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Lord Filkin: My Lords, I shall also look closely at what I said. I do not recollect—I certainly did not intend—giving the impression that there would be any circumstances in which foreign police officers coming into this country would be allowed or permitted to bring in their firearms. I hope I have set out our clear position: they will not be allowed to do so. We expect them to abide by, first, the laws of the land, and, secondly, the mutual co-operation that exists between police forces as regards these measures. The position would be absolutely clear because it would be set out in the Schengen handbook. It would define exactly what were the operational practices for foreign officer under covert surveillance, seeking to enter into the United Kingdom. They will not be allowed to bring in their guns.

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Baroness Anelay of St Johns: My Lords, I am grateful to the Minister. I shall again look carefully at Hansard. I agree: I thought he made it clear that there should be no permission to bring guns into the country, but it looked as though the prosecution might not necessarily go ahead. We need to look at that specific issue.

I thought it very helpful of the Minister to put on the record the definitions of undercover work and covert surveillance and to make clear the gulf between the two. That was an important addition that we did not have in Committee. I welcome his explanation of the fact that Article 40 is not intended to include undercover work. That saves many problems that we might have had on later amendments today. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees: My Lords, before calling Amendment No. 82, I have to inform your Lordships that if Amendment No. 82 is agreed to I cannot call Amendments Nos. 83 to 86.

Baroness Anelay of St Johns moved Amendment No. 82:


    Page 56, leave out lines 1 to 3.

The noble Baroness said: My Lords, in moving Amendment No. 82, I shall speak also to Amendments Nos. 85, 86, 89 and 95. I use this rather large and complex group of amendments to ask the Government to give some clear signposting to the public and their advisers regarding what a UK resident could do in order to get redress if he suffers damage as a result of an action by a police or customs officer who has come over to the UK in order to carry out covert surveillance.

Since these are complicated matters, I have tried to put together as many amendments as possible so that the Government can try to give a full picture rather than my coming backwards and forwards on little parts. On Report, that is quite difficult. It is much better to put it all together. In that spirit, I—rather unusually for the Official Opposition and for me—gave the Home Office some advance warning of the kind of questions that I would ask. So I shall be slightly longer than normal on the matter. But it means, following what I am sure will be a full explanation by the Government, that I shall not have to press the matter today. One hopes that we will not need to return to it as it is a matter of explanation.

Under subsection (5) of new Section 76A of the Regulation of Investigatory Powers Act 2000, the Government propose:


    "An officer is not to be subject to any civil liability in respect of any conduct of his which is incidental to any surveillance that is lawful by virtue of subsection (4)".

Instead, under amendments to the Police Act 1997 contained in what is now Clause 84 of the Bill, the director general of NCIS is still liable, according to paragraph 163 of the Explanatory Notes,


    "to cover the cost of any damage foreign surveillance officers may commit, or legal action to which they may be subject".

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Amendments Nos. 82, 85, 86 and 95 seek an explanation from the Government of why different wording is used in these two provisions.

Under Clause 82, the foreign officer is not to be subject to any civil liability in relation to conduct of his,


    "which is incidental to any surveillance",

but, under Clause 84, the director general of NCIS will be liable for unlawful conduct on the part of the officer which takes place,


    "in the course of carrying out the surveillance".

They are different words. I am sure that the Government have chosen their words carefully in relation to the provisions. We need them to explain more fully why they have chosen different words. Otherwise, the lawyers will certainly get at them whenever there are any claims in the future.

What happens if a foreign officer does a tortious act which is "incidental" to the lawful surveillance but is not done "in the course of carrying out" the surveillance? Presumably, the Government think that such an act could happen because they have used two different terms. In such a case, the protection of new Section 75A(5) from civil liability for the foreign officer applies, so he is not liable and the director general of NCIS is not liable either. Is there, therefore, no remedy as neither the officer nor NCIS would be liable?

On comparing the wording of the two provisions, my immediate thought was—perhaps an obvious one—that the foreign police or Customs officer carrying out the surveillance might drop a cup of hot coffee over an innocent bystander on a rest break while not watching the suspect. The drinking of the coffee might be "incidental" to the surveillance, but surely it is not done "in the course of carrying out" the surveillance itself if it is done while the officer is not watching the suspect.

These are technical points. However, if the provisions were ever tested in the courts—and it is possible that they would be—no doubt the lawyers on one side would say that if no difference in meaning was intended by Parliament, it would have used exactly the same wording in each case. I hope the Minister will clarify that issue.

Amendment No. 89 also covers issues of how individuals might obtain redress for damage but from a different viewpoint. It seeks to clarify the position of what happens if the surveillance takes place inside UK territorial waters but not on UK soil. I was grateful to the Minister for his earlier explanation about notification needing to take place only when the officers land on UK soil. What happens when someone carrying out covert—not undercover—surveillance is in UK territorial waters?

I give an example. I shall be more athletic than I was last time. I am a windsurfer off Sandbanks near the entrance to Poole Harbour and I am acting appropriately. So I am not off course and I am behaving okay. I am hit by a small boat which is wholly under the control of the French or other overseas

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police or Customs officers who have entered UK territorial waters to continue surveillance on a suspect. It is covert surveillance, not undercover, and they are controlling the boat. They may or may not intend to land on UK soil.

At this stage they have not made any decision about whether or not to notify the UK authorities of their intention to continue their hot surveillance on UK soil. They carry out surveillance from the boat. After all, electronic surveillance means that they can do that very well indeed. But the officers are either negligent or reckless about their control of the boat, which causes me damage. Can I sue? Whom do I sue, and how?

Is there any difference if they are merely careless and not negligent or reckless? Is there any difference if they have decided to continue hot surveillance on UK soil and they have notified the UK authorities of that?

These points are all the more important because it appears that the Government do not yet know how our EU partners will interpret the Schengen convention in this respect when our own officers go overseas. I hope that the Government will be able to clarify these matters further today. I beg to move.

6.45 p.m.

Lord Renton: My Lords, although my noble friend Lady Anelay has said that her amendments are probing ones, she has raised one or two very important matters. I wish to refer to only one. In so doing, one must bear in mind that this clause, perhaps more than any other, is the result of the Schengen agreement. Amendment No. 82 seeks to leave out subsection (5). It states:


    "An officer is not to be subject to any civil liability",

in these circumstances. That could be very hard on individuals who, free from any blame, happen to suffer as a result of legitimate action taken by the foreign police who have entered the country. It could cause great hardship. I am a little worried about the refusal to accept civil liability in these circumstances. The problem would not arise very often, but when it did it could cause great hardship to individuals. While agreeing with my noble friend in the very penetrating comments that she made, above all she is right to refer to Clause 82(5).

Lord Stoddart of Swindon: My Lords, the noble Baroness, Lady Anelay, has made a number of points and asked a number of questions. I shall be interested to hear the answers. In Grand Committee we had a debate about this matter. We were worried about what civil redress people might have who had been injured in some way. We were assured that redress would be achieved through the director-general. That is fair enough as far as it goes.

I wish to raise one point, which is the conduct of the surveillance officers in this country. They should not be in a superior position to our own police. If there is a complaint against any of our own police that complaint goes to the Police Complaints Authority. The result of its findings may very well have a bearing on any claim which is made against the police.

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It seems to me that there is no provision for foreign officers conducting operations in this country to be investigated. Therefore, that not only puts them in a superior position to our own police officers, but it could also hurt the position of a complainant suing the director-general because of the activities of a foreign surveillance officer. That point should be addressed both from the point of view of the British police and of British civilians who may be injured during surveillance operations by a foreign policeman.


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