillance is suspected of having committed one or more of a limited number of serious extraditable offences, which I referred to earlier. They will be on the record. Thirdly, cross-border surveillance under the Bill will be subject to strict conditions reflecting the wording of the Schengen convention. The conditions include that foreign police and Customs officers conducting this type of surveillance must not enter private homes and may not challenge or arrest suspects. As I have noted in our discussions on earlier amendments, we are making that provision through an order-making power subject to the affirmative resolution procedure.

I shall respond to some specific questions. No extra conditions are contemplated. But, as with any such arrangement, it shall be kept under review to see whether it works in practice and is adequate. On the question of whether all an officer's actions must be lawful, paragraph 40.3(a) of the Schengen convention requires the officer to comply with the law of the contracting party in whose territory they are operating. There is no resiling from that in any respect. For those reasons, and although we sympathise with the thrust of the amendment, legality is tightly challenged on a supervising officer, and it is necessary to draft the legislation in this way.

Baroness Anelay of St Johns

I am grateful to the Minister for addressing my immediate questions. I will look carefully at the response. He will be aware from my comments at Second Reading that I get uneasy when we give permission for foreign officers and Customs officers to carry out surveillance here that would be lawful in their own countries but unlawful if carried out by our own officers. There may be some misunderstanding on my part, given the reactions expressed in the Chamber previously. I shall look carefully at the matter between Committee and Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 145 to 147 not moved.]

Baroness Anelay of St Johns moved Amendment No. 148: Page 55, line 32, at end insert'— (4B) Nothing in this section shall render lawful the carrying of a firearm within the United Kingdom by a foreign police or customs officer.

The noble Baroness said: With the leave of the Committee, I shall speak also to Amendment No. 149. The amendments are tabled in the name of the noble Lord, Lord Dholakia also.

These amendments relate to the carrying of guns, to which we referred in the opening statement on Clause 83. They relate to the carrying of guns by foreign officers who are undertaking "hot surveillance" operations. As the Committee will have perceived on reading the two amendments, they are alternatives. Amendment No. 148 would prohibit the carrying of a gun by a foreign officer on UK soil. Amendment No. 149 would allow the Secretary of State acting personally, or a chief officer of police acting personally, to give authorisation for the carrying of firearms on "hot surveillance" operations. That could be given only in circumstances in which such authorisation would be given to a UK police officer.

New subsection (4E) replicates with a slight amendment—inserting "reasonably" instead of "legitimate"—Article 40(3)(e) of the Schengen Convention, which is yet another provision that is not on the face of the Bill. Given that that article of Schengen states that officers can carry their guns except when specifically denied permission, does that mean that Parliament cannot pass Amendment No. 149, which would put in place the reverse situation? It would provide that officers cannot carry guns except when specifically granted permission. Will the noble Lord confirm the situation?

The noble Lord, Lord Stoddart of Swindon, earlier raised pertinent questions about the carrying of guns in this country. What happens if someone engaged in hot pursuit, properly, is part of an undercover team? I can see circumstances in which I would wish to argue against the surrender of handguns on entering the country. We need to discuss and resolve the issue between now and Report. I do not want a police officer carrying out a proper undercover surveillance operation to be put in a life-threatening situation whereby legislation requires them to publicly lodge their police-registered firearm before coming here to carry out surveillance in England. There must be a way of preventing them from carrying firearms into this country in the first instance, and then using them, without jeopardising their undercover operations and their lives. The Bill as drafted at present does not properly protect the public in this country. We must also protect police and Customs officers who may be carrying out a very dangerous assignment. I beg to move.

Lord Goodhart

We strongly support the principle behind the amendment; namely that foreign officers carrying out surveillance in this country should not carry arms with them. Equally, there is force in the problem mentioned by the noble Baroness, Lady Anelay, that the requirement on foreign officers to dispose of a weapon they carried lawfully in the country they left may destroy the possibility of surveillance or put their lives at risk.

I want to raise another point, which the Minister may not be able to answer immediately. Would a blanket prohibition on the carrying of weapons by foreign surveillance officers be compatible with the terms of the 1990 convention? Paragraph 3(d) of Article 40 of the convention says: The officers carrying out the surveillance may carry their service weapons during the surveillance save where specifically otherwise decided by the requested Party". That indicates that there is a general right to carry firearms but that, when the application is made under paragraph 1—an advance request for authorisation—or paragraph 2—an urgent request—the requested party may, case by case, say, "No. We will only give you authority provided you do not bring arms with you". I find it difficult to see how a contracting party such as the United Kingdom can say in advance that in no circumstances can anybody carry service weapons, even before a request has been made and considered. That is, arguably, inconsistent with paragraph 3(d).

I appreciate that it may be a difficult legal point. There may be a short answer, or it may need further consideration. I would be interested to know the answer.

7 p.m.

Lord Carlisle of Bucklow

My noble friend Lady Anelay of St Johns said that Amendments Nos. 148 and 149 were alternatives. Amendment No. 149 is the more attractive alternative, not only because of what the noble Lord, Lord Goodhart, said about whether there was a power to give a blanket refusal to allow arms to be carried.

We must be realistic about the degree of violence that occurs today involving not only terrorists but drugs gangs. Someone from another country who is carrying out surveillance in this country for a short time may put his life at risk, if he continues that surveillance without being armed. He will have had permission to be armed in the country from which he comes, and, with the amendment, he could apply for permission to maintain possession of those arms in particular circumstances. There should be some provision for that, if we are to deal with the wider use of firearms against the police.

Lord Stoddart of Swindon

I tend to favour Amendment No. 148, which would prohibit the carrying of firearms in any circumstances, although I understand the reasons behind the following amendment. The reasons why I favour Amendment No. 148 go back to the question of whether we are talking about hot pursuit or surveillance. If it is merely surveillance, there is unlikely to be contact with the criminal. In those circumstances, I cannot see the point of carrying firearms.

I know that that is an arguable point—how close is the surveillance? However, bearing in mind that British police are permitted to carry firearms only in unusual and dangerous circumstances—even then, it will be done only by highly trained people—it would be wrong to allow foreign policemen to carry firearms under less stringent conditions. We must consider that.

Lord Monson

It would be helpful for the Committee to know how often United Kingdom customs officers, as distinct from police officers, carry firearms. I have never heard of them doing so, but I may be mistaken.

Lord Filkin

It has been an interesting and important debate and has taken a slightly different turn from what we might have expected.

With regard to Amendment No. 148, I must say that we already have laws that prohibit such activity, so there is no need for any further legislation to prevent foreign officers from bringing firearms in. I appreciated the thoughtful way in which the noble Baroness, Lady Anelay of St Johns, raised the issue behind Amendment No. 149. She got us to think about the risks in such situations and reflect on the safety of the foreign officer and of our public.

The noble Baroness was right to raise such considerations. The sort of surveillance operations that we are discussing will involve people suspected of serious criminal offences. Frequently, they will be serious, professional criminals, and, frequently, they will be armed. That is the unfortunate reality of life. However, I am, at this point, less persuaded that that means that there should be the sort of discretion envisaged in Amendment No. 149. There are several reasons for that. Partly, it is because we take our stance in principle alongside the noble Lord, Lord Stoddart of Swindon, which may surprise him. It seemed right to us that we should have a clear-cut situation. In addition, if the UK considers that there is a high level of risk with someone coming in who is known to be armed, that person can be arrested on arrival at the entry port.

If the surveillance officer is a foreign police officer, he will, in most situations, be in his car tailing another car, until such times as UK undercover cars can pick up the surveillance. The foreign officer would not be seeking to get close to or arrest the person, so, although I will not say that there would be no risk, it would not be a situation of challenge in which the officer is trying to arrest the person or corner him. There is some risk with anyone who carries a gun, but there is less risk in the circumstances that we are discussing. Finally, UK officers will take over the surveillance immediately, in most cases, or within a maximum of five hours or not at all. They will often—if not always—have guns in their car for high-risk situations of the type that we are discussing.

For those reasons, it is not necessary explicitly to prohibit foreign officers from carrying firearms. Current legislation already does that. We are not persuaded that the level of risk that the noble Baroness properly referred to is such as to justify the making of Amendment No. 149.

I cannot tell the noble Lord, Lord Monson, how frequently UK police officers carry arms. It is certainly done more frequently than it used to be, which is of concern to us all.

Lord Monson

I asked about customs officers.

Lord Filkin

I am sorry. I shall write to the noble Lord with as open an answer as I can give in the circumstances.

Lord Carlisle of Bucklow

Has not the Minister, in a way, contradicted his own argument? If the British police officers or customs officers who will take over the surveillance are armed or have the authority to be armed because the risks are so great, it seems hard that the officers carrying out the surveillance in another country cannot be armed on the same basis. The risk to them is as great.

The Minister implied that surveillance officers would usually be armed in serious cases such as those that we are considering. It would be reasonable in such cases to have a means whereby—with permission, in particular cases and for a short period—the officer from another country could have the same protection as we provide for our own police force.

Lord Filkin

The situations are not parallel or identical. Foreign police officers coming in in the limited circumstances that we are describing have only a surveillance role; they have no powers of apprehension, arrest or challenge. They are seeking to have undercover, covered surveillance, without making their presence apparent to the person being tailed. I should not stray into operational matters, but I expect that there would be situations in which undercover UK police officers taking over the surveillance would have guns in their car. However, that is a different situation. If the person being tailed did anything that British police officers thought infringed UK laws or posed a risk to citizens, those officers would have a power of apprehension or arrest. The two situations are not the same.

It is perfectly right that UK police officers should have such powers in such circumstances. I see less need— if any—for a foreign officer in a surveillance-only role to have them.

Lord Goodhart

The Minister has not answered my question about whether a general prohibition on carrying weapons was compatible with the Schengen Convention.

Lord Filkin

I am sorry. I had the answer, and, in the shuffling of papers, I overlooked it.

A nation's decisions on the application of Schengen need not be made case by case. It will be permissible for the UK to prohibit the carrying of service weapons in general, rather than make case-by-case judgments.

Lord Goodhart

Is that answer based on our interpretation of Article 40, or is there something specific somewhere other than Article 40 that makes it clear that we have that power?

Lord Filkin

At this point, I shall take the noble Lord's invitation to stop and write to him. That would be the most appropriate way of dealing with that further question about the basis of our judgment.

Baroness Anelay of St Johns

I am grateful to all noble Lords who took part in that short debate on this vital matter. I am sure that we will return to it on Report. I heard what my noble friend Lord Carlisle of Bucklow said about the preferability of Amendment No. 149 and what the noble Lord, Lord Stoddart of Swindon, said about the preferability of Amendment No. 148. We need to resolve some difficult issues before I decide which amendments to bring back and how to draft them.

The noble Lord, Lord Monson, raised a crucial issue. The provisions of the clause affect the role and powers not only of police officers but of customs officers. In reports on the Bill—such as they were— when it was published, I noticed that there was little realisation in the public domain, in the press or on TV that the powers would go to customs officers as well as police officers. That realisation is also not yet established among our colleagues in the House who have not had the advantage of taking part in the Commit tee stage. There ought to be a broader debate on the role of customs officers. I was pleased that the noble Lord highlighted that issue.

I am, as ever, grateful to the Minister for his response, but there are issues that I must consider carefully, to ensure that firearms are not carried inappropriately, although there may be occasions on which safety means that they should be carried. That is a dilemma that I must resolve in my amendments, before I try to persuade the Government that they are needed.

The Minister said that surveillance does not involve challenge. The reality of surveillance is that things can go horribly wrong in these groups. One can be betrayed. An undercover officer who is challenged may be uncovered. In those circumstances, for the sake of his life, he may want to use the firearm in his possession. We need to take such circumstances into account and consider how properly to deal with them. At this stage, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 149 not moved.]

7.15 p.m.

The Deputy Chairman of Committees (Lord Dean of Harptree)

I should tell the Committee that if Amendment No. 150 is carried, I cannot call Amendment No. 151.

Baroness Anelay of St Johns moved Amendment No. 150: Page 55, leave out lines 33 to 35.

The noble Baroness said: In moving Amendment No. 150, I shall also speak to Amendment No. 151, both of which are in my name and that of the noble Lord, Lord Dholakia. Both amendments address the issue of exemption from civil liability which is afforded under the proposed new Section 76A(5). Subsection (5) states: An officer is not to be subject to any civil liability in respect of any conduct of his which is incidental"— incidental is the crucial word— to any surveillance that is lawful by virtue of subsection (4)".

I have difficulties with the use of the word "incidental" and with how it is defined. The word seems to be applied almost casually. I have therefore knocked out the word and said that the action should be "a necessary element of" the surveillance. Without the change, citizens of this country would not have protection from activities that result from the officer's carelessness rather than from the surveillance. The officer could, for example, come from France and not be particularly accustomed to driving on the left-hand side of the road. He might drive on the right-hand side of the road and knock someone down. Would the injured person therefore have no redress? I beg to move.

Lord Stoddart of Swindon

This simply cannot be right, can it? As the noble Baroness, Lady Anelay, said, a police or customs officer could come over here, drive on the wrong side of the road and kill someone, but not bear any civil liability. That simply cannot be right. I ask the noble Lord, Lord Bassam, to assure us that, if that happens, even if the individual officer has no civil liability, it will be possible for someone who has harm caused to his person or property to sue the Government or another authority so that he can be compensated.

Lord Carlisle of Bucklow

If it does mean what the noble Lord, Lord Stoddart, says, surely the provision gives to the officer coming from abroad far more immunity from civil liability than would apply to an officer in this country. There is the well-known case—the name escapes me for the moment, but I am sure that the noble Lord, Lord Goodhart, will remember it; I think that it is Ince—in which an officer knocked over someone at a crossroad when going to answer a 999 emergency call. The case gave rise to a claim for damages and had a lot to do with the Criminal Injuries Compensation Authority. I cannot see why we should enable officers from abroad to avoid liability where their activity, although incidental to a surveillance, is nevertheless negligent.

Lord Bassam of Brighton

It may help the Committee if I explain why we need these provisions and this particular wording.

For UK officers carrying out surveillance, the most obvious example of incidental conduct is trespass. For example, an undercover officer might follow the suspect into a shopping centre or supermarket. As the officer would have no intention of doing any shopping, he might be committing trespass.

Currently, the Regulation of Investigatory Powers Act would give him or her protection from any civil trespass claim that might arise. Consistent with RIPA in wording and spirit, new Section 76A has two elements: the authorised conduct—the actual carrying out of the surveillance—is made lawful for all purposes; and officers are protected from civil liability for any incidental conduct—hence the phraseology—by virtue of subsection (5), the subject of this amendment.

Subsection (5) is designed to give foreign officers authorised under new Section 76A the same protection from, say, trespass in shopping centres as I have described.

I should stress that the order to be made under new Section 76A(4) will provide that foreign officers conducting surveillance under new Section 76A should not enter private homes and places not accessible to the public. So incidental trespass should arise only in very limited circumstances. But it is a possibility, which is why we need to make provision for it. There may also be other cases where foreign officers incur civil liability for conduct incidental to their lawful surveillance.

As we have said before, the key to Schengen cross-border surveillance arrangements is reciprocity. We need to provide foreign officers with the same protection as that afforded to UK officers undertaking domestic surveillance. Article 40.3 of the Schengen convention sets out arrangements on civil liabilities, so we can expect reciprocal arrangements for our officers operating abroad in broadly similar circumstances.

As for vehicles, we consider that "incidental" will not include negligent or reckless conduct by foreign officers who are conducting surveillance. "Incidental" means acts that are required by the surveillance. We do not consider that it would prevent claims for injuries caused by car accidents involving foreign officers operating here. So there is redress in those circumstances.

Lord Monson

Does the Minister agree that nothing he has said detracts from the merits of Amendment No. 151? The alleged trespass of officers going into a supermarket would be "a necessary element of their entering the supermarket. Amendment No. 151 tightens up the provision and provides extra safeguards. I see no reason for the Government resisting that particular amendment.

Lord Bassam of Brighton

I have set out the position as we see it, and it is important to understand why we have used that particular wording. I think that my comments in response to the specific point and example given by the noble Baroness, Lady Anelay, make it clear that there would be redress. Those circumstances are covered by Clause 85. I think that I have answered the point. However, the point does not necessarily relate to this clause and the way in which it is worded.

Lord Stoddart of Swindon

In order that we can get it on record, the Minister has said that there will be redress, but redress against whom or against which authority? That is the important thing. Where do people go for redress?

Lord Bassam of Brighton

The answer to that is: the Director-General of NCIS.

Baroness Anelay of St Johns

That was helpful; I think that there is a brief reference to it in the Explanatory Notes, but it is very helpful to have it on the record. I shall look carefully at the helpful response from the Minister. However, I still have concerns about use of the word "incidental" when it is saying that any conduct which is incidental to the surveillance may let someone escape liability. The Minister was trying to be helpful by saying that negligent or reckless conduct would not receive the exemption. There could, of course, be lower tests than "negligent" or "reckless" that could still cause damage. I think that we need to consider that. However, it is a complex matter. At this stage of the evening, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 151 not moved.]

Lord Filkin

My sense is that the Committee might find this a convenient time to adjourn until Monday at 3.30 p.m.

he Deputy Chairman of Committees

The Committee stands adjourned until Monday 3rd February at 3.30 p.m.

The Committee adjourned at twenty-four minutes past seven o'clock.