Mr Nick Hawkins (Surrey Heath, Conservative)

I beg to move amendment No. 71, in

Clause 82, page 55, line 29, at end insert—

'(1A) In subsection (l)(c) it is not reasonably practicable to make such request as is mentioned therein only if the duration of the foreign police or customs officer's travel to the United Kingdom is shorter than could reasonably allow for prior authorisation to be sought.'.

Mr Joe Benton (Bootle, Labour)

With this it will be convenient to discuss amendment No. 72, in

Clause 82, page 55, line 38, after 'party', insert 'and which is an offence under the law of any part of the United Kingdom ,'.

Mr Nick Hawkins (Surrey Heath, Conservative)

May I say good morning to you, Mr. Benton, more fully than I did in an intervention on the previous day that the Committee met?

Mr David Cairns (Greenock & Inverclyde, Labour)

Hear, hear.

Mr Nick Hawkins (Surrey Heath, Conservative)

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

It is important to remember that cross-border surveillance has nothing to do with the European arrest warrant. Foreign officers carrying out cross-border surveillance will have no executive powers. They will not be able to make arrests, stop and question suspects, carry out searches or seize anything. I have not heard the term ''hot surveillance''. To me, surveillance means that someone is watching a person but not interacting with them—[Interruption.]

Mr Nick Hawkins (Surrey Heath, Conservative)

As my hon. Friend the Member for South-East Cambridgeshire points out from a sedentary position, that is not what Government

amendment No. 156 does. We shall return to that in a moment. I do not want to stray out of order by pre-empting the big argument that we shall have then, but my hon. Friend and I have warned the Minister that she will have a serious battle with Members from various parties in another place if she persists with that amendment.

I am well aware of the point that the Minister makes. She knows that Opposition Members have exceptionally strong views about the European arrest warrant, but we are discussing a different issue. There could be an essential safeguard in respect of hot surveillance, as it has been called. Its use should be restricted to matters that are crimes in UK law. That would be an important protection for our subjects. We do not want the matter to be opened up to things that might be regarded as crimes by judicial authorities in other countries, but that are not crimes here. That is an essential point. I hope that the Minister will accept amendment No. 72 even if she cannot accept amendment No. 71.

Mr David Cairns (Greenock & Inverclyde, Labour)

I do not wish to stray out of order by rehearsing the arguments that we have had frequently in other Committees about the European arrest warrant, but let us say, for example, that British people here are organising to take groups of paedophiles to Spain, where the age of consent is 12, to commit crimes there, or that the situation is the other way round. Can the hon. Gentleman not see the merit in having flexibility to allow such surveillance for activities that might not be against the law in this country? I have posited an example that involves the reverse, but it is an example of a situation in which it could be in our interests to have reciprocal arrangements. We would want them if the situation were the other way round.

Mr Nick Hawkins (Surrey Heath, Conservative)

There is a judgment call to be made. The hon. Gentleman raises a serious point and he knows that Opposition Members—particularly my hon. Friends the Members for Mole Valley (Sir Paul Beresford) and for Beaconsfield (Mr. Grieve) and the shadow Home Secretary, my right hon. Friend the Member for West Dorset (Mr. Letwin)—have taken a very serious interest in advancing legal protection against paedophiles. We take that matter seriously, but when it comes to foreign police officers having powers to come on to our soil—our territory—to carry out surveillance, we say that that should be restricted to matters that are crimes in UK law. After all, UK law is pretty wide. There are not many very serious matters that would require surveillance that are not crimes under UK law. The British people need the protection that we have proposed.

Mr David Heath (Somerton & Frome, Liberal Democrat)

The clause is extremely important and will repay close scrutiny. Under most of the groups of amendments to come, the hon. Member for Surrey Heath will find that I argue for a direction similar to his own. That said, this is the least convincing group of amendments that he has tabled. An awful lot of nonsense has been talked about the concept of hot surveillance, which worries me. As I said on Second Reading, people have visions of Inspector Clouseau types bumbling around the Kent countryside shooting guns in all directions and arresting people with

abandon. I am satisfied that that is not what the Bill proposes.

Mr Nick Hawkins (Surrey Heath, Conservative)

I understand the hon. Gentleman's point. I accept that the Government are not proposing what the more far-fetched descriptions would have us believe. However, I hope that the hon. Gentleman will bear in mind that in another place, Lord Goodhart strongly supported Baroness Anelay of St. Johns. He said:

''We are particularly concerned to note that a number of the limitations which are contained in Articles 40.2 and 40.3 are not set out on the face of the Bill . . . we feel that they should be on the face of the Bill. That is why the relevant amendments stand in the name of my noble friend Lord Dholakia as well as the noble Baroness, Lady Anelay''.—[Official Report, House of Lords, 29 January 2003; Vol. 643, c. GC202.]

I know that the Liberal Democrats often argue one thing in one place and another in another place, but I do not often come across spokesmen for the Liberal Democrats in the Commons advancing a different argument from the one advanced by their noble Friends in another place.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I believe that I said that I would be advancing the same argument as the hon. Gentleman on future groups of amendments. He need not be concerned. The arrangements pose a purely operational difficulty, rather than a legal one. That concerns me greatly, because even within interforce relationships in the United Kingdom and between the police service and other investigatory services, there is a huge capacity for fouling things up simply through lack of communication. Happily, we have overcome most of those operational difficulties, but they still happen.

The worst that can happen when mounting a serious operation—especially against organised crime, which may involve a very long period of surveillance, with sophisticated arrangements to gather information and apprehend criminals—is for a member of another force or investigating authority to find themselves on the scene at the wrong time and in the wrong place, fouling up the whole arrangement. That is not a hypothetical scenario—we know that it has happened before—which is why the amendments worry me.

If communication is lacking, there is the possibility of a French, German or Dutch surveillance officer unwittingly and without doing anything unprofessional, as far as they are concerned, finding themselves in the middle of a British policing operation or a British Customs and Excise operation to the detriment of that operation. That is not far-fetched, because criminals who are active in one country may well also be active in another. That is why there should be clear protocols about the arrangements for informing. Only very exceptionally should prior notification not be given at the point of crossing the channel or arriving at an airport or at the point of any other form of entry into this country.

The Minister may be able to correct me if she can envisage other circumstances, but it must be extremely rare for there not to be an intercommunication from a police officer from a foreign country to his or her

superiors when crossing into the UK. There must be very few circumstances in which it is impossible to make that communication, and for it to be translated into action through a request from the headquarters of the organisation to the National Criminal Intelligence Service or to an individual constabulary in the United Kingdom.

Mr Mark Simmonds (Boston & Skegness, Conservative)

I should like to draw the hon. Gentleman's attention to what Lord Filkin said in the other place, when discussing the foreign officers. He said that:

''they must notify the NCIS before their feet touch UK soil.''—[Official Report, House of Lords, 29 January 2003; Vol. 643, c. GC199.]

I wonder how that fits in with the point that the hon. Gentleman makes.

Mr David Heath (Somerton & Frome, Liberal Democrat)

That is precisely my belief. That should invariably be the case, but I do not think that it is explicit in the Bill. I differ from the hon. Gentleman and my noble Friends in another place in that I am not sure that the amendment covers that case, because it explicitly deals with authorisation under part 2 of the Regulation of Investigatory Powers Act 2000.

Rather than getting that precise authorisation, I am more interested in ensuring that there is communication with NCIS or the constabulary before that person lands on British soil and does their job effectively. I do not want to make the Bill over-prescriptive or over-regulatory, which might stop the police officer doing their job effectively, but I want to ensure that the protocols allow for non-interference with mutual operations. Could the Minister therefore help us by clarifying what she expects the operational arrangements to be? A person cannot instantly transport himself or herself from a mainland European country to the UK. Even with the channel tunnel trains, a time interval is involved, so there is time to give notification, if not to seek authorisation in the prescribed form.

The clause deals with offences under the law in any part of the UK, and is oddly phrased: the indefinite article is left out. In subsection (3), I would have expected relevant crime to be defined as ''a'' crime

''which falls within Article 40(7) of the Schengen Convention;''

and ''a'' crime

''for the purposes of any other international agreement . . . and which is specified.''

It is not possible to specify anything other than ''a'' crime, because crime cannot be specified as a sort of amorphous entity. The drafting seems odd, although I am sure that there is a good reason for leaving out the indefinite article—perhaps the Minister can enlighten me. I get the impression that perhaps there was no reason for doing so, and that it is just a draftsman's oddity that can be corrected before we progress much further. If so, I should be grateful for such a correction.

The Bill deals with mutual recognition of jurisdictions and offences. I know why the hon. Member for Surrey Heath is concerned that people

should not be subject to surveillance on the basis of offences that would not be offences in the UK. He has in mind offences that fall outside our jurisdiction. However, we are subject to the convention that we have signed, so we must accept the mutuality of recognition in that instance. That is a very different matter from making an arrest or intrusive surveillance of a person. The simple act of surveillance is something that can be done legally by someone who is not a constable of an overseas force. We might accept a little give and take in that area, because that might benefit British police officers operating in Europe in pursuit of offences that are not explicitly offences in European jurisdictions.

Mr Nick Hawkins (Surrey Heath, Conservative)

The hon. Gentleman is making a good point. There is an exception, however, and it is the one to which Lord Goodhart drew attention. Some of the protocols are being brought fully into law in other EU states and so the British police officer travelling abroad might already have the fullest and widest discretion. Lord Goodhart pointed out that some bits of the protocol are not included in our legislation. Does the hon. Gentleman understand that that is a supplementary point to the one that he is making?

Mr David Heath (Somerton & Frome, Liberal Democrat)

Yes, I do. I always feel that the best way to draft Bills of this sort, which are based on treaty obligations. is to follow as closely as possible the protocols and the wording of the treaty arrangements to which we have agreed. That does not, of course, absolve the Committee from making its own judgment on whether those are appropriate agreements. I am the last person to accept that just because we have signed a piece of paper we must to translate it into British law. It is not only our right, but our duty, to examine the implications of this assistance. In this instance there may well be advantages and no disbarring disadvantages in not having the precise wording that the hon. Gentleman suggests, but I understand his point. It is one that the Minister must address.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

The wording of amendment No. 71 draws on that used in the UK's original Schengen application in 1999. However, as was stated during a previous debate in another place, consultation with operational agencies identified that although UK officers will in most cases take over surveillance operations, situations may arise which would make implementation difficult if we continued to maintain our original approach. Defining ''reasonably practicable'' purely by reference to the overseas officers' journey time would simply create more problems and more uncertainty. Enforcing a condition such as the one proposed in amendment No. 71 would be very difficult.

I concur with what the hon. Member for Somerton and Frome said, but we view this as a power that would be used only on rare occasions. In most circumstances, because we do not have a land border with the European continent, it is quite likely that there will be exchange between foreign officers in France, Belgium and elsewhere and UK officers. However, there may exceptionally be an occasion where that is not possible. In response to another question, foreign officers will have to contact the

National Criminal Investigation Service as soon as they reach the UK. If there are ongoing UK operations, NCIS should know and be able to advise the officers and tell them to stop if that is appropriate.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I honestly do not know the answer to this question. Is the Republic of Ireland entering these Schengen agreements at this time? That is the one border where this might become a sensitive issue.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I thank the hon. Gentleman for raising that because it gives me the opportunity to set out the position. As Irish Republic has chosen not to opt in to article 40 of Schengen, these arrangements will not apply across the land border between Northern Ireland and the Republic. However, in April 2002, the UK and Ireland signed an intergovernmental agreement on policing co-operation, and that provides a far more structured relationship between the Police Service of Northern Ireland and the Garda Siochana to build on the good co-operation that already exists.

Given the long-standing security situation in Northern Ireland, there are clearly special sensibilities to be considered. The PSNI has gained a wealth of experience in delivering policing in that environment. Foreign officers will not be able to continue surveillance into Northern Ireland, but that does not mean that operations will be lost as the PSNI has a capability to take over its surveillance as appropriate.

Mr Nick Hawkins (Surrey Heath, Conservative)

In another place, on this matter of the land border between Northern Ireland and the Republic of Ireland, Lord Stoddart of Swindon asked an important question. We are all concerned about terrorism, but we are particularly aware of the tragic consequences in this country of terrorism emanating from Ireland, whether north or south. Lord Stoddart said:

''As I understand it, these provisions do not apply to the Irish Republic; so IRA people who bomb in Northern Ireland and flee to the south will not be able to be hotly pursued''—

did he mean hotly surveilled?—

''by British policeman. Is that right?—[Official Report, House of Lords, 29 January 2003; Vol. 643, c. GC203.]

Lord Stoddart did not receive a terribly thorough answer to that. The Minister has given a partial explanation of how the Irish Republic has not opted into article 40 of the Schengen arrangements. If she cannot do it today, I ask her to write giving a detailed answer to that question.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

If the answer that I am about to give does not satisfy the hon. Gentleman, I shall agree to his request. In April 2002, the UK and Ireland signed an intergovernmental agreement on police co-operation, and we are pleased with our strong relationships with the Republic of Ireland in tackling terrorism and cross-border crime. Both operational and policy agencies in Northern Ireland were consulted on the implementation of article 40 in the UK, and we believe that they are satisfied with the arrangements as they stand. However, I am pleased to follow up that point and find out more on the specific point raised by the hon. Gentleman.

Mr Mark Simmonds (Boston & Skegness, Conservative)

I wish to understand exactly what the Minister means. Is she saying that the agreement that was signed in 2002 between the Republic of Ireland and the United Kingdom allows for hot surveillance to take place across the border the between the Republic and Northern Ireland? Secondly, the Irish Republic is not part of the Schengen agreement. Does that mean, for example, that a French officer in hot surveillance of someone who has left France for Northern Ireland rather than what is classified as mainland UK would be allowed to continue that surveillance for the five hours provided for in the Bill?

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I understand that the answer to the first question is no. As I said, there are good relationships between the police services of the Republic and Northern Ireland. In answer to the second question, I understand that if a French police officer was to arrive in Belfast, the application would apply. That is my understanding at the present time.

I have already clarified the point about contact with NCIS. I shall next deal with the absence of a definite article. More than one crime may be covered, so it is a generic reference. We do not know what future international agreements may say, so a definitive or indefinite article is inappropriate, but we will consider the matter further and write if we consider that view to be inaccurate. However, we believe that the drafting is right.

In answer to a point raised by the hon. Member for Surrey Heath, it is important to remember that the foreign officers making requests under the privileges must already be undertaking lawful surveillance of an individual in their own territory, who has unexpectedly headed for the UK. Foreign officers would not be allowed to turn up at short notice in the UK and initiate a surveillance operation against a British citizen already in the UK. Such cases would clearly be pre-planned, and would have been discussed with the appropriate authorities in the UK.

Mr Mark Simmonds (Boston & Skegness, Conservative)

I am intrigued by the use of the word ''unexpectedly''. Bearing in mind that we are an island nation, with the exception of the land border that exists between the Republic of Ireland and Northern Ireland, how can it be unexpected if a potential villain or suspect were to get on a ferry or an aeroplane or use the channel tunnel? It would take at least an hour to reach our shores, by which time the UK surveillance forces could be up and operating. Indeed, Lord Filkin said in the other place that the foreign officers

''must notify NCIS before their feet touch UK soil.''—[Official Report, House of Lords, 29 January 2003; Vol. 643, c. GC199.]

I cannot think of any circumstances in which a UK surveillance team would not be available to pick someone up, particularly given the serious nature of the crimes set out in article 40 of the Schengen agreement.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

Unfortunately, this is one of the factors that will be difficult to assess. It is reliant on the UK officers being prepared and having the resources at their disposal to move to Waterloo station, to Dover or elsewhere to pick up surveillance at the other

end. We must remember that we are talking about a surveillance operation, not a hot pursuit. It is about non-engagement. Let us remember that we want the same provision for UK officers to go the other way—back into Europe. We must question whether it is practical in a matter purely of surveillance for UK police officers to take over that duty at this end, or if UK police officers were going the other way, for French police officers to take over that operation. We would not expect that to be an everyday occurrence.

Mr Nick Hawkins (Surrey Heath, Conservative)

I shall make a request with which the Minister will not be able to deal today, but which would enable Committee members to have the fullest information before the legislation returns to the House for the remaining stages, and then back to the Lords. I anticipate a dispute between the Commons and the Lords on this matter. Will the Minister and her officials write a letter setting out the stages that our EU partners are at within Schengen, showing how—on this particularly controversial issue—the legislation in those countries is progressing? That would allow us to see much more clearly how British police officers' surveillance will work in those other countries. It is crucial that we know what British police officers will be able to do on a reciprocal basis.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I shall get back to the hon. Gentleman on that. I should like to return to the body of my speech.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I do not want to prevent the hon. Member for Surrey Heath from getting any information that he wants, but is it not the case that mainland European countries already have the arrangements in place, as members of that part of Schengen? Is it not common practice for Belgian, Dutch and German officers to cross borders when necessary? We are the odd ones out.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I thank the hon. Gentleman for that intervention, and he is absolutely right. Powers of surveillance would be more readily used where land borders met with many other countries. That is much more the case in mainland Europe than in the UK. All other Schengen states have already implemented the arrangements, as the hon. Gentleman said. The convention has been in force since 1995 but, as I said earlier, the Republic of Ireland has not yet signed up.

I wish to correct a point that I made earlier about Northern Ireland. A French officer heading to Northern Ireland would always be escorted by the Police Service of Northern Ireland due to the special situation there. I hope that I did not mislead anyone earlier. Owing to the special circumstances of Northern Ireland, a foreign officer would always have to make contact in advance.

In response to the request for more information, I understand that we have already written to the hon. Member for Surrey Heath on the matter that he raised. All other EU states have implemented Schengen, apart from the Republic of Ireland. I wish to return to the main body of my speech. We will debate the issue of surveillance as we progress through the clause.

In my answers to the interventions, I have outlined some of our reasons for opposing amendment No. 71. Defining ''reasonably practicable'' in the way that has been proposed would create serious operational and practical difficulties. New section 76A(1)(c) already makes it clear that the section applies only if it is not reasonably practicable for UK officers to take over surveillance when they arrive in the UK. The section therefore applies only in the urgent cases envisaged in article 40.2 of the Schengen convention. If the foreign officers could have telephoned sufficiently far in advance to give a UK team enough time to take over surveillance, but choose not to, the proposed section will not apply. Similarly, if they ring up, but the UK authorities do not try to put a team in place, the proposed section will not apply. That is because in both cases it would have been reasonably practicable for a UK team to take over the surveillance. It would be clear in such circumstances that a pre-organised arrangement could have been forthcoming, so the powers under foreign surveillance operations could not apply.

Furthermore, the amendment envisages that the time it would take a UK team to take over the surveillance will be fixed. It will not. It will vary and depend on several matters, including the resources required for that particular surveillance. For example, a foreign officer might ring up from Calais and say that he was about to follow a suspect to Dover. Sometimes, it will be possible to put a UK team in place to meet him, but sometimes it will not. The question is whether it is reasonably practicable to do so in the time available. Only if it was not reasonably practicable would proposed new section 76A apply. That will be the effect of the clause and, accordingly, we consider that defining ''reasonably practicable'' by reference to journey times is unnecessary and unhelpful.

Sufficient safeguards are already in place to ensure that foreign officers do not abuse the powers granted under the provisions. In response to worries expressed in another place and to make the position clear, we have placed in the Bill several restrictions to be imposed on foreign officers. The restrictions clarify that foreign officers must contact the National Criminal Intelligence Service on arrival in the United Kingdom and that they are not allowed to enter private property to conduct surveillance. For those reasons, we cannot accept amendment No. 71.

Amendment No. 72 would ensure that the order-making power under subsection (3)(b) might be used only to extend such surveillance to crimes that are an offence in the United Kingdom. Concern about the provision has been expressed again today. However, we consider that it strikes the right balance between the need to allow for a new agreement to be brought into effect and for it to receive proper parliamentary oversight.

Subsection (3)(b), as drafted, gives the Government flexibility should we wish to join a new international agreement that included provisions on cross-border surveillance, as my hon. Friend the Member for Greenock and Inverclyde (David Cairns) intimated. The sort of offences that might be investigated by

foreign officers on our soil as a result of the provisions will be similar to those covered by article 40 of Schengen. They would be serious crimes. I stress that we do not agree with that sort of arrangement in respect of petty offences. The reason for such flexibility is that we prefer to take a generic approach to one that depends on harmonisation of offences between countries. The list of offences to which article 40.2 of Schengen applies are widely drafted, but refer clearly to serious matters.

We expect a future agreement to take a similar approach. I do not anticipate a situation in which foreign officers who suspect a person of committing, for instance, an offence of xenophobia would be allowed to conduct that type of surveillance in the UK. It is worth remembering that foreign officers would not be conducting investigations in this country because they would not have the executive powers to do so. They would not have the power to arrest or interact with the person under surveillance. It would be a matter of discreet surveillance for a short time.

Examples of the type of crime that might be considered in addition to those currently covered by article 40, and which have been discussed in the context of the Schengen convention, are organised fraud, smuggling of illegal immigrants, laundering of the proceedings from organised crime and illicit trafficking in nuclear and radioactive substances. A future agreement containing such provisions would be subject to parliamentary oversight before it could be ratified. For those reasons and those that I outlined earlier, we will not accept the amendment.

Mr Nick Hawkins (Surrey Heath, Conservative)

The Minister will realise from my interventions, those by my hon. Friend the Member for Boston and Skegness (Mr. Simmonds) and from, in part, what the hon. Member for Somerton and Frome said, that Opposition Members are not happy with the Government's argument. There was much debate about such measures in another place and there continues to be. The Minister was frank enough to admit, however, especially in relation to amendment No. 72, that there are judgment calls to be made. We come down on a different side from the Government. The matter may be referred to again in the remaining stages of the Bill, including Third Reading—and, if I am right, when it returns to another place. I do not want to detain the Committee too long on this group of amendments, because the biggest issue comes next. For that reason only, I do not seek to press the amendment to a Division. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I beg to move amendment No. 156, in

clause 82, page 55, leave out lines 41 to 43.

I have given considerable thought to the issues raised in the other place on the matter and I have had conversations on the margins of the Committee with representatives of the Opposition. After discussion with my officials, I consider that it is important for the subsection to be removed. I will outline the reasons why that should be done.

We had a useful discussion about the previous amendment, in which some concerns were aired about surveillance. I want to make it clear what we understand by ''surveillance''. As I said earlier, I have heard the term ''hot pursuit'', but not ''hot surveillance''. I am not sure if there can be lukewarm surveillance or cold surveillance. I do not understand the concept.

Mr Nick Hawkins (Surrey Heath, Conservative)

The Minister is being a little disingenuous when she says that she has not heard the term, because it was referred to extensively by several noble Lords in another place. Even if the hon. Lady had not heard of it before taking up her new responsibilities, she must have certainly read about it in the proceedings of the other place. It is absolutely clear what the word means. In the same way that ''hot pursuit'' means crossing a border in pursuit of people in an urgent way—that is what the ''hot'' implies—''hot surveillance'' refers to exactly what the Bill contemplates, which is foreign police officers not having time to contact people while they carry on their surveillance across borders. The reason why the word ''hot'' is used is because it is used in the phrase ''hot pursuit''. I know that the Minister is being slightly facetious, but she must understand what was said in a serious way in another place.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I take the comments made in another place very seriously. However, in the short time that I have been a Minister, it is not a term that I have seen in the papers that I have gone through.

Mr Bill Wiggin (Leominster, Conservative)

Will the Minister give way?

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I will not give way. I want to make some progress on the body of my speech, although I will be happy to take interventions later. It is a serious issue and I want time to expand on the reason for the Government amendment.

Whichever term we use—''hot surveillance'', ''surveillance'', ''hot pursuit'', ''pursuit''—the crucial point is that surveillance is surveillance. It is not about pursuing someone. It does not imply powers of arrest. It is about watching and observing a suspect to monitor his activities. Police officers in this country do that all the time. Under the Bill, it means recognising and tackling organised crime, and some of the other offences that I mentioned earlier. National boundaries can be a way in which criminals can commit crimes in different countries or pursue a crime which, by crossing national boundaries, defeats the laws of the countries concerned and the expectations of ordinary people that such crime should be thwarted.

It is a serious matter to allow foreign officers to come into this country to undertake such an activity, in the same way as it is for other member states of the European Union to allow UK officers to go in the other direction. Therefore, it is important that the matters are debated and that we are clear about their implications.

The amendment removes from the Bill the provision that was inserted in another place. It will prevent a foreign police or Customs officer conducting relevant surveillance in the United Kingdom from stopping or questioning a person under surveillance.

As surveillance is an observing activity, the subsection is unnecessary. I will explain why we think that it could be confusing as well.

We agree that foreign officers must not stop or question a person. It is an explicit requirement of the Schengen agreement that a suspect should not be challenged or arrested. Serious deterrents are in place to ensure that foreign officers do not breach this condition. If they did, they would create a problem for themselves because they would no longer be carrying out surveillance, and new section 76A would not apply to their operation. Moreover, they could be putting themselves in a dangerous position, given that they could not summon support with the ease with which a UK officer could in similar circumstances. I remind the Committee that the subject of the operations will be people suspected of serious criminal activity.

Furthermore, if a foreign officer was to engage with a suspect, they would be putting at risk the trust between countries that is fundamental to Schengen co-operation. The Schengen arrangements require a report to be made on every operation involving urgent surveillance, so any breach of the conditions of the convention would be investigated. Any officer found to have breached the conditions would risk jeopardising any future operations between their country and the UK, and might even be at risk of disciplinary proceedings.

It is worth noting that it is most unlikely that an officer would have a copy of the Bill with him. He is much more likely to be familiar with, and have access to, the provisions of the Schengen handbook, which sets out the conditions relating to cross-border surveillance, including the ban on challenging a target. There are therefore clear operational reasons why we consider it most unlikely that a foreign officer would ever risk challenging a target.

I accept that the hon. Member for Surrey Heath (Mr. Hawkins) would prefer the prohibition to be included in the Bill. We concluded, however, that the amendment was flawed. It would make bad law and should therefore be removed. The term ''prohibition on challenge'' is illogical. The clause seeks to prohibit persons conducting surveillance from challenging the suspect. However, an officer cannot conduct covert surveillance of the suspect and simultaneously challenge him or her. If they challenged the suspect, they would no longer be conducting surveillance, and new section 76A would not apply. Foreign officers acting under the clause have no powers under UK law to stop and question anyone. The amendment is therefore ineffectual in so far as it is an attempt to remove a non-existent legal power.

The clause seeks to create a prohibition but does not have a corresponding sanction. It does not make foreign officers liable to criminal proceedings, or make their challenging the suspect a criminal offence, and it would not be appropriate for there to be a criminal sanction in this part of the Bill.

Mr Alistair Carmichael (Orkney & Shetland, Liberal Democrat)

The amendment could have an effect at a subsequent stage in proceedings, in that it

might render inadmissible any evidence obtained in that way.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

As I said, if, under the powers of surveillance, officers challenged or engaged with the individual, that could make any legal proceedings in which they were involved open to challenge. More important, however, it would drive a coach and horses through the co-operation that we are trying to establish through these procedures. As I said, a report would have to be made on any operation, and it is not in the interests of the UK or the foreign police officers signed up to the agreement to undermine that agreement by abusing their powers of surveillance.

Mr David Heath (Somerton & Frome, Liberal Democrat)

Will the Minister give way?

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I want to make a little more progress before I take another intervention.

As I said, the foreign officer might be subject to disciplinary proceedings at home. We believe that to be the most appropriate sanction. In addition, unlike other conditions in new section 76A, subsection (4) would not make the surveillance of the target unlawful if the target were to be challenged. Making surveillance of the target unlawful would also be illogical, because if a foreign officer were to challenge the target, he would obviously no longer be conducting discreet surveillance, and new section 76A would no longer apply.

On the question of prohibition without sanction, I should be interested to hear what members of the Committee believe an appropriate sanction to be. Because the amendment would make bad law, there is a risk that it could lead to misinterpretation of new section 76A as a whole. That is because the courts act on the principle that Parliament acts wisely and does not pass legislation that has no legal effect. Accordingly, the amendment could result in the clause being interpreted in such a way as to fail to deliver the policy intention behind it; that is, allowing very limited and tightly controlled cross-border surveillance by overseas officers. Given that the policy appears to have cross-party support, that is something that we should all seek to avoid.

I can understand the reasoning for wishing to make the ban on challenging clear. However, our view is that it is already clear, that there are sufficient deterrents in place and that we should not make bad law.

Mr David Heath (Somerton & Frome, Liberal Democrat)

The hon. Lady's contention that the provisions are bad law seems to rest entirely on the fact that they are couched in terms of prohibition. Would she therefore accept an amendment that replaced the prohibition with a condition under new section 76A(5) which would remove her objections but maintain the intentions of her noble Friends and others in another place?

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

We have tried to think of alternatives that might fit into the clause, but so far we have not come up with any. I would seek to remove the clause today on the grounds on which I have argued. However, we are open to suggestions to find other ways round if people have ideas. At the moment we feel that the prohibition and the way that the clause is phrased open up a can of worms and will not deliver.

In relation to the point that the hon. Member for Orkney and Shetland (Mr. Carmichael) made earlier, we considered whether it would be practicable to make the surveillance unlawful if the suspect was subsequently challenged. However, we have rejected that idea, because it is not sensible to say that surveillance that has been conducted entirely in accordance with new section 76A should be made unlawful because the officers subsequently challenge the suspect. That would risk losing valuable intelligence on serious criminal suspects. As the provisions are drafted, prohibition would not make evidence inadmissible.

In closing my opening arguments, I assure the Committee that there are enough powers to ensure that surveillance is what it means and that it will be clear to those operating under the arrangement what they can and cannot do. The phrasing of the clause is unhelpful, in that it raises a question and says what someone cannot do without addressing what we do if they in fact do that. The clause also causes confusion over the interpretation of the term surveillance, in that it says that one must not be able to do something that one should not be doing in the first place.

As I said, we shall pursue the amendment at this stage in order to remove the relevant subsection, but we are open to representations if people want to come forward with something that we feel can be included in the Bill.

Mr Nick Hawkins (Surrey Heath, Conservative)

The Committee realises, as do you, Mr. Benton, that this debate is what I would refer to as the big one. Despite the advice of the hon. Member for Somerton and Frome, my hon. Friend the Member for South-East Cambridgeshire and I, the Government have decided that they want to remove what another place put in. On 17 March 2003 there was a Division in another place in relation to the efforts of Baroness Anelay of St. Johns to insert subsection (4), and the combined forces of the Opposition parties succeeded. They felt that there should be clarification, which is why so many Lords from different parties joined to defeat the Government.

The Minister has referred to the discussions have taken place between the parties in the margins of the Committee. Since the Minister has drawn attention to those discussions, it is fair to say that, as would be clear to anyone listening to the Minister's speech or reading it subsequently, the real problem comes with the advice that the Minister and her other officials have received from parliamentary counsel. Parliamentary counsel are the experts on statutory drafting, and we all, whether Government or Opposition Members, have to take those points seriously. With the greatest respect to parliamentary counsel, however, there comes a point when this House and another place have to decide how we think that British citizens will understand the legislation.

We want Bills to be as clear as possible when they become Acts Of Parliament, and there can be no common-sense reason, never mind the concerns about the niceties of statutory drafting and statutory interpretation, why the subsection should not be left

in the Bill. It cannot do any harm to the understanding of the legislation by ordinary British citizens. It is very clear and is in ordinary English. The Government often say that they want to improve things and have plain English in legislation.

The subsection states:

''A foreign police officer or customs officer conducting relevant surveillance''—

the Minister rightly says that surveillance means what it says—

''in the United Kingdom under this section shall be prohibited from stopping or questioning a person under surveillance.''

That subsection provides clarification and is helpful to have in the Bill. I see the hon. Member for Orkney and Shetland nodding. I agree with what I heard him say sotto voce towards the end of the Minister's opening remarks. He agreed with me—indeed, this is the view on the combined Liberal Democrat and Conservative Benches—that the Minister is just plain wrong when she says that if subsection (4) is left in, that will not automatically invalidate evidence and mean that it is inadmissible.

I may not be an expert on statutory drafting or statutory interpretation, but I have had pretty extensive sharp-end experience of the law of evidence as it is normally regarded in the courts of England and Wales. The hon. Member for Orkney and Shetland has had a lot of experience at the sharp end of how evidence is dealt with in Scots law and Scottish courts, and no doubt he will tell us about that. It is pretty clear to any of us who have practised at the sharp end in the courts that if a court in England and Wales is presented with evidence arising from a stop or questioning by a police officer from overseas and subsection (4) is still in the legislation, the judge will say, ''I'm sorry. This evidence arising from a stop or questioning is inadmissible.'' I see the hon. Gentleman nodding. I take it that there would be a similar response from a Scottish judge, magistrate, sheriff or whoever.

I think that the Minister is just plain wrong and she will have to go back to her officials on that point. However, it is only a small part of her argument. She is basically saying that we should not leave subsection (4) in the Bill because it would confuse matters. I do not accept that. We have a head-on collision. The Minister is a new Minister and we do not want to embarrass her—we do not necessarily want to embarrass the Government—so my hon. Friend the Member for South-East Cambridgeshire, the hon. Member for Somerton and Frome and I have, in the nicest possible way, warned her that if she persists with her argument there will probably be a pitched battle between the Commons and the Lords. That is unnecessary and unhelpful when all parties agree with the substance of most of the legislation. Most of the arguments that we have had in these sittings have been on points of detail. We all want to tackle cross-border crime.

Mr Stephen Hesford (Wirral West, Labour)

Will the hon. Gentleman give way?

Mr Nick Hawkins (Surrey Heath, Conservative)

In a minute.

There cannot be any harm in having subsection (4) in the Bill. It will not undermine the legislation. The Minister said one thing that was very helpful. I welcome that and take it in the spirit in which it was intended. She said that she and the Government as a whole were open to ideas, perhaps along the lines of the suggestion from the hon. Member for Somerton and Frome about treating that provision in a different way. I am sure that he, my hon. Friend the Member for South-East Cambridgeshire and other Opposition Members will put our thinking caps on and see whether we can come up with another way of achieving our objective. We should like to help the Government to keep that protection and clarification in the Bill if we can.

At present, the position is that the Minister will force through her amendment. She has the forces in the Committee on her side. We will have a vote and the Government will win.

Mr Bill Wiggin (Leominster, Conservative)

Will my hon. Friend give way?

Mr Nick Hawkins (Surrey Heath, Conservative)

I will give way to the hon. Member for Wirral, West (Stephen Hesford) first.

Mr Stephen Hesford (Wirral West, Labour)

I am obliged to the hon. Gentleman for giving way. I hope that he does not mind my pointing out that what he is saying is patronising nonsense. The subsection, if it is aimed at anyone, is aimed at a foreign police office; it is not aimed at a British subject. However, most of the hon. Gentleman's speech has been designed for British citizens. It is palpable nonsense. As the Minister said, a foreign police officer entering our jurisdiction will come with the handbook firmly in their mind. They will be armed with the relevant procedure and will know the consequence of disenabling new section 76A if there is a confrontation. The subsection is both patronising and without purpose.

Mr Nick Hawkins (Surrey Heath, Conservative)

The hon. Gentleman may not have been listening to me or understanding what I was saying, but my point was that any Act of Parliament needs to be clearly understood by the people who read it, including the courts, judges, magistrates and police officers. We must ensure that Acts of Parliament are clear.

The hon. Gentleman is right that the purpose of subsection (4) is to prohibit foreign police officers from doing something. I do not know whether he bothered to read the extensive debates from another place—I hope that he has, because all Conservative Members have—but in them, Ministers accepted that foreign police officers do not carry the Schengen handbook with them. There was a lot of discussion about whether people carry ''Archbold'', the bible of criminal law and procedure, and, of course, people do not carry it. In the end, Ministers were saying that although foreign police officer might not carry the Schengen handbook, they would always have superiors whom they could contact to ask about it. We want a British Act of Parliament to be clear in its terms, and I am sorry that the hon. Gentleman's argument is undermined by his Ministers in another place.

Mr Bill Wiggin (Leominster, Conservative)

Does my hon. Friend not find it incredible that although the purpose of this part of the Bill is to add clarity, the Minister does not understand what hot surveillance is? Clarity is essential.

Mr Nick Hawkins (Surrey Heath, Conservative)

Yes. As always, my hon. Friend makes a powerful point.

The important point is that clause 82 introduces new section 76A into the Regulation of Investigatory Powers Act 2000. I followed the passage of that legislation carefully. The Conservative spokesman in Committee was my hon. Friend the Member for North-East Hertfordshire (Mr. Heald), but we had many discussions in the shadow Home Office team about how it would work.

The Minister or her officials will have looked back to some of the Committee debates. I do not know whether the hon. Member for Somerton and Frome served on that Committee, but many of its debates were about trying to ensure that investigatory powers were clarified, which is the point of substance as my hon. Friend the Member for Leominster (Mr. Wiggin) rightly said. By including subsection (4), the other place has clarified both the Bill and the changes that it makes to the 2000 Act.

I urge my hon. Friends and the Liberal Democrats to vote against the Government today to place on the record the fact that we do not agree with the Minister, although we will accept her invitation to put on our thinking caps and come up with another way of working. It would be very helpful if we could come up with something that satisfied the Government and parliamentary counsel and stopped a pitched battle between the Commons and Lords, which the Government are risking. However, there is a firm disagreement, and we want to stick to what the House of Lords did, as it made the legislation much clearer.

Mr David Heath (Somerton & Frome, Liberal Democrat)

This is one of those foolish debates that we sometimes get into in the House, in which Ministers resist something with which they do not agree because they do not like the wording. The Government usually resist until they table an amendment to the same effect on Report or the issue goes to the Lords, where they lose the battle and realise that the Bill will not be passed unless they use some common sense. Eventually, we get what we want. It would be much more sensible if we circumvented some of that process by an early concession of the principle, so that we can establish what the wording should be, rather than going through such a protracted and pointless process.

The Minister said clearly that she does not intend a foreign police or Customs officer conducting relevant surveillance in the United Kingdom to stop or question a person under surveillance; indeed, it would not be allowed. That is common ground on both sides of the Committee; no one wants it to happen. Therefore, the hon. Lady's argument rests entirely on whether subsection (4) is phrased in a way that Ministers can accept. The Minister purports that ''prohibited'' is the wrong word because it suggests prohibition without remedy and she would prefer a different form. If that is so, why have not Ministers tabled an amendment that includes a phrase that we could all agree?

There was a clear agreement in the original protocol that police officers would not challenge. I understand that the word ''challenge'' is not in the Bill because it is not a helpful word in English as it could mean any of a number of different activities. Sometimes words are thrown up that do not convert easily into British law because of translation problems, and alternative formulations must be found to put what is meant into effect. Stopping and questioning are well understood terms in English law and there is no ambiguity about them.

Mr Robert Syms (Poole, Conservative)

Stopping and questioning by a police officer is on the face of the Bill, but what happens if someone under surveillance notices that individual, challenges him and gets him into conversation? Is that likely? If so, it may be a defence in court.

Mr David Heath (Somerton & Frome, Liberal Democrat)

The hon. Gentleman is introducing a complication that we can do without in what is already an exercise in semantics. I do not want to diminish his point, but it is not particularly helpful to the argument that his hon. Friend the Member for Surrey Heath and I are trying to pursue.

The other argument advanced by the Minister relies on the definition of surveillance which as defined means covert surveillance and is inherent in new section 76A(2)(b), which states that it is

''for the purposes of Part 2, directed surveillance or intrusive surveillance.''

For the purposes of the Regulation of Investigatory Powers Act 2000 that means covert surveillance. The hon. Lady relies on the fact that it has to be covert surveillance for it to fall within the section in any case. Therefore, if the police officer were to stop or question a person under surveillance it would no longer be covert surveillance and would fall outside the proposal.

Mr Stephen Hesford (Wirral West, Labour)

What would happen if the subsection was not deleted and the officer undertaking the surveillance accidentally bumped into the person under surveillance and physically stopped him in the street? Would that destroy the operation?

Mr David Heath (Somerton & Frome, Liberal Democrat)

I am grateful to the hon. Gentleman because he can easily direct that question to the Minister, who says that it would not be permitted for a police officer to stop the person. There is no difference between our parties on what is not allowed—

Mr Stephen Hesford (Wirral West, Labour)

If the hon. Gentleman does not mind my saying so, he is not attending to the issue. The word in the agreement is challenge; simply bumping into someone would not be a challenge, but it would be a stop. This is a different form of words, which those who want the subsection to remain in the Bill must justify.

Mr David Heath (Somerton & Frome, Liberal Democrat)

The hon. Gentleman is a lawyer; he knows perfectly well that the term ''stopping and searching'' is not unknown in English law. I do not know whether it is in Scottish law. It does not include bumping into someone. [Interruption.] Police officers are not forbidden to bump into—

Mr Joe Benton (Bootle, Labour)

Order. An intervention has been made. The hon. Gentleman is replying. Would the Committee please allow him to do so and then we can make progress in a sensible way?

Mr David Heath (Somerton & Frome, Liberal Democrat)

I am most grateful, Mr. Benton. I am trying to address an extraordinarily fatuous point.

Mr Nick Hawkins (Surrey Heath, Conservative)

Just to reinforce how fatuous it is, the hon. Member for Wirral, West would not have made his intervention had he bothered to read the comments made by the Minister in another place. Lord Filkin said:

''The Schengen handbook outlines all the conditions to which police officers from Schengen states are subject when undertaking cross-border surveillance. In the English version of the handbook the reference to 'challenge' has been listed as 'stopped and questioned'''.—[Official Report, House of Lords, 17 March 2003; Vol. 646, c. 49.]

That comprehensively deals with the hon. Gentleman.

Mr David Heath (Somerton & Frome, Liberal Democrat)

The hon. Gentleman need not have taken the trouble to look up the proceedings in another place. He merely needs the attention span of a goldfish to have remembered what the Minister said in Committee only a few minutes ago. She used the phrase ''stop and search''.

Mr David Cairns (Greenock & Inverclyde, Labour)

The people who gave us the Dangerous Dogs Act 1991 and the Child Support Agency will recognise that wording matters. The Bill does not say ''stopping and searching'' or ''stopping and questioning''; it says, ''stopping or questioning''. The hon. Gentleman cannot get away from the question of stopping by lumping in ''and questioning''. Would he address himself to the wording in the amendment?

Mr David Heath (Somerton & Frome, Liberal Democrat)

I am sorry to disappoint the hon. Gentleman. I can very easily get away from a very silly point. I intend to do so right now.

The Minister relies on the definition of covert surveillance. It would be entirely possible for a police officer—a foreign police officer in these circumstances—to stop a person or to question a person without revealing that a covert surveillance operation was under way. The person who was stopped or questioned might suspect that it was, but not necessarily. I therefore do not think that the Minister's definition holds water. This is a crucial point. We are trying to translate the protocols and the Schengen handbook into British law.

The Minister agrees with us that stopping and searching by foreign police officers should not happen. She says that it would invalidate the covert surveillance if it did. I am not convinced of that because I am not convinced that a UK court would necessarily find that there was no longer a process of covert surveillance under those circumstances. That is merely a difference in our views of the way that a court might interpret it. However, I am absolutely clear that a UK court would have no difficulty in understanding what was meant by new section 76A(4) and would, if evidence were produced in UK proceedings on this basis, consider it to be inadmissible.

Our only difference is that we seek to phrase this differently. The Minister does not like the word ''prohibit''. I am completely agnostic about whether we use ''prohibit'' or another word that is to her liking. She does not like the fact that the subsection is where it is. I am completely agnostic about whether it is there, and whether it forms part of the conditions or is in another part of the clause. We must simply come to some sort of agreement about how we can achieve what we both want. The Minister's view is that the best way of achieving that is to pass the amendment, which deletes the entire subsection and puts nothing in its place. I tell the Minister that we do not find that satisfactory. Perhaps more important from her point of view, I am confident that those in another place will not find it satisfactory either. When the Minister strikes out the amendment, the Bill will have to be passed back to another place from which, as sure as eggs is eggs, it will come back to us. Common sense should dictate that we find an accommodation now and avoid that eventuality. I therefore hope that the Minister and her officials will take account of what I have said, but I suspect that we may have to divide on the amendment to show our strength of feeling. However, I hope that by Report we shall have a commonly agreed view that expresses what we all want to see in the Bill.

Mr Robert Syms (Poole, Conservative)

In an ideal situation, police officers would arrive, inform local police authorities, and surveillance would take place unobtrusively and at a distance, from a building or a car, so that the potential target would not be aware of what was going on. However, as we all know, such ideal situations do not always occur. A situation could arise in which a couple of officers came over from Holland in hot pursuit—

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

We are not discussing pursuit, but surveillance.

Mr Robert Syms (Poole, Conservative)

Two officers could be in the UK trying to identify their target. Surveillance is a fairly broad term—one can surveille someone from across a Committee Room, and if one follows someone on a tube, or to their home, that also is surveillance.

I expressed concerns about the term ''prohibit''. Criminals are usually the only people apart from lawyers that read the law, and if they noticed someone in the vicinity of their home, they might challenge them and, as the hon. Member for Orkney and Shetland pointed out, that could become a problem in a subsequent prosecution. The wording is not perfect, but the Bill should make it explicit that we do not expect foreign police or Customs officers to be able to challenge British citizens without a British police officer being present.

In an ideal world there would be no problem, but we all know that we do not live in an ideal world. We do not live in a world in which lots of police officers are available in the Met or elsewhere. I suspect that massive manpower is not available, and that if officers come from abroad there may be problems. The matter needs to be clarified. If we vote on the amendment, I shall support my hon. Friend the Member for Surrey Heath, but I hope that a form of words may be found

that will satisfy hon. Members on both sides of the Committee. The duties and responsibilities of foreign and domestic police and Customs officers must be made clear.

Mr Alistair Carmichael (Orkney & Shetland, Liberal Democrat)

First, I commend the Minister for having re-engaged my waning interest in the Bill. Earlier this morning, I was able to participate in the proceedings with my eyes closed, as I meditated on the great words issuing from all around me.

I endorse the sentiments expressed by the hon. Member for Poole (Mr. Syms) and by my hon. Friend the Member for Somerset and Frome—[Hon. Members: ''Somerton and Frome.''] I am sorry—my hon. Friend the Member for Somerton and Frome. It is hard to remember—it is all England-shire to me. I hope that the Minister will take account of what was said by my hon. Friend and by the hon. Member for Poole, and might reflect on the way in which business is to be conducted in the Committee.

The Minister will be aware that there is a spirit of co-operation on this point, and that if the Government choose to insist on having their way, we may return to the matter on Report. However, the Minister might consider not insisting on her amendment today, but holding further discussions between now and Report. If it is possible for the Committee to accommodate the opinions of both sides by using an alternative form of words, that would be desirable, and would show the House and the Committee that it had conducted itself properly and might improve our standing.

I confess that I was not impressed by the Minister's argument for not including the subsection, nor by her argument about prohibition being included without a correlative sanction. There is obviously a sanction—I am not convinced that there should be one—simply because there is a prohibition. The effect of prohibition is merely an exclusion. The effect of the subsection is clear. It removes the activities in which the person is engaged from the scope of relevant surveillance. That would be the sanction. ''Sanction'' is not a helpful word, but I am bound to use the same language as that employed by the Minister.

The whole Bill, and particularly the new section and subsection, deals with exceptional powers and it is important that they be very tightly drawn. That is why the subsection is important and why it should stand unless it can be improved on.

I also asked the Minister about inadmissibility and I have not been satisfied on that point either. We are dealing with what will often be cross-border crime and it is possible, especially if surveillance culminates in arrest or detention, that a prosecution in one of the United Kingdom jurisdictions might result, so admissibility is a live question. If the Bill did not contain the clear exclusion in the subsection, any judge could ask prosecuting or defending counsel why the evidence was not admissible and whether it was obtained fairly or unfairly. I understand that the Minister agrees that it would be improper to submit evidence obtained other than in accordance with the Police and Criminal Evidence Act 1984 in England and Wales or the various criminal procedures Acts in Scotland, the most recent being the Criminal

Procedure (Scotland) Act 1995. Significant issues arise about the liberty and rights of individuals in this country which could be easily overridden. That is why it is important and that the Minister is wrong to come here and ask us to exclude the provision without offering something better. I hope that, in the spirit of co-operation on both sides of the Room, she will consider whether it is appropriate to proceed with the juggernaut of the Government's majority or whether we could do something better by consensus on Report.

Mr David Cairns (Greenock & Inverclyde, Labour)

I have a genuine question, which I hope the hon. Gentleman will not try to bluster out of—that is a tendency of his hon. Friend the Member for Somerton and Frome. He referred to diminution of rights of ordinary citizens and I understand that he seeks clarification and common ground, but what serious rights of British citizens would be diminished if the subsection were omitted?

Mr Alistair Carmichael (Orkney & Shetland, Liberal Democrat)

The hon. Gentleman must be aware that individuals—citizens or subjects; call them what you will—have the right not to incriminate themselves. That is why we have different forms of caution, including caution preceding charge and caution preceding questioning. That will not be the situation under clause 82. Surveillance is one thing, but proceeding to question an individual without making him aware of who is questioning him or why is a different matter. That is why we could end up with evidence not being admissible. It could happen with the best will in the world. For instance, a foreign officer who was thought to have exceeded his powers might consider that his evidence had been fairly obtained according to the standards of criminal procedure and the law of evidence in his country, but those standards might not match the standards that would apply in a United Kingdom court. That is why it is important that the provision is tightly drawn.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I hope that I might help. Our expectation is that the evidence gathered by foreign officers would be used in overseas courts. We cannot, in UK legislation, deal with admissibility issues in French courts, because we have no jurisdiction there. I hope that I have created some clarity.

Mr Alistair Carmichael (Orkney & Shetland, Liberal Democrat)

I am sorry, but the Minister does not help at all. I prefaced my remarks on admissibility by making it clear that it was possible that a prosecution could be taken in one of the jurisdictions of the United Kingdom.

I have some small experience of this, because I have prosecuted what was effectively cross-border crime. I recall a case concerning the supply of MDMA. It involved the transportation of ecstasy tablets on the Red Star parcel service from King's Cross station to Aberdeen, where those engaged in the supply were subsequently apprehended. That was cross-border supply, because the crime took place in two criminal jurisdictions—albeit both in the United Kingdom—and the surveillance started in England.

Mr Nick Hawkins (Surrey Heath, Conservative)

I have similar experience in the courts, but of cross-border cases within the EU and between the EU and countries outside it. Does the hon. Gentleman agree that the real answer to the

Minister's point is that although she and her officials might expect that foreign officers' undertaking surveillance in the UK would lead mostly to prosecutions in foreign courts, the Government can give no guarantee about that? It is perfectly possible, because of a decision made between different member states, that evidence arising from surveillance of people in the UK by foreign officers would end up with prosecutions taking place within EU jurisdictions. We must ensure that when the result of foreign surveillance arising under the Bill comes to be considered by UK courts, the court is absolutely clear about the legal position.

Mr Alistair Carmichael (Orkney & Shetland, Liberal Democrat)

I agree with the hon. Gentleman. I thought that I had made it clear at the start that, in the majority of cases, we expect evidence to be adduced in foreign courts. I accept that we have no control over that, but the Minister cannot exclude the possibility that it will involve prosecution in this country. Cross-border crime, by its very nature, often presents us with a choice of jurisdictions. The fact that we are legislating on the subject means that it could lead to prosecutions in this country. We have to account for that possibility.

Mr David Heath (Somerton & Frome, Liberal Democrat)

We should more than account for the possibility. Some crimes in the list in article 47 could easily take place in two jurisdictions. For instance, crimes such as trafficking in human beings, illicit trafficking in narcotic drugs and psychotropic substances, forgery of money, and illicit transportation of toxic and hazardous waste will, almost by definition, often happen in more than one country. Indeed, crimes may well be committed in both jurisdictions that should be prosecuted in both.

Mr Alistair Carmichael (Orkney & Shetland, Liberal Democrat)

My hon. Friend makes the sort of point that I might have made had my interests been engaged earlier. That would have allowed me to undertake more preparation. However, his point is perfectly sound.

To return to my earlier theme, I have the impression that the question of admissibility in UK prosecutions has perhaps not been fully considered. Again, I would suggest that that is a further reason why the Minister might on reflection choose not to insist on the amendment.

Mr Mark Simmonds (Boston & Skegness, Conservative)

Before I start my brief contribution, may I say how delighted I am that you are in the Chair, Mr. Benton, offer my congratulations to the Minister on her recent promotion, and say how impressed I am with how quickly she has got to grips with the detail of the legislation?

I listened carefully to the Minister's explanation of why she wishes to delete the subsection that was added in another place. As far as I can see, her argument falls into four categories. The first argument is that the clause is already set out in detail in the Schengen agreement under article 40, so the provisions are superfluous. However, I cannot find in the clause or the Bill any clarification of what is set out in Schengen, and it is essential that it be there.

The second argument that the Minister put forward was that the provisions cause confusion. However, I would argue exactly the opposite: they make it clear

that the foreign police officer is not allowed stop and/or question. In talking about foreign officers, Lord Filkin made it clear in another place that they may not challenge or arrest a suspect. The Minister said exactly those same words earlier this morning.

The third argument that was advanced seemed, as other hon. Members have pointed out, questionable to say the least, and was that if the suspect was challenged or stopped, that would make the evidence that had been gathered in the preceding few hours in which permission had been obtained inadmissible in a court of law. I am not sure that that is correct, so I hope that the Minister can clarify that. The other thing that concerns me about that argument is that it implies that the Minister envisages circumstances in which a suspect may be stopped or questioned by foreign officers in this country.

The fourth argument revolves round the word ''prohibit''. I accept that the exact wording of new subsection (4) may not be particularly accurate. However, there seems to be consensus on both sides of the Room that what each party is trying to achieve is consistent with the others' views. It is therefore surprising that the Minister's officials, via the Minister, have not come forward with a sensible alternative, whether that is stop and search, or stop or search, or whether the word ''prohibited'' is replaced by another suitable word. I know that the Minister generously offered to consider any sensible and constructive suggestions, and I very much hope that she will take on board the suggestions that I am sure will be forthcoming from our Front Bench and from the Liberal Democrat Front-Bench spokesman.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

We have had an interesting and full debate. It has become clear to me from contributions from my colleagues and from elsewhere in the Committee that everyone concedes that subsection (4) is not clear as it stands. The hon. Member for Poole said that he concedes that it is not perfect. We have a responsibility to ensure that we do not pass legislation if the substance and the words that are used are not perfect. Given that everyone agrees that there is an imperfect aspect in the clause, I would feel that I would not be performing my duties to give it the nod and say, ''Yes, well, we all pretty much agree on things here.'' We are worried about those undertaking surveillance stopping and questioning someone, and we all say that that should not happen. However, I am being asked to withdraw my amendment and allow an imperfect bit of the Bill to go forward. I am sure that the record will reflect what Opposition Members have said on that.

I am glad that Opposition Members have acknowledged that I have been generous during the debate. Since we met on Tuesday, I have had discussions outside the Committee with parliamentary counsel and others on the Bill team, and have asked whether there was a way of building a bridge on this matter. So far, none has been forthcoming because we have not identified a workable alternative. I believe that the current safeguards place us on a very strong footing—a

concrete footing. Surveillance of the sort outlined in clause 82 would not involve stopping or engaging a suspect who is being pursued.

I should like to address a point that was raised by my hon. Friend the Member for Wirral, West. Neither foreign police officers nor members of the British public will be carrying copies of the Bill around with them, or any other Bill that affects their working or daily activities. There is, however, a handbook. I concede that police officers may not carry that handbook around with them, but we are discussing police officers who are engaged in operations involving serious criminals. We must bear in mind the very good collaboration that exists between British and other European police officers. They discuss these issues with the aim of putting a stop to the sort of cross-border activities that none of us would condone. We believe that in the 21st century—with regard to communications, travel and very serious crimes—closer collaboration is essential.

We must accept that there will be occasions when it will be acceptable for a foreign police officer or Customs officer to have access to land within our borders. We all agree on that. We are talking about professionals who will be mindful of what they can do with regard to the laws of the country in which they live and work, and in terms of the nature of the criminals that they are trying to bring to justice. That may involve, on occasions, crossing borders. As we said from the outset, this provision is far more likely to be used between the borders of France, Belgium and other countries that have adjoining borders, than it is to be used here. However, we must not shoot ourselves in the foot by damaging the Bill—and all the important provisions that it contains on the future tackling of crime—by not identifying the potential of an occasion when we might need to use the powers of clause 82.

We are talking about professional police officers who are experienced in dealing with serious offences and the criminals who carry them out. Particularly when they need to leave the borders of their own country, I would expect them to be mindful of the fact that if they undermine the conditions under which they are allowed to operate, they would jeopardise a major European agreement.

Mr Nick Hawkins (Surrey Heath, Conservative)

I understand the case that the Minister has put. However, would she concede the point that, even in terms of the most serious crimes, and even with the biggest surveillance operations that take place only within UK police forces, things can and have gone very badly wrong? I will give her an example. She will recall, only a few years ago, the tragic death of a police officer who was carrying out covert surveillance on someone who was later convicted of a road-rage murder. He was one of the main suspects in the Brinks-Mat bullion case. When at the borders of his secluded property he found a police officer who was dressed all in black and trying to carry out covert surveillance, he stabbed him to death. His defence at the trial, which to my amazement succeeded, was that he did not know what a man dressed in black was doing on the borders of his

property, thought that he was a threat and acted in self-defence.

To the great benefit of the British public's safety, that particular man was subsequently convicted of another murder. Nevertheless, it is still an example of how, even for UK police officers operating in the UK on one of the most serious crimes of recent years, surveillance can go wrong. If it can go wrong with those tragic consequences, can the Minister understand why we want to ensure that the legal position of the provisions on covert surveillance operations for serious crime by foreign police officers is clarified beyond doubt?

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

Obviously, I do not have a crystal ball that can forecast what will happen in every eventuality. However, I believe that safeguards will ensure that someone who is under surveillance is not engaged. I am not sure exactly how what the hon. Gentleman has described or subsection (4) would prevent a repeat of the situation that he described.

Mr Nick Hawkins (Surrey Heath, Conservative)

The hon. Lady does not understand the point.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

Hang on. I thought that I understood the point.

Mr Nick Hawkins (Surrey Heath, Conservative)

She does not. I am explaining—

Mr Joe Benton (Bootle, Labour)

Order.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

Thank you, Mr. Benton.

If I heard correctly, the hon. Member for Surrey Heath seemed to be suggesting how an operation could go wrong. There was some chuntering, but if I heard correctly, an officer who was conducting the surveillance was found and then stabbed by the suspect. I do not see how subsection (4) would help in those circumstances.

Mr Nick Hawkins (Surrey Heath, Conservative)

Will the Minister give way?

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

No, I will not give way, because I want to keep to the substance of our argument. As I have already said, it has been conceded that subsection (4) is imperfect. [Interruption.] No, many Committee members have said that. In the absence of any alternative wording, it is better to remove the subsection and—[Interruption.] I am sorry; Opposition Members might not like that, but shaking their heads and saying, ''No, no, no'' will not change the Government's position. I have been generous—

Mr Barry Gardiner (Brent North, Labour)

Over-generous.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I thank my hon. Friend.

I have been generous in saying that we have not come up with an alternative to deal with the situation, because to create an effective prohibition, there must be a sanction. If we criminalised the behaviour of foreign officers, we would have to consider similar legislation to cover our officers. [Interruption.]

Mr Joe Benton (Bootle, Labour)

Order. Will Committee members please observe the basic conduct of Committee and allow whoever holds the Floor—in this case the Minister—to complete their answer?

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

Thank you, Mr. Benton. I have tried to listen to other people with some manners, and I would expect the same courtesy.

Mr Stephen Hesford (Wirral West, Labour)

Is my hon. Friend surprised that, given that the Government amendment showed that they recognised that there was a problem with the subsection, the Opposition have not tabled an amendment with better wording to try to ensure that such a provision stays in the Bill?

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

I thank my hon. Friend, because we have tried to be open. As I have said, I spoke to the Opposition in the margins of the Committee to explain the situation and say that we would table a Government amendment to delete subsection (4). Like ourselves, they have conceded that it is imperfect, but they have not come forward with an alternative. We have been unable to identify any wording that would work and are not confident that we can do so, but we will continue to try. The reality is that there are safeguards in the arrangements under which foreign surveillance operations can be carried out. It is clear that stopping or questioning someone under surveillance is not acceptable and that to engage in that while using the powers in clause 82 would jeopardise an European agreement of high standing. That is why we cannot accept the provision with subsection (4).

We are not failing to consider or take notice of people's concerns, as we have made clear, nor are we saying that that is the end of the matter. Our primary reason is that at this stage we do not feel able to offer an alternative that would not complicate the matter and raise other issues that would make the clause difficult to operate, but we are open to suggestions. My team and I will consider what has been said today and wrack our brains again, but we cannot accept—

Mr Bill Wiggin (Leominster, Conservative)

Will the Minister give way?

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

No, I will not.

We cannot allow wording that is imperfect, as Opposition Members have said, to go to the other place. If we did so, we would be failing in our responsibility. For those reasons, we shall press the amendment.

Mr Bill Wiggin (Leominster, Conservative)

I am sorry that the Minister would not give way. It would have been easier to ask my question then.

Is the Schengen convention clear about what would happen if an officer challenged the person he has under surveillance? The subsection provides clarity and that is what the Opposition have been calling for. There has been little animosity, despite the Minister's dismissive tone about the suggestion made by the hon. Member for Somerton and Frome when he offered different wording, but there has been little constructive comment from the Government. Both sides recognise the importance of protecting police and Customs officers and the person under surveillance, who may be innocent; otherwise, he would be pursued rather than surveilled. We seek clarity of purpose. The Minister referred to bad law and no one in this Committee wants to make bad law, but the hon. Member for Orkney and Shetland gave an excellent description of

the Minister's explanation of what is wrong with the subsection. I was disappointed that she was unable to respond to the clear problem that is likely to arise with border law if the case in question could be tried on either side of a border.

I was also disappointed that the Minister refused to take interventions from Back Benchers—[Interruption.] She refused to take two interventions from me—[Interruption.] We have all tried to be constructive, but it is clear that Labours Members have not. I hope that the Minister will answer my first question.

Ms Caroline Flint (Parliamentary Under-Secretary (reducing organised and international crime, anti drugs co-ordination and international and European issues), Home Office; Don Valley, Labour)

My understanding is that if a foreign officer challenged a person under surveillance, that would raise all sorts of issues about our co-operation with the country concerned. The person under surveillance could take action, as could the authority in the country from which the officer came. Those are three scenarios that could arise if someone broke the

rules of surveillance and engaged the person under surveillance.

Question put, That the amendment be made:—

The Committee divided: Ayes 9, Noes 6.