House of Lords - Explanatory Note
Crime (International Co-Operation) Bill [HL] - continued          House of Lords

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Clause 82: Inspection of Information Systems

149.     This clause extends the functions of the Information Commissioner under Part VI of the Data Protection Act 1998 ("the 1998 Act"). It allows the Information Commissioner to inspect personal data recorded in the UK sections of three European information systems without a warrant. These information systems are the Schengen Information System (SIS), the Europol Information System (EIS) and the Customs Information System (CIS). The requirement for an independent power of supervision arises from the Conventions referred to in subsection (7) of the clause, establishing these systems. These Conventions require the supervisory authority to have free access to the national sections of the systems. At present the Commissioner is only able to enter premises to carry out inspections of the EIS either by agreement with the relevant UK body (NCIS) or on production of a warrant. The UK is not yet connected to the SIS or the CIS, but similar arrangements would apply once connection has been established.

150.     As required by the Conventions, the purpose of the Information Commissioner's inspections will be to ensure that the processing of personal data in the national sections of these systems is in compliance with processing requirements under the 1998 Act. The Information Commissioner will be required to notify the relevant data controller of his intention to inspect the systems (other than in cases of urgency), but a person obstructing the Information Commissioner in the course of his inspection or failing without reasonable excuse to give him any reasonable assistance will be guilty of an offence. The penalties for the offence are as established by section 60 of the 1998 Act, which states that a person guilty of an offence in relation to the powers of the Information Commissioner is liable on summary conviction to a fine not exceeding level 5 on the standard scale (currently £5,000). However, if required for the purposes of safeguarding national security, the additional powers attributed to the Information Commissioner under this clause in respect of personal data in the systems will not apply.

Clause 83: Foreign Surveillance Operations

151.     Article 40 of the Schengen Convention provides that police officers keeping a person under surveillance in their own country because he is suspected of having committed an extraditable offence may require neighbouring Schengen countries to assist in keeping the person under surveillance if he crosses the border into their territory. In the vast majority of cases such assistance will be requested in advance and when the surveillance enters the UK, our own officers will take over the surveillance. These UK officers will need to be properly authorised to conduct such surveillance under the Regulation of Investigatory Powers Act 2000 (c.23) (RIPA) or the corresponding Scottish legislation. However, on occasions an advance request will not be possible. This clause implements Article 40(2) of the Schengen Convention, which covers such cases by making provision for a foreign surveillance operation, which was initiated in one participating country but which has had to travel unexpectedly to another participating country, to continue to lawfully keep an individual under surveillance for a period of up to five hours. To legislate for this change, this clause amends RIPA by introducing a new section (Section 76A Foreign surveillance operations) to allow police or customs officers from other Member States to continue surveillance on UK territory for this period.

152.     At present, UK police officers are not allowed to follow suspects across the border into the territory of another Schengen State (and vice versa foreign officers may not travel into the UK to conduct similar activities). Instead they are expected to contact the police authorities of that state, and arrange for them to take over the surveillance operation. However, in practice police officers are not always immediately available to take over the operation, and this can result in losing the suspect. The provisions set out in this clause are meant to avoid this occurrence.

153.     There are three conditions that must be satisfied before urgent cross border surveillance will be lawful under these clauses. These are set out in subsection (1)(a), (b) and (c). Subsection (1)(a) provides that before crossing the border the surveillance must be lawful in the country it is being carried out in. In addition the surveillance must be "relevant surveillance". Subsection (2) defines this as being surveillance which would fall within the definition of directed or intrusive surveillance in RIPA and surveillance where the target is suspected of having committed a relevant crime.

154.      Subsection (3) provides that a relevant crime is one that falls within Article 40(7) of Schengen; namely murder, manslaughter, rape, arson, forgery of money, aggravated burglary and robbery and receiving stolen goods, extortion, kidnapping and hostage taking, trafficking in human beings, illicit trafficking in narcotic drugs and psychotropic substances, breach of laws on arms and explosives, wilful damage through the use of explosives, illicit transportation of toxic and hazardous waste. Subsection (3)(b) sets out that a relevant crime can also be a crime as defined in other international agreements specified by the Secretary of State by order.

155.     The second condition, in subsection (1)(b), is that the surveillance can only be carried out in the UK. Third, subsection (1)(c) provides that the circumstances must be such that it is not reasonably practicable to apply in advance for UK officers to take over the surveillance under a normal RIPA authorisation (or its Scottish equivalent).

156.     The purpose of subsection (4) is to provide that urgent cross border surveillance will be lawful under RIPA if certain conditions are complied with. The Secretary of State is given an order making power to specify conditions for the conduct of foreign officers should their surveillance operation unexpectedly cross into the UK. Failure to comply with these conditions will mean that the surveillance is not lawful under this new section. It is intended that the first order to be issued on the passing of the Bill will apply the conditions set out in Articles 40(2), and 40(3) of Schengen. Article 40(2) requires foreign officers to contact the authorities of the State into which they have entered immediately upon crossing the border and to submit a formal request for assistance as soon as possible. Article 40(3) places conditions on the conduct of foreign officers, which apply for the period they are operating in a foreign state. These conditions prohibit, for example, entry into private homes and places and prevent the officers from challenging or arresting the person under surveillance.

157.     Subsection (5) provides that foreign police officers carrying out such surveillance operations are not subject to civil liabilities in relation to conduct which is incidental to surveillance which is lawful. The same protection is given to UK officers by section 27(2) of RIPA in respect of UK officers who conduct surveillance authorised under RIPA.

158.     Subsection (6) establishes that this type of unaccompanied surveillance should not last for more than five hours. The five hour period will allow officers to continue surveillance, whilst providing time for officers in the destination country to be mobilised. If resources are available to mobilise a UK surveillance team within the five-hour period, a joint surveillance operation will be established, with the UK officers taking over the surveillance and the foreign officers adopting observer status at the point of handover. If a joint surveillance team has not been established by the time the five-hour period has elapsed then the foreign officers will no longer have lawful authority to continue and will be expected to cease the surveillance.

159.     Subsection (7) and (9) set out further restrictions on the operation of such teams. Subsection (7) permits the Secretary of State to designate persons within UK law enforcement with the power to terminate surveillance operations of this kind taking place in the UK, fulfilling the requirements of Article 40(2) of Schengen. The decision to terminate might be taken because UK officers have taken over the surveillance or because the surveillance was considered inappropriate.

160.     Taking account of devolved responsibilities and to maintain a consistent approach with similar legislation (Section 103(4) of the Police Reform Act 2002), the wording of this and the other order making powers in section 76A provide for a single order to be made to cover the whole of the UK, subject to the consent of Scottish Ministers.

Clause 84: Assaults on foreign officers

161.     The purpose of this clause is to provide, in accordance with Article 42 of the Schengen Convention, that officers from abroad conducting surveillance under the new section 76A are treated in the same way as constables while in England and Wales, Scotland or Northern Ireland with respect to offences committed against them. Section 104 of the Police Reform Act 2002, which already provides the same rights for foreign officers who are members of a Joint Investigation Team, will cover foreign officers taking part in pre-planned joint surveillance operations.

162.     The modifications to the relevant Acts provide that just as it is already an offence to assault or obstruct a constable or a person assisting a constable in the execution of his duty, it shall also be an offence to assault or obstruct members of foreign surveillance teams whether or not the team member from abroad is in the company of a constable.

Clause 85: Liability in respect of foreign officers

163.     This clause implements Article 43 of Schengen, which establishes that in the first instance the state in whose territory the surveillance operation is being undertaken, is liable to cover the cost of any damage foreign surveillance officers may commit, or legal action to which they may be subject. The UK has decided that the National Criminal Intelligence Service should be responsible for such liabilities in the first instance, albeit under Schengen they will be reimbursed by the foreign state.

Clause 86: Schengen-building provisions of the 1996 Extradition Convention

164.     The UK is participating in Chapter 4 of the Schengen Convention (Articles 59 to 66) which relates to extradition. No legislation is needed to implement these provisions as they have been superseded by two further Conventions on extradition in 1995 and 1996 which build on the Schengen provisions - the Convention on Simplified Extradition Procedure between Member States of the European Union (the "1995 Convention") and the Convention Relating to Extradition between Member States of the European Union (the "1996 Convention"). The 1995 and 1996 Conventions have already been implemented in the UK by the European Union Extradition Regulations 2002 (S.I. 2002/419) (the "2002 Regulations"), which amended existing extradition legislation contained in the 1989 Extradition Act.

165.     As non-EU Member States, Norway and Iceland were not original parties to the 1995 and 1996 Conventions but they are participants in Schengen, including the extradition provisions. As such, it is open to them, subject to the approval of the Member States, to seek to participate in those elements of the 1995 and 1996 Conventions that have been classified as "Schengen-building". The 1995 Convention is entirely "Schengen-building", and such a decision would bring the Convention into force between the UK and Norway/Iceland under the 2002 Regulations. But the 1996 Convention is only partially "Schengen-building", and if Norway and Iceland chose to participate in the "Schengen-building" parts alone, the Convention as a whole would not be in force between the UK and Norway/Iceland and the implementation of the 1996 Convention under the 2002 Regulations would not suffice. This clause therefore provides a power for the UK to bring into force the relevant parts of the 1996 Convention by Order in Council, subject to the negative resolution procedure. This would enable the relevant provisions of the Extradition Act 1989 to apply to Norway and Iceland; and to any other state which may participate in these Schengen-building measures.

166.     The Schengen building provisions are concerned with the definition of extraditable offences; extradition for fiscal offences; statute barring of extradition; barring by amnesty; and facsimile transmission of documents in extradition requests.

Clause 87: States in relation to which 1995 and 1996 Extradition Conventions are not in force

167.     This clause is designed to allow the UK unilaterally to apply the provisions of the 1995 and 1996 Conventions to countries which have not ratified the Conventions themselves. The clause is largely necessary so that the UK is able to fulfil its Schengen obligations to Italy, which has ratified the Schengen extradition provisions but has not ratified the subsequent 1995 and 1996 Conventions.

168.     Rather than introduce a different extradition regime to that for other EU Member States, this clause creates an enabling power which may be used to extend to Italy the relevant provisions of the 1995 and 1996 Conventions. (The power could also be used to apply these to other states as are specified by Order in Council.). It is expected that in the case of Italy, this will be a short-term measure, as it is anticipated that all existing EU Member States will have implemented the Framework Decision on the European Arrest Warrant by 1 January 2004, which will significantly alter current extradition proceedings within the EU.

Clause 88: False monetary instruments

169.     This clause implements Article 2 of the Framework Decision of 28th May 2001 on combating fraud and counterfeiting of non-cash means of payment. The purpose of the Framework Decision is to ensure that fraud and counterfeiting involving non-cash means of payment are recognised as criminal offences and are subject to effective sanctions in all EU Member States. Because these offences often occur increasingly on an international scale, it was considered appropriate for action to be taken at EU level.

170.     UK law already covers most of the provisions of the FD. However, Article 2 requires Member States to make it a criminal offence to misuse specified "payment instruments", where misuse includes possession of a stolen instrument or of a counterfeit instrument for fraudulent purposes. The Forgery and Counterfeiting Act 1981 criminalises the forgery and fraudulent use of any instrument. However, simple possession is only an offence in relation to a specific list of forged instruments, as set out under section 5(5) of the Act. The list is not quite as extensive as that covered by the FD. This clause therefore extends the list of instruments covered by section 5(5) of the 1981 Act to include bankers drafts, promissory notes and debit cards, all of which fall within the scope of the FD. The clause also creates a power for further monetary instruments to be added by order, should future developments require this. This power will be exercised by the Secretary of State.

Clause 89: False monetary instruments (Scotland)

171.     This clause makes provision for Scotland in relation to the FD on combating fraud and counterfeiting of non-cash means of payment. The position in Scotland is different from the rest of the UK because 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. This clause inserts a new section 46A into the Criminal Law (Consolidation) (Scotland) Act 1995. This new provision creates an offence of counterfeiting or falsifying a specified monetary instrument ("specified" means by order of the Scottish Ministers). It will also be an offence for a person to have in his custody or control equipment for making a specified monetary instrument. The new section 46A also makes provision relating to offences committed by companies and partnerships.

Schedule 4: Minor and consequential amendments

172.     This Schedule contains minor and consequential amendments.

Paragraph 22: Amendment of section 109 of RTA 1988 - Northern Ireland provisional licences.

173.     Sub-paragraph (a) provides that the holder of a Northern Ireland provisional driving licence will no longer be treated in Great Britain as the holder of a full Northern Ireland driving licence. A person's authorisation to drive in Great Britain as the holder of a Northern Ireland licence extends only to driving in accordance with that licence.

Amendments to the Road Traffic (New Drivers) Act 1995 (c. 13)

174.     The amendments to the Road Traffic (New Drivers) Act 1995 provide for the early termination in Great Britain of the probationary period for the holder of a Northern Ireland driving licence in similar circumstances to those applying to the holder of a Great Britain driving licence, except that, as regards revocation, it is not the licence which is revoked, but the permission to drive in Great Britain conferred by Section 109(1) of RTA 1988. As for revocations on medical grounds, the Secretary of State is obliged to inform the Northern Ireland Authorities of any such revocation involving a Northern Ireland licence. The amendments also provide that a Northern Ireland licence-holder whose entitlement has been revoked under a corresponding provision of Northern Ireland law shall be subject to the requirement to satisfy the Secretary of State on a re-test.

1.     FINANCIAL EFFECTS OF THE BILL

175.     There will be additional costs for Government Departments arising from some of provisions in the Bill. Details are set out below. The Bill's other provisions have negligible expenditure provisions for Government Departments.

Part 3: Convention on Driving Disqualifications

176.     The main effect will be on the Department for Transport's Driver and Vehicle Licensing Agency. The estimated one-off cost, mainly for ensuring IT systems are compatible with the new requirements, is estimated to be £50K. The on-going cost to DVLA of full implementation of the Convention is estimated to be £66,000 per annum. These costs will be met from existing resources.

177.     There will be an additional cost to the Courts arising from the appeals procedure provided for in clause 59 but this will be negligible in the context of the Courts existing workload.

PUBLIC SERVICE MANPOWER EFFECTS OF THE BILL

178.     Apart from Part One, the Bill has a negligible impact on public sector manpower.

Part 1: Mutual Assistance in Criminal Matters

179.     The mutual legal assistance measures will have a limited impact on the workload of staff in Government departments.

180.     The UK Central Authority for Mutual Legal Assistance is located within the Home Office and is staffed by sixteen people. It will have its workload reduced in some areas, because of the introduction of the option of direct transmission of most procedural documents, outgoing requests for evidence and most incoming requests for Scotland and Northern Ireland. It will be expected to handle more requests for banking information as provided for in clauses 32-46 and also to deal with mutual recognition orders under the FD. The law and practice in these areas is new, and may cause an increase in cases where detailed consideration has to be given. On balance the work is not likely to require more staff, but the grade and skills of staff may need to be examined. Requests under the Protocol to trace bank accounts may require additional staff resources at NCIS.

SUMMARY OF THE REGULATORY APPRAISAL

181.     The following two measures of the Bill were deemed to have the potential to create a financial burden on business, charities or the voluntary sector:

Protocol to the MLAC

182.     The Protocol to the MLAC will create additional costs for the banking sector. A partial regulatory impact assessment of the measure was subject to a 12-week public consultation period which concluded on 1st November 2002. Two responses were received.

183.     The assessment estimated the costs likely to be imposed on the banking sector, and drew substantially on the RIA for the Proceeds of Crime Act. Two aspects of the Protocol were identified as having regulatory impact: the use for the investigation of certain offences of "customer information orders" to establish whether a person holds bank accounts in the UK, and the use of "account monitoring orders" to monitor transactions and account activity in identified accounts.

184.     Three implementation options were identified: 1) to rely on current legislation; 2) to legislate in accordance with a "minimalist" interpretation, i.e. applying the optional safeguards and limitations provided for in the instrument itself; or 3) to take a "maximalist" interpretation, choosing not to apply those optional safeguards and limitations.

185.     The partial RIA recommended adoption of option 2, which enables the UK to ratify the Protocol whilst retaining safeguards such as judicial oversight of authorisation of requests. Both responses agreed with this recommendation. The total costs of regulation are estimated to range between £1,262,500 and £3,768,750, although with greater computerisation of banking records these figures would fall substantially. The current legislation is drafted in line with Option 2.

186.     The full RIA can be found at ://www.homeoffice.gov.uk/rias/rias.htm

Convention on Driving Disqualification

187.     A partial regulatory impact assessment was carried out on the Driving Disqualification measures, which focussed on removing anomalies between the driver licensing systems in Great Britain and Northern Ireland and introducing mutual recognition of driving disqualifications and endorsements, so that the UK can ratify the Convention. Fifty-four organisations were consulted in Great Britain, representing motorists, business, voluntary, charitable, police and legal interests between 5th February to 4th May 2001. Twenty-one responses were received in total, almost all of which were supportive of the measures. Widespread consultation was also carried out in Northern Ireland, and a similar response was received.

188.     The proposals are intended to address the exploitation of existing loopholes and anomalies in driver licensing and penalisation between Great Britain and Northern Ireland. The assessment estimated that the impact would be largely upon individuals, although this in turn could impact upon businesses and charities if employees who are employed as drivers were subject to disqualification. However the impact was estimated to be minimal.

189.     The following options were considered in order to implement the Convention and to remedy driver licence anomalies between Great Britain and Northern Ireland: 1) To introduce mutual recognition of driving disqualification between Great Britain and Northern Ireland; 2) In addition to Option 1, to introduce mutual recognition of penalty points between Great Britain and Northern Ireland; 3) In addition to both these options to extend mutual recognition to disqualifications imposed otherwise than in respect of road traffic offences, such as Child Support Agency Disqualifications.

190.     As a result of consultation, option one was recommended. It was decided to defer detailed consideration of penalty-point recognition and disqualifications imposed for offences other than road traffic offences. The current legislation is drafted in line with this recommendation.

191.     The full RIA can be found at www.roads.dft.gov.uk/consult/disqual/index.htm

MEMORANDUM ON THE IMPLEMENTATION OF EUROPEAN DIRECTIVES (TRANSPOSITION NOTES)

192.     This bill includes provisions giving effect to the following European legislation:

    —     Convention Implementing the Schengen Agreement 1990

    —     Convention on Mutual Assistance in Criminal Matters 2000

    —     Protocol to the Convention on Mutual Assistance in Criminal Matters 2001

    —     Framework Decision on the execution of orders freezing assets and of evidence (provisional agreement reached, March 2002)

    —     Framework Decision on combating terrorism 2002

    —     Convention on Driving Disqualifications 1998

    —     Framework Decision on combating fraud and counterfeiting of non-cash means of payment 2001

193.     Transposition Notes setting out how the Government will transpose into UK law the main elements of these Conventions and Framework Decisions is available from the House library.

EUROPEAN CONVENTION ON HUMAN RIGHTS

194.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provision of the Bill with the Convention (as defined by section 1 of that Act). The statement has to be made before second reading. The Lord Filkin, Parliamentary Under Secretary for Race Equality, Community Policy and European and International policy, made the following statement?

In my view the provisions of the Crime (International Co-operation) Bill [HL] are compatible with the Convention rights.

COMMENCEMENT

195.     The Bill will be brought into force by commencement order. We expect to have different commencement dates for different parts of the Bill.

195.

 
 
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Prepared: 20 November 2002