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Baroness Anelay of St Johns: I am grateful to the Minister for his response. I can well understand the Government's approach. They are attempting to ensure that surveillance can continue in cases where serious crime is being investigated, and that surveillance will not be hampered unnecessarily. We are trying to ensure that the proper safety procedures are in place.

The Minister said that enforcing the proposal in the amendment would be difficult. We are not trying to prevent surveillance taking place when it is proper; but, as the Minister is aware, prior authorisation is our preferred option. We are trying to ensure that "where reasonably practicable", that is the right way to go forward.

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If this surveillance power is to be exercised, it must be in circumstances where foreign officers—and indeed British officers carrying out their duties overseas—are carrying out these procedures in the best possible way. Their practices must be water-tight. They must not see this merely as the easy option.

I was disappointed, therefore, that the Minister sought to justify this procedure by saying that it could be the case that someone had a dead telephone battery. I jolly well hope that if these people are carrying out such important international investigations they will charge up their batteries. That was the weakest part of the Minister's argument. I shall take other parts of his argument far more seriously between now and Report. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 141:


    Page 55, line 25, after "party" insert "and which is an offence under the law of any part of the United Kingdom,"

The noble Baroness said: This amendment stands also in the name of the noble Lord, Lord Dholakia.

The amendment would require the relevant crime being investigated by foreign officers under the powers given by the clause to be an offence under United Kingdom law where it is one specified by order by the Secretary of State, with the consent of Scottish Ministers, rather than one already specified in the Schengen convention.

All the crimes listed in Article 40.7 of the Schengen convention appear to satisfy this test. But that does not appear to be the case for new Section 76A(3)(b), which allows the Secretary of State to specify further crimes by order. I am trying to ascertain what kind of offences that are not crimes in the UK might be investigated by foreign officers on our soil as a result of these provisions. I beg to move.

Lord Filkin: The amendment—which I recognise is probing—would seek to restrict any subsequent extension of these arrangements to agreements other than the Schengen convention. It would mean that if we wanted to enable this type of surveillance to be carried out in respect of another international agreement besides the Schengen convention, we could do so only if the crimes specified within that further agreement were also crimes in the United Kingdom.

Subsection (3)(b) gives the Government flexibility should we wish to join a new international agreement that included provisions on cross-border surveillance. It is likely that any such agreement would take a similar approach to Schengen and refer to generic offences.

The Committee will be aware that, even where progress has been made in reaching agreement on the definition of an offence in European Union instruments, variations still occur when these are adapted at national level, and it is often good that they do so. Generic descriptions of offences enable member states to take account of variations of detail and they enable international agreements to be reached without the need for harmonisation of the offences covered.

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One can see where the alternative takes us: to have effective international co-operation, one would be on a slippery slope towards seeing the need for harmonisation of laws. That is not the United Kingdom's position. We are opposed to that, but build our co-operation on the principle of mutual recognition.

Our resistance to the amendment is not any sort of attempt to evade parliamentary scrutiny. Any EU agreement that might be covered by this clause would be deposited for scrutiny by the relevant committee of both Houses, which would provide the opportunity to raise any concerns about its scope.

Broader international agreements would also be subject to parliamentary oversight before they could be ratified. In response to the invitation to identify a specific example—which is possibly dangerous—rather than merely illustrating why we believe the generic terms are the right way forward, perhaps I may give an example. In a case where a United Kingdom police officer was seeking to keep under surveillance someone whom he or she believed had been involved in child molestation or child pornography, our laws would be tighter and stronger than those of some other countries and we would wish still to be able to have that pursuit continue without being limited by what would effectively be a dual criminality requirement—which is clearly what a foreign state would expect if we were insisting that it had to be UK law.

For those various reasons, while respecting the nature of the probing amendment, we do not believe that it is necessary or appropriate.

Lord Stoddart of Swindon: The Minister said that any additions to the Schengen list would have to go through parliamentary procedure. Parliamentary procedure in this instance presumably means scrutiny by this House in particular and by another place.

We know perfectly well that scrutiny in either House means nothing. In the final analysis, if the Government have already made an agreement, whatever Parliament's decision, it does not matter. Indeed, if the discussions of both Houses are against one of the Government's proposals, that in no way binds the Government from making a decision in Europe.

Furthermore, even if Parliament disagrees with a proposal and the Government agree with Parliament and then take the matter to Europe, and the proposal is defeated by qualified majority voting, what Parliament says will mean nothing. Am I right? Or does Parliament really have a say in additions to the Schengen list?

Lord Filkin: The noble Lord invites me to go rather wide of the amendment in discussing the nature of legislative scrutiny of European agreements. Nevertheless, I shall make one or two points.

The foundation of scrutiny of European agreements is essentially based on pre-legislative scrutiny. It is based on the deposit before the relevant committee of each House of the working documents while they are in negotiation and before agreement has been reached.

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That is the first stage of the process. Those who have taken part in it will know the vigour of that process, and what an influence it has on Ministers when they are considering the stance that they will take in Europe. I speak from direct personal experience of knowing beforehand what this House or another place may think of certain measures because they have seen them. I do not say that the system is perfect, but it works well. The second stage of scrutiny is when the measures are put into primary or secondary legislation by either House.

The formal position is that the Government may have made an agreement, but this House is sovereign. It makes its decision on such matters. The Government would be seriously embarrassed if they did not get their legislation through, but the House will make its decision as it wishes.

Qualified majority voting is not yet relevant for justice and home affairs issues. It may be in the future, but that is not the case at present.

Baroness Anelay of St Johns: I am grateful to the Minister for his response. Again, he is saying: "We want flexibility", and, "Let's trust parliamentary scrutiny", when we know, as the noble Lord, Lord Stoddart, said, that in terms of parliamentary scrutiny, however good our best efforts are, they may not be the best that we should achieve. We get frustrated in those matters.

The Minister refers to the fact that the Government are opposed to the harmonisation of laws. He certainly has our support on that issue. We have concerns when he talks about generic descriptions of offences being the solution. As he knows, when the Government bring the Extradition Bill before this House, there will be debates on the definition of offences such as xenophobia, which appear to be generic in terms but which would not necessarily be applicable in this country. The Minister's explanation has not persuaded me not to return to the matter on Report. There are issues that I shall need to raise at that stage. Within the confines of Grand Committee, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 142:


    Page 55, line 27, at end insert—


"( ) A foreign police or customs officer conducting relevant surveillance in the United Kingdom under this section shall ensure that such persons as may be designated by order made by the Secretary of State are immediately informed of the fact that the United Kingdom's border has been crossed."

The noble Baroness said: The amendment stands also in the name of the noble Lord, Lord Dholakia. It replicates the provision in Article 40.2(a) of the Schengen convention regarding informing host authorities once the border has been crossed. Article 40.2(a) states:


    "Where, for particularly urgent reasons, prior authorisation cannot be requested from the other Contracting Party, the officers carrying out the surveillance shall be authorised to continue

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    beyond the border the surveillance of a person presumed to have committed criminal offences listed in paragraph 7, provided that the following conditions are met:


    (a) the authority of the Contracting Party designated under paragraph 5, in whose territory the surveillance is to be continued, must be notified immediately, during the surveillance, that the border has been crossed".

Surely, not only is that the right thing to do, but it promotes operational effectiveness, so that UK police forces will at least know that the foreign police or Customs officers are on their territory carrying out surveillance.

Why is this provision in the Schengen convention, which is a condition of compliance, not on the face of the Bill? The Government state in paragraph 156 of the Explanatory Notes that they will make an order under the powers given in new Section 76A(4) incorporating these conditions into the requirements to be followed by foreign officers. Therefore, why not put them on the face of the Bill as they are mandatory provisions of Schengen?

Finally, my practical question is: how shall we know when the border has been crossed? What will be the level of proof? I beg to move.


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