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Lord Goodhart: I am happy to support the amendment in principle. I should like to know where, for the purposes of the clause, the border is. The customary rule is that the border where there are countries on opposite sides of an arm of the sea, such as the North Sea or the Channel, is halfway between the two. Is that the point at which technically a country becomes bound to notify the authorities here of what is happening? In practice, I assume that it would notify them earlier anyway, even if that is the point at which the border is crossed.

I have a slight doubt about the way in which the amendment is framed. It seems that the information might be provided not by the people actually conducting the hot surveillance, but by their minders who would know what was happening and would transmit the information. That is a matter of detail. In principle, I am happy to support the amendment.

Baroness Carnegy of Lour: Both my noble friend and the Minister will know that there are many places on the coast of Scotland where one cannot use a mobile telephone.

Lord Filkin: I had noticed. I always seem to go on holiday to places where one cannot use a mobile phone, but that may be my perversity.

As the noble Baroness, Lady Anelay, rightly says, the amendment reflects the condition set out in Article 40.2(a) of the Schengen convention, which states that foreign police and Customs officers conducting this type of surveillance must contact the relevant authority in the territory they are entering the moment they cross the border.

The requirement to make contact immediately is an important part of the cross-border arrangements, which is why we intend to specify that condition in the order. The order-making power will be subject to the affirmative procedure.

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The provision is not on the face of the Bill because it is possible that, once we have some practical experience of the handling of this type of surveillance operation, we shall wish to add further conditions. The order-making power would allow us swifter access to Parliament to introduce further conditions if it was felt necessary. I hope the Committee feel that that is desirable to ensure that we have the tightest possible circumstances of control consistent with not frustrating the objective that we jointly seek to achieve.

As to how we shall know the border has been crossed—perhaps it is related to the question of where the border is—without straying into international law, about which I know nothing, operationally that will be hard to define. Therefore, we shall take the stance that as soon as the officers reach UK entry controls they will have to notify. Notwithstanding the comment of the noble Baroness, Lady Anelay, that it may be difficult to communicate if one is keeping someone under surveillance, if one is on a ferry one's suspect will not escape while on that ferry; so it would be perfectly possible to notify the authorities in advance. Therefore, that does not have to be left to the last moment. It may be down to common sense.

The specific legal answer is that, we would say, if the officers went past the entry point they would have breached the agreement and the law. I trust that those remarks address the questions raised on the amendments.

Baroness Anelay of St Johns: I am grateful to the Minister. I shall certainly consider what he has said between now and Report. The response from the Minister about where the border is and when someone shall be judged as having crossed the border was that the border will effectively be when he touches soil rather than where the territorial waters start. If that is the case, one could argue that if officers are carrying out surveillance in this country, having come from France, they will get five hours plus, whereas if they are carrying it out across the border from France to Belgium they will get five hours maximum. That is an interesting point that I had not thought of before because I had always thought that the five hours would start from where the territorial waters began and not when the officers landed on British soil. I need to look at that matter.

The noble Lord, Lord Goodhart, is absolutely right about the drafting of the amendment. It is purely my fault. I drafted this before Christmas and never managed to change it. I left it merely as a device to stimulate debate in Committee.

I was interested when the Minister said that the Government may wish to add further conditions after this provision has operated for a while. I can well understand the need for flexibility on the matter. Of course one wants to be able to add extra conditions if matters are working badly. My worry is that in the mean time we are guinea pigs in a system that may not be the right one and may be open to abuse. We need to consider that further between now and Report.

Lord Stoddart of Swindon: I have probably missed something. The Minister said that he did not want the

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amendment because the Government might want to strengthen the conditions. Is the noble Baroness satisfied that, bearing in mind what the Minister said,they could also weaken the conditions?

Baroness Anelay of St Johns: The noble Lord, Lord Stoddart, raises a vital point. One needs to ask the Government that question or the Minister may be prepared to give the assurance that they would not weaken conditions today. Perhaps I may both assist and harm the Government's case by saying that I can envisage circumstances where the Government might put forward alterations which they maintain would toughen up the conditions but which might unintentionally end up weakening them.

I do not know whether the Minster wishes to reply at this stage, or whether he would like to leave the matter until Report. It looks as though he is going to leave it until then. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 143:


    Page 55, line 27, at end insert—


"( ) A foreign police or customs officer conducting relevant surveillance in the United Kingdom under this section shall be prohibited from—
(a) entering a private home or any other place not accessible to the public, and
(b) challenging or arresting a person under surveillance."

The noble Baroness said: Amendment No. 143 stands in my name and that of the noble Lord, Lord Dholakia. At this stage we feel that it is essential that there should be clarity on the face of the Bill. We return to more of the mandatory provisions of the Schengen convention that are not on the face of the Bill. In this case it is Article 40.3(e), which states:


    "The surveillance referred to in paragraphs 1 and 2 shall be carried out only under the following general conditions:

(e) Entry into private homes and places not accessible to the public shall be prohibited". In paragraph 156 of the Explanatory Notes the Government say—and the Minister in his general introduction to Clause 83 repeated and expanded on this matter—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.

The Minister earlier appeared to be saying that these prohibitions would be subject to statute. We are saying, "Here is the statute. This is the right place to put it and at the moment we cannot see a good reason why these prohibitions should not be inserted on the face of the Bill". I beg to move.

Lord Renton: I warmly support this very important amendment. Even our own police are not always free to enter a person's private house without having prior authority. The Government should regard this matter with great sympathy. There is one very minor drafting

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amendment that I would suggest. At the end of paragraph (a) instead of "and" the word should be "or".

Lord Goodhart: Once again we strongly support the amendment. We support this amendment more than any other in the group. It prevents the exercise of a power that would enable officers carrying out hot surveillance to enter people's houses or to arrest people. Clearly, in no circumstances should they do so. We think that the case is very strong for putting this matter on the face of the Bill. This amendment directly affects individual people. It does not merely regulate the communications between the officers carrying out the surveillance and the authorities in this country; it directly restricts the powers of those carrying out surveillance to do certain things that would impinge directly on the lives of ordinary people. It is spelled out in black and white in the convention and we think the case therefore is overwhelming for putting this issue on the face of the Bill.

Lord Monson: I agree with the noble Lord, Lord Goodhart. This is a vital amendment. The noble Lord, Lord Filkin, will correct me if I am wrong, but as I understand the situation, a police officer in Vermont who pursues a suspect over the border into New Hampshire has no powers of arrest in New Hampshire. Therefore, why should someone coming from France have a power of arrest in the United Kingdom?

6.45 p.m.

Lord Stoddart of Swindon: I support very much this vital amendment. In the light of the comment by the noble Lord, Lord Filkin, at the outset that officers may not enter private property or arrest, I feel sure that he will accept the amendment.

Lord Carlisle of Bucklow: Since the rest of the Committee supports the amendment, I shall add to the unanimity by saying that I do also.


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