Letter from the Lord Norton of Louth,
Chairman of the Committee, to the Lord Filkin, Parliamentary Under-Secretary
of State, Home Office
The House of Lords Constitution Committee, which
I chair, have been appointed by the House of Lords "to examine
the constitutional implications of all public bills coming before
the House; and to keep under review the operation of the constitution".
We have two areas of concern relating to the
Crime (International Co-operation) Bill [HL], to which we would
be grateful for a written reply by Monday, 16th December. This
will allow the Committee to consider your response at their meeting
on Wednesday, 18th December. I apologise for the short deadline,
but, as you are aware, the Bill goes to Grand Committee on Tuesday,
7th January, the first day after the Christmas recess.
In asking for clarification on these points,
I should say that the Committee are aware of the correspondence
earlier this year on the proposed implementation of Article 40
of the Schengen Implementation Convention between the House of
Lords European Union Committee, chaired by the Lord Brabazon of
Tara, and the Parliamentary Under Secretary of State in the Home
Office, Bob Ainsworth MP.
First, we consider that the proposal to authorise
unaccompanied foreign surveillance operations for up to 5 hours
is a significant departure from practice hitherto and that the
exercise of such powers must be subject to clear safeguards.
We note that the foreign police 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
[this section]" (new section 76A(5) of the Regulation of
Investigatory Powers Act 2000). Further, it is proposed that
liability under section 76A surveillance is to be restricted to
vicarious liability, and (by means of a proposed amendment to
the Police Act 1997) vicarious liability for unlawful acts by
foreign police officers is to be placed on the Director General
of the National Criminal Intelligence Service (clause 85).
The Committee would be grateful if you could
1. the constitutional rationale for the foregoing
proposal, which departs from the general practice in law of imposing
individual liability on police officers, particularly in any areas
where the rights conferred on foreign police officers are not
fully reciprocated; and
2. the rationale behind the 5 hour limit, taking
account of the practical difficulties of enforcing any such limit.
Second, the provisions that apply to recognition
of driving disqualifications imposed outside the United Kingdom
empower the 'appropriate Minister' to impose a disqualification
where an individual has been disqualified for a driving offence
abroad. Clause 60 provides for that individual to have the right
of appeal to a magistrates' court (or in Scotland to the sheriff).
The court appears from clause 60, subsections (5) and (6) to
have a very narrow function - either to allow or dismiss the appeal
depending on whether the new statutory provisions have been observed.
However, clause 61(2) (clause 62(2) for Scotland) provides that
the appellate court "may, if it thinks fit, suspend the disqualification".
It is not easy to reconcile these provisions, and the Explanatory
Notes on this point (para. 128) do not assist.
If a Government department is to exercise power
to interpret and apply decisions made by a foreign court that
affect an individual's ability to drive in the United Kingdom,
there should be no room for doubt about the extent of his or her
rights of appeal to a national court.
The Committee would be grateful if you would
clarify the extent of an individual's right of appeal to a national
court, and the functions and powers of that court in this context.
12 December 2002