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Baroness Anelay of St Johns: Perhaps I should give the Government the opportunity to think about this situation before we reach the firearms amendment. This is a matter that I raised with the Minister when he was kind enough to have a meeting with officials and noble Lords. Does the Minister not foresee circumstances where foreign officers are very properly involved in surveillance in which they are, themselves, under cover? Therefore, it would not be safe for them to carry out the procedure as laid down. In other words, in front of a gang of which they were a part, a foreign officer could not exactly say, "Excuse me while I stop and deposit my gun before I join you on the illegal boat that we are using to cross the Channel". Will those circumstances be taken into account in the firearms amendment?

Lord Filkin: I shall take advantage of the notice rather than respond immediately. We believe that there are practical solutions and that it would be perfectly possible to do so.

Should there be breaches, they will be dealt with in the same way as any other breach of firearms law by UK citizens. If a foreign policeman came into the country in the circumstances described, carrying his firearm covertly, he would be in breach of UK law and, as a consequence, would be open to UK prosecution. In such a situation, he could and would be arrested.

In many circumstances, the suspect may be in a car and the police officer also in a car. The relevance is that it is sometimes operationally difficult to put in place sufficient covert UK police cars to take up the surveillance—it is not a chase—immediately. It cannot be done with just one covert police car. I said that it was not hot pursuit merely for clarification. Hot pursuit is a term to be used when police officers are pursuing a suspect with a view to arrest. That is not what we are referring to; we are referring to the continuation of surveillance operations.

How will the five-hour period be enforced and supervised? Again, as soon as foreign police officers put a foot on British soil, they would be expected to notify NCIS. In most cases, we would expect to be notified from the other side of the Channel. Therefore, we would know the start period of when they are due to arrive and would add five hours to that. If they continued their operation, it would be without legality. They would have no legal authority to operate after the expiry of those five hours, or any shorter period that NCIS has imposed. A question was asked concerning the extension of the five-hour period. There is no intention to extend the five hours. In theoretical circumstances, it would need primary legislation if we changed our mind.

The noble Baroness, Lady Carnegy of Lour, asked what are the serious crimes. They are set out in Article 40.7 of the Schengen convention. Perhaps I may put them on the record now, even though we may touch on them later. Serious crimes are limited to a number of

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generic offences, all of a serious nature. They are murder, manslaughter, rape, arson, counterfeiting, armed robbery and receiving stolen goods, extortion, kidnapping and hostage-taking, trafficking of human beings, elicit trafficking of narcotic drugs and psychotropic substances, breach of the laws on arms and explosives, use of explosives, and illicit transportation of toxic and dangerous waste.

I am sure that noble Lords will say that there are one or two points that I have not answered.

Baroness Carnegy of Lour: Just before leaving that point; I did not actually ask what the crimes were. I asked how we know that it is only serious crime. How do we know that the police cannot carry arms or go on to private property? Is that all in the framework agreement?

Lord Filkin: It will all be in the Schengen handbook, in which we shall have the right to set out the operational effect of UK legislation on applying the framework agreement. Effectively, in the Schengen handbook—I wait to be corrected if I am wrong—there will be a British section which states, "You cannot do X, Y and Z".

The further question asked by the noble Baroness was how will we know that they are following the regulations. In strict—

Baroness Carnegy of Lour: My question was really relevant to my noble friend's forthcoming amendments. If the Minister says that the amendments are not necessary, he will say that all those facts are known. The Minister said that he could assure us that this would occur only as a result of serious crime. He assured us that foreign officers would not go into private property and that they would not carry guns. What is the basis of the Minister's assurance? I believe that I am being told that all that information is in the handbook. Is that correct?

Lord Filkin: You are being told that all that information will be in the handbook. It will be in the handbook as a consequence of us legislating through primary and secondary legislation to make that the application of the convention, which will then give us the right to put those conditions into the Schengen handbook. The handbook will then be a legal obligation on foreign forces, in the limited circumstances that we are describing, to obey when they enter this country. Effectively, the Schengen handbook will be an operational expression of the law that they must obey, if they are not to be in breach of the law.

I turn now to further points. Clause 76A(3) covers that point. It states that "relevant crime" means crime which falls within Article 40.7 of the Schengen convention. I can send the noble Baroness a copy, if that answers her point. However, I am not sure whether it does.

On Question, amendment agreed to.

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Lord Filkin moved Amendment No. 139C:


    Page 55, line 15, leave out "for the carrying out of the surveillance"

On Question, amendment agreed to.

Baroness Anelay of St Johns moved Amendment No. 140:


    Page 55, line 16, at end insert—


"( ) In subsection (1)(c) it is "not reasonably practicable" to make such request as is mentioned therein only if the duration of the foreign police or customs officer's travel to the United Kingdom is shorter than could reasonably allow for prior authorisation to be sought."

The noble Baroness said: This amendment stands also in the name of the noble Lord, Lord Dholakia. The discussion on the previous group of government amendments has been very helpful in telescoping some of the debate that we shall have on the individual amendments as they arise.

Amendment No. 140 would place on the face of the Bill the wording of the Home Office's description of the United Kingdom's intent in acceding to Article 40 in its own commentary on the Schengen convention in the letter from the right honourable Jack Straw to the presidency of the Council, requesting United Kingdom accession to Schengen, as given to the Lords European Select Committee and printed at annex 2 to its fifth report of 1999–2000.

The letter states in respect of Article 40:


    "In view of the United Kingdom's island geography, it is expected that surveillance which takes place without prior authorisation would be limited to those situations where the duration of travel to the UK is shorter than could reasonably allow for prior authorisation to be sought".

This is one of many amendments where I simply ask: why is that clarity, that restriction, not on the face of the Bill? I beg to move.

Lord Goodhart: We support this amendment because we think it desirable that restrictions of this kind, which have been acknowledged by the Government, should be on the face of the Bill.

6.15 p.m.

Lord Filkin: Clause 83 implements the requirement of Article 40.2 of the Schengen convention for officers from one member state to be allowed to cross a border to conduct unaccompanied surveillance in another Schengen member state for up to five hours in exceptional circumstances when the subject has unexpectedly entered the other member state. When the UK applied to participate in Schengen, we chose to opt into this provision because UK law enforcement sees it as a key operational development.

Clause 83 simply ensures that the surveillance that the foreign officers will be carrying out is lawful. We do not expect these situations to arise very often. I touched on these points in previous explanations. We believe that our participation in the Schengen convention arrangements on cross-border surveillance will help to block the loophole where, currently, people coming into the United Kingdom can disappear and traces can be lost, and the reverse happening when we

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have been seeking to keep suspected criminals under surveillance with a view to collecting information for a prosecution.

The amendment, which I recognise as probing would limit these conditions by amending the definition of "reasonably practicable". It would narrow the circumstances in which this type of surveillance was allowed, so it would be "reasonably practicable" for a foreign officer not to request surveillance in advance only if his travel time to the UK would be less than the time that it would take to seek prior authorisation.

Enforcing such a condition would be very difficult. It may be helpful if I explain what we mean by "reasonably practicable". It includes other circumstances besides timing which might prevent prior authorisation being sought. Although it may seem slightly bizarre, it is, for instance, conceivable that an officer might be unable to make contact because of a dead battery in a mobile phone or a radio. Also—and more usually—circumstances might be such that there was not sufficient time both to secure the authorisation in the UK and to arrange for the UK team to take over the surveillance.

The amendment fails to take account of the complexity of mounting surveillance operations at short notice. It would impede the UK's ability to undertake its own cross-border surveillance operations, and to assist Schengen partners with theirs.

Consultation with the operational agencies and the practical implementation of Article 40.2 identified that in view of the UK's wish to take over the handling of all foreign surveillance operations entering the UK, situations would arise which would make implementation difficult if we continued to maintain our original approach.

For example, identification of the appropriate operational agency force to take over the operation and for it to seek authorisation under RIPA may take longer than the time it takes to travel to the United Kingdom, even if we receive the request at the point at which the foreign team are embarking for the United Kingdom.

I hope that I have answered all the questions raised on this amendment.


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