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The noble Baroness said: In moving Amendment No. 150, I shall also speak to Amendment No. 151, both of which are in my name and that of the noble Lord, Lord Dholakia. Both amendments address the issue of exemption from civil liability which is afforded under the proposed new Section 76A(5). Subsection (5) states:
I have difficulties with the use of the word "incidental" and with how it is defined. The word seems to be applied almost casually. I have therefore knocked out the word and said that the action should be "a necessary element of" the surveillance. Without the change, citizens of this country would not have protection from activities that result from the officer's carelessness rather than from the surveillance. The officer could, for example, come from France and not be particularly accustomed to driving on the left-hand side of the road. He might drive on the right-hand side of the road and knock someone down. Would the injured person therefore have no redress? I beg to move.
Lord Stoddart of Swindon: This simply cannot be right, can it? As the noble Baroness, Lady Anelay, said, a police or customs officer could come over here, drive on the wrong side of the road and kill someone, but not bear any civil liability. That simply cannot be right. I ask the noble Lord, Lord Bassam, to assure us that, if that happens, even if the individual officer has no civil liability, it will be possible for someone who
Lord Carlisle of Bucklow: If it does mean what the noble Lord, Lord Stoddart, says, surely the provision gives to the officer coming from abroad far more immunity from civil liability than would apply to an officer in this country. There is the well-known casethe name escapes me for the moment, but I am sure that the noble Lord, Lord Goodhart, will remember it; I think that it is Incein which an officer knocked over someone at a crossroad when going to answer a 999 emergency call. The case gave rise to a claim for damages and had a lot to do with the Criminal Injuries Compensation Authority. I cannot see why we should enable officers from abroad to avoid liability where their activity, although incidental to a surveillance, is nevertheless negligent.
For UK officers carrying out surveillance, the most obvious example of incidental conduct is trespass. For example, an undercover officer might follow the suspect into a shopping centre or supermarket. As the officer would have no intention of doing any shopping, he might be committing trespass.
Currently, the Regulation of Investigatory Powers Act would give him or her protection from any civil trespass claim that might arise. Consistent with RIPA in wording and spirit, new Section 76A has two elements: the authorised conductthe actual carrying out of the surveillanceis made lawful for all purposes; and officers are protected from civil liability for any incidental conducthence the phraseologyby virtue of subsection (5), the subject of this amendment.
I should stress that the order to be made under new Section 76A(4) will provide that foreign officers conducting surveillance under new Section 76A should not enter private homes and places not accessible to the public. So incidental trespass should arise only in very limited circumstances. But it is a possibility, which is why we need to make provision for it. There may also be other cases where foreign officers incur civil liability for conduct incidental to their lawful surveillance.
As we have said before, 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. Article 40.3 of the Schengen convention sets out arrangements on civil liabilities, so we can expect reciprocal arrangements for our officers operating abroad in broadly similar circumstances.
As for vehicles, we consider that "incidental" will not include negligent or reckless conduct by foreign officers who are conducting surveillance. "Incidental" means acts that are required by the surveillance. We do not consider that it would prevent claims for injuries caused by car accidents involving foreign officers operating here. So there is redress in those circumstances.
Lord Monson: Does the Minister agree that nothing he has said detracts from the merits of Amendment No. 151? The alleged trespass of officers going into a supermarket would be "a necessary element of" their entering the supermarket. Amendment No. 151 tightens up the provision and provides extra safeguards. I see no reason for the Government resisting that particular amendment.
Lord Bassam of Brighton: I have set out the position as we see it, and it is important to understand why we have used that particular wording. I think that my comments in response to the specific point and example given by the noble Baroness, Lady Anelay, make it clear that there would be redress. Those circumstances are covered by Clause 85. I think that I have answered the point. However, the point does not necessarily relate to this clause and the way in which it is worded.
Lord Stoddart of Swindon: In order that we can get it on record, the Minister has said that there will be redress, but redress against whom or against which authority? That is the important thing. Where do people go for redress?
Baroness Anelay of St Johns: That was helpful; I think that there is a brief reference to it in the Explanatory Notes, but it is very helpful to have it on the record. I shall look carefully at the helpful response from the Minister. However, I still have concerns about use of the word "incidental" when it is saying that any conduct which is incidental to the surveillance may let someone escape liability. The Minister was trying to be helpful by saying that negligent or reckless conduct would not receive the exemption. There could, of course, be lower tests than "negligent" or "reckless" that could still cause damage. I think that we need to consider that. However, it is a complex matter. At this stage of the evening, I beg leave to withdraw the amendment.
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