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Baroness Anelay of St Johns: My Lords, I am grateful to the Minister for his helpful response to my probing amendment. He has expanded helpfully on the circumstances in which hot surveillance may be necessary, when we cannot get our own security teams in place. He pointed out that the Government do not want to put all the conditions of Schengen on the face of the Bill. Neither do I. There are some that I accept would not properly appear on the face of the Bill, but which the Government still need to explain properly at the Dispatch Box. The Minister has done that admirably. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 74:

The noble Baroness said: My Lords, the clause inserts new Section 76A into the Regulation of Investigatory Powers Act 2000. It allows foreign police or customs officers to conduct the hot surveillance operations that we have been talking about. They can do that in respect of persons who are suspected of having committed a relevant crime. That is defined in subsection (3) as one that,

    "(a) falls within Article 40(7) of the Schengen Convention; or

    (b) is crime for the purposes of any other international agreement to which the United Kingdom is a party and which is specified for the purposes of this section in an order made by the Secretary of State with the consent of the Scottish Ministers".

This probing amendment relates to the second of those definitions and seeks to limit such crimes to those that are offences under UK law. The amendment

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was debated in Grand Committee on 29th January, when the noble Lord, Lord Filkin, attempted to reassure us that any future international agreements and any orders made by the Secretary of State would be subject to parliamentary scrutiny. He also said:

    "Subsection (3)(b) gives the Government flexibility should we wish to join a new international agreement that included provisions on cross-border surveillance. It is likely that any such agreement would take a similar approach to Schengen and refer to generic offences".—[Official Report, 29/1/03; col. GC 210.]

The Minister did not take up my invitation at that point to give specific examples of offences that are not crimes under UK law that might be investigated in the UK as a result of the inclusion of this provision in the Bill. With the Extradition Bill coming down the tracks at us at a rate of noughts—I am grateful to the noble Lord for saying that he will hold a briefing meeting on it in just over a week; that is always helpful—I have to ask what will be the effect of this provision. What sorts of generic crimes might we be dealing with here? Will the effect of this provision be to enable foreign police officers to conduct surveillance when in the UK in respect of acts that are not criminal under UK law? I beg to move.

Lord Carlisle of Bucklow: My Lords, I have put my name to this amendment. If foreign police officers are to carry out operations in this country, I believe that it must be in relation to a matter that is a crime within this country. I know that that is the Government's intention, as stated by the Minister in the debate in Committee. I also understood him to say that all crimes mentioned in the Schengen agreement are in fact crimes in this country. However, as my noble friend Lady Anelay pointed out, there is the possibility that, because of the power which the Bill gives the Secretary of State to extend the agreements by order, the police force of another country could have power to carry out surveillance of someone in this country, even if only for a short time, for an act that was not a crime in this country. That seems wrong in principle, and, unless there is any objection, we should say so in the Bill.

Lord Renton: My Lords, I, too, support Amendment No. 74. However, I am rather puzzled by the drafting of Amendment No. 87, which the Minister undoubtedly has tabled with good intention. I think that I shall have to read the beginning of the amendment to make the point. It states:

    "The condition in this subsection is satisfied if, immediately after the officer enters the United Kingdom . . . he notifies a person designated by the Director General of the National Criminal Intelligence Service of that fact".

The expression "of that fact" is one that does not often occur in legislation. Indeed, I find it a little difficult to decide to which "fact" the amendment refers. Is it the officer entering the United Kingdom? Is it the notification by the person designated by the Director General of the National Criminal Intelligence Service? Which of those two factors is the fact? Or is it another fact already referred to in the Bill?

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5.45 p.m.

Lord Stoddart of Swindon: My Lords, this amendment is about the surveillance of those who are perhaps being surveilled because of an offence in another country that is not an offence in this country. It is a very important point. I know that the Extradition Bill contains a list of 32 offences in relation to the European arrest warrant, but the point is still extremely worrying. We have heard about stealth taxes, but it looks now as though we might be on the road to stealth criminal offences—which is even more serious than stealth taxes.

I have just been thinking about this, and I am intrigued by my own thoughts. We may, of course, have a situation in which a foreign police officer comes over here for five hours for a surveillance operation and says, "This is the time when we have to nab this chap". So he calls in a British policeman. He says to the British policeman, "I want you to arrest this fellow because he has committed such and such an offence". The British policeman, sharp as ever, says, "Yes, but I am afraid that that is not an offence in this country. How can I arrest him for an offence that I do not believe is an offence in this country?" It is intriguing to think of the position in which that will put British policemen. I should like the Minister to think about that for a moment, and perhaps to let me know how this potential difficulty will be resolved.

Baroness Carnegy of Lour: My Lords, it is not only British policemen who may be surprised about the acts for which they have to arrest people. The public will be surprised if they find either a foreign policeman or one of their own police arresting someone for an offence that is not an offence in this country. So that the public may have confidence in this whole procedure, it should be possible to tell them that the offences for which people can be arrested are in fact crimes in this country. If the Minister can tell us that the arrangements in the Bill will not apply, because of an agreement, to offences that this country has not made offences, then, fair enough, Amendment No. 74 may not be necessary. If he cannot do that, I think that the public may be very anxious, as may be the police.

Lord Clinton-Davis: My Lords, I am confused by the remarks that have just been made, particularly those of the noble Baroness, Lady Carnegy. In my view, if the Government enter into an international agreement to which the United Kingdom is a party, that is that—the act is a crime. Is not that agreement binding on all our citizens?

Lord Filkin: My Lords, before responding to the important issues raised in this amendment, I should like to thank the noble Lord, Lord Renton, for notice of the point that he will raise in the next debate. That was most helpful to us, and we shall come to those points shortly.

This amendment seeks to restrict any subsequent extension of these arrangements to agreements other than the Schengen convention. It will mean that if we wanted to enable this type of surveillance to be carried

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out in respect of another international agreement besides the Schengen convention, we could do so only if the crimes specified within that further agreement were also crimes in the UK. I am aware from the debate in Grand Committee that there is some concern about this subsection, but, in the Government's view, it strikes the right balance between the need to allow for any new agreement to be brought into effect and proper parliamentary oversight.

As I explained in Committee, subsection (3)(b) as drafted gives the Government the ability, should we wish—I emphasise the words "should we wish"—to join a new international agreement that included provisions on cross-border surveillance. In Committee, the noble Baroness, Lady Anelay, asked what kind of offences that were not crimes in the UK might be investigated by foreign officers on our soil as a result of these provisions. At first glance, that seems a valid and challenging question. I think the answer is that the sort of crimes covered by any future agreement would be very similar to those covered by Article 40 of Schengen. They would be serious crimes. We would countenance using the provisions of Clause 82 of the Bill only in relation to serious crimes. We would not, as a matter of policy, agree to that kind of arrangement in respect of petty offences.

Lord Stoddart of Swindon: My Lords—

Lord Filkin: My Lords, if the noble Lord, Lord Stoddart, will give me a minute, I shall deal with his point.

Lord Stoddart of Swindon: My Lords, I am most obliged to the noble Lord for giving way. He said that only serious offences would be caught by the provision we are discussing. But, for example, in Germany there is an offence of holocaust denial which carries a possible prison sentence of two years. That is not a crime in this country. What would be the position if someone were pursued and subjected to surveillance in respect of that kind of crime? Or have I got the matter all wrong?

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