Crime and Policing Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Thursday 15th January 2026 Lords Chamber

Moved by

[Lord Anderson of Ipswich]

390: Clause 135, page 167, line 6, at end insert—
“11D When information has been copied by virtue of paragraph 11A or extracted by virtue of paragraph 11B, and it is wished to retain such information under paragraph 11A(3)(a) or paragraph 11C(a) for a period exceeding three months beginning with the day on which detention commences, such information may be retained only where the constable has reasonable grounds to suspect that a person falls within section 40(1)(b).”Member's explanatory statement
This amendment, building on the Supreme Court’s judgment in Beghal v DPP [2015] UKSC 49 §58, requires reasonable suspicion as a condition for the retention beyond three months of information extracted from an electronic device or from online accounts associated with an electronic device, when that retention is said to be necessary for the purpose of determining whether a person is or has been concerned in the commission, preparation or instigation of acts of terrorism.

[Lord Anderson of Ipswich (CB)]

My Lords, the amendments in this group are designed to probe a proposed extension of counterterrorism and national security powers, usable only at ports, airports and places near the land border with Ireland, that are among the very strongest of all those powers vested in the police. I have consistently supported those powers, controversial though they once were, and I support the extension of them to data on the cloud by Clause 137. The issue raised by these amendments is whether those powers and their extension should be attended by improved but streamlined safeguards. My amendments suggest two simple and modest ways of achieving this.

Schedule 7 to the Terrorism Act 2000 and Schedule 3 to the National Security Act 2023 authorise counterterrorism police to stop any person passing through a port or airport, on a no-suspicion basis, for the purpose of determining whether they are or have been involved in terrorism or hostile activity. Such persons may be searched; they may be detained and questioned for up to six hours; they are denied the right of silence in the face of the officers’ questions; indeed, they are liable to be prosecuted if they refuse to speak. All these powers are exercisable, I repeat, on a no-suspicion basis.

There are some thousands of Schedule 7 examinations every year—well down from the peak, but still a significant number. That is not all: any “thing” that a traveller has with them can be seized and inspected, again without any need for suspicion. That power has its origins in the historical power to rummage through hand baggage, and there are all kinds of “things” in there. Thanks to modern technology, such “things” now include laptops and mobile phones. Under the existing law, the contents of these electronic devices may be copied and retained for as long as the examining officer believes that they may be needed for use as evidence in criminal proceedings, or in connection with deportation. That is fair enough in my book. In addition, however, and relevant to my proposed amendments, the contents may be copied and retained

“for as long as is necessary for the purpose of determining”

whether a person is or has been involved in terrorism or hostile activity.

Clause 137 would extend this power so that it applies not only to data that can be extracted from the phone itself but—as touched on in the previous group—to data that is accessible from the phone and stored on the cloud. This includes, for example, the entirety of a person’s Gmail account and all their iCloud photos. The operational logic of the extension is faultless: cloud storage is a fact of life. I have no problem with Clauses 130 to 134, which apply the same principle to powers that are already well attended by safeguards. But Clause 137 gives us an opportunity to reflect, not least in the light of comments from the courts, on whether the Government and your Lordships are content for data that has been seized without the need for suspicion—and which, as the noble Lord, Lord Clement-Jones, said in the previously group, increasingly encapsulates every aspect of a person’s private life—should be retained by the police without clearer parameters.

We are urged to take that opportunity to reflect by Jonathan Hall KC, my successor but one as the Independent Reviewer of Terrorism Legislation. In a note published last October, he suggested that Parliament might want to consider: what safeguards will prevent excessive data being extracted and copied; how journalistic and legally privileged material on an online account will be protected; and, given the quantity of personal data that members of the public knowingly or unknowingly hold on the cloud, accessible from their device, whether, as he put it,

“merely travelling through a port or border”

is

“a sufficient reason to surrender so much of their privacy”.

Jonathan Hall does not say for how long data is, in practice, retained for the purpose of determining whether a person is involved in terrorism or hostile activity. The experience of the old management of police information, or MoPI, regime suggests, however, that personal data may be retained in police systems for very long periods indeed, particularly when the grounds for doing so are very broadly and vaguely expressed.

As one would expect, powers as strong as these have attracted legal challenge. The leading case was brought by Mrs Beghal, who was questioned under Schedule 7 at East Midlands Airport in 2011. The essentials of Schedule 7, as it then stood, were found, in 2015, to be compatible with the European convention by a majority of the Supreme Court. Lord Kerr, followed by a unanimous first section of the European Court of Human Rights, found otherwise. Fortunately, for those tasked with defending the power in the courts, Mrs Beghal was not subject to the inspection, copying, or retention of data on her phone, let alone, of course, on the cloud, but the Supreme Court was sufficiently troubled by this aspect of the power to address the issue anyway. It did not object to the suspicionless seizure, copying and retention of data belonging to a person going through a port or airport, but it did express the view, by way of obiter dictum, in paragraph 58 of its judgment that retention beyond an initial period for the purposes of determining whether a person is involved in terrorism should require objective grounds for suspicion.

My Amendment 390 would act on that dictum of the Supreme Court in relation to the existing Schedule 7 power and the proposed amendment to it. It would fix the initial period during which no suspicion is required at three months. This might be considered rather generous to the police, given that the Supreme Court appears provisionally to have had a period closer to seven days in mind. Should Amendment 390 find favour with your Lordships, a similar amendment to Schedule 3 to the National Security Act could be tabled alongside it on Report.

My Amendment 391 is directed exclusively to the National Security Act 2023. Its Schedule 3 allows an even broader basis for retaining cloud data than the Terrorism Act. As proposed by the Government, it will be sufficient reason for retaining such data that

“the constable believes it necessary … in the interests of national security”

or the

“economic well-being of the United Kingdom”—

national security being a concept that is famously undefined in our legislation.

The test of subjective belief on the part of a constable in relation to these weighty matters is about the least onerous threshold that could be imagined. Amendment 391 would replace it with an objective test—the same objective test proposed in relation to the alternative ground for retention in new paragraph 22B(a) in the Bill. This is keyhole surgery of the most minor kind, but I suggest it is the least this situation requires.

These are probing amendments, but they go some way to meeting the challenge we have been posed by the independent reviewer. They invite discussion of a question that is surely significant by any measure: are we or are we not prepared to contemplate meaningful limits on police retention of the most extensive private details of the lives of people who have done nothing more suspicious than pass through a port or airport? I beg to move.

[Lord Clement-Jones (LD)]

My Lords, I support Amendments 390 and 391 tabled by the noble Lord, Lord Anderson of Ipswich, which I have signed. As he has explained, these amendments are designed to probe the proposed extension of border powers. These are powers which are already among the strongest vested in the police, which are useable at ports, airports and near the land border with Ireland.

The Committee needs very little reminder of the pedigree of the noble Lord, Lord Anderson, as the Independent Reviewer of Terrorism Legislation. This informs his view of these new powers under Clauses 135 to 137, which represent a major extension of state reach. They extend the existing power to seize a physical device to include data that is accessible from a phone but stored in the cloud. We are no longer talking about just a handset, but the entirety of a person’s Gmail account, iCloud photo library and private digital history. Although the operational logic of following data in the cloud is understandable, we should reflect that this information is seized without the need for prior suspicion of an offence. As the successor of the noble Lord, Lord Anderson, the current Independent Reviewer of Terrorism Legislation, Jonathan Hall KC, has asked,

“is merely travelling through a port of border a sufficient reason”

for a citizen

“to surrender so much of their privacy?”

As the noble Lord, Lord Anderson, said, Amendment 390 would introduce a vital safeguard based on the Supreme Court’s judgment in Beghal v DPP, which stipulates that if the police wish to retain the extracted cloud data for longer than three months they must have reasonable grounds to suspect the individual is involved in terrorism or hostile activity. We cannot allow the digital core of an innocent traveller to be duplicated and kept indefinitely by the state simply because they pass through a port of entry, as the noble Lord said.

As the noble Lord said, Amendment 391 is directed at the National Security Act 2023. As it is currently drafted, the Government would allow the retention of cloud data based on the purely subjective test that the constable believes that it is necessary. This is perhaps the least onerous threshold imaginable in our law. Amendment 391 would perform what the noble Lord, Lord Anderson, described as minor “keyhole surgery” by replacing this subjective belief with an objective test of necessity, which would ensure that the retention of highly sensitive personal data, which may include journalistic or legally privileged material, was governed by an actual legal standard that can be scrutinised, rather than a mere hunch or the personal belief of an individual officer.

--- Later in debate ---

[Lord Hanson of Flint (Lab)]

I think I have said that the points raised by the noble Lord, Lord Anderson, are worthy of reflection, but we will put the discussion ultimately into the code of practice. The final settlement will be a consultation on the code of practice. I have heard what has been said today. There will be a consultation and an opportunity for the noble Lord, with his former hat on and his position in this House, and others to comment on it. That is the case I am making and I hope I have convinced the Committee. If not, methods are available. Given the late hour and the amendment target we are trying to reach, I will rest my case.

[Lord Anderson of Ipswich (CB)]

I thank the Minister and all noble Lords who have contributed to this excellent debate. Frankly, I am overwhelmed by the quality and quantity of the interventions. With the exception of the noble Lord who signed the amendment, I have not approached any noble Lords who spoke or even notified them that this debate was coming up. It is remarkable that so many spoke so strongly in support. I single out the noble Lord, Lord Davies of Gower, for whom we all have enormous respect as a former police officer. I hope that his approval in principle for these amendments will be heard on the Government Front Bench.

These amendments are operationally perfectly simple. Nobody has suggested that this would be a great burden on the police or any bureaucratic impediment to them doing their job. If they had been, I would have been very reluctant to propose them. Although they are operationally simple, as the noble and learned Lord, Lord Garnier, said, they are of constitutional importance. They may look technical, but they are important.

On that theme, I will address the Minister’s remarks on the code of practice and the consultation on it. That really is not enough. If the law says it is enough for a constable to have a subjective belief that the economic well-being of the United Kingdom is being harmed, it will avail nobody to complain that there was no objective evidence or reasonable suspicion. The Minister perhaps heard an indication from the noble and learned Baroness, Lady Butler-Sloss, of what the reaction of the courts might be to an argument of that kind. I thank him for his offer, but I am afraid it is simply a deflection. This issue pre-eminently needs to be addressed in the Bill.

I end with two further thoughts for the Minister to consider. First, for most of the last decade, Schedule 7 was the most controversial aspect of our counterterrorism laws. One reason is that it potentially affects a lot of people; a lot of people used to be stopped and questioned at airports. It took over from the old “no suspicion stop and search power”, which was repealed when Theresa May was Home Secretary in 2011 or 2012 and defused as an issue of major public concern because of some sensible but quite minor changes made to it. For example, nine hours of detention were taken down to six, alongside several other technical changes. People who were upset by Schedule 7 and saw it as targeted at them and their community were reassured that Parliament was looking at it and prepared to respond to some of their concerns.

Although this may look very technical on the pages of the Bill, I ask the Minister to remember that we have reached a sort of equilibrium on Schedule 7, but it is a very delicate one. If you are going to increase the powers in this manner, it is really important to think about safeguards as well.

I ask the Minister to reflect on a second point. He may not accept my arguments, but I put the pragmatic case to him that these arguments have been put not only by me and previous independent reviewers—the noble Lord, Lord Carlile, was also a great reformer of Schedule 7—but by the Supreme Court, which felt strongly enough about this issue to single it out for comment in a case in which the issue did not arise. As a lawyer and a member of the brotherhood of the law, I am delighted by anything that could produce more excuses for litigation. However, at such little cost, administratively or otherwise, the Minister has it in his power to do what the Supreme Court suggested and neutralise a lengthy, and one might almost say pointless, bout of litigation.

I know the Minister has a lot on his plate, but in view of the way this debate has gone and the points that have been made right around the House, I hope the Minister will find time to meet with me and perhaps the noble Lord, Lord Clement-Jones, and others if they want to come, and discuss this properly. I was sorry to hear him say he had a defence against keyhole surgery. Keyhole surgery is designed to help; it is not the sort of thing one should have to defend against. He should count himself lucky he is meeting surgeons and not butchers. However, we are very keen to meet him and I hope he might agree. In the meantime, I beg leave to withdraw the amendment.

Amendment 390 withdrawn.