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Mr. Carmichael: I would disagree with very little that the Minister has said. She spoke at some length about the safeguards that are in place prior to the granting of the warrant, and I commend her on the thoroughness of her approach to that. Had I had any quibble with the provisions in the clause, I would have tabled an amendment, but I did not. Instead, I tabled a tightly framed amendment relating to the withdrawal of consent after the issue of a warrant.
I asked the Minister in an intervention whether a warrant issued by the Secretary of State could be the subject of a bill of suspension. Those who advise the Minister did not pick up on that intervention, so I do not expect her to be able to answer it off pat. An answer may be forthcoming even as I speak. It is not unknown for bolts of lightening to hit Ministers in these circumstances.
If it is possible to suspend a warrant, it is still possible to get round this provision. The bill of suspension is an unnecessarily cumbersome procedure in these circumstances. Is it still a remedy available to citizens
affected by this provision? I do not know whether the Minister has an answer for me. One can never say never, but I suspect that if a bill of suspension were not competent, a petition to nobile officium would remain competent. In Scots law at least, there is always a means by which one can find a remedy when no other exists.
Caroline Flint: The question which the hon. Gentleman alludes to involves a complicated part of Scottish law and I do not have the answer to hand. We may have to consult further on that point to see how it would fit in with the exercise of a warrant to transfer a prisoner. I shall get back to him on that point if that is helpful to him.
Mr. Carmichael: That would be helpful to me and, no doubt, to others who will deal with this legislation in the courts if and when it makes its way on to the statute book. However, even under subsection (6) as it stands, a prisoner could avoid being transferred. The procedure is exceptionally lengthy, cumbersome and expensive. Surely the sensible thing would be to allow the amendment in the terms that we have proposed to enable consent to be withdrawn on cause shown.
I cannot say that the Minister has put any argument for refusing the amendment. However, we will clearly not make any progress with it, so with some reluctance and disappointment, and with all the questions that we have at the start of the debate still unanswered, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Heath: I beg to move amendment No. 13, in page 55, line 44 [Clause 82], at end insert—
'( ) the officer does not seek to stop or question the person under surveillance'.
Madam Deputy Speaker (Sylvia Heal): With this it will be convenient to discuss Government amendment No. 18 and amendments (a) and (b) thereto:
Amendment No. 32, in page 56, line 43 [Clause 82], at end insert
'"Enters the United Kingdom" shall mean when the officer arrives at a port or airport in the United Kingdom or when a train on which he is travelling emerges from the tunnel into the UK.'.
Mr. Heath: We now come to a group that is again, I am delighted to say, the subject of qualified harmony. By accepting the arguments, as the Government amendment shows, the Minister has avoided the inevitability of the Bill returning from the other end of the corridor with the inclusion of something similar to the original amendment to clause 82 passed in the other place. That would be unfortunate, because I do not think that there was any difference of opinion between the Opposition parties and the Government on the intention, but there was a distinct difference on whether this provision should be included in the clause. The Government felt that it was not necessary—perhaps they still feel that—whereas many others felt that it was extremely important.
The issue is whether an officer from overseas entering this country while performing a covert surveillance operation should be prohibited from stopping, searching or questioning the person under surveillance. We know that there is no difference between us on the intention that such officers should have no such ability. That was clear in the Schengen handbook and the protocols. The question is whether that should be explicit in the Bill. It was felt by a majority in the other place that it should, but in Committee the view of the Government was that the amendment to that effect passed in the other place should be excised without providing an effective alternative.
The argument in Committee was interesting. The Government's principal objection was that the other place had framed its amendment in the form of a prohibition. They felt that that was not acceptable in terms of parliamentary draftsmanship and that they would be much happier with a qualification under subsection (4). I set myself the task of finding a form of words that would meet the Government's objection and fulfil our common objective, and that is amendment No. 13. Though I say it myself, it is a brief and elegant way of incorporating the sentiment.
Subsequently, the Government tabled their own amendment No. 18, which comes to the same thing. I am grateful to the Minister for producing that amendment, as it is extremely helpful to us. However, I have two quibbles with it. They are minor quibbles rather than quibbles of substance. The first is that it is slightly clumsy and long-winded, but that is a matter of style rather than substance. It is perhaps inevitable that I happen to prefer my wording.
My second quibble is dealt with in my amendment (a) to Government amendment No. 18. The Government's amendment contains a potential pitfall. It would insert the words
- "but no surveillance is lawful by virtue of this subsection if the officer subsequently seeks to stop and question the person in relation to the relevant crime".
I shall put a hypothetical case to the Minister. Supposing that a Belgian police officer was investigating a smuggling operation between Belgium and Britain.
The Secretary of State for the Home Department (Mr. David Blunkett): Chocolate.
Mr. Heath: All right, the smuggling of chocolate, although I am not sure that that is the most heinous crime even under the current provisions of criminal law. If it pleases the Home Secretary, let us suppose that the person is smuggling chocolate between Brussels and Dover. Under the provisions of the Bill, the Belgian police officer properly undertakes covert surveillance in the United Kingdom. He does not seek to stop and question the person—who incidentally is a British subject—in Dover, and he complies entirely with the legislation.
The police officer returns to Brussels and so does the person under surveillance. That British subject commits further acts in Brussels in connection with the smuggling operation for which the officer stops, questions and arrests him. It transpires that the crime committed under Belgian law is part of a conspiracy based in Britain, and should be prosecuted by the British authorities—a huge conspiracy of chocolate smuggling, according to the Home Secretary.
The person is brought back to Britain to stand trial—but under the wording in Government amendment No. 18, because the officer subsequently stopped and questioned that person, albeit in Belgium and not in London, the evidence that that officer can provide by virtue of the covert surveillance in the United Kingdom is no longer admissible in a British court. That is not the intended consequence. It may be a very fanciful consequence, and a very extraordinary sequence of events might be required to bring it about; but it is nevertheless a possible consequence of the unqualified use of the word "subsequently".
That difficulty would be entirely removed by the addition of the words "in the United Kingdom", which would make it absolutely clear that the surveillance is invalidated only if the person concerned is stopped and searched here. I put it to the Minister that we could remedy a potential difficulty quite happily by that means. I hope that my argument has been cogent and not too complicated, and I hope that the Minister will either accept my wording or amend the existing wording by means of a Government amendment. In any event, I am glad that we have won the basic argument, and grateful to the Minister for listening carefully to what we have had to say.
6.30 pm
Mr. Paice: I, too, welcome Government amendment No. 18. In Committee, the Government were determined, despite behind-the-scenes discussions, to reject out of hand the Lords amendment proposing the removal of a subsection from the Bill, and to revert to the position that obtained when the Bill was presented to the other place—only for wiser heads to prevail later.
Let me chide the Minister slightly by reminding her that in Committee she said
- "However, I am being asked to withdraw my amendment and allow an imperfect bit of the Bill to go forward."—[Official Report, Standing Committee A, 19 June 2003; c. 267.]
I understand the Minister's reasons for not liking the original Lords amendment. It was effectively a double negative, making illegal something that was already illegal. The Minister and, in different terms, the hon. Member for Somerton and Frome (Mr. Heath), have come up with wordings that serve exactly the same purpose and achieve the same ends by ensuring that someone being followed by an overseas officer cannot be stopped and searched.
I have discussed the matter with my colleagues in the other place, to whom the Bill will have to return. I cannot prejudge or commit myself to what they will
decide, but I understand that they are content with the Minister's amendment, and I welcome her albeit belated recognition that the position should be stated clearly.Amendment No. 32 relates to the definition of United Kingdom territory. It seeks to add to the Bill words used by the Minister in Committee. My hon. Friend the Member for Surrey Heath (Mr. Hawkins) rightly pointed out that where the territory entered by the overseas officer began was open to debate. Did it begin with the beginning of airspace, or with our territorial waters? What would happen if a surveillance officer was in a boat only a mile or so from the shores of Britain, watching the famous chocolate smuggler coming over from Belgium with his chocolate? The boat might be in British territorial waters.
- "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."—[Official Report, Standing Committee A, 19 June 2003; c. 288.]
The fundamental point is that the words "enters the United Kingdom" are vague and, as I have tried to demonstrate, open to different interpretations. Earlier today, the Minister agreed that the Bill should be clear about what it means. I hope she also agrees—she did nod just now—that "enters the United Kingdom" is vague. We now seek to turn her words into clarity in the Bill, and I hope that she will be able—perhaps uniquely—to incorporate her own words in legislation.
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