Official Report of the Grand Committee on the Crime (International Co-operation) Bill [H.L.] (Hansard, 3 February 2003)

HL Deb 03 February 2003 vol 644 cc1-46GC 1GC

§ (Fifth Day)

§ Monday, 3rd February 2003.

§ The Committee met at half past three of the clock.

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

§ Clause 83 [Foreign surveillance operations]:

§ Baroness Anelay of St Johns moved Amendment No. 152: Page 55, line 35, at end insert— ( ) A foreign police or customs officer carrying out relevant surveillance under this section is a "public authority" for the purposes of section 6 of the Human Rights Act 1998 (c. 42) (public authorities). ( ) Nothing in this section shall have the effect of disapplying, or removing any civil liability under, any provision of the Human Rights Act 1998 in relation to a foreign police or customs officer.

§ The noble Baroness said: We are on the home straight today. The question that goes to the core of the amendment is whether or not foreign officers carrying out hot surveillance will, like UK officers, be classified as "public authorities" subject to the Human Rights Act and therefore have to act compatibly with the ECHR. If not, will they be subject only to the conditions laid down by the Secretary of State by order, as we debated earlier?

§ Section 6 of the Human Rights Act defines the term "public authority" as including, any person certain of whose functions are functions of a public nature".

§ Will foreign "hot surveillance" officers fit into that definition, which was drafted deliberately as a catch-all provision by the Government so that they did not have to list every qualifying authority at length in the Act? Will there need to be a provision in each and every Act as to whether or not a particular person is subject to these conditions?

§ Where a person's ECHR rights are breached by a UK public authority, there is a right to relief or remedy, including damages, under Section 8 of the Human Rights Act. How will that be applied in respect of foreign officers conducting hot surveillance? I beg to move.

§ The Parliamentary Under-Secretary of State, Home Office (Lord Filkin)
The amendment seeks to ensure that foreign police and Customs officers undertaking cross-border surveillance fall under the same obligations of the Human Rights Act 1998 as those 2GC placed on UK police and Customs officers. It also seeks to reinforce their responsibility for any liability they may incur during any surveillance operation.
The Human Rights Act established within UK law our obligations as a signatory to the ECHR. The obligations in the Human Rights Act apply to public authorities. In our view, foreign officers acting under Section 76A will be public authorities under the Human Rights Act. That provision will be triggered when their presence has been duly notified.
Under the Human Rights Act, a public authority is any person who has at least some functions of a public nature. Policing in the UK is obviously the responsibility of UK police officers, but under these clauses we are effectively delegating, albeit for a fixed short period of time and subject to specific conditions, that role to foreign officers where as a matter of practicality UK officers cannot immediately take over the surveillance operation. That is why we take the view that foreign officers acting under Section 76A will be public authorities under the Human Rights Act and that the amendment is therefore unnecessary.
The second amendment seeks to ensure that nothing in this clause would have the effect of disapplying any provision of the Human Rights Act 1998 in relation to a foreign police or Customs officer so acting. I am happy to reassure the Committee that the amendment is not necessary. There is nothing in Section 76A that could disapply or remove liability under the Human Rights Act from anyone. In addition I can confirm that in Schedule 4 to the Bill we are amending the Regulation of Investigatory Powers Act (RIPA) to provide that the RIPA tribunal can deal with challenges to surveillance by foreign officers under Section 76A. For those reasons, hope that I have satisfied the noble Baroness and that she will withdraw her probing amendments.

§ Baroness Anelay of St Johns
The Minister is right; these are probing amendments. I may have misunderstood the first part of his answer. Will the officers be public authorities once they have given notice that they are coming here? In other words, will there be a hiatus where they could be on our soil, have not quite made the notification and therefore will not be public authorities? It may be that I misheard the opening remarks of the Minister, but I should be grateful if he would clarify the situation.

§ Lord Filkin
They are public authorities when they are acting strictly in accordance with Section 76A and within the provisions of the Bill as we have discussed. That is triggered by the absolute obligation on them to notify their presence as soon as they step foot on UK soil. It is that process of notification—which gives the responsible authorities the opportunity to say continue or no—that turns them into public authorities. Clearly in most cases we expect there will have been prior notification of their intention to come, and the processes will have been put into place before they step foot on UK soil. Nevertheless, even if that 3GC has been done, they still have a duty to notify immediately they place foot on UK soil. It is then that they are acting as public authorities.

Lord Renton
Before my noble friend Lady Anelay withdraws her amendment, perhaps I may ask the noble Lord, Lord Filkin, for clarification on the future of the Human Rights Act 1998, which we all remember well. We are told that because of the help that it gives to unlawful asylum seekers, something will have to be done about the Human Rights Act. I assume that it will not be repealed but will be amended so as to remove the rights of ill-intentioned asylum seekers. It will not go further than that in any amendment. Can the noble Lord confirm that?

§ Lord Filkin
I am reluctant to be drawn on that issue as it is not before us in the Bill nor even in more general terms. If I am pressed to go a little further—I referred to this in answer to a Question in the Chamber—the Prime Minister was asked on the "Breakfast with Frost" programme what would happen if the measures taken did not appear to work. As we would expect of a Prime Minister, he signalled that we would consider anything necessary to ensure that we are able to deal with asylum and, in the context in which he spoke, terrorism. I do not believe that that is a matter for this Committee at present. However, I would be happy to write to the noble Lord, Lord Renton, and give him a fuller answer, if that would be helpful.

§ Baroness Anelay of St Johns
I am sorry to be tedious but I do not think that I put my first question as clearly as I might have. In his helpful response the Minister stated that the provision whereby such officers become public authorities is triggered by the obligation to notify. I appreciate that the obligation exists but when do the officers become public authorities—post-notification or pre-notification? I know that the obligation exists throughout, but do they become public authorities only after they have gone through the process of notification?

§ Lord Filkin
I shall choose my words carefully. If there is any need, I shall be delighted to write to the noble Baroness, Lady Anelay, as this seems to be a slight case of angels on the head of a pin. It is important that we are clear. I am advised that foreign officers will be public authorities in the few minutes between entering the UK and immediately contacting UK authorities as they will be acting under Section 76A. I am sure that that is a response that the noble Baroness, Lady Anelay, will want to study—as shall I to see whether it closes all the gaps and answers all the questions. If it does not, it will be my pleasure to write to her.

§ Baroness Anelay of St Johns
I am grateful to the Minister. He is right; I shall have to carefully consider the matter. Naturally, one would hope that in the best possible world it would be only a few minutes betwixt the time that these people step foot on UK soil and make the notification. However, the legal world is littered with cases where people do not do what one 4GC would expect, sometimes for good reason. Therefore, I shall need to carefully consider the matter to ensure that we have covered all the right options. At this stage, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ Baroness Anelay of St Johns moved Amendment No. 153: Page 55, leave out lines 36 and 37.

§ The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 154. Both amendments are also tabled by the noble Lord, Lord Dholakia.

§ They were tabled simply to ask the Minister for an explanation about the period of five hours. I notice that I have no support from the Liberal Democrat Benches at present, but perhaps that means that they do not need to add their own voices because they fully support every word they expect me to say. I am grateful to my noble friend Lord Carlisle for pointing that out to me.

§ I have chosen to highlight some of the problems with the provision by tabling two amendments that are completely and intentionally contradictory. One can get away with that in Grand Committee, but I would not dare do it on the Floor of the House. Amendment No. 153 would remove the time limit altogether, which is something that I would never want to do if the provision had to go ahead. Amendment No. 154 would reduce the limit to one hour.

§ I remind the Minister of a debate we had last Wednesday, when I asked a question about where the border lies and from when the five hours will start to run. I am clear in my mind as to where the border of the United Kingdom runs, but his answer was that the five hours begins only when someone steps on UK soil, not when they enter UK territorial authorities. In practice, they might get five hours plus. In that five hours, they may do some surveillance on the people they are following.

§ When do we know that the five hours have started? That is still the question. I do not think that the Minister fully covered that last week. If we do not have notice given in advance that someone is travelling, there might be the temptation for the foreign officers to stretch that five hours in what they would see as exceptional circumstances, perhaps by saying that they arrived a little later than they actually did. What is there to protect us against that?

§ Why five hours? The Minister said that the magic number was plucked out of the air because it is in the Schengen Convention. The question then has to be whether Parliament can change what is in the Schengen Convention that allows for the five hours. Are we powerless to do so?

§ At the other end of the scale, having asked how we shall know when the period starts, how will we know when the five hours are up? We might know if we were in authority, because I hope that we would know when the five hours started. However, if we are members of the public—we must recall that members of the public 5GC may find themselves accused of assaulting such people—we need to know when the five hours are up. Who will keep the time?

§ Does the surveillance have to stop unless it is continued by the UK authorities? What happens if the foreign officers continue the surveillance without authority? Do they lose the protection against civil liability afforded to them under the Bill? With regard to the last question, I hope that the Minister will be able to answer with a resounding, "Yes, they would lose that protection". I beg to move.

§ The Deputy Chairman of Committees (Lord Lyell)
I must inform the Committee that if Amendment No. 153 is agreed to, I shall not be able to call Amendment No. 154.

§ Lord Carlisle of Bucklow
Despite the Schengen Convention, I want to ask, "Why five hours?". Why is the figure five hours in the Schengen Convention? What is magic about five hours rather than one, two, three or four hours?
We are dealing with what we have described as "hot surveillance". If I have understood correctly what the Bill does, in normal cases when one crosses a border into another country in hot surveillance, one has to get authorisation from that country to carry out that surveillance. From what the Minister said, the English police would take over from the police of whichever country in which the surveillance is being carried out and continue to take responsibility for the surveillance in this country.
The purpose of Clause 83 is that if one is unable to apply for such an authorisation, for a period of five hours, one can carry on lawful surveillance without any such authorisation, subject to the immunity provision that there shall be no liability in respect of any conduct which is incidental to any surveillance. Does the period of five hours, which appears to be plucked out of the air, have any particular significance? Would it not be better to use words which related to the ending of the time of surveillance; for example, until it is reasonably practical to request a person in the UK to apply for an authorisation"? That may be at any stage from five minutes to, presumably, 24 hours, or until such moment as it would be reasonably practical for officers of the British police to take over the surveillance.
I wonder why we have opted for a definitive time scale which appears to have no particular merit as against a description which would link it to the moment when that which requires the surveillance carried on in this country by a foreign officer is met; namely, by the authorisation being given and an English police force taking over the surveillance.

§ 3.45 p.m.

§ Lord Clinton-Davis
I note that the noble Lord, Lord Carlisle, did not refer to Amendment No. 153. I assume that that amendment, too, had no merit in his eyes. As regards one or five hours, we are stuck with the Schengen Convention It would have been 6GC appropriate for the noble Lord to have raised his point when we discussed that convention, but he chose not to do so.

§ Lord Carlisle of Bucklow
I was not here.

§ Lord Clinton-Davis
That is the same thing. In my view, the Minister is stuck with the situation in which he is bound to observe that convention. He has no leeway and no right to amend. However convincing the argument may be, it is no longer appropriate because we have passed that point.
That being the case, whatever merits or demerits there may be in the argument, the Minister has no room for manoeuvre.

§ Baroness Carnegy of Lour
I wish that I was a lawyer because that is a marvellous lawyer's argument. I suppose that we can all hide behind the Schengen Convention, but the fact remains that the provision of five hours is made with land borders in mind. It is plenty of time to cross between Belgium and France, Belgium and Germany or whatever. However, my inquiries show that it is likely that people will have to travel in hot pursuit to Wales and to some parts of England, certainly to the Hebrides. Someone might land on the Island of Barra, for example, and the policemen—there may be two or three—might be somewhere else. Five hours could then present a problem.
Presumably, five hours was not fixed with the Hebrides in mind but we agreed to it and probably wanted to minimise the length of time. However, can the Minister imagine a situation where it is not practical? If it is not practical, what room do we have for manoeuvre in the legislation? That is what my noble friend is asking. We must be practical and this is a sensitive matter.
I also pointed out that in some places one cannot use a mobile telephone. I suppose that the policeman or Customs officer concerned would be able to contact our authorities, but I hope that that matter has been considered.

§ Lord Filkin
The Government are unable to accept these amendments because in doing so we would not be able properly to participate in the Schengen Convention. But I understand them to be probing amendments tabled in order to understand the thinking behind the five hours and in what circumstances it might be a problem.
The Schengen arrangements and cross-border surveillance are reciprocal and clearly the Committee recognises that only by implementing them properly can we expect our law enforcement officers to be able to benefit from them. Article 40.2 of the Schengen Convention, which the clause implements, provides for the grace period of five hours for the continuation of surveillance across a national boundary in urgent circumstances.
On a practical level, one hour, which is the nature of the probing amendment, might not be sufficient time. It is our intention that UK officers will take control of 7GC all cross-border surveillance operations entering the UK, but there may be occasions in which the five-hour grace period is needed to allow time to identify the appropriate force to take over the surveillance and for the UK team to obtain authority under RIPA and then to meet up with the foreign officers to take over the surveillance. I do not sense a major disagreement in the Committee on that. There is recognition that there will be circumstances albeit, one hopes rare—when a UK surveillance team might not be immediately present at the port at the time when the suspect entered it.
The key to these arrangements is reciprocity. There will be occasions when UK officers will need to apply this measure in the course of their work and follow a suspect overseas. We can hardly expect foreign colleagues to give us the benefit of the full five hours if we do not reciprocate. It must be appreciated that foreign police and Customs forces face the same issues when a surveillance operation crosses into their territory. For those reasons we would resist these amendments.
Obviously, the UK was not party to the negotiations on the Schengen Convention. They were undertaken some time ago. Our understanding is that the five hours was held in negotiation to be a sufficient time for the authority of the receiving member state to respond to the immediate notification from the incoming officers signalling that they had crossed the border and for the receiving member state to take over the surveillance, or to send one of their own officers to the scene to accompany the foreign officers, making it a joint investigation.
Our understanding is further that these measures have been in operation for some time on continental Europe and experience has shown that the five hours appears to have been a reasonable period. I am not aware, but I shall check before Report stage, of any problems that have arisen as a consequence of the five hours.
Any surveillance carried out by foreign officers will be subject to the conditions set out in Article 40 of Schengen. That clearly states that foreign officers must contact UK police to alert them as soon as they have crossed the border. At this point, communication will have been established, allowing a certain level of supervision by the UK. If they do not comply with the conditions set out in Section 76A and the subsequent order, they will not be deemed authorised. Foreign officers would gain little benefit from conducting unauthorised surveillance which would take them outside the terms of Article 40.
All cross-border surveillance operations under the Schengen Convention will be the subject of a report to the authority in whose territory they took place. As with all reports of surveillance operations in the UK, these will be retained and made available to the surveillance commissioner as required.
The noble Lord, Lord Carlisle, asked whether it would be reasonably practical to apply for authority or to take over. He was asking, in essence, whether we 8GC felt that five hours put at risk surveillance. I have already signalled that I will double check that, but we do not believe that that has been the case to date.
In practice, although the latest date by which a foreign officer would notify a UK authority was when he put his foot on UK soil, as we indicated during previous discussions on the Bill, on many occasions there would be notification earlier than that. That allows for two things: first, it increases the likelihood that a surveillance team could be in place at the port; and, secondly, it gives further lead time over and above the five hours, which begins from the moment the person puts his foot on UK soil.
I was asked why not have more flexibility. First, we do not believe that it is necessary. Secondly, it is important that there is a clear-cut end date, which gives the public the reassurance that only in tightly limited circumstances will a foreign officer be able to come in and continue a surveillance, albeit without any executive powers of arrest or entry.
The noble Baroness, Lady Anelay, asked where is the UK border. The new Section 76A gives five hours automatic authorisation from, the time when the [foreign] officer enters the UK". We believe that these words should be given their natural common-sense meaning. Accordingly, we consider that entering the UK is when the foreign officers arrive at a port or airport; or, for Eurostar, when the train leaves the tunnel and enters Kent.
I was asked when we will know when the period starts. It will be from the notification of entry and, furthermore, any notification prior to entry that they were coming. We would know approximately when the ship was docking and when people were disembarking. Could we stretch the period to more than five hours? No, for the reasons I have given. We do not believe that we would want to stretch or need to stretch the period. Can Parliament change what is in the Schengen Convention? I believe that the Committee knows the answers to that. Parliament is sovereign and therefore it can do what it wills. However, if it chose to change the provision, we would not be compliant with the Schengen Convention and therefore we would not be able to benefit from the measures in it.
The National Criminal Intelligence Service will keep the record. It will therefore know when the five hours has expired because it will be five hours after the process began. The noble Baroness, Lady Anelay, and the noble Lord, Lord Carlisle, asked what happens after the five hours. After the five hours, the foreign officer would lose the lawfulness of new Section 76A; he would lose the protection against assaults in Clause 83; and he would lose the civil liabilities provision in Clause 85. After five hours, he would have no protection under those provisions and if he continued surveillance, he would be acting without authority and in breach of the agreements.
The noble Baroness, Lady Carnegy, stretched my recollection of Scottish geography as to whether in practice it might be difficult if people came into the Isle of Barra. My recollection of the pleasure of going to 9GC the Scottish islands is that it takes a considerable time to get there. Therefore, in practice if not in strict law, foreign officers will usually have been able to signal that they are on a ship entering Barra, the Hebrides or wherever, giving further time. Nevertheless, were that not to be the case, the Scottish police forces would have to get their skates on and get their surveillance forces in place. If the officers are going to Barra or Orkney, they will not be able to get off quickly, so it is not a case of having to have a fleet of undercover cars able to travel up the M2 at high speed—one of the benefits of being on a Scottish island.

§ Baroness Carnegy of Lour
I chose Barra because it has an airstrip. However, it is a small island and I doubt whether it has many policemen. I have not had the opportunity to discover that. Has the Minister thought what might happen if there is no way of making contact? I may be stretching the point too far. It does not take long to get to Barra and presumably the Government are assuming that it would be possible to make contact from an aeroplane.

§ 4 p.m.

§ Lord Filkin
Let us assume that a serious criminal seeks to leave France or wherever and go to Barra, and that that criminal is under surveillance. If he or she flies from an airport in, say, France, the surveillance officer would often, if not always, have the opportunity to phone through to Barra in advance. Having reached Barra in those circumstances, it is rather more difficult to escape unobserved from there than it is from mainland UK. Therefore, while there may not be a whole fleet of cars present, there would be a much greater possibility of supervising the exit points as well as being able, it is hoped, to tail the suspect. It is John Buchan stuff.

§ Baroness Anelay of St Johns
Of course, John Buchan stuff, as we all know, involved the use of boats.
I imagine that there are plenty of opportunities for going to and from Barra unnoticed by boat. Therefore, my noble friend Lady Carnegy has raised a relevant point. I am sure that the people of Barra need not worry. We are not accusing them of being international terrorists at this stage!
I am grateful for the contributions of all Members of the Committee who have spoken. My noble friend Lord Carlisle posed the important question of why the Schengen Convention refers to a five-hour period. It is a vital issue. As the noble Lord, Lord Clinton-Davis, said, we are stuck with Schengen. We were not present as a country when it was negotiated and we had no voice in it. At that stage we did not think that we would ever be subject to its requirements. But we are now stuck with it and we have to make the best of it.
The Minister says that the five-hour period starts when the relevant people land on UK soil. He says, quite rightly, that the term has a natural, common-sense meaning. It is not technically correct because once one crosses into our territorial waters, one is actually in the UK. However, I understand why the Minister says that the term has a natural, common-sense meaning. Are our partners in the European 10GC Union placing exactly the same construction on the matter of when the five hours start when the relevant people travel from this country to mainland Europe and therefore are pursued by our police officers? Is that a question he is able to answer today or would he prefer to write to me?

§ Lord Filkin
That is a good question. I do not know the answer offhand, but I shall certainly write to the noble Baroness before Report.

§ Baroness Anelay of St Johns
I am grateful to the Minister for that offer which I gratefully accept. I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ [Amendment No. 154 not moved.]

Lord Renton
Before the noble Lord, Lord Filkin, moves Amendment No. 154A, I should point out that it does not appear to be relevant to new Section 76A.

§ The Deputy Chairman of Committees
I am advised that the Minister should put the case for the amendment and then a general discussion can take place. We may then discuss the matter of relevance. I ask the Minister to move Amendment No. 154A.

§ Lord Filkin moved Amendment No. 154A: Page 56, line 16, at end insert— "United Kingdom officer" means—

(a) a member of a police force;
(b) a member of the National Criminal Intelligence Service;
(c) a member of the National Crime Squad;
(d) a member of the body known as the Operational and Intelligence Group of the Scottish Drug Enforcement Agency and established by agreement under section 12 of the Police (Scotland) Act 1967 (c. 77) (collaboration agreements);
(e) a member of arty other body, however named, so established if it fulfils purposes most or all of which consist of or include purposes which are the same as or are similar to those fulfilled by that group: or
(f) a customs officer"

§ The noble Lord said: This amendment has already been spoken to. I beg to move.

Lord Renton
There is a problem with the amendment. It may help the noble Lord to bear that in mind before he asks us to accept it. It states. at end insert—'United Kingdom officer' means'. That is to be inserted at the end of subsection (10). That subsection defines two phrases that are already most certainly in the new section. But nowhere in the new section can I find the words "United Kingdom officer". I felt it only right to point that out before the noble Lord moved the amendment because he might have moved something that was out of order and utterly irrelevant. However, I shall sit down now. I shall be interested to hear what justification the noble Lord may have for asking us to approve the amendment.

11GC

§ Lord Filkin
I thank the noble Lord, Lord Renton, for his question. If I understand the matter correctly, we do not need to find the words "United Kingdom officer means" because essentially we are inserting those words and we are inserting paragraphs (a) to (f). In essence that whole block will be inserted at line 16 on page 56 of the Bill just before Clause 84.

Lord Renton
It may be in another section but it is not in this one.

§ Lord Filkin
The measure that starts with the words, "United Kingdom officer" will be inserted in line 16, page 56 of Clause 83. I shall speak to it in more detail, as I believe the noble Lord, Lord Renton, wishes. We consider Amendment No. 154A technical and consequential on those we tabled to other subsections of Clause 83. The amendment simply defines "UK officer". The Committee will note that it refers to the police, Customs, NCIS, NCS, the Scottish Drug Enforcement Agency (which used to be the Scottish Crime Squad) and any body that might take over their functions. That wording is needed to ensure that New Section 76A will cover any other body that might be established under any future collaborative agreements between Scottish police forces that would perform the same functions as the SDEA. I hope that that explanation is helpful.

Lord Renton
I have listened with care to the noble Lord's explanation. Quite frankly, I must repeat what I said before. Subsection (10) starts with the phrase "In this section", not other sections but "In this section". The amendment refers to New Section 76A. Therefore, it seems to me to be misapplied. But whether or not it is misapplied, I point out that it contains a very strange paragraph. Paragraph (e) of the amendment contains an amazingly wide and vague application of the expression "United Kingdom officer". I quote paragraph (e) to put it on record: a member of any other body, however named, so established if it fulfils purposes most or all of which consist of or include purposes which are the same as or are similar to those fulfilled by that group". What group? There is no previous reference to a group. If the noble Lord maintains that the measure refers to the expression "any other body", I suggest that it should be placed within the context of Clause 83. It should refer to the various bodies mentioned in subsection (1) where certainly three phrases could be regarded as referring to another body.
Altogether the whole measure is too vague and too wide. Even if the noble Lord is right in referring to "United Kingdom officer" and I do not consider that he is, bearing in mind the lack of reference to it earlier in Clause 83—we should not have any terms as vague as "any other body" and "that group" without clear reference as to what those phrases include. To do so would constitute a wrong piece of drafting.

§ Baroness Carnegy of Lour
I had marked this paragraph as requiring clarification. I wondered what the phrase "that group" referred to. I wondered also whether paragraph (d) constituted a Scottish measure. 12GC I wondered whether it was a Scottish measure referring back to the intelligence group of the Scottish Drug Enforcement Agency. It is an obscure piece of drafting. Does the paragraph refer to Scotland or only to Scotland or not to Scotland at all?

§ Baroness Anelay of St Johns
I apologise for not raising this issue when the matter was discussed on a previous occasion. I have to admit that I looked properly at the drafting of the amendment only after talking to my noble friend Lord Renton at the end of last week and when I started to consider amendments to table at Report stage. It was only then that I considered the definitions of a foreign police officer or a police officer. Paragraph (e) states, a member of any other body, however named, so established". Does that include community support officers? Presumably, it could do so. Or could it even cover private bodies such as Group 4? At the moment paragraph (e) appears to be extraordinarily widely drafted, as my noble friend Lord Renton said.

§ Lord Dholakia
The noble Lord, Lord Renton, rightly pointed out that the term "United Kingdom officer" is not mentioned in the clause we are discussing. However, the term is mentioned in the Explanatory Notes. I suspect that the clarity that the noble Lord, Lord Renton, requires is to be found in the Explanatory Notes which refer to United Kingdom officers with regard to Clause 83 on page 28.

§ 4.15 p.m.

§ Lord Filkin
I am the first to admit that the matter is not simple. The matter is complicated in that Amendment No. I 54A seeks to build on a government amendment that was accepted last Wednesday. The Bill as printed does not contain that amendment as the foundation on which this amendment builds. I refer to Amendment No. 139B that was accepted last Wednesday which states: Page 55, line 13, leave out from 'circumstances' to 'an' in line 14 and insert 'for a United Kingdom officer to carry out the surveillance in the United Kingdom in accordance with'". Amendment No. 139B inserted the words "United Kingdom officer". Amendment No. 154A defines the term "United Kingdom officer". I totally understand the question of the noble Lord, Lord Renton, as he does not have before him a Bill which contains the amendment we inserted last Wednesday.
The Scottish Drug Enforcement Agency is a body established by agreement between the chief constables of the Scottish police forces under Section 12 of the Police (Scotland) Act 1967. It took over the work of the Scottish Crime Squad and undertakes similar activities to the National Crime Squad.
Section 9 of RIPA (Scotland) gave the Scottish Crime Squad and any other body established under Section 12 of the 1967 Act which fulfils similar purposes the power to conduct authorised surveillance. Accordingly, as the SDEA performs similar purposes to the SCS, it too is authorised under RIPA (Scotland) to carry out surveillance. If the SDEA's surveillance function is replaced by another 13GC body established under the 1967 Act, that too would be able to conduct authorised surveillance under Section 9 of RIPA (Scotland).
Paragraphs (d) and (e) of the amendment are worded to ensure that new Section 76A will apply both now if the SDEA cannot physically take over surveillance when the foreign officers arrive and in the future if a successor body is in that position. Similar provisions need not be made for NCIS or NCS because they are statutory creations and so if they were to be reformulated or replaced, primary legislation would be needed which could include a consequential amendment to change the references to them here. In paragraph (e), therefore, the term "that group" refers to the Operational and Intelligence Group of the Scottish Drug Enforcement Agency.
The noble Baroness, Lady Anelay, mentioned community support officers. We do not expect that a community support officer would carry out surveillance. No CSOs belong to NCIS and we have no plans or intention of so providing them.
The matter we are discussing is not simple given that we do not yet have a consolidated Bill including amendments passed on previous days in Committee. However, I trust that the Committee is happy with that explanation and will not oppose the insertion of the amendment in the Bill. The consolidated Bill will be printed on Report. That will permit further opportunity to discuss whether my words make sense, as I trust they do. We shall see the whole picture when the consolidated Bill is printed.

§ Baroness Carnegy of Lour
I thank the Minister for that explanation. I understand that paragraphs (d) and (e) relate to Scotland only and that the term "that group" refers to the Operational and Intelligence Group of the Scottish Drug Enforcement Agency. However, I suggest that that drafting is not clear. The term "that group" is difficult to understand in this context. I suggest that the reference to the Operational and Intelligence Group is repeated in paragraph (e) to make the position clear. It is not clear that paragraphs (d) and (e) are linked. I suspected that they were linked when I first read the amendment but the drafting is not clear.

Lord Renton
It might be helpful if I intervene now. I refer to the comments of the noble Lord, Lord Dholakia. I have two points to make. The Explanatory Notes do not form part of the Bill and are not enforceable in law. They can in unusual circumstances be used for interpretation but when that happens in court counsel must bear in mind that they are not part of the Bill. In any event, the lengthy explanation of Clause 83 refers to the clause as it is drafted at present and without the additional definition that the noble Lord, Lord Filkin, is asking us to accept.
I turn to the more general matter. I listened carefully to what the noble Lord, Lord Filkin, said in justification but I must confess that I still have the serious doubts that I expressed before he even moved the amendment. For that reason, and in order to secure perfect drafting rather than this inadequate 14GC form of drafting, it would be better not to ask us to accept the insertion of the measure in the Bill now. The noble Lord should reconsider the matter between now and Report and table another, more credibly drafted amendment. It would be in the public interest to do so.

§ Lord Dholakia
I accept what the noble Lord, Lord Renton, said. The Explanatory Notes are provided to assist us but they do not form part of the Bill.

§ Lord Carlisle of Bucklow
Am I right in thinking that, in view of government Amendment No. 139B, the Minister is saying that Amendment No. 154A is a consequential amendment because the term "United Kingdom officer" was not included in Clause 83 but is now included?

§ Baroness Anelay of St Johns
Following what my noble friend Lord Renton said, I do not think that accepting the amendment in its present form tackles the confusion that arises in paragraphs (d) and (e) to which my noble friend Lady Carnegy referred. It certainly would be helpful to have a better drafted amendment tabled on Report to make it absolutely clear that paragraphs (d) and (e) refer specifically to Scotland as the Bill will be used widely and, we hope, for many years to come. I hope that the Minister will bear that matter in mind.

§ Lord Filkin
The noble Baroness, Lady Carnegy, is absolutely right to say that paragraphs (d) and (e) relate to Scotland only. She invited us to consider whether the drafting of the amendment could be improved. I am happy to reflect on whether it could be improved given the nature of the discussion that has occurred.
I apologise to the noble Lord, Lord Dholakia, for not referring to the point he made but, as he indicated, he is aware that the Explanatory Notes do not form part of the Bill. The comment of the noble Lord, Lord Carlisle, was correct. The noble Lord, Lord Renton, asked us not to insert the amendment as currently drafted but to table a further, more credibly drafted amendment. As I indicated earlier, I consider that if we insert the amendment at this point a consolidated Bill would be printed on Report to show the whole picture. That would give noble Lords another opportunity to consider the measure. However, I am well aware of the conventions of Grand Committee. Unless that proposal finds unanimous support, I have no power whatsoever to insist on my will in that regard. I am in the hands of the Committee. Members of the Committee know my views and it is up to them to decide how they wish to proceed in the matter.

§ Baroness Anelay of St Johns
It might be helpful if I make it clear that I should be unhappy to proceed with the amendment as presently drafted. I made an error of judgment on a previous occasion when the noble and learned Lord, Lord Goldsmith, proposed an amendment which the Committee considered was not well drafted. In fact, there were a couple of amendments in that category. One of them related purely to Scotland. My noble friend Lady Carnegy examined it and said that it seemed to be absolutely 15GC meaningless. Another related to England where I had the same difficulty. At that stage we accepted the relevant amendment. On reflection I consider that I made the wrong decision. I should have invited the noble and learned Lord, Lord Goldsmith, to redraft the amendment. Therefore, I should be grateful if the Minister would consider redrafting the amendment we are discussing before Report and not press it today.

§ Lord Filkin
I am happy to accede to that request for the reasons that have been given by other Members of the Committee. I shall not press the amendment. I shall reflect on what has been said and consider whether the phraseology can be improved and whether an appropriate amendment can be tabled on Report.

§ Amendment, by leave, withdrawn.

§ On Question, Whether Clause 83, as amended, shall stand part of the Bill?

§ Baroness Anelay of St Johns
I can now speak more briefly on this matter than I thought would be the case. My noble friend Lord Carlisle manages to mop up just about every single matter in a clause that has not yet been referred to. However, that is not my approach on this occasion. I oppose Clause 83 as it is currently drafted. If we were discussing this matter on the Floor of the House, I should have considerable difficulty in allowing the clause to be accepted as it is currently drafted. Substantial issues have not yet been resolved. I hope that we shall be able to resolve them on Report. I refer to the freedom of a foreign officer to bring arms into this country. At the moment it is not stated on the face of the Bill that he may not do so, although we are told that the Schengen handbook will cover that matter. However, I still feel uneasy about that.
I also believe that there should be provisions on the face of the Bill to prevent a foreign officer entering private property or challenging or arresting a person. I have significant worries about the detail of issues of civil liability. It is not a party political matter but I have significant problems with the drafting in that regard. I signalled my intention to oppose Clause 83 to let the Government know from where the salvo will come on Report.

§ Lord Dholakia
We have added our names to the amendment. We have exactly the same concerns as the noble Baroness, Lady Anelay. We hope that this matter will be further discussed on Report. At this stage we are concerned about a number of issues that have been highlighted with regard to Clause 83.

§ Lord Filkin
The Committee will be sad to hear that I shall not repeat all the arguments that I made previously. The debate has been thoughtful, intelligent and helpful to the Government. I sense that there is general recognition of the need for a provision of the kind we are discussing in the very limited circumstances that we have mentioned. I believe that that has been recognised by most Members of the Committee. We are not arguing about the principle involved but rather discussing how to get the detail right. We need to ensure that people who are under 16GC suspicion of having committed serious terrorist or other criminal offences do not escape, while at the same time ensuring that we do not ignore the other concerns that the Committee has mentioned. I thank the noble Baroness, Lady Anelay, for so clearly signposting her concerns—not that we would not have studied Hansard in any event. We shall reflect on the issues and see whether there is any scope for closing the difference between us before Report.

§ Clause 83, as amended, agreed to.

§ Clause 84 [Assaults on foreign officers]:

§ Baroness Anelay of St Johns moved Amendment No. 155: Page 56, line 20, leave out "under" and insert "in conformity with

The noble Baroness said
Clause 84 provides that an assault on a foreign officer carrying out "hot" surveillance under New Section 76A of the Regulation of Investigatory Powers Act 2000 is deemed to be an assault on a constable for the purposes of UK domestic law.
My amendment seeks to replace the word "under" with the words "in conformity with". It seeks to probe the exact circumstances in which a foreign police or Customs officer would effectively be deemed to be a UK police officer for the purposes of the offence. What if the foreign officer had exceeded the five-hour limit or had otherwise broken the conditions in New Section 76A? Would he still be deemed to be a police officer if he were assaulted in such circumstances? Will the foreign officer have to identify himself as a foreign Customs or police officer acting in accordance with New Section 76A for the provision to apply? If not, how are people supposed to know that that is the case?
I am aware that in the case of common assault one can be prosecuted for assault regardless of the position one holds. However, if one is brought before a court for assaulting a police officer, that offence—quite rightly in my view—carries a higher penalty and, indeed, a higher starting point with regard to sentencing guidelines given by the Judicial Studies Board and the Magistrates' Association. Foreign officers who carry out "hot" surveillance should be given extra protection, but how will ordinary members of the public not involved in the surveillance know who they are? I beg to move.

§ 4.30 p.m.

§ Lord Bassam of Brighton
We wondered what the amendment intended to probe, and I am grateful to the noble Baroness for putting the amendment as she has.
Our understanding of the clause is the same. The noble Baroness rightly referred to the way in which the legislation will apply to foreign officers. In practice, foreign officers conducting surveillance will not want to draw attention to themselves, and they will very rarely find themselves in a situation in which they are challenged, assaulted or obstructed. None the less, as Article 42 of the Schengen Convention says, it is right that they should be protected by law, and there is agreement on that throughout the Committee. Our 17GC officers will benefit from that because, when they conduct similar surveillance exercises in the EU, they will have the protection that the provision affords.
Section 104 of the Police Reform Act 2002 already provides the same rights for foreign officers who are members of a joint investigation team. It will cover the foreign surveillance officers from the time when the surveillance is taken over by UK officers. Section 104 covers foreign officers taking part in pre-planned joint surveillance operations.
The point on which the noble Baroness rightly sought clarification was what would happen if the five-hour limit was exceeded. In that case, it would no longer fall under new Section 76A. The people involved would not be complying with that legislation because they would no longer fall within the terms of its protection. I hope that that clarifies the point.
If the officers were to be assaulted by someone, that would still be an offence even if that person was unaware that they were police officers. As for surveillance, the officers need only withhold their identity from the target. If challenged by other members of the public, they could identify themselves as foreign officers engaged in authorised activity, but it would be important for them to do exactly that.
I hope that that answers the points on which the noble Baroness invited a response. If not, I shall provide further clarification.

§ Lord Dholakia
May I ask for further clarification? I have no difficulty in accepting what the Minister said in relation to treating a police officer for this particular purpose under this clause. What would happen if the police's complaint was unjustified, however? Would the individual have recourse to the Police and Criminal Evidence Act 1984 and the Police Complaints Authority to mount a formal complaint against the police officer?

§ Lord Bassam of Brighton
My advice is that we do not yet know the answer to that question, and we will have to check it. The noble Lord has drawn out a useful and valid point of elucidation. We will check on it and return to the matter perhaps in correspondence, which the noble Lord could share with the other Members of the Committee.

§ Baroness Anelay of St Johns
I have a couple of questions, one of which the Minister may be able to answer today and one on which he may wish to reflect and write to me later.
The first question has regard to a situation in which a member of the public assaults a foreign officer while not knowing who he is. The Minister said that that member of the public would come under the offence in the legislation and would be accused of having assaulted a police officer in the course of his duty. However, what if the officer who is carrying out the surveillance takes a short time off, goes into a pub and gets involved in a punch up with people who have absolutely no idea that he is a police officer? Are the Government saying that, in those circumstances, the person who committed the assault will be accused and 18GC charged under this provision of having assaulted a police officer, rather than under common assault? That is my first question.

§ Lord Bassam of Brighton
The answer is "No".

§ Baroness Anelay of St Johns
Unfortunately, that is not in the Bill, so I may have to give further thought to the matter. However, I am reassured by that common-sense answer.
The second question is on a matter of sentencing policy for serious assaults, which could be important for a foreign officer if he was assaulted. The Bill gives the basic protection, in the case of ordinary assault on a police officer, of six months. What about other offences against the personߞhigher levels of GBH, and all that? I ask the lawyers on my left to excuse me for expressing myself in that way. I refer to the more serious offences. Undercover police officers may be subject to dangerous situations such as serious assault. Does the Minister propose that sentencing guidelines in such cases should take account of the fact that the person is a police officer if someone is accused of GBH against them? Do the Government foresee that as a natural consequence of the Bill? Have the Government turned their mind to that scenario?

§ Lord Bassam of Brighton
The noble Baroness raises an important question on a serious issue. It may be a matter to which we should give some thought, but we have not done so as yet. She invited us to consider it, perhaps not at leisure but over a longer time frame. We shall happily do so and respond accordingly, and share that response with other Members of the Committee.

§ Lord Carlisle of Bucklow
Are not guidelines a matter for the judiciary rather than the executive?

§ Lord Bassam of Brighton
The noble Lord, Lord Carlisle, is absolutely right in terms of sentencing, which is a matter for the judiciary. However, the guidance is important, and it is important that we are clear on the matter in the Committee and the House as a whole.

§ Baroness Anelay of St Johns
I am grateful to my noble friend Lord Carlisle for always saying the correct thing. At present, sentencing guidelines are a matter for the judiciary, although we know that there are proposals from the Home Office to give guidance on sentencing guidelines. We shall see what happens in that regard. Are the Government going to change other offences so that there is a more serious approach if a serious assault is committed on someone carrying out surveillance under the New Section 76A? At this stage, however, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ Clause 84 agreed to.

§ On Question, Whether Clause 85 shall stand part of the Bill?

19GC

§ Lord Carlisle of Bucklow
I wish merely to probe whether this clause gives the answers to the problems that we found in Clause 83(5). The subsection states: An officer is not to be subject to any civil liability in respect of any conduct of his which is incidental to any surveillance". We discussed at the time how wide the provision went and whether it included acts of negligence in driving and matters of that kind.
Clause 85(2) refers to, unlawful conduct by that person in the course of carrying out the surveillance". Is it intended that conduct that is incidental to the surveillance can nevertheless be misconduct? In other words, can an action be brought for misconduct against a person when the conduct occurs in pursuance of surveillance? If so, does the word "misconduct" go wide enough to envelop the word "negligence"? In other words, if an officer is negligent in implementing the surveillance—that is, by following a man in a car at speed—as a result of which someone is injured, does that negligence make it unlawful conduct of the kind covered by the clause? Will the injured person have a remedy under Clause 85?
The clause is probably intended to do something entirely different, but it occurred to me that this might be an answer to the issue of whether there is a means of redress for a citizen injured as a result of the negligence of a pursuing officer.

§ Baroness Anelay of St Johns
Perhaps I may add a word or two to that. Since the debates last week, I have studied the Bill more closely and I remain unhappy. Like my noble friend Lord Carlisle, I had hoped that Clause 85 might provide an answer.
Last week the Minister was given a helpful briefing to the effect that there would be cover for anyone injured because, under Clause 83, the director of NCIS would pay up. However, when one looks closely at the provisions of previous Bills, it seems that the director of NCIS covers the person involved if he is an employee, but not necessarily in the circumstances envisaged in the Bill.
When we get to Report stage we may be accused again of dancing on the head of a pin, but we want to ensure that no innocent member of the public, who is not a party to any surveillance, incurs injury and then finds that he has no recourse to damages against the officer concerned.
I shall be interested to hear what the Minister has to say. Having had this morning, over breakfast, an hour's seminar with my husband on the issue of civil liability, I am certainly looking forward to the Report stage.

§ Lord Bassam of Brighton
I am beginning to wish that I had shared that seminar. No doubt the breakfast would have been beneficial as well. I do not want to get out of my depth. My partner is a lawyer but I am not sure that she would be able to advise me with quite the expertise with which the noble Baroness's husband has obviously advised her.
20GC It is worth reminding ourselves that Clause 85 is simply a mechanism to provide that persons can be sued—for example, for negligence on the road. That is its application. New Section 76A(5) in Clause 83 provides that there will be no liability for incidental conduct.
The noble Lord, Lord Carlisle, has raised some valuable points and I should like to study what he said in posing his questions. With the leave of the Committee, we will now move on from Clause 85. We should like to consider the points that have been made. If there are any outstanding issues, I shall give a more precise response to these important questions through correspondence.

§ Lord Carlisle of Bucklow
I am grateful to the Minister for that answer. The real problem is that if a person is driving a car negligently, he will be, presumably, guilty of careless driving and therefore his conduct will be unlawful. However, a person may commit other acts of negligence which do not amount to unlawful conduct but which may cause injury to a third party for which, under normal law, he would be liable. I am inquiring about the relationship between the words "unlawful" and "negligent".

§ Lord Bassam of Brighton
I do not believe that we can take the matter further today. I hope that Members of the Committee will endorse the clause.

§ Clause 85 agreed to.

§ Clauses 86 to 88 agreed to.

§ Clause 89 [False monetary instruments: Scotland]:

§ 4.45 p.m.

§ Baroness Carnegy of Lour moved Amendment No. 156: Page 58, line 22, leave out "or believes to be" and insert "is

§ The noble Baroness said: The clause deals with false monetary instruments in Scotland, and is the twin to Clause 88, which deals with England, Wales and Northern Ireland. The Scottish clause is different, and longer, for a variety of reasons.

§ This is a probing amendment tabled by my noble friends and myself after discussion with the Law Society of Scotland. The Government's Explanatory Notes explain that, as the law stands in Scotland though not in England, forgery itself is not a crime and only becomes so when a false instrument is uttered as genuine". Uttered" means that it is handed over.

§ If the whole of the United Kingdom is to comply with the framework directive, it is necessary to create a new crime in Scotland. That is done in Clause 89, which inserts into the Criminal Law (Consolidation) (Scotland) Act 1995: (1) A person who counterfeits or falsifies a specified monetary instrument with the intention that it be uttered as genuine is guilty of an offence".

§ That I understand. My problem is with subsection (2), which creates a second offence. I particularly want to query subsection (2)(a).

21GC

§ The subsection states: A person who has in his custody or under his control, without lawful authority or excuse— (a) anything which is, and which he knows or believes to be, a counterfeited or falsified specified monetary instrument … is guilty of an offence".

§ I do not want to query subsection (2)(b), which follows.

§ If one has forged items and one knows that one has them, that is clearly an offence. However, the Law Society asks me and I am asking the Minister how it can be an offence to believe that one possesses something forged if it turns out that it was not forged. If I have a £10 note and have been told that it is forged but I do not intend to use it in any way and it turns out not to be forged, how can that be an offence?

§ Surely subsection (2) should add that the intention is to hand over or "utter" the document. If it does not say that, surely "or believes" should be omitted. That is the Law Society's question. I beg to move.

§ Lord Bassam of Brighton
The noble Baroness is right in her understanding and interpretation of what we are trying to achieve in the clause. As the noble Baroness has explained, under the common law of Scotland, forgery itself is not a crime and only becomes so when a false instrument is uttered as genuine". Section 5 of the Forgery and Counterfeiting Act 1981 does not apply to Scotland. That is what we are trying to put right in Clause 89, in the sense that it ensures that there is commonality. There has been substantial consultation and the Scottish Executive are entirely happy with what we are trying to achieve. We are at one in our intentions.
I believe that I can answer the question by picking up especially on the last point made by the noble Baroness. It would be an offence for a person to have, in his custody or under his control … anything which is, and which he knows … to be, a counterfeited or falsified … monetary instrument". Therefore, it would be possible for a person in possession of a counterfeited instrument to argue that he did not know that the instrument was not genuine, although it could be shown that he had cause to believe that to be the case. I believe that that answers the point made by the noble Baroness, but I shall listen with care to what she says in response to that explanation.
I turn to the detail of the amendment. If we were to remove the phrase, "or believes to be", it would introduce a hurdle for the prosecution that would be difficult to discharge other than in relation to a person who could be shown to have made the forgery or to have been present when it was made. We could not accept the amendment for that reason. It would limit the scope of the offence, which we do not want to do. As I said, we are at one in our intentions on this offence, which is why we have inserted the clause.

§ Baroness Carnegy of Lour
The anxiety that has been expressed relates to the question of how the situation that I described can be an offence. If I have a £10 note in Scotland and believe it to be forged, I may be 22GC interested to have it in my possession and have no intention of doing anything with it. It turns out that it was not forged at all, so I have not been in possession of a forged document but simply believed that I was. I had no intention of doing anything with it, so how can that be an offence? That is the question that was put to me, which I do not believe the Minister to have answered.

§ Lord Monson
Would that situation not be covered by the phrase, "without lawful excuse"? One would have an excuse in the circumstances described by the noble Baroness, because the person was not planning to do anything with the note.

§ Lord Bassam of Brighton
The key to the question is whether the document is "uttered as genuine"—not only whether it is believed to be counterfeited but whether it is put to some use as genuine when it is not. I suspect that the noble Baroness would have a perfect defence, but I am not a lawyer and I am prepared to be wrong when providing an explanation.

§ Baroness Carnegy of Lour
I am not a lawyer either. We are discussing subsection (2)(a), not subsection (1). The person has a document, which he knows or believes to be … counterfeited or falsified". The person believes that it is forged but it turns out not to be. He has no intention of doing anything with it. How can that be an offence? That is the Law Society's question, and I do not believe that the Minister has answered it.

§ Lord Bassam of Brighton
It probably goes back to the point about not having, "lawful authority or excuse". That is the important aspect for the noble Baroness to focus on. My guess is that, in the circumstance that she described, no offence would have been committed. Having the belief and putting to use the note would create the offence. We are happy to examine whether we have got the wording right, but I believe that that is the explanation.

§ Baroness Carnegy of Lour
I will consider what the Minister said and talk with the Law Society of Scotland. It is an interesting point. If the clause describes something that could not be an offence, it should be reworded. I understand what the Government are trying to do. I shall consider what the Minister has said and, if necessary, bring the matter back on Report. I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ Clause 89 agreed to.

§ Lord Filkin moved Amendment No. 156A: After Clause 89, insert the following new clause— FREEZING OF TERRORIST PROPERTY

§ Schedule (Terrorist property: freezing orders) is to have effect."

§ The noble Lord said: This amendment will introduce the mutual recognition of orders freezing terrorist property. The Bill already implements the 23GC evidence-freezing provisions of the EU framework decision on the execution of orders freezing property or evidence.

§ Freezing of assets is a difficult area, even more so when it comes to international mutual recognition of freezing orders. But it would be a useful addition to the anti-terrorism tool kit, which is why we have tabled these amendments. I wrote to the noble Baroness, Lady Anelay, and the noble Lord, Lord Dholakia, setting out why we thought that it was important for the Bill to introduce the aspects of the framework decision relating to the freezing of terrorist property, as it forms a key part of the post-11th September EU anti-terrorism roadmap.

§ The Terrorism Act 2000 already provides for the freezing of terrorist assets in a way that is compatible with the framework decision. Schedule 4 to the 2000 Act provides for restraint orders, which carry out the same function as freezing orders, to secure property, with a view to its later confiscation. These orders specifically apply to property that is supplied for, or is intended to be used for, terrorism, that represents the proceeds of terrorism or that has been used to pay someone for committing a terrorist act. This amendment provides for domestic orders under the Terrorism Act, freezing terrorist property in another member state to be sent to that other member state for enforcement, and for overseas freezing orders made by another member state but relating to terrorist property here to be enforced in relation to that property by our courts.

§ The amendment makes separate provision for sending orders to another EU state, and for registering and enforcing incoming orders sent from the rest of the EU.

§ So far as outgoing orders are concerned, new paragraphs 11B and 11C, which will be inserted into Schedule 4 to the 2000 Act, allow a court, when making a restraint order under that schedule, to sign the certificate required by the framework decision, allowing the order to be transmitted overseas for enforcement. These paragraphs do not extend the powers of the court to make such orders—those powers will remain as set out in the Terrorism Act.

§ The Court will be able to sign the certificate if any of the terrorist property to which the order relates is situated elsewhere in the EU, and there is a good arguable case that that property is either likely to be used for the purposes of a listed offence, or the proceeds of the commission of such an offence. Once the certificate has been signed, it, together with the order to which it relates, would be sent to the Secretary of State for forwarding to the state where the property in question is believed to be located. The requested state would be required to execute the order on the basis of mutual recognition, under the terms set out in the framework decision.

§ The Terrorism Act 2000 allows the enforcement of incoming orders to restrain terrorist assets to be dealt with by Order in Council. However, we propose to deal with the main provisions for incoming orders in 24GC the Bill to give Parliament the opportunity to consider the use of mutual recognition in more detail. The amendment therefore inserts the appropriate provisions—paragraphs 11D to 11F—into Schedule 4 of the Terrorism Act 2000.

§ The proposed procedure for executing incoming requests will work similarly to the procedure already set out in Clauses 20 to 25 of the Bill for the execution of evidence-freezing orders, though there are some differences that reflect the distinction between the freezing of assets and that of evidence.

§ We intend incoming freezing orders to be dealt with in the High Court. I shall introduce an amendment on Report to make that clear. The High Court will exercise limited discretion over the execution of incoming freezing orders, although, as paragraph 11G(4) provides, it will be able to refuse to give effect to an overseas order where to do so would be incompatible with ECHR rights.

§ The amendments are necessary and justified in order to take effective action against those who plan, perpetrate or support, whether financially or otherwise, terrorist acts. I stated earlier that the provisions are restricted to terrorist assets. Asset freezing has proved to be an effective weapon in destabilising terrorist organisations and preventing groups from profiting from terrorist activity. The introduction of the measures will provide us with another tool to use against terrorists, so I commend the amendments to the Committee. I beg to move.

§ 5 p.m.

Lord Renton
The Minister is fully justified in asking us to accept the new schedule. I do not suggest any major change, but if we read paragraph 11A(3)(a), we find that a listed offence in the schedule means, an offence described in a prescribed provision of the relevant Framework Decision'". The word "prescribed" is not one to which we are accustomed in such a context in English law, but I do not complain about that. But sub-paragraph (b) states that, a prescribed offence or an offence of a prescribed description", is also a listed offence.
I wondered what was a prescribed offence in that context. Sub-paragraph (6) states: In this paragraph, 'prescribed' means prescribed by an order made by the Secretary of State". Incidentally, that gives the Secretary of State considerable power, but perhaps that is a power that we could not prevent him having.
I mention the matter not merely to help to clear my own mind, if I may dare say so, but to help us all to understand those rather unusual provisions. We must accept the schedule, but I wonder whether between now and Report the drafting could be improved if we amalgamated sub-paragraphs (3), (4) and (6). The provision could then be more easily understood and come to the mind more directly.

§ Lord Goodhart
I, too, welcome the amendments in principle, but I have some questions about them. First, 25GC why do the new paragraphs in the schedule concerning domestic freezing orders appear to apply only if the High Court makes a restraint order under Schedule 4 to the Terrorism Act 2000, not where a confiscation order is made under Section 23 of that Act? A restraint order being merely an interim stage on the way to the making of a confiscation order, it would obviously be undesirable if freezing orders applied to property subject to a restraint order, but not to property subject to a final confiscation order.
Secondly, there is a good deal of variation in the language used about the test that must be applied before a restraint order or a freezing order can be made. Under Schedule 4 to the Terrorism Act 2000, a restraint order may be made where; a forfeiture has been made, or it appears to the court that a forfeiture order may be made, in the proceedings for the offence". So the test there is that an order may be made. For the purpose of making a domestic freezing order, under new paragraph 11B (2)(b), the High Court may make a certificate if, it is satisfied that there is a good arguable case that the property is likely to be used for the purposes of a listed offence". So that appears to be a rather stronger test, because it must be shown not that it may be used but that there is a good arguable case that it is likely to be used.
On the other hand, under the test for overseas freezing order in paragraph 11D(3), the grounds on which an overseas freezing order can be applied in this country are that, the property is likely to be used for the purposes of a listed offence". That appears to be a stiffer test yet, because it is not merely that it may be used or that there is a good arguable case that the property is likely to be used. The overseas court must have made an order on the basis that the property is likely to be used for the purposes of a listed offence. So there seem to be three different tests: one in the Terrorism Act 2000; a second regarding a domestic freezing order; and a third regarding an overseas freezing order.
I should like to hear the explanation for that although, like the noble Lord, Lord Renton, I agree that the provision is an addition to the arsenal of anti-terrorist of weapons that should be adopted.

§ Baroness Anelay of St Johns
As I said earlier, I, too, welcome the amendments as—as the noble Lord, Lord Goodhart, rightly said—a proper addition to the Government's arsenal in their fight against terrorism. That having been said, it is always important that new clauses and schedules are properly drafted, and I endorse everything that my noble friend Lord Renton said and the questions posed by the noble Lord, Lord Goodhart, especially his question about the different levels of test applied to freezing orders. I shall be interested to hear the Minister's response to that.
I am grateful to the Minister for saying that on Report the Government will table an amendment to make clear the role of the High Court with regard to incoming applications. It is important that that is 26GC clarified. I have one other question. Paragraph 11A(7) defines the participating country—the Committee will recall that we debated that earlier. It states: A participating country means … a country other than the United Kingdom which is a member State on", the day on which the Bill comes into effect. Sub-paragraph (7)(b) states: any other member State designated by an order made by the Secretary of State". I have no quarrel with that; I seek information about what the Government intend. Do they expect to name all other states which are at that stage on the list to become members? What will they use sub-paragraph (b) for?

§ Baroness Carnegy of Lour
Will there be a further schedule for Scotland? I think that the answer will be yes, so I shall not say anything else.

§ Lord Filkin
I thank those Members of the Committee who spoke in support in principle of the need for the measure; that is appreciated. I shall make a fist of responding to some of the good, probing questions that have been asked, but I am almost certain that I shall be writing to the Committee about them, because the issues are complex as well as important.
The noble Lord, Lord Renton, makes an interesting argument about whether the drafting of sub-paragraphs (3), (4) and (6) could be improved. We shall certainly consider that with an open mind to decide whether we concur. I shall write to him before Report so that he knows our mind on those issues.
The noble Lord, Lord Goodhart, asked about the new paragraphs relating to the High Court making a restraint order. I shall have to write to him on his first point; I have difficulty reading my own writing about it, which presents a particular challenge.
Secondly, he asked: why are we using the "good arguable case" test in paragraph 11B(2) as the test that must be satisfied before an order can be sent abroad? The framework decision applies where the relevant judicial authority "considers" that the property concerned constitutes the proceeds or instrumentalities of an offence. We have used the "good arguable case" formula as a means to translate "considers" into our law. We believe that that indicates to the court the appropriate standard of proof. The test is based on the test for an interim receiving order—the equivalent of a restraint order—pending civil recovery under Part 5 of the Proceeds of Crime Act 2002 in Section 246(5).
The test of a good arguable case exists because the framework decision states that the court must consider that a property is the proceeds or instrumentalities of an offence. The test for an incoming order is restricted to the terrorist's property and uses the definition of Section 14 of the Terrorism Act 2000 for that purpose.
To answer the question posed by the noble Baroness, Lady Anelay, sub-paragraph (7)(b) will be used only to designate all future member states. To 27GC answer the question posed by the noble Baroness, Lady Carnegy, there will be further provision for Scotland and it will be on the same principle.
I thank Members of the Committee for those questions; I shall write to them; before doing so, we shall of course give proper consideration to whether the measures are appropriate and whether they can be bettered, as I said in response to the question posed by the noble Lord, Lord Renton.

§ Lord Goodhart
I do not think that "a good arguable case" means anything like the same as "considers". To say that there is a good arguable case that property is likely to be used means that there is a significant chance that the claim may succeed, but that could be well short of the balance of probabilities. Under the test as to whether leave is to be given for judicial review, for example, one does not have to show on the balance of probabilities that one is likely to succeed, one has merely to show that there is an issue worth arguing about. I should have thought that if a court considers that something is terrorist property, that means at least that it is likely to be terrorist property. I am concerned about the use of the words "good arguable case".