Select Committee on Constitution First Report


APPENDIX 1

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 explain:

    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


 
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