Port Examination Codes of Practice and National Security Determinations Guidance Regulations 2020

Baroness Hamwee Excerpts

Friday 10th July 2020 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, as is the case with most statutory instruments, we had a substantive and, in this case, substantial debate on the primary legislation, which is not up for discussion. However, as the SI brings into force codes of practice lower in the hierarchy, it is worth reminding ourselves of their status.

The fact that they are codes, are written down and are subject to consultation is very significant, as the noble Lord, Lord Carlile, has said. They are also subject to parliamentary approval, but they do not have the scrutiny which can lead to amendment. They are the practical application of the powers of the state. As the noble Lord, Lord Anderson of Ipswich, said during the passage of the Bill,

“the Bill will confer a bristling armoury of powers on ports police”.—[Official Report, 17/12/18; col. 1762.]

The current Independent Reviewer of Terrorism Legislation raised points on the draft codes about reflecting the language of the law, points which the Government rightly took, because the rule of law requires law.

I will use this opportunity—I have not managed to find another—to mention the recent report of Her Majesty’s Chief Inspector of Prisons on short-term holding facilities at the border. I have to say that “facilities” is something of a euphemism. There were some shocking findings, including that

“a pregnant woman was detained for over 27 hours; the detention log evidenced little meaningful engagement with her”

and:

“Detainees’ … ability to make telephone calls was at best restricted, and at worst prohibited.”


Border Force staff said that they felt “forgotten”, and that there was no guidance or sharing of best practice. Can the Minister tell the House how the Government are responding to the finding of inadequate leadership?

Actions at the border must not raise any concerns about any sort of discrimination, a point to which a number of noble Lords have referred. I raised this recently when the EU Security and Justice Sub-Committee, of which I am a member, questioned the Security Minister, James Brokenshire, about access to data—a very important tool of border security—post Brexit. A number of noble Lords including the noble Baronesses, Lady Altmann and Lady Wheatcroft, and the noble Lord, Lord Purvis, referred to this. I asked him about stopping a disproportionate number of individuals whose ethnicity and dress were, to put it bluntly, not those of a white person who is not Muslim. He said “Ah—you’ve not seen the new code”. Now that I have, can the Minister point me to the answer? Is it through training, which must be kept under constant review, and accreditation? Will training, for instance, cover unconscious bias as well as, I assume, keeping and analysing data? This is a current issue but has always been a current issue, as my noble friend Lord German indicated.

During the passage of the Bill, we received a lot of briefing on the detail of the procedures: the length of time that someone could be detained, access to a named lawyer and so on. The Government’s response to the consultation on the codes on this point refers to the examining officer’s discretion and says that the detainee is told of this discretion. However, it is the criteria for the exercise of the discretion which are important and should be transparent.

As noble Lords have also mentioned, we have received a lot of briefing discussing journalism and journalistic sources—a contentious and difficult area. We are told that the Government are now considering whether to amend the definition of “confidential material” to make it clear that it includes material identifying a source of journalistic information. Can the Minister tell the House when we can expect to see this? Perhaps it will be in the current counterterrorism and sentencing Bill.

We scrutinise legislation; I am glad that we also have systems to scrutinise how things work in practice. However, applying the findings from those is essential because, as I know all noble Lords agree, trust in the means used by the state to keep us safe, but which reflect our values, is essential.