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Baroness Carnegy of Lour: I thank the Minister for that explanation. I understand that paragraphs (d) and (e) relate to Scotland only and that the term "that group" refers to the Operational and Intelligence Group of the Scottish Drug Enforcement Agency. However, I suggest that that drafting is not clear. The term "that group" is difficult to understand in this context. I suggest that the reference to the Operational and Intelligence Group is repeated in paragraph (e) to make the position clear. It is not clear that paragraphs (d) and (e) are linked. I suspected that they were linked when I first read the amendment but the drafting is not clear.

Lord Renton: It might be helpful if I intervene now. I refer to the comments of the noble Lord, Lord Dholakia. I have two points to make. The Explanatory Notes do not form part of the Bill and are not enforceable in law. They can in unusual circumstances be used for interpretation but when that happens in court counsel must bear in mind that they are not part of the Bill. In any event, the lengthy explanation of Clause 83 refers to the clause as it is drafted at present and without the additional definition that the noble Lord, Lord Filkin, is asking us to accept.

I turn to the more general matter. I listened carefully to what the noble Lord, Lord Filkin, said in justification but I must confess that I still have the serious doubts that I expressed before he even moved the amendment. For that reason, and in order to secure perfect drafting rather than this inadequate

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form of drafting, it would be better not to ask us to accept the insertion of the measure in the Bill now. The noble Lord should reconsider the matter between now and Report and table another, more credibly drafted amendment. It would be in the public interest to do so.

Lord Dholakia: I accept what the noble Lord, Lord Renton, said. The Explanatory Notes are provided to assist us but they do not form part of the Bill.

Lord Carlisle of Bucklow: Am I right in thinking that, in view of government Amendment No. 139B, the Minister is saying that Amendment No. 154A is a consequential amendment because the term "United Kingdom officer" was not included in Clause 83 but is now included?

Baroness Anelay of St Johns: Following what my noble friend Lord Renton said, I do not think that accepting the amendment in its present form tackles the confusion that arises in paragraphs (d) and (e) to which my noble friend Lady Carnegy referred. It certainly would be helpful to have a better drafted amendment tabled on Report to make it absolutely clear that paragraphs (d) and (e) refer specifically to Scotland as the Bill will be used widely and, we hope, for many years to come. I hope that the Minister will bear that matter in mind.

Lord Filkin: The noble Baroness, Lady Carnegy, is absolutely right to say that paragraphs (d) and (e) relate to Scotland only. She invited us to consider whether the drafting of the amendment could be improved. I am happy to reflect on whether it could be improved given the nature of the discussion that has occurred.

I apologise to the noble Lord, Lord Dholakia, for not referring to the point he made but, as he indicated, he is aware that the Explanatory Notes do not form part of the Bill. The comment of the noble Lord, Lord Carlisle, was correct. The noble Lord, Lord Renton, asked us not to insert the amendment as currently drafted but to table a further, more credibly drafted amendment. As I indicated earlier, I consider that if we insert the amendment at this point a consolidated Bill would be printed on Report to show the whole picture. That would give noble Lords another opportunity to consider the measure. However, I am well aware of the conventions of Grand Committee. Unless that proposal finds unanimous support, I have no power whatsoever to insist on my will in that regard. I am in the hands of the Committee. Members of the Committee know my views and it is up to them to decide how they wish to proceed in the matter.

Baroness Anelay of St Johns: It might be helpful if I make it clear that I should be unhappy to proceed with the amendment as presently drafted. I made an error of judgment on a previous occasion when the noble and learned Lord, Lord Goldsmith, proposed an amendment which the Committee considered was not well drafted. In fact, there were a couple of amendments in that category. One of them related purely to Scotland. My noble friend Lady Carnegy examined it and said that it seemed to be absolutely

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meaningless. Another related to England where I had the same difficulty. At that stage we accepted the relevant amendment. On reflection I consider that I made the wrong decision. I should have invited the noble and learned Lord, Lord Goldsmith, to redraft the amendment. Therefore, I should be grateful if the Minister would consider redrafting the amendment we are discussing before Report and not press it today.

Lord Filkin: I am happy to accede to that request for the reasons that have been given by other Members of the Committee. I shall not press the amendment. I shall reflect on what has been said and consider whether the phraseology can be improved and whether an appropriate amendment can be tabled on Report.

Amendment, by leave, withdrawn.

On Question, Whether Clause 83, as amended, shall stand part of the Bill?

Baroness Anelay of St Johns: I can now speak more briefly on this matter than I thought would be the case. My noble friend Lord Carlisle manages to mop up just about every single matter in a clause that has not yet been referred to. However, that is not my approach on this occasion. I oppose Clause 83 as it is currently drafted. If we were discussing this matter on the Floor of the House, I should have considerable difficulty in allowing the clause to be accepted as it is currently drafted. Substantial issues have not yet been resolved. I hope that we shall be able to resolve them on Report. I refer to the freedom of a foreign officer to bring arms into this country. At the moment it is not stated on the face of the Bill that he may not do so, although we are told that the Schengen handbook will cover that matter. However, I still feel uneasy about that.

I also believe that there should be provisions on the face of the Bill to prevent a foreign officer entering private property or challenging or arresting a person. I have significant worries about the detail of issues of civil liability. It is not a party political matter but I have significant problems with the drafting in that regard. I signalled my intention to oppose Clause 83 to let the Government know from where the salvo will come on Report.

Lord Dholakia: We have added our names to the amendment. We have exactly the same concerns as the noble Baroness, Lady Anelay. We hope that this matter will be further discussed on Report. At this stage we are concerned about a number of issues that have been highlighted with regard to Clause 83.

Lord Filkin: The Committee will be sad to hear that I shall not repeat all the arguments that I made previously. The debate has been thoughtful, intelligent and helpful to the Government. I sense that there is general recognition of the need for a provision of the kind we are discussing in the very limited circumstances that we have mentioned. I believe that that has been recognised by most Members of the Committee. We are not arguing about the principle involved but rather discussing how to get the detail right. We need to ensure that people who are under

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suspicion of having committed serious terrorist or other criminal offences do not escape, while at the same time ensuring that we do not ignore the other concerns that the Committee has mentioned. I thank the noble Baroness, Lady Anelay, for so clearly signposting her concerns—not that we would not have studied Hansard in any event. We shall reflect on the issues and see whether there is any scope for closing the difference between us before Report.

Clause 83, as amended, agreed to.

Clause 84 [Assaults on foreign officers]:

Baroness Anelay of St Johns moved Amendment No. 155:

    Page 56, line 20, leave out "under" and insert "in conformity with"

The noble Baroness said: Clause 84 provides that an assault on a foreign officer carrying out "hot" surveillance under New Section 76A of the Regulation of Investigatory Powers Act 2000 is deemed to be an assault on a constable for the purposes of UK domestic law.

My amendment seeks to replace the word "under" with the words "in conformity with". It seeks to probe the exact circumstances in which a foreign police or Customs officer would effectively be deemed to be a UK police officer for the purposes of the offence. What if the foreign officer had exceeded the five-hour limit or had otherwise broken the conditions in New Section 76A? Would he still be deemed to be a police officer if he were assaulted in such circumstances? Will the foreign officer have to identify himself as a foreign Customs or police officer acting in accordance with New Section 76A for the provision to apply? If not, how are people supposed to know that that is the case?

I am aware that in the case of common assault one can be prosecuted for assault regardless of the position one holds. However, if one is brought before a court for assaulting a police officer, that offence—quite rightly in my view—carries a higher penalty and, indeed, a higher starting point with regard to sentencing guidelines given by the Judicial Studies Board and the Magistrates' Association. Foreign officers who carry out "hot" surveillance should be given extra protection, but how will ordinary members of the public not involved in the surveillance know who they are? I beg to move.

4.30 p.m.

Lord Bassam of Brighton: We wondered what the amendment intended to probe, and I am grateful to the noble Baroness for putting the amendment as she has.

Our understanding of the clause is the same. The noble Baroness rightly referred to the way in which the legislation will apply to foreign officers. In practice, foreign officers conducting surveillance will not want to draw attention to themselves, and they will very rarely find themselves in a situation in which they are challenged, assaulted or obstructed. None the less, as Article 42 of the Schengen Convention says, it is right that they should be protected by law, and there is agreement on that throughout the Committee. Our

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officers will benefit from that because, when they conduct similar surveillance exercises in the EU, they will have the protection that the provision affords.

Section 104 of the Police Reform Act 2002 already provides the same rights for foreign officers who are members of a joint investigation team. It will cover the foreign surveillance officers from the time when the surveillance is taken over by UK officers. Section 104 covers foreign officers taking part in pre-planned joint surveillance operations.

The point on which the noble Baroness rightly sought clarification was what would happen if the five-hour limit was exceeded. In that case, it would no longer fall under new Section 76A. The people involved would not be complying with that legislation because they would no longer fall within the terms of its protection. I hope that that clarifies the point.

If the officers were to be assaulted by someone, that would still be an offence even if that person was unaware that they were police officers. As for surveillance, the officers need only withhold their identity from the target. If challenged by other members of the public, they could identify themselves as foreign officers engaged in authorised activity, but it would be important for them to do exactly that.

I hope that that answers the points on which the noble Baroness invited a response. If not, I shall provide further clarification.

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