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Baroness Anelay of St Johns: My Lords, I have no intention of pressing my amendment. I simply want to welcome the government amendment and the commitment of the Minister to consider the drafting again before Third Reading. I would not insist on that, but I am always grateful when the views of my noble friend Lord Renton on drafting are taken to heart by the Government. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 76 not moved.]

The Deputy Speaker (Baroness Gould of Potternewton): My Lords, before calling Amendment No. 77, I have to inform noble Lords that if it is agreed to I shall not be able to call Amendments Nos. 78 to 80 for reasons of pre-emption.

[Amendment No. 77 not moved.]

Lord Filkin moved Amendment No. 78:

The noble Lord said: My Lords, Amendment No. 84 is aimed at achieving the same effect as the government amendments, which is to ensure that the officer referred to in subsection (5) dealing with civil liability is the one carrying out "relevant surveillance". Amendments Nos. 88 and 90 seek to achieve the same clarity in subsections (6) and (7).

The Government have listened again to the arguments in Grand Committee and tabled amendments to make it clear that the officer referred to in subsection (5) is the one carrying out "relevant surveillance". We consider that the government amendments make the position in the subsection sufficiently clear. In addition, we consider that references to "the officer" in the other subsections are obviously a reference to the foreign officer authorised by the new section. Accordingly, I would suggest that the further amendments proposed by the Opposition are unnecessary. In the circumstances, I hope that the noble Baroness will not press her amendments. I beg to move.

Baroness Anelay of St Johns: My Lords, I shall speak to Amendments Nos. 84, 88 and 90, which are grouped with the government amendments. They aim simply to ask the Government to consider the drafting, as they are intended to clarify the clause itself.

As a result of the government amendments agreed to in Grand Committee, new Section 76A of the Regulation of Investigatory Powers Act 2000, inserted by Clause 82 of the Bill, refers to two types of officer.

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Those are a "foreign police or customs officer", defined in new Section 76A(9) of the 2000 Act, and a "United Kingdom officer", the definition of which is contained in the government amendment.

I fully accept that the government amendment goes a long way towards achieving a much better drafting of the clause. I have nothing against it. I am certainly as unhappy as my noble friend Lord Renton to add extra words to legislation. I always have his caveat in my ear when I try to do that. However, the words I suggest might assist clarity if the result of the Government's decision to amend the new section is to refer to two different types of officer. My amendments make it absolutely clear that the references to an officer in the relevant subsections are to a foreign police or customs officer, not to a United Kingdom officer.

It might be helpful if I also indicated to the Government and the House that I purposefully did not move my amendments in the preceding group. The Government will respond properly to them, and it would be otiose continually to say, "Yah boo, we got there first". I propose to say no more than one or two words when the Government deal with their Amendments Nos. 79 and 80, to point out issues to which we might want to come back on Third Reading if they have not been resolved before then.

My amendments in this group are merely on minor drafting matters, and I hope that the Government will say that they will look at them again before Third Reading.

Lord Renton: My Lords, I support my noble friend on the amendment. We need to bear in mind that, under the law that has been our law for generations, our own police do not normally carry weapons, but there are exceptional circumstances in which they are entitled to do so. The amendment points out very well that foreign police must be subject to the same conditions if they come to this country. Subsection (4B), proposed in the amendment, makes it abundantly plain, stating:

    "The permission to carry a firearm referred to in subsection (4A) may only be given in circumstances in which it would be given to a constable acting under the law of the United Kingdom".

We have to ensure that all the police operating in this country, whether our own or police who have come in under special circumstances, are subject to the same law on that important matter. Therefore, I hope that the Government will feel that the amendment is right in principle and clear in its expression.

Lord Filkin: My Lords, I believe that the noble Lord is inviting me to speak to the amendment that the noble Baroness, Lady Anelay, did not move. It is perhaps not right to go into that in detail but I will say that the position is explicitly clear. There is no legal need for that provision. I shall deal with that separately with the noble Lord, Lord Renton, rather than go into detail now.

The noble Baroness, Lady Anelay, invited me to consider further. I thought that what I had said set out our reasons why we thought that the Bill, as amended

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by the Government in response to her representations in Committee, was adequate. I do not want to be pig headed, but nor do I want to raise her hopes unduly. We always consider her words carefully and always respond if we believe that there is a need to do so.

On Question, amendment agreed to.

Lord Filkin moved Amendment No. 79:

    Page 55, line 42, after "if" insert "—

(a) the condition mentioned in subsection (5A) is satisfied;
(b) the officer carries out the surveillance only in places to which members of the public have or are permitted to have access, whether on payment or otherwise; and"

The noble Lord said: My Lords, I beg to move.

Baroness Anelay of St Johns: My Lords, I said earlier that I wanted to comment briefly on Amendment No. 79 rather than to move and speak at length to Amendment No. 76.

I welcome the fact that the Government changed their mind with regard to putting the condition in the Bill that those carrying out hot surveillance should not enter private property. On this occasion, the Government's drafting is far superior to mine. On the previous amendment, the Government said that they did not want to be boastful but they can be here. They made it perfectly clear that the private property referred to covers every eventuality, including places to which one pays for entry. That was not covered by my amendment.

The Minister may be aware that the Government have not fully taken on board the request I made in Committee because I also wanted to ensure that the person carrying out hot surveillance could not challenge a person or arrest them. I accept the Government's view on arrest as expressed in their letter to me but I am still concerned that there could be a temptation for a person who is carrying out hot surveillance to challenge someone in this country.

I wholeheartedly welcome the government amendment, which is a huge advance on what we had in Committee. I may need to return at Third Reading to the issue of challenge. I should like to talk to the Minister between now and Third Reading to establish whether he can give me further information about challenge, which would obviate the need to return to the issue.

Lord Goodhart: My Lords, I rise to break my hitherto Trappist silence in this debate to say that we on these Benches also strongly welcome the government amendment, which will include in the Bill the requirement that a foreign officer carrying out surveillance cannot go into a place to which the public do not have access. I agree with what the noble Baroness, Lady Anelay, said about challenging. "Challenge" is not a concept that is recognised, so far as I know, by English law; it is presumably a term of art that arises in relation to procedures that are followed in some, if not all, mainland European countries. If the Minister is able to tell us, I should be

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interested to know what the concept of challenge involves. We, too, may feel that it is appropriate that that should be included in the Bill; however, that cannot be decided until we know more about it.

Baroness Carnegy of Lour: My Lords, this concession by the Government is very important because of the public perception of what will go on should someone be pursued in their midst. It will be a great help if they know that the person being pursued cannot go anywhere where they cannot go; that will give the public confidence. It will also give the public confidence to know that a foreign policeman will not be doing any challenging—whatever explanation the Minister has for that word—in their midst. These matters are very important and the assurances that it will be possible to give to the public about the Bill will very much repay the trouble that the Government are taking in this regard. It may appear not to matter very much until the time comes, but then it will matter. The public must have confidence in their legislation.

6.15 p.m.

Lord Filkin: My Lords, I am very happy to respond to the invitation from the noble Baroness, Lady Anelay, to discuss with her the issue of challenge. I should not go into more detail here and now. The House would hold me to be out of order in responding to an amendment that had not been moved. I should also be pleased to find a way of sharing those considerations with the noble Lord, Lord Goodhart.

On Amendment No. 76, it will be a challenge to respond to the challenge of trying to define "challenge" in ways that put the concern of the noble Baroness, Lady Carnegy, beyond doubt; that is, that there is no risk to the public as a consequence. However, that is for another time.

On Amendment No. 79, as the House knows, in the case of limitations on entering private homes or places, the Government have accepted the arguments for placing conditions in the Bill. Our amendment will give effect to that.

On Question, amendment agreed to.

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