Joint Committee On Human Rights Seventh Report

Crime (International Co-operation) Bill

24. In our Third Report, we made various recommendations about (a) procedures for obtaining customer information orders and account monitoring orders, and (b) the control of cross-border surveillance by police officers from other jurisdictions.[18] In each case, our purpose was to improve protection for the right to respect for private life and the home under ECHR Article 8, and the right to peaceful enjoyment of possessions under P1/1. We also took issue with the Government's assertion that one could rely on the law of other jurisdictions in Schengen states restricting the powers of police officers on UK territory by reference to the requirements of the ECHR.[19]

25. The Government has responded in a letter dated 18 February 2003 to the Chair from Lord Filkin, Parliamentary Under Secretary of State at the Home Office.[20] In relation to customer information orders and account monitoring orders, the Government does not agree that our suggested amendments would be necessary or (in the case of customer information orders) practicable. We draw the correspondence on this point to the attention of each House.

26. In relation to cross-border surveillance, and the extent to which the UK should be able to rely on the law of the jurisdiction from which an officer comes ensuring that the officer will act compatibly with Convention rights, the Government makes the following points—

  • all the Schengen states have incorporated the ECHR into their domestic law;

  • the UK assumes that its European partners in practice act in accordance with their international obligations, including the ECHR;

  • it is extremely unlikely that any Schengen state would derogate from the ECHR in respect of following, on public highways or public transport, people suspected of a limited range of serious criminal offences, and most cases will involve surveillance of that kind;

  • as the nature of the surveillance undertaken in the UK will be substantially similar to that undertaken in the state in which it originates, the Government takes the view that the surveillance, if proportionate in the foreign jurisdiction, would be proportionate in the UK;

  • UK authorities, being contacted by the foreign police officer, would be able to order the surveillance to cease;

  • the Government takes the view that a foreign officer undertaking surveillance in the UK would be a public authority for the purposes of the Human Rights Act 1998, and would be subject to legal obligations and liabilities accordingly.

27. This is a matter which is of pervasive importance to the protection of human rights where EU Member States are implementing EU law in co-operation with agencies from other Member States. In relation to the protection of Convention rights in the United Kingdom, we regard the last of the Government's points as being particularly significant. We draw the Government's response to the attention of each House.

28. We consider it to be important that the line of accountability for actions of the foreign police officer should be clear where cross-border action or co-operation is taking place. In the case of this Bill, we note that a person who claims to have been subject to unlawful surveillance in purported exercise of the power to conduct cross-border surveillance would be entitled to bring the matter before the Investigatory Powers Tribunal established under the Regulation of Investigatory Powers Act 2000, and that the Director General of the National Criminal Intelligence Service would be liable to pay any damages awarded for unlawful surveillance by the foreign police officer.[21] In our view, that sufficiently establishes a line of accountability for the activities of foreign officers under the powers proposed in the Bill.

29. The Government has also considered whether any of the points outlined in the preceding paragraph as safeguards for human rights, or other safeguards suggested previously by the Government, could be placed on the face of the Bill, as we suggested in our Third Report.[22] In the light of those suggestions, and of the debate in the House of Lords in Grand Committee on the Bill, the Government proposed to make two amendments—

  • first, a requirement that the foreign police officer contact a person designated by the Director General of the National Criminal Intelligence Service immediately on arrival in the UK. This provision is now to be found in clause 82(6) of the Bill as amended on Report in the House of Lords;

  • secondly, a provision making it a condition of the lawfulness of surveillance by a foreign officer that the officer does not enter private homes or places inaccessible to the public (now contained in clause 82(4)(b) of the Bill as amended on Report in the House of Lords).

30. We welcome these amendments, which go a significant way to meet to the Committee's concerns about cross-border surveillance.

18   Joint Committee on Human Rights, Third Report of 2002-03, Scrutiny of Bills: Further Progress Report, HL Paper 41/HC 375, p 11, para 15 and pp 13-14, paras 23-24 Back

19   ibid., pp 12-13, paras 17-22 Back

20   Reproduced as an appendix to this Report, Ev 7-9 Back

21   New s. 76A(4) and (5) of the Regulation of Investigatory Powers Act 2000, to be inserted by the Bill. See the letter from Lord Filkin to the Chairman of the House of Lords Select Committee on the Constitution, published in that Committee's First Report for 2002-03, Crime (International Co-operation) Bill [HL], HL Paper 27, p 5 Back

22   Third Report, pp 13-14, paras 23-24 Back

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