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Lord Filkin: There is always one fly in the unanimity ointment. On this occasion, and not for the first time, it will be me.

In essence, there is not much distance between our positions. We are all clear that, in the limited circumstances of foreign officers coming here, they will be prohibited from entering a private home. We intend to prohibit any such action by using the powers in 76A(4) through the affirmative resolution procedure. That is a clear statement of policy commitment by the Government. The matter will come before the House to ensure that it is adequately complied with.

Nothing in the Schengen arrangements makes it possible to challenge or arrest a person under surveillance. Rather, the Schengen handbook makes clear that foreign officers in those circumstances do not have powers of arrest and should not seek either to arrest or to approach a suspect. Therefore, we have no intention to give foreign officers any powers of arrest.

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They have no powers of arrest at present; therefore it does not need to be spelt out that they cannot have one.

Baroness Anelay of St Johns: Naturally, I am very disappointed by the Minister's response. I thank him for his explanation of the Government's approach. I am grateful to my noble friend Lord Renton for his comment on drafting. I always take everything that he says on drafting to heart. I will come back with something better next time—because there will be a next time. I am grateful for the support of the noble Lords, Lord Goodhart, Lord Monson, Lord Stoddart and Lord Carlisle.

As the noble Lord, Lord Goodhart, said, there is an overwhelming case for putting these matters in the Bill. I started by saying that there were questions of quid pro quo. What price do we pay for this yielding of our own rights? It would be a price too far. The Minister says that there is no problem and that we have given a commitment to make the provision by order. It is not appropriate to do so by order. We know about it; the Government have given a clear commitment; it is straightforward; it is right to do it; and so it should be on the face of the Bill.

If we were not in Grand Committee, I would not withdraw my amendment. But I follow the Committee rules. Notwithstanding my protests that I feel I am doing the wrong thing simply because of procedure, I must beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Dean of Harptree): If Amendment No. 144 is carried, I cannot call Amendments Nos. 145 or 146.

Baroness Anelay of St Johns moved Amendment No. 144:


    Page 55, leave out lines 28 to 32.

The noble Baroness said: I shall speak also to Amendments Nos. 145 to 147. These amendments are also in the name of the noble Lord, Lord Dholakia.

Amendment No. 144 refers to the conditions that will be laid down by the Secretary of State for the operation of "hot surveillance", as the noble Lord, Lord Goodhart, so rightly called it. Are they the only conditions in the Schengen convention? If so, why not put them on the face of the Bill? The Explanatory Notes do not tell us whether additional conditions beyond those in the convention are being considered. Earlier, in response to other amendments, the Minister said that the Government want flexibility so that if tougher conditions need to be imposed, they may be. But, at this stage, we need to know whether any discussions are going ahead within the remit of these amendments. Are the Government aware that additional conditions might ultimately be imposed?

Amendments Nos. 145 and 147 cover the instance where surveillance is to be "lawful for all purposes" if it complies with the conditions to be laid down in secondary legislation. Can, and will, those conditions allow types of surveillance that would not normally be

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allowed under UK law? Other noble Lords have said in respect of other amendments that it would be improper to give powers to foreign officers and Customs officers that are not available to our own police enforcement agencies and Customs officers.

Amendment No. 146 reflects my concern about whether, under this Bill, the conduct of a foreign police officer can be always lawful. The Bill implies that they can never do anything unlawful. That is extraordinary; it cannot be the case. There must be occasions when foreign officers' actions would be unlawful. For example, what would be a police officer's position if he committed a criminal offence in the course of surveillance? Earlier, the Minister said an officer who carried a gun in this country would be arrested. I assume that some actions would be considered unlawful. I beg to move.

Lord Filkin: The amendments all appear to deal with what would constitute lawful surveillance under the provisions, which is clearly important. I hope to be able to clarify the position.

The purpose of inserting new Section 76A(5) into RIPA is to make lawful the act of cross-border surveillance, both in ECHR terms and under UK law. That type of surveillance would not contravene those fundamental rights. As the Committee will be aware, surveillance in the UK is strictly governed by the Regulation of Investigatory Powers Act 2000, which, therefore, we need to amend to make this type of surveillance lawful, until UK officers either take it over or instruct foreign officers to cease doing so. The clause applies only to types of surveillance that could otherwise be authorised under RIPA. That is affected by the definition of "relevant surveillance" in Section 76A(2). Legality prevails only in those circumstances.

The aim of Amendment No. 147 seems to be a desire for the lawfulness of the surveillance to be conditional on similar surveillance being lawful if undertaken in the UK. However, Schengen requires that, provided that the surveillance is lawful abroad, it should be automatically lawful in the UK, so long as it fulfils the conditions specified in Article 40.2, which I shall deal with. The amendment is inconsistent, therefore, with the concept of automatic authorisation subject to the conditions.

The provisions will not allow foreign officers to conduct themselves in a way that would be unlawful for UK officers. As I have explained, surveillance will be automatically authorised only in limited circumstances. First, it must be lawful in the country of origin, and foreign officers will be obliged to contact UK police as soon as the border has been crossed. Secondly, the type of urgent surveillance may be carried out only if the person under surveillance is suspected of having committed one or more of a limited number of serious extraditable offences, which I referred to earlier. They will be on the record. Thirdly, cross-border surveillance under the Bill will be subject to strict conditions reflecting the wording of the Schengen convention. The conditions include that foreign police and Customs officers conducting this type of surveillance must not enter private homes and

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may not challenge or arrest suspects. As I have noted in our discussions on earlier amendments, we are making that provision through an order-making power subject to the affirmative resolution procedure.

I shall respond to some specific questions. No extra conditions are contemplated. But, as with any such arrangement, it shall be kept under review to see whether it works in practice and is adequate. On the question of whether all an officer's actions must be lawful, paragraph 40.3(a) of the Schengen convention requires the officer to comply with the law of the contracting party in whose territory they are operating. There is no resiling from that in any respect. For those reasons, and although we sympathise with the thrust of the amendment, legality is tightly challenged on a supervising officer, and it is necessary to draft the legislation in this way.

Baroness Anelay of St Johns: I am grateful to the Minister for addressing my immediate questions. I will look carefully at the response. He will be aware from my comments at Second Reading that I get uneasy when we give permission for foreign officers and Customs officers to carry out surveillance here that would be lawful in their own countries but unlawful if carried out by our own officers. There may be some misunderstanding on my part, given the reactions expressed in the Chamber previously. I shall look carefully at the matter between Committee and Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 145 to 147 not moved.]

Baroness Anelay of St Johns moved Amendment No. 148:


    Page 55, line 32, at end insert—


"(4B) Nothing in this section shall render lawful the carrying of a firearm within the United Kingdom by a foreign police or customs officer."

The noble Baroness said: With the leave of the Committee, I shall speak also to Amendment No. 149. The amendments are tabled in the name of the noble Lord, Lord Dholakia also.

These amendments relate to the carrying of guns, to which we referred in the opening statement on Clause 83. They relate to the carrying of guns by foreign officers who are undertaking "hot surveillance" operations. As the Committee will have perceived on reading the two amendments, they are alternatives. Amendment No. 148 would prohibit the carrying of a gun by a foreign officer on UK soil. Amendment No. 149 would allow the Secretary of State acting personally, or a chief officer of police acting personally, to give authorisation for the carrying of firearms on "hot surveillance" operations. That could be given only in circumstances in which such authorisation would be given to a UK police officer.

New subsection (4E) replicates with a slight amendment—inserting "reasonably" instead of "legitimate"—Article 40(3)(e) of the Schengen Convention, which is yet another provision that is not on the face of the Bill. Given that that article of Schengen states that officers can carry their guns

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except when specifically denied permission, does that mean that Parliament cannot pass Amendment No. 149, which would put in place the reverse situation? It would provide that officers cannot carry guns except when specifically granted permission. Will the noble Lord confirm the situation?

The noble Lord, Lord Stoddart of Swindon, earlier raised pertinent questions about the carrying of guns in this country. What happens if someone engaged in hot pursuit, properly, is part of an undercover team? I can see circumstances in which I would wish to argue against the surrender of handguns on entering the country. We need to discuss and resolve the issue between now and Report. I do not want a police officer carrying out a proper undercover surveillance operation to be put in a life-threatening situation whereby legislation requires them to publicly lodge their police-registered firearm before coming here to carry out surveillance in England. There must be a way of preventing them from carrying firearms into this country in the first instance, and then using them, without jeopardising their undercover operations and their lives. The Bill as drafted at present does not properly protect the public in this country. We must also protect police and Customs officers who may be carrying out a very dangerous assignment. I beg to move.


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