National Security Bill

Baroness Ludford Excerpts

Committee stage
Wednesday 21st December 2022 Lords Chamber

[Lord Coaker (Lab)]

My Lords, my noble friend Lord Hacking must make sure that he is here on the Wednesday we come back; I am sure that we will start with the debate he referred to, which will probably be quite a significant and long one. Just to give him time and to get my retaliation in first, I tell the Minister that I have read the relevant bit of Schedule 6—paragraph 1(2)—which he will say makes my amendment irrelevant because it is covered there. I know that; I have put this down so that we can have a debate on it.

In moving my Amendment 60, I recognise the very important issues raised by Amendments 61 and 63 from the noble Baroness, Lady Ludford. We are returning to Schedule 6, which deals with detention under Clause 25, “Arrest without warrant”, which is a significant power. We accept that there is clearly a need for individuals to be detained under the offences in the Bill, but I have a number of questions to seek clarification from the Minister—hence my Amendment 60.

Committee allows us to look in detail at various sections and parts of the Bill and seek clarification on what the Government mean by certain phrases. That is of particular interest because many people read our deliberations and they are often used in the courts to try to inform judgments. I hope the Government will bear with me if some of my questions appear to have obvious answers.

Clause 25(1) states:

“A constable may arrest without a warrant”.

Is that only a constable of a police force, not any other organisation? Is it all UK police forces? Does it include other forces, for example a constable of the MoD police, the British Transport Police or the Civil Nuclear Constabulary? Are there any special arrangements for Northern Ireland, given that the Bill says that any officer of any police force can use this power in any part of the United Kingdom? If they are not in uniform, do they have to produce their warrant to show who they are?

In Clause 25(6), the original detention of 48 hours can be extended by a review officer. How many times can this be reviewed and for how long can someone be detained? Is there a maximum limit or can they be renewed on multiple occasions? At what point would there be any judicial involvement in the process to agree any continuing detention beyond the original 48 hours?

Can the Minister confirm that my Amendment 60 is not needed, as I said at the beginning, because paragraph 1(2) of Schedule 6 says that detention has to be in

“land or a building in the United Kingdom which is owned … by a police force.”

Does this include all types of police force? Would it include the buildings and lands of the British Transport Police, the Civil Nuclear Constabulary, the MoD police, et cetera?

Can the Minister also confirm on the record that no person arrested without warrant under Clause 25 can be held in any UK buildings or land in any security service building outside the UK, any Armed Forces facility or land outside the UK, or any other such facility? There is a need for some clarification here, in the sense that UK military bases are sometimes referred to as “sovereign territory”. Does that imply that they are in the UK and could therefore be used, even though they are not within what one would normally assume to be the borders of the United Kingdom?

Can the Minister confirm or otherwise whether Clause 25 can be used outside of the UK to arrest a UK national who is believed to be involved in a foreign power threat activity within the United Kingdom? If so, how does that actually work? If a UK national is arrested abroad because of the threat they have posed through an activity within the United Kingdom, how is that person then detained and brought back, or can the offence not be used against a UK national who is abroad even if they are believed to have committed an offence when they were within the United Kingdom?

I will leave the noble Baroness, Lady Ludford, to speak to her amendments, but they address the idea that, in a democracy, the proper treatment of detainees must not only be done but be seen to be done. Which body or independent reviewer is or will be responsible for oversight of the operation of Clause 25 and Schedule 6? As I have said, these Benches accept the need for such arrangements, but clarity of purpose and transparency are essential when dealing with issues of arrest and detention. Our democratic traditions demand that we do so in this area, as much as anywhere else. With that, I beg to move.

[Baroness Ludford (LD)]

My Lords, I thank the noble Lord, Lord Coaker, for introducing this group. As he noted, I will speak to Amendments 61 and 63 in my name, which are inspired, as usual, by the report of the Joint Committee on Human Rights. My amendments relate to Schedule 6, which applies the conditions for arrest and detention without warrant under Clause 25.

We are concerned that some of the protections in the schedule are not adequate to guard against a descent into somewhat arbitrary detention. The initial period of detention permitted is 48 hours, and there is supposed to be a review at least every 12 hours. There can then be a judicial warrant for up to seven days after the initial arrest, subject to a further extension up to a total of 14 days. Although that judicial part has certain guarantees, there are still elements which cause us concern, including when the detainee and their legal representative may be excluded from parts of the hearing, or an application may be made to withhold certain information relied upon by the authorities. To be denied sufficient information to counter any claims made against them or to be excluded from the hearing are serious moves. Obviously, these themes have been encountered before in anti-terrorism legislation, but we are concerned, for instance, that the use of detention could be based on undisclosed or closed material where the concern relates solely to proceeds of crime.

My Amendment 61 is about where there could be a power to delay allowing the detainee to have a named person—a family member or a friend, for instance—informed of their detention and having the right to consult a solicitor, including where the officer has reasonable grounds for believing that the person has benefited from criminal conduct or where the recovery of property of value would be hindered by allowing access to a solicitor or notification to a named person. These are very serious impediments to accessing basic rights for a person detained without charge. The JCHR feels that, while these restrictions may be proportionate if necessary for imperative reasons of national security, such as to prevent immediate harm to persons, the case is less compelling where the objective is solely asset recovery. Therefore, Amendment 61 aims to delete paragraphs 9(4) and 9(5)—I hope they are still paragraphs 9(4) and 9(5)—of what is now Schedule 6; the moving story which has tripped up other noble Lords also applies to schedule renumbering.

[Lord Hacking (Lab)]

My sympathy lies with you.

[Baroness Ludford (LD)]

And mine with you. I look forward to the debate on Clause 28.

The Government’s response, which we finally received, does not seem very strong. It says:

“The Government considers that, if the matters relate to the proceeds from crime from state threats activity, in most cases this will be highly sensitive information and every effort should be made to prevent the suspect from having any knowledge that our law enforcement agencies are aware of where these proceeds are located.”


I may have missed something, but while the whole Bill is about national security, I am not sure that the condition that the proceeds from crime arise from state threats activity is there. Maybe it is in Clause 25. I ask the Minister to follow up on paragraph 88 of the Government’s response to clarify whether I am being insufficiently on the ball and whether that further condition that the proceeds of crime arise from state threats activity is there. Otherwise, it does not seem to us pertinent that you should be able to withhold information, stop access to a solicitor and stop allowing people to let others know where they are if it is specifically about asset recovery. Important though that objective undoubtedly is, this is a National Security Bill.

On Amendment 63, the contention I make, inspired by the JCHR, is that the reviews of detention without warrant should be able to be postponed only for well-defined and justified reasons. At the moment, it can happen where

“no review officer is readily available”

or

“it is not practicable for any other reason to carry out the review.”

That seems to us illegitimately broad.

In their response, the Government give an example, saying

“these provisions ensure a wide range of instances”—

that is certainly true—

“which might result in a review not being able to be carried out are covered – for example, if the suspect is undergoing medical treatment. It would be impossible to outline every scenario that may impact a review … therefore this approach”,

which I would describe as wide,

“is preferable.”

The example of a detainee undergoing medical treatment does not cover or justify the “no review officer is readily available” reason. It might fall under the other arm—“it is not practicable for any other reason to carry out the review”—if the detainee is ill and is being supported with medical treatment. However, postponing a review because no review officer is readily available is based on a staffing matter; the detainee really should not be put in this position because somebody—the Home Office, the MoJ or whoever—is unable to supply a police officer or whoever else is in charge to carry out the review.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I thank noble Lords for their contributions. I speak first to Amendment 60, tabled by the noble Lord, Lord Coaker. First, I thank him very much for the frank way in which he posed his questions, and I am glad to say that I can answer the first tranche of his questions simply with yes. I will set out in more detail why that is.

The amendment relates to the power for the Secretary of State to designate sites where those arrested under Clause 25 can be detained. There was a lively debate on this topic in the other place, which led to the Government carefully considering this issue and amending the Bill to provide for the sites to be designated only if they are in the UK. As the noble Lord observed, this provision can be found at paragraph 1(1) of Schedule 6, and I can confirm that is indeed the case. That states that the power

“may be exercised only in relation to land or a building in the United Kingdom which is owned or controlled by a police force”—

so that is any police force.

The Government consider that the amendments to Schedule 6 in the other place have sufficiently clarified the need for and the intention behind this power and I understand that this satisfies the noble Lord’s concerns regarding where the sites may be located. Just to confirm, the power therefore extends to the MoD Police, the British Transport Police, ,the Civil Nuclear Constabulary, et cetera, and there are no special arrangements in relation to Northern Ireland.

Clause 25(6) confirms that a 24-hour detention period can be extended by a reviewing officer to a maximum of 48 hours. The first review is as soon as reasonably practicable after arrest and then this must be reviewed at least every 12 hours, obviously up to the maximum.

The noble Lord mentioned arrest abroad. UK constables do not have the power of arrest abroad and the powers therefore do not therefore extend to Armed Forces police abroad. Any relevant people would be arrested by local officers and extradition would be arranged in the conventional way.

I will return to the topic of oversight later but I can confirm that His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services has a statutory role in inspecting all police forces under Section 54 of the Police Act 1996, about which the noble Lord knows. That body regularly inspects all aspects of policing, including places of detention. Given that any sites designated under this power will be under the control of the police, they would automatically be subject to their inspection, and the Government therefore believe that there is no need to include a further statutory inspection regime as this will be duplicative.

I can confirm that it was never the Government’s intention to designate sites located outside the UK. This amendment clarifies the policy position. In Northern Ireland, the Police Service of Northern Ireland is subject to annual statutory inspection by His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services under Section 41. Similarly, in Scotland, His Majesty’s Inspectorate of Constabulary in Scotland provides independent scrutiny of Police Scotland and the Scottish Police Authority. We do not consider it reasonable to interpret this to include locations under the temporary control of a police force, such as a crime scene.

Amendments 61 and 63 in the name of the noble Baroness, Lady Ludford, are to Schedule 6. They seek to implement two of the recommendations from the Joint Committee on Human Rights’ report on the Bill. The first amendment seeks to remove the ability for the police to delay a suspect’s access to certain rights while being detained under the arrest power in the Bill for solely asset recovery reasons; I will address this first, if I may.

If the police have intelligence to suggest that a detained suspect has property that is connected to suspected criminal activity—for example, cash—and might use their permitted communication with a named person or their solicitor to ask them to take steps to move cash or property on the suspect’s behalf, to hide evidence or otherwise ensure that the asset cannot be seized by the police, it is clearly right that the police should be able to delay that communication taking place while they seize those assets, gather associated evidence and ensure that crime does not pay. I believe that the safeguards written into the Bill as drafted are sufficient when delaying these rights. The direction to delay must be given by a senior police officer, who must have reasonable grounds to believe that allowing access to these rights at that point in the investigation will hinder recovery of the property.

Additionally, it is written into the legislation that the suspect must be allowed to exercise both these rights within the first 48 hours of detention, so there will not be a situation where a suspect is detained for longer than this without exercising these rights. More details on this process will be contained in the code of practice made under this part of the Bill, including the fact that any delay in these rights must be recorded in the custody record and the suspect must be informed of the decision. Similar provisions can be found in PACE Code H, which operates for detentions under the Terrorism Act 2000.

I turn to the noble Baroness’s second amendment—

[Baroness Ludford (LD)]

I apologise for interrupting but, before the Minister moves on to Amendment 63, can he explain something? It may just be my inability to see it but, in their response, the Government refer to

“proceeds from crime from state threats activity”.

I have not been able to find that phrase in the text of the Bill; it just refers to how there can be a delay in informing a family member or notifying a solicitor if

“the detained person has benefited from their criminal conduct”

and the recovery of the asset “will be hindered by” those rights being exercised. Where does it refer to proceeds of crime arising from state threats activity, so that one can see it being brought within the national security purview? I cannot see that in the text but I am sure that the Minister can point out how the response is justified on that point.

[Lord Murray of Blidworth (Con)]

Forgive me; the answer is that, in the text of the Bill, this is not limited to state threats proceeds of crime. The operation of the Bill is as I just described in my speech and, as I have already said, its safeguards are built into the statute itself.

The second amendment to Schedule 6 tabled by the noble Baroness seeks to remove certain circumstances whereby a review of a suspect’s detention may be postponed. There are various reasons why a review may need to be postponed. For example, the suspect may be receiving medical treatment and be unable to make representations on their continued detention to the review officer. It may be that there is a delay in the review officer arriving at a custody suite, or they may be reviewing another suspect’s detention if multiple arrests have been made in a short period.

It is impossible to predict all the possible circumstances and make specific provision for them in the legislation. The legislation does not provide for the review to be permanently postponed. It is required to be carried out as soon as possible, but this proposal provides for some operational flexibility. The code of practice—which, as I have said, the Government will publish in due course—will provide further information on reviews of detention, and we will state the requirement for any postponement of detention reviews to be recorded on the custody record. In the meantime, similar provision again can be found in the Police and Criminal Evidence Act code of practice code H, which operates for detentions under the Terrorism Act 2000.

With that, I conclude.