§ [Relevant documents: The First, Third and Seventh Reports from the Joint Committee on Human Rights of Session 2002–03, on its scrutiny of Bills, HC 191, HC 375 and HC 547.]
§ Order for Second Reading read.12.44 pm
§ The Minister for Citizenship and Immigration (Beverley Hughes)
I beg to move, That the Bill be now read a Second time.
The Bill implements measures in seven separate European Union agreements. The first is the Schengen implementing convention of 1990. As the House knows, the UK applied to participate in 1999 and was accepted by the Justice and Home Affairs Council in 2000. The other agreements are the mutual legal assistance convention, which updates the provisions of the 1959 convention; the protocol to that convention, finally adopted in 2001; the framework decision on the execution in the EU of freezing assets and evidence; the framework decision on combating terrorism; the convention on driving disqualification; and the framework decision on non-cash means of payment agreed in May 2001.
UK Ministers were involved in negotiating all those measures apart from Schengen, and our application to join the police and judicial provisions of Schengen, together with all the other measures drawn into the Bill from the six other agreements, have been considered through our own domestic scrutiny process. Parliament has previously decided that justice and home affairs agreements should be implemented through primary legislation—hence, the Bill before us today, which has already been examined by the Joint Committee on Human Rights and in another place.
§ Simon Hughes (Southwark, North and Bermondsey)
As the Minister knows, she has support from the Liberal Democrat Benches for the process in relation to the Bill. Are the Government taking up in the EU the processes in relation to other legislation—a matter raised sometimes with her colleague, the Under-Secretary of State for the Home Department, the hon. Member for Coventry, North-East (Mr. Ainsworth) and elsewhere—whereby we are often asked for views on legislation in draft that has already been decided by the Council because of the time delay, and where the final decision does not require consent from this or any other national Parliament, or from the European Parliament?
§ Beverley Hughes
I know that views have been expressed about that. The hon. Gentleman will agree that we must get the timetabling of those matters right and more appropriate, so that Members' views can be expressed before those agreements are finalised, rather than afterwards, as he said, because of delays. I take his point and I understand that the issue is being addressed.
The Bill marks a significant advance in co-operation against serious crime and terrorism in the European Union. It will enable us to work more closely and 801 effectively with our EU partners, and more widely outside the EU. It will make it easier to investigate and prosecute cross-border criminal activity. By implementing key EU measures directed at terrorism and serious crime, it demonstrates firmly our commitment to greater co-operation on these matters with our EU partners. The measures on driving disqualification will promote greater road safety across the EU.
The Bill comes to this place after careful and helpful scrutiny in another place, where the Government responded to some of the concerns expressed and acted on them to provide greater clarity and reassurance. Thus some key order-making powers are now subject to affirmative rather than negative procedure, and conditions attached to cross-border surveillance by foreign officers are now written into the Bill.
We are already working effectively with our EU partners through Europol and bilateral joint operations, but we need to do more. There are often too many obstacles to international investigations that serve only to protect the criminal. As Members know, bringing multinational gangs to justice may involve several trials in different countries, each with its own criminal procedures. Ensuring success for such complex procedures means cutting down on the obstacles that block effective cross-border co-operation. That is what the Bill sets out to achieve.
The Bill will make the changes needed to enable the UK to participate in the non-border aspects of the Schengen convention. The Schengen arrangements provide a very clear framework for effective co-operation, especially for cross-border police operations.
I should like to explain in more detail what the Bill contains and will achieve. Part 1 will modernise our arrangements for providing mutual legal assistance and bring them into line with new proceedings introduced by Schengen and by the mutual legal assistance convention agreed in May 2000. MLAC, as it was called, was part of the European Union's so-called anti-terrorism road map, which was agreed after 11 September. Mutual legal assistance is the formal process by which countries request and provide assistance in obtaining evidence located in one country to assist in criminal proceedings in another. Effective and swift mutual legal assistance arrangements are essential if we and our EU partners are to run successful cross-border investigations and prosecutions.
MLA is not new—we have done it for many years—but the new provisions will speed up the process and reduce the scope for delay in respect of international cooperation. They will do so, for instance, by allowing UK prosecutors to send requests for evidence directly to courts in other EU countries, rather than going through a central authority system because of an obligation always to do so. Some of the key modernising provisions will also apply to countries outside the EU. For instance, we expect that the ability to provide other countries with evidence by TV link in mutual legal assistance cases will be of most use in cases involving countries outside the EU, because greater distances obviously make travel less feasible.
802 The Bill also introduces mutual recognition of orders to freeze evidence, as provided for by the EU draft framework decision on the execution of orders freezing evidence. We see that as a considerable step forward. It will significantly speed up the process of securing valuable evidence. Mutual recognition takes mutual legal assistance one step further by recognising directly, as between EU member states, a request made by a court, thus enabling a direct response to be made with the minimum of formality. The UK has been and is a keen supporter of the principle of mutual recognition, which both speeds up co-operation and respects the standards as well as the diversity of legal systems.
§ Jon Trickett (Hemsworth)
I am listening carefully to my hon. Friend. The Bill is obviously complex and detailed, but will it afford protection to people such as my constituent, June Harrison, whose husband was killed by a French lorry driver in my constituency? The lorry driver was found guilty in Pontefract magistrates court and his sentence consisted of two elements: suspension of his driving licence and a small and inadequate fine. The driver, Monsieur Boulanger, lawfully returned to France, where he is free to continue driving, as the suspension of his licence does not apply there. He has refused to pay his fine on the ground that we drive on the wrong side of the road. Will the Bill help to correct such injustice, which brings the law into disrepute and questions the notion that we are partners with France?
§ Beverley Hughes
The answer to my hon. Friend's general question is yes—the Bill will certainly try to correct injustice. On the specifics of the case that he cites, if he is using the term "suspension" to mean that the lorry driver was disqualified, I can say that in this country the Bill provides for mutual recognition of disqualification between different EU member states, and that will also be implemented in other member states. Such provision would have applied in the case that he mentioned and brought some redress to the family.
Concern was expressed in another place that the Bill did not provide sufficient safeguards to protect the position of the individual in respect of the new arrangements. We listened to those concerns and have introduced extra protection in respect of double jeopardy to ensure that orders freezing evidence are dealt with promptly and to strengthen the role of UK courts in protecting the position of people giving evidence by television link.
Criminals operating across international borders are often involved in financial crime and money laundering. It is recognised that the ability to obtain comprehensive banking information from other EU countries would significantly assist domestic law enforcement. By agreeing on the protocol to the mutual legal assistance convention, the EU has created a reciprocal obligation between member states to respond to requests for financial information. The Bill will implement the protocol, allowing us to respond to requests from other EU countries for information relating to criminal suspects' bank accounts. The requests will reflect the new investigative tools introduced by the Proceeds of Crime Act 2001.
803 Part 2 deals with terrorism. As criminals, terrorists do not respect national boundaries. We need effective measures with persuasive penalties that are imposed consistently across the EU. Following the events of 11 September, the EU agreed a framework decision requiring all member states to introduce extensive antiterrorism legislation. As the UK already has wide-ranging domestic anti-terrorism legislation—it was largely the starting point for the Commission's proposal—we are broadly compliant with the body of the framework decision, so implementing the measure does not require us to create any new offences or penalties. It simply requires us to take extra-territorial jurisdiction over a wider range of terrorist offences than we do presently. The Bill therefore takes extra-territorial jurisdiction over terrorist offences committed overseas against UK nationals, diplomatic staff and diplomatic premises. It will also take such jurisdiction over terrorist offences committed overseas by UK nationals. We supported that measure during its negotiation in Brussels and welcome this opportunity promptly to implement the changes needed to bring it into force.
Schedule 4 will also help us tackle terrorism by introducing arrangements to allow us to transmit abroad orders freezing terrorist assets and instrumentalities— funds and assets used to commit terrorist offences. Likewise, we will be able to act on orders from other EU member states. Allowing mutual recognition of those orders is a significant step forward, as it will make it easier for us to freeze terrorist assets even when they have been moved out of the UK, and thereby reduce terrorists' ability to operate effectively.
Part 3 deals with driving disqualifications—an issue raised by my hon. Friend the Member for Hemsworth (Jon Trickett) in relation to a specific case. It does not seem right that a person who commits a driving offence for which they are disqualified while abroad should be able to escape disqualification when they return home to their usual state of residence. The EU driving disqualification convention is therefore intended to promote the principle that drivers should abide by the rules of the road no matter where they are driving. That will help to promote greater road safety across the UK. There are safeguards to ensure that the arrangements are not misused and do not lead to unfair decisions. The process for notifying a disqualification will apply only once any appeal has been completed, and there will be a right of appeal in the UK against recognition of foreign disqualifications.
Part 3 also allows for recognition in Great Britain of driving disqualifications imposed in Northern Ireland, the Isle of Man, the Channel Islands and Gibraltar. The fact that none of those jurisdictions recognises driving disqualifications imposed by any of the others is, as I hope hon. Members will agree, an anomaly whose remedy is long overdue. A more uniform system across the UK is obviously also essential for effective implementation of the wider EU measure.
§ Mr. Elfyn Llwyd (Meirionnydd Nant Conwy)
I am listening carefully to the hon. Lady and I think that what she is saying is very important. I was involved in a case in which it took more than 18 months to get a French national to appear in a UK court to answer a charge of 804 causing death by dangerous driving. What measures does the Bill contain that will assist in ensuring that that sort of farce is not repeated?
§ Beverley Hughes
That particular example is the province of the Extradition Bill, as I am sure the hon. Gentleman knows. The Bill before us deals with situations in which evidence rather than the actual procurement of the alleged perpetrator is needed to support a case in one country where the evidence is in another. That may be relevant in cases such as the one to which he refers.
§ Mr. Bill Wiggin (Leominster)
I think that the Bill specifies that a prisoner has to give their permission. Does the Minister not feel that that might be a bit too lenient, and that the prisoner should not have to do so, or is such consent essential for the rights of the prisoner?
§ Beverley Hughes
The hon. Gentleman is right. Chapter 5 of the Bill provides for an extension to measures that already exist to enable prisoners to be produced to give evidence. It is already possible for a country to ask for a prisoner to be transferred to it from another country, to assist in an investigation in the country making the request. The new provisions will extend that power somewhat, and will mean that a country can ask for a prisoner to be transferred from its own territory to another country, to assist in its own investigations.
I need to get back to the hon. Gentleman on the issue of consent. I think that he is right in saying that a prisoner will have to give consent. He made the point that, in that eventuality, that might be taking the principle of consent too far, but that was the agreement under the mutual legal assistance provisions, and we have no scope to go further than that. It is important that, whatever arrangements we agree to, there should be consistency across the EU states in terms of that provision.
§ Mr. John Bercow (Buckingham)
I hope that the hon. Lady will agree that the minimisation of formality to which she referred some minutes ago would never be a euphemism for the avoidance of proper notification or consultation. In the light of the concern expressed by Liberty and other organisations about the surveillance provisions in the Bill paving the way for arbitrary police action from other jurisdictions against British citizens on our own soil, will she clarify the circumstances in which hot surveillance operations might need to be conducted without advance notification to the British authorities?
§ Beverley Hughes
Certainly. I am just coming to that point, if the hon. Gentleman can wait a moment. On what he has just said, however, there is a great deal of misunderstanding about the proposals for cross-border surveillance. Let me say at the outset—I shall stress this point later—that these provisions do not cover hot pursuit exercises, which are covered by a different part of the article. This measure covers pursuit in an emergency, prior to the setting up of a joint investigation team.
Part 4 of the Bill introduces two key Schengen measures. It ensures that our participation in the Schengen information system will be rigorously 805 safeguarded, by giving the Information Commissioner new powers independently to inspect the UK national sections of the Schengen information system. Creating a statutory basis for the role of the Information Commissioner in this way is a new departure. It is required by the Schengen agreement, but we are also clear that it is right to create this extra level of protection for the rights of the individual when the UK is participating in new international systems.
Part 4 also deals with Schengen cross-border surveillance. Although this has proved the most contentious part of the Bill, we believe that these measures are proportionate and that proper safeguards have been attached. Criminals do not stop at national borders, and if our law enforcement agencies are to investigate them and gather the evidence that they need, they, too, must be able to carry on past our national boundaries. That means that we must have fast and effective arrangements for agreeing cross-border surveillance operations. The measures in the Bill will allow surveillance operations to continue only so that UK officers can take over an operation within the five-hour period specified, if not immediately on the arrival of the foreign officers in the UK.
The UK police have welcomed the Schengen arrangements because they are reciprocal, and joining them will make it much easier for us to mount cross-border surveillance operations and to pursue UK criminals who are active internationally.
§ Beverley Hughes
It might help the hon. Gentleman if I finished this paragraph first.
I want to make it clear what the measures do not include. Clause 82 does not licence foreign officers to roam at will around the country. The foreign officers will have no power of arrest, because nothing exists in UK law to give them such a power. The clause simply provides that, in circumstances in which a person suspected of serious criminal activity is heading for the UK from continental Europe, and in which, for whatever reason, our own officers are unable to take over the surveillance themselves the moment the targeted person lands in the UK, the foreign officers will be able to maintain their surveillance for up to five hours. The alternative would be to risk losing valuable intelligence on key criminal suspects. This measure covers neither hot pursuit, which has to take place over land borders, nor undercover surveillance. It simply provides for the temporary extension of an ongoing operation for up to five hours until the UK police either join the operation or, having risk-assessed it, stop it.
§ Gregory Barker
On that point, will the Minister explain why five hours was deemed an appropriate period of time, as opposed to three, or six, or a full working day? Obviously, the amount of time needed will depend, for example, on the time of day at which the surveillance officer enters the country. I am interested to know why the Government have chosen five hours—not a minute more, not a minute less.
§ Beverley Hughes
That was a matter of some discussion and judgment, and of trying to strike a 806 balance between precisely the kind of criteria and issues that the hon. Gentleman started to touch on. The five-hour period was the outcome of those negotiations. A shorter time might jeopardise the extent to which the UK police could conduct a satisfactory risk assessment, which is part of the process. Once they have been informed, they will assess the risk involved in the operation. Equally, they will need long enough to get a team together to join up with the foreign officers, if it is decided that the surveillance should continue. A balance had to be struck between those pragmatic issues; nothing more sinister is involved.
§ Mr. James Clappison (Hertsmere)
Will the Minister clarify whether the five-hour period will also apply to United Kingdom police who want to continue surveillance of a suspect in another country? Will she also tell the House what representations she has received from the police on that issue?
§ Beverley Hughes
As I said, the UK police are supportive of these proposals, and of their details. The five-hour period is part of the article as it is written, and it will apply to all the countries to which this measure will apply.
The foreign officers must inform the UK authorities—the National Criminal Intelligence Service—as soon as they reach the UK, and they will not be allowed to enter private premises. We had always intended to set those two conditions out by means of order, but, having listened to the concerns expressed in Committee in another place, we have now written them into the Bill. We believe that that strikes the right balance between reassurance, legal clarity and flexibility.
The final measure in the Bill addresses the growing problem of the counterfeiting of plastic cards. That type of offence occurs increasingly on an international scale, which is why the EU agreed a framework decision to ensure that all member states had effective legislation to deal with that sort of crime. Implementing this measure in the UK requires an amendment to the Forgery and Counterfeiting Act 1981, allowing it to cover bankers drafts, promissory notes and debit cards.
As I said at the outset, all the EU agreements that underlie the provisions in the Bill have already been scrutinised by the European Scrutiny Committee of this House and the Committee of the Lords. The Bill will consolidate and implement important measures to improve our ability to tackle international crime and terrorism, and to improve the security and safety of our citizens. I commend the Bill to the House.
§ 1.9 pm
§ Mr. James Paice (South-East Cambridgeshire)
I thank the Minister for the way in which she introduced the Bill, and for the clarity with which she described its major features. I also thank my noble Friends in the other place for sending us a Bill that is a considerable improvement on the one that the Government originally introduced there. It still has elements that we cannot wholly support and, although we do not object to any major principle, we shall explore many issues in Committee. We are grateful for our noble Friends' great efforts to reel in some of the Government's poorly conceived efforts to bring Schengen into this country through the back door.
807 We welcome more co-operation among police forces, customs authorities and intelligence services throughout the European Union to combat the increasing threat of terrorism. The Government's efforts to harmonise our criminal law with that of the signatory countries to the Schengen convention and related agreements is less welcome. It is interesting that the Bill stands in stark contrast to the Prime Minister's rhetoric in October 1999 when he said:The British proposal that the cornerstone of policy in this area should be mutual recognition of court decisions, rather than the harmonisation of laws, was adopted unanimously."—[Official Report, 19 October 1999; Vol. 336, c. 253.]As I said, we shall pursue aspects of the Bill in Committee. The key issue that runs through the Bill is reciprocity and the confidence that necessarily goes with that. The Bill is designed to act as a foundation for reciprocal agreements with other designated countries on many aspects that the Minister described. Although I have immense faith in our country's criminal and judicial processes and institutions, I am sceptical about those of several countries with which we might work.
§ Mr. William Cash (Stone)
My hon. Friend will be aware of the Convention on the Future of Europe, which is considering the proposed European constitution. Is he aware that there is a proposal to have a European public prosecutor? Does he agree that that would be a disastrous step in the wrong direction, and would he like such an assurance from the Government?
§ Mr. Paice
I am aware of the proposition, and I shall ask for the assurance from the Government that my hon. Friend wants later in my speech.
I return to the reciprocal agreements and the countries with which we shall have them. I hope that the Government will assure us that they have confidence in not only the present partners, but any future partners that may be created through the powers that the Bill will give the Secretary of State. Will the Minister confirm that if our confidence in the effectiveness of the agreements is eroded, reciprocal arrangements may be withdrawn at any time by order of the House?
I am worried about which countries may be added to the initial list of participating countries. Although I am first to put on record the fact that the Government consented to change the Bill to ensure that the addition of future participants must be done by statutory instrument using the affirmative procedure, I am worried that part 1 permits the involvement in reciprocal proceedings ofany other country designated by an order made by the Secretary of State".I am sure that most hon. Members acknowledge that not all potential participants in reciprocal agreements, including potential accession states to the European Union, have their judicial houses entirely in order, but that is nothing compared with the serious possibility that the agreements could apply to any country in the world. I do not suggest for a moment that the Government will lackadaisically come to the House and suggest that we sign an agreement with the Congo, far example. However, the Bill says that the Secretary of State could agree by order to add any other country to the list. That is our fundamental point because although the Bill has arisen primarily from the Schengen 808 convention, part 1 could be extended to any other country in the world by order of the Secretary of State. Such an extension should be a matter for the House alone. I am worried that we could allow police forces from other countries to enter this country to conduct surveillance work simply on the strength of a statutory instrument.
Excellent amendments have changed elements of the Bill for the better, and the most important were those relating to clause 82 and hot surveillance. The Minister touched on the amendments and as we would expect, given her diligence, her description of what hot surveillance is and is not was absolutely right. In passing, I congratulate the Government on having the wisdom not to accede to elements of the acquis that would have allowed hot pursuit in this country after rightly contending that that can apply only over land borders. We have such a border only with the Republic of Ireland, which has also declined to accede to that part of the acquis.
Clause 82 has been contentious from the outset. As the Minister said, it permits foreign officers to travel to this country to put a suspect under hot surveillance without first notifying our authorities of their intentions. They could do that for five hours before their surveillance must cease and our officers would take over. The Minister told my hon. Friend the Member for Bexhill and Battle (Gregory Barker) that the Government took a decision to use that time period, although we can all speculate on why that was chosen.
The clause was amended to require that all foreign officers must notify the National Criminal Intelligence Service on their immediate arrival in England and Wales or make an application for authorisation under the Regulation of Investigatory Powers (Scotland) Act 2000 on their immediate arrival in Scotland. The drawback of the notification is that it removes foreign officers' civil liability responsibilities for any incidental act on their part. That matter was pursued in the other place and I shall pursue it here. Although I welcome the fact that this country's authorities must be made aware of a foreign officer's presence on official duty in this country, I am worried about proposed new section 76A(6) because it will deny UK citizens any recourse to subject officers to civil liability proceedings if officers damage their person or property in any way while conducting surveillance in this country.
Proposed new section 76A(8) is also a worry. It will allow a foreign officer five hours to engage in hot surveillance but it does not detail the point from which five hours is counted. The time period might be simple to calculate in countries with land borders because it would be self-evident when it started and the measure could be easily adhered to. However, we will have a different situation because the United Kingdom is an island. During the fifth day of the Grand Committee in another place, Lord Filkin said that the five-hour period begins when a foreign officer enters the United Kingdom via a port or airport or when a Eurostar train on which he is travelling leaves the tunnel and enters Kent. That definition is worrying because it ignores our internationally recognised territorial waters and airspace, which are part of the United Kingdom.
I am not embarking on a far-fetched flight of fancy for the sake of controversy or to find a point for argument because we know that many drugs are smuggled into the 809 country by boats, which often masquerade as fishing boats. It is conceivable that officers could conduct surveillance on suspected drug smugglers in our territorial waters yet the five-hour period would not have started while they were sitting off the shore of Dover or Sussex or wherever they may be. I hope that the Minister will understand that we have a genuine concern to which the Government should respond accordingly in Committee.
The other issue relating to surveillance involves firearms. The matter of officers on hot surveillance carrying firearms is missing from the Bill. Again, Lord Filkin assured his colleagues in the other place that, under article 40 of the Schengen convention, there are provisions to prevent foreign police from carrying weapons in this country. In no way do I dispute that those exist, but I would welcome it being in the Bill that just as British officers cannot normally carry firearms when carrying out such duties, nor should any foreign officer who comes here on surveillance.
The Minister used the terms "urgent" or "in emergency situations". In such circumstances, there could be issues involving a foreign police officer finding it difficult to know what to do with the gun that he carries while going about his normal duties. We need to address that more clearly to ensure that foreign officers are required to dispose of their guns before entering the UK.
§ Mr. Bercow
I am grateful to my hon. Friend for giving way, for my beady eye has also focused on clause 82. Given that the principle that ought properly to apply is surely that, be the officer ever so high, the law is above him, can my hon. Friend possibly fathom the rationale for including in clause 82 in the first instance proposed new section 76A(6)?
§ Mr. Paice
My hon. Friend has a perceptive and, indeed, inquisitive approach to such matters, and I am sure that he can work out in his own mind what might have given rise to the proposal on civil liability. I do not know the answer and, as he will be aware from what I know will have been his careful studies of what went on in the other place, my noble Friend Baroness Anelay spent a lot of time trying to uncover whatever it may be, but the Government were very reticent. I shall not attribute any nefarious reasons to them for having been so, but we will certainly explore the matter in Committee. If my hon. Friend wishes to join us, I am sure that he will be expert in probing the Government as to why—[Interruption.] I hasten to assure the Minister that that is a perfectly genuine invitation.
Chapters 3 and 4 of this part of the Bill are, in the main, very sensible, but there is one issue of concern, which relates to speciality and, in particular, areas of banking. The legal processes of searching for evidence can differ between the UK and another participating country, resulting in what might be construed as fishing expeditions for evidence. While it is perhaps reasonable to expect a large banking organisation to be able to swallow the cost and time that could be involved with such expeditions, many smaller institutions cannot.
Perhaps more important is the issue of what should be admissible in court and in subsequent proceedings. It is preferable that the Bill should permit only evidence 810 sought in direct relation to the offence for which a person has been arrested or is being investigated to be requested from a banking institution. We will want to pursue in Committee the importance of restricting fishing expeditions and, topically, the links to the welcome changes made only last week when the Extradition Bill, in which the two issues come together, was considered on Report.
Part 2 relates to terrorism and will extend jurisdiction under article 9 of the framework directive. We welcome those measures, particularly the ones that will extend the freezing of terrorist assets. They are necessary, but that should not obscure the fact that they also represent swingeing new powers, which we need to examine in detail. Further explanation of them is required. Will the Minister confirm that, as those measures are derived from the framework directive, the extension of extraterritorial jurisdiction applies only to countries that are also signatories to that directive? We will, of course, support all measures to increase the protection of our citizens from terrorism and to detain and detect those who would commit it, but we need to be reassured that those measures are also being pursued by other signatories to the framework directive and that the reciprocal arrangements will be as thorough, genuine and robust as our own.
That brings me to a wider issue involving the Bill. In the other place, my noble Friends repeatedly asked for a statement on the arrangements being put in place by other member states to implement the Schengen acquis and the convention on mutual assistance. Time and again, we have pursued legislation in the House that was alleged to be our duty as part of our EU membership only to find that some other countries made no such effort to comply with their obligations. Will the Minister agree to publish, before the Bill is considered in Committee, an assessment of the actions taken by all the other signatories so that, before we allow them to send police officers here on hot surveillance, we can be assured that ours can go there? My noble Friends pressed Ministers for such an assessment, but we have not yet had it. I hope that the Minister realises the importance of ensuring that one is published before the Committee sits.
Information is dealt with in part 4, which introduces access to the Schengen information system. The Information Commissioner will be granted unprecedented powers to monitor and challenge data held in that system. In principle, sharing such information is bound to be right and it must help the fight against crime, but, as we are already finding with our own police national computer, any database is only as good as the quality and timeliness of the information put into it. We shall seek reassurances that the protocols for the use of that system applying to all countries are robust.
I return to the issues raised by my hon. Friend the Member for Stone (Mr. Cash). What is not clear is how they relate to the other existing and fledgling EU law enforcement systems. We have Europol, which staggers on but is torn between those who want ever more centralised power and those who see the way forward as the successful joint investigation teams. As my hon. Friend said, some participants in the European judicial co-operation unit want it to become a European public prosecutor, so I repeat his question: will the 811 Government confirm their total and outright opposition to such a proposition? Of course, it would introduce the concept of a Napoleonic judicial system to Britain, which we have never had before.
The Minister also referred to the provisions relating to traffic and driving offences, which, on the whole, are sensible and welcome. Two Members at least referred to them during interventions on the Minister. One might cynically say that, surprisingly in terms of legislation being considered by the House, the proposals address issues that really matter to ordinary people in the streets who have seen such problems arise. Understandably, when they see someone apparently escaping with little or no punishment for a serious offence, possibly including a fatality, they get very frustrated. We welcome those provisions, although I slightly share the implied doubts of the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) on whether the theory will work in practice. Again, we shall want to address that in Committee.
I refer to a concern brought to me by the Police Federation, which I think the Minister will understand. I go so far as to say that the right hon. Member for Southampton, Itchen (Mr. Denham) would have understood it more, given his much longer experience in dealing with ministerial matters. In passing, I should say that I regret that he is no longer on the Front Bench to deal with police issues. He served the House and the Government well in that capacity.
Part 4 is far-reaching in the protections that it offers to foreign officers in terms of their liabilities when they are in this country carrying out hot pursuit, but we do not know for certain that those protections will be extended to our officers when they carry out similar operations in another participating country. We cannot with a clear conscience commit our police to a reciprocity agreement without knowing fully what the reciprocity will involve. We must consider the protection of our own police officers fulfilling their duties abroad. The Bill says a great deal about safeguards for foreign officers but very little about safeguards for our people, which is why I expressed the hope that the Government would publish their assessment of how the legislation is applied in other countries.
We will not oppose the Bill, not least because the Government have already signed us up to many of its provisions through various European Union agreements. We will support it because we recognise that criminals and terrorists no longer operate solely in one country, as the Minister rightly reminded us. Crime has become global, and we need provisions to deal with it effectively. We will, however, challenge the Government on many elements of the Bill. Some were challenged in the other place and the Government did not respond to our satisfaction; in the case of others, we believe that further clarification or indeed tightening is required, not just to protect foreign police in the context of hot surveillance but, more important, to protect our own citizens.
The Bill will not prompt headlines in any newspapers, notwithstanding current events, but it will go a long way towards dealing with the problems of crime across international barriers, and we therefore welcome the principles behind it. A number of issues remain to be debated, but we will debate them in Committee.
§ Mr. David Heath (Somerton and Frome)
We broadly support the Bill, and will not oppose its Second Reading. Anyone who brings sense to the debate must realise that the maximum co-operation between police across national boundaries, and between judicial systems, will benefit us when we are dealing with terrorist offences and international crime—along with, of course, the resources and policing that must accompany such co-operation. Many of us are still very worried about the integrity of some of our policing systems as they apply to ports of entry and airports.
I think it fair to say that the Government seem to be adopting a piecemeal approach. Bits of legislation dribble through the system, dealing with various aspects. We would benefit from more co-ordination. I do not have a problem with one aspect, however. I am glad that the hon. Member for South-East Cambridgeshire (Mr. Paice) did not suggest that it was a problem, although it was a recurrent theme in another place. I refer to the Government's power to enter into treaty arrangements with other countries. That, of course, is what being a Government is about—but it does not absolve this House, this Parliament, from the duty, and indeed the right, to scrutinise what has been agreed and if necessary to reject it.
However beneficial co-operation between states on policing matters and judicial systems may be, three essential tests must qualify it. The first relates to our national security and the integrity of our policing system. Our accession to the Schengen arrangements is partial, as is confirmed by the treaty of Amsterdam: we still have an opt-out, if that is the correct term, from free movement across our national frontiers. We need to be persuaded that the integrity of our security information will not be compromised in a way that might put us at additional risk.
The second test is the recognition that different judicial systems and jurisprudences operate across the European Union and beyond. The hon. Member for South-East Cambridgeshire referred to the Code Napoléon, on which much European law is based. We have differences of jurisprudence within our own country as well, of course, in that there is a difference between the law of England and Wales and that of Scotland.
I feel that if we start from a basis of respect for different legal systems, while recognising that they cannot easily be absorbed into a single amorphous system, we start from a healthier basis than the assumption that there is any such thing as true harmonisation of widely differing legal systems. That is, I think, recognised in the Bill, but it needs to be recognised in the House as well. Many of us do not want English and Welsh common law to be eroded in the process, while at the same time recognising the quality of other systems of jurisdiction.
The same applies to policing. There are different methods of policing. Most European countries have a form of gendarmerie which we do not have. We should respect such differences, and treat them as differences in approach but not necessarily in quality.
§ Mr. Mark Francois (Rayleigh)
The hon. Gentleman is, like me, a veteran of the Criminal Justice Bill, which 813 is still making its way through Parliament. He has mentioned the importance of maintaining English common law. Will the Liberal Democrats hold true to that in their reaction to whatever finally emerges from the European Convention's examination of the proposed new constitution?
§ Mr. Heath
I do not think that there are any proposals to abolish English common law. We shall deal with hypotheticals when we reach them, rather than preempting discussion.
The third test is defence of the liberties of the individual. Parts of the Bill concern intrusion, lack of remedy and inappropriate use of information. We must be on our guard against those. In the other place, my noble Friend Lord Dholakia said thatany threats to the fundamental right to privacy must be legitimate, proportionate and necessary".—[Official Report, House of Lords, 2 December 2002; Vol. 641, c. 984.]Most of us would agree.
What we must not do is adopt an approach coloured by any xenophobic insistence on the inadequacies of all systems except ours. We should recognise the enormous mutual interest in arrangements of this kind to secure as effective a policing and judicial system as possible. Such a system needs to be based on reciprocity and respect for other legal systems.
Like the hon. Member for South-East Cambridgeshire, I am worried about what may happen if the Bill's provisions extend well beyond EU countries with which we have familiar relationships to countries whose jurisdictions are wildly different. We should be careful about that. The most likely candidate is the United States, with which we have many dealings and which is, I understand, the source of most extraditions—or, at least, the source of more than any other country with which we have dealings.
Whatever respect we have for the Americans and their system of government, we must accept that their jurisdiction is different from ours in many respects. The situation is complicated by the fact that we are not dealing with a single jurisdiction: because the United States is a federal nation, we are dealing with 50 jurisdictions, which differ among themselves. One reason for my concern is that only yesterday a new extradition treaty and asset-sharing agreement was signed by the Home Secretary and the US, bringing procedures between the UK and the US more in line with extradition arrangements with European countries. I do not necessarily decry that, but the House should be aware of its happening and of the possibility of problems of interpretation arising between jurisdictions and the non-transportability of judicial concepts between the United States—particularly, some states in the US—and this country. We will not debate a Bill on the treaty agreement in the same form as the provisions before us today and that worries me, because it will have as many consequences for our citizens as anything produced by the EU.
§ Mr. Cash
Would the hon. Gentleman extrapolate on his comments about jurisdictions in respect of countries within the European Union or the accession countries?
814 Does he agree that significant differences exist between our judicial system and that of almost all other countries in Europe, which presents a serious difficulty for these proposals?
§ Mr. Heath
With due respect to the hon. Gentleman, I have just said that. However, we share a common European standpoint in being signatories to the European convention on human rights and we are also co-signatories to the Council of Europe convention. We therefore start on a basis of similar safeguards, which is not the case with countries outside the European family. We should understand the importance of that difference.
Turning to the specifics of the Bill, part 1 deals with mutual assistance in criminal matters in the service of process, covering requests for assistance both from abroad to us and from the United Kingdom to other countries. I hope to be assisted in further consideration of the Bill by my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael), who has the distinction of being the only Member who has, in his previous role in the Scottish legal system, drafted letters of request to overseas authorities. It would be valuable to reflect on the changes that apply in that respect.
Part 1 also deals with the freezing of orders, and questions need to be asked about issues of dual criminality—already dealt with in other legislation—particularly whether requests will have adequate judicial scrutiny, rather than simply administrative scrutiny, which would be a retrograde step. For example, should this country accept a request for evidence that would not be admissible in the British system, but might be admissible under a different legal system? Would such a process be acceptable? What safeguards would apply to the defence in respect of access to information provided in that way? Also, what safeguards would apply in respect of requiring direct relevance to a judicial procedure of any evidence requested? Those are all questions that we should reflect on carefully when we address these matters in Committee.
The same applies to information about banking transactions and there is a real fear that fishing expeditions might be undertaken in the guise of these proposals. We must be careful to ensure the rights of our citizens in that respect, particularly that they have a right to privacy for their transactions unless they are directly related to the investigation of a criminal offence.
§ Ms Debra Shipley (Stourbridge)
On the question of banking, does the hon. Gentleman agree that Operation Ore, which worked through credit cards, has had a shocking effect on the country? The response of the banking sector so far has been somewhat limited, but the Government now have an opportunity to require banks to do more to stop payments for pornography and other things pertaining to criminal offences.
§ Mr. Heath
The hon. Lady makes an important point, though there is a fine line between requiring banks to assist in the investigation of criminal transactions and requiring them to do so in respect of matters that are not illegal but disapproved of. I would be careful to draw that line and make it clear that only specifically criminal behaviour should be covered. The National Criminal Intelligence Service has good systems for dealing with 815 financial transactions. The problem is that the system is overwhelmed by the information that it collects. The Government need to address the issue of resourcing. If we are to deal with requests not just from British investigating authorities, but from other European authorities, the ability to meet the demands placed on the system could be a serious problem that has to be overcome.
The last section of part 1 deals with the transfer of UK prisoners to give evidence abroad. I do not share the view expressed earlier that that should not be subject to consent. We are talking about giving evidence rather than facing charges in another jurisdiction. I would go the other way and seek to ensure that the prisoner agreeing to such an arrangement does so on the basis of proper information and advice from legal representatives. That safeguard should apply.
§ Mr. Heath
The hon. Gentleman, who has great experience in this area, makes a valid point and we should deal with that problem as we examine the Bill in greater detail.
Part 2 deals with extra-territorial jurisdiction in respect of terrorism. That is welcome: we must have the capacity to deal with terrorist attacks on British Crown territories abroad, such as our diplomatic missions, and to deal with British subjects who commit acts of terrorism. I have no difficulty with that. In a spirit of inquiry, however, I ask whether the provisions would apply to British subjects currently incarcerated in Guantanamo bay. If they are not prisoners of war, they must surely be suspects of terrorist activity. When the Bill is passed, will a request be passed to the United States authorities to return those prisoners to face trial in the United Kingdom, instead of being incarcerated sine die as they are now?
§ Simon Hughes
Through my hon. Friend, may I ask the Minister to respond to that specific point at the end of the debate? Hon. Members have made various attempts on behalf of their constituents who are incarcerated in Guantanamo bay. It would be helpful to know what representations the Government have made, are making and will make in the near future when the Bill is passed.
§ Mr. Heath
I agree with my hon. Friend and I look forward to hearing the Minister's response.
Part 3 deals with the convention on driving disqualification. Mutual recognition of driving qualifications is long overdue, but some questions of detail still need to be asked. First, the Government have gradually introduced the concept of using disqualification from driving as a sanction for non-driving offences. I am not sure how that would fit within the legislative framework, or whether similar legislation in other European countries could be difficult to translate into British law.
I am concerned that a British driver convicted and disqualified abroad might not have the same opportunity as a British driver charged in a UK court to 816 put arguments about the threat that disqualification would pose to his or her livelihood. British lorry drivers convicted of minor offences might be punished by disqualification, which could have a disastrous effect on their ability to earn their living and maintain their livelihood in the UK and abroad. That is simply a concern—I am not sure how it could be addressed.
It is astonishing that mutual recognition of driving disqualifications does not exist within the UK. It is extraordinary that disqualifying a person in Northern Ireland has no resonance on the mainland of Great Britain, and vice versa. The same is true for the Channel Islands, the Isle of Man and Gibraltar. Will the Minister say whether our recognition of disqualification in Gibraltar will be matched by the Spanish Government's recognition of qualification in Gibraltar? The longstanding disagreement between the British and Spanish Governments about the recognition of Gibraltarian driving licences needs to be addressed. If that is not achieved by the mutual recognition provisions in the Bill, it is hard to see the point of trying to recognise mutual qualifications across the EU.
Two major elements of the Bill are dealt with in part 4. I have no problem with Britain entering the Schengen information system. I can see all sorts of advantages in that, and I welcome the enhanced role of the Information Commissioner. However, I worry that that massive information system is only as good as the data that are put into it, as the hon. Member for South-East Cambridgeshire said. At the last count two years ago, 49,000 terminals were already attached. Tens of thousands of people across Europe access the system. Thousands of people input information, and the capacity for information to be inputted that is incorrect or inappropriate is extraordinarily large. That concern needs to be addressed.
My final point in connection with part 4 has to do with hot surveillance, which I consider to be rather a misnomer. I have heard much nonsense spoken about it. People have a vision of Inspector Clouseau bumbling around the Kent countryside doing all sorts of extraordinary things, but I am not filled with immediate alarm at the prospect of overseas police officers being able to engage in surveillance, as the period of time will be very limited and they will have no power of arrest or questioning and will not be able to carry firearms.
However, I am concerned about the lack of remedy for UK citizens in the event of malpractice by such officers. I worry, too, about the operational difficulties that might arise. I can foresee all sorts of occasions when the intervention of an overseas police officer in a carefully planned operation on this side of the English channel might have disastrous consequences. It must be spelled out very clearly that notification at the earliest opportunity—ideally, in advance—should be the norm rather than the exception.
There are serious difficulties about what happens at borders. For example, the carabiniere with the pistol in his holster is not excused immigration procedures or border controls in this country so, very unobtrusively, he will have to show his passport and hand in his gun while the person he is tailing skedaddles out of the other side of the airport or port. That is a serious problem to which I am not sure there is an easy answer.
817 I share the curiosity of the hon. Member for South-East Cambridgeshire about territorial waters, whether in connection with British-flagged ships or with a train in the channel tunnel. Will the Minister say precisely what is the situation in connection within our territorial waters, and what is our assumed territorial responsibility in respect of the Channel tunnel?
Will the Minister further say whether she intends to reverse the amendment passed in another place to clause 82? Clause 82(4) now prohibits foreign police officers from stopping, questioning and searching a UK citizen within the UK. The Minister may consider that that was implicit in the Bill as originally drafted, but I believe that making it explicit is even more helpful. It certainly does not run counter to our treaty obligations.
The interventions that I have taken mean that I have spoken for longer than I intended, but I consider this to be an important Bill that deserves the closest possible scrutiny by the House as it is capable of further improvement. Liberal Democrat Members want a Bill of this kind to pass through the House in the very near future, so that we can be assured of the best cooperation between our police and judicial systems and those of our neighbours and partners. We want to work with them to fight terrorism and international crime effectively.
§ Mr. Mark Francois (Rayleigh)
I am pleased to be called to contribute to this afternoon's important debate. I begin by echoing the tribute paid by my hon. Friend the Member for South-East Cambridgeshire (Mr. Paice) to the right hon. Member for Southampton, Itchen (Mr. Denham). I did not agree with the reasons underlying the right hon. Gentleman's resignation, but he conducted himself honourably in the way that he left the Government. I should like to take this opportunity to acknowledge that, and to place on record my admiration for the right hon. Gentleman.
I want to concentrate my remarks on part 4 of the Bill, which deals with miscellaneous provisions. Clauses 80 and 81 deal with data protection—a subject that may appear arcane to many observers. In all honesty, I cannot say that it is the talk of all the pubs in Rayleigh on a Friday night, but some potentially important questions still need to be asked on the matter, and I shall focus on them this afternoon.
Ministers will be aware already that the law relating to data protection is fiendishly complicated. The framework domestic legislation is the Data Protection Act 1998, which is based on the EU data protection directive of 1995.
It may assist Ministers if I explain that my own interest in this admittedly rarefied subject had its genesis when I introduced a ten-minute Bill last year on the effect on Members of Parliament of the Data Protection Act 1998. I looked at the effect of that legislation on MPs' pursuance of their duties, not least in respect of constituency casework that involved public bodies or private companies.
I am pleased to say that the then Leader of the House, the right hon. Member for Livingston (Mr. Cook), subsequently brought forward a statutory instrument 818 rather snappily entitled the Data Protection (Processing of Sensitive Personal Data) (Elected Representatives) Order 2003. The order clarified the position of elected representatives, including Members of Parliament, who seek personal data at the request of constituents so as to carry out casework inquiries on those constituents' behalf. I shall refer to that order again later in my remarks.
The experience of researching and preparing for my ten-minute Bill taught me just how complicated is the domestic and wider European law in this area, not least because of the potential interaction between any data protection legislation and the Human Rights Act 1998. That is why I am interested in how that potential interaction will affect this Bill.
That is the background, so I shall now move to the details as to why I think that the interaction that I have described is important, and why I consider this Bill to have important implications for data protection law.
Clause 81 offers potential access to the UK sections of the Schengen information system, the so-called SIS; the Europol information system, the so-called EIS; and the Customs information system, the so-called CIS. Those were all subsequently defined under clause 81(7) of the Bill. In that regard, the Bill specifically inserts a new provision after clause 54 of the Data Protection Act 1998 giving the Information Commissioner the power to inspect any personal data that is recorded in the UK element of those three systems. In order to do that, the Information Commissioner must provide written notice of the intention to inspect such personal data, unless, under clause 81(5),the case is one of urgency.The Government have made much of that provision as a safeguard in their approach to the Bill. In fact, the Home Office's press release of 20 November 2002, entitled "New Bill to Boost EU Police Powers", stated that the Information Commissioner would be givenunprecedented powers to monitor and challengedata held in the system, including the power to enter the premises where the database is kept.
I wish to raise a number of specific points with the Minister about the practical applicability of that measure. First, can he confirm that all the information covered under clauses 80 and 81 will be classified as sensitive personal data for the purposes of the Data Protection Act? Under clause 2 of that Act, "sensitive personal data" specifically includes information concerningthe commission or alleged commission"—by a person "of any offence" orany proceedings for any offence committed or alleged to have been committed"—by a person—the disposal of such proceedings or the sentence of any court in such proceedings.If clauses 80 and 81 refer to sensitive personal data, which has additional safeguards under the 1998 Act, are Ministers fully reassured that the covering statement on the front of the Bill that its provisions are compatible with the European convention on human rights is completely accurate?
§ Mr. Cash
My hon. Friend is pursuing an extremely important series of points. Is he aware that two years 819 ago the Schengen information system had 49,000 terminals? Given that, how does he think that it might be possible to guarantee total security, and does he agree that the Minister should address that when responding?
§ Mr. Francois
My hon. Friend raises an interesting point. Under the Bill, the Information Commissioner—previously referred to as the data protection commissioner—has the right not only to inspect data that is stored on the UK elements of the three systems, but, at least theoretically, to inspect the physical systems on which the data is stored. In response to my hon. Friend's apposite point, the Information Commissioner will theoretically have the right, if he or she has the necessary resources, to physically inspect every one of those 49,000 terminals, because they form part of the system on which that data is held.
The matter is fiendishly complicated, but I hope that Ministers will appreciate the tack that I am trying to take. For the safeguard to be effective, it is important that Ministers are fully reassured that there is no contradiction between clauses 80 and 81, the Data Protection Act 1998, the European convention on human rights and the Human Rights Act 1998, which flowed from the convention. If there were to be such a contradiction, we could end up in the absurd situation whereby when the Information Commissioner seeks access to sensitive personal data, as a safeguard, the European convention on human rights could be turned against the commissioner to prevent them from carrying out the safeguard power of which the Government made so much in their advocacy of the Bill. It might seem a complicated point, but anyone who has had any experience of data protection legislation and its practical implications will recognise that it is a matter that the Government need to double-check. We as a House would not want to end up in a situation whereby we passed the Bill into law, then found that subsequent jurisprudence meant that the safeguard that of which the Government have made so much was ineffective because the European convention on human rights was being used against it.
Related to that point, will the Minister spell out what constitutes a case of urgency as outlined in clause 81(5)? How will a case of urgency be defined in practice? Can the Minister give some practical examples of the circumstances where such a provision might apply and where the Information Commissioner would therefore be able to gain access to personal data without first having to provide written notice in advance to the data controllers concerned?
I promised the Minister that I would return to the statutory instrument of late last year that I mentioned in my initial remarks. To keep my word, may I ask him to outline how the Bill would be affected by it? For example, if a Member of Parliament were to be approached by a constituent who believed that they had been wrongly included on the UK element of one, or perhaps all three, of the databases, would the statutory instrument give the Member sufficient authority to pursue the matter on their constituent's behalf? My reading of the situation is that it would, but I should be grateful if the Minister, who may need to seek a little advice, could confirm that.
Some of the most controversial elements of the Bill, at least to date, have centred on issues such as the hot pursuit of criminal and terrorist suspects across 820 international borders, and I do not resile from that proposition. However, on the well-established parliamentary principle that the devil is in the detail, I have sought to highlight what is admittedly a very particular aspect of the Bill where specific questions remain unanswered. Because the law is so fiendishly complicated in this area, I hope in all good faith that the Minister will take on board the points that I have striven to make and that he will address them in his response. If that is not possible today, I should be grateful if he could take the trouble to write to me. Then, perhaps, some of these matters will bear further examination by my colleagues when the Bill progresses into Committee.
§ 2.9 pm
§ Mr. Robert Syms (Poole)
It is a pleasure to follow my hon. Friend the Member for Rayleigh (Mr. Francois), who made some good points on data protection. My points will be more general. On the Conservative Benches, we broadly welcome this Bill, as, I think, do most other hon. Members. We all know that criminals have become extremely nimble, that a lot of their crime is offshore, and that they are good at playing jurisdiction against jurisdiction. Law enforcement agencies and Governments have to collaborate and co-operate a lot more to crack down on such people.
A number of problems that affect our constituents have their genesis in international crime. On occasion, my constituency suffers from robberies from people's homes. Two thirds of persistent criminals have a drug habit. Drugs are trafficked internationally and we have never been good at cracking down on gangs and the proceeds of their crimes. The issue therefore affects our ordinary constituents, who have to put up with having their homes trashed by criminals. We have to take the battle to the gangs at an international as well as a national level.
The migration of asylum seekers is a major problem. Many criminal gangs take advantage of people who are, unfortunately, in that situation. In 1975, the world had 75 million people who were migrating; in 1990, the figure was 120 million; and in 2000, the figure was 150 million. Many gangs that traffic in people go through a number of jurisdictions. We have had a number of horrible cases where people have been shut in the back of vehicles and have suffered an awful death. If we are to crack down on the migration of people, our measures have to have effect across jurisdictions.
The world has become very difficult after the events of 9/11. The impact of terrorism reinforces the broad thrust and principles of the Bill. However, as my hon. Friend the Member for Rayleigh said, the devil is in the detail. I suspect that this is one of those Bills that the experts will have to go through line by line in Committee to work out the snags. Treasury Ministers are probably happy that a Bill such as this one should start in the House of Lords, because many of the experts at that end of the Palace can improve it—and no doubt they have improved it—to make Ministers' jobs somewhat easier.
For this Bill to work, we have to be confident in the judicial and police systems of other countries. I hope that we can be confident in most of them, but events such as the planespotters incident in Greece undermine public confidence in reciprocal agreements. My hon. Friend the Member for South-East Cambridgeshire 821 (Mr. Paice) raised a number of important issues, touching on the list of countries that will be included and that will join in future. As the European Union expands to bring in countries from the former Soviet Union and perhaps Turkey, major difficulties will arise in reciprocal arrangements. The path will be difficult. As well as convincing ourselves of the benefits, we will have to convince many of our constituents.
My hon. Friend the Member for Rayleigh mentioned the Schengen information system. If we are to opt into that system, we will have to be confident in it. We will also have to be confident in the quality of the inputs. In the other place, it was said that the Netherlands SIS can be accessed by 7,000 people, 500 of whom can alter data. If that were replicated throughout the EU—and in his intervention my hon. Friend the Member for Stone (Mr. Cash) mentioned 49,000 terminals—there would be a vast amount of information that would have to be controlled sensibly.
Inaccurate information in systems can cause awful and difficult problems. Very recently, a British citizen in South Africa was, because of information given by the FBI, arrested by the South African authorities and put in jail. Systems have to have integrity because problems can be caused not only for an innocent citizen in one jurisdiction, but for people across a range of jurisdictions.
Of course, there are restrictions in the information that can go on the SIS. One cannot include information about someone's racial origin, political opinions, beliefs, health or sexual life. To some extent, those restrictions have been put in as protections, but we know that there is a coincidence of terrorism and crime in the world today as many terrorist organisations use the proceeds of crime to support their activities. I therefore wonder about the benefits of the SIS in the crackdown on terrorism. If one cannot put down that someone is an Arab or a member of the Ba'ath party or whatever, even if they are engaged in smuggling or drug trafficking or whatever, the effectiveness of the system in attacking terrorism will be reduced.
I welcome the general thrust of the argument on cracking down on fraud involving plastic cards. More could be done to look into the banking system and the amounts of cash balances there. However, I agree with my hon. Friend the Member for South-East Cambridgeshire that we have to be wary of fishing operations. It would be fairly easy for the Inland Revenue to fish through Spanish or French bank accounts looking for money belonging to people who may have worked in the middle east and repatriated the money to Spain or France rather than Britain. Issues arise here that we have to explore. I hope that the Committee will explore them.
Hon. Members have rightly discussed the controversial issue of foreign police or customs officials being able to follow a potential suspect into UK jurisdiction for up to five hours. Legitimate questions have been asked about when the five hours start. As we heard earlier, the noble Lords heard from Lord Filkin that the time of entry at the port or airport, or when Eurostar comes out of the tunnel, is the time at which the 822 five hours start. There have been occasions when it has taken five hours to get off the train, so I am not sure that that is the best way to measure it.
I am concerned about the civil liability of foreign police officers. If, when getting off a train from Europe, one was followed by a potentially shady person, one might wish to confront that person. If somebody from a law enforcement agency follows a British or foreign citizen into British territory, there is a risk of confrontation. I know that police officers try to keep surveillance at a distance, but I suspect that, if somebody was, in an emergency, trying to keep close to somebody who they believed was going to perpetrate a crime, there would be a risk of confrontation. If that confrontation takes place on British soil, and the unfortunate individual being followed is innocent and has been wrongly identified, there is a case for some kind of civil redress or liability. When there is a confrontation between a member of a foreign police force or agency that affects a citizen in the United Kingdom, there ought to be some means of compensation. That is only right and proper.
We have heard about the problem of armed police officers in Europe. In an emergency, if such an officer—for whom it was normal to carry arms—was following somebody into this country, how do we check them? At airports and ports, will we have a designated officer who can, when somebody turns up with their warrant card or equivalent, secure the weapon so that the officer does not come armed into the British jurisdiction if the normal security systems have not picked up on the issue?
The general issue of security at our ports and airports has arisen. The port of Poole in my constituency used to have a lot of full-time customs officers who knew the movements of people in and out of the port. Customs and Excise has now put many of those officers into mobile units because the focus of operations is to crack down on the smuggling of cigarettes and alcohol from the continent of Europe. Many officers therefore find themselves in Dover. We now hear that the few remaining officers in Poole are being pulled out. If we are serious about cracking down on international crime, we have to be serious about protecting the borders and boundaries of the United Kingdom.
Many ports are unmanned and we need to reconsider that. Before his principled resignation, the right hon. Member for Southampton, Itchen (Mr. Denham) was the Minister with responsibility for homeland security. That important issue relates to the work of the transport police and Customs and immigration officials in many of our smaller ports. They cannot all be manned but there is no point in setting up all these international arrangements if we do not keep track of the people entering our ports, including Poole which is, after Bristol, the second biggest port in the south-west.
§ Mr. Francois
The extent of cover at our ports is becoming ever more important, a point raised yesterday during our debate on the Railways and Transport Safety Bill by the hon. Member for Thurrock (Andrew Mackinlay), who has campaigned on the issue for some time. He criticised the Government for the lack of cover at smaller port facilities. This is a pregnant issue, which crops up again and again in the House.
§ Mr. Syms
I agree with my hon. Friend. As has been pointed out, the Crime (International Co-operation) 823 Bill is part of a series of measures that need to be taken to provide proper security for our citizens. That involves the use of transport police and Customs officials in smaller ports and airports, as we discussed the other day. However, the Government have introduced measures piecemeal on a range of matters and it is difficult for Members suddenly to zoom in on a particular aspect when they cannot see the whole picture. I wish that I had greater confidence in the Government's ability to take an overview of the whole picture so that we could reassure our constituents that homeland security was higher on the political agenda.
We are engaged in conflict in Iraq and the war on terrorism has been stepped up. We need more international agreements so that we can fight terrorism. After the events of 9/11, one of the first court cases was held in Germany and it was noticeable that many of those involved in those horrific events had travelled across several jurisdictions before reaching the United States. More co-operation is important but we must get the balance right. We must not forget the basic civil liberties of our citizens although many people might accept some modest diminution of those liberties if they felt that they would be better protected. The Bill is fine, but I hope that when the Committee considers it in detail, it will be further improved.
§ Mr. Elfyn Llwyd (Meirionnydd Nant Conwy)
Like the hon. Member for Poole (Mr. Syms), we accept the thrust of the Bill, although some matters need to be ironed out in Committee. The speeches of the hon. Members for South-East Cambridgeshire (Mr. Paice), for Somerton and Frome (Mr. Heath) and for Rayleigh (Mr. Francois) have made my job easy. Although the speech of the hon. Member for Rayleigh was well argued, parts of it were above my head-that is nothing new.
Many good general points have already been made. There is no doubt that we need better international cooperation to deal with large-scale crime. The greatest scourge is probably drug smuggling, which is one of the main cross-border crimes and possibly the main activity of large, serious gangs of organised criminals. It was estimated recently that two thirds of such gangs were involved in drug trafficking. Those international dealers feed the local markets, which, in their turn, lead to local misery. Drug smuggling often finances forms of terrorism, too, so it is equally important to consider it from that aspect.
I echo other speeches: we must strike a balance between the needs of the state and the rights of individuals. I am indebted to Justice and Liberty for the briefings that they have provided. Justice has expressed concern that the Bill does not include sufficient procedural safeguards and that it failsto address the rights of the defence.I am sure that those matters will be dealt with in Committee. They are important because the new law must have full confidence across the board if it is to be effective.
I shall not speak at length about each part of the Bill, but I want to refer to chapter 2 of part 1.
§ Mr. Cash
In addition to the statements from Justice cited by the hon. Gentleman, does he agree that we are 824 getting into deeper and deeper difficulties over such things as the European arrest warrant and the European public prosecutor, to which I referred earlier? There is a monumental shift in the centre of gravity of our criminal justice system.
§ Mr. Llwyd
Although the hon. Gentleman and I take a different stand on European co-operation, he makes a valid and important point. In an earlier intervention, I pointed out that a witness might be requested to appear in the jurisdiction of countries that did not have rules against self-incrimination. That is an extremely important point. As the hon. Member for Somerton and Frome said, there must be some form of mutual understanding that countries are signatories to the European convention on human rights. That would offer some safeguard, but the hon. Member for Stone (Mr. Cash) makes a forceful point.
I was referring to chapter 2 and the mutual provision of evidence. The procedures for considering and giving effect to freezing orders are dealt with in clauses 10 and 20. However, defence rights must be protected in cases of international mutual assistance, especially in the light of the complex nature of such proceedings. For example, clause 19 makes no reference to the use that may be made of seized evidence once it has been sent to the court or the authority requesting assistance. Other Members have referred to the need to avoid international fishing expeditions—although if we were dealing with the European Community there would not be much fishing. The measure should specify that evidence seized under the terms of the legislation may be used only for the purposes set out in the original request for assistance, unless the territorial authority expressly consents to it being used in specified further investigations.
Those points of detail will be dealt with in Committee, but I want to raise another matter of considerable concern. Overseas freezing orders should be restricted to a judicial authority in the country that has the power to make such orders. Many of us feel that the Bill should state that implicitly. Concern has been expressed about requests for information about banking transactions for use in the UK. The Bill would allow prosecuting authorities to make requests for such assistance directly, without requesting UK judicial authority. Given our traditions, that is worrying.
It appears that it will be left to member states to determine judicial authority, with the possibility that a police authority could be designated competent to issue freezing orders, which would then have to be recognised and enforced in all other member states. On the scope of the freezing order and its relationship with the European arrest warrant, the Minister in the other place, Lord Filkin, said on 11 February that it showed how wide-ranging and invasive such orders might be, as they would be made without notice being given to the persons affected. It is considered essential that the recognition and enforcement of such orders should be conditional on their having been made or approved by a judge or other judicial officer in the issuing state, as is the case with the European arrest warrant, which must be "a court decision".
§ Mr. Cash
I am sorry to invade the hon. Gentleman's speech yet again, but the European Scrutiny Committee 825 looked into what a judicial officer or a judicial authority would imply, and we remain deeply concerned about the disparities between the nature of the judicial process in this country and in the other countries within the EU. Therefore the valid point that the hon. Gentleman makes is extremely relevant to the Bill and it obviously needs to be looked into in Committee.
§ Mr. Llwyd
The hon. Gentleman makes his point forcefully and clearly, and reinforces what I am attempting to say, but it is all the more important that there should be a minimum level of judicial oversight of the original order. I believe that there should also be a limited right of appeal. Without a minimum safeguard of judicial involvement, and oversight of the making of orders in the issuing state, this whole system may be brought swiftly into disrepute. I hope that I am wrong, but no doubt these matters will be dealt with in Committee.
I refer the House briefly to the issue of transfer of prisoners. The hon. Member for Leominster (Mr. Wiggin) said in an intervention that seeking consent from a prisoner was pushing it a bit. I must say, with great respect to the hon. Gentleman, that that is a little nonsensical. What is the point of dragging a hostile witness to the continent by the hair, for him to refuse to give evidence or to make it up on the spot? That intervention bears little scrutiny.
Chapter 5 deals with that matter, and clause 47 relates to the transfer of a UK prisoner to assist an investigation abroad. In order for a warrant to be issued, written consent must be obtained from the prisoner, ora person appearing to the Secretary of State to be an appropriate person to act on the prisoner's behalfwhere the prisoner cannot act for himself by reason of physical or mental condition or youth. Such consent cannot be withdrawn after the issue of the warrant.
Justice points out that it is important that prisoners be advised fully of what they may be getting themselves into, and have access to legal advice on the exercise of those rights according to the law of the country in question; that is important because many people are unaware of laws in this country, let alone in other countries that the prisoner might be taken to. That is not to say that the idea is wrong; the idea is perfectly valid and right. I am just sounding one or two warnings that could be addressed in Committee to ensure that things proceed as they should. However, the transfer of a prisoner could have a significant impact on the exercise of that person's fundamental rights, so it is important that this advice is available, particularly given the irrevocable nature of the consent.
With regard to foreign police officers acting in the UK, Lord Filkin said in another place that there was no way of knowing how long the foreign police officer had been in the country and it would be necessary to rely on other forces observing the rules. He also said that, in the vast majority of cases where a foreign police force wanted to follow a criminal to Britain, they would have time to contact local police to set up a joint operation.
§ Mr. Cash
I am sorry to intervene yet again, but it gives me an opportunity to bounce off the hon. 826 Gentleman to the Minister. Does he agree that there is a practical problem with regard to foreign officers? If they do not speak English, are we sure that a translation service—which will, of course, cost a vast amount of money—will be available? Does the hon. Gentleman agree that, otherwise, we shall get into quite a complicated position?
§ Mr. Llwyd
The hon. Gentleman makes a valid point, which I am sure will be dealt with in due course. However, I understand that there is fairly easy access of information between European mainland police forces and UK police forces at present. The hon. Gentleman is right in terms of hot—or is it warm?—pursuit.
§ Mr. Llwyd
Even with the Welsh, as the hon. Gentleman says. We are a bilingual country and proud of it.
There is quite an important point to be made. I am not denigrating police forces in other European states; this is not meant to be a second-hand insult. The UK has very disciplined police forces, who adhere closely to the Police and Criminal Evidence Act 1984; indeed, if they do not, anything that they discover falls flat and is not used in a court of law, or is used to little effect. We need to ensure that officers have a basic understanding of what is expected of them when on surveillance in the UK. However, there may be cases involving investigations into serious international criminals, where such surveillance will be necessary. Clause 82 refers to the conditions under which surveillance may be lawfully carried out, but does not set out those conditions, leaving them to be specified in an order by the Secretary of State. I hope that in Committee it will be possible to give some indication of those conditions, because they appear to be important. I am sure that when the Minister responds he will at least refer to the matter.
The explanatory notes state that it is intended that the first of the orders will apply to the conditions set out in article 40(2) and (3) of the Schengen convention, which the clause is designed to implement. Given that the imposition of conditions on the conduct of foreign officers who operate in the UK is a crucial safeguard to the rights of individuals in the UK and that these matters will be dealt with fairly swiftly, I do not intend to delay the House much longer.
827 The hon. Members for South-East Cambridgeshire and for Somerton and Frome mentioned civil immunity. That is a very worrying matter. I do not understand the raison d'être for this civil immunity and I hope that the Minister will clarify the matter. Clause 82(6) makes no reference to the reason for it. I am not anti-French in any shape or form—never have been and never will be. I do not sign up to the anti-French rhetoric in the light of the current Iraqi situation either. The hon. Member for Somerton and Frome mentioned Inspector Clouseau. God forbid that a latter-day Clouseau should wreak havoc throughout England, Wales and Scotland, and should wreak havoc with impunity.
§ Mr. William Cash (Stone)
The Bill is clearly important, but it is also controversial—perhaps more so than has been illustrated so far from some quarters of the House—and I should like to draw attention to a number of the matters that need to be considered.
In concluding his speech on Second Reading in the House of Lords, Lord Filkin commented on the fact that the European agreements that lie behind the Bill have been through the scrutiny process in both Houses. In respect of the House of Commons European Scrutiny Committee—this is important—he went on to say:No doubt, it will have much to say about our proposals for implementing these measures."—[Official Report, House of Lords, 2 December 2002; Vol. 641, c. 975.]Important considerations lie at the heart of these proposals, and I am aware of the fact that the Government have a substantial majority. I am also aware of the fact that we introduced some constructive proposals in the other place, and I pay tribute to Baroness Anelay for securing the adjustments that the Government have, I think, now accepted with regard to the surveillance procedures. She also suggested that perhaps some of the measures in the Bill should be subjected to a sunset provision, especially the Henry VIII clause—I think that it is now clause 92, to which I shall come later. That subject is causing increasing concern in both Houses of Parliament because of the broad nature of the method of procedure being used.
The matter that concerns me relates, in part, to what is going on in the European Convention with regard to the Schengen arrangement. I suggested to the Secretary of State for Wales, who is the lead Minister in the Convention, that perhaps the Government were engaging in what I euphemistically described as some light footwork. When I get into the application of the Schengen arrangement to the Bill, the House may understand what I am driving at: we and the Irish have an opt-out from Schengen.
In her speech on Second Reading in the other place, Baroness Anelay asked the Minister to what extent we were treading towards the full Schengen arrangement through the back door. There is some concern that the Government are, in fact, taking us into the full Schengen arrangement by a series of grandmother's footsteps. When I cross-examined the Secretary of State for Wales, he assured me that we would not seek new opt-outs, but he did not say that we would necessarily retain our existing opt-outs.
I should like the Minister to deal with those concerns when he replies, as there is some anxiety among those who are attending the Convention that the Government 828 are not being as candid about that matter as one would expect. After all, the Bill will be subjected ultimately to the future application of what emerges from the treaty that implements the Convention. It is important for us to know exactly where the Government stand in relation to the whole Schengen agreement in so far as they are already engaged in policy making at the highest level in the Convention.
Having made that general point, I wish to refer to the Bill, as explained by Lord Filkin, whom I had the pleasure of cross-examining on criminal justice matters in the European Scrutiny Committee. He rightly says:International crime affects us all. Greater freedom to travel and live in other countries and the growth of international trade mean that crime is no longer confined by national boundaries.That is true, but the words "no longer" seem to be slightly extraordinary, as they suggest that, somehow or other, proposals of the kind now being adumbrated are a novelty. No, the reality is that international crime has been with us for a very long time.
Anyone who has read Sherlock Holmes or any of the great detective writers of the 19th century, let alone those of the 17th or 18th centuries or before, will know that the problem of international crime has applied since in the middle ages. However, I am prepared to concede that modern technology has changed the nature of international crime. I understand the need for greater co-operation, particularly in respect of terrorism, but that is not to say that I necessarily agree with the idea of international co-ordination. The distinction is important.
It is perfectly true to say, as Lord Filkin put it, thatThe Schengen arrangements provide a clear framework for effective co-operation, especially for cross-border police operations. The UK first applied to participate in the police and judicial co-operation elements of Schengen in May 1999. Our application was accepted a year later"—[Official Report, House of Lords, 2 December 2002; Vol. 641, c. 971–72.]The point that I am making is that he uses the expression "co-operation", but I would be rather inclined to suggest that we should refer to co-ordination, instead of co-operation, in the context of the Bill.
§ Mr. Greg Knight (East Yorkshire)
Co-operation on terrorism is one thing, but what justification is there to implement driving disqualifications in this country on UK citizens who have been disqualified overseas, particularly if the length of disqualification overseas would be widely regarded here as disproportionate to the offence committed? My hon. Friend spoke about grandmother's footsteps; is it not more like athlete's footsteps?
§ Mr. Cash
I hope that it is not a case of athlete's foot. All I can say is that there are disparities in driving disqualifications in the different jurisdictions, and one of the biggest problems that we face in relation to this perpetual stream, this tidal wave of determination to harmonise our legislation, including criminal law, in the European context, is that we constantly come up against the problems of differences in principle, procedures and judicial method. There are even differences in the kind of people who are engaged in the process of judicial authority, as was mentioned in my exchanges with the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd).
829 Indeed, in the European Scrutiny Committee only last week, we heard from two witnesses, one of whom came from Statewatch and the other from Fair Trials Abroad—not people whose evidence one would normally associate with Conservative Members. The Chairman of the Committee asked one of those gentlemen whether he would repeat a specific point in case he wanted to correct it. He said—I slightly paraphrase because, unfortunately, I do not have an encyclopaedic memory, but it will do for the purpose—that, to his certain knowledge, there are junior judges in a number of European Union countries who are xenophobic in their attitude to foreign offenders.
Even I was slightly taken aback by the tenacity with which he held that view. He was quite emphatic. If that is the judgment of an extremely dedicated person who comes from what can only be described as the liberal left, we should take account of his view in our consideration of any provisions that deal with the interweaving of the criminal system. Questions will ultimately be decided by judges—at least, we trust that they will be proper judges—and the very thought that they might be xenophobic is a matter of grave concern. No doubt, the proceedings of that public hearing will be published shortly and these statements can be verified.
I am deeply concerned by the ethos that lies at the heart of some of these proposals, however much we may want to achieve the general objectives. For example, Lord Filkin referred to drug smuggling, and we want to be sure that we can avoid that and the drug trafficking that goes with it. As he said:Other cross-border crimes have an impact on society more widely—such as counterfeiting, money laundering and cigarette smuggling. People trafficking is on the increase: 21,800 illegal entrants were detected in the first nine months of 2000 compared with 16,000 in 1999.The best way to tackle international crime is to work closely with our neighbours.That is an exceptionally good point. The question is how we do that and whether the Bill is the best vehicle. He added:The Netherlands and Spain are both significant bases for the secondary distribution of drugs within the EU, including to the UK. We are already working with our EU partners.He then provided several examples.
Lord Filkin then moved on to the question of the Schengen arrangements. He said:The Bill will make the changes needed to enable the UK to participate in the non-border aspects of the Schengen Convention.I understand what he means. That is the aspiration, but he used the word "needed". Is the Bill absolutely necessary to achieve the objectives that we all want achieved, which is to ensure that effective action can be taken to deal with cross-border problems? Is the prescriptive system provided for by the Schengen agreement, which we opted out of and into which we are now being filtered, the appropriate way forward? The debate in the other place and the speech of my hon. Friend the Member for South-East Cambridgeshire (Mr. Paice) made it clear that the general thrust of the objectives is to prevent international crime as far as possible, and I do not disagree with that. I ask the 830 question in the context of the direction in which the convention is going. Given the articles in the convention, we may find that we are being screwed down to the table to the point at which we may find that the whole Schengen operation applies to us as it does to others.
Lord Filkin made a further point in his interesting Second Reading speech. He said:The question of UK participation in Schengen"—this is an understatement—has been of considerable interest to your Lordships' House.Indeed, it has. It has also been of considerable interest to this House. I have the honour of assuring Lord Filkin of that.
Lord Filkin then referred to the four separate reports in the Schengen acquis that were conducted under the aegis of Lord Wallace of Saltaire and a committee of the European Union. Lord Filkin made it clear that the four reports dealt withincorporation into the EU treaty structure and the UK's intentions towards Schengen".He notes thata report published in March 1999—just before the Government made our formal application to participate in Schengen —concluded that:'if the United Kingdom does not opt-in, its influence over a broad range of Justice and Home Affairs matters may be seriously diminished … Weaker United Kingdom influence over the development of European policies will mean that such policies will reflect the preferences of others, and fail to take into account particular United Kingdom concerns'."—[Official Report, House of Lords, 2 December 2002; Vol. 641, c. 971–72.]We have heard that argument over and over again. We will be better off if we are in the club because that is the framework within which its members are working and we will be able to influence what is going on. I do not know whether Members present had the benefit of seeing Mr. Evan Davies—not a notable Eurosceptic—talking on BBC2 about the euro and what is going on elsewhere within the EU. He mentioned the principle that participation equals influence equals benefit, but the short answer is that there is no evidence with regard to that matter or to this—apart from maintaining the merits of a proper degree of co-operation, with which I entirely concur—that that principle is necessarily the right approach.
I remember talking to the then Home Secretary, now Lord Waddington, at the time that we took our opt-out from Schengen. We did not become as enmeshed in Schengen as we now appear to be precisely because we thought it impolitic to become so for a range of reasons. They have been discussed as a side wind to this debate, and they include the worries on data protection to which my hon. Friend the Member for Rayleigh (Mr. Francois) referred and the points on the judicial process made by the hon. Member for Meirionnydd Nant Conwy. I apologise if I have not pronounced the name of his constituency fluently. We heard similar remarks from other hon. Members.
There is deep concern about whether the principle that we somehow benefit from participation is a good one. I fear that it is not. In passing, I suggest that the common foreign and security policy is an extremely good example of a common foreign and security policy that is neither common, foreign nor secure. In all these 831 matters, we need to look to our own interests, and that is in no way to criticise the objective of trying to achieve co-operation. I am simply asking several useful questions about the efficacy of the procedure that is being followed.
Lord Filkin added:
Mr. Deputy Speaker
Order. The hon. Gentleman should realise that the usual procedure in the House is that quotations should be brief. I cannot allow him to quote huge amounts from speeches made in the other place. It is a clear rule that quotations must be brief.
Mr. Deputy Speaker
Order. The hon. Gentleman must not test the patience of the Chair. If Lord Filkin has made a speech in the other place, it is on the record for the benefit of all Members of this House, and the hon. Gentleman would be out of order if he proceeded to quote it at great length.
§ Mr. Cash
As this hon. Gentleman has not the slightest intention of being out of order, he will take the advice of the Chair in good part.
It is, however, important that we acknowledge that important questions of principle lie at the heart of these proposals. Part 2 deals with terrorism, and we must recognise that terrorists do not respect national boundaries. However, we are not talking about national boundaries only in the EU; the principle applies to terrorists wherever they come from. We know perfectly well that there is a greater likelihood that terrorists will come from countries in the middle east, for example, than from the EU.
I raise these matters in connection with our national security. This Bill is described as the Crime (International Co-operation) Bill, and it is a matter of concern that too much emphasis is placed on the question of whether we can contain terrorism that emanates from the EU, which has the underlying problem of Schengen attached to it, or whether we should look more broadly at international co-operation. We must be satisfied that proper safeguards in the judicial and criminal system are made available for the benefit of our own people and, indeed, to other persons suspected of terrorist offences who are subjected to our judicial process, where they know that they will be properly and fairly treated.
For heaven's sake, we have enough examples of cases that have gone as far as the House of Lords, costing millions of pounds in the process. I suspect that the people concerned would have got short shrift in many other countries, but they have, properly, benefited from the manner in which our judicial process protects their rights even though some people, including the Home Secretary and other Members of this House, believe that article 3 will need to be revised by the House.
§ Mr. Greg Knight
Is not one of the problems with the Bill the fact that it does not allow the English judiciary 832 sufficient flexibility to examine, and perhaps to substitute, what we would deem a fairer sentence? I think in particular of the example that I gave my hon. Friend earlier—that of disqualification from driving. It appears from clauses 57 and 58 that English courts will not have the discretion to substitute a shorter period of disqualification. Is not that a weakness of the Bill?
§ Mr. Cash
I entirely agree. Part 3, which deals with driving disqualifications, is based on the proposition that people who commit a driving offence for which they are disqualified while abroad should not be able to escape disqualification when they return home to their usual state of residence. However, any such proposition is dependent on what the penalties are, on the manner in which they are enforced and on who enforces them.
The EU convention on driving disqualifications is intended to promote the principle that drivers should abide by the rules of the road no matter where they are driving, thereby promoting greater safety throughout the EU. However, I make the same point about countries that are not in the EU. I am not entirely convinced, for example, that if a tourist from America, India or Tibet comes here, hires a car and drives badly, he should be treated differently from that breed of drivers who come within the remit of the EU convention. We have to recognise that people are people, whatever part of the world they come from; there is not a special breed of people who come from the European Union.
§ Mr. Knight
As I understand it, in some jurisdictions one can lose one's driving licence for committing a criminal offence that has nothing whatsoever to do with motoring.
§ Mr. Cash
I sincerely hope that that fate does not befall me because nothing would be worse than being barred from driving for committing an offence in France, for example. That would be intolerable.
The question of the Henry VIII clauses, which arises in relation to clause 92 in particular, concerns me a great deal. The hon. Member for Somerton and Frome (Mr. Heath), as I can see from the expression on his face, anticipates what I am about to say. Such clauses crop up in far too many Bills. I described the European Representation Bill, which was introduced in the name of the Lord Chancellor, as having more of a Cardinal Wolsey clause than a Henry VIII clause. No doubt such measures are intended to try to reduce the range and extent of primary legislation, but we are already subjected to a considerable number of what are being described as knives, guillotines and programme motions. On top of that, we find that the draconian arrangements in clause 92 make this important Bill much more complicated, and much less democratic, because it can be amended by resolutions of the House, by regulation and by order.
I believe that I am right in saying that some adjustments were made to the Bill in the other place, and that the affirmative resolution was applied to some of the provisions, although the annulment procedure was retained for others. That is not to say that taking measures by order is not an increasingly unsatisfactory way of legislating, particularly where one is dealing with 833 questions of this kind. Because of judicial co-operation, the extent and range of criminal law in the EU is gaining ground exponentially.
Last week, or the week before, in cross-examining a Minister, I asked about the introduction of qualified majority voting in that context, because our criminal law system is being seriously invaded, and the Bill is an example of that. The mechanisms that it provides for dealing with criminal matters, including drug trafficking and all the other things that we abhor, are being driven forward in the Convention on the Future of Europe to the point at which there will be a significant, if not complete, reduction in the ability of national Parliaments—
Mr. Deputy Speaker
Order. In his well-known enthusiasm for this subject matter, the hon. Gentleman is departing too far into the general rather than dealing with the particular. We are on Second Reading of the Bill.
§ Mr. Knight
I assume that my hon. Friend is about to address clause 29, which allows witnesses to give evidence abroad through television links. Does he share my unease about that provision, and is he satisfied that it will not be open to abuse? I am concerned that if, for example, a witness is allowed to give evidence on a video link from a country ruled by a regime like the one in Iraq, that person may be subject to coercion and duress while giving evidence.
§ Mr. Cash
That is a serious danger—my right hon. Friend's point does not differ significantly from the one that I was making. As with the data protection point made by my hon. Friend the Member for Rayleigh, if we legislate on television links in the House as representatives of the people, we can be sure that we will do the best that we can to make sure that the provisions are right, fair and proper. However, problems arise in connection with exterior jurisdictions, which sometimes compare unfavourably with ours.
There is a general welcome for part 2, especially the provisions on terrorist offences. We are deeply concerned about events both before and since 11 September, and must show that the fight against terrorism is indeed taken seriously by authorising closer co-operation between police forces, surveillance agencies and so on. I am also concerned about the protocol on mutual assistance on criminal matters, which affects powers in the Bill. We have come up against these protocols on a number of occasions, and it is important to remember that, as with the charter of fundamental rights, we cannot debate them in the House—at any rate, we cannot amend them—which puts us at a considerable disadvantage. I urge the Minister to consider why that method is being used, as it is effectively a prerogative.
Have the Government effectively taken to themselves certain powers if Parliament is determined to reject the Bill? By using the protocol, the Government are 834 introducing provisions that we cannot amend, so we are at a considerable disadvantage. In Committee, will the Minister put on record what our EU partners will do to introduce legislation to impose exactly the same obligations and penalties on their citizens? What timetable has been adopted to comply with the various protocols?
We have already discussed judicial and police systems in other countries, which is another matter that we need to consider carefully. Lord Goodhart of the Liberal Democrats made it clear that Italian arrangements on delay fell far short of what we would expect in this country. In his opinion, the system of criminal administration in Belgium is so bad that it is a national scandal. Those matters are not just trotted out by people giving vent to unfounded fears and anxieties. I referred earlier to the fact that there is evidence of xenophobia among judges in other countries, and similarly there are serious problems with criminal administration and delay.
When people co-operate, they have to be on an equal footing. There is no point in co-operation if it is simply a jumble that we put into a crucible and boil up in the hope that it will all turn out all right. Co-operation must be based on commonly understood principles, and if they are not sufficiently adhered to by other nation states we will have difficulties. I therefore urge the Minister to pay careful attention to the problem of lack of symmetry. We hear much about asymmetric warfare in the context of the Iraq war. I cannot think of anything worse than asymmetric legal systems, which would strike at the heart of what we are trying to achieve on Second Reading. If the Bill is to achieve international co-operation against crime, but does not solve the problems of asymmetry between various judicial systems, we will encounter serious difficulties.
§ Mr. Desmond Swayne (New Forest, West)
I hope that my hon. Friend is not going down the road of hannonisation of legal systems.
§ Mr. Cash
I am delighted to tell you, Mr. Deputy Speaker, that I do not have the slightest intention of being tempted down the primrose path by my hon. Friend.
The listing of crimes causes some concern. I was intrigued to learn that Lord Lloyd of Berwick, an international expert on these matters, suggested that he could draw up a list, and it was proposed that the Government could adopt it. I do not know whether Ministers have picked up that point—the Minister for Citizenship and Immigration did not refer to it in her opening speech—or whether they intend to follow it up. In carrying out what some people call hot watch and others hot pursuit—I am much happier with the "surveillance arrangements"—it should be made clear that foreign customs officers and police officers should not be allowed to enter private homes. Is it clear that they should not be able to challenge or arrest the person under surveillance? Should they not be required to contact the authorities immediately on crossing the border and submit a formal request for assistance as soon as possible? They should not simply arrive and get 835 on with their task. The process must be tempered and qualified by a vigilant system of monitoring in this country by people who are competent to do so.
I made the point earlier about language and translation. It is out of the question that we should allow officers to come over as part of the surveillance process without adequate translation services. We can imagine what would otherwise happen. One of the Ministers' own constituents could find himself confronted by an officer who turned up at his home to conduct surveillance—an officer who does not speak English and with whom he cannot communicate— and the process of surveillance would be conducted within a five-hour period. I do not know whether Ministers have thought the provisions through. It is a difficult problem.
§ Mr. Heath
It sometimes takes five hours to get across my constituency. Is it not enormously more likely that a Dutch officer, for instance, coming to Britain to carry out surveillance will speak perfect English than that a British police constable performing surveillance in the other direction will speak perfect Dutch? Does not reciprocity apply?
§ Mr. Cash
Indeed. I am delighted to agree with the hon. Gentleman. If co-operation is to work properly, it should work both ways. Mutuality is central to the Bill, but there is a much greater likelihood that somebody who comes to the UK from Denmark, Holland or one of the other European countries will be able to speak English than vice versa. I do not know how many police officers in this country can speak Greek, for example. I leave the rest to the imagination of the House. It is a matter that will need careful consideration in Committee. Yet again, the surveillance process will involve considerable expense, as translation services are expensive.
My hon. Friend the Member for Rayleigh touched on data protection. There are a number of points that require further analysis. It is acknowledged, and it has come out in the debate so far, that the Schengen information system is not allowed to include personal data revealing racial origin, political opinions or religious or other beliefs, or personal data concerning health or sexual life. However, we must be satisfied that data protection rules cover those aspects. Will the Minister confirm that that is so? Will he also say who is responsible for the accuracy of data and the liability for damage resulting from, for example, the transmission and use of inaccurate data?
In an intervention, I mentioned the 49,000 terminals that exist and the potential dangers with so many terminals: a lack of proper security and control over their use, the scope for invasions of privacy, and the difficulties of ensuring that the rules are properly complied with. It is quite a thought. There is a powerful "1984" quality to all this. Vast amounts of information can be held in 49,000 terminals, and that figure was calculated two years ago. How many megabytes and 836 how much information do those terminals contain? What prospect is there that people could be sure that the information about themselves was properly put into those computers, or that they could get access to it?
Are we moving into a "1984" world? We probably are, in certain respects. I accept that the measures might be beneficial in tracking down criminals, but safeguards are necessary to protect the civil liberties of people who do not fall within the ambit of terrorism, drug trafficking, international money laundering, counterfeiting and all the other activities included, understandably, in the Bill.
§ Chris Grayling (Epsom and Ewell)
I am listening with great interest to my hon. Friend. He knows that one of the challenges faced by credit control agencies in this country are situations in which data have been mixed up and somebody is deemed not creditworthy because of another person who previously resided at their address or had a similar name. My hon. Friend's argument may be relevant to such cases, in which a confusion of names or addresses could lead to someone being wrongly suspected or recorded.
§ Mr. Cash
I can only register my concern. The matter will have to be considered in Committee. Some people may think that examining such issues on Second Reading is taking more time than they would like, but that is not to say that these are not matters of extreme relevance. As the process is implemented, I predict that the very matters that I raise—for example, in respect of the terminals—will come home to roost. I want to know what assurance Ministers can give us that the system will be secure and that it will not be misused.
I have some alarming concerns that arise from the Court of Auditors 1996 report on the Netherlands SIS. There are 7,000 people who are authorised to access the system in the Netherlands—that is quite a lot. Of those, 500 are also authorised to change the data, so the potential risk of unauthorised access, unlawful disclosure and/or inaccurate information, as the Court of Auditors report put it, being entered into the database is great. That was seven years ago. It is not just a matter of volume and intensity. The system has been audited and was found to be a cause of grave concern. The question will be how the Information Commissioner will operate functions under part VI of the Data Protection Act 1998. I trust that the Minister will give a full explanation. The provisions enable the Information Commissioner to inspect personal data recorded in the UK section of the three European information systems without a warrant. There is concern that the system has not kept pace with modern methods of data storage and exchange.
Frankly, in the light of the figures that I have been given, it is a matter of deep concern that we should be absolutely certain that, in the application of the provisions, there is proper monitoring, systems are completely up to date, people's privacy is not unfairly invaded and there is no misuse of the system. A question has to be asked about whether the Information Commissioner would have the right to allow individuals to have access to the information that is held. Will the commissioner be responsible for monitoring the entry of information into the computer systems?
837 I have traversed a considerable amount of the Bill and I make no apology for having taken a little time to do so. These are important matters that need to be properly looked into. I am grateful for the acknowledgement from one of the usual channels—he has indicated it by nodding his head—that, despite the fact that my contribution has taken a little of my time and that of the House, these matters need proper scrutiny. I wish those serving on the Committee well in considering these important issues. Indeed, I also wish the Government well. If they have the majority needed to get the Bill through, it is in the interests of all the people whom the provisions will affect that they get it right for the sake of the country as a whole. We know that they will get all their amendments through, or at least we believe that that it is likely, certainly in respect of the Bill as it emerged from the other House. That is why the Ministers have a greater burden of responsibility to ensure that the provisions work effectively. I hope that some of my remarks will be of some assistance in Committee and in other debates in ensuring that the Bill proceeds in a satisfactory manner.
§ Mr. Greg Knight (East Yorkshire)
At first sight, this seems a reasonable measure that should command—
Mr. Deputy Speaker
Order. I hope that I have not anticipated the right hon. Gentleman, but I think that it would be in accordance with the courtesies of the House for him to apologise for his inability to be present for the larger part of the opening of the debate.
§ Mr. Knight
You did indeed anticipate what I was about to say, Mr. Deputy Speaker, so I shall return to what were to be my original opening remarks. Although this appears at first to be a fairly innocuous Bill, I was hoping to hear the opening remarks of the Minister and, just as important, of my hon. Friend the Member for South-East Cambridgeshire (Mr. Paice). Unfortunately, owing to a constituency matter, I was delayed in arriving in the Chamber. I apologise to both the Minister and the shadow Minister.
Nevertheless, where one has a view, it is important that one share it with the House, even if one cannot be present for all the proceedings. There are many occasions on which hon. Members speak on Second Reading and hear the opening speeches, but cannot hear the winding-up speeches. Today, I find myself in the reverse position, as I did not hear the earlier remarks but certainly intend to stay and listen to the concluding speeches.
The more I peruse the Bill the more concerned I am. I have already alluded to some of my concerns in interventions on my hon. Friend the Member for Stone (Mr. Cash). My first concern relates to video evidence. Anyone who has practised in the courts in England and Wales or, indeed, has merely listened to court proceedings in this country knows one thing for certain: witnesses before a court of law in this country come freely, speak freely and leave freely, without threat or hindrance. That is one of the cornerstones of our system of justice. That is why, when a witness gives compelling 838 evidence in a case, the jury usually gives great weight to what they say. Members of the jury can see the witness in person, see that they are not compelled to be present and judge for themselves the reliability of the evidence that they give.
My concern about the provisions relates initially to clause 29, which deals with "Hearing witnesses abroad through television links". The provisions permit the hearing of witnesses via video link when, according to the explanatory notes to the Bill, it is "neither possible nor desirable"—whatever that means—for a witness to travel from his or her member state to where the evidence is required. I hope that the Minister can reassure me that there will be safeguards in place whenever video evidence of that nature is used. Although one can see from a video screen the demeanour of a witness, one cannot see what is happening behind the camera. One cannot make the assumption that one could make in open court that the witness was there freely and had not been threatened with sanctions against either him or his family unless he gave his evidence in a certain way.
§ Mr. Llwyd
I do not know whether the right hon. Gentleman has any experience of criminal law in England and Wales, but video evidence is given in this way in every Crown court virtually every day, especially by youngsters and children, without presenting any problems for the defence or the prosecution.
§ Mr. Knight
I am grateful to the hon. Gentleman, but I do not think that he has a valid point. Of course this happens every day in the United Kingdom, but in cases in which the witness is also in the United Kingdom. We know that we have a fair and just system, but what about cases in which the witness is overseas? How are we to know that the circumstances surrounding the giving of evidence by a witness will be fair under an overseas regime? That is my concern. Indeed, the hon. Gentleman's intervention rather makes my point. I am relaxed and satisfied by video evidence given in this country because I know that we have the highest possible standards. But what about the so-called justice overseas, which might fall well below the standards that we expect and maintain in this country? That is the point for the Minister. Will he reassure me that the same procedures will be in place for video evidence given overseas as is in place for such evidence given in the United Kingdom?
§ Mr. Cash
One of the problems that arises is that, these days, it can be difficult to tell whether video evidence has been tampered with. Don't ask me why that is the case, but one or two recent cases have suggested that people simply cannot tell whether it has been tampered with. Would it not be a serious worry that such evidence were being made available to the courts, if the video system did not accurately reflect what was actually being said?
§ Mr. Knight
My hon. Friend makes a point with regard to recorded work on video. It is certainly possible to edit a recording in such a way that the person speaking might appear to say something completely different on the edited version from what was said on the original recorded tape. I am not sure whether that 839 process could be carried out on a live video link, but there is certainly a risk involved when one is dealing with recordings, both of an aural and video nature.
§ Chris Grayling
My hon. Friend makes an interesting point. It would also be interesting to know the status of video evidence of the kind that he describes in a case in which the European arrest warrant was being used, and to know whether that would be a vehicle that might permit an investigation or arrest to take place based on such questionable circumstances.
§ Mr. Knight
That is an important point that I hope the Minister will address in his closing speech. It certainly adds to my concerns about these provisions.
I have other concerns, particularly relating to clauses 54, 55, 56, 57 and 58, which cover the recognition in the United Kingdom of foreign driving disqualifications. I can understand where this idea came from. My hon. Friend the Member for Stone said that we should all encourage good driving, whether here, in Spain or in any other part of the European Union. We also expect certain levels of fair play in this country, however. We would expect a United Kingdom citizen to be disqualified only for an offence that would carry a disqualification over here.
I understand that several states of the United States of America have introduced a yob-busting system. It is known that most young people want to own and drive a motor car, and so offences such as theft, dishonesty or violence carry the sentence of losing one's driving licence. I am worried that if United Kingdom citizens on holiday abroad had too much to drink and became involved in a fracas, they would expect to be punished with a modest fine, not lose their driving licence. If the provisions were implemented, such people would discover that because they had lost their ability to drive overseas, they had also lost their ability to drive in this country, which could lead to the loss of their livelihoods. There could be serious consequences for many people in the United Kingdom.
§ Mr. Swayne
There would, of course, be contributory negligence on behalf of a citizen so affected. My right hon. Friend will know that it is not long since the Government proposed that people who did not pay their dues to the Child Support Agency should lose their licence.
§ Mr. Knight
That is as offensive as the scenario that I described.
I hope that the Minister will give an undertaking to consider modifying several of the Bill's provisions. They provide that the Driver and Vehicle Licensing Agency in the UK will be obliged to implement overseas disqualifications unless a disqualification has less than a month remaining. I ask the Minister why there is no provision to allow discretion to be applied and for a shorter disqualification to be imposed. Why does the Bill not include a system whereby if examination in the United Kingdom showed that the disqualification was too severe or unfair, or that it was a punishment for an offence that does not carry an equivalent penalty here, the English courts could substitute the period of 840 disqualification with a shorter and fairer period? I hope that the Minister will address that point in his winding-up speech.
§ Mr. Swayne
Will my right hon. Friend give us guidance on what he thinks would be a proper shorter period?
§ Mr. Knight
That depends on the circumstances of the case. A person may be convicted overseas of an offence for which an overseas court would impose a disqualification, whether that is fair or not. However, the disqualification might be out of all proportion to the offence, or UK subjects might not have been able to anticipate such a punishment. It is asking a bit much to expect UK citizens to know the ins and outs of foreign law. It is said that ignorance of the law is no defence before the English courts. However, if people broke the law in a foreign country and they were not aware that they would risk being fined and losing their driving licence, that should be a mitigating factor because the punishment might lead them to lose their livelihoods and—if they were unable to keep up their mortgage payments—even their property. The Bill should give UK courts the ability to decide whether the disqualification is fair. If the courts considered it to be fair, they could leave the period unaltered but if they considered it unfair, they could substitute a shorter disqualification. I would argue that the courts should be able to substitute a nil disqualification if they considered that the disqualification was causing a person undue hardship.
§ Chris Grayling
My right hon. Friend may be interested to note that clause 56(4) refers to a minimum period of six months, except when the conviction relates to a prescribed state. What constitutes a prescribed state is not immediately apparent. However, my right hon. Friend knows that sentences of much less than six months are passed for offences such as speeding. They might be for 14 days, one month or three months. The Bill does not make clear the way in which a court or driving authority in another country would handle such circumstances.
§ Mr. Knight
My hon. Friend is right. I have every confidence in the judicial system in this country. Many magistrates who are faced with a case in which they believe that an offender should be disqualified but hear that he needs his licence for work, will ask the defendant, "Have you taken your holiday from work yet?" If the answer is no, they will ask, "How long are you entitled to a year?" If he replies, "Three weeks," they will often disqualify the defendant for that time. That is done deliberately to ensure that the effect of the disqualification is not disproportionate—in other words, that the defendant does not lose a livelihood through a mid-ranking motoring offence. I hope that the Under-Secretary will tackle those genuine anxieties when he winds up the debate.
I share some concerns with my hon. Friend the Member for Stone about foreign police officers roaming around the English countryside. We all know that a police officer who is not a member of the CID and investigates a crime has to wear a police uniform. What will be the position of foreign police officers? Will they 841 have to wear the uniform of their country? The Bill affords them the same protection as a British officer who acts in the performance of his duty.
Interfering with a police officer who is carrying out proper inquiries or assaulting a police officer are specific offences that relate to a person who is a serving member of a constabulary. Will foreign police officers have to wear their uniforms? If so, what happens if the uniforms do not make it immediately clear to a UK citizen that those wearing them are police officers?
§ Mr. Knight
That is a fair point. If it is decided not to wear a uniform for efficiency reasons, will foreign police officers have to carry an identification card, which is printed in English and would make it clear to a UK citizen that he is dealing with a member of a police force? The Bill is strangely silent on that. The Bill should include a provision to safeguard UK citizens from heavy-handed police tactics by officers from overseas.
Our system has a well defined method for making complaints. I have the highest regard for our police but, now and again, they fall below the standard that we expect. A police complaints procedure is in force to deal with that. What happens if a foreign national, who is carrying out a surveillance operation here, behaves thuggishly towards someone who is not directly related to the inquiry? What complaints procedure will be applicable in such cases?
Of course, we appreciate that crime has no frontiers and that, consequently, crime detection should have none. However, when we try to dismantle barriers by allowing foreign police officers to undertake surveillance work in the United Kingdom, we should examine the safeguards. There is a good argument for saying that as one removes the barriers one has to increase the safeguards. No Member of the House would want to have rules such as those that applied in the United States 100 years ago. We have all seen those old cowboy films in which the baddies make their getaway by crossing the state line. Once over it, they know they are free from arrest for an offence committed in another state. Of course, no one wants such an arrangement to be introduced across Europe, but if we are facilitating greater co-operation we need to ensure that greater safeguards are in place.
Before drawing my remarks to a close, I should refer to my only other reservation, which relates to what my hon. Friend the Member for Stone called the Henry VIII clause. I prefer to call it the Minister's carte blanche clause. It is bad law-making to include such provisions in every Bill. If the Bill becomes law in this or an amended form and the Minister wants to make changes a few months down the line, he should have the courage to return to the Dispatch Box to tell the House what he wants to do. He should not hide behind a catch-all clause. I hope that he reflects on the points that I have raised and that, in due course in Committee, he is prepared to amend the Bill.
§ Mr. Nick Hawkins (Surrey Heath)
The debate has attracted a lot of interest on the Conservative Benches, but staggeringly little on the Government Back Benches. Indeed, for the vast majority of a debate that began at about 12.45 pm, the Government Benches have been empty, apart from the places occupied by the Ministers, a Parliamentary Private Secretary and the Government Whip, so there is clearly no enthusiasm on the Government side for the legislation, or indeed recognition that it is in any way important. However, that deficiency has been well made up for by a number of speeches from Conservative Members, which showed serious interest in this important Bill.
As all speakers have said, there is support on both sides of the House, as in another place, for measures against terrorism, but, despite that support, concerns remain that we shall want to scrutinise in Committee. One of the most important issues raised in another place, which we shall also want to discuss in Committee, was co-ordination of anti-terrorism activity and, in particular, what is referred to in the United States as homeland security.
My noble Friends sought to include a provision to ensure that we would know precisely who is dealing with all matters involving protecting our citizens in the light of a possible terrorist attack. The position is this: the Prime Minister is in overall charge of intelligence and security matters; the Home Secretary is responsible for the Security Service; the Foreign Secretary is responsible for the Secret Intelligence Service and for GCHQ; and the Defence Secretary is responsible for the defence intelligence service.
In addition, there is a ministerial committee on the security services, which is chaired by the Prime Minister and includes the Deputy Prime Minister, the Home Secretary, the Foreign Secretary, the Defence Secretary and the Chancellor of the Exchequer. An Under-Secretary of State for Foreign and Commonwealth Affairs is the junior Minister responsible for counter-terrorism issues at the Foreign Office, while the Home Secretary takes responsibility for terrorism policy at the Home Office. The Minister of State for the armed forces is responsible for intelligence and security matters at the Ministry of Defence. Furthermore, last year, Sir David Omand was appointed to the civil service post of security and intelligence co-ordinator at the Cabinet Office.
That confusion and that litany could have come straight from a script for "Yes, Minister" or "Yes, Prime Minister". We simply must have much clearer lines of responsibility and there ought to be, in this important legislation, as part of the protection of UK citizens against a terrorist threat, a clear statement that a Cabinet Minister is alone responsible for civil security and civil defence.
§ Chris Grayling
My hon. Friend is making an extremely important point. Does he agree that, in the final analysis, we should also be certain that, despite the undoubted desirability of collaboration and cooperation across Europe on those matters, we should never be placed in such a position that the final decision 843 on the protection of our citizens cannot be taken in this country? I hope that he ensures in Committee that that is the case.
§ Mr. Hawkins
Certainly. I, along with my hon. Friend the Member for South-East Cambridgeshire (Mr. Paice) and other Conservative Members, will seek to ensure that that happens.
There are a number of general worries about the Bill. On 2 December, my noble Friend Lady Anelay pointed out that in many parts of the Bill the Government seek to lead us into Schengen by the nose and through the back door. That can be found in column 976 of the House of Lords Hansard. A number of my hon. Friends, notably my hon. Friend the Member for Stone (Mr. Cash), have stressed our anxieties about that.
Our scrutiny role in the United Kingdom Parliament has already been undermined by this Labour Government's signature to various protocols and agreements. The regulatory impact assessment makes clear that the Government have already agreedto urgently ratify the Protocol".That is the authors' split infinitive, not mine.
Of course our involvement in European co-operation against international crime and international terrorism is important and welcome. Not long ago, my hon. Friend the Member for South-East Cambridgeshire and I visited the authorities in the Netherlands, and went to see the European police co-operation centre—known there as Politie. We had some good meetings, and we recognise that there is a huge role for international police co-operation. Nevertheless, the need for co-operation against international terrorism and international crime should not be allowed to give the Government licence to ignore the vital need to keep this British Parliament's sovereign rights intact, and to ensure that decisions are made by this sovereign Parliament.
Many of my hon. Friends have mentioned concerns about shared information systems. Ministers may or may not know about what those in the information technology world describe as the GIGO factor—garbage in, garbage out. A number of Conservatives, and other Opposition speakers, have referred to the problem posed by the number of terminals that already have access to the Schengen information system, and to the dangers of misinformation—for instance, the possibility of improper arrest. There is a further danger: if so many people have access to a system, there is a risk of deliberate misuse of that system for criminal purposes. Sadly, it is not unknown in any country for those with access to a secret information system to misuse it in an attempt to become involved in crime.
Concern has also been expressed about the way in which recognition of motoring offences will be dealt with. My right hon. Friend the Member for East Yorkshire (Mr. Knight) was particularly worried about that. I shall say something later about my experience of international aspects of driving matters when I practised in the courts.
Conservative Members are pleased that in another place the Government were prepared to accede to a number of points raised by my noble Friends Lady Anelay, Lord Bridgeman, Lord Dixon-Smith and Lord Renton. As can be seen in column 70 of Hansard, on 23 844 January the Attorney-General accepted Lords amendment No. 127, tabled by Lady Anelay. I hope that the fact that the Government have started to accept Conservative amendments exactly as drafted will be a helpful precursor to what happens in our Committee. All too often in Commons Committees, even if the Government and their advisers realise that we are right, rather than accepting our amendments as drafted they oppose them at the time but, grudgingly, return with Government amendments, having changed the odd word, so that it cannot be said that they have accepted a Conservative amendment.
I also want to talk about important banking issues, which parts of the Bill raise. I may be one of a small number of lawyers in the House—perhaps the only one—to specialise in banking and financial services law. To the best of my knowledge, I am the only one to have specialised in credit card law for several years before entering Parliament. I look forward to posing detailed questions about that matter to Ministers in Committee, based on some of the international banking issues raised in the other place and on my own experience.
Several hon. Members have already referred this afternoon to fishing expeditions. We want to ensure that prosecuting authorities do not improperly use what the courts call fishing expeditions: constraints should be placed on them. Once again, my noble Friend Baroness Anelay explored that subject in the other place and the Government gave some undertakings on how fishing expeditions would be constrained. It is fair to say that in Committee we shall want to build more protections into the Bill. At this stage, however, I want to say that we recognise and are grateful to the Government for the undertakings that were given from the Dispatch Box in the other place.
As I look across the Chamber I see the Under-Secretary, who, like myself, is a veteran of the Proceeds of Crime Bill— the longest Bill with the most Committee sittings of the previous parliamentary Session. Some issues from that Bill, and from the Extradition Bill, which we both had to deal with more recently, will crop up again. As so often, the Home Office Bills produced by the Government are interlinking, and the hon. Member for Somerton and Frome (Mr. Heath) rightly said that the Government are producing criminal justice legislation drip by drip without fitting all the pieces together. We have already heard in some of this afternoon's speeches how some of the provisions interlink with arguments about the EU arrest warrant in the Extradition Bill and how other issues overlap with the Proceeds of Crime Act 2002.
As I have discovered in my own constituency, if the Government, for proper motives, seek to impose new legislation on banking, banks can use the cover of what they must do to stop money laundering to demand more and more—in my view, unnecessary—information from customers for commercial reasons. I stress to the Minister that I recently had occasion in a Delegated Legislation Committee to place on record my concern on behalf of one of my constituents, Doris Christie—a trustee and clerk to a local charity—about the way in which a particular bank was asking for improper information of a personal nature, going far beyond what the legislation required. When pressed, the bank was forced to admit that it had acted for commercial reasons, after initially using the cover of the Proceeds of 845 Crime Act 2002. Conservative Members certainly warned the Government about that during the passage of that legislation.
§ Mr. Cash
Does my hon. Friend have in mind the framework decision on the freezing of assets and evidence, which was debated in European Standing Committee? Difficulties arose in implementing the arrangements covered in clause 13 of the Bill, particularly the problem that the request for assistance and information did not have to come from a court or a judicial authority. Another question is the extent to which Eurojust would qualify as an international authority under clause 13. As the convention is coming up in the lift, that question would also apply to Europol, if it were established under the treaty. Those matters will doubtless be debated in Committee, but I invite the Minister to reflect on them, too.
§ Mr. Hawkins
I am grateful to my hon. Friend for raising that point. We are worried about the proposed European convention being introduced, and about how other legislation links into that. I share my hon. Friend's concerns, and echo his request to the Minister to deal with the matter, both this afternoon and in Standing Committee.
In his opening remarks, my hon. Friend the Member for South-East Cambridgeshire raised several matters to which we hope that the Minister will respond. For example, foreign police officers will come into the UK for surveillance purposes, subject only to a vote in proceedings on a statutory instrument. The Opposition believe that the House as a whole should consider such matters.
We also stress our opposition to clause 82(6), mentioned by several other speakers, which denies UK citizens any recourse in terms of civil liability if their personal property is damaged in any way by a foreign officer conducting surveillance in this country. There are also huge concerns about clause 82(8), which deals with the time frame of five hours. When Lord Filkin was asked in another place why five hours had been chosen, he said that the figure was plucked from the air because it is the figure used in Schengen. That is not a sufficient answer to a very good question, and we shall certainly want to explore the matter further in Committee.
In his opening speech, my hon. Friend the Member for South-East Cambridgeshire rightly noted the great concern about officers who may be involved in surveillance in our territorial waters. If they were looking for drug smugglers on board a ship, for instance, the concern is that the clock would not start to run on the five-hour period set out in the Bill until any foreign officer who may be involved had landed in this country. We shall refer to that matter again in Committee.
§ Chris Grayling
Technically speaking, in law, one enters British territory—at Calais, or at the channel tunnel terminus— when one passes through passport control. There will therefore be a significant amount of time between when a person passes through the terminal and when that person arrives in the UK proper.
§ Mr. Hawkins
My hon. Friend is right, but my hon. Friend the Member for South-East Cambridgeshire 846 noted in his opening speech that the position of the foreign officer entering British territory on the French side of the channel is not as described by Lord Filkin in another place. Lord Filkin said that the five-hour period stipulated in this Bill would start only when the channel tunnel train had passed out of the tunnel and moved into Kent, or when a foreign officer had touched down at an airport or come ashore from a boat. We need to explore that matter in Committee.
In his opening remarks, my hon. Friend the Member for South-East Cambridgeshire also stressed that we want a clear undertaking from the Minister—either today or in Committee —that the measures that will be imposed on our citizens by the Bill will also be pursued in exactly the same way by other signatories to the framework and to the protocol. In fact, we should prefer something to that effect to be included in the Bill. In the past, other countries have signed up to directives, protocols and frameworks, but then have not implemented them in any way, shape or form. Many countries have a good record for signing things, but a quite appalling record when it comes to implementation. Many British citizens are concerned about that, and their worry goes far beyond this Bill.
My hon. Friend the Member for South-East Cambridgeshire expressed concern about the information systems, and I have referred to the 49,000 terminals that were already in existence two years ago. There may well be many thousands more now. That concern is reinforced by the fact that some of the EU law enforcement systems are very much in their infancy. There is a battle going on between those who want ever more centralised power and those who regard the very successful joint investigation teams as a more sensible way forward. We shall certainly want assurances from the Minister that we will not move towards the introduction of a Napoleonic judicial system. We do not want a corpus juris system brought in by the back door—an issue that was recently raised in the context of the Extradition Bill. The Police Federation is concerned about reciprocal protocols, especially the protection that is needed for British officers when they are operating on foreign soil. We want to ensure that the Bill, instead of concentrating on the rights of foreign officers when they are here, allows for rights to protect our British police officers when they operate internationally.
My hon. Friend the Member for South-East Cambridgeshire and the Minister might be right to say that the Bill will not receive a great deal of media coverage in the current international situation, but a great deal more coverage would be justified given that it deals with a very important matter and has implications for action against terrorism.
I want to turn briefly to the speeches of other hon. Members. The hon. Member for Somerton and Frome (Mr. Heath) stressed his concern about security at our ports, especially our smaller ports, and we very much agree with that. He said that the Government were dealing with matters in a piecemeal fashion; again, we agree. He also stressed, as we continually do, the need for the House to scrutinise what the Government are signed up to. I want to make an additional point. The Government have introduced the concept of so-called pre-legislative scrutiny, which is becoming more popular. It would be much better if all these protocols 847 and framework directives received pre-legislative scrutiny by this House before a Minister is sent over to Brussels, Strasbourg, Amsterdam or wherever to sign up to them. If the Government really believe in pre-legislative scrutiny, there should be pre-legislative scrutiny of a whole range of European provisions, and we shall continue to seek that from them in future.
§ Mr. Heath
The hon. Gentleman is making an extremely important point. There is clearly a democratic deficit in the way in which the Council of Ministers deals with such matters. Has he had an opportunity to look at the system that pertains in Austria, where, as a matter of course, before a Minister appears at a council in Europe, the matter in hand is taken to what I believe is called the first committee of Parliament, where it receives a clear mandate, or at least consideration?
§ Mr. Hawkins
I am grateful to the hon. Gentleman. We can learn lessons from other places where such matters are scrutinised properly before Ministers sign up to them.
§ Mr. Cash
As a counterpoint to that, does my hon. Friend know that the Convention proposes that conventions, by which I mean instruments to implement treaties of this kind, will not even have to be ratified by national Parliaments, as part of the process of completely dismantling the national parliamentary system?
§ Madam Deputy Speaker (Sylvia Heal)
Order. The hon. Gentleman is raising matters that relate to the Convention rather than to the Bill before the House.
§ Mr. Hawkins
Yes, Madam Deputy Speaker, but if I may say so without trespassing on your ruling, many hon. Members on both sides of the House—indeed, the Minister herself —referred to overlaps between the Bill and the Convention. I entirely agree with my hon. Friend. I have been discussing these matters with a colleague, Mr. Nirj Deva, who is a Member of the European Parliament and a former Member of this House.
The hon. Member for Somerton and Frome said that it was absolutely vital that there should be no danger of compromising the security of our information systems and that most people in this country would not want an erosion of our system of law in England, Wales, Scotland and Northern Ireland, although there should be respect for other systems. I agree with him. He also stressed the need to defend the liberties of the individual. He rightly said that, in this legislation, issues arose to do with dual criminality. I agree with the hon. Member for Somerton and Frome again, but the Minister is well aware that we have sought to put comparative and complementary matters into this Bill and the Extradition Bill to force Ministers to certify that they are compatible. There is a clear overlap in those two pieces of legislation, which are going through the House at the same time. We shall come back to that in Committee.
The hon. Member for Somerton and Frome rightly referred to concerns over administrative rather than judicial proceedings. He raised the issue of the admissibility of evidence and mentioned the need for 848 safeguards. He talked about banking transactions. As I have explained, I have a big personal interest in that issue. There is a fine line between what is criminal and what is disapproved of. The hon. Gentleman was responding to the hon. Member for Stourbridge (Ms Shipley) when he talked about that issue. He referred to the people detained at Guantanamo bay and mentioned his concerns about the sanction of driving bans being imposed for non-driving offences. My right hon. Friend the Member for East Yorkshire also referred to that.
I wholly agree with the important point that the hon. Member for Somerton and Frome made on the need to safeguard the rights of the people of Gibraltar. He may not know that I am engaged in an all-party committee to support Gibraltarians. Many hon. Members of all parties are involved in that, but it is fair to say that many of my hon. Friends on the Conservative Benches want to ensure that the rights of the people of Gibraltar are safeguarded. That issue is referred to specifically in this legislation. We want to ensure that the Government make no attempt—as the hon. Member for Somerton and Frome feared they might—to put pressure on Gibraltar. We want pressure to be put on Spain in response to the way in which it has quite wrongly mistreated Gibraltarians.
The hon. Member for Somerton and Frome spoke about his worry over the Bill's lack of a remedy for UK citizens if civil offences—or civil torts, as lawyers would call them—were committed against them by foreign police officers. He also wanted to support what my hon. Friend the Member for South-East Cambridgeshire said about the dangers of surveillance taking place in our territorial waters.
My hon. Friend the Member for Rayleigh (Mr. Francois), in a very powerful speech, talked about his concerns over data protection. He explained his concern about the implications for this legislation of a statutory instrument—the Data Protection (Processing of Sensitive Personal Data) (Elected Representatives) Order 2003—which was introduced by the then Leader of the House, the right hon. Member for Livingston (Mr. Cook). My hon. Friend, who has detailed knowledge of data protection issues, discussed his concerns about subsection (7) of the new section proposed in clause 81 of the Bill and about the position of the UK Information Commissioner—previously known as the data protection commissioner. My hon. Friend foresaw the absurd situation of the European convention on human rights being turned against the UK Government and the Information Commissioner. He foresaw the danger of what were intended to be safeguards in the legislation being used against the Government.
§ Mr. Cash
Does my hon. Friend agree that, in the famous Simms and O'Brien case, it was made clear that—to satisfy concerns such as those raised by my hon. Friend the Member for Rayleigh (Mr. Francois)— it would be possible for the Government to introduce legislation that was inconsistent with the European convention on human rights? Provided that it was clear and unambiguous, that would be constitutionally correct, as Lord Hoffmann has made clear in the House of Lords.
§ Mr. Hawkins
I am sure that my hon. Friend is right about that. In the early days of the data protection 849 legislation, when I was still practising as a barrister, I had experience of cases that dealt with such issues. I look forward to pursuing in Committee the matters raised by my hon. Friend and by my hon. Friend the Member for Rayleigh.
My hon. Friend the Member for Poole (Mr. Syms) expressed concerns, which are widely shared on the Opposition Benches, about the judicial systems of possible EU applicant countries. We raised similar issues during the proceedings on the Extradition Bill, when my hon. Friend the Member for Stratford-on-Avon (Mr. Maples) was especially concerned about the position of Turkey.
My hon. Friend the Member for Poole also referred to the recent Derek Bond case, in which the FBI misidentified a blameless British pensioner who was on holiday in South Africa. He was thrown into a South African police cell where he languished for a long time due to incorrect data in the FBI information system. In fact, someone had stolen the identity of that blameless British pensioner. That recent case reinforces our fears about the GIGO—garbage in, garbage out—factor to which I referred earlier. Any information system will have limitations; something can be entered by mistake, either accidentally or, as I said earlier, deliberately. My hon. Friend also had a constituency interest in our shared concern about small ports that are not properly policed.
As a fellow lawyer, I have great respect for the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), who speaks for Plaid Cymru. He echoed points made by my hon. Friends and noted that about two thirds of organised crime involved the drugs trade. As shadow spokesman on drug crime, I take his comments extremely seriously.
Only recently, I was made very much aware of the extent to which any constituency—even a normally law-abiding one such as mine—can suffer from such things. About a week ago, Surrey police conducted a massively successful raid during which they caught several international drugs criminals in my constituency. I am sure that the whole House will join me in congratulating not only Surrey police on that operation but all police forces that successfully tackle international drugs offenders.
The hon. Member for Meirionnydd Nant Conwy referred to briefings that he had received from Justice and Liberty about the absence of sufficient procedural safeguards. He expressed concern about the fact that, although the law of England and Wales has a rule against self-incrimination, that is not necessarily the case in other legal systems. He referred to the possibility that police authorities might issue freezing of evidence orders. As he is aware, that matter was discussed at length in another place and we shall return to it in Committee. Following an intervention from my hon. Friend the Member for Stone, the hon. Gentleman agreed that there are major concerns about scrutiny of the EU arrest warrant and its possible links to the Bill. He also referred to prisoner transfers, which were dealt with on 25 February in another place, at column 222.
My hon. Friend the Member for Stone expressed concern about the European convention. He wanted to know whether we shall retain our existing opt-out. That 850 is one of the most important questions on which we want to hear from the Minister today and we shall certainly be pressing Ministers on it in Committee. My hon. Friend observed that international co-operation dated back to Victorian times and referred to the success of Interpol in the 20th century. However, he described, rightly, the tidal wave of attempts to harmonise our law with laws elsewhere in the EU, despite the huge differences in legal principles—between Napoleonic, continental systems and the common law system in this country—and in legal practice.
My hon. Friend rightly shares the Government's determination to act against terrorism, drug smuggling and people trafficking, but he was concerned about driving disqualifications and the mutual recognition of penalties. He referred to the EU driving disqualification convention and, in answer to an intervention from my right hon. Friend the Member for East Yorkshire, expressed the view that Henry VIII clauses were cropping up far too often in far too many Bills. From the Front Bench, may I tell my hon. Friend that we entirely agree with him? He rightly said that the Bill contains more of a Cardinal Wolsey clause than a Henry VIII clause.
My hon. Friend expressed concern about the increase in qualified majority voting. I should tell him that our right hon. Friend the Member for West Dorset (Mr. Letwin), the shadow Home Secretary, has expressed grave concern about the way in which the Government seek to interfere even in third pillar matters, which are supposed to be sacrosanct.
§ Mr. Hawkins
I am indeed; and, most important, so is our right hon. Friend the shadow Home Secretary. Those matters will continue to be the focus of enormous debate, because just about everyone, I think, on the Conservative Benches shares our concern.
My hon. Friend referred to clause 29 and his concerns about witnesses who were abroad and TV links. He spoke of the need to co-operate against terrorism, but said that he was worried that many of these protocols cannot be debated in the House, as we have said. He talked about the timetable and scrutiny of protocols, and he referred to Lord Goodhart, speaking for the Liberal Democrats in another place, expressing concerns, which Conservative Members of Parliament certainly share, about the judicial systems in places such as Italy and Belgium—and, I would add, Spain.
As my hon. Friend the Member for Stone said, there is concern about asymmetric legal systems. He rightly referred to Lord Lloyd of Berwick in another place providing a possible list of offences to which the Bill may apply. My hon. Friend said that police co-operation must work both ways and expressed his concerns about the language issues, the need for translation services and data protection. He asked whether we were moving into a "1984" world. Cases of stolen identity such as that of Derek Bond obviously give rise to concern.
My hon. Friend also referred to the Court of Auditors' report on the Netherlands SIS and the interrelationship with the Data Protection Act 1998.
851 Finally, my right hon. Friend the Member for East Yorkshire, drawing on his experience as a solicitor, expressed misgivings about the use of video links with places abroad. I, too, am very much aware of the subject from my latter days in practice, when video links were first coming into our jurisdictions. I share his fear that if there is no way of checking that a video witness is able to speak freely in another country, that will cause our courts massive concern. It is entirely different from the situation that the hon. Member for Meirionnydd Nant Conwy mentioned, in which video links are used all the time in different parts of the UK. There will be unease if a witness is giving evidence abroad and no one in our judicial system can check that the witness has not been interfered with and is not being intimidated while giving evidence over video link.
My right hon. Friend also spoke of his concerns about clauses 54 to 58, and the recognition in the UK of foreign driving disqualifications. He has knowledge of the yob-busting systems in various US states, in which a driving ban might be added to a sentence for offences of violence or dishonesty. In response to an intervention from my hon. Friend the Member for New Forest, West (Mr. Swayne), my right hon. Friend referred to the offensive scenario of the Government thinking that they would introduce driving bans for Child Support Agency defaulters.
My right hon. Friend also rightly said that the UK courts should be able to decide what is fair—whether there should be a shorter disqualification period, as my hon. Friend the Member for Epsom and Ewell (Chris Grayling) said in an intervention. My right hon. Friend said that he shared the concerns of my hon. Friend the Member for Stone about the way in which foreign police would have to operate in this country, and raised the question whether they would have to be in uniform. He was also worried about the number of Henry VIII clauses in the Bill.
§ Mr. Greg Knight
Does my hon. Friend agree that the Bill would be not wrecked but improved if the Government were prepared to accept an amendment that would give British courts jurisdiction to be flexible in imposing driving bans for certain periods?
§ Mr. Hawkins
Yes, I entirely agree with my right hon. Friend. I hope that we will be able to address that issue in Committee, because it has been canvassed by him and a number of hon. Friends.
In conclusion, although we are happy with much of the Bill, there are a lot detailed ways in which it can be improved—for example, the issue that my right hon. Friend has just raised. That is why the Bill took many days—I think, it was five—to be considered in Grand Committee in the other place. We want it to be effective, to attack terrorists and international criminals, but we do not want British citizens' rights to be comprehensively undermined. Those are the issues to which we shall return in detail in Committee.
§ The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth)
I am awfully glad that the hon. Member for Surrey Heath (Mr. 852 Hawkins) brought us back at the end of his speech to the position of those on the Conservative Front Bench. I thank him for doing so, because they welcome most of the Bill, which they believe necessary and to have been substantially improved in another place, as the hon. Member for South-East Cambridgeshire (Mr. Paice) said in opening the debate for the Opposition.
I want to cut through some of the rhetoric that we have heard and thank the Opposition for the general welcome that they have given the Bill. I also thank the hon. Member for Somerton and Frome (Mr. Heath), who spoke on behalf of the Liberal Democrats, for generally welcoming the Bill. I think that we will be able to satisfy both sets of hon. Members in Committee on most of the points that have been made this afternoon.
§ Mr. Ainsworth
There was a marked contrast, in fairness, until the winding-up speech, when most of the rhetoric reflected what had been said from the Back Benches, but the substance reflected what was said from the Front Bench by the hon. Member for South-East Cambridgeshire. That is why I said what I said.
We have had a detailed and prolonged debate. It would be fair to say that it has been a lot more prolonged than some of us envisaged an hour or so ago. I shall try to address a couple of the over-arching issues that have been raised repeatedly and then turn to some of the issues raised by hon. Members during the debate. I am sure that we can pick up any other points in Committee, and I feel confident that we will be able to satisfy hon. Members that the safeguards that they want will be in place.
The issue that keeps being thrown at us is that we are, somehow, trying to achieve recognition of the Schengen acquis by the back door. The hon. Member for Surrey Heath went further and suggested that we wanted to do so by the nose, by the back door. I thought for a moment that he would complete the picture by saying that we wanted to do so feet first, by the nose, by the back door. In relation to his point about doing so by the nose, I know that it is difficult for him to recognise the fact that the Labour party won the last two general elections, but we live in a democracy and the democratically elected Government are entitled to make such propositions.
With regard to the hon. Gentleman's allegation that this is being done by the back door, which was said first by the hon. Member for South-East Cambridgeshire in opening the debate, I remind him that the then Home Secretary, my right hon. Friend the Foreign Secretary, said, on 17 March 1999, that we intended to opt into those parts of the Schengen acquis that we thought added value —the police and judicial co-operation arrangements—so nothing has been done by the back door in any way.
No measure in the Bill adds to the involvement with the Schengen acquis outside what was clearly said in the House a long time ago. The allegation that we are somehow trying to do something behind the scenes 853 simply does not wash. It is clear that the measures in the Bill are part of the Schengen arrangements with which we told the House that we intended to involve ourselves.
§ Mr. Ainsworth
The hon. Gentleman has not been with us for most of our deliberations. As I recall it, he left rather briskly when the hon. Member for South-East Cambridgeshire suggested that he might want to join us in Committee. If he will forgive me, I will not be too hasty and allow him to jump into the debate at this point.
As with our debates on the Extradition Bill, we have had a great deal of debate about what the Government are trying to do. Allegations have been thrown around about the harmonisation of jurisprudence across the European Union, co-operation and co-ordination. The hon. Member for Stone (Mr. Cash) is even opposed to co-ordination. The position is clear. The Government have said—it needs to be repeated because of the allegations that have been thrown round—that there is nothing in the Bill that involves the harmonisation of our legal system with the legal systems in the other parts of the EU. We see mutual recognition as the alternative to that.
In the modern world, we enjoy all the benefits of the free movement of people, capital and everything else. However, the criminal fraternity might also enjoy those benefits, so we need effective co-operation. By the time that the hon. Gentleman had finished his speech, I think that he had come to accept that effective co-operation involves a degree of co-ordination. Mutual recognition is the way to achieve that, and it is an alternative to harmonisation. That is our policy. It is very clear, and there is nothing in the Bill that involves harmonisation.
§ Mr. Ainsworth
I shall give way first to the hon. Member for Buckingham. Otherwise he will be after me for a very long time.
§ Mr. Bercow
I am grateful to the Under-Secretary. It is true that my ambition to serve on the Standing Committee is less than 100 per cent. but I had the considerable privilege of listening to the opening speech of the Minister for Citizenship and Immigration. Given the way in which the Under-Secretary has just chided my hon. Friend the Member for Surrey Heath (Mr. Hawkins) on the subject of Schengen, is the hon. Gentleman seriously suggesting that the result of the last two general elections represented mass public enthusiasm for the acquis communautaire?
§ Mr. Ainsworth
I hope that the hon. Gentleman will recognise that I was responding to the point about people being led by the nose or about our going into the agreement through the back door. The back door does 854 not apply and nor does the nose if one accepts that this is a democratic country and that the Government are allowed to make such propositions.
§ Mr. Paice
The Under-Secretary said that there was nothing in the Bill about harmonising our legislation with that in Europe. However, surely the gist of the whole section on driving offences to which my right hon. Friend the Member for East Yorkshire (Mr. Knight) referred is that someone could pay a penalty or be disqualified in Britain after being prosecuted for an offence under the legislation of another country. Surely if someone is penalised in Britain after being prosecuted under a totally different legislative system, that is effectively harmonisation of the law.
§ Mr. Ainsworth
I look forward to our debates in Committee. As I recall it, at the start of our debate the hon. Gentleman welcomed our proposals. He spoke quite glowingly about them and said that they were absolutely necessary. The right hon. Member for East Yorkshire (Mr. Knight) walked in halfway through the debate—I do not know on whose prompting—and appears to have changed the hon. Gentleman's mind. We look forward to hearing the Conservative party's position in Committee. We shall have many opportunities to find out whether its policies have changed. Perhaps I have misrepresented or misheard the hon. Gentleman. He might have had deep concerns about the issue at the start of the debate, but I do not remember him saying so.
§ Mr. Ainsworth
We have said clearly that our opt-outs do not involve police and co-operation matters. They involve border controls and other measures, and we intend to maintain them. There is no dubiety about that. The hon. Gentleman should be able to sleep safely in this bed in the knowledge that they are there and will continue.
There has been a great deal of discussion about the five-hour limit on surveillance. That was already part of the Schengen arrangements, which have been operated by our European partners for some time. I do not share hon. Members' worry about that time limit. There must be adequate time to hand over a surveillance operation so that the British team or joint team who are taking control have time to get established. We did not participate in discussions on the Schengen arrangements, so we had no say on the time limit. Conservative Members ought to think about that, because it is a consequence of their general opt-out—their empty chair policy towards the European Union. If we choose to join protocols after they have been introduced, we have no ability to mould them and we have to take them as written. We are trying to avoid that through our leadership in Europe on this issue and on mutual recognition as an alternative to the harmonisation of judicial systems.
§ Chris Grayling
The Minister must recognise that the Committee needs to discuss the five-hour rule on 855 surveillance, if only because the nature of crossing the border, in a car, between France and Belgium, or between the Netherlands and Germany, is fundamentally different from coming to Britain. To get here, people must travel by plane, by boat or through the channel tunnel, and they must pass through customs.
§ Mr. Ainsworth
We can and will discuss the matter in Committee. That is the point of those proceedings.
I do not think that the time limit needs to be extended. We will start to count the five hours from the time that the officers arrive in the United Kingdom, and notification of their arrival may be given because it is not as easy to cross these borders. As I said, the limit was in place when we opted into these arrangements, and hon. Members must accept that we had no say in that because we did not participate. I have no problem with that, but it seems that Conservative Members do.
On the problem of safeguards and liability identified by Opposition Members, their attention should settle not only on clause 82(6); they should also read clause 84, which states that there is a liability for any unlawful conduct by a person in the course of carrying out surveillance. That now rests with the director general of the National Criminal Intelligence Service, and it will be far easier for people to pursue their liability through that course than in a foreign jurisdiction. Of course these are reciprocal arrangements, so the Police Federation need not worry: their members operating abroad will have exactly the same safeguards and liability arrangements as foreign police officers operating in our jurisdiction.
§ Mr. Ainsworth
We will not get the cross-border co-operation that we require to carry out these operations if we do not provide the same protections for foreign officers as we provide for our officers operating in this country. Clause 82(6) gives foreign officers conducting surveillance within the five-hour limit exactly the protection that we give our own law enforcement agencies. We will want to explore the matter in Committee, and if concern continues to be expressed, we will want to look into that.
§ Mr. Hawkins
With respect to the Minister, he has slightly missed the point of what the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) was asking. If I have interpreted the hon. Gentleman correctly, he was suggesting that the words "civil liability" should be included in clause 84 instead of "unlawful conduct".
§ Mr. Hawkins
The hon. Gentleman confirms that that was the point that he was making. The Minister simply did not understand the question that he was asked.
§ Mr. Ainsworth
I remind the hon. Gentleman that the cover in clause 82(6) also applies to our own police officers conducting surveillance operations in this country. He will have an opportunity to address the issue in Committee, where we will have to satisfy him and the rest of the Committee on that point.
Hon. Members made a lot of points that I cannot cover now, but I am sure that we will return to them in Committee. However, I want to touch on a substantial issue raised by the hon. Member for South-East Cambridgeshire—fishing expeditions and how far the proposals go. I refer him to clause 33(1), which lays out the reasons why such arrangements can be carried out, and makes it clear that they can be carried out only ifthe person specified in the application is subject to an investigation in the country in question".The investigation must concern serious criminal conduct, which, the clause states, must constitutean offence in England and Wales or … Northern Ireland, or would do were it to occur there".That spells out when operations are allowed and when they are not allowed. To my mind, it clearly rules out fishing expeditions and people going far wider than is allowed in the clause.
§ Mr. Paice
We can obviously pursue this matter in greater depth in Committee, but the Minister needs to think about it a little more deeply. Clearly, any foreign authority wishing to exercise powers under the Bill must comply, as he said, with clause 33(1) and seek the necessary orders. To do so, they will submit all the required evidence that they need certain information about Mr. and Mrs. X. However, what happens if, in the process of doing so, they discover a lot of other information about Mr. and Mrs. X relating to other crimes? The fishing expedition includes the issue of what people do with information gained under one pretext but perhaps used for something else.
§ Mr. Ainsworth
I now understand the hon. Gentleman's concerns a little better. Let us return to them in Committee and see whether we can satisfy him on that point.
The Bill includes a raft of measures, most of which have been welcomed, despite some of the rhetoric that we have heard. I welcome that welcome—the measures are necessary if we are to face up to the serious threat of cross-border criminality, terrorism and other problems in the European Union and further afield. I look forward to our debates in Committee, commend the Bill to the House, and thank all hon. Members who have contributed to today's debate.
§ Question put and agreed to.
§ Bill accordingly read a Second time.