Crime (International Co-operation) Bill
24. In our Third Report, we made various recommendations
about (a) procedures for obtaining customer information orders
and account monitoring orders, and (b) the control of cross-border
surveillance by police officers from other jurisdictions.
In each case, our purpose was to improve protection for the right
to respect for private life and the home under ECHR Article 8,
and the right to peaceful enjoyment of possessions under P1/1.
We also took issue with the Government's assertion that one could
rely on the law of other jurisdictions in Schengen states restricting
the powers of police officers on UK territory by reference to
the requirements of the ECHR.
25. The Government has responded in a letter dated
18 February 2003 to the Chair from Lord Filkin, Parliamentary
Under Secretary of State at the Home Office.
In relation to customer information orders and account monitoring
orders, the Government does not agree that our suggested amendments
would be necessary or (in the case of customer information orders)
practicable. We draw the correspondence on this point to the
attention of each House.
26. In relation to cross-border surveillance, and
the extent to which the UK should be able to rely on the law of
the jurisdiction from which an officer comes ensuring that the
officer will act compatibly with Convention rights, the Government
makes the following points
- all the Schengen states have incorporated the
ECHR into their domestic law;
- the UK assumes that its European partners in
practice act in accordance with their international obligations,
including the ECHR;
- it is extremely unlikely that any Schengen state
would derogate from the ECHR in respect of following, on public
highways or public transport, people suspected of a limited range
of serious criminal offences, and most cases will involve surveillance
of that kind;
- as the nature of the surveillance undertaken
in the UK will be substantially similar to that undertaken in
the state in which it originates, the Government takes the view
that the surveillance, if proportionate in the foreign jurisdiction,
would be proportionate in the UK;
- UK authorities, being contacted by the foreign
police officer, would be able to order the surveillance to cease;
- the Government takes the view that a foreign
officer undertaking surveillance in the UK would be a public authority
for the purposes of the Human Rights Act 1998, and would be subject
to legal obligations and liabilities accordingly.
27. This is a matter which is of pervasive importance
to the protection of human rights where EU Member States are implementing
EU law in co-operation with agencies from other Member States.
In relation to the protection of Convention rights in the United
Kingdom, we regard the last of the Government's points as being
particularly significant. We draw the Government's response
to the attention of each House.
28. We consider it to be important that the line
of accountability for actions of the foreign police officer should
be clear where cross-border action or co-operation is taking place.
In the case of this Bill, we note that a person who claims to
have been subject to unlawful surveillance in purported exercise
of the power to conduct cross-border surveillance would be entitled
to bring the matter before the Investigatory Powers Tribunal established
under the Regulation of Investigatory Powers Act 2000, and that
the Director General of the National Criminal Intelligence Service
would be liable to pay any damages awarded for unlawful surveillance
by the foreign police officer.
In our view, that sufficiently establishes a line of accountability
for the activities of foreign officers under the powers proposed
in the Bill.
29. The Government has also considered whether any
of the points outlined in the preceding paragraph as safeguards
for human rights, or other safeguards suggested previously by
the Government, could be placed on the face of the Bill, as we
suggested in our Third Report.
In the light of those suggestions, and of the debate in the House
of Lords in Grand Committee on the Bill, the Government proposed
to make two amendments
- first, a requirement that the foreign police
officer contact a person designated by the Director General of
the National Criminal Intelligence Service immediately on arrival
in the UK. This provision is now to be found in clause 82(6) of
the Bill as amended on Report in the House of Lords;
- secondly, a provision making it a condition of
the lawfulness of surveillance by a foreign officer that the officer
does not enter private homes or places inaccessible to the public
(now contained in clause 82(4)(b) of the Bill as amended on Report
in the House of Lords).
30. We welcome these amendments, which go a significant
way to meet to the Committee's concerns about cross-border surveillance.
18 Joint Committee on Human Rights, Third Report of
2002-03, Scrutiny of Bills: Further Progress Report, HL
Paper 41/HC 375, p 11, para 15 and pp 13-14, paras 23-24 Back
ibid., pp 12-13, paras 17-22 Back
Reproduced as an appendix to this Report, Ev 7-9 Back
New s. 76A(4) and (5) of the Regulation of Investigatory Powers
Act 2000, to be inserted by the Bill. See the letter from Lord
Filkin to the Chairman of the House of Lords Select Committee
on the Constitution, published in that Committee's First Report
for 2002-03, Crime (International Co-operation) Bill [HL],
HL Paper 27, p 5 Back
Third Report, pp 13-14, paras 23-24 Back