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Lord Carlisle of Bucklow: I hope the Minister will bear in mind the powerful speech of the noble Lord, Lord Stoddart. Looking back over the years, our reaction has often been to put far tighter controls on those who are legally in possession of guns, when the real problem has always been the amount of illegally held guns that have been flooding through the country. I hope the Government will bear that in mind in any legislation that they bring forward.

On a Question in the House the other day, some Members were confessing to having changed their mind on these matters. The one point on which I disagreed with the noble Lord, Lord Stoddart, was his comment about replica guns. This came up in, I think, 1970, when I was a junior Minister in the Home Office. We had a delegation from the gun lobby telling us to take more seriously the issue of replica guns coming into this country. I suspect that we did not give their arguments the careful consideration that they deserved. We may have thought that they were trying to turn the argument to another aspect of gun control. What we now know about replica guns and the ease with which they are converted to real lethal weapons means that we ought to have control over them.

Finally, I was disappointed beyond words to hear the Minister repeat that the Government were intending to go ahead with mandatory minimum sentences. I do not believe they will do any good. They will simply lead to unfairness, as mandatory

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sentencing will always do in the long run. They remove flexibility. On hearing the answers of the noble and learned Lord the Attorney-General and of the noble and learned Lord, Lord Falconer, in a recent debate, I had hoped that the Government were beginning to accept that flexibility was a necessary element in a court's sentencing powers if injustice is to be avoided. When there is already a maximum sentence of life for carrying a gun with intent to commit some other offence, a mandatory sentence of three years will make no difference. A mandatory sentence of three years on conviction for being in possession of a gun in circumstances that are currently tried merely in the magistrates' court seems to be equally out of line.

5.30 p.m.

Lord Renton: We are discussing a new clause dealing with firearms. It has been well supported by a number of Members of the Committee. But it is surely in the national interest that we should consider weapons of mass destruction of various kinds. It would be a tragedy if the British people were protected by a clause dealing only with firearms. Between now and Report the Government should apply their minds to the broader issue. I hope that I am not out of order in referring to that point.

Baroness Anelay of St Johns: I am grateful to the Minister for his response. I thank the noble Lords, Lord Goodhart and Lord Stoddart, and the noble and learned Lord, Lord Lloyd of Berwick, for their support. I am grateful also for the interventions by my noble friends Lord Renton and Lord Carlisle. My noble friend Lord Carlisle raised the important issue of mandatory sentences. We shall have some difficult and interesting discussions on that subject when we debate the Criminal Justice Bill. He was right to focus on it.

As the noble Lord, Lord Stoddart, said in his remarkable and welcome speech, governments of both persuasions have perhaps not always taken the course that they might have done had they thought about these matters for slightly longer. We are left with a situation where huge numbers of illegal firearms are imported, and the Government face a very difficult task in trying to ensure that their importation is stopped. The noble Lord, Lord Stoddart, also raised the important question of the resources that will be involved in ensuring that our borders can be properly secured against the importation of arms.

My noble friend Lord Renton raised the issue of other weapons. I wonder whether the Export Control Act, which completed its passage at about this time last year, might cover that. I should be grateful if the Minister would write to my noble friend on that point between now and Report. There may be provisions which address the point, but they may not address all his concerns.

I should be grateful if, between now and Report, the Minister might answer one detailed question. I was intrigued by his helpful description of international co-operation on matters of best practice. He referred to what we hope will be best practice in this country;

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namely, the creation of an intelligence database tracking guns used in crime. Will the tracking of those guns relate only to crimes committed in this country, or will our agencies have access to information on guns used in crimes overseas? Will that be part of the exchange of information? I do not expect an answer today, but it would be helpful in the context of this Bill, and, more particularly, in our debates on the Criminal Justice Bill.

I agree with my noble friend Lord Carlisle that the issue of mandatory sentences will be a tough one. The Government will have to come up with some persuasive answers and a cogent argument about how these will be put into practice if the Bill is not to have a bumpy ride through this House.

I am grateful for the care and attention that all Members of the Committee have given to this proposed new clause. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 81 and 82 agreed to.

Clause 83 [Foreign surveillance operations]:

Lord Filkin moved Amendment No. 139B:


    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"

The noble Lord said: Before speaking specifically to the government amendment itself, as this is our first opportunity to discuss Clause 83, and as it may aid some of our subsequent discussions, I wondered whether it might help if I set out some of the essential features of Clause 83 and explain why we think that the provision is right, necessary and proportionate. The provision is meant essentially to enhance co-operation so that British police forces are better able to obtain evidence and apprehend those who committed crime, and whom they have under surveillance, in order to bring them to justice.

From our perspective, at heart, the measures will deal with circumstances which have occurred in the past whereby people under surveillance by the British police forces have crossed the Channel and contact with them was lost, frustrating the police's ability to collect the evidence that they thought might assist in bringing prosecutions and convictions. The same is true in reverse. There have been occasions when our neighbours on the Continent had people under surveillance whom they believed had committed an offence. They thought it necessary to continue that covert surveillance in order to collect further evidence for a prosecution. When the people crossed into this country, our neighbours were unable to pursue.

To take it more sharply, most of the cross-border operations will be brought in as a result of the Bill and implementation of Article 40.2 of the Schengen convention. Let me illustrate how the operations will work in practice. Most of the cross-border operations that come from the EU into this country will be pre-planned and authorised in advance. We expect that the vast majority will be of that nature. I am slightly labouring the point because, in pre-planned operations, the surveillance operation will be taken

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over by British forces—in practice, the National Crime Squad—upon the suspect's entry to the UK. We expect that that is what will happen in the vast majority of cases.

There are, however, urgent cases—the focus of this clause and this issue—where it is not always possible to get either the authorisation or the authorisation and a UK surveillance team in place at the port in time to take over the surveillance operation. It is about putting in place highly limited and circumscribed regulations which, in such tightly circumscribed circumstances, allow the surveillance to continue in the United Kingdom for a limited time, until such time as British police forces can take over the surveillance. So it applies only when it is not possible to get a British force to take over the surveillance immediately, and then only in very tightly circumscribed circumstances. I shall try to illustrate those circumstances.

Foreign officers cannot operate here until they have requested assistance—as soon as it seems probable that the suspects they are following will be crossing into the United Kingdom. So there is a duty to notify NCIS as soon as it seems probable that their suspect will be coming to the United Kingdom. They must also notify NCIS as soon as they have arrived in the United Kingdom. I stress again that that applies only when it has not been possible to arrange through advance notification a joint investigatory team or a UK force at the point of entry. NCIS will be the point of contact for all requests and will authorise or refuse the operation. They have the right of refusal. The National Crime Squad or a local force will be notified by NCIS, and will identify officers to link up with the incoming foreign officers as soon as possible.

The period for which foreign officers may operate alone is strictly limited under the Schengen convention, and under the Bill's provisions, to five hours. There is a maximum of five hours to allow time for the British police forces to take over the surveillance. If they have not done so within that period, surveillance must stop. The UK may require foreign officers to stop at any time within the five hours. So, having given authorisation, they can rescind it if they think it appropriate to do so at any time within that period.

I shall labour the next point because it is germane. Foreign officers may not carry their firearms. They will be prohibited from bringing their guns into the United Kingdom. They may not enter private property. They may not challenge or arrest a suspect. They must submit a report of every operation in which they have entered the United Kingdom at short notice. In all those circumstances, even though it will not always be possible to put in a UK force before they come in, they must notify NCIS before their feet touch UK soil. So we will know that they are coming; we will know who is coming; and we will authorise their entry. We will simply be allowing them to continue for a short period in the very limited number of circumstances where it has not been possible to get our own surveillance forces into place in time. I hope that the Committee will bear with me in setting out those issues, as we are bound to revert to them on subsequent

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amendments. It is the novelty of leading on these amendments rather than responding to them that has led me to behave in that way.

The purpose of the amendment is straightforward. It allows officers from other countries to carry out under tight conditions lawful surveillance of a person suspected of a serious crime. I emphasise that we are talking about only serious criminal offences, not minor offences or misdemeanours. We are making the changes as part of our wider commitment to fight international crime with our EU partners. It will allow better co-operation at every instance. The measure is supported by the Association of Chief Police Officers and the National Criminal Intelligence Service. Other EU countries have been running Schengen arrangements on cross-border surveillance for years. They have managed to make them work well despite some shared difficult histories.

I shall now discuss the substance of the amendments. In the Explanatory Notes, we outlined why foreign officers should be allowed to continue surveillance into the UK, in particular to take account of the time needed to mobilise a UK surveillance team. In reviewing the text of the Bill in response to the proposed amendments from Committee Members, we realised that the text of the Bill as it stands would not allow for situations where the UK authorities are notified before the team enters the UK. These amendments ensure that the five-hour period applies not only where it is not reasonably practicable for foreign officers to make an advance request; it applies also where an advance request is made from abroad but it is not reasonably practicable for our authorities to secure the necessary authorisation before the foreign officers reach the UK. The amendments will also cover cases where a request is made from abroad, and the surveillance by UK officers is authorised in advance, but it is not reasonably practicable for those UK officers physically to take over the surveillance when the foreign officers enter the UK.

Amendment No. 154A simply defines "United Kingdom officer" for the purposes of Amendment No. 139B. The police, Customs, the NCIS or the NCS will take over this sort of surveillance. It also includes the Scottish Drug Enforcement Agency, formerly the Scottish Crime Squad, and anyone who might take over their functions. The wording of the amendment is needed to ensure that Section 76A would cover any other body that might be established under any future collaborative agreements between the Scottish police forces. It will perform the same functions as the SDEA.

We consider that all those cases should count as urgent cases covered by Article 40.2 of Schengen. We do not want to run the risk of being unable to take over surveillance operations because of unforeseen and insurmountable difficulties in getting UK officers to the port within the hour or two it might take for an officer to cross from Calais. The consequences of that might be that important criminal suspects would be allowed to enter the UK without supervision. I cannot believe that the Committee would wish that to happen.

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I may respond further to questions from the Committee. I hope that I have set out the broad picture of why we think these measures are essential. I have had to weary the Committee with these amendments simply to ensure that the measures were effective in all respects. I beg to move.

5.45 p.m.

Baroness Anelay of St Johns: The Minister opened his speech about the principles underlying Clause 83 in general terms. As he is aware from comments made from these Benches at Second Reading, we have concerns about the operation of the powers of surveillance. He puts the argument in the context that there is a quid pro quo and that if our police forces are engaged in surveillance that they consider necessary to continue across the Channel, they will wish to have the ability to carry that forward.

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.

I have a couple of questions. The first relates to the generality of the Minister's introduction. I may have misunderstood something that he said. He rightly explained that the vast majority of operations would be pre-planned and would be taken over by our police in this country. He said that the Bill would cover the rest. They would be small in number, but they might be significant in themselves. The Minister then said, I think, that advance notice would always be given before the officers carrying out the surveillance set foot in this country. That is not what I understood to be the case from the Bill or from the Explanatory Notes.

I understood that they would be able to travel to the country even if they had been unable to give prior notice and give notice once they were in the country. I may have misunderstood the explanation given at Second Reading and the way in which the Explanatory Notes set it out. If so, I would be grateful to be put right by the Minister. Before setting foot in this country to carry out surveillance, must a foreign officer who is not accompanied by an officer from a police force in England, Scotland or Wales have given notification? He will have five hours during which he will not have such permission and will be waiting for it, but must he have made the application before one foot steps on British soil?

The Minister referred to other matters that, we thought, were not sufficiently clear in the Bill. We will come to the relevant amendments later. The Minister said categorically that foreign officers would be prohibited from carrying guns, entering private property or making a challenge. Our amendments would create clarity in the Bill similar to the clarity of the Minister's pledge.

When I read the amendment, I wondered whether there might not still be a problem with it. If it is manifestly impossible for a United Kingdom officer to

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carry out surveillance but it is still possible for telephone calls to be made for authorisation under Part 2 of RIPA, would not the amendment remove the threshold for that? I do not necessarily expect an answer today, but I would be grateful if the Minister could write to me or if we could address it on Report. When such amendments are presented to the Committee new and fresh, it is difficult for us to seize on the details of the Government's explanation and ask the right questions.


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