Terrorism Act 2000 (Alterations to the Search Powers Code for Northern Ireland) Order 2024
Baroness Anderson of Stoke-on-Trent
That the Grand Committee do consider the Terrorism Act 2000 (Alterations to the Search Powers Code for Northern Ireland) Order 2024.
Relevant document: 5th Report from the Secondary Legislation Scrutiny Committee
Baroness Anderson of Stoke-on-Trent (Lab)
My Lords, I would like to begin by taking a moment to pay tribute to all those who lost their lives or were injured as they worked to keep the people of Northern Ireland safe. The Secretary of State’s attendance at the service of remembrance in Enniskillen on Sunday offered the chance to reflect on the bravery and sacrifice of those men and women. I know that noble Lords will join me in these sentiments. While the vast majority of people in Northern Ireland want it to continue to be a safe and wonderful place in which to live and work, sadly, we know that there is a small minority who want to cause harm. It is important that the PSNI has the tools it needs to allow it to continue to keep people safe.
Following the terrorist attack at Fishmongers’ Hall in November 2019, the then Home Secretary commissioned the Independent Reviewer of Terrorism Legislation, Jonathan Hall KC, to review the Multi Agency Public Protection Arrangements, commonly referred to as MAPPA, used to supervise terrorist and terrorist-risk offenders on licence in the community. In response to recommendations made by Jonathan Hall KC following the review of MAPPA, the Police, Crime, Sentencing and Courts Act 2022 established three new powers for counter-terrorism policing: a personal search power, a premises search power and a power of urgent arrest. These powers were established in 2022.
This order relates to the new power of personal search, the creation of which was also recommended by the prevention of future deaths report that followed the Fishmongers’ Hall inquests. The personal search power has been inserted into the Terrorism Act 2000, in Section 43C, by the 2022 Act and applies UK-wide. The new search power came into force on 28 June 2022. The order puts into practice the revised Code of Practice (Northern Ireland) for the Authorisation and Exercise of Stop and Search Powers relating to Sections 43, 43A, 43C and 47A of, and Schedule 6B to, the Terrorism Act 2000. A copy of the draft revised code was laid before Parliament on 15 October 2024. The purpose of the code is to provide guidance to officers authorising and conducting stop and searches under Sections 43, 43A, 43C and 47A of and Schedule 6B to the Terrorism Act 2000 and protections to those persons searched.
I start by assuring the Committee that the revisions to the code will not change the manner in which searches are conducted in any way. The amendments should be non-contentious, I hope, and relate mainly to technical matters. They are intended to provide guidance to the PSNI regarding the search powers contained within the Terrorism Act 2000. The equivalent code of practice for police in England and Wales and Scotland was updated in 2022. The changes to this Northern Ireland code will align, but not mirror exactly, the codes of practice for England and Wales and Scotland due to jurisdictional differences.
The revised code, as considered today, builds upon work started by previous Ministers in the Northern Ireland Office, including the noble Lord, Lord Caine. I know how well versed he is on this issue and welcome his continuing interest in and support on these matters. I will outline the main revisions for the Committee now.
The primary update to the code is the incorporation of the new stop and search power provided for by Section 43C of the Terrorism Act 2000. The code as amended provides guidance to the Police Service of Northern Ireland, and officers from England, Wales and Scotland police services when operating in Northern Ireland, surrounding the use of not only Sections 43, 43A and 47A of and Schedule 6B to the Terrorism Act 2000, as outlined in the original code of practice, but Section 43C.
Section 43C provides a power for a constable to search a terrorist offender who has been released on licence, and not recalled, and whose licence includes a search condition. I reassure the Committee that this power applies only to those who have been convicted and where it has been deemed appropriate for an offender, when released, to have this licence condition included as part of the conditions of their release. Even where the power is included as a licence condition, for it to be used the constable must be satisfied that it is necessary to do so for purposes connected with protecting members of the public from a risk of terrorism. Furthermore, the constable may conduct the search in any place to which they legally have access, whether or not it is a place to which the public has access.
In revising the code to include the Section 43C power, we have set out for police officers the basic principles for its use and clarity on its scope. This includes providing guidance on when the power can be used and the powers of seizure associated with the search power. The revised code also clearly sets out the limitations on the clothing that a person can be required to remove when the Section 43C power is being exercised by officers. In keeping with the existing stop and search powers, police officers exercising the Section 43C power may not compel a person to remove any clothing in public except for an outer coat, a jacket or gloves, and an intimate search may not be authorised or carried out under the new power.
Lord Morrow (DUP)
I welcome the fact that the Minister made clear her support for, and paid tribute to, the Police Service of Northern Ireland. As I am sure she is acutely aware, the RUCGC lost more than 300 of its officers during the Troubles in Northern Ireland. Many of the officers who were murdered were the salt of the earth. They were in their job not because it was a job but because they saw it as a vocation. To this day, for many of those who were murdered, nobody has been brought to court to give an account of their actions. I thank the Minister for her tribute to the people in the police service, who are often forgotten.
Over the weekend, many of us—if not all—attended various services in open spaces, in our churches, in our schools and elsewhere to pay tribute to those who died during the Troubles in Northern Ireland and those who served in both world wars. As members read out the roll of honour, they were very moved because stood shoulder to shoulder with those very police officers and UDR personnel with whom they served. One of them said, “I stand here today; my comrades do not”. That is the reality of the situation back in Northern Ireland.
We will be brief—we do not plan to have a tough debate on this legislation. We are not here to pull it apart or anything like that, but we have some queries and questions here and there. I am sure the Minister is acutely aware that policing is a very difficult job in Northern Ireland. From the inception of the Belfast agreement, its stipulations and outworkings have meant that hundreds and hundreds of dangerous and unrepentant terrorists have been returned back to our streets, and today they are at large.
It is stated that the purpose of the code is to provide clarity that the threshold for making an authorisation is higher under the new powers, and that the way in which the powers may be exercised is also different. I hope we have read that correctly and that the outworking will not curtail or restrict the police in Northern Ireland in carrying out their duties. No police force anywhere in Europe is scrutinised to the degree and extent that ours is. Now, that can be a good thing, but it can also have a detrimental impact on policing itself.
I and my colleagues speak for my party on this, and we agree that there has to be accountability and that the police must always act with great discretion and responsibility. I hope that this legislation will not in any way deter them. I do not think it will, but I hope it is that way. All of us have a moral and community responsibility to support and encourage the agencies of law and order. That includes, for instance, our Ministers in the Northern Ireland Executive attending graduation days, and our schools promoting the police service as a good career to follow and get involved in. That does not always happen. I sometimes think that the Government could do a bit more to encourage that line. That would go a long way to playing a good part in the full restoration of law and order.
Things are infinitely better than they were—we can all say that without fear of contradiction. However, the Minister rightly said that the threat level in Northern Ireland is still high. Other police services across the United Kingdom do not have to contend with that to the same extent as our police service in Northern Ireland. I hope that there is no discouragement in this document, which I have tried to read through, although I will not give the impression—I hope—that I understand every line of it. The Minister briefly quoted from the Terrorism Act 2000, the workings of which she is obviously well acquainted with.
Can the Minister assure us that this measure will be for the betterment and the more efficient delivery of a police service, and that those who try to thwart the police in their duties—the very people she has spoken about—and cause a great deal of concern will not benefit from this? I know that that is not the intention, and I am not in any way saying that it is. I just hope that the security forces, our police, will see that this is intended to help them deliver a duty and service that they can be proud of. I hope too that the law-abiding in Northern Ireland will be reassured that this legislation is good and for their betterment, and that we will see an efficient and effective outworking.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, I will follow on from the remarks of the noble Lord, Lord Morrow. I welcome the noble Baroness leading this short debate to her place. I pay tribute to the noble Lord, Lord Caine, for the manner in which he dealt with issues of security in Northern Ireland when he held the office. I believe that he did so with courage and determination—he carried a heavy responsibility when he was in the noble Baroness’s position.
I join the noble Baroness in commending the bravery of our police officers and all the other security personnel who not only defended freedom in Northern Ireland in the past but are still doing so. I totally reject the contention of some in society that there was no other way than terrorism. That is absolutely untrue. I note that the noble Baroness said that the terrorist threat remains “substantial”. That reminds us that there is a great need in Northern Ireland to keep vigilant. Securing the safety of our people will certainly demand vigilance.
The noble Baroness mentioned the additional finance that has been given. It is certainly correct that additional finance has been provided in the recent Budget, and it is deeply appreciated, but I draw to her attention the fact that the number of serving police officers in Northern Ireland is well below what was recommended. We therefore do not have the numbers of police officers on the ground to give that adequate and proper protection for the people of Northern Ireland.
I am sure that the noble Baroness was delighted to remind us that our political party welcomed this legislation. In fact, she said that we were the only party that responded, which is strange, bearing in mind that the security of our people ought to be one of the most important issues that we face. I join the noble Lord, Lord Morrow, in saying that the police service in Northern Ireland is practically the most scrutinised police service in the world. In fact, unbelievably, we have former terrorists sitting on the Policing Board, scrutinising persons they have terrorised in the past.
We want an efficient delivery of policing, and I will therefore ask the noble Baroness a few questions. I note that the purpose of this code is to
“reflect that changes to Terrorism Act 2000 powers entirely replace those previously found in sections 44-47 of Act and are not simply a modification of those provisions”.
But the code then says that the
“new provisions carry different criteria for both authorisation and use”—
in fact, it is stricter. Paragraph 3.3 of the code says:
“To provide clarity that the threshold for making an authorisation is higher under the new powers and the way in which the powers may be exercised is also different”.
If it is higher and we still have a substantial threat in Northern Ireland, surely that makes it more difficult, rather than allowing police officers to have the freedom they need when they are out on duty and dealing with possible terrorists.
Paragraph 4.3 says:
“This Code of practice must be readily available at all police stations for consultation by police officers, detained persons and members of the public”.
I am wondering what is meant by “available … for consultation” by police officers, detained persons and members of the public, because surely these are the guidelines that are already set down—the consultation part is over.
Then, paragraph 6.2 of this document states that, for the police officer dealing with this, having “reasonable grounds for suspicion” depends
“on the circumstances in each case”.
How should an officer faced with an immediate situation actually interpret “reasonable grounds for suspicion”? If they fall foul of what a court later says is not reasonable, are they penalised because of that?
Lord Caine (Con)
My Lords, I welcome the noble Baroness to what I think is her first Northern Ireland-related Grand Committee. I thank her for her kind words and thank noble Lords from the DUP for their kind words too. I also associate myself very strongly with her comments about the PSNI and the Armed Forces, and the commemorations that took place over the weekend. As Minister, I had the great honour of laying a wreath of behalf of His Majesty’s Government at Belfast City Hall in 2012 and Messines in 2023, where the Ireland Peace Park is located—very moving and poignant events they were too.
If the noble Baroness were to look at my Twitter account—or X, as it is called these days—from Saturday, she would see that I was proudly sporting a poppy that contained the cap badge of the Royal Ulster Constabulary. I have long maintained that, without the service and sacrifice of the RUC, the PSNI and our Armed Forces, there would have been no peace process in Northern Ireland. They created the conditions in which politics could work, and we owe them all a huge, enormous debt of gratitude.
I am grateful to the noble Baroness for concisely setting out the terms of this statutory instrument. I will be very brief because, as the noble Baroness made clear, the SI has its origins in changes to the Terrorism Act that were contained in the Police, Crime, Sentencing and Courts Act 2022—a hugely long title for an Act of Parliament—which I well remember my colleagues debating at length when it was going through your Lordships’ House. The changes made to the Terrorism Act, as the noble Baroness set out, related to stop and search powers under Section 43C and required the publication of terms of reference under Section 47 for the exercise of those powers. The SI might, in some respects, be described almost as Conservative legacy legislation. The noble Baroness referred to the consultation that we conducted, which concluded earlier this year.
I can see nothing in the terms of reference that we would have done any differently, frankly, and they should therefore have our full support. Of course, as the noble Baroness made clear, they largely align Northern Ireland with the powers available to and codes of practice for police in other parts of the United Kingdom, to which no unionist could possibly take exception or object.
I have just one question for the Minister; I gave her prior notice of it yesterday. For the general benefit of the Committee, can she set out how the new powers sit alongside the powers that exist for the police, in the justice and security Act of 2007, relating to stop and search without reasonable suspicion? I signed a number of authorisations for the use of these powers, so I know how important they are for the police in the exercise of their functions. It would be helpful if the Minister could elucidate a little further how they sit alongside the powers contained in the Terrorism Act.
The fact that we are debating these matters today, with the contributions from the Minister and DUP Members, reminds us of the security backdrop in Northern Ireland. We have been reminded that the threat level is currently classed as “substantial”. It has been reduced from “severe”, to where it was raised after the murderous attack on DCI John Caldwell in February 2023, but it is worth reminding ourselves that the difference between “substantial” and “severe” is one word: “highly”. “Substantial” means that an attack is likely, while “severe” means that an attack is highly likely.
The ongoing threat from terrorism is real. As the Minister made clear at the beginning of her remarks, there remains in Northern Ireland a small group of people who have lethal intent and capability, and who wish to continue to pursue their political objectives by violence. It is essential, therefore, that the PSNI has all the necessary powers available to it in order to combat that ongoing terrorist threat.
I conclude by reiterating our heartfelt thanks for everything that the PSNI does in Northern Ireland and that the security services do. They do a superb job of keeping people safe and secure from terrorism in Northern Ireland and, in so doing, keeping us safe and secure throughout the whole of this United Kingdom. On which note, I strongly welcome the SI; it has our full support.
Baroness Anderson of Stoke-on-Trent (Lab)
I thank noble Lords for their contributions. As ever, they were thoughtful and considered and took us to the heart of the issue, especially in relation to our security and safety.
I wholeheartedly agree with noble Lords’ comments about the role of our security services in keeping us safe. These are people who run towards the fire in trying to protect others as they run away from it. We are always in their debt. This SI is one effort in ensuring that they have the right powers available to them, without us doing them a disservice and restricting their ability to operate. I assure noble Lords that that is where we are.
We talked about Remembrance Sunday. I reside in Staffordshire, where the National Memorial Arboretum is. One of the most beautiful parts of the arboretum is the area dedicated to those who served and fell during the Troubles, and those who continue to serve to keep us safe. I highly recommend a visit to noble Lords.
Let me respond specifically to the questions raised by noble Lords. I say in response to the noble Lord, Lord Morrow, that this instrument is not an effort to curtail policing in Northern Ireland. We are doing everything we can to ensure that everyone has the appropriate tools and resources available, which is why we increased the PSNI’s additional funding budget for security in last month’s Budget.
I have some specific responses so I ask noble Lords to bear with me. My civil servants have done what they are meant to do: make sure that I do not have to write.
The threshold for power and use has not changed or restricted the PSNI. This is a new power, brought in in 2022, to allow the search of an individual who is licensed—that is, someone who has already been arrested. They are included in a search condition so that they can continue to be monitored. As I will emphasise in response to the questions from the noble Lord, Lord Caine, this is a separate power. It is in addition to, not in replacement of, the existing powers under TACT and the justice and security Act, and it has been supported by the PSNI. We have not done this to the PSNI; we are doing it with the PSNI.
This new code of conduct will not change the way in which police searches are conducted. The code simply provides guidance to police officers in Northern Ireland on basic principles for the use and scope of the new Section 43C power.
With regard to the question from the noble Lord, Lord McCrea, on police numbers, decisions about the allocation of the Northern Ireland budget rest with the Northern Ireland Executive, as the noble Lord knows well. It is a matter for the PSNI and DoJ to consider and agree on officer numbers to fulfil the services, operational demands and its responsibility to keep Northern Ireland safe. I am reassured that while the PSNI, as of 1 October, has 6,303 full-time equivalent officers, the New Decade, New Approach draft programme for government aspires to 7,500, which is definitely a step in the right direction.
With regard to how police officers will make decisions in practice to be satisfied that a search is necessary, which was raised by the noble Lord, Lord McCrea, the PSNI has operational independence. It is for it to determine how it will apply this. This should do nothing to restrict its efforts. In terms of making the threshold higher, this is a new power. Codes of practice have always been available to be viewed. “Consulted” was probably the wrong term. It should have been in terms of viewing and being able to access, rather than consulting on, the document. It is not a living, breathing document in that way.
Section 6(2) circumstances for a search are an operational decision for the individual officer. How the PSNI wants to do briefings and training will remain an operational matter for it. That also relates to bodycams and their application. We have provided additional funding, and it is up to it how it uses it. I am sure that it will want to get additional bodycams, but that is a matter for it.
With regard to the question from the noble Lord, Lord Caine, about the Justice and Security (Northern Ireland) Act versus TACT powers, as requested I read into the record that JSA powers are specific to Northern Ireland, timebound and must be authorised by a Minister for a maximum 14 days for a designated geographical area in Northern Ireland. Under these powers, PSNI can stop and search a person without reasonable suspicion to ascertain whether they are in possession of wireless apparatus or are in unlawful possession of munitions. Each JSA authorisation is reviewed and considered by the Secretary of State or someone with their delegated authority if the authorisation is to last longer than 48 hours. The noble Lord, Lord Caine, did many of these in his time as a Minister.
Section 43C of TACT applies across the whole of the UK but can be used only where it is applied as a licence condition and where the police constable is satisfied that it is necessary to do so for purposes connected with protecting members of the public from a risk of terrorism. It has been in operation and, although the number of stop and searches is slightly down this year on last, it has not changed how the police are operating.
I hope that with those reassurances noble Lords will appreciate that this SI is largely technical but is important to policing in Northern Ireland. It will help the police continue to keep people safe. This Government are committed to ensuring that the people of Northern Ireland, as in the rest of the UK, are safe.