Counter-Terrorism and Border Security Bill

(Limited Text - Ministerial Extracts only)

Report stage (Hansard - continued): House of Lords
Monday 3rd December 2018 Lords Chamber

[Lord Paddick (LD)]

My Lords, I support my noble friend’s comments. We on these Benches have for some time had a concern about the so-called conveyor belt theory that radical, non-violent, extreme views necessarily lead to radicalisation and violence. Many groups in this country hold what most of us would consider to be extreme views, such as fundamentalist Christian groups and ultra-Orthodox Jewish groups, where we have no concerns at all that their extreme views will lead to radicalisation and violence.

There are other factors at play that receive no consideration as far as the Bill’s measures are concerned. We also express our concern that the Bill would tend to put people off debating extreme views, during which the counternarrative can be expressed, peoples’ dangerous views can be openly debated and their ideas shown to be false. The Bill and other measures like it are likely to close down that debate. Ultimately, a battle of ideas is the way to address the underlying issues rather than the approach the Bill takes.

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

I thank both noble Lords for their explanation of these amendments. One of the things that the noble Lord, Lord Alderdice, challenged the Government on was the rationale behind our counter- terrorism work. Perhaps it would be useful to set out some of that for him.

As stated in Contest, government and academic research has consistently indicated that there is no single sociodemographic profile of a terrorist in the UK, and no single pathway or, indeed, “conveyor belt” leading to involvement in terrorism. Terrorists come from a broad range of backgrounds and appear to become involved in different ways and for differing reasons. Few of those who are drawn into Islamist terrorism, for example, have a deep knowledge of the faith.

While no single factor will cause someone to become involved in terrorism, several factors can converge to create certain conditions under which radicalisation can flourish. These include background factors such as aspects of someone’s personal circumstances that might make them vulnerable to radicalisers, such as being involved in criminal activity; initial influences such as people, ideas or experiences that influence an individual towards supporting a terrorist movement; and an ideological opening or receptiveness to extremist ideology.

Most individuals who experience this combination of factors will not go on to become involved in terrorism because there are protective factors that safeguard against their doing so. These range from having no opportunity to develop extremist contacts to having other, more important priorities in their lives, such as their family, career or community. A small number of people who lack these protective factors may become radicalised. In these circumstances, a range of social and ideological influences can combine to intensify commitment to a terrorist cause and provide opportunities for them to act.

The process of radicalisation is driven by universal psychological needs for identity and belonging—those words are very important in this context—meaning and purpose, and, of course, self-esteem. Where these are met by constructive sources radicalisation will not flourish, but we also know that as a person deepens their involvement in terrorism this process will typically include voracious consumption of online propaganda. When in a group, further engagement in terrorism is also likely to include the individual isolating themselves from non-extremists and participating in low-level activity such as the radicalisation of others, or facilitation, fundraising, et cetera. There is some research to indicate that lone-actor terrorists have a higher incidence of certain mental and developmental health conditions than the general population, but I must stress that no one should assume that a terrorist suffers from a mental health condition or that a person with a mental health condition is a terrorist.

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Moved by

[Earl Howe]

24: Clause 6, page 5, line 17, leave out subsection (1) and insert—
“(1) Section 17 of the Terrorism Act 2006 (commission of offences abroad) is amended as follows.(1A) Subsection (2) is amended in accordance with subsections (2) to (4) below.”

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[Earl Howe]

My Lords, I shall also speak to Amendment 25. Clause 6 will add a number of further terrorism offences to the list at Section 17 of the Terrorism Act 2006, to which extraterritorial jurisdiction, or ETJ, applies. This means that individuals can be prosecuted in UK courts for conduct that took place outside the UK which would have been unlawful under an offence listed at Section 17 had it taken place here. This will ensure that UK courts are able to prosecute terrorist fighters who travel to or return to the UK having joined terrorist groups and become involved in conflicts or other terrorist activity overseas. It will also ensure that we are able to prosecute people who base themselves overseas and seek to radicalise people in the UK.

In relation to this latter category of radicalisers, Section 13(1) of the Terrorism Act 2000 contains the offence of displaying in a public place an item of clothing or other article, such as a flag, in circumstances which arouse reasonable suspicion that the person is a member or supporter of a proscribed organisation. As a result of Clause 2 it will also contain, at new subsection (1A), the offence of publishing an image of such an article in the same circumstances. As currently drafted, the effect of Clause 6 is that a person could potentially be prosecuted under Section 13 in the UK, having displayed while in another country the flag of a terrorist organisation that is proscribed in the UK but not in that country. This is something about which the Joint Committee on Human Rights has raised concerns, and the noble Baroness, Lady Hamwee, tabled amendments on behalf of the JCHR in Committee which would have removed the Section 13 offence from the ETJ provisions entirely, or alternatively would have limited ETJ in relation to Section 13 to UK nationals and residents only.

These amendments return to issues on which we have had extensive and helpful debates. I have set out very clearly and at some length the Government’s position on why this power is needed, but it is worth reminding ourselves of two key points. First, we have seen modern terrorist groups, such as Daesh, use slick and effective online propaganda, including activity covered by the Section 12 and 13 offences, which has been aimed at radicalising people in the UK, building support for terrorist organisations and ideology, and encouraging terrorist attacks in the name of such organisations. This activity is not currently within the jurisdiction of the UK courts where it occurs in another country, but as we have seen in the Syrian context, it can give rise to a very real and immediate threat within the UK. For this reason it is imperative that we extend ETJ to these offences, and that we do so in an effective and workable way which does not unduly limit the ability of UK courts to deal with serious terrorist activity. This is the effect of Clause 6.

However, I have considered and reflected carefully on the points raised previously by the noble Baroness, Lady Hamwee, on behalf of the JCHR, and by other noble Lords, about the breadth of Clause 6 as currently drafted, and I have recognised the strength of feeling on this issue. While I remain of the view that the safeguards I outlined in Committee will ensure that the power is used in a proportionate way, I accept that this has not provided sufficient assurance to your Lordships. I have therefore concluded that the extension of ETJ to the Section 12 and 13 proscription offences should be limited to cases where the individual is a UK national or resident, in line with the amendment proposed in Committee by the noble Baroness, Lady Hamwee.

Amendments 24 and 25 in my noble friend’s name deliver this. Although the noble Baroness’s earlier amendment focused on Section 13, the same principle arises in relation to Section 12 of the 2000 Act, which criminalises invitations of support for a proscribed organisation, and as a result of Clause 2 will also cover reckless statements of support. The government amendments therefore extend this limitation to both Sections 12 and 13. This will ensure that it will still be possible to prosecute in the UK courts a person who has travelled from the UK to join a terrorist organisation, and who has become involved in propaganda on behalf of the organisation while they are overseas. But it will exclude the type of case about which the noble Baroness has raised concerns, where a foreign national acts in support of an organisation which is not proscribed in his or her country—for example, if a Lebanese national living in Lebanon displays a flag associated with the military wing of Hezbollah or invites support for that wing of the organisation. These amendments will put beyond doubt that such a person will not be liable to be arrested or prosecuted should they subsequently travel to the UK.

I hope that these are welcome amendments and will answer the concerns that have been raised by a number of your Lordships. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I am indeed very grateful for the Government’s amendments and their consideration of the points that have been made in Committee as well as by the committee, and at previous stages. They are very significant indeed. Amendment 26 is attributed to the Government on the groupings list but I will put that right. It would provide that, in connection with what we dealt with earlier today, the offences under paragraphs (ca) and (cb) will be relevant only where the actions are an offence in the country where they took place.

In Committee the noble and learned Lord, Lord Judge, who was very careful to be neutral about this, cautioned the Committee to take care:

“The Bill risks criminalising a citizen of another country for doing something that is not unlawful in that country … there may be minor matters, in relative terms, which we criminalise here but are not unlawful by the laws of a different country. We need to be careful not to extend the criminal law further than it should go”.—[Official Report, 31/10/18; col. 1368.]


The government amendments have indeed dealt with one aspect—the “who”, if I can put it that way—but not with the “what”.

The Government may say that dealing with the “who”—who may be guilty of an offence—is enough. I urge them to make a further change to the Bill to make it complete. Of course, I am aware of the safeguards referred to by the Minister in Committee. He has alluded to them today, and I do not discount them, but whether these new offences should be brought within extraterritorial jurisdiction if they are not an offence in the country where they took place deserves further consideration. The offences in Section 17, as it stands, are all high-level offences. I do not want to spend too long on this at this time of night, but following my noble friend Lord Alderdice I pose the question: do we want to deter UK nationals who have done offensive—I say that in a rather wide sense—and possibly pretty stupid things abroad from coming back to this country? There is a view that they should be allowed to stay out there and fester. I do not take that view. I think we would want to see them come back and become part of British society. That is why I tabled this amendment.

[Earl Howe]

Amendment 26 seeks to place a different limitation on the ETJ power in relation to the proscription offences at Sections 12 and 13 of the 2000 Act which would limit it to cases where the offending activity would also constitute an offence in the country where it occurred. I mentioned earlier one key rationale for the new powers we are seeking, which is that terrorist groups use propaganda as a means of radicalising people in this country while basing themselves abroad.

Additionally, it is a fact that terrorist groups are by their nature most likely to be based in areas of conflict and instability where there may not be functioning systems of government or criminal justice, or clearly defined and well-developed terrorism laws equivalent to those in the UK. This means that it is entirely possible for a person to act in support of a potentially very serious terrorist organisation outside the UK and for the laws in that part of the world to criminalise that activity in a different way from the UK, or potentially not at all. This is not a reason to take no action against that person if they travel or return to the UK, if prosecution would otherwise be possible and appropriate. We must engage with the world and the terrorist threat as it is, rather than as we would ideally like it to be, and it would simply not be responsible to tie the hands of the police and the courts in this way. I share the noble Baroness’s wish that those who return to this country should repent, be reformed and form part of the society in which we all live and which we enjoy, but I say that without prejudice to the point I have just made that if they have acted in a way that profoundly harmed the people of this country, they should be brought to book.

I am afraid Amendment 26 would run a coach and horses through the idea that I have put forward, and it would most likely mean that it would not be possible to prosecute at all people who have engaged in such activity in places such as Syria. We might as well simply strike this provision from the Bill in its entirety if we are going to go down that road. For this reason I am unable to support the noble Baroness’s Amendment 26.

Amendment 24 agreed.

Moved by

[Earl Howe]

25: Clause 6, page 5, line 31, at end insert—
“( ) In subsection (3), after “citizen” insert “(subject to subsection (3A))”.( ) After subsection (3) insert— “(3A) Subsection (1) applies in the case of an offence falling within subsection (2)(ca) or (cb) only if at the time of committing the offence the person is a United Kingdom national or a United Kingdom resident.(3B) In subsection (3A)—“United Kingdom national” means an individual who is—(a) a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,(b) a person who under the British Nationality Act 1981 is a British subject, or(c) a British protected person within the meaning of that Act;“United Kingdom resident” means an individual who is resident in the United Kingdom.””

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Moved by

[Baroness Williams of Trafford]

27: Schedule 1, page 28, line 8, at end insert—
“(ca) the cases in which a person “holds” an account include those where the person is entitled to operate the account;”

[Baroness Williams of Trafford]

My Lords, the noble Lord, Lord Paddick, helpfully proposed an amendment in Committee to close a gap he had identified on accounts which a terrorist offender is entitled to operate but does not hold in their own name—for example, because they are an authorised signatory to the account of the relative or employer. I recognised then that there might well be merit in the amendment and committed to take it away to consider it further. I have just done that and find myself in agreement with the noble Lord that this is indeed a gap in the current Bill and that his suggestion will close it and improve the Bill.

Amendment 27 therefore implements his suggestion, for which I am very grateful, and I commend the amendment to the House.

[Lord Paddick]

My Lords, I am very grateful to the Minister, but I cannot possibly claim credit for the amendment: it is actually the work of my noble friend Lady Hamwee. That having been said, we are very grateful that she listened to our arguments. We hope that noble Lords will realise that we on these Benches look to be hopeful, not necessarily negative about legislation. We hope that closing this loophole shows that we are working together to try to improve legislation.

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[Baroness Williams of Trafford]

My Lords, as the noble Baroness pointed out, Clause 13 confers on police the power to enter and search the home address of a registered terrorist offender, under the authority of a warrant issued by a justice, for the purpose of assessing the risk the offender poses. Amendment 28 would narrow the purpose for which the power of entry and search may be operated, limiting it to assessing whether the offender is in breach of the notification requirements. There was a good debate on this in Committee, so I will not detain the House by setting out again the underlying purpose of the terrorism notification requirements, and their importance in helping the police to manage the risk posed by those convicted of serious terrorism offences. However, it may assist your Lordships if I briefly rehearse the purpose of this power, and why it is needed in its current form.

The purpose of the power of entry and search, as currently drafted and as intended by the Government, is to allow the police to assess the risk posed by a convicted terrorist who is subject to the notification requirements. The police consider that home visits are an important tool in managing and risk-assessing registered terrorist offenders during the time they are subject to the notification regime. Such visits allow them to ascertain whether the offender does in fact reside at the address they have notified to the police, and to check their compliance with other aspects of the notification regime. Home visits are also helpful, as they allow a broader assessment of risk to be made. They allow the police to identify any other factors that might contribute to the overall risk an offender poses to themselves or their community, and their risk of reoffending. This might include their general living conditions, as well as any signs of mental health decline, or of drug or alcohol misuse.

It seems an entirely appropriate purpose for the police to wish to keep in touch with a registered terrorist offender. Indeed, given that the police are charged with protecting us all from such serious offenders, it would surely be irresponsible to do otherwise. However, Amendment 28 would mean that the new power could not be used for that purpose. The police will, of course, always seek to conduct such visits on a voluntary basis and the clause requires that this approach must be attempted at least twice before a warrant is sought. A positive and co-operative relationship is always preferable, and leads to more effective management of risk. However, a power of entry and search is needed because this is not always the reality, and registered terrorist offenders will often not comply with such home visits voluntarily. They will often be generally unco-operative and refuse to engage constructively with the police in conducting necessary checks.

In previous debates, I have highlighted that an identical power exists in relation to registered sex offenders. It was introduced by the Violent Crime Reduction Act 2006, by the then Labour Government. Indeed, the then Home Office Minister, the noble Lord, Lord Bassam, said at the time in reference to sex offenders that,

“we are now of the view that further powers are required to enable the police to gather all the information they need about a small but, it has to be said, determined group of offenders who, while in apparent compliance with the notification requirements, do all they can to frustrate the risk assessment process”.—[Official Report, Commons, 22/5/06; col. 678.)

I can only echo the noble Lord’s words.

The police report that their experience with registered sex offenders, as a result of this power being available, is that the offenders will normally comply voluntarily and that they are able to build a far more constructive relationship with them. This is simply because those offenders know that if they refuse to engage on a voluntary basis the police will be able to return with a warrant. We anticipate this power bringing similar benefits in the management of registered terrorist offenders, who are equally in a particular category of risk, such that monitoring of this kind is appropriate following a conviction. I cannot see that there is a rational argument for why the police should have less effective powers to monitor the risk posed by registered terrorist offenders than they do for registered sex offenders. I hope that the noble Baroness will withdraw her amendment in light of this explanation.

[Lord Anderson of Ipswich]

Before the Minister sits down, perhaps she can explain whether she is saying that, if there is no rational basis for providing this power in a different way from the way it was done in the case of sex offenders, the TPIM Act 2011 was not rational in how it approached the issue, and what does she say about that parallel with the TPIM Act?

[Baroness Williams of Trafford]

I would not like to say that the TPIM Act was not rational. I can write to the noble Lord to outline the significant differences here, but I think that the parallel with sex offenders that I posed is pertinent.

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Moved by

[Baroness Williams of Trafford]

29: After Clause 16, insert the following new Clause—
“Persons detained under port and border control powers
(1) Schedule 8 to the Terrorism Act 2000 (detention) is amended as follows.(2) In paragraph 6, after sub-paragraph (3) insert—“(4) A detained person must be informed of the right under this paragraph on first being detained.”(3) In paragraph 7, after sub-paragraph (2) insert—“(3) A detained person must be informed of the right under this paragraph on first being detained.”(4) In paragraph 9—(a) for sub-paragraphs (1) and (2) substitute—“(1) This paragraph applies where a detained person exercises the right under paragraph 7 to consult a solicitor.(2) A police officer of at least the rank of superintendent may direct that the right—(a) may not be exercised (or further exercised) by consulting the solicitor who attends for the purpose of the consultation or who would so attend but for the giving of the direction, but(b) may instead be exercised by consulting a different solicitor of the detained person’s choosing.(2A) A direction under this paragraph may be given before or after a detained person’s consultation with a solicitor has started (and if given after it has started the right to further consult that solicitor ceases on the giving of the direction).”, and(b) omit sub-paragraphs (4) and (5).(5) In paragraph 16—(a) in sub-paragraph (8), omit “Subject to paragraph 17,”, and(b) after sub-paragraph (9) insert—“(10) A detained person must be informed of the rights under sub-paragraphs (1) and (6) on first being detained.”(6) In paragraph 17—(a) for sub-paragraphs (1) and (2) substitute—“(1) This paragraph applies where a detained person exercises the right under paragraph 16(6) to consult a solicitor.(2) A police officer not below the rank of superintendent may, if it appears to the officer to be necessary on one of the grounds mentioned in sub-paragraph (3), direct that the right— (a) may not be exercised (or further exercised) by consulting the solicitor who attends for the purpose of the consultation or who would so attend but for the giving of the direction, but(b) may instead be exercised by consulting a different solicitor of the detained person’s choosing.(2A) A direction under this paragraph may be given before or after a detained person’s consultation with a solicitor has started (and if given after it has started the right to further consult that solicitor ceases on the giving of the direction).”, and(b) in sub-paragraph (3), in the opening words for “(1)” substitute “(2)”.”

[Baroness Williams of Trafford]

My Lords, the government amendments in this group make a number of changes in response to the debates in both Houses regarding the ports powers under Schedule 3 to the Bill and Schedule 7 to the Terrorism Act 2000. They also respond to the reports of the Joint Committee on Human Rights, the Constitution Committee and the Delegated Powers Committee, and to representations from the Law Society and others.

During the course of the previous debates, there has been much focus on the important topic of a detainee’s right to consult a solicitor in private, and on the exceptional power that would allow an officer to overhear that consultation to mitigate concerns that the detainee might pass on a message to a third party. While this power was not without safeguards—for example, it could only be authorised by an assistant chief constable where the officer had reasonable grounds for believing that allowing the detainee to exercise his or her right to consult a solicitor privately will have certain serious consequences—the Government have heard the concerns raised and are prepared to take a different approach.

Amendments 37 to 39, 41 and 42, would replace that power and instead allow an officer, in the situation that I have just described, to require the detainee to choose a different solicitor. The detainee will then be reminded of the right to free legal counsel from an approved duty solicitor who has met the standards and competence of the Law Society’s criminal litigation accreditation scheme. This approach, which will apply to both Schedule 7 and Schedule 3 ports powers, will mitigate the concerns regarding the detainee’s first-choice solicitor but will still allow the detainee to receive private legal counsel—in all likelihood, with a trusted solicitor from the duty solicitor scheme. It mirrors the provisions in PACE Code H with regard to the detention of terrorist suspects as proposed by the Law Society in its evidence to the Public Bill Committee in the House of Commons, and aligns with the proposals of the shadow Security Minister and noble Lords in this House.

The new power will also be subject to important safeguards. For example, it can only be directed by a superintendent and only where the officer has reasonable grounds for believing that allowing the detainee to exercise his or her right to consult a solicitor privately will have certain serious consequences: for example, interference with evidence or gathering of information; injury to another person; alerting others that they are suspected of an indictable offence; or hindering the recovery of a property obtained by an indictable offence.

Amendments 35, 36 and 40 concern the points raised in Committee by the noble Baroness, Lady Hamwee, regarding the information provided to a detainee about their right to access a solicitor. During that debate, I drew the House’s attention to the draft Schedule 3 code of practice which, like its equivalent for Schedule 7, is clear that a person who has been detained under either power must be provided with a “notice of detention” that clarifies their rights and obligations. The examining officer must also explain these rights and obligations to the detainee before continuing with the examination. Furthermore, at each periodic review of the detention, the examining officer must remind the detainee of any rights that they have not yet exercised.

While the Government are satisfied that all the safeguards that the noble Baroness asked for are already in place through the codes of practice, Amendments 35, 36 and 40 will make it explicit in the primary legislation that a detainee has to be made aware of his or her right to access a lawyer at the moment of detention. We are in complete agreement that any person who is detained under these ports powers should be informed of their rights before any further questioning takes place.

Amendments 43 and 44 will address concerns raised by the Delegated Powers and Regulatory Reform Committee with respect to the scope of the regulation-making power in what is now paragraph 60 of Schedule 3. This power would allow the Secretary of State to specify additional persons who may be supplied with information acquired by an examining officer. The power mirrors an equivalent in Schedule 14 to the Terrorism Act 2000 relating to information acquired through a Schedule 7 examination. These regulation-making powers are an important means of future-proofing the mechanisms to share information with government bodies and operational partners. Currently this information can be shared, if needed, with the Secretary of State, HMRC, a constable or the National Crime Agency.

We recognise the concerns raised by the Delegated Powers and Regulatory Reform Committee that the powers as drafted could allow sensitive information to be passed to any organisations, including those in the private sector. That is not our intention. The Government are clear that such information should be held and managed responsibly and should not be made available to any person or organisation. Amendments 43 and 44 would ensure that the Secretary of State, in relation to either power, could specify a person to be supplied with this information only if the person exercised a public function, whether or not in the United Kingdom.

I hope that noble Lords are reassured that the Government have listened to a number of concerns raised during the debates and have acted to improve this legislation. I beg to move.

[Lord Rosser (Lab)]

The shadow Security Minister in the Commons, it has been said, proposed that a list should be drawn up of lawyers properly regulated through the Law Society and the Solicitors Regulation Authority, who would be available to give legal advice and thus overcome the Government’s concern that a person detained under the hostile activity ports powers might seek the service of a rogue solicitor to give legal advice but, in reality, use that person to pass on information to a third party with potentially damaging consequences.

The Government in the Commons said they would consider this proposition and, as the Minister has just said, they have now tabled an amendment that takes out the reference in the Bill to consulting a solicitor,

“in the sight and hearing of a qualified officer”,

and instead provides for a senior officer to be able to require a detainee to consult a different solicitor of the detainee’s choosing. In her letter of 27 November setting out the Government’s amendment, the Minister has said that in practice a different solicitor of the detainee’s choosing is likely to be the duty solicitor. Can she say what will happen if the further different solicitor of the detainee’s choosing is also deemed unacceptable? Will, in effect, the detainee be told either that they choose the duty solicitor or they will not have a solicitor to consult? It would be helpful if this point could be clarified in respect of persons detained under the port and border control powers.

We support the amendments and recognise that the Government have endeavoured to address the concerns expressed in the Commons by the shadow Minister, as well as the similar concerns expressed by noble Lords in this House.

[Baroness Hamwee]

My Lords, we too support these amendments and recognise the steps that the Government have taken. Perhaps I may put on the record a couple of comments made by the Law Society on this general area. Unfortunately, its briefing arrived too late for us to build on it by way of amendment, but it comments on legally privileged material being retained for use as evidence or for deportation proceedings. It gives the view that:

“Legally privileged material should not be retained for any purpose other than a potentially urgent need to prevent death, injury or a hostile act”.


It also comments on:

“The process by which material can be identified as constituting legally privileged material”,


and asks who is responsible for making the determination, as that is not,

“explicitly clear in the Bill as drafted”.

It continues:

“It is important that this determination is made by a legally qualified person who is capable of accurately assessing whether a given article is subject to legal professional privilege”.


As I said, I thought that it was worth putting those comments on the record.

My noble friend Lord Marks is sorry not to be able to be here this evening and asks that his thanks to the Minister for building on the indication given at the last stage is recorded. He too asks about what he calls an “unacceptable, dodgy solicitor”. I think that any dodgy solicitor is unacceptable—you do not have to fill two criteria. If an unacceptable dodgy solicitor is selected for a second time, he and I assume that the senior officer might give a further objection. My noble friend also asks whether the Government intend to issue a further draft code of practice relating to the considerations that senior officers should take into account when considering making these directions.

[Baroness Williams of Trafford]

I thank the noble Baroness for those questions. The noble Lord, Lord Rosser, asked what happens if the detainee chooses another solicitor, who is then of concern. I am trying to read the writing here. If concerns still exist, the superintendent is within his or her right to direct that the detainee should choose a different solicitor, and that applies not just to the first-choice solicitor. The point about confidential material—

[Lord Rosser]

I appreciate the difficulty with reading writing. I cannot read my own, let alone somebody else’s. Does it mean that if the detainee chooses an unacceptable second solicitor, they will then be told, “It’s the duty solicitor or you don’t have a solicitor at all”?

[Baroness Williams of Trafford]

From what I understand, a panel of approved solicitors is available to detainees—I am sure that the Box will fly over with a piece of paper if I am wrong about that. However, if, for whatever reason, the first solicitor from the panel is given to the detainee—

[Lord Carlile of Berriew (CB)]

May I make an effort to help out the noble Baroness? There was a time in my professional life when I used to be instructed by duty solicitors at London Heathrow Airport and London Gatwick Airport. The fact is that the duty solicitors at ports of entry are accustomed to dealing with all kinds of issues that arise there. Indeed, the quality of work that emanates from being a duty solicitor in significant ports of entry is high. Therefore, one can reasonably assume that one is getting not any old solicitor but a solicitor who has some understanding of the kind of work that can arise in that setting. There is also some training available, and it is usually done very co-operatively. Has that given the Minister enough time to be able to read the writing—or she may wish to just agree with me?

[Baroness Williams of Trafford]

I do agree with the noble Lord; that is absolutely brilliant. But I have just received another piece of information: if the detainee is still not satisfied, they can consult a solicitor by phone, so that is a third arm of the options for detainees. Between us, we have got there.

As for who approves the access to confidential material, it would be the Investigatory Powers Commissioner.

[Lord Rosser]

The reason for my asking the question is that, as I understand it, sub-paragraph (2)(b) of Amendment 41 states that the right of the detainee,

“may instead be exercised by consulting a different solicitor of the detainee’s choosing”.

I have nothing at all against duty solicitors and hold them in high regard. However, if the detainee then chooses another solicitor who is unacceptable—presumably not one of the duty solicitors—we are fairly clear that the detainee will then be told to use the duty solicitor or have no solicitor at all.

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[Baroness Williams of Trafford]

He or she will be perfectly entitled to consult a solicitor by phone.

Amendment 29 agreed.

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[Baroness Hamwee]

My Lords, the JCHR proposed a number of amendments on the subject of biometrics for the last stage. The Minister gave a long reply, quoting the Biometrics Commissioner’s support for bringing the periods for retention of data for arrest on suspicion of terrorism offences into line with arrests under the Police and Criminal Evidence Act. At that stage, it seemed to me that this did not go to the question of oversight by the commissioner, and I still do not think that has really been dealt with.

I confess that I had to go by way of Beachy Head and along the byways of PACE to arrive at Amendment 30, so I am well prepared for criticisms of the drafting. However, it is intended to ensure that the retention of biometric data for a terrorism offence has consent from the commissioner. I am entirely open to a different way of achieving that end, but I am certain in my own mind that, whatever the basis of arrest, the retention of data should require this consent. I beg to move.

[Earl Howe]

My Lords, as the noble Baroness, Lady Hamwee, has made clear, this amendment returns to one of the issues raised in the reports on the Bill by the Joint Committee on Human Rights: the rules governing the retention of biometric data in national security cases. I am sorry that the noble Baroness remains unpersuaded by my previous response. I will do my best to be more persuasive today.

Without going over too much ground, it may be helpful if I briefly reiterate that Schedule 2 amends the laws that govern the retention, review and deletion of fingerprints and DNA profiles by the police for national security purposes. The intention of these provisions is to strike a better balance between on the one hand enabling the police to use fingerprints and DNA in an agile and effective way to support terrorism investigations and protect the public, and on the other ensuring that the retention of DNA and fingerprints continues to be proportionate and subject to appropriate safeguards. Schedule 2 delivers this and, importantly, it retains proportionate safeguards, including regular case-by-case review and the robust independent oversight provided by the Biometrics Commissioner.

The noble Baroness’s amendment would amend paragraph 2 of Schedule 2, which harmonises the retention periods for biometric data obtained when an individual is arrested on suspicion of terrorism, but not subsequently charged, under the Police and Criminal Evidence Act 1984 and the Terrorism Act 2000. Paragraph 2 does so by providing for biometric data to be retained for an automatic period of three years when an individual is arrested under PACE for a qualifying terrorist offence.

As the noble Baroness is aware, currently an individual arrested under the Terrorism Act 2000 may have their biometric data automatically retained for three years. But the same automatic retention would not be available if the same individual were arrested in relation to the exact same activity under PACE. Rather, in that case, ongoing retention for national security purposes would require the police to make a national security determination with the approval of the Biometrics Commissioner, or would otherwise require the consent of the Biometrics Commissioner under Section 63G of PACE if retention were solely for the prevention or detection of crime generally.

Our position on this is that having two different retention regimes in such cases is quite simply anomalous. The Bill will provide for a more consistent approach to the retention of biometric data for all those arrested on suspicion of terrorism by providing for the same retention period in otherwise identical terrorism cases regardless of the power of arrest used. This is a proportionate and logical change.

The noble Baroness’s amendment would mean that this inconsistency between the two retention regimes would persist. Particularly against the backdrop of the heightened threat picture we face today, I am clear that it is important that the police are not deprived of information that could prove vital to keeping the public safe. That is what underlies a lot of what we seek without removing, as I emphasised earlier, the safeguards that are in place.

As noble Lords would expect, we consulted the Biometrics Commissioner on this provision. He is clear that he supports the measure, and I quoted his words last time. The noble Baroness’s amendment would have the effect not of modifying or improving this aspect of Schedule 2 but of effectively nullifying the provision and preserving the current anomaly. That disparity is not sustainable and I see no good reason for continuing it.

I sense that I have not persuaded the noble Baroness in what I have said, but I hope that she can at least see the logic of the Government’s position and perhaps, on reflection, will feel able to withdraw her amendment.

[Baroness Hamwee]

My Lords, I think we want the same thing, but I confess that I do not understand how the Government have got here. The noble Earl did indeed quote the commissioner last time, but it seemed to me that that was on a different point. Perhaps I may check this. I think he is saying that the oversight through an NSD is equivalent to the oversight applied by PACE. I do not know whether he is able to answer that, but I am finding it difficult to understand how they are in fact exactly equivalent in the way that he is telling the House.

[Earl Howe]

The strict answer to the question put by the noble Baroness is that the two Acts provide for different kinds of retention regimes, one where it is automatic for three years under certain conditions and the other where the Biometrics Commissioner has to give his permission; namely, under PACE. The point I was making was that that applies in cases which are otherwise identical and that it is simply anomalous to have that difference. The Biometrics Commissioner has actually said that it would be,

“a sensible approach to bring the retention periods for arrest on suspicion of terrorism offences in line”.

If he is relaxed about it, I cannot see that we should not be either.

[Baroness Hamwee]

I have the Official Report of when the noble Earl quoted that last time, and it seemed to me then that that was about the retention period, not quite about the role of the commissioner. I do not think that we are going to make further progress and at this time of night it would be inappropriate for me to labour the point. It may be my fault for failing to follow the details. As I say, I have had to go by way of Beachy Head to get to the amendment that I put down. I beg leave to withdraw it.