Counter-Terrorism and Border Security Bill

Lord Paddick Excerpts

Monday 17th December 2018 Lords Chamber

Moved by

[Lord Paddick]

33A: Clause 21, page 22, line 19, at end insert —
“(2) The Secretary of State must lay a report annually before both Houses of Parliament setting out details of the exercise of each of the powers provided by Schedule 3 to this Act, and Schedule 7 to the Terrorism Act 2000, during the year in question.(3) For the purposes of the report in subsection (2) the details must include (but not be limited to) statistics on—(a) the religion, and(b) the ethnicity,of the persons subject to the exercise of the powers.”

[Lord Paddick (LD)]

My Lords, this amendment is in my name and that of my noble friend Lady Hamwee. Before I get to the substance of it, I would like to say that lacking in the debate so far today has been the recognition that it is essential that communities work together with the police and the security services in order to defeat terrorism. In fact, when I was a serving police officer and Deputy Assistant Commissioner John Grieve was the head of the counterterrorism department at New Scotland Yard, he said exactly that: it is communities that will defeat terrorism, not the police and the security services working alone.

That was back in the days of Irish republican terrorism, which, in terms of conventional ways of defeating terrorism, was an easier foe to defeat. The Irish Republican Army was a traditional hierarchical organisation that could be infiltrated, and which worked on large-scale spectacular terrorist attacks, so it was much easier to detect than the current threats we face. At the time, DAC John Grieve was talking about the fact that people from Ireland were coming over to the UK and, for example, renting garages to store large quantities of explosives and so forth, so the community could provide information to the police on that sort of activity. Now we see lone-wolf attacks or groups of friends who do not communicate with each other but come together very quickly to carry out far less sophisticated but none the less deadly attacks, regrettably, as we have seen over recent years. The support and co-operation of the public is therefore even more important now than it was when John Grieve was head of the counterterrorism department.

Trust and confidence come from confidence in what the state is doing to defeat terrorism through legislation and activity. That is why we have tabled this amendment. We have discussed at earlier stages of the Bill both Schedule 7 to the Terrorism Act—which provides the power to detain people at the border and at airports in order to question them as to whether they were about to engage in terrorist activity—and Schedule 3 to this Bill, which provides an even wider power.

Our initial position was that these powers should be exercised only if there was reasonable cause to suspect that the individual being detained and questioned was involved in terrorism. The House heard compelling arguments from, among others, the noble Lord, Lord Anderson of Ipswich, as to why that reasonable suspicion threshold could hamper the work of those keeping us safe at the border. We still have concerns about that. The House having not accepted that that should be part of the way that Schedule 3 and Schedule 7 operate, we have tabled this amendment, which requires the Government to report on the religion and ethnicity of people who have been subject to powers under those schedules.

The Liberal Democrat Campaign for Race Equality has received a number of complaints from people who say they have been detained at airports and have even missed flights before they were allowed to go on their way, and have received no compensation. There is a feeling in some communities that Schedule 7 powers—Schedule 3 powers have yet to come into force—are being unfairly targeted on Muslims and people from black and minority ethnic backgrounds. This amendment would bring transparency to the exercise of the powers under Schedules 7 and 3 by requiring the Government to produce a report detailing how those powers are being exercised, including statistics on the religion and ethnicity of the people subject to them. I beg to move.

--- Later in debate ---

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

My Lords, I thank both noble Lords for their points. I agree with the sentiment of what the noble Lord, Lord Paddick, said about the role of communities. They are important in assisting the police and security services in countering not only terrorism but extremism. Amendment 33A would require the Home Secretary to lay a report before both Houses of Parliament each year setting out how the ports powers under Schedule 7 to the Terrorism Act 2000 and Schedule 3 to this Bill have been exercised.

Reiterating some of what I said earlier, the Government agree with the sentiment behind the amendment, but I hope the noble Lord will agree that it is unnecessary. We entirely agree that transparency and accountability are appropriate in governing the exercise of the new hostile activity ports powers, as is the case with the existing counterterrorism powers. I reiterate, however, that such mechanisms are already in place through the work of the Independent Reviewer of Terrorism Legislation with respect to Schedule 7, and the future role of the IPC for Schedule 3. Part 6 of Schedule 3 already requires the IPC to review the use of the powers by making an annual report. We envisage this working in a very similar way to the role of the Independent Reviewer of Terrorism Legislation, who reports annually on the use of counterterrorism powers under the Terrorism Act, including those in Schedule 7.

Noble Lords should be reassured that the commissioner, like the independent reviewer, will be afforded full access to any Schedule 3 record on request and information on how the powers have been exercised. The scope and content of these reports will be at the discretion of the commissioner, as they have been for a number of years regarding Schedule 7. The annual reports by the independent reviewer are augmented by the quarterly statistical bulletins, published by the Home Office, on the operation in Great Britain of police powers under the Terrorism Act 2000. The latest bulletin was published on 6 December and, incidentally, recorded a further 25% decrease in the number of Schedule 7 examinations compared with the previous year. The number of Schedule 7 examinations has now fallen by 79% since the data was first collected in the year ending 30 September 2012. The published data already includes information about the ethnicity of examinees and the number of detentions.

As I said earlier, we are considering with the Home Office chief statistician the appropriate arrangements for publishing statistics on the exercise of the Schedule 3 powers, but we would expect to publish equivalent statistics to Schedule 7. The statistical reports in respect of Schedule 7 do not currently identify the religion of examinees, but we are ready to explore this with the Home Office chief statistician, the police and others. I hope that, on this basis, the noble Lord feels happy to withdraw his amendment.

[Lord Paddick]

My Lords, I am grateful to the Minister for her explanation. What comes across to me in her response to this and other amendments is that there is a degree of transparency and accountability, in that the Independent Reviewer of Terrorism Legislation will look at the Schedule 7 powers and the IPC, presumably, will examine those under Schedule 3. It is all very well for the Government, the independent reviewer or the Investigatory Powers Commissioner to be satisfied that these powers are being used appropriately, but they are not the people who need to be convinced that they are being used fairly: it is the communities—particularly the Muslim community—that need to be convinced. Publishing the religion of people being subjected to these powers is crucial if we are to get the Muslim community to work with us to defeat terrorism.

As I said when I introduced the amendment, people, or groups, can switch almost overnight. For example, the attempted bombings on 21 July 2005 were a carbon copy of those on 7 July, which did not go according to plan. They were supposed to involve four bombs on the Underground, and the copycat attacks on 21 July involved three on the Underground and one on a bus because of what happened on the 7th. That is how quickly the first attack was copy-catted by another group. It is the friends, neighbours and close associates of these lone wolves and groups of friends who will pick up on the changes in their behaviour that show they are moving from being radical to being violent and potentially deadly. It is therefore absolutely essential that we do everything we possibly can to win the trust and confidence of the communities from which these people come.

I am encouraged by the Minister saying that the Home Office statistician will be looking at the issue.

[Baroness Hamwee (LD)]

The Minister said that the Government will be looking at this with the chief statistician and the police. Can she give a timeframe for that? If she cannot do so now, can she come back to the House before too long with an idea of when we might expect some further information on this work?

[Baroness Williams of Trafford]

I will come back to the noble Baroness in writing.

[Lord Paddick]

On that basis, I beg leave to withdraw the amendment.

Amendment 33A withdrawn.

--- Later in debate ---

[Lord Anderson of Ipswich (CB)]

My Lords, Schedule 3 to the Bill will confer a bristling armoury of powers on ports police: the power to detain travellers for up to six hours; a requirement that questions be answered and passcodes surrendered, on pain of prosecution and possible imprisonment; powers to take samples and strip search; and the power to download and retain the entire contents of laptops and mobile phones. In Committee, I expressed unease at the prospect of some 1,400 ports officers up and down the country being entrusted with these powers and the right to use them without any need for suspicion for the purpose of determining whether members of the travelling public appear to be engaged in activity that, while reprehensible, is perfectly lawful.

At that stage, three examples were given of activity that was said to be detrimental to national security without amounting to serious crime. Each of them fell squarely within the scope of the Official Secrets Acts 1911 and 1920 and could thus have quite legitimately been the subject of questioning under a law formulated according to these amendments. I continue to believe that strong coercive powers of this nature should, as a matter of principle, be available only in the context of criminality and that the best way to address any deficit is by amendment or addition to our national security legislation. However, since Committee, two further examples have been put to me on which the Minister may choose to elaborate that suggest at least one respect in which our existing law is inadequate to protect against threats to our national security. So until that gap has been filled, a pragmatic case, I accept, has been advanced for extending the Schedule 3 power beyond serious crime.

Furthermore, government Amendment 34C has addressed the most obviously objectionable feature of the clause, and that is its unqualified recourse to the nebulous—if I may use that word—notion of threats to,

“the economic well-being of the United Kingdom”.

I understand that further assurances are to be offered in the draft code of practice that will be laid before this House after the passage of this Bill.

Finally, I take comfort from paragraph 62 of Schedule 3, which the Minister mentioned in the previous debate, which requires the Investigatory Powers Commissioner—currently Sir Adrian Fulford, a serving Lord Justice of the Court of Appeal—to keep under review the operation of the relevant provisions, and provides for the publication of the commissioner’s annual review. Annual reviews over the many years of the equivalent power under Schedule 7 to the Terrorism Act have given rise to a number of changes to the code of practice and to legislation, and have been extensively relied on in the courts.

Will the Minister confirm that the necessary additional resources will be made available to the Investigatory Powers Commissioner for the performance of that task by him and his office? Will she confirm that that will be the case even if the number of stops should turn out greatly to exceed the current estimate of 100 per year? She will remember that, according to figures—provided to me by the Metropolitan Police and published in December 2016—on the intelligence reports filed after Schedule 7 stops between 2009 and 2015, an annual total of between 5% and 8% related to counterespionage and between 8% and 17% related to counterproliferation. That was despite the fact that at that stage no specific power existed for questioning travellers in order to determine whether they were spies or proliferators. It would seem that quite large numbers of people who might have fallen within those categories were stopped and questioned. If remotely accurate, those figures are suggestive of the possibility that the Schedule 3 power could be used up to a few thousand times a year rather than merely several dozen. I appreciate that the Minister does not have a crystal ball, but the need for proper resource to report on this extremely sensitive power is clear and I hope that she will acknowledge that.

On that basis, I support government Amendment 34C and do not propose to press Amendments 34A, 34B or 34D. I beg to move.

[Lord Paddick]

My Lords, I added my name to the amendments in the name of the noble Lord, Lord Anderson of Ipswich. As he said, the Schedule 3 powers are considerable and can be exercised against someone even if the activity they are suspected of being engaged in does not amount to a serious crime. Therefore, we certainly feel that the amendments are valid. However, we accept that the noble Lord has received reassurances from the Government, which I hope the Minister will elaborate on in her response. Clearly, following the comments that we made from these Benches about actions that affect “the economic well-being of the United Kingdom”, the amendments tabled by the Minister provide reassurance on that particular issue.

[Lord Kennedy of Southwark]

My Lords, Amendment 34A in the name of the noble Lord, Lord Anderson of Ipswich, raises the same issue that the noble Lord led on in Committee. The noble Lord quite rightly raised the issue of the words “hostile act”. The words are far too wide and give a disproportionate power to the relevant authorities. The noble Lord spoke in Committee about these strong coercive powers.

To their credit, the Government have listened to that debate and I know that they have been in discussion with a number of noble Lords around the House, as have government officials. I have found those discussions very helpful and I am persuaded that the amendments put forward by the Government in this group address the concerns raised previously, so I am content to support the Government and their amendments in this group.

--- Later in debate ---

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I recognise that this amendment is not perfect and I am sure that the government draftsmen could make a better job of it, but the Government have shown that they are open to amending the Bill to improve it and to put in the necessary safeguards for journalists and others. For that reason, I ask the Minister to look again at the Schedule 3 power and to add proper oversight of its use.

The existing powers in Schedule 7 to the Terrorism Act have already proved open to abuse. When David Miranda was stopped at the border on the instruction of the security services, it was because he was the partner of Glenn Greenwald, a journalist reporting on the facts released by whistleblower Edward Snowden. It is thanks to these heroic individuals that we now know the true extent to which the American National Security Agency spies on just about every person who owns a phone or a computer. David Miranda was stopped at Heathrow Airport to confiscate any documents and data that he might have been holding in relation to the whistleblowing. There was no judicial oversight and no legal protection for the sensitive journalistic information that the security services sought to confiscate.

This amendment is not just an issue that I have cooked up because I do not trust the Government or something that NGOs have asked me to bring forward. It was the judgment of the Court of Appeal in the David Miranda case, where the Master of the Rolls said that the existing Schedule 7 power, on which Schedule 3 is based, is in breach of the European Convention on Human Rights. It was the Court of Appeal’s conclusion that,

“in relation to journalistic material … it is not subject to adequate safeguards against its arbitrary exercise … It will be for Parliament to provide such protection. The most obvious safeguard would be some form of judicial or other independent and impartial scrutiny conducted in such a way as to protect the confidentiality in the material”.

What have the Government done to rectify this breach of human rights law? Given that the existing Schedule 7 power has already been ruled in breach of human rights by the Court of Appeal, how have the Government chosen to bring another power which replicates the breach in its entirety? In that light, how was the Minister able to put a statement on the Bill that it is in accordance with the Human Rights Act when it is not? We have to amend this provision in some way. The alternative is that we pass a measure that we know has already been declared in breach of the human rights convention and is certain to be declared so again.

Journalists do essential work. They are the lifeblood of any free country, yet they face constant threats across the world for speaking truth to power. In the USA, despite constitutional protection, they are labelled by the President as “enemies of the people”, and have had bomb scares and other threats made by the far right. In Saudi Arabia, and far too many other countries, they face arrest, violence and death. It is against this backdrop that I am grateful to the Minister for tabling a number of amendments to the Bill which seek to protect journalists and their sources from the powers contained within. However, Schedule 7—and by extension the Schedule 3 power—do not protect journalists, and expose their sources to interference by the state.

My amendment gives journalists the right to say no when asked to hand over confidential information. I recognise that this is a sticking plaster for now. The Government can and should bring their own amendment to resolve the issues in the Miranda judgment, and give proper judicial oversight of this kind of confiscation. I hope this is just an oversight, and that the Minister has not yet tabled all her amendments to Schedule 3. While we wait for those to be forthcoming, can the Minister reassure us that we will come back to this at Third Reading?

Amendment 34F builds on the points I have just made. At the moment, the Schedule 3 power at least contains a safeguard so that any statements a detainee makes while detained cannot be used in court. The same protection is not given to information or documents that are confiscated. There should be protection for journalistic material and journalists’ sources, so that they cannot be exposed in court. I look forward to seeing the Minister’s amendments, which would resolve this problem.

[Lord Paddick]

My Lords, I rise to support the amendments of the noble Baroness, Lady Jones, at least in principle. There is clearly a conundrum here. You have people potentially being detained and questioned at ports, for up to a maximum of six hours. They may be in possession of documents that are genuinely confidential journalistic material—for example, information about journalistic sources—or they may be legal documents, subject to legal privilege. As this amendment suggests, however, to allow someone to refuse to hand over the documents or information on the basis that this is what they contain, would be open to abuse by foreign spies, or people who have adverse intentions towards the United Kingdom. There is a dilemma between protecting legally privileged material and confidential journalistic material, but at the same time—and within the timescales and practicalities of a Schedule 3 or Schedule 7 stop—finding some mechanism that protects those fundamental human rights and enables the Border Force to carry out its job in protecting the United Kingdom.

[Lord Hylton (CB)]

My Lords, these two amendments raise genuine points of concern. As the Bill is written, border guards and other officials are being put in a more privileged position than police forces. Under the Terrorism Act 2000, the police have to apply to a court for judicial approval of such actions, so I am supportive.