Mr Nick Hawkins (Surrey Heath, Conservative)

I beg to move amendment No. 74, in

clause 82, page 55, line 46, leave out 'for all purposes'.

Mr Alan Hurst (Braintree, Labour)

With this it will be convenient to discuss the following:

Amendment No. 73, in

clause 82, page 55, line 44, at beginning insert 'Subject to subsection (5A),'.

Amendment No. 75, in

clause 82, page 56, line 7, at end insert—

'(5A) Relevant surveillance carried out by a foreign police or customs officer in the United Kingdom during the permitted period is to be lawful for all purposes only if the surveillance would otherwise be lawful under the law of that part of the United Kingdom in which it takes place notwithstanding its compliance with any conditions specified in an order made under subsection (4).'.

Mr Nick Hawkins (Surrey Heath, Conservative)

Good afternoon, Mr. Hurst. I welcome you back to the Chair. We had an interesting debate this morning, as no doubt you will have heard from your co-Chairman, Mr. Benton. It was on the biggest issue so far between the two sides of the Committee. Given that we are still discussing clause 82, I thought that the Minister, slightly uncharacteristically, was a little churlish. I know that she has to behave in such a way on instructions, but it is not typical of her. I should have thought that the Government had had enough constitutional crises for one week, given the botched reshuffle and what I thought was an appalling music hall turn by the Prime Minister yesterday, when he did not take the dignity of Parliament at all seriously.

I am sure that, on reflection, the Minister will concentrate on the more genteel and gentle part of her speech when she offered to look at the matter, and that we shall return to the usual courtesies between the two sides of the Committee. They were perhaps better represented by the information of the hon. Member for Greenock and Inverclyde (David Cairns), who had an interesting and serious point to make, than by other members of the Committee on the Government's side.

Mr Alan Hurst (Braintree, Labour)

Order. We are dealing with business yet to come, rather than past business.

Mr Nick Hawkins (Surrey Heath, Conservative)

Thank you, Mr. Hurst. I turn now to amendments Nos. 73, 74 and 75. We have had such a detailed debate this morning and so much ground was covered, that I can probably speak briefly not only to this group of amendments, but subsequent groups. That will probably suit the Minister, the Whip and other members of the Committee. The three

amendments run together. They would ensure that hot surveillance in the United Kingdom was lawful only if it was lawful under the UK law if carried out not by a foreign police or Customs officer, but a British officer. We want the Bill to state explicitly that overseas police or Customs officers must at all times stick to the same rules of lawful surveillance as our police or Customs officers. I do not want to repeat all that has been said about the clause, but surely that must be the better option.

There is a danger that if the Bill was unamended, the Government could end up with a lot of egg on their face. I referred earlier to the investigations into the Brinks-Mat case and the tragic consequences of the murder of a police officer. The Minister did not seem to understand my argument this morning, so I shall briefly stress it again. I have had a personal briefing with the detective chief superintendent at Scotland Yard, who was in charge of the case. Even in the most serious criminal investigations when the greatest possible care was taken, as it was in the Brinks-Mat case, things can still go wrong.

This morning, the Minister was praying in aid, as part of her argument in defence of the Government's position, that due to the fact that only the most expert surveillance officers of the most serious crime would be involved, care would be taken. I then referred to the case of Kenneth Noye, who murdered a police officer who was acting properly while undertaking covert surveillance. That operation should not have gone wrong, but it did because the police were dealing with a serious and violent criminal.

I have had discussions with senior law enforcement officers from America whom I met during the Easter recess when I was in Greece. I was there in my capacity as a shadow Home Office Minister, meeting our ambassador and consul in Greece to discuss the serious case of the British lorry driver who had been arrested in Patras because illegal immigrants had been found in his lorry. He was put on trial within hours of his arrest. He was not given an English-speaking lawyer. A jeweller who spoke some English was pressed into service as the court interpreter. The lorry driver, David Wilson, was sentenced to a lengthy term of imprisonment. That showed our concerns about foreign jurisdictions even within the European Union, but that is a point to which we shall return under other legislation.

While I was in Greece, by coincidence I met a couple of senior sheriffs from America, who were in Greece to try to extradite someone back to that country for the most serious offences of counterfeiting and drugs smuggling. They were from Tocoma in Washington state. They said that they were happy for me to use the international experiences that they described as examples when we debated matters of international co-operation and extradition.

The sheriffs said that we must be aware that, however careful the forces of law and order may be, things can still go wrong. I hope that, the second time around, the Minister will understand my argument. It is a response to her praying in aid in support of the Government's position that such matters are serious and will always be dealt with carefully. I accept that

they will be, but things can still go wrong. That is why additional safeguards are needed.

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 and welcome back to our proceedings, Mr. Hurst.

Surveillance in the United Kingdom is strictly governed by the Regulation of Investigatory Powers Act 2000—RIPA. The purpose of inserting proposed new section 76A(5) is to make lawful under both European convention on human rights and United Kingdom law cross-border surveillance operations that have originated in other Schengen states. That type of surveillance would not contravene the fundamental rights protected by ECHR and UK law.

The amendment would require the lawfulness of the surveillance to be conditional on similar surveillance being lawful if undertaken in the UK. However, under the Schengen convention, the surveillance must be automatically lawful in the UK, provided that it was lawful in the country in which it started and that it meets the conditions specified under article 40.2. The amendment goes against the concept of automatic authorisation and that is why we resist it.

It is important to remember that surveillance will be automatically authorised only in limited circumstances. First, it must be lawful in the country of origin. Foreign officers will be obliged to contact UK police as soon as the border has been crossed. Secondly, that type of urgent surveillance may carried out only if the person under surveillance is suspected of having committed one or more of a limited number of serious offences, including murder, manslaughter, rape, arson, aggravated burglary and robbery, extortion, kidnapping, trafficking in human beings, illicit trafficking in narcotic drugs and so on.

Thirdly, cross-border surveillance under the Bill will be subject to strict conditions reflecting the wording of the Schengen convention. Those conditions include the ban on foreign officers conducting surveillance on private property. The phrase ''lawful for all purposes'' does not mean that foreign officers can disregard UK law. Article 40 of the Schengen convention states that officers carrying out surveillance in another member state must comply with the laws of the territory in which they are operating.

We are satisfied that the safeguards in place are sufficient and that there is nothing to be gained by foreign officers conducting unauthorised or unlawful surveillance, since that would undermine the relationships that are essential for the effective functioning of the Schengen convention.

Mr Nick Hawkins (Surrey Heath, Conservative)

I hear what the Minister says. Obviously, she has a Government brief from her officials that she has to stick to. I do not want to detain the Committee by pressing the matters further, because a lot of ground was covered by the debate that we had before lunch. However, I am sure that she understands that there are still matters, including the previous vote on which we disagreed. I do not think that any purpose would be served by taking the matter

any further today. Therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Nick Hawkins (Surrey Heath, Conservative)

I beg to move amendment No. 76, in

clause 82, page 56, line 7, at end insert—

'(5A) Nothing in this section shall render lawful the carrying of a firearm within the United Kingdom by a foreign police or customs officer.'.

Mr Alan Hurst (Braintree, Labour)

With this it will be convenient to discuss amendment No. 77, in

clause 82, page 56, line 7, at end insert—

'(5A) Nothing in this section shall render lawful the carrying of a firearm within the United Kingdom by a foreign police or customs officer except with the permission of either—

(a) the Secretary of State acting personally, or

(b) a chief officer of police acting personally.

(5B) the permission to carry a firearm referred to in subsection (5A) may only be given in circumstances in which it would be given to a constable acting under the law of the United Kingdom.

(5C) Where the permission to carry a firearm is given to a foreign police or customs officer under this section, then that firearm may only be used reasonably and in self-defence.'.

Mr Nick Hawkins (Surrey Heath, Conservative)

The amendments would insert a new subsection to make it absolutely clear, for the avoidance of doubt, that nothing in the clause would render lawful the carrying of a firearm within the UK by foreign police or Customs officers. That must be right. The Government have already said that they do not propose to make that lawful, so the amendment would introduce an avoidance of doubt provision. Lord Stoddart of Swindon spoke about that powerfully at column GC203 when the Bill was in Grand Committee in another place. I know that the Minister and her officials will be aware of what he said so I shall not labour the point by repeating it.

As Committee members will realise, amendments Nos. 76 and 77 are alternatives to one another. If the Government cannot go so far as to accept amendment No. 76, another way round is to accept amendment No. 77. That would would, in exceptional circumstances, provide for the Secretary of State, the Home Secretary or a chief police officer—the provision could not be delegated, so it would have to be one of them—to give personal permission to carry a firearm in circumstances where such permission would have been given to a UK officer, but only if the discharge of that firearm is to be used in self-defence or otherwise reasonably.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I welcome you, Mr. Hurst, to the last sitting of the Committee.

We need to make it clear that foreign police officers should not be in a position to carry firearms in this country. That is the traditional view on policing, which is doubly relevant when we are talking about an officer who is not under the direct command of a British police force. The Lords agreed that that point is not clear in the Bill, which is why the hon. Member for Surrey Heath (Mr. Hawkins) has tabled a clarifying amendment. [Interruption.] I turn round and am surprised see that the hon. Gentleman is not in his seat at such an early stage in the debate, and that has rather put me off. I apologise. The fact that police officers cannot, and have no lawful authority to, carry

a firearm is clear. However, as the hon. Gentleman said, for the avoidance of doubt, there would be some benefit to be had from writing that into British law.

I hope that the Minister will address what the Schengen handbook says about the clause. Some parts of the Schengen handbook may need to be rewritten to accommodate the United Kingdom. I appreciate that that would not be easy to accomplish. I am not sure, but I think that we are unique among member states of the European Union in having a police force that is not routinely armed. I cannot think of another state where police officers are not routinely armed.

I am not sure what the Schengen handbook says about carrying arms between countries. A land border unmarked by customs or border controls is, of course, very different from the position in the United Kingdom. I think that the duties on carriers would, in any case, prevent a person bearing a firearm from boarding a ship, train or aeroplane in continental Europe that was destined to go somewhere in the United Kingdom. If that is not so, the Schengen handbook should explicitly draw attention to the fact that an officer would not be able to carry a firearm if entering the United Kingdom. That would be sensible as it would allow everyone to understand our system and would make us more compatible with the systems that apply elsewhere.

Setting aside what I just said about the carriers' duty to prevent someone from boarding with a firearm, the officers are not exempted from going through our border and passport controls when they reach British shores. That results in a rather odd situation, whereby someone trying not to draw attention to themselves would have not only to pass through passport control, but declare that they were carrying a firearm and have to surrender it to the relevant authorities at the port of entry. That is not conducive to covert surveillance; in fact, it would pose operational difficulties.

For all those reasons, we need clear protocols with our European partner states on what is permissible in Britain. We often talk about ''l'exception fran¢aise''; this provision is a matter of the English exception. We do not police in the same way as other countries do. We do not have a gendarmerie as most other European countries do, and we do not have arms-bearing policemen. We have to make allowances for that, both in law and in our arrangements with other countries.

Mr Mark Simmonds (Boston & Skegness, Conservative)

There are one or two points that I would like the Minister to clarify about the amendments and the practicalities to which the hon. Member for Somerton and Frome (Mr. Heath) alluded. In November 1999, one of the Minister's predecessors said in a letter to the Select Committee on European Scrutiny that the Government had

''therefore indicated that it will be necessary for arrangements to be made to allow the surrender and storage of weapons carried by police officers on entry to the UK.''

To whom will the firearms be handed in? The hon. Member for Somerton and Frome mentioned the

farcical situation in which someone supposed to be undertaking covert surveillance handed over a firearm. The Minister also made a point this morning about the unexpected nature of the pursuit that may occur, so it is possible for a police officer from the continent who happens to be carrying a firearm to come unexpectedly to the United Kingdom.

As I understand the clause, it will not be necessary for the foreign police officer to contact a member of the British surveillance organisation until he is in the UK, by which time he has entered the country with the firearm, and is undertaking surveillance. How do those parallel events work together? Presumably the foreign police officer cannot be expected to dump the firearm on the channel tunnel train or over the side of a ferry while following someone.

If a system were to be organised so that someone collects the firearms as they come into the UK, surely the foreign police officer would hand the firearms to a UK police or customs officer. If that were so, I would have thought it possible to ensure that UK surveillance teams could follow the people coming into the UK. That would make the clause unnecessary.

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 must be careful on this issue. I take what the hon. Member for Surrey Heath said about amendment No. 76 and its alternative, amendment No. 77. However, we have to be pretty clear about whether firearms should be brought in. The view of the Government is that they should not. Amendment No. 77 worries me. Earlier today, there was much debate about stopping or questioning a subject, and we all agreed about what should not happen. However, the hon. Gentleman seems to be suggesting that, despite the agreement on the other issue, one could bring a gun into the country and possibly discharge it.

Mr Nick Hawkins (Surrey Heath, Conservative)

I think that I made the position clear. What I said—and I am sure that Hansard will bear me out—is that amendment No. 77 is a fall-back position in case the Government are not happy with the blanket ban in amendment No. 76. That is how I put the matter, and that is how the argument was advanced in another place, as the Minister is well aware. She really should not say that we are welcoming the idea; we are simply trying to assist the Government by giving them an either-or proposition. Our main contention appears in amendment No. 76, which would ensure a blanket ban. It would be fine if the Government preferred that amendment, but we might need something else for the purposes of clarification.

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 would like to make it absolutely clear that it is illegal for anyone, including overseas police officers, to bring a firearm into the UK, let alone carry it loaded on their person without the appropriate authority from the Home Secretary and an import licence from the Department of Trade and Industry. The Government are absolutely firm that foreign officers will not be able to bring guns into the UK while conducting urgent cross-border surveillance operations under the provisions of clause 82. That is important. If it is necessary to bring in firearms, that should be done through formal authorisation. That would go against this part of the Bill, which addresses

surveillance where there has not been enough time to contact the necessary authorities.

I turn to other points that hon. Members raised. A question was asked about the Schengen handbook. When the UK has joined, it will have to be amended to make it clear that guns cannot be carried. I understand that a couple of other member states that have land borders that adjoin each other will make the same representations, and insist on the same regulations and practices regarding that issue.

The hon. Member for Somerton and Frome raised a fair point about the practicalities of the arrangements for guns. It will be possible to hand guns in at the point of departure for the UK, and the Schengen handbook will make it clear that guns have to be handed over.

Many surveillance operations will not involve only one police officer following one individual; there might be other police officers, back-up officers and so forth. However, if an operation reaches a point at which officers have to follow the person under surveillance on to a boat or a plane—or whatever—they will have to make arrangements within their team, and understand their obligations under the Schengen handbook and our firm decision not to allow foreign police officers to bring guns in under such circumstances. They will have to hand over their guns to other team members before they follow the person under surveillance.

The situation will be the same for our armed officers urgently following suspects abroad. If the country to which they are travelling refuses to let them carry their weapons, the commander of the operation will have to assess the situation and decide, on the basis of the risks, whether to deal with the suspect in this country or to allow the officers to proceed without their guns.

We have been in discussions with the police about this, and they have welcomed the measure. We have consulted the National Criminal Intelligence Service and the National Crime Squad, and they are satisfied that we are clear about our position on firearms coming into this country under this clause. Foreign surveillance operations will be covered by the Schengen handbook: there is no cause for concern about this.

Mr Nick Hawkins (Surrey Heath, Conservative)

I am grateful to the Minister for what she has said. She has returned to her more normal, businesslike and courteous responses to our serious amendments. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Nick Hawkins (Surrey Heath, Conservative)

I beg to move amendment No. No. 78, in

clause 82, page 56, leave out lines 8 to 10.

Mr Alan Hurst (Braintree, Labour)

With this it will be convenient to discuss the following:

Amendment No. 79, in

clause 82, page 56, line 9, leave out 'incidental to' and insert 'a necessary element of'.

Amendment No. 80, in

clause 82, page 56, line 10, at end insert—

'(6A) A foreign police or customs officer carrying out relevant surveillance under this section is a ''public authority'' for the purposes of section 6 of the Human Rights Act 1998 (c.42) (public authorities).

(6B) Nothing in this section shall have the effect of disapplying, or removing any civil liability under, any provision of the Human Rights Act 1998 in relation to a foreign police or customs officer.'.

Mr Nick Hawkins (Surrey Heath, Conservative)

Amendment No. 78 would delete subsection (6), which addresses civil liability. We cannot see any reason for exempting such officers from civil liability. My point on this is slightly different from those that we have debated so far in relation to this clause. A foreign police or Customs officer might get caught up in something, which could be as ''normal'' as a road accident or damage to property, and which could lead to a civil claim under our civil law. Why should a UK citizen who was adversely affected by that be debarred from bringing a civil claim?

What if a foreign officer who was conducting surveillance on this side of the channel suddenly forgot which side of the road they should be driving on and caused an accident? The situation could be as minor as that. I am sure that many UK citizens in France have occasionally got confused at roundabouts, and ended up on the wrong side of the road, and that could happen in our country when a foreign police or Customs officer is concentrating too much on the surveillance, and not enough on their driving.

In practice, the civil liability would not be against the foreign Customs or police officer personally if they were executing their duty. If they were conducting surveillance, the tab would be picked up—if I may put it in that colloquial way—by the relevant Government or authorities in accordance with the rules that apply in the country in which they were operating.

Amendment No. 79 offers the Government an alternative to amendment No. 78, because it would give the exemption, but only for matters that are strictly necessary for the surveillance, rather than incidental to it.

Amendment No. 80 addresses civil liability in relation to the Human Rights Act 1998. Conservative Members have repeatedly drawn attention to what we have always foreseen would be the malign consequences—particularly the huge cost to the British taxpayer—of the Government's incorporation of that Act into our law. This is another potential difficulty.

However, for at least as long as this Government are in power, we will be stuck with the current situation. A lot of my constituents repeatedly write to me to say that the biggest single problem that this Government have created is the introduction of Human Rights Act legislation, because it is leading to many civil claims that cost the taxpayer a fortune. Many of my constituents strongly hold that view. They see all the headlines, particularly in our broadsheet newspapers and our middle-market tabloids, stating that there is a huge cost to our legal aid budget and the British taxpayer that is entirely due to the

compensation culture that has been introduced and the fact that people are now able to bring what are sometimes specious and fatuous claims under the broad heading of human rights. That is not what the human rights legislation was intended to bring about.

Members of all parties support human rights. The argument is whether the Government, by choosing this legislative route, have gone the right way about protecting those rights, or whether by choosing that route they are—as we warned them from the outset—opening the floodgates of huge costs to the British taxpayer, especially in litigation that might not otherwise have been brought, might not have been proper to bring, might be wasting a huge sum of money, and might be specious. The Government must carry the can for that.

However, for as long as the Government are in power, the Human Rights Act 1998 will be in our law, so British citizens should have its protection in relation to civil liability. It is on that basis that, in another place and now in this House, we have moved amendment No. 80.

With regard to the alternatives, my preference is to persuade the Government to accept amendment No. 78, which would delete subsection (6).

Mr Alistair Carmichael (Orkney & Shetland, Liberal Democrat)

I have often wondered what sort of person would vote for the hon. Gentleman, and we have now been offered an illuminating insight into the people who have sent him here, courtesy of his postbag, which brims with letters from ''outraged of Surrey Heath'' fulminating against the financial excesses caused by the Human Rights Act. I am sure that the hon. Gentleman will write to his constituents, in his usual fair-minded way, to put the record straight by explaining, as he did to the Committee today, why it is important that we have that Act.

Mr Stephen Hesford (Wirral West, Labour)

Did the hon. Gentleman detect, as I did, that in what the hon. Member for Surrey Heath was saying there seemed to be an implied assertion that if there were a different Government the Human Rights Act would be repealed?

Mr Alistair Carmichael (Orkney & Shetland, Liberal Democrat)

I fear that if I indulged in the wild speculation that answering that question would require, I might well find myself incurring your wrath, Mr. Hurst, and being out of order. It is an interesting question, but there may be a more appropriate forum in which to discuss it.

Having belittled the hon. Member for Surrey Heath, I should say that I think he has a good point on the civil liability issue. I shall be interested to hear from the Minister the rationale behind the inclusion of subsection (6). The hon. Member for Surrey Heath suggested that normally, as long as someone is acting within their terms of employment, the tab—as he put it—would be picked up by the employer by virtue of vicarious liability. My recollection is that vicarious liability attaches only where there is a personal liability in the first place. In fact, there might even be a theoretical right of relief between the employer and the employee.

Under the provisions, citizens who suffer loss or injury might have no recourse to compensation through the courts, although that would be available in different circumstances, and for no apparent reason. The provision would mean that if a person crashed into a car, it would be a bit of a lottery as to what the victim could get as a result. I look forward to hearing the rationale behind the subsection.

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)

This is a complex subject that was debated in the other place. It might be helpful if I explained why we need subsection (6). Its provisions are aimed at ensuring that civil liability does not arise in relation to the conduct of foreign officers undertaking emergency surveillance for up to five hours, when that conduct would be incidental to the surveillance. By ''incidental'', we mean conduct that is inextricably associated with the surveillance, to the extent that it is effectively unavoidable if the surveillance—which would have to be lawful surveillance—is to continue.

I must stress that ''incidental conduct'', as defined in the Regulation of Investigatory Powers Act 2000, covers an extremely narrow set of circumstances. It would not cover any conduct that was not essential if the surveillance were to continue. The provision does not exempt foreign officers from civil liability entirely.

It may help if I give an example of what would constitute conduct incidental to covert surveillance. An undercover officer might follow the suspect into a shopping centre or supermarket. As the officer would have no intention of shopping, he could technically be considered to be committing trespass. The subsection would give a foreign officer legal protection in those circumstances. That is consistent with protection granted to domestic surveillance officers under RIPA.

There is clearly concern as to whether there is an avenue of redress for those affected by incidental conduct. No provision is made in the Bill in relation to conduct by foreign officers that is simply incidental to lawful surveillance. That is no different from the existing situation for domestic officers under RIPA. To make special provision for incidental conduct in those circumstances would mean treating foreign officers differently from domestic officers, and that would not make sense.

However, I do not believe that that should be a cause for concern, because the issues that cause members of the British public concern are covered in other ways. As I explained earlier, incidental conduct covers an extremely narrow set of circumstances, and it is difficult to imagine how it might give rise to a claim for damages. Any conduct likely to give rise to a claim—such as, for example, an officer from France driving on the wrong side of the road and knocking someone down—would be classed as accidental, not incidental.

Clause 84 is intended to provide an avenue of redress in such circumstances for the victim of any damage other than that arising from incidental conduct that is caused during the emergency surveillance period. The clause provides that that liability would fall on the director general of the

National Criminal Intelligence Service, against whom the victim would make a claim for damages.

In the unlikely event of damage occurring as a result of incidental conduct, it would be for the courts to determine whether the conduct was indeed incidental, and consequently whether damages should be sought. We would expect the courts to take a narrow view of what might constitute incidental conduct.

As I have already said, the key to Schengen cross-border surveillance arrangements is reciprocity. We need to provide foreign officers with the same protection as that afforded to UK officers undertaking domestic surveillance. Otherwise, we could find that other member states do not provide the same protection for our officers. That is what the clause provides for. Article 43 of the Schengen convention sets out arrangements on civil liabilities, so we can expect reciprocal arrangements for our officers operating abroad in similar circumstances. I do not think that the amendments would bring any additional clarity.

On amendment No. 80, the Human Rights Act 1998 established in UK law our obligations as a signatory to the European convention on human rights. Those obligations apply to public authorities. Foreign officers acting under section 76A are public authorities under the 1998 Act. Under the 1998 Act, a public authority is any person who has at least some functions of a public nature. Policing in the UK is obviously a responsibility of UK police officers, but under this clause we are effectively delegating, for a fixed period of time and subject to specific conditions, that role to foreign officers in situations where as a matter of practicality UK officers cannot immediately take over the surveillance operation. Foreign officers acting under section 76A are therefore public authorities under the 1998 Act, and the amendment is unnecessary.

The second new subsection (6B) would ensure that nothing in the clause would have the effect of disapplying any provision of the 1998 Act in relation to a foreign police or customs officer. That is also unnecessary. There is nothing in section 76A that could disapply or remove liability from anyone under the Human Rights Act. In addition, I can confirm that in schedule 5 we are amending RIPA to provide that the RIPA tribunal can deal with challenges to surveillance by foreign officers under section 76A.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I listened carefully to the Minister's explanation, and it will repay careful study. Crucial to it was the definition that she wants to introduce, and the difference between incidental and accidental. Is there any source material to suggest that that would stand up as a legal distinction? I am unfamiliar with it, which is not surprising, but it is surprising that my legally trained colleague, my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael), had not heard of it either.

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, new research is the basis of the conclusion. I shall attempt to provide the hon.

Gentleman with a clear outline of the source on which we based our conclusions.

Mr Nick Hawkins (Surrey Heath, Conservative)

I am grateful to the Minister for giving way, particularly as I am trying to help her by giving her time to receive a note that is being given to her, which she had not noticed.

Not only are the hon. Members for Somerton and Frome and for Orkney and Shetland, who is legally qualified north of the border, unfamiliar with the distinction, so am I. The Minister will tell us in a moment what her officials have advised her, but it would be helpful if, on this important area of civil liability and whatever her note says, she writes to all Committee members on this matter. It is important to explore in detail civil liability and the issue of whether something is incidental germane to an operation or accidental.

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. If we can throw light on issues during the course of our proceedings, that will be helpful. I am advised that incidental conduct is defined by RIPA. We are not aware of any case law to date because the definition is linked to new legislation. I will write to Committee members to give them more detail to use in further discussions on the Bill.

Mr Nick Hawkins (Surrey Heath, Conservative)

That is enormously helpful of the Minister, and we look forward to receiving the letter. Will she and her officials try to get that letter to us—the hon. Gentlemen who speak for the Liberal Democrats, other Committee members and I—with sufficient time remaining before the final stages of the Bill's consideration in the House of Commons so that we have an opportunity to decide whether we need to return to the matter. The Minister is nodding, which I am happy to see. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Nick Hawkins (Surrey Heath, Conservative)

I beg to move amendment No. 81, in

clause 82, page 56, line 19, leave out 'five hours' and insert 'one hour'.

Mr Alan Hurst (Braintree, Labour)

With this it will be convenient to discuss amendment No. 82, in

clause 82, page 56, line 20, after 'enters', insert

'the airspace, territorial waters or, in the case of land entry, the customs area of'.

Mr Nick Hawkins (Surrey Heath, Conservative)

I can speak to the amendments briefly. As the Minister and perhaps some Committee members are aware, they address matters that were debated at length in another place. There was much discussion about how long the notice should be, how long channel ferries, hovercraft and hydrofoils take and whether five hours was too long. In another place, Ministers said—I shall summarise—that five hours was the sort of provision envisaged in the protocol. However, I know that my noble Friend Lord Carlisle of Bucklow questioned that. Well, who knows? Given that so much of the continental system is decimal, perhaps it is because five is half of 10. We did not get to the bottom of the matter, other than reference being made to the handbook and protocol. I was not happy with those answers, which is why we tabled the amendment. However, we are covering much of the

ground that was covered in another place, and I do not want to bore the Committee by repeating it. The Minister knows where we are coming from, as will other members of the Committee if they read the reports of debates in another place.

Amendment No. 82 seeks clarification about the start of borders. We want to insert

''the airspace, territorial waters or, in the case of land entry, the customs area of''.

It must be sensible to seek clarification. Their Lordships had a long debate about the matter, and Lord Stoddart of Swindon made some sensible points.

Mr Mark Simmonds (Boston & Skegness, Conservative)

My hon. Friend is making a good point. Entry through the channel tunnel is a confusing element. I think that a previous Home Office Minister stated that the time will not start until a foot is put on UK soil. The channel tunnel boundary is halfway across the channel, so the time spent in UK space could be longer than five hours as a result of the time difference.

Mr Nick Hawkins (Surrey Heath, Conservative)

My hon. Friend, like me, has examined the debates held in another place. He makes a valid point. Their Lordships dealt with covert surveillance operations—not operations in the sense that people under surveillance are not supposed to know that they are being watched, but in the even more serious circumstances where an undercover police officer or an undercover Customs officer is pretending to be one of the criminal gang. There was much discussion in another place about how easy or otherwise it would be for someone who was part of the gang to get in touch and at what point the period might run in those difficult circumstances.

We are talking about the most serious criminals. I take the opportunity to pay tribute both to our Customs services and our police services for the number of successes that they have achieved against some of the serious international criminals in the drugs area and elsewhere. One of the interesting aspects of my work is that sometimes I receive confidential briefings, as I have had from the head of the National Crime Squad and the National Criminal Intelligence Service, about the extent of international crime and how it is changing.

We are aware of the bravery of police and Customs officers, especially if they go undercover to break up rings. It is often done by way of covert undercover surveillance that involves pretending to be part of the gang. In my years at the Bar, I had some experience of that. I was involved in a conspiracy to murder case, which was broken because the man who allegedly—according to the criminals—would be working with the hit man, turned out to be an undercover police officer. I remember vividly that much of the evidence on the prosecution side revolved round a pub, the Station hotel at Blisworth, Northamptonshire. Almost every customer in the pub was an undercover police officer. The landlord must have had bumper trade that evening. I stress that, particularly in undercover matters, time limits and national boundaries are sensitive matters.

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 hon. Gentleman's argument is that the provision covers undercover officers. It does

not, and that was explained in the other place. The Schengen convention covers the basic bread-and-butter covert surveillance work of law enforcement officers. It does not deal with infiltration of organised gangs by undercover officers. That is why it is proposed in the Bill only to amend the surveillance provision under the RIPA. Infiltration operations are covered by covert human intelligence sources provisions under the Act. I must make that clear, so that there is not confusion about the surveillance that we are supporting.

Mr Nick Hawkins (Surrey Heath, Conservative)

I understand that. I listened to the debate on such matters in another place. The Minister was right to refer it. However, she said earlier that surveillance means just that. The Government must be careful when they say that the Bill covers only one sort of surveillance, not another. While such distinctions are made in RIPA, it does not mean that those same distinctions will be made under all the Bills that will implement the Schengen handbook in other countries. Our legislation may do so, but there is no guarantee that another EU country that is party to Schengen has the same distinction. I raised the point because the Minister said that surveillance just means what it says, but there are different types of surveillance. I leave it there. I have put on the record that the worries that were expressed in another place still exist, but I will be interested to hear what the hon. Lady says.

Mr Alistair Carmichael (Orkney & Shetland, Liberal Democrat)

Taken individually, I find little that I can support in the amendments. Taken together, they would render the whole clause virtually inoperable. For that reason, I cannot support them.

Amendment No. 82 would render it difficult for the surveillance officer to know where he was. I do not know about the hon. Member for Surrey Heath—[Interruption.] He may well have been advised to leave his 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)

Does the hon. Gentleman agree that we should have the hon. Member for Surrey Heath under surveillance, as he keeps leaving the Committee?

Mr Alistair Carmichael (Orkney & Shetland, Liberal Democrat)

No, I do not agree. There are some things in life that I am happier not knowing.

With regard to the operation of surveillance under amendment No. 82, at what point does a person enter airspace? I know from my own bitter experience of dealing with fishing cases in a previous life that it is even more difficult to know where a person is on a particular stretch of water. Are we to expect that, if a person is a surveillance officer pursuing someone on an aeroplane, as well as being given the 10-minute warning that the plane is about to land, he will be told that he has entered United Kingdom airspace? Will the man in row 4d set his watch because his one hour is ticking?

My constituency has good links with the continent; we have a ferry link between Copenhagen, Lerwick and the Faeroe Islands. Presumably, on that basis, anyone who was being observed transporting drugs from Copenhagen to the Faeroe Islands—which is not inconceivable—would become subject to the provisions of the Bill as soon as he entered United

Kingdom territorial waters. A person needs at least an hour to get to Lerwick harbour from the limits of United Kingdom territorial waters—probably rather more—and thereafter his time has expired. Therefore, if the suspect chose to leave the ship in Lerwick harbour, there would be nothing that the surveillance officer could do.

It is not clear why the hon. Member for Surrey Heath thought it necessary to table the amendment. Limiting the appropriate period from five hours to one hour would be a wrecking amendment. Five hours is not excessive. We must consider the practical implications of what is involved. My observation may be modest, but the point at which a person enters the United Kingdom will eventually have to be judicially defined. It is not in the Bill. However, there is only so much that can be covered in a Bill. I do not find the amendments helpful.

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 his contribution, because he laid out clearly some problems with the amendments. They would prevent us from properly implementing our participation in the Schengen convention and trying to achieve our aims in combating crime without borders. I refer to amendment No. 81. Article 40.2 of the Schengen convention, which the clause implements, provides for a grace period of five hours, during which surveillance may be continued across a national boundary under urgent circumstances.

My understanding is that the reason given was that five hours was thought to be sufficient time for the authority of the receiving member state to respond to immediate notification from the incoming officers signalling that the border had been crossed, and for the receiving member state to take over the surveillance or send one of its officers to the scene to accompany the officers from the foreign member state. That is crucial when dealing with serious criminals.

I think that there is general agreement that foreign officers may, on rare occasions, need to cross the border into the United Kingdom to continue surveillance. We anticipate that they will be picked up by UK officers as soon as possible; if, for example, the foreign officer came into the country via Calais, and the suspect was going to London, there would be a port at which that could happen. We feel strongly that a one-hour time limit might frustrate the large amount of work that goes into surveillance operations, and would be of no help.

I remind hon. Members that the arrangements are reciprocal. There will be occasions on which UK officers will need to use the arrangements to follow a suspect who travels abroad at short notice, and we could hardly expect foreign colleagues to give us the benefit of the full five hours if we did not reciprocate. It is important that the provision stays as it is.

On amendment No. 82, we appreciate the arguments put forward for setting a specific point at which the UK border may be considered to be crossed, but as the hon. Member for Orkney and Shetland eloquently said, how do we decide when that border is

crossed? Police officers may have training and professionalism, but they cannot know, when travelling on an aeroplane, boat or train, the exact moment when they enter British airspace or waters.

For reasons that have already been outlined, we feel that the amendment is unnecessary and would jeopardise the good intentions behind the clause. The amendment does not take into account the complex nature of maritime law. The Government's approach provides a point that can be readily identified by officers and that will not be so complex to discern that they are distracted from the operation in hand. The clause protects the interests of the United Kingdom.

Those are the reasons why we have used the words ''enters the United Kingdom'' in the clause. We will consider the UK to have been entered when the foreign officer arrives at a port or airport or, in the case of Eurostar, when the train leaves the tunnel and enters Kent. Legally and practically, that is the simplest approach, for reasons that we have outlined.

Mr Nick Hawkins (Surrey Heath, Conservative)

I am a little surprised that the hon. Member for Orkney and Shetland was so critical of our amendments, given the tenor of debates on the matter in another place. Once again, his noble Friends did not have the same strong views about the amendments. Indeed, there was a suggestion that they understood where we were coming from, but as I said this morning when I was teasing the hon. Member for Somerton and Frome, it should not surprise us that the Liberal Democrats do not necessarily say the same thing in both Houses of Parliament.

I do not think that it will profit the Committee to spend any more time debating the matter. There is a difference of view, but we do not want to be accused of seeking to undermine the basis of the clause. Baroness Anelay of St. John's and others voiced our serious concerns in the other place. In some cases, those concerns were shared fairly widely. The Minister has almost inevitably provoked a battle between the Commons and the Lords, so unless the Government come up with a different form of words in relation to the matter that we voted on this morning, that issue will go back to the Lords again, and I have no doubt that this subject will be returned to as well. I shall not take up any more of the Committee's time. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause, as amended, stand part of the Bill.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I have a couple of extraordinarily tedious questions to ask. They follow on from points that I have made before, and they will enable the Minister to add another paragraph to the letter that she has already promised me.

In the clause, a ''United Kingdom officer'' is defined as

''(a) a member of a police force;

(b) a member of the National Criminal Intelligence Service;

(c) a member of the National Crime Squad''—

et cetera. I wonder why a sworn constable is not included. Does

''a member of the National Criminal Intelligence Service''

include those officers of NCIS who are not constables? The situation with NCIS may have changed since I was involved with it quite a few years ago, but at one time police officers acting for NCIS were seconded from territorial forces and were able to return to their force at the end of their service with NCIS. There were also people working for NCIS in an investigative capacity who were not police officers. I do not know whether this is intended to catch both categories, or whether it addresses police officers employed by NCIS on a temporary or permanent basis.

My other point is rather tedious, but it might be important to be clear about it. The clause refers to a

''police or customs officer . . . who . . . is an officer for the purposes of—

(a) Article 40 of the Schengen Convention''.

That makes me wonder about the status of the police forces in the Crown territories and the British overseas territories. Those places are potential ports of entry to the United Kingdom. The Bailiwicks of Guernsey or Jersey offer a way of getting from France to the United Kingdom. The case of Gibraltar might involve more of substance, because I am unsure whether that territory is brought within Schengen by virtue of these arrangements.

Mr Nick Hawkins (Surrey Heath, Conservative)

I do not know whether the hon. Gentleman has noticed that we tabled on Tuesday of this week—but debate today—new clause 9, which deals with some matters relating to overseas territories and returns to an issue that his noble Friend Lord Wallace of Saltaire and others referred to in another place. I wanted to alert the hon. Gentleman to that, in case he had not spotted it.

Mr David Heath (Somerton & Frome, Liberal Democrat)

I noticed that, but this is the other way around: the new clause is reciprocal to that.

I wish to establish whether it is the case that police officers acting in those territories are not given the same opportunities as a French, German, Dutch or Slovenian officer. Would a constable on Jersey not be able to catch the hydrofoil—or whatever the right craft is nowadays—into Devon to conduct surveillance of a suspect, whereas a gendarme who alighted at St. Helier on the way could do so? If that is the case, it is bizarre—but perhaps it is not.

A lot of people might be interested in what the relationship is between the Guardia Civil or the other Spanish police authorities and the Gibraltar police—which is a United Kingdom police force that is situated in Gibraltar. I will understand if the Minister does not have a reply to that at present. I am sorry to keep bothering her with inquiries about these Crown territories and British overseas territories but the points that I am raising tend to get forgotten—unless someone asks about them—and then about 10 years later we find that there is a major crisis because no one thought to ask the sensible questions.

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)

There is no one statutory definition of ''constable'' for historical reasons: that term refers to a person who holds the office of a constable. We are using the term ''police force'' as we are involved in the creation of statute.

We will write to the hon. Member for Somerton and Frome further about NCIS members to clarify his point.

With regard to Guernsey, Jersey and Gibraltar, it is my advice that they are not participating in these parts of Schengen, and therefore this will not apply.

Mr David Heath (Somerton & Frome, Liberal Democrat)

So I am right in my surmise that a police officer in Jersey will not have the opportunity to go on to the UK mainland—let alone to France—on the same basis as a French gendarme?

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 that is the case, but I shall check.

Question put and agreed to.

Clause 82, as amended, ordered to stand part of the Bill.

Clauses 83 to 89 ordered to stand part of the Bill.

Schedule 4 agreed to.

Clause 90 ordered to stand part of the Bill.

Schedules 5 and 6 agreed to.

Clause 91 ordered to stand part of the Bill.