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Lord Carlisle of Bucklow: Despite the Schengen Convention, I want to ask, "Why five hours?". Why is the figure five hours in the Schengen Convention? What is magic about five hours rather than one, two, three or four hours?
We are dealing with what we have described as "hot surveillance". If I have understood correctly what the Bill does, in normal cases when one crosses a border into another country in hot surveillance, one has to get authorisation from that country to carry out that surveillance. From what the Minister said, the English police would take over from the police of whichever country in which the surveillance is being carried out and continue to take responsibility for the surveillance in this country.
The purpose of Clause 83 is that if one is unable to apply for such an authorisation, for a period of five hours, one can carry on lawful surveillance without any such authorisation, subject to the immunity provision that there shall be no liability in respect of any conduct which is incidental to any surveillance. Does the period of five hours, which appears to be plucked out of the air, have any particular significance? Would it not be better to use words which related to the ending of the time of surveillance; for example,
I wonder why we have opted for a definitive time scale which appears to have no particular merit as against a description which would link it to the moment when that which requires the surveillance carried on in this country by a foreign officer is met; namely, by the authorisation being given and an English police force taking over the surveillance.
Lord Clinton-Davis: I note that the noble Lord, Lord Carlisle, did not refer to Amendment No. 153. I assume that that amendment, too, had no merit in his eyes. As regards one or five hours, we are stuck with the Schengen Convention. It would have been
Lord Clinton-Davis: That is the same thing. In my view, the Minister is stuck with the situation in which he is bound to observe that convention. He has no leeway and no right to amend. However convincing the argument may be, it is no longer appropriate because we have passed that point.
Baroness Carnegy of Lour: I wish that I was a lawyer because that is a marvellous lawyer's argument. I suppose that we can all hide behind the Schengen Convention, but the fact remains that the provision of five hours is made with land borders in mind. It is plenty of time to cross between Belgium and France, Belgium and Germany or whatever. However, my inquiries show that it is likely that people will have to travel in hot pursuit to Wales and to some parts of England, certainly to the Hebrides. Someone might land on the Island of Barra, for example, and the policementhere may be two or threemight be somewhere else. Five hours could then present a problem.
Presumably, five hours was not fixed with the Hebrides in mind but we agreed to it and probably wanted to minimise the length of time. However, can the Minister imagine a situation where it is not practical? If it is not practical, what room do we have for manoeuvre in the legislation? That is what my noble friend is asking. We must be practical and this is a sensitive matter.
I also pointed out that in some places one cannot use a mobile telephone. I suppose that the policeman or Customs officer concerned would be able to contact our authorities, but I hope that that matter has been considered.
Lord Filkin: The Government are unable to accept these amendments because in doing so we would not be able properly to participate in the Schengen Convention. But I understand them to be probing amendments tabled in order to understand the thinking behind the five hours and in what circumstances it might be a problem.
The Schengen arrangements and cross-border surveillance are reciprocal and clearly the Committee recognises that only by implementing them properly can we expect our law enforcement officers to be able to benefit from them. Article 40.2 of the Schengen Convention, which the clause implements, provides for the grace period of five hours for the continuation of surveillance across a national boundary in urgent circumstances.
The key to these arrangements is reciprocity. There will be occasions when UK officers will need to apply this measure in the course of their work and follow a suspect overseas. We can hardly expect foreign colleagues to give us the benefit of the full five hours if we do not reciprocate. It must be appreciated that foreign police and Customs forces face the same issues when a surveillance operation crosses into their territory. For those reasons we would resist these amendments.
Obviously, the UK was not party to the negotiations on the Schengen Convention. They were undertaken some time ago. Our understanding is that the five hours was held in negotiation to be a sufficient time for the authority of the receiving member state to respond to the immediate notification from the incoming officers signalling that they had crossed the border 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 foreign officers, making it a joint investigation.
Our understanding is further that these measures have been in operation for some time on continental Europe and experience has shown that the five hours appears to have been a reasonable period. I am not aware, but I shall check before Report stage, of any problems that have arisen as a consequence of the five hours.
Any surveillance carried out by foreign officers will be subject to the conditions set out in Article 40 of Schengen. That clearly states that foreign officers must contact UK police to alert them as soon as they have crossed the border. At this point, communication will have been established, allowing a certain level of supervision by the UK. If they do not comply with the conditions set out in Section 76A and the subsequent order, they will not be deemed authorised. Foreign officers would gain little benefit from conducting unauthorised surveillance which would take them outside the terms of Article 40.
All cross-border surveillance operations under the Schengen Convention will be the subject of a report to the authority in whose territory they took place. As with all reports of surveillance operations in the UK, these will be retained and made available to the surveillance commissioner as required.
In practice, although the latest date by which a foreign officer would notify a UK authority was when he put his foot on UK soil, as we indicated during previous discussions on the Bill, on many occasions there would be notification earlier than that. That allows for two things: first, it increases the likelihood that a surveillance team could be in place at the port; and, secondly, it gives further lead time over and above the five hours, which begins from the moment the person puts his foot on UK soil.
I was asked why not have more flexibility. First, we do not believe that it is necessary. Secondly, it is important that there is a clear-cut end date, which gives the public the reassurance that only in tightly limited circumstances will a foreign officer be able to come in and continue a surveillance, albeit without any executive powers of arrest or entry.
I was asked when we will know when the period starts. It will be from the notification of entry and, furthermore, any notification prior to entry that they were coming. We would know approximately when the ship was docking and when people were disembarking. Could we stretch the period to more than five hours? No, for the reasons I have given. We do not believe that we would want to stretch or need to stretch the period. Can Parliament change what is in the Schengen Convention? I believe that the Committee knows the answers to that. Parliament is sovereign and therefore it can do what it wills. However, if it chose to change the provision, we would not be compliant with the Schengen Convention and therefore we would not be able to benefit from the measures in it.
The National Criminal Intelligence Service will keep the record. It will therefore know when the five hours has expired because it will be five hours after the process began. The noble Baroness, Lady Anelay, and the noble Lord, Lord Carlisle, asked what happens after the five hours. After the five hours, the foreign officer would lose the lawfulness of new Section 76A; he would lose the protection against assaults in Clause 83; and he would lose the civil liabilities provision in Clause 85. After five hours, he would have no protection under those provisions and if he continued surveillance, he would be acting without authority and in breach of the agreements.
The noble Baroness, Lady Carnegy, stretched my recollection of Scottish geography as to whether in practice it might be difficult if people came into the Isle of Barra. My recollection of the pleasure of going to
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