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Lord Filkin moved Amendment No. 72:

The noble Lord said: My Lords, I hope, as I am sure will be the case, that the House recognises that this is an example of where we have listened to comments made by Opposition Members in Committee. We are pleased to bring forward these technical amendments, clarifying and simplifying the number of references to

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the Bill's application in Scotland. The last amendment in the grouping, Amendment No. 92, also defines an officer in the United Kingdom.

Amendments Nos. 72 and 91 reflect the need for consistency in the Bill when directly referring to a particular Act—in this case, the Regulation of Investigatory Powers (Scotland) Act 2000. Amendment No. 92 simply defines "UK officer" as now referred to in the revised Section 76A(1)(c) in the redrafted Bill prepared for Report. It makes it clear that the police, Customs, NCIS or NCS will be taking over this sort of surveillance. In addition, it takes account of the Committee's view that the formulation previously proposed was insufficiently transparent, if I may use that phrase. The amendment refers to the Scottish Crime Squad. Section 9 of RIPA (Scotland) enables the Scottish Crime Squad and any successor to conduct authorised surveillance.

The new drafting will cover the operational and intelligence groups—the OIG—of the Scottish Drug Enforcement Agency, which have taken over the functions of the Scottish Crime Squad. The wording also ensures that Section 76A would cover any other joint operation that might be established under any future collaborative agreements between Scottish police forces and would perform the same function as the OIG.

The OIG is a joint operation established by agreement between the chief constables of the Scottish police forces under Section 12 of the Police (Scotland) Act 1967. It took over the work of the Scottish Crime Squad and undertakes similar activities to those of the National Crime Squad.

Section 9 of RIPA (Scotland) enables the Scottish Crime Squad and any other joint operation established under Section 12 of the 1967 Act which fulfils similar purposes to conduct authorised surveillance. Accordingly, as the OIG performs similar purposes to the SCS, it, too, is authorised under RIPA (Scotland) to carry out surveillance. If the OIG's surveillance function were to be replaced by another joint operation established under the 1967 Act, this, too, would be able to conduct authorised surveillance under RIPA (Scotland) because of Section 9.

Paragraph (c) of the last amendment is reworded to remove the previous confusion and to ensure that Section 76A will apply where the OIG or any successor cannot physically take over surveillance when the foreign officers arrive.

Similar provision need not be made for NCIS or NCS because they are statutory creations. If they were to be reformulated or replaced, primary legislation would be needed, which could include a consequential amendment to change the references to them here. I beg to move.

Baroness Carnegy of Lour: My Lords, I am sure the House will be grateful to the Minister for bringing arrangements in Scotland in line with those for the rest of the United Kingdom. This is another example of the interesting process that has to take place when European framework decisions have to be implemented in our

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country where the police and related agencies are devolved matters, as well as the need to apply European decisions to jurisdiction.

It is a great relief to see that the corresponding Scottish legislation, which was in the Explanatory Notes and still in the Bill in Committee, is no longer a sign of "Watch this space" but has turned into the relevant Act. I am sure we are all very grateful to the Minister.

Lord Dholakia: My Lords, I have a small question for the Minister. Amendment No. 92 clarifies that a United Kingdom officer means a member of a police force, a member of NCIS, a member of the National Crime Squad and Customs officers. Immigration officers have certain policing powers in the course of the functions they carry out. Does this apply to foreign officers and, if so, should they be included in the amendment?

Lord Filkin: My Lords, our judgment is that there is no need for immigration officers to be included under the amendment; they are not relevant to the thrust of it. I shall be happy to explain that in more detail in a letter.

On Question, amendment agreed to.

Baroness Anelay of St Johns moved Amendment No. 73:

    Page 55, line 28, at end insert—

"( ) In subsection (1)(c) it is "not reasonably practicable" for a United Kingdom officer to carry out the surveillance in the United Kingdom only if the duration of the foreign police or customs officer's travel to the United Kingdom is shorter than could reasonably allow for arrangements to be made for a United Kingdom officer to carry out surveillance."

The noble Baroness said: My Lords, with the Government's previous group of amendments, we have reached the controversial part of the Bill to do with hot surveillance. The Government have made some very helpful concessions to points we made in Grand Committee. I should like to make it clear to the House, as I have already done to the Minister's office, that the Minister's reply to the amendments that I have tabled to Clause 82 today will need my careful consideration between Report and Third Reading. I am using all my amendments on Clause 82—I stress that it is just on Clause 82—to elicit as full and clear a picture as possible of the legal position on hot surveillance. I am trying to achieve clear signposts, for the public and the lawyers who advise them, with regard to potentially significant changes to the law.

This is one of the complex outstanding issues. We may be dancing on the head of a pin, but we need to get the issue out of the way before Third Reading.

Amendment No. 73 is a modified version of an amendment that I tabled in Grand Committee. It would place on the face of the Bill a version of the Home Office's explanation of the effect of acceding to the Schengen agreement, given three years ago. In the

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original version of the Bill, the test proposed by the Government for allowing hot surveillance to be carried out by foreign officers was:

    "it is not reasonably practicable in those circumstances to request a person in the United Kingdom to apply for an authorisation under Part 2, or the corresponding Scottish legislation, for the carrying out of the surveillance".

As amended by the Government in Grand Committee, that test now reads:

    "it is not reasonably practicable in those circumstances for a United Kingdom officer to carry out the surveillance in the United Kingdom in accordance with an authorisation under Part 2 or the corresponding Scottish legislation".

That is not just a shifting around of words. There is a significant difference between what the Government said when they acceded to Schengen about the circumstances in which hot surveillance would occur and what the noble Lord, Lord Filkin, said in Grand Committee.

The noble Lord rightly said that the Government did not want to run the risk of being unable to take over surveillance operations because of unforeseen and insurmountable difficulties. However, his list of such possible difficulties appeared to amount to the possibility of a dead mobile telephone battery. I teased him about that at the time, although it was a serious teasing. I have tabled the amendment to give the Government the opportunity to explain more fully the reasons behind their decision to amend the criteria in the Bill and to depart from the assurances given at the time of the UK's decision to accede to Schengen. I should like a fuller explanation of the scenarios in which they envisage that it will not be reasonably practicable for UK officers to carry out surveillance. In particular, I would be grateful for some further details on what the Government consider to be sufficient time for the authorisation to be sought and a UK team to take over the surveillance. I beg to move.

5.30 p.m.

Lord Filkin: My Lords, in considering the effect of the amendment, I note that account has been taken of the operational requirements on which the Government's change in approach is based. However, the Government are still not fully clear about what the amendment would achieve beyond the current wording of the Bill, although the noble Baroness, Lady Anelay, has signalled—I think without prejudice to further consideration—that in essence it is a probing amendment to place clearly in Hansard exactly where we stand on these issues.

As we discussed in Committee, the wording of the amendment draws on that used in the UK's original Schengen application in 1999. However, as I said during the previous debate on this amendment, consultation with operational agencies identified that, although UK officers will in most cases take over the surveillance operations—that is clearly our wish—situations may arise that would make implementation difficult if we continued to maintain our original approach.

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Defining "reasonably practicable" purely by reference to the overseas officers' journey time would simply create more problems and uncertainty. Enforcing a condition such as the one proposed in the amendment would be very difficult.

The provisions cover three different circumstances. The first is when the foreign officers are unable to seek prior authorisation. Because of the UK's geography, such circumstances are likely to arise only very rarely, but it is possible to envisage occasions on which radio or telephone equipment fails—despite my being teased about that in Committee. Perhaps more seriously, one could envisage a situation in which the National Criminal Intelligence Service had been evacuated as a consequence of an emergency. Such situations may appear unlikely and we hope they would be very rare, but they are not beyond the bounds of possibility and we would be foolish to leave ourselves without a legislative opportunity in those circumstances.

The second situation is when a prior request for authorisation is made, but there is insufficient time to secure the authorisation in the United Kingdom. The third is when the request is made and authorised, but there is insufficient time to arrange for a UK team to be in place at the border to take over the surveillance.

Although the revised amendment appears to try to cover the last two situations, the first one would fall outside the wording proposed. The improbability of such situations is not sufficient grounds for ruling them out when making arrangements for surveillance operations dealing with serious crimes. The amendment would make the clauses unworkable in those rare cases.

Since Committee, the Government have reflected and tabled some amendments to put some of the conditions on cross-border surveillance on the face of the Bill, as we were urged to do. However, our position on this amendment has not changed. We still consider that the condition should not be explicitly stated on the face of the Bill, because of the operational and practical difficulties of defining "reasonably practicable" in this way. Section 76A(1)(c) already makes it clear that the section applies only if it is not reasonably practicable for UK officers to take over the surveillance when it arrives in the UK. That means that the section applies only in the urgent cases envisaged by Article 40.2. If the foreign officers could have rung up sufficiently far in advance to give a UK team enough time to take over the surveillance but chose not to do so, the section will not apply. Similarly, if they ring but the UK authorities do not try to put a team in place for particular reasons—for example, if they are stretched elsewhere—the section will not apply. In both cases, it would have been reasonably practicable in the circumstances for a team to take over the surveillance.

Further, the amendment appears to envisage that the time it would take a UK team to take over the surveillance will be fixed. It will not. It will vary depending on a number of factors, including the resources required for that surveillance. For example, a foreign officer might ring up from Calais and say that

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he is about to follow a suspect to Dover. Sometimes it will be possible to put a UK team in place to meet him, but sometimes it will not. The circumstances may be the same in both cases, but different operational pressures may obtain in the United Kingdom.

That is the effect of the clause as it stands and accordingly we consider that defining "reasonably practicable" by reference to journey times is unnecessary and unhelpful. I understand that the amendment was probing.

Clause 82 implements the requirements of Article 40.2 of the Schengen Convention for officers from one member state to be allowed to cross a border to conduct unauthorised surveillance in another Schengen state for up to five hours in exceptional circumstances. When the UK applied to Schengen, we chose to opt into this provision, because UK law enforcement sees it as a key operational development in the fight against organised and international crime.

Clause 82 ensures that the surveillance that the foreign officers will be carrying out is lawful. As I have said, we do not expect such urgent situations to arise often. Most cross-border surveillance operations under Schengen will be pre-arranged.

I hope I have given a sufficiently full explanation to the probing amendment and, at least in part, given the noble Baroness the information that she seeks.

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