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Lord Clinton-Davis: My Lord, does the noble Baroness carry around with her Archbold?

Baroness Anelay of St Johns: My Lords, my answer would be longer if I did. I have a copy on my desk upstairs. It is a year out of date because the up-to-date one is at home. But the noble Lord is absolutely right to point out that lawyers do not always carry around every single reference book. However, with regard to this definition, I could save the problem of Archbold and the Schengen handbook. Here I have a solution for the noble Lord, Lord Clinton-Davis—a simple short amendment on the face of the Bill. I beg to move.

Lord Clinton-Davis: My Lords, I find the amendment singularly unhelpful. I believe it is very important that there should be a similarity of practice so far as concerns the various member states. That is, above all, the most important point. I do not believe that it is sensible for a foreign officer to stop any person whom he suspects. The danger is that he will be put at risk. That is not a sensible idea. The noble Baroness offered no views on that.

5.30 p.m.

Baroness Anelay of St Johns: My Lords, it may be helpful if I intervene to make clear that Amendment Nos. 5 and 6 are in the alternative. I tabled Amendment No. 6 only after the Minister's response to me. Both would prohibit foreign officers from carrying out any such activity. The intention is to insert a clear prohibition on the face of the Bill. At present the reference in the Schengen handbook is somewhat unclear.

Lord Clinton-Davis: My Lords, I am obliged to the noble Baroness but I do not think that there is any point to either amendment. She has not added to or subtracted from the present law in any way whatever. At present, no foreign officer can stop and question a subject. That is a vitally important point. If he were to do so, he would be in the arena of difficulty and subject to retribution and retaliation by the miscreants. At present, before any action is taken by the home

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officers, the foreign officers can advise, talk to the people concerned, and offer an opinion but that is all. I believe that the law should remain as it is.

Baroness Carnegy of Lour: My Lords, I support the amendment. I jumped the gun on Report, saying that I was in favour of such an amendment when my noble friend had not moved it. When I read Hansard I found that the Minister was extremely kind and glossed over the matter, for which I am grateful.

Clarity on this issue is important. I do not have in front of me of the Minister's letter to my noble friend a copy of which he kindly sent me. However, I think that he said that a police officer in hot pursuit could not challenge the person he was pursuing because if he did so he would not be undertaking surveillance any more. I did not understand that. It seemed an academic point which did not soothe my concern that the public should be protected from being stopped and searched, or challenged—whichever we take the word to mean—by the person. Perhaps the noble Lord can clarify that. I prefer Amendment No. 6. I do not think that there is anything wrong with putting that provision on the face of the Bill. It would clarify matters for the public, give them confidence and fit in with the other changes which the Minister has wisely made in response to our discussions on this part of the Bill.

Lord Monson: My Lords, whether or not the noble Lord, Lord Clinton-Davis, is right in his interpretation, in order to dot the "i"s and cross the "t"s is there any reason why Amendment No. 5 or 6 could not be included? Like the noble Baroness, Lady Carnegy, I prefer Amendment No. 6. It would give the public confidence. That is all important in these matters.

Lord Goodhart: My Lords, I support the amendment. It seems to me that the word "challenge" would not have got into the Schengen convention document unless in some of mainland European systems it or the equivalent word in the national language had some specific meaning. "Challenge" is not a term of art recognised in United Kingdom law—certainly not in English law. Nor is it entirely self- evident from the context what the word "challenge" means here. It would be helpful if we had an explanation in the Bill. I prefer Amendment No. 6 to Amendment No. 5 which simply puts "challenge" on to the face of the Bill without any explanation as to its meaning. Amendment No. 6 may or may not be accurate but it gives an explanation which would be more readily understandable in this country as to what is meant by "challenge".

Lord Filkin: My Lords, there is probably a dire lesson for me on these amendments: it never pays to be helpful. I shall not rush to that conclusion. We have sought to be as reasonable as we could as regards putting entry into private property on the face of the Bill. For reasons I shall do my best to explain, we do not think that this further crossing of "t"s and dotting of "i"s is necessary.

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We understand that the amendments probe the meaning of "challenge", seeking to put beyond doubt that the public have nothing to fear in this respect. I am happy to make that utterly clear on the record. As part of that endeavour, I wrote to the noble Baroness, Lady Anelay, on 10th March responding to a number of questions raised in the House during Report. As I noted then, the word "challenge" is not defined in English law. We interpret it, therefore, according to its natural meaning and construe the references in the convention as preventing the officers from questioning or stopping the suspect or from asking him to explain or justify his actions or to identify himself. Clearly, if such action were to be taken, the foreign officers would no longer be carrying out surveillance and new Section 76A would no longer apply, meaning—perhaps I may address the question of the noble Baroness, Lady Carnegy—that they will not be acting within the authority that the Bill gives; they will be acting outwith that authority. Moreover, the officers could be putting themselves in danger since they would be unsupported by UK officers and would, in our judgment, be most unlikely to take the risk of challenging the suspect.

The Schengen handbook outlines all the conditions to which police officers from Schengen states are subject when undertaking cross-border surveillance. In the English version of the handbook the reference to "challenge" has been listed as "stopped and questioned" and this interpretation is mirrored in all the other language versions. We have checked with colleagues and confirmed that the different language versions are drafted centrally by the secretariat maintaining the handbook and the different language drafts are put to the jurist linguists to ensure that the same terms are referred to in each of the translations. So we are confident that the Schengen handbook which affects officers coming for surveillance into this country in the narrow sense, as described in the Bill, and United Kingdom police officers going abroad applies.

Lord Clinton-Davis: My Lords, will the Minister confirm or deny that the practice pursued by the various members of the Schengen agreement is exactly the same; and that is what he has in mind on this issue?

Lord Filkin: My Lords, that is exactly the thrust of my remarks. We are interpreting exactly what the agreement says. The Schengen handbook records that in exactly the same way. I am not aware of any problems which have arisen as a consequence of the operation of the Schengen handbook and the Schengen convention which other European member states have been undertaking for some years.

We fully expect that foreign officers who are acting under the clause will comply with the convention and the provisions in the Schengen handbook and so will not have any contact with the target while conducting urgent cross-border surveillance in the UK. Any

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contact between foreign officers and the suspect has the potential to lead to conflict and would be inconsistent with the premise of covert surveillance. That is why member states, when discussing and negotiating this framework agreement, were of the clear view that it should not happen. UK officers operating abroad will be instructed to behave in exactly the same way.

Moreover, placing such a prohibition on the face of the Bill through this amendment is meaningless. Foreign officers acting under this clause have no powers under UK law to stop and question anyone. Accordingly, the amendment is ineffectual in so far as it is an attempt to remove any such legal power. Those powers do not exist. Attempting to remove them is nugatory. Further, it seems to create a prohibition without any sanction.

Therefore the point of the amendment is not to change the position legally; it is to make clear to foreign officers that they should not challenge the target. That message is already clearly made by the convention and by the Schengen handbook. I am not persuaded of the argument that foreign officers coming to this country might read the Bill when they would not read the handbook. That is an implausible set of circumstances. Foreign officers undertaking close surveillance of this type would be expected to have read the handbook. If they were in doubt, when they telephoned NCIS for permission to proceed they would be given clear advice in that respect.

It is a basic point. Our practice is no different from any other European Union member state; to whit, if you go across the border you are acting only in a surveillance role; there is no power of arrest, challenge or entry. For those reasons, putting what is already not legal on to the face of the Bill is nugatory and would have no impact in practice on what happens.

The noble Baroness, Lady Anelay, also asked me to confirm the powers of arrest. Foreign officers have no powers of arrest. Holding a person without powers is an offence. Foreign officers will be in contact with people who possess the Schengen handbook. I hope I have explained to the satisfaction of the House that, while we were pleased to put beyond doubt the issue of entry into premises, there is no reason to put that on to the face of the Bill as the issue is without doubt or risk.

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