Select Committee on Constitution First Report


APPENDIX 2

Reply from the Lord Filkin, Parliamentary Under-Secretary of State, Home Office

Crime (International Co-operation) Bill [HL]

  Thank you for your letter of 12 December in which you seek clarification on two areas of the Bill.

Cross-border surveillance

  In respect of the provisions in the Bill relating to unaccompanied surveillance operations by foreign police officers, we would agree entirely that this is a new departure and needs to be subject to clear safeguards. Indeed Article 40 of the Schengen Convention which this measure implements does itself set out clear safeguards and we intend to use the power in subsection (4) of the new section 76 A of the Regulation of Investigatory Powers Act, inserted by clause 83 to provide these safeguards.

  You refer in your letter to a general practice in law of imposing individual liability on police officers. Whilst it is the case that constables are legally independent in the sense that they must take their own decisions on how to exercise their powers, they do not personally bear financial liability for their own actions. Rather, section 88 of the Police Act 1996 (as amended by section 102 of the Police Reform Act 2002) provides that Chief Constables shall be liable for the unlawful conduct of constables under their direction or control in the performance or purported performance of their functions. This replaced an earlier provision in the Police Act 1964. Section 42 of the Police Act 1997 makes similar provision for constables under the direction and control of the Director General of National Criminal Intelligence Service. It is this provision that is being amended to cover liability for foreign officers under new section 76A, so that they are in the same position as UK officers.

  The provisions are being introduced to give effect to Article 43 of the Schengen Convention. This provides that the ultimate liability for any damage arising from cross border surveillance shall be borne by the authorities in the State whose officers caused the damage. However, in order to enable individuals to more easily claim damages for any loss caused by officers of another State conducting cross border surveillance, liability for that loss is to be assumed in the first instance by the State where the surveillance took place. This is made clear by Article 43(2) of Schengen. As this is a requirement of the Convention we are confident that our Schengen partners will ensure reciprocity by making similar changes to their laws that will ensure UK officers receive similar protection when operating abroad under Article 40. Arrangements will be put in place between the UK and its Schengen partners to provide for reimbursement of any damage caused by foreign officers conducting surveillance in the UK or by UK officers conducting surveillance abroad. It is important to emphasise that a key principle behind the Schengen Convention is co-operation, and reciprocity is key to effective co-operation.

  You refer also to new sections 76A(4) and 76A(5). These mirror section 27 of the Regulation of Investigatory Powers Act 2000. They are included to place foreign officers conducting urgent cross border surveillance in the same position as UK officers when they conduct authorised surveillance. These clauses makes authorised surveillance and incidental conduct lawful. However, authorised surveillance can be challenged before the Investigatory Powers Tribunal established by Part IV of RIPA. The Tribunal has the power to quash an authorisation and award damages where appropriate. Paragraph 71 of Schedule 4 of the Bill ensures that the Tribunal will also have the power to consider complaints about surveillance authorised by new section 76A. Accordingly, individuals who consider that they have been subject to cross border surveillance will have a means of redress.

  The Committee seeks an explanation of the rationale behind the five hour limit that the Bill imposes on any unsupervised surveillance operation by foreign officers. The choice of five hours reflects the provision contained in Article 40.2 of the Schengen Convention. As you may be aware, the UK applied to participate in the police and judicial co-operation provisions of Schengen in 1999, some nine years after the Convention had been agreed by the original five participating states (France, Germany and the Benelux countries).

  Although the UK was not party to the original negotiations, we understand that the reasoning behind the decision was that five hours was considered to be sufficient time for the authority of the receiving Member State to respond to the immediate notification from the incoming officers signalling that the border had been crossed; and for the receiving Member State to take over the surveillance or to send one of their own officers to the scene to accompany the officers from the foreign Member State.

Driving Disqualification

  The Committee asked for clarification of the extent of an individual's right of appeal to a national court in relation to the provisions on the recognition of overseas driving disqualifications.

  There is no contradiction between the powers provided to a court to suspend a disqualification and its powers in determining an appeal. Clause 60 provides for a person disqualified from driving under clause 58 to appeal to the appropriate court against disqualification. Clauses 61 to 63 allow an appellate court in the relevant part of the United Kingdom to suspend the disqualification on such terms as it thinks fit. The purpose of this power is to allow the court, if it thinks fit, to suspend the disqualification taking effect pending the determination of the appeal. This is a power which mirrors that provided by section 40 of the Road Traffic Offender's Act 1988 in respect of a person convicted and disqualified by a court in England and Wales.

  A court which receives an appeal is limited to considering whether the applicant's case is one to which clause 58 applies. The court will therefore consider whether the case satisfies the criteria for the application of clause 58 which are described in clause 57. This includes determining whether the offender was duly notified of the proceedings in the State of the offence and was entitled to take part in them. The appeal does not, however, extend to the circumstances of the original offence and order of disqualification imposed in the other State. These matters will already have been dealt with in the other State and section 58 will only apply where no appeal is outstanding there.

  If the court is satisfied that section 58 does not apply, it must allow the appeal. This will have the effect of removing the disqualification imposed under section 58. Otherwise the court must dismiss the appeal and the disqualification will stand or, where the court suspended the disqualification pending appeal, the disqualification will take effect.

16 December 2002


 
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