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Caroline Flint: The hon. Member for Somerton and Frome (Mr. Heath) had me slightly worried. I thought that I was going to disagree with something with which I hoped to agree. By the end of his speech, however, I realised that we would be able to give him some comfort, particularly in regard to the words "in the United Kingdom".
I am grateful to the hon. Gentleman, and to the hon. Member for Orkney and Shetland (Mr. Carmichael), for amendment No. 13. We discussed the issue at length in Committee—we discussed what constituted hot pursuit and hot, lukewarm or cold surveillance. Although not convinced at the end of our proceedings, I said that I would see whether we could come up with a form of words that would deal with Members' concerns without making a fool of the law. The Liberal Democrats have obviously been working on their own wording, but I am pleased to say that during the recess our officials were beavering away to produce an acceptable amendment.
I hope—and I think what has been said so far suggests—that the amendment's response to what was said in Committee makes it clear that when foreign
officers conduct relevant surveillance in the UK, that surveillance will no longer be lawful if officers subsequently stop and question the target about the crime. However, we do not think that such a situation is likely to arise. As I said in Committee, the Schengen convention provides explicitly that foreign officers may neither challenge nor arrest the target. To stop and question the target about the crime would not be consistent for the purposes of covert surveillance. There would be no operational advantage, and there would be risks of legal action against the foreign officers.If the foreign officers identified themselves to the target, he would have no obligation to speak to them or even to remain in their presence. They would have no power to detain him physically or to force him to answer questions. Indeed, were they to detain or physically restrain him, they might be committing assault, and could therefore be prosecuted or sued for damages by him.
However, the Government appreciate that the amendment, as an unequivocal declaration in the Bill, would reflect the existing clear understanding between the Schengen states that to stop and question the target within the framework of cross-border surveillance is not acceptable.
The Government's amendment differs from amendment No. 13 in that, although it would be a distinct part of what will be subsection (4) of section 76A of the Regulation of Investigatory Powers Act 2000, it would be distinguished from the existing conditions specified in the subsection. At present, the subsection provides that relevant surveillance by foreign officers during the permitted period is lawful for all purposes if the conditions in the subsection are satisfied. The amendment removes that cover of lawfulness if the target is subsequently stopped and questioned in relation to the relevant crime, even if all his specified conditions are satisfied.
There is a further difference in the drafting, in that we have not used the phrase "stop or question". Article 40 of the Schengen convention provides that the foreign officers conducting the surveillance may not challenge the person under observation. We interpret "challenge" as meaning "stop and question", which in our view better reflects the convention's intention. A further amendment has been tabled to Government amendment No. 18, and I am pleased to say that we are able to accept it because it provides clarification. The illuminating example of Belgian chocolate smuggling focused our attention on how the law might be applied, and it is no bad thing to try to create a practical situation to which to apply the Bill. I therefore hope that the House will accept amendment No. 18, as amended by amendment (a), and that hon. Members will not press amendment No. 13 to a vote.
Let me now deal with amendment No. 32, which, as has been pointed out, looks very familiar because it is very similar to what I said in Committee. It will come as no surprise to the hon. Members for South-East Cambridgeshire (Mr. Paice) and for Surrey Heath (Mr. Hawkins) when I say that I find the amendment very attractive. However, although I support its purpose, it should not be included in the Bill, and I shall try to explain why.
We had a lengthy discussion in Committee in which we tried to grapple with real-life scenarios. For example, we considered the question of at what point someone travelling by air would be in British airspace, and at what point those travelling by ferry or hovercraft would be in British waters. As I explained in Committee, the term "enters the United Kingdom" will indeed be interpreted as meaning when a foreign officer arrives at a port or airport or, in the case of Eurostar, when the train leaves the tunnel. I said that this was a practical approach. It is a workable definition that provides a point that can readily be identified by officers, who cannot afford to be distracted from immediate operational imperatives by questions about the precise moment at which they enter British airspace or waters. That approach is also in line with the Schengen convention's intention that the foreign officer conducting the surveillance must notify the authorities of the visited state immediately that the border has been crossed. Clause 82(6) uses the phrase:
- "immediately after the officer enters the United Kingdom".
However, the underlying approach that I described is a general one. Although we intend that it should be adhered to, it is difficult to find a precise wording that would be appropriate in practical terms. Indeed, that is my difficulty with the proposed amendment: its wording is not precise and it is also too narrow. For example, the precise moment at which a person enters a seaport could appropriately be regarded as when the vessel enters the harbour, when it docks, when the target disembarks, or when he passes through passport control or customs control. Indeed, it is possible that a particular vessel might not arrive at port at all. An incident might occur at the port in question, causing the vessel to be docked for some hours. Foreign officers could use that as an opportunity to connect with their UK counterparts, in order to pick up the surveillance when they disembark. So particular circumstances could arise in which it would be possible and appropriate to regard the five-hour period as commencing before the vessel arrives at the port.
These practical issues must of course be addressed, but not in the Bill, as I said in Committee. The appropriate place in which to set out the Government's approach, and to explain more precisely what is meant by "enters the United Kingdom", is the Schengen handbook. As was pointed out in Committee, the handbook is a practitioners' document that is constantly updated, and which can therefore be amended from time to time, as appropriate, to take account of evolving experience in operating the convention. What is important is that the definitions and explanations we provide in the handbook are in line with the practical approach that I have described.
I recognise that the courts' interpretation of the term "enters the United Kingdom" might not be in line with the practical approach that I have described. In the event that the courts ruled that a different approach was necessary, we would need to modify our entries in the
Schengen handbook. In that way, the new practicalities would be made clear to our law enforcement agencies and to their counterparts abroad. I am grateful to hon. Members for this opportunity to provide further elaboration.
Mr. Paice: I am grateful to the Minister for giving way; otherwise, I would not be able to respond to her remarks. In giving her reasons for rejecting my amendment, she has emphasised the huge confusion that will arise and illustrated precisely why we feel that the amendment is necessary. I understand the case that she makes, but it will lead to even more confusion. Who will determine when the clock starts ticking for the five-hour period? If it is the overseas surveillance officers who will make that decision, what is to prevent them from counting the five hours from the point at which they want to start counting? I am thinking in particular of the situation that the Minister describes—of a boat that is just offshore, either in or just outside the harbour. Someone has to start counting the five-hour period, but it surely should not be the person who is supposed to keep to it.
6.45 pm
Caroline Flint: The hon. Gentleman outlines the difficulty in establishing in the Bill a precise definition that can cover the practical implications. That is why the handbook is so important, and why the surveillance commissioner has a very important role in monitoring the ways in which the surveillance powers outlined in the Bill are used. We discussed in Committee the question of how to deal with foreign officers who do not comply with surveillance rules. As I said then, each activity undertaken would have to be accountable, and the surveillance commissioner would have to deal with any discrepancies arising. In terms of carrying out their functions in this regard, foreign officers would have to keep in touch with the National Criminal Intelligence Service.
The hon. Gentleman highlights the difficulty in trying to apply these powers without a practical example to address. I stand by my position: the wording in the Bill is the best way forward and the practitioners of the Schengen handbook will undertake to update or to vary the practical application, subject to the rulings of the courts. The Schengen handbook should reflect practical application, and amendments should be made within that to reflect changes to the practical definitions that may be required in the light of operational experience.
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