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Mr. Carmichael: I want to be sure that I understand the Minister. The Schengen handbook and NCIS guidance are exactly that: guidance. As I think the hon. Lady said earlier, ultimately it is the courts that will determine whether an act has been carried out within the five-hour limit. Is she really saying that the Government will give best-guess guidance at the moment, but that, if it all goes wrong and they lose a court case, they will change the guidance in future?
Caroline Flint: No, I am saying that it is difficult, for the reasons that I have outlined, to determine the absolute point at which a person is on UK soil, and to include that definition in the Bill. This issue would therefore better be covered within the Schengen handbook, which is the practitioners' guide. It will be
constantly updated and can be amended to take account of evolving experience in operating the convention. What is important is that the definitions and explanations that we provide in the handbook are in line with the practical approach that I have described. As I said, the courts' interpretation of the phrase "enters the United Kingdom" might not be in line with this approach. In the event that the courts ruled that a different approach was necessary, we would need to modify our entries in the Schengen handbook.After much discussion in Committee, we feel that safeguards are in place; indeed, there are other safeguards as well. As was pointed out in relation to other possible surveillance infringements, the surveillance commissioner will take up and monitor each case. On NCIS guidance, its officers have the power to tell foreign officers to stop at any time—they have the power to tell those officers when to stop surveillance. Indeed, it is NCIS with which foreign officers will need to keep in touch.
For those reasons, I am pleased to meet hon. Members halfway in respect of issues of surveillance, but we feel that the particular wording in the amendment would create problems for the future without allowing the required flexibility in respect of those powers.
Mr. Heath: I consider this afternoon to be a minor triumph, and I shall leave the Chamber rather pleased with the progress that we have made in respect of a couple of areas.
The hon. Member for South-East Cambridgeshire (Mr. Paice) made a valiant attempt to provide precision in an area that remains very imprecise. It seems inevitable that if something can be overturned by the courts, it will eventually be overturned by them. Without the necessary precision, the courts will make an interpretation, which may be adverse to whatever guidance is given.
As an island state entering the Schengen agreement for the first time, we are almost unique. I say almost unique, because although other member states are not islands, they nevertheless have maritime borders, and I am sure that something similar must occasionally have occurred in respect of the current operation of the Schengen protocols between, say, Sweden and Germany. Nevertheless, we are entering a new area, so it is important to have as watertight a definition as possible. The better the formulation within the handbook, the more likely are we to avoid aborted cases when a court rules evidence as non-admissible on the grounds that provisions have been inadvertently broken.
It is, of course, in everyone's interest not to break the rules, and it is not in the interest of an overseas officer to stay longer than required, because to do so will be a waste of time. It is not in the interest of the National Criminal Intelligence Service to give advice to those officers, who will want to use the evidence provided by the surveillance operation. Any imprecision would be extremely unhelpful.
Mr. Carmichael: My hon. Friend is right that it is in everyone's interest to work within the rules, which is why we need to know exactly what the rules are. Leaving
it to our best-guess guidance in the handbook and refining it when the courts tell us we have got it wrong is simply not satisfactory.
Mr. Heath: I have considerable sympathy with my hon. Friend and indeed with the hon. Member for South-East Cambridgeshire. I hope that the Home Office will give careful thought to providing as much precision as possible.
On the subject of stopping and questioning, I am delighted with the Minister's response, as she would expect me to be. I shall adopt a term used in parliamentary procedure and hardly anywhere else, and say that it would be churlish of me to persist with amendment No. 13 in the face of the Minister's agreement to accept my amendment to her amendment No. 18. I shall formally move my amendment (a) in due course, and in respect of amendment No. 13, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Foreign Surveillance Operations
Amendment proposed: No. 18, in page 56, line 6, at end insert—
'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'.—[Caroline Flint.]
Amendment proposed to the proposed amendment: (a), in line 2, after 'person', insert 'in the United Kingdom'.—[Mr. Heath.]
Amendment No. 18, as amended, agreed to.
Schedule 4
Amendments made: No. 19, in page 67, line 18, leave out from 'means' to end of line 21 and insert
'the Framework Decision on the execution in the European Union of orders freezing property or evidence adopted by the Council of the European Union on 22nd July 2003'.
No. 20, in page 67, line 23, leave out 'a prescribed provision' and insert 'Article 3(2)'.
No. 21, in page 67, line 34, leave out 'a prescribed document' and insert 'the form of certificate'.
No. 22, in page 71, line 19, leave out from 'means' to end of line 22 and insert
'the Framework Decision on the execution in the European Union of orders freezing property or evidence adopted by the Council of the European on 22nd July 2003'.
No. 23, in page 71, line 24, leave out 'a prescribed provision' and insert 'Article 3(2)'.
No. 24, in page 71, line 35, leave out 'a prescribed document' and insert 'the form of certificate'.
No. 25, in page 75, line 13, leave out from 'means' to end of line 16 and insert
'the Framework Decision on the execution in the European Union of orders freezing property or evidence adopted by the Council of the European Union on 22nd July 2003'.
No. 26, in page 75, line 18, leave out 'a prescribed provision' and insert 'Article 3(2)'.
No. 27, in page 75, line 29, leave out 'a prescribed document' and insert 'the form of certificate'.—[Caroline Flint.]
Schedule 5
Amendments made: No. 28, in page 80, line 17, at end insert—
'The Criminal Justice Act 1988 (c. 33)
12A The Criminal Justice Act 1988 as follows.
12B In section 24 (business etc.documents), in subsection (4), for "section 3 of the Criminal Justice (International Cooperation) Act 1990" there is substituted "section 7 of the Crime (International Cooperation) Act 2003".
12C In section 26 (statements in documents that appear to have been prepared for the purposes of criminal proceedings or investigations), for "section 3 of the Criminal Justice (International Cooperation) Act 1990" there is substituted "section 7 of the Crime (International Cooperation) Act 2003".
12D In paragraph 6 of Schedule 13 (evidence before courtsmartial etc.)—
(a) in subparagraph (1)—
(i) for "section 3 of the Criminal Justice (International Cooperation) Act 1990" there is substituted "section 7 of the Crime (International Cooperation) Act 2003", and
(ii) for "letters of request or corresponding documents" there is substituted "requests for assistance in obtaining outside the United Kingdom evidence", and
(b) in subparagraph (4), for "letters of request or corresponding documents" there is substituted "requests for assistance in obtaining evidence".'.
No. 29, in page 83, line 19, at end insert—
- 'The Criminal Justice (Evidence, Etc.) (Northern Ireland)Order 1988 (S.I. 1988/1847 (N.I. 17))
33A The Criminal Justice (Evidence, Etc.) (Northern Ireland) Order 1988 is amended as follows.
33B In Article 4 (business etc. documents), in paragraph (4), for "section 3 of the Criminal Justice (International Cooperation) Act 1990" there is substituted "section 7 of the Crime (International Cooperation) Act 2003".
33C In Article 6 (statements in documents that appear to have been prepared for the purposes of criminal proceedings or investigation), for "section 3 of the Criminal Justice (International Cooperation) Act 1990" there is substituted "section 7 of the Crime (International Cooperation) Act 2003".'.
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