Clause 82 - Foreign surveillance operations
Crime (International Co-operation) Bill [Lords]
10:15 am
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.