Draft Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2022
(2 years, 6 months ago)
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The Minister for Security and Borders (Damian Hinds)
I beg to move,
That the Committee has considered the draft Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2022.
This statutory instrument will give effect to the draft code of practice that covers the exercise of counter-terrorism port examination powers under schedule 7 to the Terrorism Act 2000. The powers were amended by the Nationality and Borders Act 2022.
Counter-terrorism officers who use schedule 7 port examination powers must do so in accordance with the relevant code of practice. While the code largely reflects the primary legislation, it also includes further procedural guidance for those exercising the powers and additional safeguards for those subject to them.
In passing the Nationality and Borders Act, the House approved amendments to the powers under schedule 7 that have necessitated changes to the code of practice. The code now reflects the amended provisions under schedule 7, which allow officers to examine individuals away from port areas in the following circumstances: first, the individual must either be detained or in custody under relevant provisions of the Immigration Acts; secondly, the individual must have arrived in the UK by sea and been apprehended within 24 hours of their arrival; and, thirdly, a period of five days beginning on the day after their apprehension must not have expired.
That will allow officers to examine those who, following their irregular arrival in the UK, have been moved from a port location or are encountered inland. In short, those who have arrived irregularly by sea will now be subject to the same powers as if they had arrived through conventional means, adding a further protective layer to our existing precautions. The draft code before us includes changes to cover the exercise of that amended power, as well as several other minor changes to clarify language around existing safeguards.
The code was subject to public consultation earlier this year. In response to feedback, we clarified officers’ responsibility to inform those being examined that the purpose of the examination is not to gather evidence or information on any potential immigration offences.
The UK and its citizens continue to face the threat of terrorism from those who are intent on harming and dividing us. The provisions within this statutory instrument will support the police in their tireless efforts to keep us safe from such threats. I commend the draft order to the Committee.
Holly Lynch (Halifax) (Lab)
It is a pleasure to serve under you in the Chair, Ms Elliott.
I thank the Minister for his opening remarks. I was listening carefully. He and his colleagues will be aware that the Opposition expressed a series of grave concerns about the Nationality and Borders Act, which allowed for these provisions, but we very much recognise the practical nature of the changes in the draft order as we work collectively to keep our nation safe. We are satisfied that changes to the code of practice for examining and review officers under schedule 7 to the Terrorism Act are proportionate and appropriate to keep the country safe from the threat of terrorism.
The Minister outlined that this draft legislation will extend existing powers for use away from UK ports in specific circumstances. We recognise that small boats continue to arrive at varied locations, including remote beaches outside established travel hubs, and that measures have to be able to respond to that challenge. As the independent reviewer of terrorism legislation, Jonathan Hall QC, said in his consultation response:
“In principle, people arriving irregularly in the UK, should be liable to counterterrorism examination, as much as those arriving at sea ports and airports.”
I welcome that the Government have been clear that the powers cannot be used as a mass screening mechanism and that the provisions in the new order remain entirely separate from immigration enforcement, given our staunch opposition to the immigration and asylum changes brought about by the Nationality and Borders Act. We feel that the consultation and the Government’s response to it have improved this delegated legislation, and we particularly welcome the response I mentioned provided by the independent reviewer of terrorism legislation, Jonathan Hall QC.
If I may, I will ask the Minister to respond to two particular points. The consultation responses highlighted the fact that clarification would be beneficial about which facilities would be included under paragraph 28 of the draft revised code, which states that the
“presence of the person in an immigration detention centre, police station or equivalent location”
in certain specified circumstances may support an officer’s belief that a schedule 7 examination can be conducted. I note that the Government recognised the calls for clarity about the use of equivalent locations but argued that for the code to exhaustively categorise or list the various types of location would risk excluding some relevant locations or facilities simply because they were not explicitly included. Saying that is particularly relevant where some facilities are operationalised or closed at short notice—for example, because of covid-19.
Needless to say, given some of the facilities that were operationalised at short notice by the Home Office during the covid pandemic, and operationalised without public health guidance being adhered to, I would have liked to see a list of suitable equivalent locations available for scrutiny and would still urge the Government to consider that further.
We endorse the recommendation that examination locations are also able to be inspected under article 4 of the optional protocol to the convention against torture and other cruel, inhuman or degrading treatment or punishment, to ensure that we are in keeping with article 6 of the European convention on human rights, and we hope that the Minister will confirm that that is the case. We also support Jonathan Hall’s recommendation that consideration should be given to training counter-terrorism police officers to deal with individuals who have arrived in the UK irregularly and therefore have special welfare considerations. We note that the Government have committed to considering that and so will the Minister update the Committee on any such discussions with the College of Policing and counter-terrorism policing in establishing training and guidance relevant to best practice in the exercise of schedule 7 powers?
We believe those recommendations to be sensible and appropriate, but I again stress that we recognise the stark reality of needing to be ever vigilant about those terrorist organisations and so-called lone actors who are ruthlessly opportunistic in seeking to exploit weaknesses in our defences. Consequently, it is right that we ensure that our national security legislation is dynamic in responding to contemporary and emerging challenges, if we are to minimise that risk.
John Mc Nally (Falkirk) (SNP)
Following on from the hon. Member for Halifax, I just need some clarification on the points she covered. First, if people are to be arrested and then questioned, do these provisions comply with article 6 of the ECHR, which is the right to a fair trial? The second point is very simple and has been mentioned. Can a border official still question someone about their means and their reason for arrival without them inadvertently incriminating themselves while already under arrest, considering that they are under stress at that moment in time?
Mr Kevan Jones (North Durham) (Lab)
To echo my Front-Bench colleagues, I think that anything that tries to improve our security should be welcomed, but a few things in this measure do need some clarification. Like the hon. Member for Halifax, I welcome the issue that Jonathan Hall raised about training. And I will give some examples in the code of where I think clarification and record keeping would be important. There is also the fact that there are certain discretions in the measure that give individual officers quite a lot of leeway for interpretation. I accept that no two situations are the same, but in terms of the general piece, once these provisions are enacted, will the Department review their operational effectiveness? Will, for example, the independent reviewer of terrorism legislation be allowed to look again at the operational way forward? I think that that would make sure and give us some reassurance that they are actually in effect.
I just want to look at two examples. On the selection criteria for those individuals selected, the code is clear that
“the selection of a person for examination is not conditional upon the examining officer having grounds to suspect that person of being engaged in terrorism, the decision to select a person for examination must not be arbitrary.”
I think we would all agree with that. The code goes on to say that it cannot be
“appropriate for race, ethnic background, religion and/or other “protected characteristics”…to be used as criteria for selection except to the extent that they are used in association with considerations that relate to the threat from terrorism.”
That makes sense. It then lists those considerations, which include
“known and suspected sources of terrorism; persons, organisations or groups whose current or past involvement in acts…; any information on the origins and/or location of terrorist groups; possible current, emerging and future terrorist activity; patterns of travel through specific ports or in the wider vicinity that may be linked to terrorist activity; or appear unusual for the intended destination”.
Those all seem sensible and then, obviously, there is the consideration of intelligence from our security services about named individuals.
However, the last considerations are
“observation of a person’s behaviour”
and/or
“referrals made to examining officers by other security, transport or enforcement bodies”
That seems quite a broad definition.
I accept that when security officials are looking at people coming through points of entry, people acting suspiciously may be a reason for detaining them but, when it comes to training, what are criteria for that? What is the process for record keeping? Somebody may be acting suspiciously, but they may not turn out to be a threat at all. If that is then linked to ethnicity—I accept that that is not an appropriate criterion—that could lead to individuals claiming that they were picked because of their ethnic or religious background. If people are selected in such a way, will records be kept so that we know how many are found to be linked to terrorism and how many are perfectly innocent? That last consideration could be a get-out.
Another operational matter is about the right to legal representation. The code states:
“A person who is being examined at a port, but not detained”—
there is a section later on about the specific legal rights to a solicitor that people if they are detained—
“is not entitled to consult a solicitor. Should the person request to do so, the examining officer may grant this at his or her discretion.”
Again, that leaves a lot of power with the individual to make a decision should legal representation be requested at that point. The code continues:
“When a consultation is allowed, it should be allowed to be conducted in private”—
that is common sense. I also accept this bit:
“The person must be informed that any consultation will not be at public expense.”
However, when it comes to training, what are the grounds for refusal when somebody legitimately wants to consult a solicitor? It may be impractical or unnecessary. As I say, when someone is detained, the conditions for consulting a solicitor are clearly laid out. I would like some clarification around that. Is it about training? Will the examining officer keep records of when people have had requests refused? It may be better to do that in most cases to protect not just the individual but the officer. That is not a criticism of the reasons why this draft order is important.
As my hon. Friend the Member for Halifax said, there are things in the draft order that give discretion, and discretion can sometimes lead to instances of unintended consequences, so I would like some clarification so that we can be sure that these regulations are enacted in the way that was intended, and in a fair and just way.
Damian Hinds
I thank all members of the Committee for this important scrutiny sitting and our debate. Several important points were made by the hon. Member for Halifax who speaks for the Opposition, the hon. Member for Falkirk of the SNP and the right hon. Member for North Durham, and I will address them now.
We have to look realistically at the situation we are dealing with: the vast majority of people who arrive on small boats have no documentation with them to indicate who they are or where they are from. Enabling officers to examine those who are being processed for immigration purposes away from the ports, as well as at the ports, means that we can fulfil our duty to safeguard national security, while allowing those individuals to be moved from a port environment to more appropriate facilities.
We do not publish statistics on the results of schedule 7 examinations, because to do so would risk disclosing whether a stop was targeted, and that is an operational matter for the police. I reassure the right hon. Gentleman, however, that there is extensive record keeping and analysis, as he might imagine.
Damian Hinds
I reassure the right hon. Gentleman that such operations have extensive ministerial oversight, and rightly so.
On a number of previous occasions, a well-rehearsed debate on the powers under schedule 7 has been considered in depth, as colleagues know. For now, I reiterate only that those powers have been absolutely integral to the work of the police in detecting and disrupting terrorists for more than two decades. The police do that—I reassure everyone—in a way that is compliant with article 6. Oral answers, as colleagues know, are of course excluded from criminal proceedings.
The hon. Member for Halifax asked specifically about locations and what should be in scope. The key practical operational point here is that people will be in custody or immigration detention, so scope should not arise in general as an issue.
Various colleagues asked about training, and we continue to work closely with the police to ensure that the independent reviewer’s recommendation on training is included. I am grateful to the hon. Lady and others for mentioning the independent reviewer of terrorism legislation, Jonathan Hall QC, because it gives me another opportunity to put on the record my thanks to him for his extremely diligent work.
The code of practice has long been clear that selection of a person based solely on ethnicity or religion is unlawful. It also directs officers to exercise the powers fairly and responsibly, with respect for the people to whom they are applied. All examinees are provided with details of how to make a complaint should they wish to do so, and those detained for more than an hour are entitled to private consultation with a solicitor.
It is important to note that, to date, no independent reviewer of terrorism legislation has suggested that the existing schedule 7 powers are being applied inappropriately. We will continue to work with the reviewer to ensure that the powers are applied proportionately and in the most effective and targeted way, and to minimise disruption to those subject to their use where possible.
I hope that my comments have underscored the importance of the powers and of the code of practice that provides guidance and safeguards on their exercise. I thank all members of the Committee—right hon. and hon. Friends and colleagues from the Opposition parties—for their presence today for this important scrutiny debate. I also thank you, Ms Elliott, and everyone else who has enabled the debate. Keeping the UK safe is the Government’s foremost responsibility, and the provisions within this draft statutory instrument will support that vital endeavour. I commend it to the Committee.
Question put and agreed to.