Crime (International Co-operation) Bill [Lords]

Public Bill Committee, 19 June 2003.

Standing Committee A

Clause 80 ordered to stand part of the Bill. - Clause 81 - Inspection of overseas information systems

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 154, in

clause 81, page 54, line 23, after 'inspect', insert '(but only in person)'.

I welcome your return to the Chair, Mr. Benton. This is a probing amendment. The clause states that ''The Commissioner may inspect'', but the commissioner is expected to inspect data not only in the United Kingdom but abroad. For instance, he will be inspecting the Schengen and Europol information systems; and the clause also refers to a power to

''inspect, operate and test equipment which is used for the processing of personal data.''

That implies that the commissioner will be able to go anywhere to check the systems. It is self-evidently improbable that the commissioner himself will do all that. The purpose of moving an amendment that stipulates that it should be only the commissioner is to discover who will do the work.

I recognise the validity of the case for inspection. I appreciate that the system should be capable of being inspected, because of the possibility of British citizens being subject to judicial process. It is therefore sensible that the system should be inspected. I have no problem with that. However, the inspection system should not be open to abuse. One assumes that the Minister will say that it will not be the commissioner himself but those whom he permits—I shall be interested to hear her phraseology. However, I am concerned about the security of that information, which will be significant.

Not only does the clause state that the commissioner may ''inspect, operate and test'' equipment to be used for the processing of personal data; it also states:

''The Commissioner may inspect any personal data''.

The people doing the work will therefore have access to personal data.

The purpose of the Data Protection Act 1998 is to protect personal data. If we allow people to inspect personal data, there will be a security risk. It is therefore important that the information is protected as much as possible, commensurate with the need to ensure that the systems are working. It is a question of finding the right balance. Most important, we do not want information falling into the wrong hands—which the Act is meant to prevent.

It is a straightforward probing amendment. I do not suggest that the commissioner should roar round the world inspecting systems—I hope that the Minister accepts that—but it provides the Committee with the opportunity to probe the Government on precisely who they mean by the commissioner, how the inspection will take place and how the anticipated security will be maintained commensurate with the inspection of data under subsection (3).

David Heath (Liberal Democrat, Somerton and Frome)

I welcome you to the Chair, Mr. Benton.

The hon. Gentleman has made a valid point, but it is a forlorn hope that anyone could keep track of the information system. That is not to argue against Britain entering the Schengen information system, but simply to recognise the beast that it has become. As we discussed on Second Reading, 49,000 terminals were attached two years ago—goodness knows how many there are now—with tens of thousands of people accessing the system throughout Europe and thousands inputting information. The difficulty is that with so many people inputting information into a common system, it is inevitable that mistakes will be made. We know from our own domestic experience that the police crime computer is capable of holding incorrect information on people for a long time without anyone noticing, and the police sometimes act incorrectly on the basis of that incorrect information.

We should express our concern, but I can see the advantages of being within such an information system. I do not know what the remedy is other than to recognise that it is a very large database and capable of causing error in a big way. The commissioner will have a very big job.

Caroline Flint (Labour, Don Valley)

Good morning, Mr. Benton. I am looking forward to our proceedings today.

The hon. Member for South-East Cambridgeshire (Mr. Paice) gave a helpful introduction. To make the matter clear from the outset, the commissioner referred to is the Information Commissioner. The Freedom of Information Act 2000 gave the existing role of Data Commissioner new powers and changed the name to Information Commissioner. Under the Data Protection Act 1998, any function of the Information Commissioner may, to the extent authorised by him, be performed by any of his officers or staff. That principle will apply to the new powers of the commissioner under clause 81.

The powers under clause 81 are similar to those granted to the Information Commissioner under schedule 9 of the 1998 Act, and that schedule provides for a warrant to be issued to the commissioner in respect of premises and materials when an offence under the Act is suspected. In that case, a warrant would provide authorisation to

''the Commissioner or any of the Commissioner's officers or staff''.

That makes it clear that the commissioner is not expected to carry out all inspection duties in person,

which, as the hon. Gentleman rightly said, would be impossible. I hope that that clarifies the situation.

The hon. Member for Somerton and Frome (Mr. Heath) questioned the quality of data on the Schengen information system. There have been concerns in the past about the quality of that data, and the United Kingdom is taking steps to try to ensure that UK entries are accurate. There are three levels at which the accuracy of data will be assured. Primary responsibility for accuracy will rest with the police force that makes the entry. The training given to the police in relation to the Schengen information system will stress the importance of accurate and complete records. Technical checks will be made by the national SIS before data are passed to the central SIS to establish, for example, that all mandatory fields are complete. The European SIS siren working group has also taken steps to improve the quality of the SIS data and a programme of action was initiated in April last year. Monthly checks are made at the central SIS to highlight individual records when fields have not been properly completed. Obviously, it is important to keep a close eye on the matter to ensure that information is as accurate as possible.

David Heath (Liberal Democrat, Somerton and Frome)

What the Minister is saying is reassuring up to a point. The system can deal with omissions, but it cannot deal with incorrect information that has been entered into correct fields. Is there a regular audit of information held on the system?

Caroline Flint (Labour, Don Valley)

Perhaps I could get back to the hon. Gentleman on that.

I hope that I have reassured colleagues that the system operates under existing legislation and that the commissioner and the process by which anyone else might take action is clear.

Nick Hawkins (Conservative, Surrey Heath)

Good morning, Mr. Benton.

I did not intend to intervene in this debate, but given that the Minister is making such a point of whom the Information Commissioner is and that we are talking about information, I wanted to put on record that the commissioner can be helpful. I had a case in which the Information Commissioner website and staff were very helpful to some of my constituents only two days ago.

I have known the present commissioner, Richard Thomas, as a professional colleague and friend for many years, and I concur that it should become increasingly apparent who he is and that much of the work that he and his staff are doing is valuable, particularly in stopping fraud. There was a danger that some of my constituents might have been caught by fraud, and that was stopped by the commissioner.

Caroline Flint (Labour, Don Valley)

I thank the hon. Gentleman for that intervention. I know that he is always keen to ensure that constituency issues are brought into discussions of national legislation, which is important. If we what we do here does not affect people's lives, it is meaningless, so I am pleased that he has put on record the good

work of the Information Commissioner and the sound way in which he and his staff carry out their duties.

James Paice (Conservative, South East Cambridgeshire)

I appreciate the Minister's explanation of who the commissioner is—she rightly reminded me of the change in title, although my mistake was a slip of the tongue—and her confirmation that, as I suggested, he would not do all the work himself. She explained the system well.

I omitted to say that I share the concern of the hon. Member for Somerton and Frome about the proliferation of the information, its accuracy and its ready availability given the number of countries that are now signed up to Schengen. That also raises the spectre of what happens if article 4 of the convention is ratified, as it will open it up even further. However, I am grateful to the Minister for her explanation, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

James Paice (Conservative, South East Cambridgeshire)

I beg to move amendment No. 155, in

clause 81, page 54, line 41, at end insert

'and is liable on a summary conviction to a fine not exceeding level 3 on the standard scale'.

Again, this is a probing amendment. I am not necessarily committed to a fine that does not exceed level 3. However, the purpose of stipulating the penalty is to try to extract from the Minister, first, what the penalty for the offence would be and, secondly, who would be liable to that penalty. We are talking about overseas information systems—that is in the clause heading—and, under subsection (6), any person who

''intentionally obstructs a person exercising the power conferred by subsection (1)''.

Someone who is obstructing such a power will not necessarily be in Britain or a British citizen. It could well be someone who is in partial control of the Schengen or Europol information system and located in a different country. Who could commit the offence and therefore be subject to the penalty? I am not suggesting that we should treat lightly anyone in this country who commits an offence. However, it seems somewhat odd if, as I suspect, an offence is committed if the person is in Britain, but we have no influence when a foreign national in another country somehow obstructs our Information Commissioner in carrying out his duties.

If we are going to have an international system, the legislation should apply internationally across that system. I am interested to hear the Minister's response. I am not so much concerned about the issue of what the penalty would be—although I hope that the Minister will tell us that—but whether the Government really believe that the whole of subsection (6) is of any validity, given the vast range of people who have access to the system, and could intentionally obstruct the commissioner or his staff in the carrying out of their duties.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I support the amendment. It is sensible that if there is an offence, it should carry a proper penalty. I have had a quick look at the remainder of the Bill, and I can see no other provision that would attach a penalty. The

penalty will be an exceptionally modest one, and the offence is to be tried only summarily, which suggests that it is perceived at being at the lower end of the scale. One can imagine circumstances in which such an offence could be serious. I commend the hon. Member for South-East Cambridgeshire for tabling the amendment. I also endorse his remarks on the establishment of jurisdiction in respect of any proceedings that would be brought under this provision.

I also wish to put on record that the terminology used in paragraph (b) is somewhat curious. There is an exceptionally fine distinction between someone who obstructs and someone who fails to give assistance that may be reasonably required. It is an unusual formulation of words, and I am interested to hear about the Government's thinking on that.

Caroline Flint (Labour, Don Valley)

I shall deal first with the level of the fine. Amendment No. 155 would insert in the Bill the level of the fine that would be incurred by anyone who intentionally obstructed a person carrying out an inspection or who failed to provide that person with proper assistance. We do not believe that it is necessary to put the level of the fine in the Bill, as the clause forms an amendment to the Data Protection Act 1998, and the fine will therefore be set by reference to existing provisions in that Act. In particular, section 60 of the Act will apply to an offence under clause 81. That section provides that a person guilty of an offence relating to the powers of the Information Commissioner is liable to a fine not exceeding level 5 of the standard scale, which is currently £5,000.

The level of fine proposed by the amendment is inappropriate. Having a different level of fine for an offence arising from new powers being given to the Information Commissioner would suggest that they are less important than the commissioner's existing functions, and would create needless confusion. We take the new role for the—ensuring that the EU systems are properly monitored—extremely seriously.

As for obstruction, I clarify that the powers of inspection relate to the UK national section of the systems. We cannot give powers of inspection that would apply overseas. The person who is obstructing, under the clause will be in the UK. We have no power to commit the Information Commissioner to exercise powers in another jurisdiction. That is why, for example, we have not included any power to access the Europol index system, which can be accessed only in The Hague. We understand that, in the past, the lack of legal powers has not been a problem, and that the UK unit in Europol has readily assisted the commissioner in his work.

James Paice (Conservative, South East Cambridgeshire)

The hon. Lady has shed a substantial ray of light on clause 81 because she has told us that it applies only to UK information systems. Neither the Minister nor I are lawyers. I would not pretend to understand every piece of legal jargon, but as I read it, nothing in clause 81 implies that it applies only to UK systems. Subsection (1) refers to two international systems. It also refers to the operation and testing of equipment, but it does not specify that that applies only to the UK. The hon. Lady has answered my point about obstruction, but only if it is clear that inspection

can take place only in the UK. My point, however, is that nothing in the clause says that.

Caroline Flint (Labour, Don Valley)

According to my information, that is the case, but I hope that some more information to help with that will come from my left very shortly.

The scope of power of the Information Commission under data protection provisions may relate only to data where the data control is established in the UK. All legislation passed in the UK refers to powers within our jurisdiction. We cannot legislate in other jurisdictions.

James Paice (Conservative, South East Cambridgeshire)

I am afraid that the Minister has been let down in that last statement.

Nick Hawkins (Conservative, Surrey Heath)

Always beware of information from the left.

James Paice (Conservative, South East Cambridgeshire)

I was going to make a comment on the absence of the hon. Member for Liverpool, Walton (Mr. Kilfoyle), who is usually full of advice from the left for the Government. However, the whole Bill is about international legislation. I am sorry to say it, but the Minister cannot get away with suggesting that we can only legislate for within the UK, otherwise we would not be in this Committee discussing this Bill. Obviously, I take at face value what she said, but it is surprising that the fact that the clause applies only to the UK is not clearly stipulated.

Caroline Flint (Labour, Don Valley)

This is a matter that needs to be clarified, so I shall make sure that we get something to the hon. Gentleman to explain.

James Paice (Conservative, South East Cambridgeshire)

I am extremely grateful to the Minister for that offer, which of course I accept. In the light of that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 81 ordered to stand part of the Bill.

Clause 82 - Foreign surveillance operations

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 71, in

Clause 82, page 55, line 29, at end insert—

'(1A) In subsection (l)(c) it is not reasonably practicable to make such request as is mentioned therein only if the duration of the foreign police or customs officer's travel to the United Kingdom is shorter than could reasonably allow for prior authorisation to be sought.'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss amendment No. 72, in

Clause 82, page 55, line 38, after 'party', insert 'and which is an offence under the law of any part of the United Kingdom ,'.

Nick Hawkins (Conservative, Surrey Heath)

May I say good morning to you, Mr. Benton, more fully than I did in an intervention on the previous day that the Committee met?

David Cairns (Labour, Greenock and Inverclyde)

Hear, hear.

Nick Hawkins (Conservative, Surrey Heath)

The hon. Gentleman is feeling demob happy, but I shall endeavour to concentrate on the important matters. Even though the group of amendments is relatively small, they relate to probably the most important and, to a large degree, the most controversial clause in the whole Bill. When

we turn in a few minutes to the Government amendment, which seeks to reverse the defeat that the Government suffered in the House of Lords, we shall come to the biggest issue of all. I flag that up now so that Labour Back Benchers do not get too demob happy or imagine that we have already broken the back of all the issues.

Amendment No. 71 would insert a new subsection (1A). ''Hot surveillance'' is so called to distinguish it from hot pursuit, which is a term that is well known to both the lawyer and, perhaps, the layman in this country and in other jurisdictions, and became known as such in other place, so that is what I shall call it. Such hot surveillance should not happen, even in the rare circumstances in which it happens at very short notice, unless it is not reasonably practicable to get prior authorisation from the UK owing to the very short duration of the travel to the UK by the foreign police officers involved.

There was quite a lot of debate in another place about how long it would take a foreign police officer to get to the UK and whether it should be possible during the journey for foreign police officers or those to whom they report to get in touch with the authorities in this country in time to get UK police or Customs officers on the scene to carry out surveillance.

The Conservative view is that it would be preferable for the peace of mind of British subjects if such surveillance was normally done by UK police or Customs officers. Ministers in the House of Lords, especially Lord Filkin who dealt with most of the debates on the issue, were frank enough to concede that that is also what the Government would prefer and would expect to happen in most cases. However, my noble Friend Baroness Anelay of St. Johns, and the noble Lord Goodhart and others who speak on behalf of the Liberal Democrats in the other place, recognised that there would be some rare circumstances, especially in cases involving undercover police or Customs officers, in which the pursuit would be carried out at such short notice and be so important that hot surveillance might be needed. Conservative Members hope that it will not become a matter of course.

The amendments relate to how rare should be the circumstances in which there is hot surveillance and what safeguards should be introduced. Baroness Anelay said:

''We want to ensure that it is possible for criminals who have no respect for borders to be hunted down by democracies whose police forces must have respect for borders. We do not object in principle to what the Government are trying to achieve, but we want to ensure that the quid pro quo is not achieved at too high a price. That is what our amendments are aimed at.''—[Official Report, House of Lords, 29 January 2003; Vol. 643, c. GC201.]

My noble Friend referred to what Ministers in the other place, especially Lord Filkin, had said, and drew attention to the fact that the Government said that the vast majority of operations would be pre-planned and would be taken over by police or Customs officers in this country. The new Minister will no doubt repeat what Ministers said in another place—that the

provisions in this part of the Bill will cover the rest of the cases where foreign officers carry out hot surveillance, and that there will be only a few such cases; but they might be significant.

Amendment No. 71 would ensure that the Bill contains safeguards. Amendment No. 72 is even more significant, as it would ensure that the operations were restricted to crimes under UK law. The Minister is nodding; I do not know whether that is because she is agreeing with me or is following up what was said in another place. We want the Bill to make it clear that only crimes within the UK should be covered by the proposals relating to hot surveillance.

The high publicity that such matters attracted when they were debated in Parliament and elsewhere in recent years shows that the issue is particularly sensitive. For example, I remember the embarrassment of the previous Home Secretary, now the Secretary of State for Foreign and Commonwealth Affairs, the right hon. Member for Blackburn (Mr. Straw), when a minor Spanish judicial official—I think he was called Garzon—issued proceedings in Spain suggesting that in pursuance of those proceedings our forces should arrest Senator Pinochet for alleged crimes in Chile. It ended not only in huge embarrassment but in enormous cost to the taxpayer and to council tax payers in my constituency. At the same time, we were debating war crimes legislation in which it was seriously suggested that if the Government did not get it right, at some time in future judicial officials in other countries might want to issue proceedings against the present Prime Minister, the present Foreign Secretary or the previous Foreign Secretary for what they thought were war crimes by UK Ministers. These big issues go well beyond the specific scope of clause 82.

We want the protection to be in the Bill because of the concerns in respect of matters that are crimes in UK law. If the Government accepted our amendment or some form of it, current Ministers might one day have cause to be grateful to Opposition Members for insisting that only matters that were crimes in UK law were covered in the Bill.

I agree that some of what I said on the Pinochet case and the hot surveillance of UK Ministers might be a little far-fetched, but I raised it to show that it is important to restrict that activity under the Bill to matters that are crimes in UK law. I hope that the Minister will not deal only with the slightly far-fetched associations that I have made, but if she wants to respond to them, she may.

Caroline Flint (Labour, Don Valley)

It is important to remember that cross-border surveillance has nothing to do with the European arrest warrant. Foreign officers carrying out cross-border surveillance will have no executive powers. They will not be able to make arrests, stop and question suspects, carry out searches or seize anything. I have not heard the term ''hot surveillance''. To me, surveillance means that someone is watching a person but not interacting with them—[Interruption.]

Nick Hawkins (Conservative, Surrey Heath)

As my hon. Friend the Member for South-East Cambridgeshire points out from a sedentary position, that is not what Government

amendment No. 156 does. We shall return to that in a moment. I do not want to stray out of order by pre-empting the big argument that we shall have then, but my hon. Friend and I have warned the Minister that she will have a serious battle with Members from various parties in another place if she persists with that amendment.

I am well aware of the point that the Minister makes. She knows that Opposition Members have exceptionally strong views about the European arrest warrant, but we are discussing a different issue. There could be an essential safeguard in respect of hot surveillance, as it has been called. Its use should be restricted to matters that are crimes in UK law. That would be an important protection for our subjects. We do not want the matter to be opened up to things that might be regarded as crimes by judicial authorities in other countries, but that are not crimes here. That is an essential point. I hope that the Minister will accept amendment No. 72 even if she cannot accept amendment No. 71.

David Cairns (Labour, Greenock and Inverclyde)

I do not wish to stray out of order by rehearsing the arguments that we have had frequently in other Committees about the European arrest warrant, but let us say, for example, that British people here are organising to take groups of paedophiles to Spain, where the age of consent is 12, to commit crimes there, or that the situation is the other way round. Can the hon. Gentleman not see the merit in having flexibility to allow such surveillance for activities that might not be against the law in this country? I have posited an example that involves the reverse, but it is an example of a situation in which it could be in our interests to have reciprocal arrangements. We would want them if the situation were the other way round.

Nick Hawkins (Conservative, Surrey Heath)

There is a judgment call to be made. The hon. Gentleman raises a serious point and he knows that Opposition Members—particularly my hon. Friends the Members for Mole Valley (Sir Paul Beresford) and for Beaconsfield (Mr. Grieve) and the shadow Home Secretary, my right hon. Friend the Member for West Dorset (Mr. Letwin)—have taken a very serious interest in advancing legal protection against paedophiles. We take that matter seriously, but when it comes to foreign police officers having powers to come on to our soil—our territory—to carry out surveillance, we say that that should be restricted to matters that are crimes in UK law. After all, UK law is pretty wide. There are not many very serious matters that would require surveillance that are not crimes under UK law. The British people need the protection that we have proposed.

David Heath (Liberal Democrat, Somerton and Frome)

The clause is extremely important and will repay close scrutiny. Under most of the groups of amendments to come, the hon. Member for Surrey Heath will find that I argue for a direction similar to his own. That said, this is the least convincing group of amendments that he has tabled. An awful lot of nonsense has been talked about the concept of hot surveillance, which worries me. As I said on Second Reading, people have visions of Inspector Clouseau types bumbling around the Kent countryside shooting guns in all directions and arresting people with

abandon. I am satisfied that that is not what the Bill proposes.

Nick Hawkins (Conservative, Surrey Heath)

I understand the hon. Gentleman's point. I accept that the Government are not proposing what the more far-fetched descriptions would have us believe. However, I hope that the hon. Gentleman will bear in mind that in another place, Lord Goodhart strongly supported Baroness Anelay of St. Johns. He said:

''We are particularly concerned to note that a number of the limitations which are contained in Articles 40.2 and 40.3 are not set out on the face of the Bill . . . we feel that they should be on the face of the Bill. That is why the relevant amendments stand in the name of my noble friend Lord Dholakia as well as the noble Baroness, Lady Anelay''.—[Official Report, House of Lords, 29 January 2003; Vol. 643, c. GC202.]

I know that the Liberal Democrats often argue one thing in one place and another in another place, but I do not often come across spokesmen for the Liberal Democrats in the Commons advancing a different argument from the one advanced by their noble Friends in another place.

David Heath (Liberal Democrat, Somerton and Frome)

I believe that I said that I would be advancing the same argument as the hon. Gentleman on future groups of amendments. He need not be concerned. The arrangements pose a purely operational difficulty, rather than a legal one. That concerns me greatly, because even within interforce relationships in the United Kingdom and between the police service and other investigatory services, there is a huge capacity for fouling things up simply through lack of communication. Happily, we have overcome most of those operational difficulties, but they still happen.

The worst that can happen when mounting a serious operation—especially against organised crime, which may involve a very long period of surveillance, with sophisticated arrangements to gather information and apprehend criminals—is for a member of another force or investigating authority to find themselves on the scene at the wrong time and in the wrong place, fouling up the whole arrangement. That is not a hypothetical scenario—we know that it has happened before—which is why the amendments worry me.

If communication is lacking, there is the possibility of a French, German or Dutch surveillance officer unwittingly and without doing anything unprofessional, as far as they are concerned, finding themselves in the middle of a British policing operation or a British Customs and Excise operation to the detriment of that operation. That is not far-fetched, because criminals who are active in one country may well also be active in another. That is why there should be clear protocols about the arrangements for informing. Only very exceptionally should prior notification not be given at the point of crossing the channel or arriving at an airport or at the point of any other form of entry into this country.

The Minister may be able to correct me if she can envisage other circumstances, but it must be extremely rare for there not to be an intercommunication from a police officer from a foreign country to his or her

superiors when crossing into the UK. There must be very few circumstances in which it is impossible to make that communication, and for it to be translated into action through a request from the headquarters of the organisation to the National Criminal Intelligence Service or to an individual constabulary in the United Kingdom.

Mark Simmonds (Conservative, Boston and Skegness)

I should like to draw the hon. Gentleman's attention to what Lord Filkin said in the other place, when discussing the foreign officers. He said that:

''they must notify the NCIS before their feet touch UK soil.''—[Official Report, House of Lords, 29 January 2003; Vol. 643, c. GC199.]

I wonder how that fits in with the point that the hon. Gentleman makes.

David Heath (Liberal Democrat, Somerton and Frome)

That is precisely my belief. That should invariably be the case, but I do not think that it is explicit in the Bill. I differ from the hon. Gentleman and my noble Friends in another place in that I am not sure that the amendment covers that case, because it explicitly deals with authorisation under part 2 of the Regulation of Investigatory Powers Act 2000.

Rather than getting that precise authorisation, I am more interested in ensuring that there is communication with NCIS or the constabulary before that person lands on British soil and does their job effectively. I do not want to make the Bill over-prescriptive or over-regulatory, which might stop the police officer doing their job effectively, but I want to ensure that the protocols allow for non-interference with mutual operations. Could the Minister therefore help us by clarifying what she expects the operational arrangements to be? A person cannot instantly transport himself or herself from a mainland European country to the UK. Even with the channel tunnel trains, a time interval is involved, so there is time to give notification, if not to seek authorisation in the prescribed form.

The clause deals with offences under the law in any part of the UK, and is oddly phrased: the indefinite article is left out. In subsection (3), I would have expected relevant crime to be defined as ''a'' crime

''which falls within Article 40(7) of the Schengen Convention;''

and ''a'' crime

''for the purposes of any other international agreement . . . and which is specified.''

It is not possible to specify anything other than ''a'' crime, because crime cannot be specified as a sort of amorphous entity. The drafting seems odd, although I am sure that there is a good reason for leaving out the indefinite article—perhaps the Minister can enlighten me. I get the impression that perhaps there was no reason for doing so, and that it is just a draftsman's oddity that can be corrected before we progress much further. If so, I should be grateful for such a correction.

The Bill deals with mutual recognition of jurisdictions and offences. I know why the hon. Member for Surrey Heath is concerned that people

should not be subject to surveillance on the basis of offences that would not be offences in the UK. He has in mind offences that fall outside our jurisdiction. However, we are subject to the convention that we have signed, so we must accept the mutuality of recognition in that instance. That is a very different matter from making an arrest or intrusive surveillance of a person. The simple act of surveillance is something that can be done legally by someone who is not a constable of an overseas force. We might accept a little give and take in that area, because that might benefit British police officers operating in Europe in pursuit of offences that are not explicitly offences in European jurisdictions.

Nick Hawkins (Conservative, Surrey Heath)

The hon. Gentleman is making a good point. There is an exception, however, and it is the one to which Lord Goodhart drew attention. Some of the protocols are being brought fully into law in other EU states and so the British police officer travelling abroad might already have the fullest and widest discretion. Lord Goodhart pointed out that some bits of the protocol are not included in our legislation. Does the hon. Gentleman understand that that is a supplementary point to the one that he is making?

David Heath (Liberal Democrat, Somerton and Frome)

Yes, I do. I always feel that the best way to draft Bills of this sort, which are based on treaty obligations. is to follow as closely as possible the protocols and the wording of the treaty arrangements to which we have agreed. That does not, of course, absolve the Committee from making its own judgment on whether those are appropriate agreements. I am the last person to accept that just because we have signed a piece of paper we must to translate it into British law. It is not only our right, but our duty, to examine the implications of this assistance. In this instance there may well be advantages and no disbarring disadvantages in not having the precise wording that the hon. Gentleman suggests, but I understand his point. It is one that the Minister must address.

Caroline Flint (Labour, Don Valley)

The wording of amendment No. 71 draws on that used in the UK's original Schengen application in 1999. However, as was stated during a previous debate in another place, consultation with operational agencies identified that although UK officers will in most cases take over surveillance operations, situations may arise which would make implementation difficult if we continued to maintain our original approach. Defining ''reasonably practicable'' purely by reference to the overseas officers' journey time would simply create more problems and more uncertainty. Enforcing a condition such as the one proposed in amendment No. 71 would be very difficult.

I concur with what the hon. Member for Somerton and Frome said, but we view this as a power that would be used only on rare occasions. In most circumstances, because we do not have a land border with the European continent, it is quite likely that there will be exchange between foreign officers in France, Belgium and elsewhere and UK officers. However, there may exceptionally be an occasion where that is not possible. In response to another question, foreign officers will have to contact the

National Criminal Investigation Service as soon as they reach the UK. If there are ongoing UK operations, NCIS should know and be able to advise the officers and tell them to stop if that is appropriate.

David Heath (Liberal Democrat, Somerton and Frome)

I honestly do not know the answer to this question. Is the Republic of Ireland entering these Schengen agreements at this time? That is the one border where this might become a sensitive issue.

Caroline Flint (Labour, Don Valley)

I thank the hon. Gentleman for raising that because it gives me the opportunity to set out the position. As Irish Republic has chosen not to opt in to article 40 of Schengen, these arrangements will not apply across the land border between Northern Ireland and the Republic. However, in April 2002, the UK and Ireland signed an intergovernmental agreement on policing co-operation, and that provides a far more structured relationship between the Police Service of Northern Ireland and the Garda Siochana to build on the good co-operation that already exists.

Given the long-standing security situation in Northern Ireland, there are clearly special sensibilities to be considered. The PSNI has gained a wealth of experience in delivering policing in that environment. Foreign officers will not be able to continue surveillance into Northern Ireland, but that does not mean that operations will be lost as the PSNI has a capability to take over its surveillance as appropriate.

Nick Hawkins (Conservative, Surrey Heath)

In another place, on this matter of the land border between Northern Ireland and the Republic of Ireland, Lord Stoddart of Swindon asked an important question. We are all concerned about terrorism, but we are particularly aware of the tragic consequences in this country of terrorism emanating from Ireland, whether north or south. Lord Stoddart said:

''As I understand it, these provisions do not apply to the Irish Republic; so IRA people who bomb in Northern Ireland and flee to the south will not be able to be hotly pursued''—

did he mean hotly surveilled?—

''by British policeman. Is that right?—[Official Report, House of Lords, 29 January 2003; Vol. 643, c. GC203.]

Lord Stoddart did not receive a terribly thorough answer to that. The Minister has given a partial explanation of how the Irish Republic has not opted into article 40 of the Schengen arrangements. If she cannot do it today, I ask her to write giving a detailed answer to that question.

Caroline Flint (Labour, Don Valley)

If the answer that I am about to give does not satisfy the hon. Gentleman, I shall agree to his request. In April 2002, the UK and Ireland signed an intergovernmental agreement on police co-operation, and we are pleased with our strong relationships with the Republic of Ireland in tackling terrorism and cross-border crime. Both operational and policy agencies in Northern Ireland were consulted on the implementation of article 40 in the UK, and we believe that they are satisfied with the arrangements as they stand. However, I am pleased to follow up that point and find out more on the specific point raised by the hon. Gentleman.

Mark Simmonds (Conservative, Boston and Skegness)

I wish to understand exactly what the Minister means. Is she saying that the agreement that was signed in 2002 between the Republic of Ireland and the United Kingdom allows for hot surveillance to take place across the border the between the Republic and Northern Ireland? Secondly, the Irish Republic is not part of the Schengen agreement. Does that mean, for example, that a French officer in hot surveillance of someone who has left France for Northern Ireland rather than what is classified as mainland UK would be allowed to continue that surveillance for the five hours provided for in the Bill?

Caroline Flint (Labour, Don Valley)

I understand that the answer to the first question is no. As I said, there are good relationships between the police services of the Republic and Northern Ireland. In answer to the second question, I understand that if a French police officer was to arrive in Belfast, the application would apply. That is my understanding at the present time.

I have already clarified the point about contact with NCIS. I shall next deal with the absence of a definite article. More than one crime may be covered, so it is a generic reference. We do not know what future international agreements may say, so a definitive or indefinite article is inappropriate, but we will consider the matter further and write if we consider that view to be inaccurate. However, we believe that the drafting is right.

In answer to a point raised by the hon. Member for Surrey Heath, it is important to remember that the foreign officers making requests under the privileges must already be undertaking lawful surveillance of an individual in their own territory, who has unexpectedly headed for the UK. Foreign officers would not be allowed to turn up at short notice in the UK and initiate a surveillance operation against a British citizen already in the UK. Such cases would clearly be pre-planned, and would have been discussed with the appropriate authorities in the UK.

Mark Simmonds (Conservative, Boston and Skegness)

I am intrigued by the use of the word ''unexpectedly''. Bearing in mind that we are an island nation, with the exception of the land border that exists between the Republic of Ireland and Northern Ireland, how can it be unexpected if a potential villain or suspect were to get on a ferry or an aeroplane or use the channel tunnel? It would take at least an hour to reach our shores, by which time the UK surveillance forces could be up and operating. Indeed, Lord Filkin said in the other place that the foreign officers

''must notify NCIS before their feet touch UK soil.''—[Official Report, House of Lords, 29 January 2003; Vol. 643, c. GC199.]

I cannot think of any circumstances in which a UK surveillance team would not be available to pick someone up, particularly given the serious nature of the crimes set out in article 40 of the Schengen agreement.

Caroline Flint (Labour, Don Valley)

Unfortunately, this is one of the factors that will be difficult to assess. It is reliant on the UK officers being prepared and having the resources at their disposal to move to Waterloo station, to Dover or elsewhere to pick up surveillance at the other

end. We must remember that we are talking about a surveillance operation, not a hot pursuit. It is about non-engagement. Let us remember that we want the same provision for UK officers to go the other way—back into Europe. We must question whether it is practical in a matter purely of surveillance for UK police officers to take over that duty at this end, or if UK police officers were going the other way, for French police officers to take over that operation. We would not expect that to be an everyday occurrence.

Nick Hawkins (Conservative, Surrey Heath)

I shall make a request with which the Minister will not be able to deal today, but which would enable Committee members to have the fullest information before the legislation returns to the House for the remaining stages, and then back to the Lords. I anticipate a dispute between the Commons and the Lords on this matter. Will the Minister and her officials write a letter setting out the stages that our EU partners are at within Schengen, showing how—on this particularly controversial issue—the legislation in those countries is progressing? That would allow us to see much more clearly how British police officers' surveillance will work in those other countries. It is crucial that we know what British police officers will be able to do on a reciprocal basis.

Caroline Flint (Labour, Don Valley)

I shall get back to the hon. Gentleman on that. I should like to return to the body of my speech.

David Heath (Liberal Democrat, Somerton and Frome)

I do not want to prevent the hon. Member for Surrey Heath from getting any information that he wants, but is it not the case that mainland European countries already have the arrangements in place, as members of that part of Schengen? Is it not common practice for Belgian, Dutch and German officers to cross borders when necessary? We are the odd ones out.

Caroline Flint (Labour, Don Valley)

I thank the hon. Gentleman for that intervention, and he is absolutely right. Powers of surveillance would be more readily used where land borders met with many other countries. That is much more the case in mainland Europe than in the UK. All other Schengen states have already implemented the arrangements, as the hon. Gentleman said. The convention has been in force since 1995 but, as I said earlier, the Republic of Ireland has not yet signed up.

I wish to correct a point that I made earlier about Northern Ireland. A French officer heading to Northern Ireland would always be escorted by the Police Service of Northern Ireland due to the special situation there. I hope that I did not mislead anyone earlier. Owing to the special circumstances of Northern Ireland, a foreign officer would always have to make contact in advance.

In response to the request for more information, I understand that we have already written to the hon. Member for Surrey Heath on the matter that he raised. All other EU states have implemented Schengen, apart from the Republic of Ireland. I wish to return to the main body of my speech. We will debate the issue of surveillance as we progress through the clause.

In my answers to the interventions, I have outlined some of our reasons for opposing amendment No. 71. Defining ''reasonably practicable'' in the way that has been proposed would create serious operational and practical difficulties. New section 76A(1)(c) already makes it clear that the section applies only if it is not reasonably practicable for UK officers to take over surveillance when they arrive in the UK. The section therefore applies only in the urgent cases envisaged in article 40.2 of the Schengen convention. If the foreign officers could have telephoned sufficiently far in advance to give a UK team enough time to take over surveillance, but choose not to, the proposed section will not apply. Similarly, if they ring up, but the UK authorities do not try to put a team in place, the proposed section will not apply. That is because in both cases it would have been reasonably practicable for a UK team to take over the surveillance. It would be clear in such circumstances that a pre-organised arrangement could have been forthcoming, so the powers under foreign surveillance operations could not apply.

Furthermore, the amendment envisages that the time it would take a UK team to take over the surveillance will be fixed. It will not. It will vary and depend on several matters, including the resources required for that particular surveillance. For example, a foreign officer might ring up from Calais and say that he was about to follow a suspect to Dover. Sometimes, it will be possible to put a UK team in place to meet him, but sometimes it will not. The question is whether it is reasonably practicable to do so in the time available. Only if it was not reasonably practicable would proposed new section 76A apply. That will be the effect of the clause and, accordingly, we consider that defining ''reasonably practicable'' by reference to journey times is unnecessary and unhelpful.

Sufficient safeguards are already in place to ensure that foreign officers do not abuse the powers granted under the provisions. In response to worries expressed in another place and to make the position clear, we have placed in the Bill several restrictions to be imposed on foreign officers. The restrictions clarify that foreign officers must contact the National Criminal Intelligence Service on arrival in the United Kingdom and that they are not allowed to enter private property to conduct surveillance. For those reasons, we cannot accept amendment No. 71.

Amendment No. 72 would ensure that the order-making power under subsection (3)(b) might be used only to extend such surveillance to crimes that are an offence in the United Kingdom. Concern about the provision has been expressed again today. However, we consider that it strikes the right balance between the need to allow for a new agreement to be brought into effect and for it to receive proper parliamentary oversight.

Subsection (3)(b), as drafted, gives the Government flexibility should we wish to join a new international agreement that included provisions on cross-border surveillance, as my hon. Friend the Member for Greenock and Inverclyde (David Cairns) intimated. The sort of offences that might be investigated by

foreign officers on our soil as a result of the provisions will be similar to those covered by article 40 of Schengen. They would be serious crimes. I stress that we do not agree with that sort of arrangement in respect of petty offences. The reason for such flexibility is that we prefer to take a generic approach to one that depends on harmonisation of offences between countries. The list of offences to which article 40.2 of Schengen applies are widely drafted, but refer clearly to serious matters.

We expect a future agreement to take a similar approach. I do not anticipate a situation in which foreign officers who suspect a person of committing, for instance, an offence of xenophobia would be allowed to conduct that type of surveillance in the UK. It is worth remembering that foreign officers would not be conducting investigations in this country because they would not have the executive powers to do so. They would not have the power to arrest or interact with the person under surveillance. It would be a matter of discreet surveillance for a short time.

Examples of the type of crime that might be considered in addition to those currently covered by article 40, and which have been discussed in the context of the Schengen convention, are organised fraud, smuggling of illegal immigrants, laundering of the proceedings from organised crime and illicit trafficking in nuclear and radioactive substances. A future agreement containing such provisions would be subject to parliamentary oversight before it could be ratified. For those reasons and those that I outlined earlier, we will not accept the amendment.

Nick Hawkins (Conservative, Surrey Heath)

The Minister will realise from my interventions, those by my hon. Friend the Member for Boston and Skegness (Mr. Simmonds) and from, in part, what the hon. Member for Somerton and Frome said, that Opposition Members are not happy with the Government's argument. There was much debate about such measures in another place and there continues to be. The Minister was frank enough to admit, however, especially in relation to amendment No. 72, that there are judgment calls to be made. We come down on a different side from the Government. The matter may be referred to again in the remaining stages of the Bill, including Third Reading—and, if I am right, when it returns to another place. I do not want to detain the Committee too long on this group of amendments, because the biggest issue comes next. For that reason only, I do not seek to press the amendment to a Division. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Caroline Flint (Labour, Don Valley)

I beg to move amendment No. 156, in

clause 82, page 55, leave out lines 41 to 43.

I have given considerable thought to the issues raised in the other place on the matter and I have had conversations on the margins of the Committee with representatives of the Opposition. After discussion with my officials, I consider that it is important for the subsection to be removed. I will outline the reasons why that should be done.

We had a useful discussion about the previous amendment, in which some concerns were aired about surveillance. I want to make it clear what we understand by ''surveillance''. As I said earlier, I have heard the term ''hot pursuit'', but not ''hot surveillance''. I am not sure if there can be lukewarm surveillance or cold surveillance. I do not understand the concept.

Nick Hawkins (Conservative, Surrey Heath)

The Minister is being a little disingenuous when she says that she has not heard the term, because it was referred to extensively by several noble Lords in another place. Even if the hon. Lady had not heard of it before taking up her new responsibilities, she must have certainly read about it in the proceedings of the other place. It is absolutely clear what the word means. In the same way that ''hot pursuit'' means crossing a border in pursuit of people in an urgent way—that is what the ''hot'' implies—''hot surveillance'' refers to exactly what the Bill contemplates, which is foreign police officers not having time to contact people while they carry on their surveillance across borders. The reason why the word ''hot'' is used is because it is used in the phrase ''hot pursuit''. I know that the Minister is being slightly facetious, but she must understand what was said in a serious way in another place.

Caroline Flint (Labour, Don Valley)

I take the comments made in another place very seriously. However, in the short time that I have been a Minister, it is not a term that I have seen in the papers that I have gone through.

Bill Wiggin (Conservative, Leominster)

Will the Minister give way?

Caroline Flint (Labour, Don Valley)

I will not give way. I want to make some progress on the body of my speech, although I will be happy to take interventions later. It is a serious issue and I want time to expand on the reason for the Government amendment.

Whichever term we use—''hot surveillance'', ''surveillance'', ''hot pursuit'', ''pursuit''—the crucial point is that surveillance is surveillance. It is not about pursuing someone. It does not imply powers of arrest. It is about watching and observing a suspect to monitor his activities. Police officers in this country do that all the time. Under the Bill, it means recognising and tackling organised crime, and some of the other offences that I mentioned earlier. National boundaries can be a way in which criminals can commit crimes in different countries or pursue a crime which, by crossing national boundaries, defeats the laws of the countries concerned and the expectations of ordinary people that such crime should be thwarted.

It is a serious matter to allow foreign officers to come into this country to undertake such an activity, in the same way as it is for other member states of the European Union to allow UK officers to go in the other direction. Therefore, it is important that the matters are debated and that we are clear about their implications.

The amendment removes from the Bill the provision that was inserted in another place. It will prevent a foreign police or Customs officer conducting relevant surveillance in the United Kingdom from stopping or questioning a person under surveillance.

As surveillance is an observing activity, the subsection is unnecessary. I will explain why we think that it could be confusing as well.

We agree that foreign officers must not stop or question a person. It is an explicit requirement of the Schengen agreement that a suspect should not be challenged or arrested. Serious deterrents are in place to ensure that foreign officers do not breach this condition. If they did, they would create a problem for themselves because they would no longer be carrying out surveillance, and new section 76A would not apply to their operation. Moreover, they could be putting themselves in a dangerous position, given that they could not summon support with the ease with which a UK officer could in similar circumstances. I remind the Committee that the subject of the operations will be people suspected of serious criminal activity.

Furthermore, if a foreign officer was to engage with a suspect, they would be putting at risk the trust between countries that is fundamental to Schengen co-operation. The Schengen arrangements require a report to be made on every operation involving urgent surveillance, so any breach of the conditions of the convention would be investigated. Any officer found to have breached the conditions would risk jeopardising any future operations between their country and the UK, and might even be at risk of disciplinary proceedings.

It is worth noting that it is most unlikely that an officer would have a copy of the Bill with him. He is much more likely to be familiar with, and have access to, the provisions of the Schengen handbook, which sets out the conditions relating to cross-border surveillance, including the ban on challenging a target. There are therefore clear operational reasons why we consider it most unlikely that a foreign officer would ever risk challenging a target.

I accept that the hon. Member for Surrey Heath (Mr. Hawkins) would prefer the prohibition to be included in the Bill. We concluded, however, that the amendment was flawed. It would make bad law and should therefore be removed. The term ''prohibition on challenge'' is illogical. The clause seeks to prohibit persons conducting surveillance from challenging the suspect. However, an officer cannot conduct covert surveillance of the suspect and simultaneously challenge him or her. If they challenged the suspect, they would no longer be conducting surveillance, and new section 76A would not apply. Foreign officers acting under the clause have no powers under UK law to stop and question anyone. The amendment is therefore ineffectual in so far as it is an attempt to remove a non-existent legal power.

The clause seeks to create a prohibition but does not have a corresponding sanction. It does not make foreign officers liable to criminal proceedings, or make their challenging the suspect a criminal offence, and it would not be appropriate for there to be a criminal sanction in this part of the Bill.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The amendment could have an effect at a subsequent stage in proceedings, in that it

might render inadmissible any evidence obtained in that way.

Caroline Flint (Labour, Don Valley)

As I said, if, under the powers of surveillance, officers challenged or engaged with the individual, that could make any legal proceedings in which they were involved open to challenge. More important, however, it would drive a coach and horses through the co-operation that we are trying to establish through these procedures. As I said, a report would have to be made on any operation, and it is not in the interests of the UK or the foreign police officers signed up to the agreement to undermine that agreement by abusing their powers of surveillance.

David Heath (Liberal Democrat, Somerton and Frome)

Will the Minister give way?

Caroline Flint (Labour, Don Valley)

I want to make a little more progress before I take another intervention.

As I said, the foreign officer might be subject to disciplinary proceedings at home. We believe that to be the most appropriate sanction. In addition, unlike other conditions in new section 76A, subsection (4) would not make the surveillance of the target unlawful if the target were to be challenged. Making surveillance of the target unlawful would also be illogical, because if a foreign officer were to challenge the target, he would obviously no longer be conducting discreet surveillance, and new section 76A would no longer apply.

On the question of prohibition without sanction, I should be interested to hear what members of the Committee believe an appropriate sanction to be. Because the amendment would make bad law, there is a risk that it could lead to misinterpretation of new section 76A as a whole. That is because the courts act on the principle that Parliament acts wisely and does not pass legislation that has no legal effect. Accordingly, the amendment could result in the clause being interpreted in such a way as to fail to deliver the policy intention behind it; that is, allowing very limited and tightly controlled cross-border surveillance by overseas officers. Given that the policy appears to have cross-party support, that is something that we should all seek to avoid.

I can understand the reasoning for wishing to make the ban on challenging clear. However, our view is that it is already clear, that there are sufficient deterrents in place and that we should not make bad law.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Lady's contention that the provisions are bad law seems to rest entirely on the fact that they are couched in terms of prohibition. Would she therefore accept an amendment that replaced the prohibition with a condition under new section 76A(5) which would remove her objections but maintain the intentions of her noble Friends and others in another place?

Caroline Flint (Labour, Don Valley)

We have tried to think of alternatives that might fit into the clause, but so far we have not come up with any. I would seek to remove the clause today on the grounds on which I have argued. However, we are open to suggestions to find other ways round if people have ideas. At the moment we feel that the prohibition and the way that the clause is phrased open up a can of worms and will not deliver.

In relation to the point that the hon. Member for Orkney and Shetland (Mr. Carmichael) made earlier, we considered whether it would be practicable to make the surveillance unlawful if the suspect was subsequently challenged. However, we have rejected that idea, because it is not sensible to say that surveillance that has been conducted entirely in accordance with new section 76A should be made unlawful because the officers subsequently challenge the suspect. That would risk losing valuable intelligence on serious criminal suspects. As the provisions are drafted, prohibition would not make evidence inadmissible.

In closing my opening arguments, I assure the Committee that there are enough powers to ensure that surveillance is what it means and that it will be clear to those operating under the arrangement what they can and cannot do. The phrasing of the clause is unhelpful, in that it raises a question and says what someone cannot do without addressing what we do if they in fact do that. The clause also causes confusion over the interpretation of the term surveillance, in that it says that one must not be able to do something that one should not be doing in the first place.

As I said, we shall pursue the amendment at this stage in order to remove the relevant subsection, but we are open to representations if people want to come forward with something that we feel can be included in the Bill.

Nick Hawkins (Conservative, Surrey Heath)

The Committee realises, as do you, Mr. Benton, that this debate is what I would refer to as the big one. Despite the advice of the hon. Member for Somerton and Frome, my hon. Friend the Member for South-East Cambridgeshire and I, the Government have decided that they want to remove what another place put in. On 17 March 2003 there was a Division in another place in relation to the efforts of Baroness Anelay of St. Johns to insert subsection (4), and the combined forces of the Opposition parties succeeded. They felt that there should be clarification, which is why so many Lords from different parties joined to defeat the Government.

The Minister has referred to the discussions have taken place between the parties in the margins of the Committee. Since the Minister has drawn attention to those discussions, it is fair to say that, as would be clear to anyone listening to the Minister's speech or reading it subsequently, the real problem comes with the advice that the Minister and her other officials have received from parliamentary counsel. Parliamentary counsel are the experts on statutory drafting, and we all, whether Government or Opposition Members, have to take those points seriously. With the greatest respect to parliamentary counsel, however, there comes a point when this House and another place have to decide how we think that British citizens will understand the legislation.

We want Bills to be as clear as possible when they become Acts Of Parliament, and there can be no common-sense reason, never mind the concerns about the niceties of statutory drafting and statutory interpretation, why the subsection should not be left

in the Bill. It cannot do any harm to the understanding of the legislation by ordinary British citizens. It is very clear and is in ordinary English. The Government often say that they want to improve things and have plain English in legislation.

The subsection states:

''A foreign police officer or customs officer conducting relevant surveillance''—

the Minister rightly says that surveillance means what it says—

''in the United Kingdom under this section shall be prohibited from stopping or questioning a person under surveillance.''

That subsection provides clarification and is helpful to have in the Bill. I see the hon. Member for Orkney and Shetland nodding. I agree with what I heard him say sotto voce towards the end of the Minister's opening remarks. He agreed with me—indeed, this is the view on the combined Liberal Democrat and Conservative Benches—that the Minister is just plain wrong when she says that if subsection (4) is left in, that will not automatically invalidate evidence and mean that it is inadmissible.

I may not be an expert on statutory drafting or statutory interpretation, but I have had pretty extensive sharp-end experience of the law of evidence as it is normally regarded in the courts of England and Wales. The hon. Member for Orkney and Shetland has had a lot of experience at the sharp end of how evidence is dealt with in Scots law and Scottish courts, and no doubt he will tell us about that. It is pretty clear to any of us who have practised at the sharp end in the courts that if a court in England and Wales is presented with evidence arising from a stop or questioning by a police officer from overseas and subsection (4) is still in the legislation, the judge will say, ''I'm sorry. This evidence arising from a stop or questioning is inadmissible.'' I see the hon. Gentleman nodding. I take it that there would be a similar response from a Scottish judge, magistrate, sheriff or whoever.

I think that the Minister is just plain wrong and she will have to go back to her officials on that point. However, it is only a small part of her argument. She is basically saying that we should not leave subsection (4) in the Bill because it would confuse matters. I do not accept that. We have a head-on collision. The Minister is a new Minister and we do not want to embarrass her—we do not necessarily want to embarrass the Government—so my hon. Friend the Member for South-East Cambridgeshire, the hon. Member for Somerton and Frome and I have, in the nicest possible way, warned her that if she persists with her argument there will probably be a pitched battle between the Commons and the Lords. That is unnecessary and unhelpful when all parties agree with the substance of most of the legislation. Most of the arguments that we have had in these sittings have been on points of detail. We all want to tackle cross-border crime.

Stephen Hesford (Labour, Wirral West)

Will the hon. Gentleman give way?

Nick Hawkins (Conservative, Surrey Heath)

In a minute.

There cannot be any harm in having subsection (4) in the Bill. It will not undermine the legislation. The Minister said one thing that was very helpful. I welcome that and take it in the spirit in which it was intended. She said that she and the Government as a whole were open to ideas, perhaps along the lines of the suggestion from the hon. Member for Somerton and Frome about treating that provision in a different way. I am sure that he, my hon. Friend the Member for South-East Cambridgeshire and other Opposition Members will put our thinking caps on and see whether we can come up with another way of achieving our objective. We should like to help the Government to keep that protection and clarification in the Bill if we can.

At present, the position is that the Minister will force through her amendment. She has the forces in the Committee on her side. We will have a vote and the Government will win.

Bill Wiggin (Conservative, Leominster)

Will my hon. Friend give way?

Nick Hawkins (Conservative, Surrey Heath)

I will give way to the hon. Member for Wirral, West (Stephen Hesford) first.

Stephen Hesford (Labour, Wirral West)

I am obliged to the hon. Gentleman for giving way. I hope that he does not mind my pointing out that what he is saying is patronising nonsense. The subsection, if it is aimed at anyone, is aimed at a foreign police office; it is not aimed at a British subject. However, most of the hon. Gentleman's speech has been designed for British citizens. It is palpable nonsense. As the Minister said, a foreign police officer entering our jurisdiction will come with the handbook firmly in their mind. They will be armed with the relevant procedure and will know the consequence of disenabling new section 76A if there is a confrontation. The subsection is both patronising and without purpose.

Nick Hawkins (Conservative, Surrey Heath)

The hon. Gentleman may not have been listening to me or understanding what I was saying, but my point was that any Act of Parliament needs to be clearly understood by the people who read it, including the courts, judges, magistrates and police officers. We must ensure that Acts of Parliament are clear.

The hon. Gentleman is right that the purpose of subsection (4) is to prohibit foreign police officers from doing something. I do not know whether he bothered to read the extensive debates from another place—I hope that he has, because all Conservative Members have—but in them, Ministers accepted that foreign police officers do not carry the Schengen handbook with them. There was a lot of discussion about whether people carry ''Archbold'', the bible of criminal law and procedure, and, of course, people do not carry it. In the end, Ministers were saying that although foreign police officer might not carry the Schengen handbook, they would always have superiors whom they could contact to ask about it. We want a British Act of Parliament to be clear in its terms, and I am sorry that the hon. Gentleman's argument is undermined by his Ministers in another place.

Bill Wiggin (Conservative, Leominster)

Does my hon. Friend not find it incredible that although the purpose of this part of the Bill is to add clarity, the Minister does not understand what hot surveillance is? Clarity is essential.

Nick Hawkins (Conservative, Surrey Heath)

Yes. As always, my hon. Friend makes a powerful point.

The important point is that clause 82 introduces new section 76A into the Regulation of Investigatory Powers Act 2000. I followed the passage of that legislation carefully. The Conservative spokesman in Committee was my hon. Friend the Member for North-East Hertfordshire (Mr. Heald), but we had many discussions in the shadow Home Office team about how it would work.

The Minister or her officials will have looked back to some of the Committee debates. I do not know whether the hon. Member for Somerton and Frome served on that Committee, but many of its debates were about trying to ensure that investigatory powers were clarified, which is the point of substance as my hon. Friend the Member for Leominster (Mr. Wiggin) rightly said. By including subsection (4), the other place has clarified both the Bill and the changes that it makes to the 2000 Act.

I urge my hon. Friends and the Liberal Democrats to vote against the Government today to place on the record the fact that we do not agree with the Minister, although we will accept her invitation to put on our thinking caps and come up with another way of working. It would be very helpful if we could come up with something that satisfied the Government and parliamentary counsel and stopped a pitched battle between the Commons and Lords, which the Government are risking. However, there is a firm disagreement, and we want to stick to what the House of Lords did, as it made the legislation much clearer.

David Heath (Liberal Democrat, Somerton and Frome)

This is one of those foolish debates that we sometimes get into in the House, in which Ministers resist something with which they do not agree because they do not like the wording. The Government usually resist until they table an amendment to the same effect on Report or the issue goes to the Lords, where they lose the battle and realise that the Bill will not be passed unless they use some common sense. Eventually, we get what we want. It would be much more sensible if we circumvented some of that process by an early concession of the principle, so that we can establish what the wording should be, rather than going through such a protracted and pointless process.

The Minister said clearly that she does not intend a foreign police or Customs officer conducting relevant surveillance in the United Kingdom to stop or question a person under surveillance; indeed, it would not be allowed. That is common ground on both sides of the Committee; no one wants it to happen. Therefore, the hon. Lady's argument rests entirely on whether subsection (4) is phrased in a way that Ministers can accept. The Minister purports that ''prohibited'' is the wrong word because it suggests prohibition without remedy and she would prefer a different form. If that is so, why have not Ministers tabled an amendment that includes a phrase that we could all agree?

There was a clear agreement in the original protocol that police officers would not challenge. I understand that the word ''challenge'' is not in the Bill because it is not a helpful word in English as it could mean any of a number of different activities. Sometimes words are thrown up that do not convert easily into British law because of translation problems, and alternative formulations must be found to put what is meant into effect. Stopping and questioning are well understood terms in English law and there is no ambiguity about them.

Robert Syms (Conservative, Poole)

Stopping and questioning by a police officer is on the face of the Bill, but what happens if someone under surveillance notices that individual, challenges him and gets him into conversation? Is that likely? If so, it may be a defence in court.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman is introducing a complication that we can do without in what is already an exercise in semantics. I do not want to diminish his point, but it is not particularly helpful to the argument that his hon. Friend the Member for Surrey Heath and I are trying to pursue.

The other argument advanced by the Minister relies on the definition of surveillance which as defined means covert surveillance and is inherent in new section 76A(2)(b), which states that it is

''for the purposes of Part 2, directed surveillance or intrusive surveillance.''

For the purposes of the Regulation of Investigatory Powers Act 2000 that means covert surveillance. The hon. Lady relies on the fact that it has to be covert surveillance for it to fall within the section in any case. Therefore, if the police officer were to stop or question a person under surveillance it would no longer be covert surveillance and would fall outside the proposal.

Stephen Hesford (Labour, Wirral West)

What would happen if the subsection was not deleted and the officer undertaking the surveillance accidentally bumped into the person under surveillance and physically stopped him in the street? Would that destroy the operation?

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the hon. Gentleman because he can easily direct that question to the Minister, who says that it would not be permitted for a police officer to stop the person. There is no difference between our parties on what is not allowed—

Stephen Hesford (Labour, Wirral West)

If the hon. Gentleman does not mind my saying so, he is not attending to the issue. The word in the agreement is challenge; simply bumping into someone would not be a challenge, but it would be a stop. This is a different form of words, which those who want the subsection to remain in the Bill must justify.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman is a lawyer; he knows perfectly well that the term ''stopping and searching'' is not unknown in English law. I do not know whether it is in Scottish law. It does not include bumping into someone. [Interruption.] Police officers are not forbidden to bump into—

Joe Benton (Labour, Bootle)

Order. An intervention has been made. The hon. Gentleman is replying. Would the Committee please allow him to do so and then we can make progress in a sensible way?

David Heath (Liberal Democrat, Somerton and Frome)

I am most grateful, Mr. Benton. I am trying to address an extraordinarily fatuous point.

Nick Hawkins (Conservative, Surrey Heath)

Just to reinforce how fatuous it is, the hon. Member for Wirral, West would not have made his intervention had he bothered to read the comments made by the Minister in another place. Lord Filkin said:

''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'''.—[Official Report, House of Lords, 17 March 2003; Vol. 646, c. 49.]

That comprehensively deals with the hon. Gentleman.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman need not have taken the trouble to look up the proceedings in another place. He merely needs the attention span of a goldfish to have remembered what the Minister said in Committee only a few minutes ago. She used the phrase ''stop and search''.

David Cairns (Labour, Greenock and Inverclyde)

The people who gave us the Dangerous Dogs Act 1991 and the Child Support Agency will recognise that wording matters. The Bill does not say ''stopping and searching'' or ''stopping and questioning''; it says, ''stopping or questioning''. The hon. Gentleman cannot get away from the question of stopping by lumping in ''and questioning''. Would he address himself to the wording in the amendment?

David Heath (Liberal Democrat, Somerton and Frome)

I am sorry to disappoint the hon. Gentleman. I can very easily get away from a very silly point. I intend to do so right now.

The Minister relies on the definition of covert surveillance. It would be entirely possible for a police officer—a foreign police officer in these circumstances—to stop a person or to question a person without revealing that a covert surveillance operation was under way. The person who was stopped or questioned might suspect that it was, but not necessarily. I therefore do not think that the Minister's definition holds water. This is a crucial point. We are trying to translate the protocols and the Schengen handbook into British law.

The Minister agrees with us that stopping and searching by foreign police officers should not happen. She says that it would invalidate the covert surveillance if it did. I am not convinced of that because I am not convinced that a UK court would necessarily find that there was no longer a process of covert surveillance under those circumstances. That is merely a difference in our views of the way that a court might interpret it. However, I am absolutely clear that a UK court would have no difficulty in understanding what was meant by new section 76A(4) and would, if evidence were produced in UK proceedings on this basis, consider it to be inadmissible.

Our only difference is that we seek to phrase this differently. The Minister does not like the word ''prohibit''. I am completely agnostic about whether we use ''prohibit'' or another word that is to her liking. She does not like the fact that the subsection is where it is. I am completely agnostic about whether it is there, and whether it forms part of the conditions or is in another part of the clause. We must simply come to some sort of agreement about how we can achieve what we both want. The Minister's view is that the best way of achieving that is to pass the amendment, which deletes the entire subsection and puts nothing in its place. I tell the Minister that we do not find that satisfactory. Perhaps more important from her point of view, I am confident that those in another place will not find it satisfactory either. When the Minister strikes out the amendment, the Bill will have to be passed back to another place from which, as sure as eggs is eggs, it will come back to us. Common sense should dictate that we find an accommodation now and avoid that eventuality. I therefore hope that the Minister and her officials will take account of what I have said, but I suspect that we may have to divide on the amendment to show our strength of feeling. However, I hope that by Report we shall have a commonly agreed view that expresses what we all want to see in the Bill.

Robert Syms (Conservative, Poole)

In an ideal situation, police officers would arrive, inform local police authorities, and surveillance would take place unobtrusively and at a distance, from a building or a car, so that the potential target would not be aware of what was going on. However, as we all know, such ideal situations do not always occur. A situation could arise in which a couple of officers came over from Holland in hot pursuit—

Caroline Flint (Labour, Don Valley)

We are not discussing pursuit, but surveillance.

Robert Syms (Conservative, Poole)

Two officers could be in the UK trying to identify their target. Surveillance is a fairly broad term—one can surveille someone from across a Committee Room, and if one follows someone on a tube, or to their home, that also is surveillance.

I expressed concerns about the term ''prohibit''. Criminals are usually the only people apart from lawyers that read the law, and if they noticed someone in the vicinity of their home, they might challenge them and, as the hon. Member for Orkney and Shetland pointed out, that could become a problem in a subsequent prosecution. The wording is not perfect, but the Bill should make it explicit that we do not expect foreign police or Customs officers to be able to challenge British citizens without a British police officer being present.

In an ideal world there would be no problem, but we all know that we do not live in an ideal world. We do not live in a world in which lots of police officers are available in the Met or elsewhere. I suspect that massive manpower is not available, and that if officers come from abroad there may be problems. The matter needs to be clarified. If we vote on the amendment, I shall support my hon. Friend the Member for Surrey Heath, but I hope that a form of words may be found

that will satisfy hon. Members on both sides of the Committee. The duties and responsibilities of foreign and domestic police and Customs officers must be made clear.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

First, I commend the Minister for having re-engaged my waning interest in the Bill. Earlier this morning, I was able to participate in the proceedings with my eyes closed, as I meditated on the great words issuing from all around me.

I endorse the sentiments expressed by the hon. Member for Poole (Mr. Syms) and by my hon. Friend the Member for Somerset and Frome—[Hon. Members: ''Somerton and Frome.''] I am sorry—my hon. Friend the Member for Somerton and Frome. It is hard to remember—it is all England-shire to me. I hope that the Minister will take account of what was said by my hon. Friend and by the hon. Member for Poole, and might reflect on the way in which business is to be conducted in the Committee.

The Minister will be aware that there is a spirit of co-operation on this point, and that if the Government choose to insist on having their way, we may return to the matter on Report. However, the Minister might consider not insisting on her amendment today, but holding further discussions between now and Report. If it is possible for the Committee to accommodate the opinions of both sides by using an alternative form of words, that would be desirable, and would show the House and the Committee that it had conducted itself properly and might improve our standing.

I confess that I was not impressed by the Minister's argument for not including the subsection, nor by her argument about prohibition being included without a correlative sanction. There is obviously a sanction—I am not convinced that there should be one—simply because there is a prohibition. The effect of prohibition is merely an exclusion. The effect of the subsection is clear. It removes the activities in which the person is engaged from the scope of relevant surveillance. That would be the sanction. ''Sanction'' is not a helpful word, but I am bound to use the same language as that employed by the Minister.

The whole Bill, and particularly the new section and subsection, deals with exceptional powers and it is important that they be very tightly drawn. That is why the subsection is important and why it should stand unless it can be improved on.

I also asked the Minister about inadmissibility and I have not been satisfied on that point either. We are dealing with what will often be cross-border crime and it is possible, especially if surveillance culminates in arrest or detention, that a prosecution in one of the United Kingdom jurisdictions might result, so admissibility is a live question. If the Bill did not contain the clear exclusion in the subsection, any judge could ask prosecuting or defending counsel why the evidence was not admissible and whether it was obtained fairly or unfairly. I understand that the Minister agrees that it would be improper to submit evidence obtained other than in accordance with the Police and Criminal Evidence Act 1984 in England and Wales or the various criminal procedures Acts in Scotland, the most recent being the Criminal

Procedure (Scotland) Act 1995. Significant issues arise about the liberty and rights of individuals in this country which could be easily overridden. That is why it is important and that the Minister is wrong to come here and ask us to exclude the provision without offering something better. I hope that, in the spirit of co-operation on both sides of the Room, she will consider whether it is appropriate to proceed with the juggernaut of the Government's majority or whether we could do something better by consensus on Report.

David Cairns (Labour, Greenock and Inverclyde)

I have a genuine question, which I hope the hon. Gentleman will not try to bluster out of—that is a tendency of his hon. Friend the Member for Somerton and Frome. He referred to diminution of rights of ordinary citizens and I understand that he seeks clarification and common ground, but what serious rights of British citizens would be diminished if the subsection were omitted?

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The hon. Gentleman must be aware that individuals—citizens or subjects; call them what you will—have the right not to incriminate themselves. That is why we have different forms of caution, including caution preceding charge and caution preceding questioning. That will not be the situation under clause 82. Surveillance is one thing, but proceeding to question an individual without making him aware of who is questioning him or why is a different matter. That is why we could end up with evidence not being admissible. It could happen with the best will in the world. For instance, a foreign officer who was thought to have exceeded his powers might consider that his evidence had been fairly obtained according to the standards of criminal procedure and the law of evidence in his country, but those standards might not match the standards that would apply in a United Kingdom court. That is why it is important that the provision is tightly drawn.

Caroline Flint (Labour, Don Valley)

I hope that I might help. Our expectation is that the evidence gathered by foreign officers would be used in overseas courts. We cannot, in UK legislation, deal with admissibility issues in French courts, because we have no jurisdiction there. I hope that I have created some clarity.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I am sorry, but the Minister does not help at all. I prefaced my remarks on admissibility by making it clear that it was possible that a prosecution could be taken in one of the jurisdictions of the United Kingdom.

I have some small experience of this, because I have prosecuted what was effectively cross-border crime. I recall a case concerning the supply of MDMA. It involved the transportation of ecstasy tablets on the Red Star parcel service from King's Cross station to Aberdeen, where those engaged in the supply were subsequently apprehended. That was cross-border supply, because the crime took place in two criminal jurisdictions—albeit both in the United Kingdom—and the surveillance started in England.

Nick Hawkins (Conservative, Surrey Heath)

I have similar experience in the courts, but of cross-border cases within the EU and between the EU and countries outside it. Does the hon. Gentleman agree that the real answer to the

Minister's point is that although she and her officials might expect that foreign officers' undertaking surveillance in the UK would lead mostly to prosecutions in foreign courts, the Government can give no guarantee about that? It is perfectly possible, because of a decision made between different member states, that evidence arising from surveillance of people in the UK by foreign officers would end up with prosecutions taking place within EU jurisdictions. We must ensure that when the result of foreign surveillance arising under the Bill comes to be considered by UK courts, the court is absolutely clear about the legal position.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I agree with the hon. Gentleman. I thought that I had made it clear at the start that, in the majority of cases, we expect evidence to be adduced in foreign courts. I accept that we have no control over that, but the Minister cannot exclude the possibility that it will involve prosecution in this country. Cross-border crime, by its very nature, often presents us with a choice of jurisdictions. The fact that we are legislating on the subject means that it could lead to prosecutions in this country. We have to account for that possibility.

David Heath (Liberal Democrat, Somerton and Frome)

We should more than account for the possibility. Some crimes in the list in article 47 could easily take place in two jurisdictions. For instance, crimes such as trafficking in human beings, illicit trafficking in narcotic drugs and psychotropic substances, forgery of money, and illicit transportation of toxic and hazardous waste will, almost by definition, often happen in more than one country. Indeed, crimes may well be committed in both jurisdictions that should be prosecuted in both.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

My hon. Friend makes the sort of point that I might have made had my interests been engaged earlier. That would have allowed me to undertake more preparation. However, his point is perfectly sound.

To return to my earlier theme, I have the impression that the question of admissibility in UK prosecutions has perhaps not been fully considered. Again, I would suggest that that is a further reason why the Minister might on reflection choose not to insist on the amendment.

Mark Simmonds (Conservative, Boston and Skegness)

Before I start my brief contribution, may I say how delighted I am that you are in the Chair, Mr. Benton, offer my congratulations to the Minister on her recent promotion, and say how impressed I am with how quickly she has got to grips with the detail of the legislation?

I listened carefully to the Minister's explanation of why she wishes to delete the subsection that was added in another place. As far as I can see, her argument falls into four categories. The first argument is that the clause is already set out in detail in the Schengen agreement under article 40, so the provisions are superfluous. However, I cannot find in the clause or the Bill any clarification of what is set out in Schengen, and it is essential that it be there.

The second argument that the Minister put forward was that the provisions cause confusion. However, I would argue exactly the opposite: they make it clear

that the foreign police officer is not allowed stop and/or question. In talking about foreign officers, Lord Filkin made it clear in another place that they may not challenge or arrest a suspect. The Minister said exactly those same words earlier this morning.

The third argument that was advanced seemed, as other hon. Members have pointed out, questionable to say the least, and was that if the suspect was challenged or stopped, that would make the evidence that had been gathered in the preceding few hours in which permission had been obtained inadmissible in a court of law. I am not sure that that is correct, so I hope that the Minister can clarify that. The other thing that concerns me about that argument is that it implies that the Minister envisages circumstances in which a suspect may be stopped or questioned by foreign officers in this country.

The fourth argument revolves round the word ''prohibit''. I accept that the exact wording of new subsection (4) may not be particularly accurate. However, there seems to be consensus on both sides of the Room that what each party is trying to achieve is consistent with the others' views. It is therefore surprising that the Minister's officials, via the Minister, have not come forward with a sensible alternative, whether that is stop and search, or stop or search, or whether the word ''prohibited'' is replaced by another suitable word. I know that the Minister generously offered to consider any sensible and constructive suggestions, and I very much hope that she will take on board the suggestions that I am sure will be forthcoming from our Front Bench and from the Liberal Democrat Front-Bench spokesman.

Caroline Flint (Labour, Don Valley)

We have had an interesting and full debate. It has become clear to me from contributions from my colleagues and from elsewhere in the Committee that everyone concedes that subsection (4) is not clear as it stands. The hon. Member for Poole said that he concedes that it is not perfect. We have a responsibility to ensure that we do not pass legislation if the substance and the words that are used are not perfect. Given that everyone agrees that there is an imperfect aspect in the clause, I would feel that I would not be performing my duties to give it the nod and say, ''Yes, well, we all pretty much agree on things here.'' We are worried about those undertaking surveillance stopping and questioning someone, and we all say that that should not happen. However, I am being asked to withdraw my amendment and allow an imperfect bit of the Bill to go forward. I am sure that the record will reflect what Opposition Members have said on that.

I am glad that Opposition Members have acknowledged that I have been generous during the debate. Since we met on Tuesday, I have had discussions outside the Committee with parliamentary counsel and others on the Bill team, and have asked whether there was a way of building a bridge on this matter. So far, none has been forthcoming because we have not identified a workable alternative. I believe that the current safeguards place us on a very strong footing—a

concrete footing. Surveillance of the sort outlined in clause 82 would not involve stopping or engaging a suspect who is being pursued.

I should like to address a point that was raised by my hon. Friend the Member for Wirral, West. Neither foreign police officers nor members of the British public will be carrying copies of the Bill around with them, or any other Bill that affects their working or daily activities. There is, however, a handbook. I concede that police officers may not carry that handbook around with them, but we are discussing police officers who are engaged in operations involving serious criminals. We must bear in mind the very good collaboration that exists between British and other European police officers. They discuss these issues with the aim of putting a stop to the sort of cross-border activities that none of us would condone. We believe that in the 21st century—with regard to communications, travel and very serious crimes—closer collaboration is essential.

We must accept that there will be occasions when it will be acceptable for a foreign police officer or Customs officer to have access to land within our borders. We all agree on that. We are talking about professionals who will be mindful of what they can do with regard to the laws of the country in which they live and work, and in terms of the nature of the criminals that they are trying to bring to justice. That may involve, on occasions, crossing borders. As we said from the outset, this provision is far more likely to be used between the borders of France, Belgium and other countries that have adjoining borders, than it is to be used here. However, we must not shoot ourselves in the foot by damaging the Bill—and all the important provisions that it contains on the future tackling of crime—by not identifying the potential of an occasion when we might need to use the powers of clause 82.

We are talking about professional police officers who are experienced in dealing with serious offences and the criminals who carry them out. Particularly when they need to leave the borders of their own country, I would expect them to be mindful of the fact that if they undermine the conditions under which they are allowed to operate, they would jeopardise a major European agreement.

Nick Hawkins (Conservative, Surrey Heath)

I understand the case that the Minister has put. However, would she concede the point that, even in terms of the most serious crimes, and even with the biggest surveillance operations that take place only within UK police forces, things can and have gone very badly wrong? I will give her an example. She will recall, only a few years ago, the tragic death of a police officer who was carrying out covert surveillance on someone who was later convicted of a road-rage murder. He was one of the main suspects in the Brinks-Mat bullion case. When at the borders of his secluded property he found a police officer who was dressed all in black and trying to carry out covert surveillance, he stabbed him to death. His defence at the trial, which to my amazement succeeded, was that he did not know what a man dressed in black was doing on the borders of his

property, thought that he was a threat and acted in self-defence.

To the great benefit of the British public's safety, that particular man was subsequently convicted of another murder. Nevertheless, it is still an example of how, even for UK police officers operating in the UK on one of the most serious crimes of recent years, surveillance can go wrong. If it can go wrong with those tragic consequences, can the Minister understand why we want to ensure that the legal position of the provisions on covert surveillance operations for serious crime by foreign police officers is clarified beyond doubt?

Caroline Flint (Labour, Don Valley)

Obviously, I do not have a crystal ball that can forecast what will happen in every eventuality. However, I believe that safeguards will ensure that someone who is under surveillance is not engaged. I am not sure exactly how what the hon. Gentleman has described or subsection (4) would prevent a repeat of the situation that he described.

Nick Hawkins (Conservative, Surrey Heath)

The hon. Lady does not understand the point.

Caroline Flint (Labour, Don Valley)

Hang on. I thought that I understood the point.

Nick Hawkins (Conservative, Surrey Heath)

She does not. I am explaining—

Joe Benton (Labour, Bootle)

Order.

Caroline Flint (Labour, Don Valley)

Thank you, Mr. Benton.

If I heard correctly, the hon. Member for Surrey Heath seemed to be suggesting how an operation could go wrong. There was some chuntering, but if I heard correctly, an officer who was conducting the surveillance was found and then stabbed by the suspect. I do not see how subsection (4) would help in those circumstances.

Nick Hawkins (Conservative, Surrey Heath)

Will the Minister give way?

Caroline Flint (Labour, Don Valley)

No, I will not give way, because I want to keep to the substance of our argument. As I have already said, it has been conceded that subsection (4) is imperfect. [Interruption.] No, many Committee members have said that. In the absence of any alternative wording, it is better to remove the subsection and—[Interruption.] I am sorry; Opposition Members might not like that, but shaking their heads and saying, ''No, no, no'' will not change the Government's position. I have been generous—

Barry Gardiner (Labour, Brent North)

Over-generous.

Caroline Flint (Labour, Don Valley)

I thank my hon. Friend.

I have been generous in saying that we have not come up with an alternative to deal with the situation, because to create an effective prohibition, there must be a sanction. If we criminalised the behaviour of foreign officers, we would have to consider similar legislation to cover our officers. [Interruption.]

Joe Benton (Labour, Bootle)

Order. Will Committee members please observe the basic conduct of Committee and allow whoever holds the Floor—in this case the Minister—to complete their answer?

Caroline Flint (Labour, Don Valley)

Thank you, Mr. Benton. I have tried to listen to other people with some manners, and I would expect the same courtesy.

Stephen Hesford (Labour, Wirral West)

Is my hon. Friend surprised that, given that the Government amendment showed that they recognised that there was a problem with the subsection, the Opposition have not tabled an amendment with better wording to try to ensure that such a provision stays in the Bill?

Caroline Flint (Labour, Don Valley)

I thank my hon. Friend, because we have tried to be open. As I have said, I spoke to the Opposition in the margins of the Committee to explain the situation and say that we would table a Government amendment to delete subsection (4). Like ourselves, they have conceded that it is imperfect, but they have not come forward with an alternative. We have been unable to identify any wording that would work and are not confident that we can do so, but we will continue to try. The reality is that there are safeguards in the arrangements under which foreign surveillance operations can be carried out. It is clear that stopping or questioning someone under surveillance is not acceptable and that to engage in that while using the powers in clause 82 would jeopardise an European agreement of high standing. That is why we cannot accept the provision with subsection (4).

We are not failing to consider or take notice of people's concerns, as we have made clear, nor are we saying that that is the end of the matter. Our primary reason is that at this stage we do not feel able to offer an alternative that would not complicate the matter and raise other issues that would make the clause difficult to operate, but we are open to suggestions. My team and I will consider what has been said today and wrack our brains again, but we cannot accept—

Bill Wiggin (Conservative, Leominster)

Will the Minister give way?

Caroline Flint (Labour, Don Valley)

No, I will not.

We cannot allow wording that is imperfect, as Opposition Members have said, to go to the other place. If we did so, we would be failing in our responsibility. For those reasons, we shall press the amendment.

Bill Wiggin (Conservative, Leominster)

I am sorry that the Minister would not give way. It would have been easier to ask my question then.

Is the Schengen convention clear about what would happen if an officer challenged the person he has under surveillance? The subsection provides clarity and that is what the Opposition have been calling for. There has been little animosity, despite the Minister's dismissive tone about the suggestion made by the hon. Member for Somerton and Frome when he offered different wording, but there has been little constructive comment from the Government. Both sides recognise the importance of protecting police and Customs officers and the person under surveillance, who may be innocent; otherwise, he would be pursued rather than surveilled. We seek clarity of purpose. The Minister referred to bad law and no one in this Committee wants to make bad law, but the hon. Member for Orkney and Shetland gave an excellent description of

the Minister's explanation of what is wrong with the subsection. I was disappointed that she was unable to respond to the clear problem that is likely to arise with border law if the case in question could be tried on either side of a border.

I was also disappointed that the Minister refused to take interventions from Back Benchers—[Interruption.] She refused to take two interventions from me—[Interruption.] We have all tried to be constructive, but it is clear that Labours Members have not. I hope that the Minister will answer my first question.

Caroline Flint (Labour, Don Valley)

My understanding is that if a foreign officer challenged a person under surveillance, that would raise all sorts of issues about our co-operation with the country concerned. The person under surveillance could take action, as could the authority in the country from which the officer came. Those are three scenarios that could arise if someone broke the

rules of surveillance and engaged the person under surveillance.

Question put, That the amendment be made:—

The Committee divided: Ayes 9, Noes 6.

Standing Committee A

Clause 82 - Foreign surveillance operations

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 74, in

clause 82, page 55, line 46, leave out 'for all purposes'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following:

Amendment No. 73, in

clause 82, page 55, line 44, at beginning insert 'Subject to subsection (5A),'.

Amendment No. 75, in

clause 82, page 56, line 7, at end insert—

'(5A) Relevant surveillance carried out by a foreign police or customs officer in the United Kingdom during the permitted period is to be lawful for all purposes only if the surveillance would otherwise be lawful under the law of that part of the United Kingdom in which it takes place notwithstanding its compliance with any conditions specified in an order made under subsection (4).'.

Nick Hawkins (Conservative, Surrey Heath)

Good afternoon, Mr. Hurst. I welcome you back to the Chair. We had an interesting debate this morning, as no doubt you will have heard from your co-Chairman, Mr. Benton. It was on the biggest issue so far between the two sides of the Committee. Given that we are still discussing clause 82, I thought that the Minister, slightly uncharacteristically, was a little churlish. I know that she has to behave in such a way on instructions, but it is not typical of her. I should have thought that the Government had had enough constitutional crises for one week, given the botched reshuffle and what I thought was an appalling music hall turn by the Prime Minister yesterday, when he did not take the dignity of Parliament at all seriously.

I am sure that, on reflection, the Minister will concentrate on the more genteel and gentle part of her speech when she offered to look at the matter, and that we shall return to the usual courtesies between the two sides of the Committee. They were perhaps better represented by the information of the hon. Member for Greenock and Inverclyde (David Cairns), who had an interesting and serious point to make, than by other members of the Committee on the Government's side.

Alan Hurst (Labour, Braintree)

Order. We are dealing with business yet to come, rather than past business.

Nick Hawkins (Conservative, Surrey Heath)

Thank you, Mr. Hurst. I turn now to amendments Nos. 73, 74 and 75. We have had such a detailed debate this morning and so much ground was covered, that I can probably speak briefly not only to this group of amendments, but subsequent groups. That will probably suit the Minister, the Whip and other members of the Committee. The three

amendments run together. They would ensure that hot surveillance in the United Kingdom was lawful only if it was lawful under the UK law if carried out not by a foreign police or Customs officer, but a British officer. We want the Bill to state explicitly that overseas police or Customs officers must at all times stick to the same rules of lawful surveillance as our police or Customs officers. I do not want to repeat all that has been said about the clause, but surely that must be the better option.

There is a danger that if the Bill was unamended, the Government could end up with a lot of egg on their face. I referred earlier to the investigations into the Brinks-Mat case and the tragic consequences of the murder of a police officer. The Minister did not seem to understand my argument this morning, so I shall briefly stress it again. I have had a personal briefing with the detective chief superintendent at Scotland Yard, who was in charge of the case. Even in the most serious criminal investigations when the greatest possible care was taken, as it was in the Brinks-Mat case, things can still go wrong.

This morning, the Minister was praying in aid, as part of her argument in defence of the Government's position, that due to the fact that only the most expert surveillance officers of the most serious crime would be involved, care would be taken. I then referred to the case of Kenneth Noye, who murdered a police officer who was acting properly while undertaking covert surveillance. That operation should not have gone wrong, but it did because the police were dealing with a serious and violent criminal.

I have had discussions with senior law enforcement officers from America whom I met during the Easter recess when I was in Greece. I was there in my capacity as a shadow Home Office Minister, meeting our ambassador and consul in Greece to discuss the serious case of the British lorry driver who had been arrested in Patras because illegal immigrants had been found in his lorry. He was put on trial within hours of his arrest. He was not given an English-speaking lawyer. A jeweller who spoke some English was pressed into service as the court interpreter. The lorry driver, David Wilson, was sentenced to a lengthy term of imprisonment. That showed our concerns about foreign jurisdictions even within the European Union, but that is a point to which we shall return under other legislation.

While I was in Greece, by coincidence I met a couple of senior sheriffs from America, who were in Greece to try to extradite someone back to that country for the most serious offences of counterfeiting and drugs smuggling. They were from Tocoma in Washington state. They said that they were happy for me to use the international experiences that they described as examples when we debated matters of international co-operation and extradition.

The sheriffs said that we must be aware that, however careful the forces of law and order may be, things can still go wrong. I hope that, the second time around, the Minister will understand my argument. It is a response to her praying in aid in support of the Government's position that such matters are serious and will always be dealt with carefully. I accept that

they will be, but things can still go wrong. That is why additional safeguards are needed.

Caroline Flint (Labour, Don Valley)

Thank you and welcome back to our proceedings, Mr. Hurst.

Surveillance in the United Kingdom is strictly governed by the Regulation of Investigatory Powers Act 2000—RIPA. The purpose of inserting proposed new section 76A(5) is to make lawful under both European convention on human rights and United Kingdom law cross-border surveillance operations that have originated in other Schengen states. That type of surveillance would not contravene the fundamental rights protected by ECHR and UK law.

The amendment would require the lawfulness of the surveillance to be conditional on similar surveillance being lawful if undertaken in the UK. However, under the Schengen convention, the surveillance must be automatically lawful in the UK, provided that it was lawful in the country in which it started and that it meets the conditions specified under article 40.2. The amendment goes against the concept of automatic authorisation and that is why we resist it.

It is important to remember that surveillance will be automatically authorised only in limited circumstances. First, it must be lawful in the country of origin. Foreign officers will be obliged to contact UK police as soon as the border has been crossed. Secondly, that type of urgent surveillance may carried out only if the person under surveillance is suspected of having committed one or more of a limited number of serious offences, including murder, manslaughter, rape, arson, aggravated burglary and robbery, extortion, kidnapping, trafficking in human beings, illicit trafficking in narcotic drugs and so on.

Thirdly, cross-border surveillance under the Bill will be subject to strict conditions reflecting the wording of the Schengen convention. Those conditions include the ban on foreign officers conducting surveillance on private property. The phrase ''lawful for all purposes'' does not mean that foreign officers can disregard UK law. Article 40 of the Schengen convention states that officers carrying out surveillance in another member state must comply with the laws of the territory in which they are operating.

We are satisfied that the safeguards in place are sufficient and that there is nothing to be gained by foreign officers conducting unauthorised or unlawful surveillance, since that would undermine the relationships that are essential for the effective functioning of the Schengen convention.

Nick Hawkins (Conservative, Surrey Heath)

I hear what the Minister says. Obviously, she has a Government brief from her officials that she has to stick to. I do not want to detain the Committee by pressing the matters further, because a lot of ground was covered by the debate that we had before lunch. However, I am sure that she understands that there are still matters, including the previous vote on which we disagreed. I do not think that any purpose would be served by taking the matter

any further today. Therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 76, in

clause 82, page 56, line 7, at end insert—

'(5A) Nothing in this section shall render lawful the carrying of a firearm within the United Kingdom by a foreign police or customs officer.'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss amendment No. 77, in

clause 82, page 56, line 7, at end insert—

'(5A) Nothing in this section shall render lawful the carrying of a firearm within the United Kingdom by a foreign police or customs officer except with the permission of either—

(a) the Secretary of State acting personally, or

(b) a chief officer of police acting personally.

(5B) the permission to carry a firearm referred to in subsection (5A) may only be given in circumstances in which it would be given to a constable acting under the law of the United Kingdom.

(5C) Where the permission to carry a firearm is given to a foreign police or customs officer under this section, then that firearm may only be used reasonably and in self-defence.'.

Nick Hawkins (Conservative, Surrey Heath)

The amendments would insert a new subsection to make it absolutely clear, for the avoidance of doubt, that nothing in the clause would render lawful the carrying of a firearm within the UK by foreign police or Customs officers. That must be right. The Government have already said that they do not propose to make that lawful, so the amendment would introduce an avoidance of doubt provision. Lord Stoddart of Swindon spoke about that powerfully at column GC203 when the Bill was in Grand Committee in another place. I know that the Minister and her officials will be aware of what he said so I shall not labour the point by repeating it.

As Committee members will realise, amendments Nos. 76 and 77 are alternatives to one another. If the Government cannot go so far as to accept amendment No. 76, another way round is to accept amendment No. 77. That would would, in exceptional circumstances, provide for the Secretary of State, the Home Secretary or a chief police officer—the provision could not be delegated, so it would have to be one of them—to give personal permission to carry a firearm in circumstances where such permission would have been given to a UK officer, but only if the discharge of that firearm is to be used in self-defence or otherwise reasonably.

David Heath (Liberal Democrat, Somerton and Frome)

I welcome you, Mr. Hurst, to the last sitting of the Committee.

We need to make it clear that foreign police officers should not be in a position to carry firearms in this country. That is the traditional view on policing, which is doubly relevant when we are talking about an officer who is not under the direct command of a British police force. The Lords agreed that that point is not clear in the Bill, which is why the hon. Member for Surrey Heath (Mr. Hawkins) has tabled a clarifying amendment. [Interruption.] I turn round and am surprised see that the hon. Gentleman is not in his seat at such an early stage in the debate, and that has rather put me off. I apologise. The fact that police officers cannot, and have no lawful authority to, carry

a firearm is clear. However, as the hon. Gentleman said, for the avoidance of doubt, there would be some benefit to be had from writing that into British law.

I hope that the Minister will address what the Schengen handbook says about the clause. Some parts of the Schengen handbook may need to be rewritten to accommodate the United Kingdom. I appreciate that that would not be easy to accomplish. I am not sure, but I think that we are unique among member states of the European Union in having a police force that is not routinely armed. I cannot think of another state where police officers are not routinely armed.

I am not sure what the Schengen handbook says about carrying arms between countries. A land border unmarked by customs or border controls is, of course, very different from the position in the United Kingdom. I think that the duties on carriers would, in any case, prevent a person bearing a firearm from boarding a ship, train or aeroplane in continental Europe that was destined to go somewhere in the United Kingdom. If that is not so, the Schengen handbook should explicitly draw attention to the fact that an officer would not be able to carry a firearm if entering the United Kingdom. That would be sensible as it would allow everyone to understand our system and would make us more compatible with the systems that apply elsewhere.

Setting aside what I just said about the carriers' duty to prevent someone from boarding with a firearm, the officers are not exempted from going through our border and passport controls when they reach British shores. That results in a rather odd situation, whereby someone trying not to draw attention to themselves would have not only to pass through passport control, but declare that they were carrying a firearm and have to surrender it to the relevant authorities at the port of entry. That is not conducive to covert surveillance; in fact, it would pose operational difficulties.

For all those reasons, we need clear protocols with our European partner states on what is permissible in Britain. We often talk about ''l'exception fran¢aise''; this provision is a matter of the English exception. We do not police in the same way as other countries do. We do not have a gendarmerie as most other European countries do, and we do not have arms-bearing policemen. We have to make allowances for that, both in law and in our arrangements with other countries.

Mark Simmonds (Conservative, Boston and Skegness)

There are one or two points that I would like the Minister to clarify about the amendments and the practicalities to which the hon. Member for Somerton and Frome (Mr. Heath) alluded. In November 1999, one of the Minister's predecessors said in a letter to the Select Committee on European Scrutiny that the Government had

''therefore indicated that it will be necessary for arrangements to be made to allow the surrender and storage of weapons carried by police officers on entry to the UK.''

To whom will the firearms be handed in? The hon. Member for Somerton and Frome mentioned the

farcical situation in which someone supposed to be undertaking covert surveillance handed over a firearm. The Minister also made a point this morning about the unexpected nature of the pursuit that may occur, so it is possible for a police officer from the continent who happens to be carrying a firearm to come unexpectedly to the United Kingdom.

As I understand the clause, it will not be necessary for the foreign police officer to contact a member of the British surveillance organisation until he is in the UK, by which time he has entered the country with the firearm, and is undertaking surveillance. How do those parallel events work together? Presumably the foreign police officer cannot be expected to dump the firearm on the channel tunnel train or over the side of a ferry while following someone.

If a system were to be organised so that someone collects the firearms as they come into the UK, surely the foreign police officer would hand the firearms to a UK police or customs officer. If that were so, I would have thought it possible to ensure that UK surveillance teams could follow the people coming into the UK. That would make the clause unnecessary.

Caroline Flint (Labour, Don Valley)

We must be careful on this issue. I take what the hon. Member for Surrey Heath said about amendment No. 76 and its alternative, amendment No. 77. However, we have to be pretty clear about whether firearms should be brought in. The view of the Government is that they should not. Amendment No. 77 worries me. Earlier today, there was much debate about stopping or questioning a subject, and we all agreed about what should not happen. However, the hon. Gentleman seems to be suggesting that, despite the agreement on the other issue, one could bring a gun into the country and possibly discharge it.

Nick Hawkins (Conservative, Surrey Heath)

I think that I made the position clear. What I said—and I am sure that Hansard will bear me out—is that amendment No. 77 is a fall-back position in case the Government are not happy with the blanket ban in amendment No. 76. That is how I put the matter, and that is how the argument was advanced in another place, as the Minister is well aware. She really should not say that we are welcoming the idea; we are simply trying to assist the Government by giving them an either-or proposition. Our main contention appears in amendment No. 76, which would ensure a blanket ban. It would be fine if the Government preferred that amendment, but we might need something else for the purposes of clarification.

Caroline Flint (Labour, Don Valley)

I would like to make it absolutely clear that it is illegal for anyone, including overseas police officers, to bring a firearm into the UK, let alone carry it loaded on their person without the appropriate authority from the Home Secretary and an import licence from the Department of Trade and Industry. The Government are absolutely firm that foreign officers will not be able to bring guns into the UK while conducting urgent cross-border surveillance operations under the provisions of clause 82. That is important. If it is necessary to bring in firearms, that should be done through formal authorisation. That would go against this part of the Bill, which addresses

surveillance where there has not been enough time to contact the necessary authorities.

I turn to other points that hon. Members raised. A question was asked about the Schengen handbook. When the UK has joined, it will have to be amended to make it clear that guns cannot be carried. I understand that a couple of other member states that have land borders that adjoin each other will make the same representations, and insist on the same regulations and practices regarding that issue.

The hon. Member for Somerton and Frome raised a fair point about the practicalities of the arrangements for guns. It will be possible to hand guns in at the point of departure for the UK, and the Schengen handbook will make it clear that guns have to be handed over.

Many surveillance operations will not involve only one police officer following one individual; there might be other police officers, back-up officers and so forth. However, if an operation reaches a point at which officers have to follow the person under surveillance on to a boat or a plane—or whatever—they will have to make arrangements within their team, and understand their obligations under the Schengen handbook and our firm decision not to allow foreign police officers to bring guns in under such circumstances. They will have to hand over their guns to other team members before they follow the person under surveillance.

The situation will be the same for our armed officers urgently following suspects abroad. If the country to which they are travelling refuses to let them carry their weapons, the commander of the operation will have to assess the situation and decide, on the basis of the risks, whether to deal with the suspect in this country or to allow the officers to proceed without their guns.

We have been in discussions with the police about this, and they have welcomed the measure. We have consulted the National Criminal Intelligence Service and the National Crime Squad, and they are satisfied that we are clear about our position on firearms coming into this country under this clause. Foreign surveillance operations will be covered by the Schengen handbook: there is no cause for concern about this.

Nick Hawkins (Conservative, Surrey Heath)

I am grateful to the Minister for what she has said. She has returned to her more normal, businesslike and courteous responses to our serious amendments. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. No. 78, in

clause 82, page 56, leave out lines 8 to 10.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following:

Amendment No. 79, in

clause 82, page 56, line 9, leave out 'incidental to' and insert 'a necessary element of'.

Amendment No. 80, in

clause 82, page 56, line 10, at end insert—

'(6A) A foreign police or customs officer carrying out relevant surveillance under this section is a ''public authority'' for the purposes of section 6 of the Human Rights Act 1998 (c.42) (public authorities).

(6B) Nothing in this section shall have the effect of disapplying, or removing any civil liability under, any provision of the Human Rights Act 1998 in relation to a foreign police or customs officer.'.

Nick Hawkins (Conservative, Surrey Heath)

Amendment No. 78 would delete subsection (6), which addresses civil liability. We cannot see any reason for exempting such officers from civil liability. My point on this is slightly different from those that we have debated so far in relation to this clause. A foreign police or Customs officer might get caught up in something, which could be as ''normal'' as a road accident or damage to property, and which could lead to a civil claim under our civil law. Why should a UK citizen who was adversely affected by that be debarred from bringing a civil claim?

What if a foreign officer who was conducting surveillance on this side of the channel suddenly forgot which side of the road they should be driving on and caused an accident? The situation could be as minor as that. I am sure that many UK citizens in France have occasionally got confused at roundabouts, and ended up on the wrong side of the road, and that could happen in our country when a foreign police or Customs officer is concentrating too much on the surveillance, and not enough on their driving.

In practice, the civil liability would not be against the foreign Customs or police officer personally if they were executing their duty. If they were conducting surveillance, the tab would be picked up—if I may put it in that colloquial way—by the relevant Government or authorities in accordance with the rules that apply in the country in which they were operating.

Amendment No. 79 offers the Government an alternative to amendment No. 78, because it would give the exemption, but only for matters that are strictly necessary for the surveillance, rather than incidental to it.

Amendment No. 80 addresses civil liability in relation to the Human Rights Act 1998. Conservative Members have repeatedly drawn attention to what we have always foreseen would be the malign consequences—particularly the huge cost to the British taxpayer—of the Government's incorporation of that Act into our law. This is another potential difficulty.

However, for at least as long as this Government are in power, we will be stuck with the current situation. A lot of my constituents repeatedly write to me to say that the biggest single problem that this Government have created is the introduction of Human Rights Act legislation, because it is leading to many civil claims that cost the taxpayer a fortune. Many of my constituents strongly hold that view. They see all the headlines, particularly in our broadsheet newspapers and our middle-market tabloids, stating that there is a huge cost to our legal aid budget and the British taxpayer that is entirely due to the

compensation culture that has been introduced and the fact that people are now able to bring what are sometimes specious and fatuous claims under the broad heading of human rights. That is not what the human rights legislation was intended to bring about.

Members of all parties support human rights. The argument is whether the Government, by choosing this legislative route, have gone the right way about protecting those rights, or whether by choosing that route they are—as we warned them from the outset—opening the floodgates of huge costs to the British taxpayer, especially in litigation that might not otherwise have been brought, might not have been proper to bring, might be wasting a huge sum of money, and might be specious. The Government must carry the can for that.

However, for as long as the Government are in power, the Human Rights Act 1998 will be in our law, so British citizens should have its protection in relation to civil liability. It is on that basis that, in another place and now in this House, we have moved amendment No. 80.

With regard to the alternatives, my preference is to persuade the Government to accept amendment No. 78, which would delete subsection (6).

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I have often wondered what sort of person would vote for the hon. Gentleman, and we have now been offered an illuminating insight into the people who have sent him here, courtesy of his postbag, which brims with letters from ''outraged of Surrey Heath'' fulminating against the financial excesses caused by the Human Rights Act. I am sure that the hon. Gentleman will write to his constituents, in his usual fair-minded way, to put the record straight by explaining, as he did to the Committee today, why it is important that we have that Act.

Stephen Hesford (Labour, Wirral West)

Did the hon. Gentleman detect, as I did, that in what the hon. Member for Surrey Heath was saying there seemed to be an implied assertion that if there were a different Government the Human Rights Act would be repealed?

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I fear that if I indulged in the wild speculation that answering that question would require, I might well find myself incurring your wrath, Mr. Hurst, and being out of order. It is an interesting question, but there may be a more appropriate forum in which to discuss it.

Having belittled the hon. Member for Surrey Heath, I should say that I think he has a good point on the civil liability issue. I shall be interested to hear from the Minister the rationale behind the inclusion of subsection (6). The hon. Member for Surrey Heath suggested that normally, as long as someone is acting within their terms of employment, the tab—as he put it—would be picked up by the employer by virtue of vicarious liability. My recollection is that vicarious liability attaches only where there is a personal liability in the first place. In fact, there might even be a theoretical right of relief between the employer and the employee.

Under the provisions, citizens who suffer loss or injury might have no recourse to compensation through the courts, although that would be available in different circumstances, and for no apparent reason. The provision would mean that if a person crashed into a car, it would be a bit of a lottery as to what the victim could get as a result. I look forward to hearing the rationale behind the subsection.

Caroline Flint (Labour, Don Valley)

This is a complex subject that was debated in the other place. It might be helpful if I explained why we need subsection (6). Its provisions are aimed at ensuring that civil liability does not arise in relation to the conduct of foreign officers undertaking emergency surveillance for up to five hours, when that conduct would be incidental to the surveillance. By ''incidental'', 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 surveillance—is to continue.

I must stress that ''incidental conduct'', as defined in the Regulation of Investigatory Powers Act 2000, covers an extremely narrow set of circumstances. It would not cover any conduct that was not essential if the surveillance were to continue. The provision does not exempt foreign officers from civil liability entirely.

It may help if I give an example of what would constitute conduct incidental to covert surveillance. An undercover officer might follow the suspect into a shopping centre or supermarket. As the officer would have no intention of shopping, he could technically be considered to be committing trespass. The subsection would give a foreign officer legal protection in those circumstances. That is consistent with protection granted to domestic surveillance officers under RIPA.

There is clearly concern as to whether there is an avenue of redress for those affected by incidental conduct. No provision is made in the Bill in relation to conduct by foreign officers that is simply incidental to lawful surveillance. That is no different from the existing situation for domestic officers under RIPA. To make special provision for incidental conduct in those circumstances would mean treating foreign officers differently from domestic officers, and that would not make sense.

However, I do not believe that that should be a cause for concern, because the issues that cause members of the British public concern are covered in other ways. As I explained earlier, incidental conduct covers an extremely narrow set of circumstances, and it is difficult to imagine how it might give rise to a claim for damages. Any conduct likely to give rise to a claim—such as, for example, an officer from France driving on the wrong side of the road and knocking someone down—would be classed as accidental, not incidental.

Clause 84 is intended to provide an avenue of redress in such circumstances for the victim of any damage other than that arising from incidental conduct that is caused during the emergency surveillance period. The clause provides that that liability would fall on the director general of the

National Criminal Intelligence Service, against whom the victim would make a claim for damages.

In the unlikely event of damage occurring as a result of incidental conduct, it would be for the courts to determine whether the conduct was indeed incidental, and consequently whether damages should be sought. We would expect the courts to take a narrow view of what might constitute incidental conduct.

As I have already said, 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. Otherwise, we could find that other member states do not provide the same protection for our officers. That is what the clause provides for. Article 43 of the Schengen convention sets out arrangements on civil liabilities, so we can expect reciprocal arrangements for our officers operating abroad in similar circumstances. I do not think that the amendments would bring any additional clarity.

On amendment No. 80, the Human Rights Act 1998 established in UK law our obligations as a signatory to the European convention on human rights. Those obligations apply to public authorities. Foreign officers acting under section 76A are public authorities under the 1998 Act. Under the 1998 Act, a public authority is any person who has at least some functions of a public nature. Policing in the UK is obviously a responsibility of UK police officers, but under this clause we are effectively delegating, for a fixed period of time and subject to specific conditions, that role to foreign officers in situations where as a matter of practicality UK officers cannot immediately take over the surveillance operation. Foreign officers acting under section 76A are therefore public authorities under the 1998 Act, and the amendment is unnecessary.

The second new subsection (6B) would ensure that nothing in the clause would have the effect of disapplying any provision of the 1998 Act in relation to a foreign police or customs officer. That is also unnecessary. There is nothing in section 76A that could disapply or remove liability from anyone under the Human Rights Act. In addition, I can confirm that in schedule 5 we are amending RIPA to provide that the RIPA tribunal can deal with challenges to surveillance by foreign officers under section 76A.

David Heath (Liberal Democrat, Somerton and Frome)

I listened carefully to the Minister's explanation, and it will repay careful study. Crucial to it was the definition that she wants to introduce, and the difference between incidental and accidental. Is there any source material to suggest that that would stand up as a legal distinction? I am unfamiliar with it, which is not surprising, but it is surprising that my legally trained colleague, my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael), had not heard of it either.

Caroline Flint (Labour, Don Valley)

Obviously, new research is the basis of the conclusion. I shall attempt to provide the hon.

Gentleman with a clear outline of the source on which we based our conclusions.

Nick Hawkins (Conservative, Surrey Heath)

I am grateful to the Minister for giving way, particularly as I am trying to help her by giving her time to receive a note that is being given to her, which she had not noticed.

Not only are the hon. Members for Somerton and Frome and for Orkney and Shetland, who is legally qualified north of the border, unfamiliar with the distinction, so am I. The Minister will tell us in a moment what her officials have advised her, but it would be helpful if, on this important area of civil liability and whatever her note says, she writes to all Committee members on this matter. It is important to explore in detail civil liability and the issue of whether something is incidental germane to an operation or accidental.

Caroline Flint (Labour, Don Valley)

I thank the hon. Gentleman for that intervention. If we can throw light on issues during the course of our proceedings, that will be helpful. I am advised that incidental conduct is defined by RIPA. We are not aware of any case law to date because the definition is linked to new legislation. I will write to Committee members to give them more detail to use in further discussions on the Bill.

Nick Hawkins (Conservative, Surrey Heath)

That is enormously helpful of the Minister, and we look forward to receiving the letter. Will she and her officials try to get that letter to us—the hon. Gentlemen who speak for the Liberal Democrats, other Committee members and I—with sufficient time remaining before the final stages of the Bill's consideration in the House of Commons so that we have an opportunity to decide whether we need to return to the matter. The Minister is nodding, which I am happy to see. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 81, in

clause 82, page 56, line 19, leave out 'five hours' and insert 'one hour'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss amendment No. 82, in

clause 82, page 56, line 20, after 'enters', insert

'the airspace, territorial waters or, in the case of land entry, the customs area of'.

Nick Hawkins (Conservative, Surrey Heath)

I can speak to the amendments briefly. As the Minister and perhaps some Committee members are aware, they address matters that were debated at length in another place. There was much discussion about how long the notice should be, how long channel ferries, hovercraft and hydrofoils take and whether five hours was too long. In another place, Ministers said—I shall summarise—that five hours was the sort of provision envisaged in the protocol. However, I know that my noble Friend Lord Carlisle of Bucklow questioned that. Well, who knows? Given that so much of the continental system is decimal, perhaps it is because five is half of 10. We did not get to the bottom of the matter, other than reference being made to the handbook and protocol. I was not happy with those answers, which is why we tabled the amendment. However, we are covering much of the

ground that was covered in another place, and I do not want to bore the Committee by repeating it. The Minister knows where we are coming from, as will other members of the Committee if they read the reports of debates in another place.

Amendment No. 82 seeks clarification about the start of borders. We want to insert

''the airspace, territorial waters or, in the case of land entry, the customs area of''.

It must be sensible to seek clarification. Their Lordships had a long debate about the matter, and Lord Stoddart of Swindon made some sensible points.

Mark Simmonds (Conservative, Boston and Skegness)

My hon. Friend is making a good point. Entry through the channel tunnel is a confusing element. I think that a previous Home Office Minister stated that the time will not start until a foot is put on UK soil. The channel tunnel boundary is halfway across the channel, so the time spent in UK space could be longer than five hours as a result of the time difference.

Nick Hawkins (Conservative, Surrey Heath)

My hon. Friend, like me, has examined the debates held in another place. He makes a valid point. Their Lordships dealt with covert surveillance operations—not operations in the sense that people under surveillance are not supposed to know that they are being watched, but in the even more serious circumstances where an undercover police officer or an undercover Customs officer is pretending to be one of the criminal gang. There was much discussion in another place about how easy or otherwise it would be for someone who was part of the gang to get in touch and at what point the period might run in those difficult circumstances.

We are talking about the most serious criminals. I take the opportunity to pay tribute both to our Customs services and our police services for the number of successes that they have achieved against some of the serious international criminals in the drugs area and elsewhere. One of the interesting aspects of my work is that sometimes I receive confidential briefings, as I have had from the head of the National Crime Squad and the National Criminal Intelligence Service, about the extent of international crime and how it is changing.

We are aware of the bravery of police and Customs officers, especially if they go undercover to break up rings. It is often done by way of covert undercover surveillance that involves pretending to be part of the gang. In my years at the Bar, I had some experience of that. I was involved in a conspiracy to murder case, which was broken because the man who allegedly—according to the criminals—would be working with the hit man, turned out to be an undercover police officer. I remember vividly that much of the evidence on the prosecution side revolved round a pub, the Station hotel at Blisworth, Northamptonshire. Almost every customer in the pub was an undercover police officer. The landlord must have had bumper trade that evening. I stress that, particularly in undercover matters, time limits and national boundaries are sensitive matters.

Caroline Flint (Labour, Don Valley)

The hon. Gentleman's argument is that the provision covers undercover officers. It does

not, and that was explained in the other place. The Schengen convention covers the basic bread-and-butter covert surveillance work of law enforcement officers. It does not deal with infiltration of organised gangs by undercover officers. That is why it is proposed in the Bill only to amend the surveillance provision under the RIPA. Infiltration operations are covered by covert human intelligence sources provisions under the Act. I must make that clear, so that there is not confusion about the surveillance that we are supporting.

Nick Hawkins (Conservative, Surrey Heath)

I understand that. I listened to the debate on such matters in another place. The Minister was right to refer it. However, she said earlier that surveillance means just that. The Government must be careful when they say that the Bill covers only one sort of surveillance, not another. While such distinctions are made in RIPA, it does not mean that those same distinctions will be made under all the Bills that will implement the Schengen handbook in other countries. Our legislation may do so, but there is no guarantee that another EU country that is party to Schengen has the same distinction. I raised the point because the Minister said that surveillance just means what it says, but there are different types of surveillance. I leave it there. I have put on the record that the worries that were expressed in another place still exist, but I will be interested to hear what the hon. Lady says.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Taken individually, I find little that I can support in the amendments. Taken together, they would render the whole clause virtually inoperable. For that reason, I cannot support them.

Amendment No. 82 would render it difficult for the surveillance officer to know where he was. I do not know about the hon. Member for Surrey Heath—[Interruption.] He may well have been advised to leave his place.

Caroline Flint (Labour, Don Valley)

Does the hon. Gentleman agree that we should have the hon. Member for Surrey Heath under surveillance, as he keeps leaving the Committee?

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

No, I do not agree. There are some things in life that I am happier not knowing.

With regard to the operation of surveillance under amendment No. 82, at what point does a person enter airspace? I know from my own bitter experience of dealing with fishing cases in a previous life that it is even more difficult to know where a person is on a particular stretch of water. Are we to expect that, if a person is a surveillance officer pursuing someone on an aeroplane, as well as being given the 10-minute warning that the plane is about to land, he will be told that he has entered United Kingdom airspace? Will the man in row 4d set his watch because his one hour is ticking?

My constituency has good links with the continent; we have a ferry link between Copenhagen, Lerwick and the Faeroe Islands. Presumably, on that basis, anyone who was being observed transporting drugs from Copenhagen to the Faeroe Islands—which is not inconceivable—would become subject to the provisions of the Bill as soon as he entered United

Kingdom territorial waters. A person needs at least an hour to get to Lerwick harbour from the limits of United Kingdom territorial waters—probably rather more—and thereafter his time has expired. Therefore, if the suspect chose to leave the ship in Lerwick harbour, there would be nothing that the surveillance officer could do.

It is not clear why the hon. Member for Surrey Heath thought it necessary to table the amendment. Limiting the appropriate period from five hours to one hour would be a wrecking amendment. Five hours is not excessive. We must consider the practical implications of what is involved. My observation may be modest, but the point at which a person enters the United Kingdom will eventually have to be judicially defined. It is not in the Bill. However, there is only so much that can be covered in a Bill. I do not find the amendments helpful.

Caroline Flint (Labour, Don Valley)

I thank the hon. Gentleman for his contribution, because he laid out clearly some problems with the amendments. They would prevent us from properly implementing our participation in the Schengen convention and trying to achieve our aims in combating crime without borders. I refer to amendment No. 81. Article 40.2 of the Schengen convention, which the clause implements, provides for a grace period of five hours, during which surveillance may be continued across a national boundary under urgent circumstances.

My understanding is that the reason given was that five hours was thought to be sufficient time for the authority of the receiving member state to respond to immediate notification from the incoming officers signalling that the border had been crossed, and for the receiving member state to take over the surveillance or send one of its officers to the scene to accompany the officers from the foreign member state. That is crucial when dealing with serious criminals.

I think that there is general agreement that foreign officers may, on rare occasions, need to cross the border into the United Kingdom to continue surveillance. We anticipate that they will be picked up by UK officers as soon as possible; if, for example, the foreign officer came into the country via Calais, and the suspect was going to London, there would be a port at which that could happen. We feel strongly that a one-hour time limit might frustrate the large amount of work that goes into surveillance operations, and would be of no help.

I remind hon. Members that the arrangements are reciprocal. There will be occasions on which UK officers will need to use the arrangements to follow a suspect who travels abroad at short notice, and we could hardly expect foreign colleagues to give us the benefit of the full five hours if we did not reciprocate. It is important that the provision stays as it is.

On amendment No. 82, we appreciate the arguments put forward for setting a specific point at which the UK border may be considered to be crossed, but as the hon. Member for Orkney and Shetland eloquently said, how do we decide when that border is

crossed? Police officers may have training and professionalism, but they cannot know, when travelling on an aeroplane, boat or train, the exact moment when they enter British airspace or waters.

For reasons that have already been outlined, we feel that the amendment is unnecessary and would jeopardise the good intentions behind the clause. The amendment does not take into account the complex nature of maritime law. The Government's approach provides a point that can be readily identified by officers and that will not be so complex to discern that they are distracted from the operation in hand. The clause protects the interests of the United Kingdom.

Those are the reasons why we have used the words ''enters the United Kingdom'' in the clause. We will consider the UK to have been entered when the foreign officer arrives at a port or airport or, in the case of Eurostar, when the train leaves the tunnel and enters Kent. Legally and practically, that is the simplest approach, for reasons that we have outlined.

Nick Hawkins (Conservative, Surrey Heath)

I am a little surprised that the hon. Member for Orkney and Shetland was so critical of our amendments, given the tenor of debates on the matter in another place. Once again, his noble Friends did not have the same strong views about the amendments. Indeed, there was a suggestion that they understood where we were coming from, but as I said this morning when I was teasing the hon. Member for Somerton and Frome, it should not surprise us that the Liberal Democrats do not necessarily say the same thing in both Houses of Parliament.

I do not think that it will profit the Committee to spend any more time debating the matter. There is a difference of view, but we do not want to be accused of seeking to undermine the basis of the clause. Baroness Anelay of St. John's and others voiced our serious concerns in the other place. In some cases, those concerns were shared fairly widely. The Minister has almost inevitably provoked a battle between the Commons and the Lords, so unless the Government come up with a different form of words in relation to the matter that we voted on this morning, that issue will go back to the Lords again, and I have no doubt that this subject will be returned to as well. I shall not take up any more of the Committee's time. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause, as amended, stand part of the Bill.

David Heath (Liberal Democrat, Somerton and Frome)

I have a couple of extraordinarily tedious questions to ask. They follow on from points that I have made before, and they will enable the Minister to add another paragraph to the letter that she has already promised me.

In the clause, a ''United Kingdom officer'' is defined as

''(a) a member of a police force;

(b) a member of the National Criminal Intelligence Service;

(c) a member of the National Crime Squad''—

et cetera. I wonder why a sworn constable is not included. Does

''a member of the National Criminal Intelligence Service''

include those officers of NCIS who are not constables? The situation with NCIS may have changed since I was involved with it quite a few years ago, but at one time police officers acting for NCIS were seconded from territorial forces and were able to return to their force at the end of their service with NCIS. There were also people working for NCIS in an investigative capacity who were not police officers. I do not know whether this is intended to catch both categories, or whether it addresses police officers employed by NCIS on a temporary or permanent basis.

My other point is rather tedious, but it might be important to be clear about it. The clause refers to a

''police or customs officer . . . who . . . is an officer for the purposes of—

(a) Article 40 of the Schengen Convention''.

That makes me wonder about the status of the police forces in the Crown territories and the British overseas territories. Those places are potential ports of entry to the United Kingdom. The Bailiwicks of Guernsey or Jersey offer a way of getting from France to the United Kingdom. The case of Gibraltar might involve more of substance, because I am unsure whether that territory is brought within Schengen by virtue of these arrangements.

Nick Hawkins (Conservative, Surrey Heath)

I do not know whether the hon. Gentleman has noticed that we tabled on Tuesday of this week—but debate today—new clause 9, which deals with some matters relating to overseas territories and returns to an issue that his noble Friend Lord Wallace of Saltaire and others referred to in another place. I wanted to alert the hon. Gentleman to that, in case he had not spotted it.

David Heath (Liberal Democrat, Somerton and Frome)

I noticed that, but this is the other way around: the new clause is reciprocal to that.

I wish to establish whether it is the case that police officers acting in those territories are not given the same opportunities as a French, German, Dutch or Slovenian officer. Would a constable on Jersey not be able to catch the hydrofoil—or whatever the right craft is nowadays—into Devon to conduct surveillance of a suspect, whereas a gendarme who alighted at St. Helier on the way could do so? If that is the case, it is bizarre—but perhaps it is not.

A lot of people might be interested in what the relationship is between the Guardia Civil or the other Spanish police authorities and the Gibraltar police—which is a United Kingdom police force that is situated in Gibraltar. I will understand if the Minister does not have a reply to that at present. I am sorry to keep bothering her with inquiries about these Crown territories and British overseas territories but the points that I am raising tend to get forgotten—unless someone asks about them—and then about 10 years later we find that there is a major crisis because no one thought to ask the sensible questions.

Caroline Flint (Labour, Don Valley)

There is no one statutory definition of ''constable'' for historical reasons: that term refers to a person who holds the office of a constable. We are using the term ''police force'' as we are involved in the creation of statute.

We will write to the hon. Member for Somerton and Frome further about NCIS members to clarify his point.

With regard to Guernsey, Jersey and Gibraltar, it is my advice that they are not participating in these parts of Schengen, and therefore this will not apply.

David Heath (Liberal Democrat, Somerton and Frome)

So I am right in my surmise that a police officer in Jersey will not have the opportunity to go on to the UK mainland—let alone to France—on the same basis as a French gendarme?

Caroline Flint (Labour, Don Valley)

I understand that that is the case, but I shall check.

Question put and agreed to.

Clause 82, as amended, ordered to stand part of the Bill.

Clauses 83 to 89 ordered to stand part of the Bill.

Schedule 4 agreed to.

Clause 90 ordered to stand part of the Bill.

Schedules 5 and 6 agreed to.

Clause 91 ordered to stand part of the Bill.

Clause 92 - Supplementary and consequential provision

Nick Hawkins (Conservative, Surrey Heath)

I beg to move amendment No. 114, in

clause 92, page 61, line 23, leave out subsection (3).

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following:

Amendment No. 84, in

clause 92, page 61, line 28, leave out from 'section' to 'House' in line 29 and insert

'proposed to be made by the Secretary of State is not to be made unless a draft of the instrument containing the order has been laid before and approved by resolution of each'.

Amendment No. 115, in

clause 92, page 61, line 31, leave out from 'order' to 'is' in line 32.

Amendment No. 85, in

clause 92, page 61, line 41, at end add—

'(9) This section shall cease to have effect at the end of one year beginning with the date on which it comes into force.'.

Nick Hawkins (Conservative, Surrey Heath)

All four amendments relate to the issue of parliamentary scrutiny and the future of the legislation.

Amendment No. 114 would leave out clause 92(3). We think that subsection (3) is far too wide a power—a Henry VIII power. It was said in another place—I think by one of the noble Friends of the hon. Member for Orkney and Shetland—that in Scotland such a power should be named after the title of a famous Scottish play. I do not know whether theatrical bad luck applies to parliamentarians, but I shall not make the mistake of one noble Lord by naming the play. I am sure that those of us who have had links with the theatre will know what I mean.

The provisions under clause 92(3) are far too wide, give far too much unfettered discretion and we want them deleted. Our argument will be familiar not only to the Minister but to all Committee members. The

Minister knows that we are never keen on Henry VIII-type powers.

Amendment No. 115 would cut out part of subsection (6) to make it less wide, and introduce a far narrower provision for the reasons that I have already stated. Amendment No. 84 would insert in subsection (5) new wording, which will provide for greater parliamentary scrutiny.

Amendment No. 85 introduces a sunset subsection to the clause. On 17 March, there was a long debate in another place at columns GC58 and 59 on the advantages of sunset clauses, but there would be no benefit to be had from my repeating that debate at length. Conservative Members are of the view that it does no harm to introduce sunset provisions in new legislation. It gives an opportunity to reflect on how well the legislation is working, and to identify any problems. I place much faith in the advantages of sunset clauses because I am a parliamentarian who believes that we have too many laws in this country, and, all too often, laws are left on the statute book; nobody ever goes back and asks, ''Did we get it right?'' It is only when there are catastrophes, such as the Government's recent tax credits scheme and other things that they have got wrong and had to own up to in the past six years, that we have a review. It would be good to have a sunset clause in most legislation, and if I am ever successful in getting a high place in the private Members' ballot in the House of Commons—

Alan Hurst (Labour, Braintree)

Order. We cannot deal with the entire scope of legislation. Please restrict yourself to the amendment, Mr. Hawkins.

Nick Hawkins (Conservative, Surrey Heath)

Mr. Hurst, I have said enough to show the depth of my support for sunset clauses.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

I shall likewise be brief. I generally agree with the hon. Gentleman on the broad scope of powers in the clause. It seems that we rehearse these arguments in every Committee. If anyone wants a full statement of my views, they will find them in the record of proceedings for the Proceeds of Crime, Enterprise, Extradition and Police (Northern Ireland) Bills. Otherwise, I am content to adopt the arguments of the hon. Member for Surrey Heath.

Caroline Flint (Labour, Don Valley)

The purpose of clause 92 is to allow the Secretary of State or, if the subject matter falls within the competence of the Scottish Parliament, the Scottish Ministers to make consequential and incidental provisions that are necessary to give full effect to the provisions of the Bill. The clause is needed to ensure that the Bill functions properly when it comes into force and that the legislation is as effective as possible. I note that the tax credits that the Government introduced have taken 500,000 children out of poverty. I believe that that is a sign of effective legislation.

I am well aware that the Opposition are suspicious of so-called Henry VIII powers. However, the Government have already listened carefully to their concerns in another place and tabled amendments to ensure that any orders amending Acts of Parliament under the clause will be subject to affirmative

resolution, while orders to amend secondary legislation will be subject to negative resolution. That is in line with the recommendations of the Delegated Powers and Regulatory Reform Committee, whose judgment in such matters is greatly respected.

It may be useful if I start by reminding the Committee of the purpose of the powers in clause 92. ''Henry VIII powers'' is not an entirely appropriate name for such clauses, as it implies that they grant the Government sweeping powers to amend legislation at will, without Parliament having so much as a glance at what they are doing. We all know that that is not the case. The power in clause 92 concerns only supplementary and consequential provisions that fall within the scope of the Bill—it is no wider. It would be ultra vires to use the power in another way, and we have no intention of doing so.

However, it appears that the Opposition are not satisfied with that position. The effect of amendments Nos. 84 and 115 would be to ensure that any future statutory instruments making supplementary provisions to the Bill, regardless of whether they would amend primary or secondary legislation, would be subject to an affirmative rather than negative resolution procedure.

The Government resist the amendments on the ground that they would hamper the effective operation of the Bill. The effect of the amendments would be to clog up parliamentary time with debates on minor and technical statutory instruments, which would neither merit nor benefit from discussion. Any future amendments to the Bill should be subject to scrutiny that is proportionate to their scope. The amendments do not take that into account.

Amendment No. 114 would remove subsection (3), which clarifies that the powers in clause 92 can be used to amend primary or secondary legislation. I am not sure what the Opposition are seeking to achieve through the amendment, but it would hamper the clarity of the clause.

Finally, amendment No. 85 seeks a sunset clause on the power granted to the Secretary of State in clause 92 one year after the Bill comes into force. That would mean that any further amendments that were identified after that time would have to be made by primary legislation, whenever an opportunity arose.

I am sympathetic to the intention behind the amendment, but I am unable to accept it. Limiting the duration of the power to a year after the commencement date of the Bill would restrict the possibility of identifying and then scheduling adequate parliamentary time to debate any subsequent amendments. Hon. Members will agree that the Bill, which amends a substantial amount of previous legislation, is highly complex. While every effort has been made to ensure that all consequential provisions have been accounted for, it is possible that others could arise; for example, in respect of the highly technical road traffic provisions in part 3. The need for consequential amendments may not come to light during the year after the Bill comes into force. If the power were to expire, we would be unable to make

changes that are necessary to make the legislation fully effective.

I am unable to accept the amendment for those reasons. The clause strikes an effective balance between providing an appropriate level of parliamentary scrutiny, while at the same time ensuring that parliamentary time is used effectively. Therefore, I urge the Opposition to ask leave to withdraw the amendment.

Nick Hawkins (Conservative, Surrey Heath)

Perhaps I should have said at the outset that my noble Friend Baroness Anelay of St. Johns said in another place that she was grateful to the Government for moving in our direction and introducing amendments to that effect, and Conservative Members appreciate that. We were hoping to introduce proposals for further parliamentary scrutiny but I shall not take time by pursuing the matter further and dividing the Committee.

Before I ask leave to withdraw the amendment, I want to mention something that I noticed in the Minister's brief, although I do not blame her for it. Even in the Committee's final sitting, I am reminded that we in Parliament are protectors of the traditional use of the English language. Whoever wrote the brief decided that the word ''sunset'' can now be used as a verb. ''To sunset'' is a pretty appalling phrase. For X years I have heard Ministers turning the word ''scapegoat'' into a verb, and they did so when they were in Opposition. At the risk of being accused of being a grammatical pedant—when my party was in Government, I was referred to as the Finance Bill's grammatical conscience—I ask the Minister, somewhat tongue in cheek, to persuade her officials not to use the phrase ''to sunset'' in future briefings.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn

Clause 92 ordered to stand part of the Bill.

Clause 93 - Commencement

Caroline Flint (Labour, Don Valley)

I beg to move amendment No. 88, in

clause 93, page 62, line 4, at end insert—

'( ) Any day appointed for the purposes of Part 1 (other than sections 32 to 41), and the related amendments and repeals, is to be one decided by the Secretary of State and the Scottish Ministers.'.

Alan Hurst (Labour, Braintree)

With this it will be convenient to discuss the following:

Amendment No. 86, in

clause 93, page 62, line 10, at end add—

'(4) No order shall be made under subsection (1) until—

(a) the Extradition Bill has received Royal Assent; and

(b) the Secretary of State has certified that the provisions of this Act and that Act are compatible.'.

Caroline Flint (Labour, Don Valley)

I shall deal first with Government amendment No. 88, which refers to part 1 of the Bill, which deals with mutual assistance in criminal matters, and legislates for England, Wales, Northern Ireland and Scotland. The amendment reflects the fact that the

responsibility for the implementation of part 1 is now devolved to Scottish Ministers where the provisions apply to Scotland.

The amendment ensures that UK and Scottish Ministers must consult and agree the same date for the commencement of the provisions of part 1. This is necessary as the provisions implement EU agreements which the UK has signed up to to participate in. All parts of the UK therefore must be ready to operate these agreements on the same date, otherwise we will be unable to fulfil our EU obligations. Different commencement arrangements would also create confusion.

The Scottish Executive have been consulted throughout the drafting and the passage of the Bill, and have been fully involved in shaping how the provisions will be implemented in Scotland. Officials north and south of the border have developed good relationships and will continue to consult to ensure that the provisions operate smoothly across the UK.

The amendments are in line with the devolution settlement. Schedule 5 of the Scotland Act 1998 states that while international relations is a reserved matter,

''observing and implementing . . . obligations under Community law''

is specifically excluded from the reservation. As criminal law remains a devolved matter, it is right therefore that Scottish Ministers should hold the responsibility for those provisions.

I shall delay my response to amendment No. 86 until the hon. Member for Surrey Heath has presented his argument.

Nick Hawkins (Conservative, Surrey Heath)

We do not have a problem with amendment No. 88. The hon. Member for Orkney and Shetland, who understands the devolution settlement and what happens north of the border far better than I do, can speak if he wishes to dispute what the Minister said, but I shall not do so. However, my study of the proposal and that of my hon. Friend the Member for South-East Cambridgeshire (Mr. Paice) has not revealed any problem, so we shall not oppose it.

Amendment No. 86 is a brief provision, which relates to discussions—and battles—that I had with the Minister's predecessor, the hon. Member for Coventry, North-East (Mr. Ainsworth), who has no doubt returned happily and with relief to the Whips Office as Deputy Chief Whip. He and I had many battles on the Extradition Bill; I wanted a counterpart provision saying that neither this Bill nor the Extradition Bill should come into force until they were brought into harmony with one another. The Minister referred earlier to the fact that this Bill's provisions were different from those relating to the European arrest warrant, which her officials are well aware that Conservative Members violently oppose. That is why we said that the proposals should be interlinked, but I will not labour the point. I am sure that the Minister will resist our amendment, but I hope that she at least understands, and has had some briefing on, the reason why we advanced it. We spent more time discussing the matter during the proceedings of the Extradition Bill. At that time, I anticipated that the same Minister would deal with both Bills throughout, but the reshuffle has

supervened and this Minister now has the dubious pleasure of having to respond to our concerns.

Caroline Flint (Labour, Don Valley)

We presume that amendment No. 86 arises from the Opposition's unfounded fear that, under the Extradition Bill, foreign officers will be granted powers to arrest UK citizens while carrying out cross-border surveillance operations under the Bill before us. That appears to relate to a confusion of what the Bill before us and the Extradition Bill permit. As Committee members will recall, during our lengthy discussions of clause 82 of this Bill we made it absolutely clear that foreign officers would not have any executive powers—in other words, powers of arrest, or search and seizure—while in the UK. The provisions permit foreign officers to carry out only surveillance operations in the UK, during which time they are not expected to make contact with suspects. The Bill was amended in Committee in the Lords to clarify that. Foreign officers will have no executive or coercive powers.

Furthermore, the hon. Gentleman may recall from the lengthy discussions of the Extradition Bill that the Government have absolutely no plans to designate anyone other than a British law enforcement officer to execute warrants under the Extradition Bill. Arrests will be carried out only by British police officers or British law enforcement officers, such as members of Her Majesty's Customs and Excise or one of the services police forces. The Government amended the Extradition Bill to make that clear.

We are not convinced that the amendment would achieve what is intended. Preventing the commencement of the provisions of this Bill until the Extradition Bill receives Royal Assent would serve no purpose. The two pieces of legislation deal with entirely different circumstances and powers. As hon. Members will be aware, the thrust of this Bill is to improve the way in which we provide legal assistance to other countries, both within and beyond the EU. The Extradition Bill deals with reforming our current extradition proceedings. Both Bills implement European framework decisions, but that is where the similarities end. Parliamentary counsel, and those who instruct them, take great care to ensure that each new Act of Parliament sits carefully within the framework of existing legislation so that inconsistencies do not arise.

I hope that that answer will satisfy the hon. Gentleman, and he will not press his amendment.

Amendment agreed to.

Clause 93, as amended, ordered to stand part of the Bill.

Clauses 94 and 95 ordered to stand part of the Bill.

New Clause 7 - Firearms: international co-operation and general duty of the Secretary of State

Nick Hawkins (Conservative, Surrey Heath)

I beg to move, That the clause be read a Second time.

I will deal with this quite briefly. [Interruption.] I hear some support for that from the hon. Member for South Dorset (Jim Knight). I am conscious that this is the last sitting of the Committee and I do not want to detain hon. Members terribly long. I have a little more to say about the next new clause, but again it should not take too long—to the pleasure, I am sure, of the hon. Member for South Dorset.

I mentioned earlier that one of the advantages of being a shadow Home Office Minister is that one is able to receive confidential briefings from people such as the head of the National Crime Squad and the head of the National Criminal Intelligence Service. Those briefings enable one to think quite carefully about some of the most serious types of violent crime and, particularly, about the importation of firearms. The Government have recognised the huge problem of the explosion of gun crime. The tragic deaths of two young women in a gang war—they were literally caught in the crossfire—led to the Home Secretary having what he called a gun summit. All kinds of promises were made about the crucial steps that the Government were taking.

The Bill is a useful opportunity. Clearly, the new clause is in order; otherwise, we would not have been allowed to table it and it would not have been selected for debate. It must fall under the long title of the Bill. We felt that there was no reason not to take the opportunity to add it to the Bill. It is a useful vehicle and reinforces the point that the Secretary of State should have that duty placed on him in relation to the import of firearms. I hope that the Minister will surprise us all on this last afternoon by standing up and saying that the Government entirely agree, and will accept the new clause. We wait to hear.

Caroline Flint (Labour, Don Valley)

As the hon. Gentleman has outlined, all Committee members, and all our parties, take the issue of firearms seriously—as I think does the whole country. How they are used, even by people who have licences, and whether they are lawfully imported are important to us all. He will be fully aware that we already have some of the toughest gun controls in the world, because of the actions of this Government since they were elected in 1997. We have been working with the police to ensure good security of legally held weapons to prevent them being stolen, and we are looking at the need to establish stricter controls on deactivation standards.

We are working very closely with our EU partners and with the various United Nations bodies. We are heavily engaged in ensuring that Governments and law enforcement agencies work together as closely as

possible, within our varying systems, so that any gaps are not exploited by those who organise and profit from criminal businesses. It is essential to tackle those problems as far upstream as possible, which is why the Foreign and Commonwealth Office, Her Majesty's Customs and Excise, the Department for International Development and other agencies are assisting Governments and law enforcement agencies in countries that are a source of the organised crime problems in this country.

The National Crime Squad and the National Criminal Intelligence Service play a key role in the intelligence-led approach to gun crime, in London as elsewhere. NCIS runs a national firearms-tracing service that provides intelligence on the source and use of guns used in crime. That will be complemented by a new, national, computerised forensic firearms intelligence database, set up with £1.4 million funding from the Home Office.

We have recently made changes to firearms legislation in the Criminal Justice and Anti-social Behaviour Bills. Some Members on this Committee who have been involved with those Bills will be aware of the firearms measures in them, which I shall briefly outline. The Criminal Justice Bill includes a provision to introduce a five-year minimum sentence for the illegal possession of prohibited weapons. The Anti-social Behaviour Bill will make it an offence to possess an air weapon or an imitation firearm in a public place without lawful authority or reasonable excuse. It includes measures to ban the sale, manufacture and import of firearms using self-contained air cartridge systems, such as Brocock, and to license those already held.

In short, the Government are wholly committed to tackling gun crime, and working internationally in support of that aim. That is why, despite its good intent, the new clause is unnecessary. It does not sit comfortably in the body of the Bill. We are committed, as is publicly known, to reviewing firearms legislation. The phraseology here might be more useful if there were to be new legislation. We all share concern about gun crime and the import of illegal weapons, and the Government are showing that they are very willing to tackle those issues head-on. The fact that we do not agree that this new clause should be added to the Bill in no way detracts from the good work that we have done to tackle problems in this field.

Nick Hawkins (Conservative, Surrey Heath)

I am sure that there is a huge amount of good intention on the part of Ministers and officials in the Home Office and, of course, of police forces throughout the country. Sad to say, however, the fact remains that if one talks to senior officers in law enforcement, they say that one of the things that they are most worried about is the ever-increasing use of guns in all types of crime. In particular, one hears that some organised criminals coming into this country from such countries as Albania are much more inclined that way than the admittedly serious criminals whom we have had here in the past. It has been said to me that the difference with the Albanians is that they literally, in the words of the old west, shoot first and ask questions afterwards. They seem to have no hesitation at all. Senior officers have suggested to

me that Albanians are much more difficult serious, organised criminals to deal with than any others that the forces of law and order in this country have ever met. A further issue is the increased use of firearms by yardie criminals.

I have said that there is plenty of good intent on the part of Home Office Ministers and their officials, but we all know, to use the old phrase, that the road to hell is paved with good intentions.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

A few short minutes ago—at least, according to the clock it was a few minutes ago; it seems a hell of a lot longer ago than that—the hon. Gentleman was telling the Committee that we have too many laws, and that too many of them are unnecessary. I wonder whether he would care to reflect on his words in relation to new clause 7. What does it really add?

Nick Hawkins (Conservative, Surrey Heath)

The hon. Gentleman seeks to poke gentle fun by saying that I pointed out that we had too many laws. This law will be made anyway; we are talking about a Bill that will become an Act. The question is: what is in it? To answer the hon. Gentleman's question, our small new clause would give a clear duty to the Secretary of State.

As I have said, the Government have lots of good intent, but what they are doing is not effective enough, because the situation in relation to gun crime in this country is getting worse, not better. Although the Minister has been in office for less than a week, she cannot escape the fact that the situation has got a lot worse since the Government came to power. The duty is on the Government to do something about that, and I think that the new clause would help.

Caroline Flint (Labour, Don Valley)

The idea is often put about that guns are flooding into the country, but my information is that that is not the case. Having consulted the police, Her Majesty's Customs and Excise and NCIS, I can say that there is no evidence to support that assertion. There is certainly no evidence of organised and large-scale smuggling; nor does there appear to be a single main source of the firearms held by criminals. Sources in recent years include theft from legitimate owners, the smuggling of individual weapons, conversion of deactivated or replica weapons, and trophies of war brought back by returning service personnel. It is important to make it clear that that is what evidence and research suggests; otherwise, we end up with sensational headlines that cause unnecessary fear and concern in communities.

Nick Hawkins (Conservative, Surrey Heath)

I know why the Minister is concerned about sensational headlines—because they damage the Government's opinion poll rating. I am sure that the Minister was saying what is written in her brief. It was probably headed, ''If pressed, say this''. I seriously suggest that as soon as her new ministerial duties allow, she has a personal one-to-one briefing with the heads of NCS and NCIS, as I have done. In particular, she should ask both of them what they say about the ruthlessness of Albanian gangsters, who are taking over, for example, the vice trade in central London and other cities. When she has done that, I suspect that she will not be quite so ready to read out the briefings

that she is given. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 9 - The Channel Islands and the Isle of Man

Nick Hawkins (Conservative, Surrey Heath)

I beg to move, That the clause be read a Second time.

We are coming to the end of the proceedings, and, in the spirit of co-operation, I want to genuinely thank the new Minister for what she has done since she took over. I also put on record my thanks to you and your co-Chairman, Mr. Hurst, and to other members of the Committee, particularly the other two Ministers, the hon. Members for Plymouth, Devonport (Mr. Jamieson) and for Coventry, North-East (Mr. Ainsworth).

David Cairns (Labour, Greenock and Inverclyde)

Will the hon. Gentleman give way?

Nick Hawkins (Conservative, Surrey Heath)

I will in a second.

No doubt, there will be the usual courtesies when we finish and the Bill is passed to the other place. Before I give way to the hon. Gentleman, I wanted to set out why we tabled the new clause.

Lord Wallace of Saltaire, speaking for the Liberal Democrats—and later, Lord Goodhart—put forward a clause similar to new clause 9. There was an interesting debate in which we were informed that the Government did not have the power to force such legislation on the Channel Islands or the Isle of Man.

I have a personal insight into why Ministers are saying what they do on the subject. When Lord Williams of Mostyn had responsibility for such matters, I went with him to see the historic ceremonies of the opening of the Manx Parliament, Tynwald. Lord Williams thought that he was going to have a jolly weekend, but none of his officials had briefed him on the fact that emergency debates had been held in the Manx Parliament, and in Jersey and Guernsey, to consider the dramatic move of secession from the UK. Those three Parliaments in our Crown dependent territories had been outraged by the way that the Government had imposed the Edwards report, which investigated their banking and financial services, on them without any consultation.

On the weekend that we were in the Isle of Man, every time Lord Williams got up to address people on what would usually have been a ceremonial occasion, he was attacked right, left and centre, not only by the Manx politicians, but by guests from Jersey and Guernsey. I was pleased that, on the two occasions on which the matter was raised, Lord Bassam of Brighton and Lord Filkin said, ''Well, of course we cannot impose this on the Crown dependencies.'' Those dependencies have learned a lesson from how

badly their fingers were burned. The Edwards report was announced very suddenly, without any of the normal consultation with Guernsey, Jersey and the Isle of Man, because the Government were in the first of the big holes into which they dug themselves about the former Financial Secretary to the Treasury, the hon. Member for Coventry, North-West (Mr. Robinson). He had to resign because of his involvement in offshore financial matters that he had not properly declared, and the report was announced early as a desperate attempt to get everyone off the hook.

I am not ignoring what Ministers have said in introducing new clause 9. I am sure that the Minister will have the same brief as her colleagues had in another place, which is that they cannot impose the Act on the Channel Islands and the Isle of Man. I have tabled the new clause purely to probe and put on record the fact that I understand why Ministers are being so careful this time around—it is because they got it so badly wrong last time. I give way to the hon. Member for Greenock and Inverclyde.

David Cairns (Labour, Greenock and Inverclyde)

The moment has long since passed. I was not sure whether there was a statute of limitations on trying to intervene.

The hon. Gentleman started by saying that he wanted to genuinely thank X, Y and Z. Given that he is the self-proclaimed grammatical pedant, I am sure that he would want to apologise sincerely for that gaffe.

Nick Hawkins (Conservative, Surrey Heath)

The hon. Gentleman is right, and he can now qualify himself as the grammatical conscience of the Labour Committee members. I should indeed have said that I wanted genuinely to thank, and I accept the correction entirely. [Interruption.] The hon. Member for Somerton and Frome begs to differ, but he can speak for himself. On this particular grammatical point, I am on the same side as the hon. Member for Greenock and Inverclyde, and I will consider my wrists well and truly slapped.

It is unusual for the Conservatives to introduce in the Commons a new clause that was introduced in the Lords by the Liberal Democrats, but I thought that it was worth getting this debate on the record. I know what the Minister will say and that I will accept her assertion that we cannot impose the Act on the Channel Islands and the Isle of Man. However, as I will represent Parliament in two weeks at the next Tynwald opening, it will be helpful to refer back to this debate. That is why I wanted to have it.

David Heath (Liberal Democrat, Somerton and Frome)

I want to put on the record my belief that abhorrence of a split infinitive is an example of Victorian pomposity at its worst. It is a misunderstanding of the English infinitive, and what is good enough for the revised version is good enough for me.

On the substance of the new clause, it has been a recurrent theme throughout our proceedings for me to ask about the position of the Crown territories and British overseas territories, although new clause 9 applies only to the Crown dependencies.

We must get our act together as a country with the Crown territories. If we are serious about defeating international financial and other crime, it is not acceptable for there to be areas within the responsibilities of the United Kingdom in its broadest sense in which the writ does not run for effective crime prevention and investigation. I understand entirely the constitutional problems of having parallel legislation in the Parliaments, Assemblies of the States and the Tynwald to achieve the same objectives, but it is vital that we have that; otherwise, we will fail in our duties as a member state of Schengen to achieve the comprehensive coverage and international co-operation that is required. I have absolute confidence that if another member state had territories that approximated to the European mainland but was not adhering to international agreements, we would be extremely critical of them.

Nick Hawkins (Conservative, Surrey Heath)

I agree with what the hon. Gentleman has been saying, and there is a particular example. We have been critical of some of the Spanish Government's actions in relation to their territories on the north coast of Africa—Ceuta and Melilla. One of the arguments that those of us in the House who support Gibraltar retaining its current status—the Gibraltarian people have just voted by a massive majority to keep their current status—make is that the Spanish Government's treatment of Ceuta and Melilla is not consistent with their approach to Gibraltar. Is that not a very good example, in terms not only of financial matters and controlling fraud and crime but of constitutional matters, that bears out the hon. Gentleman's point?

David Heath (Liberal Democrat, Somerton and Frome)

To a certain extent it is a good example. Ceuta and Melilla are, however, treated as parts of metropolitan Spain for the purposes of its domestic law, whereas we do not treat our Crown dependencies as part of metropolitan United Kingdom—if that is the appropriate term—as far as our jurisdictions are concerned, which poses a problem.

As I said, I do not seek the full integration of the Crown dependencies into the United Kingdom jurisdiction. While we take responsibility for the foreign policies of those Crown dependencies, however, it is incumbent on us to find ways to implement the treaty obligations and international agreements that we enter into. Whether those agreements fight crime in general, financial crime in particular or terrorism, which is one of the reasons for the Bill, we must find ways to bring the law in Crown dependencies into accordance, as far as possible, with UK law. It is, however, beyond the competence of Parliament to do that. The hon. Gentleman's new clause—he will forgive me for saying this—is an artificial construct. I know that he understands that it is for the Foreign and Commonwealth Office to negotiate with the Crown dependencies in order to encourage their support and involvement. Nevertheless, the responsibility is heavy.

I have asked the Minister a number of questions about that issue. She is going to write me a compendious letter telling me everything there is to know about the relationships with the various territories. In all seriousness, I ask her to take the

issue forward because we risk our domestic arrangements appearing to be less than complete when we fail to address those problems. We have been rightly criticised in the past on, for example, the law in Gibraltar not being what we would wish it to be to deal with finance and smuggling. Spain took the opportunity to make a valid argument against us, which I did not like because we should be able to negotiate from a position of strength.

Similarly, the British overseas territories in the Caribbean do not always behave as we would like them to, given the various international criminal activities that take place in that sphere. Nearer home, the Schengen agreement does not extend to the Crown dependencies, but its spirit surely should. We should encourage as much correspondence as possible on those laws.

Nick Hawkins (Conservative, Surrey Heath)

The hon. Gentleman referred to the Foreign and Commonwealth Office having an opportunity to negotiate those matters further. However, Lord Wallace of Saltaire inadvertently pointed out in the debate in another place that the Home Office is dealing with the Crown dependencies. He was corrected by the Minister in another place, who said that the Lord Chancellor's Department is responsible. Since those remarks were made, however, there has been a botched reshuffle, and apparently the Department for Constitutional Affairs will take responsibility. Does the hon. Gentleman agree that it would be helpful if the Minister were to clarify whether the new so-called super Department with a new Tony crony in charge will still deal with the Crown dependencies?

Alan Hurst (Labour, Braintree)

Order. The clause is narrowly defined through the Isle of Man and the Channel Islands. I see no reference to Cabinet reshuffles.

David Heath (Liberal Democrat, Somerton and Frome)

You are absolutely right, Mr. Hurst. I have no intention of being drawn down that route because we have had enough discussion of that particular subject over the past couple of days.

As the hon. Member for Surrey Heath will know, the Foreign and Commonwealth Office was responsible for producing the White Paper on the future governance of dependent and overseas territories. It therefore takes a continued interest in this area. The hon. Gentleman was absolutely right to say that now the Department for Constitutional Affairs must take an interest, as must the Home Office, in ensuring the security of the United Kingdom. I look forward to the Minister's reply.

Caroline Flint (Labour, Don Valley)

The effect of the amendment would be to make provisions in the Bill capable of extension to the Channel Islands and the Isle of Man. A provision such as the amendment suggests can be included in UK legislation only after consultation with the islands and with their consent. It cannot be done unilaterally, as the amendment would require. Unlike purely domestic legislation, it is not appropriate to include such a provision where the Bill is enacting our EU obligations. Unlike standard Community business, where territorial extent is defined by treaty, third pillar co-operation, which is implemented by the Bill, has no specific territorial application. The

inclusion of Gibraltar and the islands in an instrument is considered with our European partners at the time it is negotiated, and their inclusion can be specified in the instrument where that is agreed. As the islands have chosen not to participate in the measures covered by the Bill, we cannot use the Bill to change that situation.

The Crown dependencies were not consulted about the inclusion of a permissive extent clause in the Bill, as they customarily enact their own laws in the field of criminal justice. They have separate legal and judicial systems, which the UK Government respect. It is exceptional these days for UK legislation to be capable of extension to the Crown dependencies, save in a few areas such as immigration. A copy of the Bill will be sent to the islands once it receives Royal Assent, and it will be for them to decide if there is anything in it that they might want to copy into their own legislation. That does not mean that the islands are unable to provide similar assistance to that set out in the Bill. They have a raft of insular legislation that largely mirrors ours in areas such as judicial co-operation, terrorism, money laundering and fraud.

The Department for Constitutional Affairs will take responsibility for the Channel Islands. This week, officials there have been contacted in response to this matter. I hope that that satisfies the hon. Member for Surrey Heath for the time being, and that he withdraws his amendment. Obviously, this is an important area in relation to tackling international crime, and it needs to be clear.

Nick Hawkins (Conservative, Surrey Heath)

The Minister's comments satisfy me. They also appear to satisfy the hon. Member for Somerton and Frome.

It has been useful to put this debate on the record, as the Government need to be aware that the hon. Member for Somerton and Frome on behalf of his party and I on behalf of mine will keep our eagle eyes on this matter. We are always conscious of the sensitivities of our important Crown dependencies. All the people on the Channel Islands and the Isle of Man who deal with financial services are concerned about this; they want to help the UK authorities tackle international crime—financial fraud, drugs smuggling and all other types of crime.

As the Minister rightly said, those dependencies have their own legislation. She confirmed what Ministers said in another place, but it was helpful to have her comments on the record. I am grateful to her for the courteous way in which she has responded. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Question proposed, That the Chairman do report the Bill, as amended, to the House.

Caroline Flint (Labour, Don Valley)

Before we complete our proceedings, I want to take this opportunity to thank you, Mr. Hurst, and Mr. Benton for the way in which you have chaired our sittings. I am sure that you chaired them as effectively, professionally and smoothly when my hon. Friend the Member for Coventry, North-East was

leading proceedings. My hon. Friend has been of great support to me. Since I found out this week that I would be taking on this Bill, he has been very helpful. He has also been a good friend in giving reassurance. I have found that most Committee members do not know as much as I do because I am given the briefs.

I thank the officials who have assisted us throughout proceedings, and the members of Hansard. I also thank the police officers who have been in attendance during the past two days—I hope that they have found it interesting to know exactly what UK police officers may be able to do in future, and what foreign police officers can do in this country. No doubt they are thinking that there will be yet more tasks for them along with everything else.

As all Committee members would agree, it is important to tackle the area addressed by the Bill. Not to tackle it would be incredibly short-sighted. Crime is becoming much more sophisticated and technical, and communications assist crime. Our ability to work co-operatively with our European neighbours demonstrates that, although we have a strong voice in Europe, working with Europe will make us stronger. Together we can do something to combat crime.

I thank the hon. Member for Surrey Heath and his colleagues, the hon. Member for Somerton and Frome, who has led for his party, and all Committee members on the Opposition Benches. Overall, they have treated me kindly in my first week as a Minister, and I thank them for that. We had a little spat earlier today, but politics would not be politics without a few of those. I also thank my hon. Friends on this side of the Committee for their support. It is very much appreciated. It might not seem like it now, but the Bill will play an important part in our drive to tackle crime.

I should also like to thank my hon. Friend the Government Whip, who has supported me ably, as always. Considering how disruptive he might have thought that I was on the Anti-social Behaviour Bill, he has been a fantastic support this afternoon. I should also like to take the opportunity to thank my team—everyone who has been involved in the preparation of the Bill, those who have given me advice this week and those from my private office. It has been a daunting week. We have managed to get through it and I hope that we have contributed to some good legislation that will tackle a matter that we earnestly want to address—the way in which international crime can operate. We have done a good job throughout the sittings of the Committee and I thank everyone for their support in this, my first week as a Minister.

Nick Hawkins (Conservative, Surrey Heath)

May I, in turn, thank the Minister and echo the thanks that she has given to Hansard, the doorkeepers, the police and all the officials. Most of all, Mr. Hurst, I thank you and your co-Chairman, Mr. Benton. I hope that you will pass on our thanks to him. This has been a good Committee and by and large, as the Minister has said, a good-natured one. I think that she has had a good start. She has praised not only her officials and her team, but also her

predecessor the hon. Member for Coventry, North-East, who is now a Government deputy Chief Whip. All Conservative members of the Committee would like to thank him for the work that he did when he was Under-Secretary. I hope that the hon. Lady will pass on our thanks to him. I was not at all surprised that he was promoted; he became more good-humoured as time went on. On a recent occasion he said that he was risking his future by describing a brief that he had been given as complete garbage. I thought that he must know that he was going to be promoted, or he would not have dared to say that.

I do not know whether I am giving a straw in the wind to the hon. Lady, but I genuinely want to thank her and to say that we all know that it is daunting to suddenly take over as a Minister; promoted, as she said, from being a very disruptive Back Bencher on the Anti-social Behaviour Bill Committee only two or three weeks ago, when she spoke in support of amendments that my hon. Friend the Member for South-East Cambridgeshire and I proposed on such difficult issues as travellers. With this Government, Mr. Hurst, you never know what will lead to promotion. I am sure that that is a signal to many of the hon. Lady's Back-Bench colleagues. It is not always slavish sticking to the party line that gets one noticed. [Interruption.] I thought that that might provoke a response from the Government Whip. He knows that sometimes people who are disruptive get noticed too.

I also thank the hon. Member for Somerton and Frome. The Liberal Democrats always bring something to our debate, even if we are not sure in which direction they are going next. I genuinely enjoy serving on Committees with the hon. Members for Somerton and Frome and for Orkney and Shetland. They are two of those whom I regard as the slightly more sensible wing of their party. I thank my hon. Friends, our Whip who cannot be with us at this moment and, most of all, my hon. Friend the Member for South-East Cambridgeshire. We operate as a successful double act. We have done it on a number of Bills, and I hope that we shall carry on doing so, although it is not in my hands to guarantee it.

David Heath (Liberal Democrat, Somerton and Frome)

I associate myself with everything that has been said in the mini-Oscar ceremonies with which

the previous speakers have concluded. I want to thank you and your co-Chairman, Mr. Hurst, for the way in which you have presided over our proceedings, and everyone else associated with the Committee.

This has been one of those Bills that has to be classified as worthy but dull. Even with our best intent, we found it difficult to enliven the proceedings—until this morning, when my hon. Friend the Member for Orkney and Shetland suddenly saw the light, realised how interesting it was and wanted to contribute at every opportunity. I am grateful to him for his active support.

Three Ministers have been involved. The Under-Secretary has acquitted herself extremely well in her first week. I found her predecessor as Minister helpful in his approach. I wish him well with his new responsibilities. I am grateful to the Lord Commissioner for his assistance—is this our third Bill together? The Home Office is so legislatively incontinent; as soon as we have finished one Bill, another comes along. Indeed, next week the Courts Bill comes to Committee.

The Bill has been put to bed. On the whole, it is a worthy Bill. Some areas are still contentious, and I fear that unless we see a little movement, it will continue to go from one House to the other for some time. I say that not as a warning but as a prediction. It would be in everyone's interests if we could reach agreement on the outstanding areas of contention, so that we do not have to watch the Bill travelling between both Houses—a journey that several Bills will be doing. I thank all concerned. We look forward to the remaining stages when the Bill returns to the House.

Alan Hurst (Labour, Braintree)

I regret to say that almost all those remarks were out of order. However, making that ruling gives me the opportunity to acknowledge the kind remarks made about the Chair. I congratulate all hon. Members on the way in which they have conducted themselves during our consideration of the Bill.

Question put and agreed to.

Bill, as amended, to be reported.

Committee rose at twenty-one minutes past Four o'clock.