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Lord Filkin: My Lords, as I signalled, I assure the noble Lord, Lord Stoddart, that I shall deal with that point shortly.

As I said, we would seek to use the powers in Clause 82 only in respect of serious crimes. The noble Baroness, Lady Anelay, may press me further by saying that serious crimes will already be offences in the UK. She may ask, therefore, what is the mischief in her amendment. I suspect that she knows the answer to that question, which is the following. The reason for having this sort of flexibility is, of course, that we prefer to take a generic approach in legislation to one that depends on having harmonisation of offences between countries. In other words, we do not think that having an exact identity of an offence is an appropriate way of considering these issues. I am grateful for the general support from the Benches opposite for that approach. If one looks at the offences

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to which Article 40.2 of Schengen applies, it will be seen that they are widely drafted but clearly refer to very serious matters.

We expect that any future agreement would take a similar approach. I do not anticipate a situation whereby foreign officers who suspect a person of committing, for instance, an offence of xenophobia, or of holocaust denial, as the noble Lord, Lord Stoddart, signalled, would be allowed to conduct this sort of surveillance in the United Kingdom. Those would not be seen as serious offences as a matter of public policy in terms of the United Kingdom's approach. I should also point out that the foreign officers would not conduct investigations in this country, as they would not, of course, have any executive powers. It would simply be a question of surveillance.

An example of the type of crimes that might be considered in addition to those currently covered by Article 40 and discussed in the context of the Schengen convention are organised fraud, smuggling of illegal immigrants, laundering of the proceeds from organised crime, and illicit trafficking in nuclear and radioactive substances. All of those are self-evidently serious crimes. To expect to have an exact identity—in other words, explicit dual criminality—is, in our view, and, I believe, in the view of the Opposition Benches, a flawed approach because, provided one has the generic offence, one is more certain to catch the mischief that one seeks to catch. I emphasise yet again that we are talking about serious crimes in this regard. Any future agreement containing provisions of this nature would also be subject to parliamentary oversight before it could be ratified.

I believe that I have said enough to explain the Government's position. I hope that I have answered the point made by the noble Baroness, Lady Carnegy of Lour. In essence, we are talking about serious crimes and a measure which, in effect, provides flexibility to ensure that one does not allow someone to escape because there is not an exact identity of offence, as that person would be covered by a generic offence. I hope that I have made the Government's position clear.

Baroness Anelay of St Johns: My Lords, I am grateful to the Minister for providing important clarification with regard to the part of the Bill we are discussing. I am grateful for the support of my noble friends Lord Carlisle, Lord Renton and Lady Carnegy. I am also grateful for the helpful remarks of the noble Lord, Lord Stoddart.

I sympathised with the noble Lord, Lord Clinton-Davis, when he said that he was becoming confused. The problem with much of the Bill, particularly Clause 82, is that one is trying to follow which parts of the convention and protocols the Government wish to include on the face of the Bill and which parts they prefer to leave out to achieve flexibility, as the Minister repeatedly tells us. We recognise that it is important for the Government to retain some flexibility, although not perhaps too much, while maintaining parliamentary scrutiny when they sign up to agreements with other countries in the future.

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My noble friend Lady Carnegy made the very important point that however confusing the background to the measures may be, the provisions on the face of the Bill must be clear so that the public and the police can be confident that the provisions of the Bill will be properly put into effect. My noble friend Lord Carlisle also made an important point when he said that we must ensure that the Bill is future proof. That is essential. At the same time we must ensure that we maintain parliamentary scrutiny.

The Minister gave me sufficient assurance to enable me not to have to bring the measure back at Third Reading. At first, I thought that I would have to do that. I shall read his comments carefully in Hansard before I say once and for all that I shall not bring the measure back, but at present I consider it very unlikely. The Minister made some helpful comments with regard to generic offences. His comments with regard to xenophobia and holocaust denial took us much further than our discussion in Grand Committee. With those words, which I hope are encouraging from the Government's point of view, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Anelay of St Johns moved Amendment No. 75:

    Page 55, line 39, at end insert—

"( ) A foreign police or customs officer carrying out relevant surveillance in the United Kingdom under this section shall ensure that such persons as may be designated by order made by the Secretary of State are immediately informed of the fact that the United Kingdom's border has been crossed."

The noble Baroness said: My Lords, in moving Amendment No. 75, I wish to speak also to government Amendment No. 87. When discussing the previous group of amendments, I was intrigued that my noble friend Lord Renton, who is an expert on drafting matters, referred to the words "of that fact" in government Amendment No. 87. He made an interesting and important point. I look forward to hearing the Government's response.

Amendment No. 75, which I shall not press, was tabled in order to continue discussion on the arguments I put in Grand Committee. I was concerned about the issue of notification by the police or customs officer who enters the UK. I wished to see on the face of the Bill the requirement that the notification should take place immediately the UK border had been crossed. That is, indeed, a condition of Article 40.2 of the Schengen convention, to which the Minister referred earlier. In Committee, the Government maintained that it would be sufficient for the requirement of immediate notification to be in an order rather than on the face of the Bill. I was not happy with that. I welcome the fact that the Government have changed their mind on the matter and have agreed that that protection should be on the face of the Bill.

When the Minister speaks to his amendment, I should be grateful if he would make plain the definition of that part of the amendment that states,

    "after the officer enters the United Kingdom".

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Do the Government still intend that that should mean when the person physically sets foot on UK soil rather then when he enters UK territorial waters? That will have a bearing on our debates on later amendments. I beg to move.

Lord Renton: My Lords, I owe an apology to the noble Lord, Lord Filkin, for referring too soon to Amendment No. 87. It is grouped with Amendment No. 75, which my noble friend Lady Anelay has just moved. With his usual courtesy, he did not criticise me for being premature and was kind enough merely to take note of the fact that I had made the point.

Looking back on the matter again, I still think that the expression "of that fact" on the last line of page 3 of the Marshalled List creates some uncertainty. It would help if the noble Lord could explain what it means and to what it refers. Even if he has an explanation, between now and Third Reading he should find some clearer way to deal with the point that he intends to make.

6 p.m.

Lord Filkin: My Lords, as said by the noble Baroness, Lady Anelay, Amendment No. 87 seeks to introduce to the Bill a condition imposed on cross-border surveillance in Article 40.2(a) of the Schengen convention, so that police and customs officers contact the relevant UK authority immediately on crossing the border. I acknowledge that the amendment is a response to the powerful representations that she and other noble Lords made in our discussions.

The amendment reflects the condition set out in Article 40.2(a) of the Schengen convention, which is that foreign police and customs officers conducting such surveillance must contact the relevant authority in the territory they enter the moment that they cross the border. If they do not, they are breaching the conditions of Schengen. That is not in anyone's interests, as the fundamental principle of Schengen co-operation is respect for national law and for any conditions attached to cross-border work. The experience of the Schengen states is that the conditions are respected. The Government had intended to add the condition in an order, but we listened to the representations made and were happy to accede to those requests.

The noble Baroness asked about when one gets to the United Kingdom. Those words should be given their natural common-sense meaning. Accordingly, we consider that entering the UK is when the foreign officer arrives at a port or airport. For the Eurostar, it is when the train leaves the tunnel and enters Kent.

I shall deal with the courteous question and apology from the noble Lord, Lord Renton. No apology is required, first, because of who he is and the respect in which he is held in the House, and secondly because it is extremely helpful to the Government to get advance warning of questions. Being more serious and turning to the specifics, the fact in question is the fact of entering the United Kingdom. I shall look again at the

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clause to see whether, on further testing and reflection, we think that it is as clear as it should be, particularly having heard the noble Lord's views. No doubt I shall give him an indication of our view before Third Reading, so that he is aware of our position on it.

Having in essence agreed to the representations made by the noble Baroness in Committee, I hope that there will be support for Amendment No. 87 and no need to press the alternative amendment.

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