HC Deb 14 October 2003 vol 411 cc66-74
Mr. Heath

I beg to move amendment No. 13, in page 55, line 44 [Clause 82], at end insert— '() the officer does not seek to stop or question the person under surveillance'.

Madam Deputy Speaker (Sylvia Heal)

With this it will be convenient to discuss Government amendment No. 18 and amendments (a) and (b) thereto:

Amendment No. 32, in page 56, line 43 [Clause 82], at end insert '"Enters the United Kingdom" shall mean when the officer arrives at a port or airport in the United Kingdom or when a train on which he is travelling emerges from the tunnel into the UK.'.

Mr. Heath

We now come to a group that is again, I am delighted to say, the subject of qualified harmony. By accepting the arguments, as the Government amendment shows, the Minister has avoided the inevitability of the Bill returning from the other end of the corridor with the inclusion of something similar to the original amendment to clause 82 passed in the other place. That would be unfortunate, because I do not think that there was any difference of opinion between the Opposition parties and the Government on the intention, but there was a distinct difference on whether this provision should be included in the clause. The Government felt that it was not necessary—perhaps they still feel that—whereas many others felt that it was extremely important.

The issue is whether an officer from overseas entering this country while performing a covert surveillance operation should be prohibited from stopping, searching or questioning the person under surveillance. We know that there is no difference between us on the intention that such officers should have no such ability. That was clear in the Schengen handbook and the protocols. The question is whether that should be explicit in the Bill. It was felt by a majority in the other place that it should, but in Committee the view of the Government was that the amendment to that effect passed in the other place should be excised without providing an effective alternative.

The argument in Committee was interesting. The Government's principal objection was that the other place had framed its amendment in the form of a prohibition. They felt that that was not acceptable in terms of parliamentary draftsmanship and that they would be much happier with a qualification under subsection (4). I set myself the task of finding a form of words that would meet the Government's objection and fulfil our common objective, and that is amendment No. 13. Though I say it myself, it is a brief and elegant way of incorporating the sentiment.

Subsequently, the Government tabled their own amendment No. 18, which comes to the same thing. I am grateful to the Minister for producing that amendment, as it is extremely helpful to us. However, I have two quibbles with it. They are minor quibbles rather than quibbles of substance. The first is that it is slightly clumsy and long-winded, but that is a matter of style rather than substance. It is perhaps inevitable that I happen to prefer my wording.

My second quibble is dealt with in my amendment (a) to Government amendment No. 18. The Government's amendment contains a potential pitfall. It would insert the words but no surveillance is lawful by virtue of this subsection if the officer subsequently seeks to stop and question the person in relation to the relevant crime". If that is understood to mean during the process of covert surveillance within the United Kingdom, that is fine, but that is not what it says. The word "subsequently" creates a difficulty.

I shall put a hypothetical case to the Minister. Supposing that a Belgian police officer was investigating a smuggling operation between Belgium and Britain.

The Secretary of State for the Home Department (Mr. David Blunkett)


Mr. Heath

All right, the smuggling of chocolate, although I am not sure that that is the most heinous crime even under the current provisions of criminal law. If it pleases the Home Secretary, let us suppose that the person is smuggling chocolate between Brussels and Dover. Under the provisions of the Bill, the Belgian police officer properly undertakes covert surveillance in the United Kingdom. He does not seek to stop and question the person—who incidentally is a British subject—in Dover, and he complies entirely with the legislation.

The police officer returns to Brussels and so does the person under surveillance. That British subject commits further acts in Brussels in connection with the smuggling operation for which the officer stops, questions and arrests him. It transpires that the crime committed under Belgian law is part of a conspiracy based in Britain, and should be prosecuted by the British authorities—a huge conspiracy of chocolate smuggling, according to the Home Secretary.

The person is brought back to Britain to stand trial—but under the wording in Government amendment No. 18, because the officer subsequently stopped and questioned that person, albeit in Belgium and not in London, the evidence that that officer can provide by virtue of the covert surveillance in the United Kingdom is no longer admissible in a British court. That is not the intended consequence. It may be a very fanciful consequence, and a very extraordinary sequence of events might be required to bring it about; but it is nevertheless a possible consequence of the unqualified use of the word "subsequently".

That difficulty would be entirely removed by the addition of the words "in the United Kingdom", which would make it absolutely clear that the surveillance is invalidated only if the person concerned is stopped and searched here. I put it to the Minister that we could remedy a potential difficulty quite happily by that means. I hope that my argument has been cogent and not too complicated, and I hope that the Minister will either accept my wording or amend the existing wording by means of a Government amendment. In any event, I am glad that we have won the basic argument, and grateful to the Minister for listening carefully to what we have had to say.

6.30 pm
Mr. Paice

I, too, welcome Government amendment No. 18. In Committee, the Government were determined, despite behind-the-scenes discussions, to reject out of hand the Lords amendment proposing the removal of a subsection from the Bill, and to revert to the position that obtained when the Bill was presented to the other place—only for wiser heads to prevail later.

Let me chide the Minister slightly by reminding her that in Committee she said However, I am being asked to withdraw my amendment and allow an imperfect bit of the Bill to go forward."—[Official Report, Standing Committee A, 19 June 2003; c. 267.] I suggest that seeking to amend the Bill was tantamount to admitting that she was allowing an imperfect Bill to go forward at the time, but I am glad that the Government have seen the necessity of making the position absolutely clear.

I understand the Minister's reasons for not liking the original Lords amendment. It was effectively a double negative, making illegal something that was already illegal. The Minister and, in different terms, the hon. Member for Somerton and Frome (Mr. Heath), have come up with wordings that serve exactly the same purpose and achieve the same ends by ensuring that someone being followed by an overseas officer cannot be stopped and searched.

I have discussed the matter with my colleagues in the other place, to whom the Bill will have to return. I cannot prejudge or commit myself to what they will decide, but I understand that they are content with the Minister's amendment, and I welcome her albeit belated recognition that the position should be stated clearly.

Amendment No. 32 relates to the definition of United Kingdom territory. It seeks to add to the Bill words used by the Minister in Committee. My hon. Friend the Member for Surrey Heath (Mr. Hawkins) rightly pointed out that where the territory entered by the overseas officer began was open to debate. Did it begin with the beginning of airspace, or with our territorial waters? What would happen if a surveillance officer was in a boat only a mile or so from the shores of Britain, watching the famous chocolate smuggler coming over from Belgium with his chocolate? The boat might be in British territorial waters.

In reply, the Minister said We will consider the UK to have been entered when the foreign officer arrives at a port or airport or, in the case of Eurostar, when the train leaves the tunnel and enters Kent."—[Official Report, Standing Committee A, 19 June 2003; c. 288.] That is a very precise definition. As I implied, there could have been other terminologies—especially in respect of the tunnel, which has led to a situation unique to this country. British territory is normally considered to begin halfway through the tunnel, and we have customs officers operating in France, but there is a debate about the location of the boundary. In Committee, however, the Minister clearly stated that in that instance—probably one of the more common instances—the UK would be considered to have been entered when the train left the tunnel and entered Kent. All we have tried to do is put that into the Bill, which I think is entirely reasonable. I hope that the Minister will accept that hers are the correct words, and that they should therefore be in the Bill.

The fundamental point is that the words "enters the United Kingdom" are vague and, as I have tried to demonstrate, open to different interpretations. Earlier today, the Minister agreed that the Bill should be clear about what it means. I hope she also agrees she did nod just now—that "enters the United Kingdom" is vague. We now seek to turn her words into clarity in the Bill, and I hope that she will be able—perhaps uniquely—to incorporate her own words in legislation.

Caroline Flint

The hon. Member for Somerton and Frome (Mr. Heath) had me slightly worried. I thought that I was going to disagree with something with which I hoped to agree. By the end of his speech, however, I realised that we would be able to give him some comfort, particularly in regard to the words "in the United Kingdom".

I am grateful to the hon. Gentleman, and to the hon. Member for Orkney and Shetland (Mr. Carmichael), for amendment No. 13. We discussed the issue at length in Committee—we discussed what constituted hot pursuit and hot, lukewarm or cold surveillance. Although not convinced at the end of our proceedings, I said that I would see whether we could come up with a form of words that would deal with Members' concerns without making a fool of the law. The Liberal Democrats have obviously been working on their own wording, but I am pleased to say that during the recess our officials were beavering away to produce an acceptable amendment.

I hope—and I think what has been said so far suggests—that the amendment's response to what was said in Committee makes it clear that when foreign officers conduct relevant surveillance in the UK, that surveillance will no longer be lawful if officers subsequently stop and question the target about the crime. However, we do not think that such a situation is likely to arise. As I said in Committee, the Schengen convention provides explicitly that foreign officers may neither challenge nor arrest the target. To stop and question the target about the crime would not be consistent for the purposes of covert surveillance. There would be no operational advantage, and there would be risks of legal action against the foreign officers.

If the foreign officers identified themselves to the target, he would have no obligation to speak to them or even to remain in their presence. They would have no power to detain him physically or to force him to answer questions. Indeed, were they to detain or physically restrain him, they might be committing assault, and could therefore be prosecuted or sued for damages by him.

However, the Government appreciate that the amendment, as an unequivocal declaration in the Bill, would reflect the existing clear understanding between the Schengen states that to stop and question the target within the framework of cross-border surveillance is not acceptable.

The Government's amendment differs from amendment No. 13 in that, although it would be a distinct part of what will be subsection (4) of section 76A of the Regulation of Investigatory Powers Act 2000, it would be distinguished from the existing conditions specified in the subsection. At present, the subsection provides that relevant surveillance by foreign officers during the permitted period is lawful for all purposes if the conditions in the subsection are satisfied. The amendment removes that cover of lawfulness if the target is subsequently stopped and questioned in relation to the relevant crime, even if all his specified conditions are satisfied.

There is a further difference in the drafting, in that we have not used the phrase "stop or question". Article 40 of the Schengen convention provides that the foreign officers conducting the surveillance may not challenge the person under observation. We interpret "challenge" as meaning "stop and question", which in our view better reflects the convention's intention. A further amendment has been tabled to Government amendment No. 18, and I am pleased to say that we are able to accept it because it provides clarification. The illuminating example of Belgian chocolate smuggling focused our attention on how the law might be applied, and it is no bad thing to try to create a practical situation to which to apply the Bill. I therefore hope that the House will accept amendment No. 18, as amended by amendment (a), and that hon. Members will not press amendment No. 13 to a vote.

Let me now deal with amendment No. 32, which, as has been pointed out, looks very familiar because it is very similar to what I said in Committee. It will come as no surprise to the hon. Members for South-East Cambridgeshire (Mr. Paice) and for Surrey Heath (Mr. Hawkins) when I say that I find the amendment very attractive. However, although I support its purpose, it should not be included in the Bill, and I shall try to explain why.

We had a lengthy discussion in Committee in which we tried to grapple with real-life scenarios. For example, we considered the question of at what point someone travelling by air would be in British airspace, and at what point those travelling by ferry or hovercraft would be in British waters. As I explained in Committee, the term "enters the United Kingdom" will indeed be interpreted as meaning when a foreign officer arrives at a port or airport or, in the case of Eurostar, when the train leaves the tunnel. I said that this was a practical approach. It is a workable definition that provides a point that can readily be identified by officers, who cannot afford to be distracted from immediate operational imperatives by questions about the precise moment at which they enter British airspace or waters. That approach is also in line with the Schengen convention's intention that the foreign officer conducting the surveillance must notify the authorities of the visited state immediately that the border has been crossed. Clause 82(6) uses the phrase: immediately after the officer enters the United Kingdom". In the Government's view, in the case of entry by sea or by air, that phrase can be interpreted as meaning as soon as the foreign officer arrives at the port or airport, because only then can he make contact with our own officers.

However, the underlying approach that I described is a general one. Although we intend that it should be adhered to, it is difficult to find a precise wording that would be appropriate in practical terms. Indeed, that is my difficulty with the proposed amendment: its wording is not precise and it is also too narrow. For example, the precise moment at which a person enters a seaport could appropriately be regarded as when the vessel enters the harbour, when it docks, when the target disembarks, or when he passes through passport control or customs control. Indeed, it is possible that a particular vessel might not arrive at port at all. An incident might occur at the port in question, causing the vessel to be docked for some hours. Foreign officers could use that as an opportunity to connect with their UK counterparts, in order to pick up the surveillance when they disembark. So particular circumstances could arise in which it would be possible and appropriate to regard the five-hour period as commencing before the vessel arrives at the port.

These practical issues must of course be addressed, but not in the Bill, as I said in Committee. The appropriate place in which to set out the Government's approach, and to explain more precisely what is meant by "enters the United Kingdom", is the Schengen handbook. As was pointed out in Committee, the handbook is a practitioners' document that is constantly updated, and which can therefore be amended from time to time, as appropriate, to take account of evolving experience in operating the convention. What is important is that the definitions and explanations we provide in the handbook are in line with the practical approach that I have described.

I recognise that the courts' interpretation of the term "enters the United Kingdom" might not be in line with the practical approach that I have described. In the event that the courts ruled that a different approach was necessary, we would need to modify our entries in the Schengen handbook. In that way, the new practicalities would be made clear to our law enforcement agencies and to their counterparts abroad. I am grateful to hon. Members for this opportunity to provide further elaboration.

Mr. Paice

I am grateful to the Minister for giving way; otherwise, I would not be able to respond to her remarks. In giving her reasons for rejecting my amendment, she has emphasised the huge confusion that will arise and illustrated precisely why we feel that the amendment is necessary. I understand the case that she makes, but it will lead to even more confusion. Who will determine when the clock starts ticking for the five-hour period? If it is the overseas surveillance officers who will make that decision, what is to prevent them from counting the five hours from the point at which they want to start counting? I am thinking in particular of the situation that the Minister describes—of a boat that is just offshore, either in or just outside the harbour. Someone has to start counting the five-hour period, but it surely should not be the person who is supposed to keep to it.

6.45 pm
Caroline Flint

The hon. Gentleman outlines the difficulty in establishing in the Bill a precise definition that can cover the practical implications. That is why the handbook is so important, and why the surveillance commissioner has a very important role in monitoring the ways in which the surveillance powers outlined in the Bill are used. We discussed in Committee the question of how to deal with foreign officers who do not comply with surveillance rules. As I said then, each activity undertaken would have to be accountable, and the surveillance commissioner would have to deal with any discrepancies arising. In terms of carrying out their functions in this regard, foreign officers would have to keep in touch with the National Criminal Intelligence Service.

The hon. Gentleman highlights the difficulty in trying to apply these powers without a practical example to address. I stand by my position: the wording in the Bill is the best way forward and the practitioners of the Schengen handbook will undertake to update or to vary the practical application, subject to the rulings of the courts. The Schengen handbook should reflect practical application, and amendments should be made within that to reflect changes to the practical definitions that may be required in the light of operational experience.

Mr. Carmichael

I want to be sure that I understand the Minister. The Schengen handbook and NCIS guidance are exactly that: guidance. As I think the hon. Lady said earlier, ultimately it is the courts that will determine whether an act has been carried out within the five-hour limit. Is she really saying that the Government will give best-guess guidance at the moment, but that, if it all goes wrong and they lose a court case, they will change the guidance in future?

Caroline Flint

No, I am saying that it is difficult, for the reasons that I have outlined, to determine the absolute point at which a person is on UK soil, and to include that definition in the Bill. This issue would therefore better be covered within the Schengen handbook, which is the practitioners' guide. It will be constantly updated and can be amended to take account of evolving experience in operating the convention. What is important is that the definitions and explanations that we provide in the handbook are in line with the practical approach that I have described. As I said, the courts' interpretation of the phrase "enters the United Kingdom" might not be in line with this approach. In the event that the courts ruled that a different approach was necessary, we would need to modify our entries in the Schengen handbook.

After much discussion in Committee, we feel that safeguards are in place; indeed, there are other safeguards as well. As was pointed out in relation to other possible surveillance infringements, the surveillance commissioner will take up and monitor each case. On NCIS guidance, its officers have the power to tell foreign officers to stop at any time—they have the power to tell those officers when to stop surveillance. Indeed, it is NCIS with which foreign officers will need to keep in touch.

For those reasons, I am pleased to meet hon. Members halfway in respect of issues of surveillance, but we feel that the particular wording in the amendment would create problems for the future without allowing the required flexibility in respect of those powers.

Mr. Heath

I consider this afternoon to be a minor triumph, and I shall leave the Chamber rather pleased with the progress that we have made in respect of a couple of areas.

The hon. Member for South-East Cambridgeshire (Mr. Paice) made a valiant attempt to provide precision in an area that remains very imprecise. It seems inevitable that if something can be overturned by the courts, it will eventually be overturned by them. Without the necessary precision, the courts will make an interpretation, which may be adverse to whatever guidance is given.

As an island state entering the Schengen agreement for the first time, we are almost unique. I say almost unique, because although other member states are not islands, they nevertheless have maritime borders, and I am sure that something similar must occasionally have occurred in respect of the current operation of the Schengen protocols between, say, Sweden and Germany. Nevertheless, we are entering a new area, so it is important to have as watertight a definition as possible. The better the formulation within the handbook, the more likely are we to avoid aborted cases when a court rules evidence as non-admissible on the grounds that provisions have been inadvertently broken.

It is, of course, in everyone's interest not to break the rules, and it is not in the interest of an overseas officer to stay longer than required, because to do so will be a waste of time. It is not in the interest of the National Criminal Intelligence Service to give advice to those officers, who will want to use the evidence provided by the surveillance operation. Any imprecision would be extremely unhelpful.

Mr. Carmichael

My hon. Friend is right that it is in everyone's interest to work within the rules, which is why we need to know exactly what the rules are. Leaving it to our best-guess guidance in the handbook and refining it when the courts tell us we have got it wrong is simply not satisfactory.

Mr. Heath

I have considerable sympathy with my hon. Friend and indeed with the hon. Member for South-East Cambridgeshire. I hope that the Home Office will give careful thought to providing as much precision as possible.

On the subject of stopping and questioning, I am delighted with the Minister's response, as she would expect me to be. I shall adopt a term used in parliamentary procedure and hardly anywhere else, and say that it would be churlish of me to persist with amendment No. 13 in the face of the Minister's agreement to accept my amendment to her amendment No. 18. I shall formally move my amendment (a) in due course, and in respect of amendment No. 13, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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