Counter-Terrorism and Border Security Bill

Baroness Jones of Moulsecoomb Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 14th November 2018 Lords Chamber

Debate on whether Clause 21, as amended, should stand part of the Bill.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it is my intention to oppose the Questions that Clause 21 and Schedule 3 stand part of the Bill. I will later move specific amendments, but it is my view that Schedule 3 should be entirely removed from the Bill.

Schedule 3 creates a new regime in which anyone who is travelling into or out of the country can be searched, detained, interrogated and forced to hand over confidential documents without any suspicion by the border guards. That means that anyone could have their travel interfered with for no good reason—but of course it could be that people of black, Asian and minority ethnic groups will be disproportionately targeted by these broad powers. These powers already exist for the purposes of establishing whether someone is or has been involved in acts of terrorism. They are contained in Schedule 7 to the Terrorism Act 2000. The Government now seek to extend these powers beyond terrorism, to a very broadly defined set of “hostile acts”, which include threatening national security or threatening the so-called,

“economic well-being of the United Kingdom”.

Border officers could force anyone to hand over documents and information, and it would be a criminal offence to say no. They could detain anyone at the border for up to six hours without needing anything at all to suggest that the person has done anything wrong. A person who is questioned or detained has no right to remain silent and commits a criminal offence if they do so. An individual who is detained under these powers will have a right to speak to a solicitor, but the Bill does not appear to require them to be informed of this right until they have been detained for at least two hours. If a detainee chooses to speak to a solicitor, this can be delayed by officers under paragraph 25 or simply ignored altogether under paragraph 24. Additionally, paragraph 26 allows the police to watch and listen to the private conversations with the solicitor. I cannot believe that this is anything other than a fundamental attack on legal privilege and confidentiality.

These powers are simply too broad and too intrusive. They mean that anyone passing through a port or airport is essentially waiving their basic legal rights. While some people might consider this proportionate when it applies to finding terrorists, it is completely unjustifiable when it is applied to find out whether people are threatening the economic well-being of the United Kingdom. I would therefore like the Minister to clarify some points for me.

What does “threatening the economic well-being of the United Kingdom” mean? Has the phrase been defined anywhere and has it been considered by the courts? Would a business person who moves their business from the UK to another country be threatening the economic well-being of the UK? Why does the Bill allow a person to be detained for up to six hours without a single suspicion that they had done anything wrong? Would any Member of your Lordships’ House be prepared to be detained at the border for six hours without any suspicion that they had done anything wrong? If it were applied to us—as it could well be— we would think it most unfair. How will the Government ensure that these suspicionless powers are not used in racist and discriminatory ways, further entrenching the abuse that black and Asian men face with existing stop and search powers?

Dozens of amendments could be made to Schedule 3, but it is so fundamentally wrong that it must be opposed altogether. I beg to move.

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[Baroness Williams of Trafford]

My Lords, we have already debated a number of points related to the new ports powers under Schedule 3 to the Bill. Groups of amendments to come will address other aspects of these provisions. That being the case, I will limit my remarks in responding to this stand part debate to explaining the overarching case for these new powers to combat hostile state activity. Schedule 3 will serve to address a current gap in our ability to tackle the threat from hostile state actors by introducing provisions to allow an examining officer to stop, question, search and detain persons at a UK port or the border area in Northern Ireland to determine whether they are or have been engaged in hostile activity.

For the purposes of this legislation, a person is or has been engaged in hostile activity if they are or have been concerned in the commission, preparation or instigation of a “hostile act” that is or may be carried out for or on behalf of a state other than the United Kingdom, or otherwise in the interests of a state other than the United Kingdom. An act is a hostile act if it threatens national security, threatens the economic well-being of the United Kingdom, or is an act of serious crime. The noble Baroness, Lady Jones, asked about the types of activity that would threaten the economic well-being of the UK. Acts of that kind include those which damage the country’s critical infrastructure or disrupt energy supplies. The power absolutely will not be used to target the legitimate activity of foreign businesses, an example of which was given by the noble Lord, Lord Paddick. The noble Baroness also asked whether the power will be used in a discriminatory fashion. The response is an emphatic no, it will not. That is because selection based solely on ethnicity, religion or other protected characteristics is quite clearly unlawful. Selection for examination will be informed by a number of considerations, including available intelligence about hostile activity, as listed in the criteria set out in the draft code.

The events in Salisbury were a stark reminder of the impact that hostile activity can have on the safety and security of our communities. The use of a military grade nerve agent on UK soil demonstrated very clearly the lengths to which hostile actors such as the Russian state will go in order to achieve their illegitimate ends. We should not underestimate this threat. The Director General of MI5, Andrew Parker, set out the position in stark terms in a speech delivered in Berlin in May:

“We are living in a period where Europe faces sustained hostile activity from certain states. Let me be clear, by this I … mean deliberate and targeted malign activity intended to undermine our free, open and democratic societies; to destabilise the international rules-based system that underpins our stability, security and prosperity … Chief protagonist among these hostile actors is the Russian Government”.


It is not often that the general public are so exposed to the work of hostile actors. These actions highlight a contempt for public safety, the rule of law and international norms. However, they are consistent with the activities of the Russian state and others which our operational partners work tirelessly to counter.

In introducing these new powers, the Government are seeking to provide the additional capability needed better to detect, disrupt and deter the threats from these hostile actors. As the noble Lord, Lord Anderson, put it in his evidence to the Home Affairs Select Committee in January, if it is accepted that we need powers to stop and examine people at ports to combat terrorism, should not the police have similar powers to stop people on a similar basis who pose an equal but different threat to national security? In the Government’s view, the answer to the question must be an unequivocal “yes”.

It is worth reiterating that the provisions of Schedule 3 are not entirely novel. They will in many respects mirror existing powers to stop and question persons at the border to determine whether they are terrorists, but will instead be used to determine whether a person is or has been engaged in hostile state activity.

The Government are not saying that, simply because we have these powers for counterterrorism purposes, it justifies expanding them to hostile activity. Rather, we are saying that we have experience in exercising these powers; we already know the vital role that they play in countering the activities of terrorists, and we have taken into account the views of the Independent Reviewer of Terrorism Legislation on the exercise of the powers to ensure that the subject of an examination is appropriately safeguarded.

The noble Lord, Lord Paddick, asked for examples of hostile activity that would not be considered a serious crime or even be captured under current UK law or constitute terrorism. Examples might include unauthorised disclosure under the Official Secrets Act 1989; foreign intelligence officers building relationships with government officials with a view to influencing decision-making or recruiting them as an agent, or foreign intelligence officers receiving protectively marked information or stealing research plans for the UK’s next aircraft carrier. Section 1 of the Theft Act 1968 is applicable to tangible and in-action property, but does not cover information. It may be possible to prosecute a person for theft of the medium on which sensitive information is recorded, but the offence would carry limited sentencing.

The threat to this country from hostile state activity is greater now than it has ever been. It is therefore vital that the police are equipped to disrupt and deter such activity.

[Baroness Jones of Moulsecoomb]

I have not quite understood. If these stops by border guards are to be based on intelligence, why do they not need reasonable suspicion?

[Baroness Williams of Trafford]

My Lords, I think we went through this the other day. It is because officers may have fragmented information which does not amount to reasonable suspicion but may show a pattern emerging. That may not reach the “reasonable suspicion” threshold. As the noble Baroness said, we cannot just stop and search black people arbitrarily; there has to be some rationale for stopping that person. It would not be arbitrary but would not meet threshold of reasonable suspicion.

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Moved by

[Baroness Jones of Moulsecoomb]

62: After Clause 21, insert the following new Clause—
“Consultation on the impact of this Act on the right to protest etc
(1) Within the period of one month beginning with the passing of this Act the Secretary of State must consult on the probable impact of the provisions of this Act on the right to protest and undertake peaceful, non-violent direct action.(2) As part of this consultation, the Secretary of State must consider whether to introduce—(a) a statutory definition of “domestic extremism” and statutory criteria for designating individuals as “domestic extremists”; and(b) independent judicial oversight of counter-terrorist operations relating to domestic extremism, including the designation of individuals as “domestic extremists”.(3) The Secretary of State must lay a report of the outcome of the consultation before both Houses of Parliament.”

[Baroness Jones of Moulsecoomb]

My Lords, my Amendment 62 would require consultation on the right to protest and undertake peaceful, non-violent direct action. This is a very personal amendment for me because I do go to peaceful protests, and it is possible that some other Members of your Lordships’ House do as well—although, looking round, possibly not.

I am compelled to bring the amendment for personal reasons but also in the knowledge that the Stansted 15 are undergoing a criminal trial for heroically trying to stop deportations in response to the Windrush scandal and the Government’s now discredited hostile environment policy. I also bring the amendment in the name of all environmental protectors who are harassed by armies of police and private security in the fight against fracking. This includes the Fracking Three, who were thrown in jail by a judge who had family ties to the oil and gas supply chain. They were later freed by the Court of Appeal. I also highlight the tree protectors in Sheffield, who spent years trying to stop the council felling thousands of healthy trees. They faced rough tactics by the police, and the council has taken unprecedented steps that risk bankrupting individual protesters.

I pay my respects to all environmental protectors in the UK and around the world who face persecution and prosecution for the crime of protecting our planet. A noble Lord earlier said something about civil liberties being outdated. Not in my world they are not. I argue that if we want to live in a democratic society, civil liberties are a crucial component of it.

A common thread runs through all the cases that I just mentioned. That thread is the use and abuse of laws which stamp out legal, peaceful protest. Whether it is terrorism legislation at Stansted, obstruction of the highway in Lancashire or trade union legislation in Sheffield, we see time and again that the state will use the law creatively to deter and punish those who put their bodies on the line to fight injustice and environmental destruction.

There is an emerging application of civil injunctions, which means that companies and councils can bankrupt people for exercising their right to protest, even when they have not broken the law. Environmental protesters and campaigners have faced persecution in other ways, too. We have often been designated as domestic extremists and put into the same category as far-right neo-Nazis and the man who murdered MP Jo Cox. We have been spied on by the police and had our campaigns infiltrated by police officers. Some of us have even been deceived by police into forming a sexual relationship as part of their cover story. The sense of state intrusion in our lives is difficult to convey, and undoubtedly puts many people off taking part in protests.

We have seen our causes proved right with time. The Intergovernmental Panel on Climate Change has said that even if we meet the targets in the Paris climate agreement, which is unlikely, we will still see catastrophic consequences. The anti-fracking movement, once mocked for its suggestion that fracking would cause earthquakes, has been proven right by Cuadrilla causing dozens of quakes in the vicinity of its fracking site in Lancashire. Those quakes have repeatedly breached the upper limits set by the Government’s “gold-standard fracking regulations”. The Government’s response has been to change their myth-busting fact sheet from stating that fracking does not cause earthquakes to saying that it does not cause “serious earthquakes”.

If the suffragettes were alive today, they would be standing alongside us as domestic extremists facing trumped-up criminal sanctions for doing the right thing. I am sure that in time history will recognise the environmental movement as forcing the same scale of social change as the suffragettes are credited with today.

For these reasons, my amendment would require the Government to conduct a consultation on the impact of the Bill on the right to protest and to consult on a statutory system for designating people as “domestic extremists”. This is an essential first step towards enshrining a true right to protest in the UK, recognising that people should have legal defences when they act in protection of the environment and human rights. The powers in the Bill would add to the already long list of laws which can be used or abused against honest, dedicated campaigners—and that must be opposed. I beg to move.

[Lord Kennedy of Southwark (Lab Co-op)]

Amendment 62 proposed by the noble Baroness, Lady Jones of Moulsecoomb, seeks to add a new clause to the Bill after Clause 21concerning the right to protest.

The right to protest peacefully is an extremely important right that we should all cherish. I have been on a few marches and protests in my time. I have usually gone with a few friends, standing up for what we believe in. Many of my noble friends have been on marches, and I am sure many other noble Lords have been as well. I do not think any one group can claim that they are the party of protest marches.

I hope that the Government will agree that this is an important issue. The right to protest is an important one that we should all cherish. I have generally agreed with the Bill, and am happy to support it. However, I accept that we are giving the Government some extra powers. I support the Bill because it has a narrow focus, dealing with some very important matters, so I hope to get some assurance from the Government. I would not want to see anything in the Bill to stop people protesting peacefully; it is very important that we do not have that.

The noble Baroness raised a point about domestic extremism, which is an important issue. I like the noble Baroness very much. We get on, and sometimes we agree on things, and sometimes we do not. I do not regard her as a domestic extremist; she is a campaigner and a noble Member of the House who makes a valuable contribution. It is important that people should not be branded or grouped together so that somehow, their rights can be taken away. However, let us be clear: there are dangerous people in this country. People who have been born here can be very dangerous; they can be on the hard right, the hard left, in other groups, or religious extremists. We need to have laws in place to deal with them, but at the same time we need to protect our right to protest and stand up for what we believe in. I look forward to the Government’s response.

[Baroness Jones of Moulsecoomb]

Can I just say to the noble Lord, Lord Kennedy, that I was not trying to corner the market in protest? I was thinking that perhaps a lot of Members would not have the time to do that sort of thing.

[Lord Paddick]

I was not going to speak, and perhaps I should declare an interest, in that I have probably been to more protests than any other Member of this House, but mainly in uniform rather than to protest myself.

I am struggling to understand which part of the Bill the noble Baroness is concerned about that would directly impact on peaceful protest. That is why I hesitated to make a contribution.

[Baroness Jones of Moulsecoomb]

My concern is that this is repressive legislation, and we are already finding that peaceful protest is heavily affected by other parts of terrorism legislation. I therefore think that this would have an impact as well.

[Earl Howe]

My Lords, I am grateful to the noble Baroness, Lady Jones, for setting out the case for her proposed new clause. I would like to reassure her that the provisions in the Bill will not impact on an individual’s right to peacefully protest. Let me say without ifs or buts that this is a right central to a free and democratic society such as ours, and one which we would all seek to uphold and defend.

The noble Baroness, Lady Manningham-Buller, argued at Second Reading that,

“there is no liberty without security”.—[Official Report, 9/10/18; col. 27.]

With due respect to the noble Baroness, I am inclined to agree.

The measures in the Bill are intended to ensure that the fundamental rights and values held so dearly by the vast majority of individuals in this country are upheld, and that people are able to express their views and stand up for what they believe in in the face of a malign and growing terrorist threat. While we saw the ultimate expression of these hateful views in Finsbury Park, Westminster, London Bridge and Manchester, these attitudes also undermine the cohesion of our communities, restrict our freedoms and diminish our rights, in particular those of women and girls.

I should make it clear that the type of conduct that the Bill’s provisions are aimed at concerns support for proscribed organisations—those which are, by definition, concerned with terrorism. There is a clear public interest in stymieing support for terrorist organisations, since the more support they have, the stronger their capacity to engage in terrorism. The Bill’s provisions, however, would not extend to support for other organisations that are not proscribed, or indeed to expressions of support for causes that are neither terrorism nor otherwise illegal.

Tackling the evil ideology of extremism is one of the greatest challenges of our time, and we need a new approach to identifying, exposing and defeating it. This year, to step up the fight against extremists, we established the independent Commission for Countering Extremism, which will be crucial to bringing new drive and innovative thinking to all our efforts to tackle extremism. Our published charter sets out the commission’s status as a transparent organisation operating independently from government, and provides it with a clear remit to support the Government in identifying and confronting extremist ideology in all its forms, whether Islamist, far and extreme right-wing, violent or non-violent. It also confirms that the commission will have no remit on counterterrorism policies, including Prevent. In its first year, the commission is engaging widely and openly and is undertaking an intensive evidence-gathering phase to inform the advice to government on new policies to counter extremism. This will include revisiting the extremism definition. The commission has now engaged with over 400 experts and activists and, in September, published the terms of reference for its study, which will be informed by an open public consultation, evidence from government and further research. I urge everyone to engage with the commission in this vital effort.

Peaceful protest is a vital part of a democratic society. It is a long-standing tradition in this country that people are free to gather together and to demonstrate their views, however uncomfortable these may be to the majority of us, provided that they do so within the law. Articles 9, 10 and 11 of the ECHR form the basis of an individual’s right to participate in peaceful protest. There is, of course, a balance to be struck. Protesters’ rights need to be balanced with the rights of others to go about their business without fear of intimidation or serious disruption to the community. Rights to peaceful protest do not extend to violent or threatening behaviour and the police have powers to deal with any such acts. However, these powers are not contained within counterterrorism legislation, but in the Public Order Act 1986. Under that Act, chief officers of police may impose conditions on assemblies and public processions to prevent serious public disorder, serious damage to property, or serious disruption to the life of the community. The directions can relate to the duration, location and size of any demonstration. If the police assess that a march will cause serious public disorder, despite conditions being set, they can apply to the local council for an order prohibiting the holding of a public procession for a period of up to three months. The council must obtain the consent of the Home Secretary before making a banning order. In the London area, the Metropolitan Police Commissioner would need to apply to the Home Secretary for consent to ban the march.

The police must not prevent, hinder or restrict peaceful assembly, except to the extent allowed by Article 11(2) of the ECHR. They must not impose unreasonable, indirect restrictions on persons exercising their rights to peaceful assembly, such as imposing a condition on the location of a protest which effectively negates the purpose of the protest. Pre-emptive measures taken by the police which restrict the exercise of the right to peaceful assembly will be subject to particular scrutiny. In certain circumstances, the police have a duty to take reasonable steps to protect those who want to exercise their rights peacefully. This applies where there is a threat of disruption or disorder from others. This does not mean that there is an absolute duty to protect those who want to protest, but the police must take reasonable measures in particular circumstances.

Following debate in Committee in the House of Commons, my colleague the Security Minister undertook to consider amendments designed to prevent charges being levied on the organisers of a public procession or assembly, should an anti-terrorism traffic regulation order be required to protect such an event. The Government brought forward an amendment to Clause 15 to achieve this, so as not to restrict the right to peaceful protest, as we believe that people should not be charged to exercise these fundamental human rights.

Prior to introduction of the Bill in the House of Commons, the Home Secretary made a statement that in his view the provisions of the Bill are compatible with the European Convention on Human Rights—a view which my noble friend shared when the Bill was introduced to this House. Given all this, and the scrutiny the Bill has received during its passage through both Houses and by the Joint Committee on Human Rights and the Constitution Committee, I am not persuaded that the consultation exercise envisaged by Amendment 62 is necessary.

I hope that, with that somewhat lengthy explanation, and having had this opportunity to debate this important topic, the noble Baroness will be content to withdraw her amendment for the time being.

[Baroness Jones of Moulsecoomb]

I thank the Minister and beg leave to withdraw the amendment.

Amendment 62 withdrawn.

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[Lord Paddick]

I agree with the Minister on the civil liberties issue. The other problem is that taking a DNA sample would assist in identifying who the individual was only if that person’s DNA had already been taken and was on the database. I do not think we have many Russian spies’ DNA that we would then be able to use to identify that they were hostile actors by taking a DNA sample from them. It is only a small proportion of the UK population who have been arrested and convicted and whose DNA would therefore appear on the database. So, in addition to the infringement of civil liberties of completely innocent people having to provide DNA samples, the proposed measure would be of limited benefit because of the limited nature of the existing DNA database against which the DNA sample could be compared.

[Baroness Jones of Moulsecoomb]

I support the Minister and the noble Lord, Lord Paddick. It is quite rare for me to agree with the noble Earl so I thought I would take this opportunity to do so. More importantly, there would be widespread condemnation of this particular move; it would be deeply unpopular. It would be hard enough getting ID card legislation through without a lot of resistance, and this idea would be even tougher.

[Lord Marlesford]

I have listened to what people have said. I think the Minister made the important point here: we still have a hang-up about DNA samples. I agree that perception is what matters, and it may be that I am slightly ahead of public perception, but I do not see any difference between being asked to give a DNA sample for identification and almost any other method of doing so. If it involved taking blood or something then that would be another matter, but nowadays DNA can be taken by a simple swab. It is self-evident that if you do not have matching DNA then that does not take you very far, but there would be many circumstances in which, having suspected someone, having their DNA might at some stage be useful. I do not accept the general point that there is something sinister about DNA that means we should not use it; I think it should be used a great deal more than it is. Having said that, I beg leave to withdraw the amendment.

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Moved by

[Baroness Jones of Moulsecoomb]

68: Schedule 3, page 39, line 41, at end insert—
“( ) A person may refuse a request for documents or information under sub-paragraph (1) where—(a) the information or document in question consists of journalistic material within the meaning of either section 13 of the Police and Criminal Evidence Act 1984 or section 264(1) to (4) or (6) and (7) of the Investigatory Powers Act 2016; or(b) the information or document in question is subject to legal privilege.”

[Baroness Jones of Moulsecoomb]

My Lords, I spoke earlier in Committee about my opposition to the whole of Schedule 3. I shall now speak to my Amendments 68 and 69. I declare an interest: I have a journalist daughter and know many of her friends, and they could be very adversely affected by this part of the Bill because it is about the protection of journalistic material.

Because Schedule 3 of the Bill allows border officials to question, search and detain anyone at the border without any suspicion whatever, people carrying journalistic or legally privileged material might want to refuse to hand over that material without committing a criminal offence. Without Amendment 68, journalists and lawyers could be forced to hand over sensitive and confidential material at the border. This surely cannot be the Government’s intention in drafting the Bill, and it surely will not be Parliament’s will to allow such a scheme to become law.

Without Amendment 69, journalistic material confiscated at the border, including information about confidential sources, could be exposed in open court as evidence. This would be an enormous erosion of press freedom and the sacrosanct duty of journalists to protect their sources. It would have a chilling effect on individuals coming forward with information which is in the public interest. I have myself been approached by whistleblowers who are well aware of the severe consequences that await them. We must not add to the burden that deters people from coming forward with information about corrupt practices or wrongdoing.

As drafted, Schedule 3 would put sources in danger of losing their job, their liberty or even their life. The Government would never allow their confidential intelligence sources to be exposed in this way, and I ask the Minister to explain why journalists’ sources should be treated any differently.

Previously in Committee, the Minister declined to put specific protections in law for journalists on the basis that it was too broad a term. This is why my amendments and Amendment 71 in the name of the noble Earl, Lord Attlee, use the existing definitions in the Police and Criminal Evidence Act and the Investigatory Powers Act. I hope that this approach is more palatable to the Minister and could be adopted at Report.

I omitted to mention that the noble Earl, Lord Attlee, is unable to be here today. I said that I would say a few words on his behalf, and he said that he was sure that I could find the right ones—so let us hope that I have.

My amendments are essential to protect press freedom and the confidentiality of sources. I hope that the Minister will listen to the concerns and bring forward amendments to fix the problems highlighted. I beg to move.

[Lord Rosser]

We have Amendment 69A in this group. The purpose of our amendment is to provide that, where an examining officer wishes to retain an article which the owner alleges contains confidential material, the examining officer may not examine the article and must immediately send the article to the Investigatory Powers Commissioner. The commissioner must then determine whether the article contains confidential material and may then authorise the examination and retention of the article under the provisions of the Bill or return it to the examining officer if it is not confidential. This would provide for the independent oversight of confidential material, as required by the Miranda judgment.

I appreciate that what the Government propose is not in line with our amendment. However, we now have the code of practice, which states:

“If during the process of examining an article it becomes apparent to the examining officer that there are reasonable grounds for believing that the article consists of or includes items that are confidential material, the examining officer must cease examining”,


the item. It also states:

“An examining officer should take reasonable steps to review the credentials of an examinee to verify any such claim when considering whether there are reasonable grounds to believe that a specific item is confidential material”.


It would be helpful if the Minister could respond to my points, as the purpose of my amendment is primarily to find out how it is intended that the process will operate—although we would obviously be extremely grateful if the Government decided to accept the amendment. If an examining officer who reviews the credentials of an examinee feels that the credentials stand up, will they still be able to examine material which they think may be confidential? If the examinee has said that there is confidential material and the examining officer is satisfied with their credentials, is that enough to prevent the item being examined, or would the officer still be expected or able to examine an item to ascertain for themselves that it contains what appears to be confidential material?

In other words, on checking or reviewing the credentials of the examinee, if the examining officer is satisfied, does that mean that there is no question of the examining officer looking at any material that the examinee maintains is confidential, but instead they have immediately to send it to the commissioner to decide whether it should be retained?

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[Baroness Williams of Trafford]

My Lords, I hope that I can reassure noble Lords with my explanation, but I thank those who have raised their concerns about the use of Schedule 3 powers to compel a journalist to reveal their material, including confidential material.

In drafting the Bill, we have been alive to such concerns and at pains to ensure that adequate safeguards, which I think noble Lords are talking about, are in place to protect confidential material, including confidential journalistic material. As the noble Lord, Lord Rosser, pointed out, the new retention powers in respect of confidential information require the authorisation of the Investigatory Powers Commissioner, who has to be satisfied that certain conditions are met before granting that authorisation.

In earlier debates on the powers under Schedule 3, I explained that a number of foreign powers and hostile actors are becoming even more bold and inventive in their methods. For example, as I outlined earlier, intelligence officers and their agents actively use the cover of certain professions, including journalism, the law and others. To ensure that our police officers are equipped to detect, disrupt and deter such activity, it is critical that they are able to retain, copy and examine documents or other articles that may include confidential journalistic or legally privileged material. That is why Schedule 3 introduces new powers and mechanisms to allow for such action to be taken where the article, which may include confidential material, could be used in connection with a hostile act or to prevent death or significant injury.

I recognise that the protection of journalistic material held by any individual examined under ports powers is a sensitive matter and one where we clearly need to get the safeguards in the Bill right. I want to be clear that the powers in Schedule 3 are not intended to disrupt or impede the vital work of journalists in any way. Journalistic freedoms of speech and expression are the absolute cornerstone of our democracy, which should be protected in the exercise of any police powers. The provisions in the Bill, however, are aimed at those who seek to abuse our legal frameworks to put our national security at risk and who are often trained to do so.

Amendment 68 would allow a person to refuse a request for documents or information where the information or documents in question consist of journalistic material, as defined by the Police and Criminal Evidence Act and the Investigatory Powers Act, or are subject to legal privilege. In practice, this would prohibit the examining officer from verifying that the material in question was confidential and would require the officer to take the examinee at their word. Amendment 69A is similar and, while it does not quite go as far as allowing a person to refuse to provide requested documents or information, it would prohibit an examining officer from verifying that that material was confidential. Instead, it would be for the IPC to determine the question.

Restricting powers in this way would be problematic, particularly where the examinee is a trained hostile actor. Amendment 68 would provide a ground for a person to refuse to hand over documents or information simply by claiming that the material is journalistic or legally privileged. Furthermore, it would mean that the examining officer could not seek to examine such material, where there was a need, by retaining the material and applying for IPC authorisation. Amendment 69A is also concerning, as it would impose a restriction on the examining officer such that they were unable to establish their own reasonable belief that the article consisted of confidential material. The police have a duty to protect our citizens and prevent crime. They cannot be expected to take at face value the word of someone they are examining who, in some cases, will be motivated to lie.

It is important to note that there are additional safeguards to govern the retention of property under Schedule 3 that consists of, or includes, confidential material. The IPC will authorise the retention and use of the material only if satisfied that arrangements are in place that are sufficient for ensuring that the material is retained securely, and that it will be used only so far as is necessary and proportionate for a relevant purpose—that is, in the interests of national security or the economic well-being of the United Kingdom; for the purposes of preventing or detecting serious crime; or for the purposes of preventing death or significant injury.

The Government are of the view that it is reasonable to expect that an examining officer will need to review material, to conclude one way or the other that specific items are, or include, confidential journalistic or legally privileged material. That being said, the draft Schedule 3 code of practice is clear:

“If during the process of examining an article it becomes apparent to the examining officer that there are reasonable grounds for believing that the article consists of or includes items that are confidential material, the examining officer must cease examining and not copy these items unless he or she believes there are grounds to retain it under either paragraph 11(2)(d) or (e)”.


The provisions in paragraph 11 of Schedule 3 contain the retention powers involving oversight by the IPC and the safeguards that I described earlier. I acknowledge that handling confidential material requires vigilance and discretion to safeguard it against unnecessary examination or retention, which is why the mechanisms under paragraphs 12, 13 and 15 of Schedule 3 in relation to these retention powers require prior authorisation of the IPC to be sought, save in exceptional circumstances, before an examining officer is able to examine such material.

We are therefore confident that the safeguards provided for in Schedule 3 and the associated draft code of practice are sufficient to protect the work and privacy of legitimate journalists and lawyers, and are consistent with the Court of Appeal’s judgment in the Schedule 7 case of Miranda that,

“independent and impartial oversight … is the natural and obvious adequate safeguard”,

in examining cases involving journalistic material.

Amendment 69 would extend this bar to information and documents where the material falls under the definition of journalistic material, as defined by the PACE and IP Acts. Such a position would go much further than safeguarding the examinee against self-incrimination. By extending the statutory bar to cover information or documents that are considered journalistic material, Amendment 69 could prevent evidence of a hostile act being used in criminal proceedings where it had been acquired through the legitimate examination of confidential material on the authorisation of the IPC. This would significantly undermine the ability of the police and the CPS to prosecute hostile actors who have used journalistic cover to disguise their criminal activities and been uncovered through the Schedule 3 examination powers.

In answer to the noble Lord, Lord Rosser, an officer can proceed to verify that material is confidential, subject to IPC authorisation, and look at confidential material, even if satisfied of the credentials of the journalist who might nevertheless be a hostile state actor.

Amendment 71 concerns the definition of “confidential material” in paragraph 12(10) of Schedule 3 and the associated protections. For the purposes of Schedule 3, confidential material adopts the definition of the IP Act. This definition covers, for example, journalistic material and communication that the sender intends the recipient to hold in confidence. As I explained, this material would fall under the definition of confidential material. It cannot be used or retained by an examining officer unless authorised by the IPC.

With those explanations—I am sorry they were so lengthy—I hope that the noble Baroness will feel happy to withdraw her amendment.

[Baroness Jones of Moulsecoomb]

My Lords, I have listened very carefully and will reread the Minister’s arguments tomorrow. I do not feel entirely comforted. I hope that the Government feel that this has been a useful debate in terms of perhaps adjusting their position. I very much hope that that will happen. While we talk all the time about hostile actors and people who could lie, we also rely so much on the individual who is stopping them, and on their discretion and judgment. When there is so much leeway for these people, there are opportunities for wrong decisions that could impact quite heavily on some people. I beg leave to withdraw my amendment.

Amendment 68 withdrawn.