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Lord Filkin: My Lords, these issues were raised initially in Grand Committee. I undertook to consider them further, and I wrote to the noble Baroness, Lady Anelay, on 18th February. I explained that we would not expect such offences to be regarded as being any different from offences involving UK officers conducting surveillance. In other words, as I will amplify, we expect that foreign officers conducting

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authorised covert surveillance in the circumstances we are talking about will have exactly the same status and defence in law as a UK officer.

Article 42 of Schengen states that officers conducting surveillance under Article 40 on the territory of another member state shall be treated as officers of that member state in respect of offences committed by or against them. The thrust of what the noble Baroness, Lady Anelay, is saying is "and so they should be".

Let me explain why we believe that to be the case. Clause 83 provides that the special protection from assaults given to constables under the Police Act 1996 shall be extended to foreign officers conducting surveillance under these clauses. However, UK statute does not give constables special protection for more serious assaults. Rather, statute treats them in the same way as members of the public, albeit the fact that the victim is a constable may be taken into account by trial judges on sentencing. Accordingly, to ensure that we are four-square with UK provision, the Bill makes no further provision for foreign officers, nor is it right to do so. A sentencing discretion is a matter for the courts to decide in each case.

Therefore, in the unlikely event of a serious attack on a foreign officer, the offence will be treated in the same way as an assault on a UK officer. For example, the attacker could be charged with actual bodily harm or grievous bodily harm and it would be for the judge to decide the sentence and whether to take into account that the victim was a foreign officer conducting surveillance under new Section 76A.

The further advantage of Article 42 of the Schengen convention is that if a UK officer carrying out surveillance abroad is assaulted, he could expect to have the same protection in law as an officer of the country in which he was operating at the time of the assault. Therefore, Clause 83 already meets the purpose of the amendment to ensure that there is proper protection for officers carrying out this work, although we expect cases of confrontation to be extremely rare given the nature of covert surveillance work.

In response to the issue raised by the noble Lord, Lord Renton, Section 89 of the Police Act 1996 uses the term "assaults on constables". It states:

"Any person who assaults a constable in the execution of his duty, or a person assisting a constable in the execution of his duty, shall be guilty of an offence".

The term is used in the Act and I therefore expect it to be a generic term that covers all police officers. If I am wrong on that conjecture, I shall write to the noble Lord accordingly.

For those reasons, I hope that I have explained both how the measures in Clause 83 implement the Schengen convention and also ensure that there is no distinction between foreign officers and UK police officers in these respects.

Lord Renton: My Lords, before the noble Lord sits down, I am grateful to him for pointing out the

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previous example of the use of "constable". However, that was in rather different circumstances, was it not, from those which could arise under the Bill?

Lord Filkin: My Lords, it would be best if I reflect on that and respond in a more detailed note.

Baroness Anelay of St Johns: My Lords, I am grateful to the Minister for reassurance that foreign police/Customs officers, who may be subject to serious assault, would be in a no worse position than our own police/Customs officers. Of course, we hope that none would be subject to assault but, considering the dangerous operations in which they are likely to be involved, it is a possibility. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 84 [Liability in respect of foreign officers]:

[Amendment No. 95 not moved.]

Schedule 4 [Terrorist property: freezing orders]:

Lord Bassam of Brighton moved Amendment No. 96:

Page 66, line 12, after "11A" insert "25A, 41A"

The noble Lord said: My Lords, this group of amendments makes provision for Scotland and Northern Ireland for the freezing of terrorist assets. The provisions are comparable to those made by the Bill for England and Wales. Any differences for Scotland reflect the different Scottish legal system, but the overall effect will be the same as for England, Wales and Northern Ireland. The other amendments are technical amendments, necessary to ensure the full application of the provisions to Scotland and Northern Ireland.

Amendment No. 96 provides for Section 123(2)(i) of the Terrorism Act to refer to the Scottish and Northern Irish provisions, as well as to those in England and Wales. Amendment No. 97 will amend paragraph 3 of Schedule 4 to the Bill in order to clarify that the changes that that paragraph introduces will apply only to England and Wales.

Finally, Amendment No. 109 ensures that the insolvency provisions in paragraphs 45 to 53 of Schedule 4 to the Terrorism Act will apply also to the Scottish and Northern Irish provisions, as well as to those in England and Wales. Amendment No. 109 achieves that. I beg to move.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 97:

Page 66, line 13, leave out from "In" to ", after" and insert "Part 1 of Schedule 4 (forfeiture orders: England and Wales)"

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 98:

Page 66, line 27, leave out "11D(3)" and insert "11D"

The noble Lord said: My Lords, this is a new group. Amendments Nos. 98, 100 and 101 will make it easier for the Secretary of State to ensure that overseas

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freezing orders can be enforced under the schedule only if they relate to the proceeds or the instrumentalities of terrorism.

Currently, paragraph 11D(2) requires property to be "terrorist property" as defined by Section 14 of the Terrorism Act before it can be frozen by an overseas freezing order. In most cases, that will mean that the Secretary of State will have to decide whether the property is likely to be used for the purposes of terrorism under Section 14(1)(a) of the Terrorism Act.

On reflection, the Government believe that this could put the Secretary of State into a difficult position. Depending on how the issuing state has transposed the framework decision, its court might have to be satisfied only that there is a good, arguable case that the property to be frozen is likely to be used for the purposes of terrorism. However, the Secretary of State must be satisfied that the property was likely to be used for the purposes of terrorism. That could mean that the Secretary of State could have to apply a stricter test, even though he is likely to have less information available to him than the court in the requesting state.

Having given this matter serious consideration and particularly in the light of the helpful debate stimulated by the noble Lord, Lord Goodhart, in Grand Committee, it appeared that a different approach would be better. These amendments provide that, for an order to be an overseas freezing order, it must have been made by an overseas court on the grounds that the court considers, first, that the frozen property is likely—within the meaning of the framework decision—to be used for the purpose of a listed offence; and, secondly, that the action constituting the offence would be an act of terrorism as defined in the Terrorism Act.

It is for each state to interpret "considers" in its own implementing legislation. Our amendments will leave it to the overseas court to decide what it considers the property to be, using whatever definition of that word the issuing state has decided to adopt. The Secretary of State will still have to decide whether the act constituting the listed offence would amount to terrorism, as defined by our law. However, he should be able to do this quite easily on the basis of the certificate, which will give the nature and legal classification of the relevant offence. These amendments will make the process of identifying an overseas freezing order simpler and less contentious.

Turning to the final two amendments, Amendment No. 106 clarifies the circumstances in which the High Court can postpone giving effect to an overseas order. Paragraph 11F(b) of Schedule 4 to the Bill is designed to cover cases where the assets have already been frozen by another court. Our intention is that the court will be able to postpone execution if the assets are subject to a restraint order under Section 41 of the Proceeds of Crime Act 2002.

The current text of paragraph 11F(b) reflects Clause 23(1)(b) and allows postponement where, due to another court order in criminal proceedings, the property may not be removed from the United

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Kingdom. While an order under Section 41 of the 2002 Act will prevent assets being removed from the United Kingdom, we do not consider that this is the best wording to use in the context of the freezing of terrorist assets. While evidence will be frozen under Chapter 2 of Part 1 of the Bill with a view to it being sent abroad, assets will be frozen under Schedule 4 with a view to their confiscation in the United Kingdom. Therefore, sending them abroad is not really the issue.

A restraint order under Section 41 of the Proceeds of Crime Act prevents the restrained property being "dealt with". The amendment reflects that wording, replacing the reference to the assets being removed from the United Kingdom with a simple reference to an order preventing them from being "dealt with". We formed the view that this is a better way of expressing our intention.

Amendment No. 107 proposes a minor change to paragraph 11G(4), which contains the grounds on which the court will be able to cancel registration of an overseas order. The addition of,

"or to the extent that",

to paragraph 11G(4) will give the court the flexibility partially to revoke an order. That would be necessary if, for example, the overseas court were to unfreeze part of the defendant's assets.

I believe that that lengthy explanation explains the technicalities involved. I beg to move.

7.30 p.m.

Lord Goodhart: My Lords, I welcome Amendment No. 100. It is an improvement on the formulation of the test for overseas freezing orders contained in the amendments agreed in Grand Committee.

On Question, amendment agreed to.

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