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Mr. Alistair Carmichael (Orkney and Shetland): I support the amendment. It is sensible that if there is an offence, it should carry a proper penalty. I have had a quick look at the remainder of the Bill, and I can see no other provision that would attach a penalty. The
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penalty will be an exceptionally modest one, and the offence is to be tried only summarily, which suggests that it is perceived at being at the lower end of the scale. One can imagine circumstances in which such an offence could be serious. I commend the hon. Member for South-East Cambridgeshire for tabling the amendment. I also endorse his remarks on the establishment of jurisdiction in respect of any proceedings that would be brought under this provision.
I also wish to put on record that the terminology used in paragraph (b) is somewhat curious. There is an exceptionally fine distinction between someone who obstructs and someone who fails to give assistance that may be reasonably required. It is an unusual formulation of words, and I am interested to hear about the Government's thinking on that.
Caroline Flint: I shall deal first with the level of the fine. Amendment No. 155 would insert in the Bill the level of the fine that would be incurred by anyone who intentionally obstructed a person carrying out an inspection or who failed to provide that person with proper assistance. We do not believe that it is necessary to put the level of the fine in the Bill, as the clause forms an amendment to the Data Protection Act 1998, and the fine will therefore be set by reference to existing provisions in that Act. In particular, section 60 of the Act will apply to an offence under clause 81. That section provides that a person guilty of an offence relating to the powers of the Information Commissioner is liable to a fine not exceeding level 5 of the standard scale, which is currently £5,000.
The level of fine proposed by the amendment is inappropriate. Having a different level of fine for an offence arising from new powers being given to the Information Commissioner would suggest that they are less important than the commissioner's existing functions, and would create needless confusion. We take the new role for the—ensuring that the EU systems are properly monitored—extremely seriously.
As for obstruction, I clarify that the powers of inspection relate to the UK national section of the systems. We cannot give powers of inspection that would apply overseas. The person who is obstructing, under the clause will be in the UK. We have no power to commit the Information Commissioner to exercise powers in another jurisdiction. That is why, for example, we have not included any power to access the Europol index system, which can be accessed only in The Hague. We understand that, in the past, the lack of legal powers has not been a problem, and that the UK unit in Europol has readily assisted the commissioner in his work.
Mr. Paice: The hon. Lady has shed a substantial ray of light on clause 81 because she has told us that it applies only to UK information systems. Neither the Minister nor I are lawyers. I would not pretend to understand every piece of legal jargon, but as I read it, nothing in clause 81 implies that it applies only to UK systems. Subsection (1) refers to two international systems. It also refers to the operation and testing of equipment, but it does not specify that that applies only to the UK. The hon. Lady has answered my point about obstruction, but only if it is clear that inspection
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can take place only in the UK. My point, however, is that nothing in the clause says that.
Caroline Flint: According to my information, that is the case, but I hope that some more information to help with that will come from my left very shortly.
The scope of power of the Information Commission under data protection provisions may relate only to data where the data control is established in the UK. All legislation passed in the UK refers to powers within our jurisdiction. We cannot legislate in other jurisdictions.
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Mr. Paice: I am afraid that the Minister has been let down in that last statement.
Mr. Hawkins: Always beware of information from the left.
Mr. Paice: I was going to make a comment on the absence of the hon. Member for Liverpool, Walton (Mr. Kilfoyle), who is usually full of advice from the left for the Government. However, the whole Bill is about international legislation. I am sorry to say it, but the Minister cannot get away with suggesting that we can only legislate for within the UK, otherwise we would not be in this Committee discussing this Bill. Obviously, I take at face value what she said, but it is surprising that the fact that the clause applies only to the UK is not clearly stipulated.
Caroline Flint: This is a matter that needs to be clarified, so I shall make sure that we get something to the hon. Gentleman to explain.
Mr. Paice: I am extremely grateful to the Minister for that offer, which of course I accept. In the light of that, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 81 ordered to stand part of the Bill.
Clause 82
Foreign surveillance operations
Mr. Hawkins: I beg to move amendment No. 71, in
The Chairman: With this it will be convenient to discuss amendment No. 72, in
Clause 82, page 55, line 38, after 'party', insert 'and which is an offence under the law of any part of the United Kingdom ,'.
Mr. Hawkins: May I say good morning to you, Mr. Benton, more fully than I did in an intervention on the previous day that the Committee met?
David Cairns (Greenock and Inverclyde): Hear, hear.
Mr. Hawkins: The hon. Gentleman is feeling demob happy, but I shall endeavour to concentrate on the important matters. Even though the group of amendments is relatively small, they relate to probably the most important and, to a large degree, the most controversial clause in the whole Bill. When
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we turn in a few minutes to the Government amendment, which seeks to reverse the defeat that the Government suffered in the House of Lords, we shall come to the biggest issue of all. I flag that up now so that Labour Back Benchers do not get too demob happy or imagine that we have already broken the back of all the issues.
Amendment No. 71 would insert a new subsection (1A). ''Hot surveillance'' is so called to distinguish it from hot pursuit, which is a term that is well known to both the lawyer and, perhaps, the layman in this country and in other jurisdictions, and became known as such in other place, so that is what I shall call it. Such hot surveillance should not happen, even in the rare circumstances in which it happens at very short notice, unless it is not reasonably practicable to get prior authorisation from the UK owing to the very short duration of the travel to the UK by the foreign police officers involved.
There was quite a lot of debate in another place about how long it would take a foreign police officer to get to the UK and whether it should be possible during the journey for foreign police officers or those to whom they report to get in touch with the authorities in this country in time to get UK police or Customs officers on the scene to carry out surveillance.
The Conservative view is that it would be preferable for the peace of mind of British subjects if such surveillance was normally done by UK police or Customs officers. Ministers in the House of Lords, especially Lord Filkin who dealt with most of the debates on the issue, were frank enough to concede that that is also what the Government would prefer and would expect to happen in most cases. However, my noble Friend Baroness Anelay of St. Johns, and the noble Lord Goodhart and others who speak on behalf of the Liberal Democrats in the other place, recognised that there would be some rare circumstances, especially in cases involving undercover police or Customs officers, in which the pursuit would be carried out at such short notice and be so important that hot surveillance might be needed. Conservative Members hope that it will not become a matter of course.
The amendments relate to how rare should be the circumstances in which there is hot surveillance and what safeguards should be introduced. Baroness Anelay said:
''We want to ensure that it is possible for criminals who have no respect for borders to be hunted down by democracies whose police forces must have respect for borders. We do not object in principle to what the Government are trying to achieve, but we want to ensure that the quid pro quo is not achieved at too high a price. That is what our amendments are aimed at.''—[Official Report, House of Lords, 29 January 2003; Vol. 643, c. GC201.]
My noble Friend referred to what Ministers in the other place, especially Lord Filkin, had said, and drew attention to the fact that the Government said that the vast majority of operations would be pre-planned and would be taken over by police or Customs officers in this country. The new Minister will no doubt repeat what Ministers said in another place—that the
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provisions in this part of the Bill will cover the rest of the cases where foreign officers carry out hot surveillance, and that there will be only a few such cases; but they might be significant.
Amendment No. 71 would ensure that the Bill contains safeguards. Amendment No. 72 is even more significant, as it would ensure that the operations were restricted to crimes under UK law. The Minister is nodding; I do not know whether that is because she is agreeing with me or is following up what was said in another place. We want the Bill to make it clear that only crimes within the UK should be covered by the proposals relating to hot surveillance.
The high publicity that such matters attracted when they were debated in Parliament and elsewhere in recent years shows that the issue is particularly sensitive. For example, I remember the embarrassment of the previous Home Secretary, now the Secretary of State for Foreign and Commonwealth Affairs, the right hon. Member for Blackburn (Mr. Straw), when a minor Spanish judicial official—I think he was called Garzon—issued proceedings in Spain suggesting that in pursuance of those proceedings our forces should arrest Senator Pinochet for alleged crimes in Chile. It ended not only in huge embarrassment but in enormous cost to the taxpayer and to council tax payers in my constituency. At the same time, we were debating war crimes legislation in which it was seriously suggested that if the Government did not get it right, at some time in future judicial officials in other countries might want to issue proceedings against the present Prime Minister, the present Foreign Secretary or the previous Foreign Secretary for what they thought were war crimes by UK Ministers. These big issues go well beyond the specific scope of clause 82.
We want the protection to be in the Bill because of the concerns in respect of matters that are crimes in UK law. If the Government accepted our amendment or some form of it, current Ministers might one day have cause to be grateful to Opposition Members for insisting that only matters that were crimes in UK law were covered in the Bill.
I agree that some of what I said on the Pinochet case and the hot surveillance of UK Ministers might be a little far-fetched, but I raised it to show that it is important to restrict that activity under the Bill to matters that are crimes in UK law. I hope that the Minister will not deal only with the slightly far-fetched associations that I have made, but if she wants to respond to them, she may.
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