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Lord Clinton-Davis: My Lords, my noble friend will tell me if I am right, but if a foreign officer misbehaves there is provision by virtue of a complaint being made to the police force affecting the individual. So far as I know, that miscreant is not above the law. I believe profoundly that it is possible for the complaint to be registered. I would like to know whether I am right or wrong about that.
Lord Lucas: My Lords, I share my noble friend's concerns in this area. As we have seen recently in South Africa, it is possible for even the best informed foreign intelligence services to get things completely wrong and to cause considerable damage to an innocent citizen. Some of the things done in the course of directed and intrusive surveillance are capable of causing extreme damage. If one sets a bug in another's computer in order to tap into what is being done, if things go wrong one is capable of messing up the entire computer system and possibly causing a great deal of damage. If the person subjected to the search is innocent, it is right that he or she should have redress.
I hope that that matter is contained somewhere in the provisions of the Bill. I do not see it, having read the words I have been directed to by my noble friend. It is very important that a British citizen should be no worse off than he or she would be if it were a British constable making a mess of things than if it were a French constable doing so.
If there is civil damage caused by acts which are lawful because they fall within the activities allowed by the Bill, and a computer system is destroyed or a surveillance device sets fire to something valuable and uninsured, it is reasonable that there should be redress for that. I cannot see how Clause 84 in any way offers that kind of protection because it offers protection only for unlawful acts.
Lord Filkin: My Lords, I am grateful to the noble Baroness, Lady Anelay, for the intelligent grouping of these amendments so that we can have one complex discussion rather than a sequence of them. I also offer my condolences to her on her recent accident. The response will take some time, but it is better that I make it now in the hope that that might save us time later on. I hope the House will bear with me.
This is a complex area and it may be helpful if I initially explain why we need the provisions in Clause 82(5) and Clause 84 on civil liability for overseas officers and the different circumstances that they address. The purposes of these two clauses are very
different. The provisions in Clause 82(5) are aimed at ensuring that civil liability does not arise in relation to the conduct of foreign officers conducting emergency surveillance for up to five hours where that conduct would be incidental to the surveillance. By this we mean conduct that is inextricably associated with the surveillance to the extent that it is effectively unavoidable if the surveillance, which would have to be lawful, is to continue.An example would be if the officers needed to follow a suspect into a supermarket car park. As they would not be shopping they would be technically committing trespass, but they would have to do that to continue the surveillance. I must stress absolutely that "incidental conduct" as defined by RIPA covers an extremely narrow set of circumstances. It would not cover any conduct that was not essential to continue the surveillance.
Clause 84, by contrast, is intended to provide an avenue of redress for the victim of damage, other than damage arising from incidental conduct, caused during the emergency surveillance period. Clause 84 would apply, for example, where the foreign surveillance officer crashed a car into the perimeter wall of a factory thereby causing damage to the wall. That is a case of accidental damage. The victim of the damage would then need to know whom to approach for compensation. The clause provides that liability would fall on the director-general of the National Criminal Intelligence Service.
There is clearly concern as to whether there is an avenue for redress for those affected by incidental conduct. Neither Clause 84 nor Clause 82(5), which also deals with civil liabilities, provides for liability to be carried by the director-general of NCIS, or indeed anyone else, in relation to conduct by foreign officers which is simply incidental to lawful surveillance. This is no different from the existing situation for domestic officers under the Regulation of Investigatory Powers Act 2000. To make special provision for incidental conduct in these circumstances would mean treating foreign officers differently from domestic officers, which would not make sense.
But I do not believe that that should be a cause for concern. As I have explained before, incidental conduct covers an extremely narrow set of circumstances. It is difficult to imagine how it might give rise to a claim for damages. Any conduct that did give rise to a claim—for instance, the example given in Committee of an officer from France driving on the wrong side of the road and knocking someone down—would be classed as accidental not incidental. Under Clause 84, there would be an avenue of redress through the courts to the director-general of NCIS.
In the unlikely event of damage occurring as a result of incidental conduct, it would be for the courts to determine whether particular conduct could be considered incidental, and, consequently, whether damages should be sought. We would expect the courts to take a narrow view of what might constitute incidental conduct.
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. Clause 84 provides for that. Article 43 of the Schengen convention sets out arrangements on civil liabilities so that we can expect reciprocal arrangements for our officers operating abroad in similar circumstances.
I realise that Amendment No. 89 is intended to clarify situations in which damage arises when foreign officers are in a boat off the UK coast; but it would have the reverse effect. It would be unworkable in practice, so the Government cannot accept it. I noted during our discussions in Committee that it was hard for those crossing into the UK by sea to know exactly when they had entered UK waters. There are no visible markers. This amendment would simply add to the tasks of officers carrying out surveillance, who would be forced to spend time and energy trying to find out whether they were in UK waters.
In the unlikely event that damage should arise in such a situation, it would be for the courts to decide where liability lay. The circumstances in which liability for purely incidental conduct might arise are extremely narrow. Damage to a passing windsurfer would not fall within the definition.
We intend to interpret the Schengen convention requirements about the border in a way that protects the interests of the UK and is readily understood by everyone who would use the cross-border arrangements in the fight against crime. For that reason, we have indicated that we regard the border as having been crossed when the officers arrive at a port or airport. For those reasons, I do not think that the amendments would add clarity.
I shall deal now with the senior wrangler questions that the noble Baroness, Lady Anelay, asked. The first related to the case of the windsurfer hit by the French officers' boat off Sandbanks. If the officers had not landed, their surveillance might not have been covered by new Section 76A, on the basis that they had not entered the UK. There would, therefore, be no question of the provisions on incidental liability in Section 76A(5) applying. In that case, the windsurfer would have to sue the French authorities. As the accident happened in Poole harbour, the case could be brought in the English courts. By contrast, if an English windsurfer had been hit by the French officers' boat off a beach in Normandy, the case would have to be brought in the French courts.
However, when considering travel by such means, a court might take a different view on when an officer is deemed to have entered UK territory. It might say that being close to the UK coast constituted entering the UK. Accordingly, NCIS could be sued instead of the French authorities. In practice, as NCIS can reclaim any damages that it might have to pay to the windsurfer, it is unlikely that it would argue that technically it was not liable. It would not be in accordance with the spirit or intent of the legislation to do so. Rather, we would expect NCIS to handle the
claim. In any event, if such a situation were deemed to come under new Section 76A, damage to a windsurfer would not count as incidental. It could not be argued that the surveillance officer had to damage the windsurfer to continue his surveillance. He would have had a choice, therefore the damage would be deemed accidental. The liability provisions of Clause 84 would thus apply.In summary, whether or not the foreign officers had entered the UK, it would be open to the windsurfer to pursue a claim for damages through the UK courts. The only question is whether the claim could be against only the French authority or whether he could sue NCIS instead. In practice, the prudent course for any solicitor would be to advise his client to sue both the French authority and the NCIS, and to let them and the court decide who would defend the claim. I emphasise that Clause 84 does not remove liability from the French officers; it merely makes NCIS liable as well, thus enabling British citizens to obtain easier and earlier redress.
The noble Baroness asked whether there was any difference if the officers were merely careless, not negligent. Careless behaviour would not count as incidental. Incidental conduct, in the context of surveillance, means conduct necessary for the surveillance to continue. Carelessness, negligence and recklessness would all fall outside the definition. Obviously, the reason for the accident might affect liability. For example, if the windsurfer was at fault, neither NCIS nor the French authority would be liable.
The noble Baroness also asked whether there would be any difference if the foreign officers had decided to continue covert surveillance on UK soil and had notified the UK authorities of their decision. In that case, they would fall within the automatic authorisation of new Section 76A, making the director-general of NCIS responsible for any civil liability claim. Careless or reckless behaviour would not count as incidental conduct.
I think it was the noble Baroness who asked about the position where damage is caused on UK soil by an off-duty foreign officer. Clause 84 would allow the victim to pursue a claim for damages through the courts against the DG of NCIS, provided that at the time the foreign officer was conducting surveillance under Section 76A. If the foreign officer was off duty—for example, because the surveillance had finished and he was returning to France—any damage he caused would fall outside Clause 84. It would be a private matter between the civilian and the French authorities, just as it would be if the officer had been on holiday in the UK and had caused damage to a UK citizen's property or interests.
A question was asked about the difference between Clauses 82 and 84, and the impact of that. The provisions in Clause 82 on incidental conduct are intended to enable foreign officers to do things that would otherwise be unlawful. They do so by making incidental conduct lawful—for example, certain trespass is deemed lawful. Clause 84 has no effect on
the circumstances in which liability will or will not arise. It does not make lawful activities unlawful or otherwise unlawful activities lawful. It simply provides that, where a foreign officer could be sued for damages, NCIS can be sued instead. It is intended simply to make it easier for the claimant.Slopping coffee on a passer-by would not count as incidental conduct, as it would not have been necessary to continue the surveillance. It would be possible to lodge a claim under Clause 84.
The noble Lord, Lord Stoddart, asked a good question about the Police Complaints Authority. Claimants will not be able to apply to the Police Complaints Authority, as it covers only domestic police officers. But it will be possible for them to complain to the independent tribunal established by RIPA, which can award damages. Any misbehaviour by foreign officers would be referred to their forces, which could jeopardise future operations. It would be for the officers' force to take other sanctions against them for misconduct in those circumstances.
Anyone who thinks that this House does not carry out proper scrutiny should read the debate on these amendments. I hope that, when the noble Baroness, Lady Anelay, has had an opportunity to read my response, which is of almost prolix length, she will find it helpful. If not, I am sure that she will signal to me in one of the many ways open to her.
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