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Lord Clinton-Davis: My Lords, it is not beyond the powers of the noble Baroness or anyone in this House to ask in a written or oral Question what are the powers and how they are being used. But there are so many powers and so many statutory mechanisms in force for consideration of that issue that we should not be bemused. In particular, I believe that the National Crime Squad and the National Criminal Intelligence Service should be able to monitor how the provisions are working. Perhaps my noble friend will illuminate the House by saying what progress has been made in that regard.
Above all, I stress the importance of preparing thoroughly for questions that may arise out of the changing scenario. To ask my noble friend to return to the House whenever is rather stupid. It is important that this matter is kept under review by the best people authorised to do that. Is my noble friend satisfied that the right questions have been asked by the Home Office in that regard? It is important that we should see that the matter works out well in practice. That is all. To say that the Secretary of State should return to the House is to put forward a solution by which no questions would be asked. I ask the noble Baroness to think carefully about this matter. Is she more concerned with the device or with the practice? In my view the practice is all important. I hope that my noble friend can give the House some assurances in that regard.
Lord Renton: My Lords, the noble Lord agrees that the public and Parliament should have the right to be made aware of what is happening under the new Bill. However, I suggest to him that instead of leaving the matter to chance, with an obscure Member of either House tabling a question from time to time, there should be an obligation on the Government to let us know how such an important Bill, which breaks new ground, is working out.
Lord Clinton-Davis: My Lords, the noble Lord refers to an obscure Member, but it may not always be such a Member. From time to time even the noble Lord asks questions and he is by no means an obscure Member.
Lord Renton: My Lords, it could be one of the most important Members, dare I say, like the noble Lord, Lord Clinton-Davis, himself, but I believe that that is leaving too much to chance. All other legislation dealing with criminal matters enacted in the past 100 years or so has either amended it or amplified it, but this Bill breaks new ground; it brings in the responsibility of the police in various countries that have signed the Schengen convention. This is an important new development. I suggest that the Government would not be disadvantaged by being asked by Parliamentas we shall doto report on how matters are proceeding. It would not be merely an obligation, but a great advantage to them to be able to keep us all informed. Therefore, I most warmly support my noble friend's amendment.
Baroness Carnegy of Lour: My Lords, I too support the amendment. It limits itself to the clause concerning surveillance. That is a novel matter for the public. We cannot tell how the public will react to realising that there may be foreign officers snooping about for five hours, looking for someone in their midst. That will arouse misgivings among the public should it happen in areas outside big cities. I can imagine the reaction in different communities that I know once they discover that someone has been conducting surveillance in their midst. I do not know whether the amendment is the right way in which to solve the problem but the Minister must accept that there should be continual update on how the matter is proceedingwhether the arrangements put in place under Schengen and begun in other countries are working out. I hope that the Minister can give the House a good answer.
Lord Filkin: My Lords, I shall do my best. While the noble Baroness, Lady Anelay, will not be surprised to hear me say that I shall not accept the amendment as drafted, I shall try to talk about the heart of it as a number of noble Lords on the Benches opposite have spoken in its support.
The first question that I was asked was whether the Home Office will monitor the article thoroughly. Yes, the Home Office has already agreed with NCS and NCIS that implementation will be closely monitored so that the effectiveness of the new arrangements can be assessed and any operational improvements made as part of it.
The Government do not support the specific form of the amendment, because we consider that there will be satisfactory review mechanisms in place. I shall explain the review process that will apply to the new arrangements. Article 40(3)(g) of the Schengen convention requires each instance of urgent surveillance to be the subject of a report to the UK authorities; that is, to the National Criminal Intelligence Service.
All surveillance operations under Part II of the Regulation of Investigatory Powers Act 2000 (RIPA) are covered by the oversight of the Chief Surveillance Commissioner whose annual reports to the Prime Minister are laid before Parliament. RIPA provides that all paperwork relating to RIPA Part II, which will include the reports into urgent operations required by Schengen Article 40 that are taken over by UK officers, will be open for inspection by the Chief Surveillance Commissioner.
Surveillance carried out in the five-hour period before a RIPA authorisation is obtained, or the surveillance ceases, will not be subject to the oversight of the Chief Surveillance Commissioner because there is no decision to review. That surveillance is either automatically lawful or it is not. However, in each case the foreign officers will be required to ask the UK authorities to take over the surveillance under RIPA. Where that happens and the surveillance continues under a RIPA authorisation, the new arrangements will fall under the existing responsibilities of the Chief Surveillance Commissioner. It will be captured at that point.
In addition, the National Crime Squad and the National Criminal Intelligence Service have agreed with the Home Office that they will monitor how the new provisions are working in practice. The exact details of the information that will be collected have yet to be settled. I envisage that it will include all the information that existing members of Schengen currently collect such as the name of the requesting country, the offence concerned, whether or not the surveillance was authorised, the reasons for any refusal, any conditions attached to the approval, the duration of the operation, the outcome and any particular problems or issues. I am very willing to make it absolutely clear to the House as a matter of public policy that we shall provide noble Lords with a summary report of that information after the first year of operation.
The NCIS annual report is the responsibility of the director general, and must cover the whole range of their operational activity. As I have pointed out before, the provisions of the Bill deal very much with exceptional circumstances; we do not expect urgent cross-border surveillance to form a significant part of NCIS's core business. So while we may expect it to allude in this report to cross-border surveillance, as part of the functions of the Sirene Bureau, we would not anticipate that there would be massive detail on that.
I would like to deal with one more point before I conclude. Schedule 5 amends RIPA to extend the role of the independent investigatory powers tribunal to cover the new arrangements under new Section 76A. So the tribunal will be able to consider any complaints from any person who is aggrieved by any conduct under the new arrangements. So there is an avenue of redress.
I have already said that we will provide noble Lords with a summary report of how the process is working. It will cover the points that I have indicated. In that first year, it might appear that we were still inhow shall I put itearly teething stages. There may have been only one or two such cases, or it might be slightly early to come to a settled view. I do not want to create needless work, but there is a balance to be struck between utter repetition of annual reports, and trying to ensure that the thrust of noble Lords' concerns is adequately addressed.
So I will go further than saying that we will simply provide a report to the House after the first 12 months. If, in the light of operational experience, it does not seem that that has been conclusive, because of its early stage, we would be happy to provide a further report. That could happen after perhaps two or three years, if that would give a better basis of understanding about how these important powers are operating. It would at least give the clearest opportunity for the House to inquire about those powers. I hope that with those assurances, it has been helpful to the House to ensure that there will be both close monitoring and an adequate opportunity for parliamentary scrutiny of the early operation of the measures.