Counter-Terrorism and Border Security Bill

Baroness Williams of Trafford Excerpts

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

Moved by

[Baroness Williams of Trafford]

60: Clause 21, page 22, line 4, leave out from “borders” to end of line 7

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

My Lords, the government amendments in this group make a number of necessary changes to the provisions in Schedule 3 governing the retention of property and the power to make and retain copies of documents and other items.

The new powers under Schedule 3 have been introduced to strengthen the tools of our law enforcement officers to tackle the harmful activities of hostile actors. Over recent years, we have seen a number of foreign powers demonstrating a significantly increased risk appetite regarding the conduct of their intelligence officers and agents. They seek to acquire and pass on property or information that would damage our national security. This could include highly classified protectively marked UK Government material, prototypes of UK defence infrastructure and hardware, or even the contact details of persons employed by our secret intelligence agencies. The Committee will appreciate that, to assert themselves in this way, foreign intelligence officers or those acting on their behalf are known to actively use the cover of certain professions; this includes journalists, lawyers and others. There is, therefore, a national security imperative for the police to be able to retain, copy and examine articles which may also include confidential journalistic or legally privileged material.

In response, Schedule 3 introduces new powers that would allow an examining officer to retain, examine, copy and potentially destroy a person’s property, including confidential material, where the officer believes it could be used in connection with a hostile act or to prevent death or serious injury. Once a person’s property has been retained under these powers, no further action can be taken without the authorisation of the Investigatory Powers Commissioner. The retention process requires the commissioner to consider representations made by the owner of the article, the police and the Home Secretary before coming to a decision.

Section 3 of the draft Schedule 3 code of practice, which I recently circulated to noble Lords, outlines the steps and timings for this process, which have been designed to strike a balance between affording the examinee an opportunity to defend possession of their property with the operational need to retain, use or potentially destroy it. The entire process from the point at which the property has been retained, to the point at which the commissioner authorises further action may take as long as four weeks but could possibly take longer as a result of delays or appeals.

In the vast majority of cases, this process will be the right one, as there will not be an urgent need to examine the property and the immediate risk will have been mitigated by dispossessing the individual of the article in question. In some cases, however, these timeframes will not be acceptable, in particular where urgent action is needed to prevent death or significant injury or a hostile act. An example of such a situation might be where hostile agents are trying to leave the UK with information detailing live UK intelligence agency operations, capabilities and employees. Stopping an agent with this material and being able to access it immediately will give the police a greater chance of determining whether other hostile operatives are in possession of the material and which UK intelligence officers or agents are potentially at risk of exposure. In such a case, an expedited process would allow an urgent decision to be taken on whether the property should be returned to the individual, in parallel to examining the property to mitigate the immediate threat.

Amendment 77 would provide for this expedited process by allowing the examining officer, with the approval of a senior officer not below the rank of superintendent, to examine or copy the property, including confidential material, before a decision has been made by the commissioner. This mechanism would require authorisation to be given or withheld by the commissioner, or a delegated judicial commissioner, after the event. Should the commissioner withhold that authorisation, he would have the power to direct that the article be returned to the examinee and the destruction of any information taken from it, including copies. As with the existing process provided for in the Bill, the decision of the commissioner will be taken after consideration of any representations made by affected parties and there will also be an opportunity to appeal that decision where it has been delegated to a judicial commissioner.

This urgency procedure has been modelled on similar provisions in the Investigatory Powers Act in relation to interception warrants and has been set out in further detail in Section 3 of the draft code of practice. We had considered with operational partners and the IPC whether an expedited prior authorisation procedure could be put in place but have concluded that, while the process could be truncated, the requirement to receive and consider representations is such that any fast-track prior authorisation procedure would still take some days. I want to reiterate that these powers would only be used in the most urgent circumstances and subject to the safeguards that I have described. The consequences of misusing the powers are clear—the commissioner may direct the destruction of any information acquired through use of the property.

I now turn to Amendments 78 to 82, which concern similar retention powers for copies that consist of, or include, confidential material. These amendments aim to make two key changes. First, as with Amendment 77, which I have just described, they would provide for an urgent process for the retention and use of copies that consist of, or include, confidential material. Secondly, they will ensure that the non-urgent process for retention of copies works in the same way as the non-urgent retention process for a person’s property.

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[Lord Rosser (Lab)]

Perhaps I may add one further question to those raised by the noble Baroness, Lady Hamwee. It relates to the urgency procedure. The noble Baroness has already asked who makes the decision on what is or is not urgent, but can we also have some feel, presumably based on the experience of the agencies concerned, of how frequently they expect to use this procedure?

[Baroness Williams of Trafford]

My Lords, the kind of situation in which we can expect the urgency provisions to be used possibly goes to the question asked by the noble Lord, Lord Rosser, about how frequently they are used. It is difficult for me to talk about the average frequency in any week, year or other given timescale, but clearly there is a spike nature to some of these events. Therefore, I hope that the noble Lord will accept that I cannot give a definitive answer to his question. However, basically the provisions will be used to disrupt a live threat—for example, where a hostile agent tries to leave the UK with information detailing live UK intelligence agency operations, capabilities and employees. Stopping an agent with this material and being able to access it immediately will give the police a greater chance of determining whether other hostile operatives are in possession of the material and which UK intelligence officers or agents are potentially at risk of exposure. In the aftermath of something like the Salisbury event, Schedule 3 powers would provide the police with additional tools to stop and question persons with potential links to a hostile state or its actors who might have knowledge of or involvement in the attack. In such a scenario, it would be critical to analyse their devices and material at speed in order to understand the extent to which they were engaged in hostile activity.

The noble Baroness, Lady Hamwee, talked about the timeframe. Obviously, the urgency procedures would be used only where there was an immediate risk of death or significant injury or of a hostile act being carried out. In such a case, the police must be able to act with immediate effect. However, on the question of whether we could have done it the other way round, with a prior authorisation procedure being put in place, the answer is that that would still take some days. I hope that that answers the question.

The point was made that the timeframe for the urgency process—that is, within 24 hours—makes it very difficult to make representations to the commissioner. I was asked whether that is enough time or whether it should be longer. The timescales for the urgency process aim to strike a balance between giving the property owner enough time to make representations and ensure that the police are not able to use the property without judicial authorisation with the decision having to be taken by the commissioner within three days, and, by the same token, conceding that it is likely the property owner will want a decision to be taken as quickly as possible to prevent the police using their property without a decision by the commissioner. The draft Schedule 3 code of practice, which is available online, makes it clear that the examining officer must provide a notice that will explain to the property owner that they are invited to make representations to the commissioner, including contact details and the associated timescales.

Did the noble Baroness ask me what happens if the property owner cannot be contacted?

[Baroness Hamwee]

I asked about what is “reasonably practicable”.

[Baroness Williams of Trafford]

She did, and I have the answer here—as if by magic. Paragraph 63 of the draft Schedule 3 code of practice is clear that, where the examining officer retains a person’s property beyond the period of examination, the officer should ask the person how they would prefer to be contacted regarding the status or return of their property. The officer will typically seek to acquire the phone number, email address or postal address of the examinee. However, under the urgency process, the examining officer would attempt to use the details provided by the examinee to make contact and to provide the information. This would typically include attempting to call the person a number of times, as well as sending them information by recorded post and email. If the person is at the known UK address then the officer from the local force could be tasked to attend the address to deliver the relevant information in person. Obviously, however, it would not be reasonably practicable for the police to take this approach on every occasion or where the person is abroad. It would not be reasonably practicable for the examining officer to make contact with the person where they have provided false contact details. I hope that satisfies the noble Baroness.

[Lord Rosser]

I appreciate that the Government cannot stand at the Dispatch Box and announce that this will be used X number of times a week, a month or a year—of course I understand that. But is the provision there because of previous experience that there is a gap in the arrangements, for which we have had to pay a price because we have not been able to enact the procedure, or is it there because there is a feeling that there might arise a need for such a procedure in the future?

[Baroness Williams of Trafford]

There are several answers to that. Obviously, the Terrorism Act 2000 needs updating. The Salisbury attack showed us the need to update our laws in this regard, and clearly the way that technology and other things have moved on creates a gap in our abilities because they have not been provided for in previous legislation.

Amendment 60 agreed.

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[Lord Paddick (LD)]

My Lords, I support the noble Baroness, Lady Jones of Moulsecoomb, in opposing the additional powers conferred by Schedule 3, for some of the reasons she has just mentioned. We have already debated whether the powers in Schedule 7 of the Terrorism Act are used appropriately in every case. From complaints made to me, I believe that there is increasing concern that Schedule 7 powers may be being used arbitrarily—particularly against black and other ethnic minority passengers—resulting in missed flights with no compensation.

As the briefing provided by Liberty suggests, Schedule 3 covers a potentially vast and uncertain range of behaviours. Paragraph 1(1) refers to,

“a person who is, or has been, engaged in hostile activity”.

As the noble Baroness said, the Bill defines hostile activity as any act which threatens national security, the economic well-being of the UK or which constitutes a serious crime, where the act is,

“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.

However, the person need not be aware that they are engaged in hostile activity, and the state for which the hostile act is being carried out need not even be aware that the hostile act is being carried out. As the Bill is worded, someone from Paris or Frankfurt travelling to the UK to encourage UK businesses to relocate to their city in the face of Brexit will be caught by these provisions, because his mission would threaten the economic well-being of the UK and would be in the interests of another state—France or Germany. In a later group, the noble Lord, Lord Anderson of Ipswich, has an amendment in relation to what the definition of hostile act should be, and we will return to this subject then.

This schedule and the powers it contains, according to the Home Office briefing we were provided with, is supposed to be a response to the attempted assassination of Sergei and Yulia Skripal, yet almost all commentators agree that this was an act of terrorism already adequately covered by Schedule 7 of the Terrorism Act. Perhaps the Minister can give an example of a hostile act that has been committed against the UK that was not an act of terrorism.

The fact sheet provided by the Home Office suggests that these provisions are needed because:

“The UK faces a sustained threat from hostile actors seeking to undermine our national security in a wide variety of ways”.


Can the Minister explain how every and all acts that threaten the economic well-being of the UK are a threat to national security, and why the wording used in the Investigatory Powers Act 2016 is not used here—for example, with regard to the issuing of bulk interception warrants under Section 138(2) of the 2016 Act, where the issue of a warrant has to be,

“in the interests of the economic well-being of the United Kingdom”,

but only so far as those interests are relevant also to the interests of national security?

[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.

[Lord Carlile of Berriew (CB)]

I am grateful to the Minister for giving way. If somebody is coming through a port of entry and their passport is examined, and in the moment of examination it becomes apparent that there is something about the passport that does not look quite right—for example, there may be very few entries in it whereas the person concerned looks to be a sophisticated traveller—would not such a situation fall well short of being reasonable suspicion but be a proper exercise of the ability of good officers to use intelligence applied in the moment?

[Baroness Williams of Trafford]

The noble Lord provides a very good example. It might not amount to reasonable suspicion, but there would certainly be a pattern of activity or information which allowed that officer to stop the individual.

[Lord Paddick]

Will the Minister answer my question about why the wording from the Investigatory Powers Act 2016 is not used? It attaches to the consideration of the economic well-being of the United Kingdom the further consideration of the interests of national security to differentiate between acts such as I described, of envoys from Paris and Frankfurt trying to steal UK business, and the example given by the Minister of somebody looking to target the electricity infrastructure.

The Minister said that the powers could not be used to target people on the basis of race and religion because it would be illegal. In which case, can she explain why, in one police force area, you are 25 times more likely to be stopped and searched if you are from a black or minority ethnic background than if you are white? Why is that happening when it is illegal?

[Baroness Williams of Trafford]

Police stop and search is very often intelligence based. There may be areas where there is a higher than average proportion of black people. Quite often, some of the gang activity is black on black, but you cannot be stopped because you are black.

[Lord Paddick]

The force I am quoting from is Dorset, if that helps the Minister.

[Baroness Williams of Trafford]

That does help me, and of course it is where the noble Baroness, Lady Jones, lives. The noble Lord makes a very good point in that instance. As for envoys trying to steal business, there is nothing wrong with healthy business competition, but undermining the economy, through critical infrastructure, is entirely different. He also asked about the IP Act and I will write to him on that. The answer just handed to me contains a quotation from the noble Lord, Lord Anderson, who wrote:

“If Schedule 7 is being skilfully used, therefore, one would expect its exercise to be ethnically ‘proportionate’ not to the UK population, nor even to the airport-using population, but rather to the terrorist population that travels through UK ports”.


That is a far more eloquent description of the proportionality. I will write to the noble Lord about the IP Act.

[Baroness Manningham-Buller (CB)]

It may help the Committee to focus on this as a counterespionage issue. In the years that I have been here we have had, as I said at Second Reading, endless debates and legislation on terrorism. We are now talking about something that was part of my career 30 years ago. The noble Lord, Lord Paddick, rightly suggests that the poisoning of the Skripals was attempted murder and a serious crime, but there is a range of hostile activity, much of which has been mentioned by the Minister, which is potentially seriously damaging to the UK. At one end, obviously, there is the Skripals and coercive repatriation, but before that there is the collection of information, the targeting of dissidents, collecting really important stuff which is sometimes difficult to detect. In answer to the noble Lord, Lord Rosser—which I should not do—I suspect that this will not be a very frequent occurrence, but as we heard from my successor but one in MI5, this is an increasing and serious problem. This is an attempt by the Government to address a counterespionage issue.

I have a commitment this evening which may mean that I cannot stay to the end of this important debate, but I want to say at this stage that there is also the problem that there is quite a lot of this activity which is not serious crime. Under the Official Secrets Act—which, a bit like me and possibly some of your Lordships, is old and creaky—that is not adequately covered. I was encouraged to see that the Prime Minister suggested in the House of Commons on 5 September that some espionage legislation was necessary to bring this subject up to date. I look forward to seeing whether that materialises, and it would be interesting to know whether it is regarded as a patch, temporary or long-term, to some of those other problems. I fear that the later amendments trying to make this all serious crime will not work, because Official Secrets Act offences get only two years’ maximum, whereas serious crime starts at three years. So there is a gap which we have to attempt to fill.

[Baroness Williams of Trafford]

I thank the noble Baroness for her very experienced and helpful comments. She asked: is this a patch or have we thought further ahead? Obviously, in legislation that we introduce we try to look at future threats, but who is to know what threats may emerge in the future? Clearly, cybercrime is a hugely growing threat to us. But I thank her for those very helpful clarifications. On that note, I beg to move.

Clause 21, as amended, agreed.

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[Lord Anderson of Ipswich (CB)]

My Lords, the provisions relating to access to a lawyer, so far as they replicate those in Schedule 7, which I understand they are intended to do, should be seen against the background of three matters.

First, the maximum period under both schedules is six hours’ detention, which was reduced from nine hours a few years ago and from much longer periods during the Troubles, when, as now, these controls could be applied to travellers between Northern Ireland and Great Britain—a long-standing example of a border down the Irish Sea. Secondly, some of these seaports and airports are remote, and stops, let alone detentions, are so unusual that it would be quite impracticable always to have a panel of lawyers on tap. Thirdly, a fact long considered obvious by the courts, and now enshrined in Clause 16, is that answers given under these compulsory powers may not be used in subsequent criminal proceedings save in the special circumstances outlined for Schedule 7 by the Supreme Court in Beghal and echoed in the Bill.

The last of those factors caused Mr Justice Collins, in the case of CC, in 2012, to doubt whether there was any value at all in the presence of a lawyer during Schedule 7 questioning, since no responsible lawyer could advise their client to break the law by remaining silent. That view was rejected by the Divisional Court in the case of Elosta, which held that:

“The solicitor does have a useful, if limited, role to play”.


The fact remains that there are differences between an examination under Schedule 3 or Schedule 7, on the one hand, and a classic police interview under caution, on the other. It is perhaps also relevant to have in mind that, unless I am mistaken—I am sure I will be corrected if I am—these equivalent powers appear not only under Schedule 7 to the Terrorism Act but under Schedule 8, where detention for much longer periods, of up to 14 days, is contemplated.

Before the Minister thinks I have become too tame, let me please make this point. The operation of any powers to delay or impose limitations on access to legal advice, if they are to continue and to be extended, must be subject to effective independent review. This will only be possible if the reasons are recorded, as is correctly provided for in Schedule 3, and if the number of occasions on which they have been used is published, so that concerned citizens are aware and the independent reviewer can investigate individual cases or draw attention to and explore the reasons for any increasing trend in the use of the powers.

The number of occasions on which access to a solicitor has been delayed for those detained under Schedule 8 is logged meticulously in Northern Ireland and published by the NIO in its annual statistics on terrorism legislation. The latest figures tell us that between 2001 and March 2018, only five persons in Northern Ireland were refused immediate access to a solicitor. However, effective review requires the equivalent figures to be available for the whole country.

I was given to understand four years ago by the Home Office—not for the first time—that this was work in progress, at least where Schedule 8 was concerned. Will the Minister undertake that the statistics relating to delayed and conditional access to a solicitor on the part of those detained under the Terrorism Act and the new hostile state activity powers will be published across the country; and will she tell us whether there is anything she can do to speed things up a bit?

[Baroness Williams of Trafford]

My Lords, I thank noble Lords for their comments on these amendments, particularly the noble Lord, Lord Marks. I hope that by the end of my remarks, your Lordships will be more satisfied about the progress of the Bill in this area.

The amendments in this group raise the important issue of a detainee’s right to access a solicitor when detained under the ports powers in Schedule 3 to the Bill or Schedule 7 to the Terrorism Act 2000. These amendments seek to ensure that where an individual has been detained under these schedules, the examining officer must postpone questioning until the examinee has consulted a solicitor in private.

I am aware that the right to access a solicitor under these ports powers was the subject of much debate as this Bill was scrutinised in the House of Commons, as the noble Lord, Lord Rosser, pointed out. The good speeches at Second Reading in this House served as a fitting reminder that, as new threats emerge, we must continue to be steadfast in our commitment to the principles that our laws and practices are founded on.

The powers under these schedules would afford any person formally detained the right to consult a solicitor, privately, if they request to do so. In the vast majority of cases where an individual has been detained under these powers, there will be no reason to interfere with that right. In exceptional circumstances, however, there may be a need for a more senior police officer to restrict that right where the officer has reasonable grounds for believing that allowing the detainee to exercise his or her right to consult a solicitor privately will have certain serious consequences—for example, interference with evidence or the gathering of information; injury to another person; alerting others that they are suspected of an indictable offence; or hindering the recovery of property obtained by an indictable offence.

I have listened carefully to the debate; it is clear that there are particular concerns about the restrictions under these schedules that would allow an assistant chief constable to require the detainee to consult their solicitor within the sight and hearing of another police officer. Let me explain that the intention behind this restriction is to disrupt a detainee who seeks to exploit their right to consult a solicitor by using the solicitor as a conduit to pass on instructions to a third party, either through intimidation, willing collusion or the use of a coded message, as the noble Lord, Lord Marks, pointed out. Reasonable grounds for belief might develop where prior intelligence indicates that the individual may seek to obstruct an examination, either because they have a history of doing so or they have been trained to evade, frustrate or subvert police examinations. The officer might also witness interactions between the individual and their solicitor that alerts them to the possibility that the detainee is intimidating their solicitor.

Amendments 85, 86 and 88 and the equivalents in the new clause proposed by Amendment 63 would see these restrictions removed from Schedules 3 and 7 in their entirety. I understand the rationale for these amendments and recognise the force of the arguments that have been made in defence of the principle of lawyer-client confidentiality. At the same time, we are all here because we recognise the threat that we face from hostile state actors and terrorists and the risk of leaving loopholes to be exploited.

As alluded to by the noble Lord, Lord Rosser, during the debate on similar amendments on Report in the House of Commons, the Security Minister undertook to consider the proposal of the Opposition Front Bench to allow a senior officer, in such circumstances, to direct that the detainee use a solicitor from an approved panel—a point mentioned by the noble Lord, Lord Marks, and the noble Lord, Lord Rosser, who reiterated this same proposition in today’s debate. Such an approach may offer an acceptable way through this issue and I can undertake to give sympathetic consideration to his amendment in advance of Report.

However, I cannot be so accommodating about Amendment 84 because it would remove the power under Schedule 3 to delay a consultation between the detainee and their solicitor where a senior officer has reasonable grounds to believe that the exercise of this right will result in the consequences I have previously described. Powers for an officer to delay the communication of the fact of a person’s detention to a named person and to delay that detainee’s access to a solicitor have been enshrined in PACE for many years. These powers are therefore not novel but are familiar in the wider policing context and allow the police to delay contact with a third party or consultation with a solicitor where there are reasonably founded concerns that knowledge of the person’s detention may result in serious consequences. Removing this power of delay would undermine the ability to mitigate these risks.

I have already addressed part of Amendment 63 but let me now respond to the proposed changes to the other powers that allow an examining officer to restrict a Schedule 7 detainee’s access to a solicitor. These restrictions under Schedule 8 to the 2000 Act currently allow an examining officer to question a detainee without a consultation having first taken place with a solicitor in person. However, I must point out that this does not preclude the detainee from consulting a solicitor via another means—for example, by telephone.

These powers can be exercised only where the officer reasonably believes that to wait for the solicitor to arrive in person would prejudice the determination of the relevant matters. Amendment 63, however, would limit the availability of these restrictions to a situation where waiting for the solicitor to arrive in person could create an immediate risk of physical injury to any person. This is contrary to the intention of the powers, which were designed to mitigate the risk of a detainee using their right to consult a solicitor to obstruct and frustrate the examination and run down the short detention clock. As noble Lords will be aware and as the noble Lord, Lord Anderson, pointed out, the maximum period of examination is limited to six hours. It would not take a trained terrorist or hostile actor to work out that if they were to insist on speaking to a solicitor, in person, who happens to be located many miles away from the port where they are being examined, they have a means of significantly delaying their examination.

The current powers under Schedule 8 provide a practical solution to mitigate that risk by allowing the person to consult that solicitor over the phone. If the person refuses that alternative, or the solicitor is unavailable, the officer can continue questioning the person while they wait for the solicitor to arrive. Any decision by the officer to apply these restrictions must be clearly recorded.

Before using these restrictions, the examining officer will exhaust all other means to ensure that the detainee has been able to consult a solicitor in private, including directing them to a solicitor of the duty solicitor scheme. The changes proposed in Amendment 63 would resurrect the risks that I have described and undermine key powers for countering terrorism.

The noble Lord, Lord Anderson, asked about recording when restrictions are used in Great Britain and Northern Ireland. We will consider with our operational partners which statistics it would be appropriate to publish with regard to Schedule 3. I hope that the noble Lord is satisfied with that response and I will keep him updated.

[Lord Anderson of Ipswich]

The noble Baroness has asked whether I am satisfied with the response. As the independent reviewer, I was told four years ago that this was happening, and it was not the first time that I had been told it was happening, in relation to Schedule 8. I am sure that the Minister did not mean to backtrack on that commitment, but I would be very grateful if she felt able to give someone a bit of a push.

[Baroness Williams of Trafford]

I was going to use the word “shove”, but I will give them a push instead, which is probably more in keeping with your Lordships’ House.

Perhaps I may move on finally to Amendments 83 and 87. I draw the attention of the Committee to the draft Schedule 3 code of practice, which I have already circulated to noble Lords. Like its equivalent for Schedule 7, the draft code is clear that a person detained under either power must be provided with a notice of detention that clarifies their rights and obligations. The examining officer must also explain these rights and obligations to the detainee before continuing with the examination. In addition, at each periodic review of the detention, the examining officer must remind the detainee of any rights that they have not yet exercised.

The Government are in complete agreement that any person detained under Schedule 3 should be informed of their rights before any further questioning takes place. It has always been the case through the exercise of Schedule 7 powers and it is why we have made it explicit in the equivalent draft code of practice for Schedule 3. While the Government are clear that the intention behind these amendments has already been satisfied through the provision of the draft code, I am now ready to consider further the merits of writing such a requirement into Schedule 3 and Schedule 8 to the Terrorism Act.

With those remarks, I hope that the noble Lord, Lord Marks, will be content to withdraw his amendment.

[Lord Marks of Henley-on-Thames]

I am grateful to the Minister for the points that she has said she will consider. We will wait to hear the results of that consideration. I also thank all noble Lords who have spoken in the debate. Although I do not necessarily come from the same position as the noble Lord, Lord Anderson, on these amendments, he made an important point about the recording of incidents when the right of consultation with a solicitor is either delayed or restricted. Whether it is a push or a shove that is needed, it would be helpful if that could be clearly achieved.

I also make the point that while it is helpful that, in the vast majority of cases, the Government intend to ensure that the right to consult a solicitor in private in a timely and confidential manner is preserved, they should not underestimate the importance of the confidentiality of advice—a point made eloquently by the noble Lord, Lord Pannick. That is of course particularly relevant in circumstances where answering questions under these powers is compulsory. I therefore invite the Government to consider carefully, over and above the matters that the Minister has said she will consider, how far more proportionate ways of ensuring that detainees do not disrupt the purposes of their examination can be achieved without compromising confidentiality or the fundamental right to consult a solicitor. If we have that assurance—I note that the Minister is nodding in assent—I am happy to withdraw my amendment. However, it is a matter that we may well return to on Report.

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[Lord Paddick]

My reading of the amendment is that it would differentiate between a Schedule 7 encounter, where the person is not entitled to silence and has to answer questions because they commit an offence if they do not, and the informal process that leads up to a Schedule 7 encounter.

[Baroness Williams of Trafford]

I thank noble Lords for their points on this amendment. I start by saying to the noble Lord, Lord Anderson, that the IPC has been consulted throughout the drafting of the code.

The interactions between noble Lords probably go to the root of the amendment proposed by the noble Lord, Lord Rosser. The section on screening outlined in the Schedule 3 code, which mirrors the existing guidance for the equivalent CT powers, is there to provide ports officers with clarity on the distinction between questions that can be asked by police officers in the ordinary course of their duties with a view to deciding whether to examine someone and questions that are permissible only once a Schedule 3 examination has commenced; that is, those questions designed to elicit information to enable an officer to determine whether the person is or has been concerned in hostile activity.

We have all come across police officers as we go about our daily lives and are used to seeing them on local streets and in tourist hotspots or protecting our national infrastructure. Wherever officers are on the ground, it is reasonable to expect them to interact with the public. It is not only a reasonable expectation but a vital aspect of front-line policing.

Such interactions will vary and depend on the specific purposes. They may range from polite conversation between an officer and a member of the public to a situation where an officer wants to query why a person is acting in a certain way or why they are present in a certain place. In such circumstances, police officers do not rely on specific powers of questioning; rather, they are simply engaging members of the public during their ordinary duties, as the noble Lord, Lord Carlile, pointed out. It is no different when officers are stationed at UK ports.

It would be unusual if officers did not interact with the public in this way. It would be even more unusual if front-line officers were not able to use those interactions to determine whether any further action was needed. It is unfortunate that, in trying to clarify this distinction between what would constitute questioning or interaction during ordinary police duties and questioning that can take place only once a Schedule 3 examination has commenced, the language and intention of the code have somehow been misunderstood.

Let me be clear: what is referred to as “screening” in the draft code is not a prescribed process or procedure that ports officers must adopt before selecting a person for examination. It is a clarification of what questions can be asked, if appropriate, prior to selection for examination, as against the questions that can be asked only during an examination.

It is quite possible that a ports officer will speak to members of the public at a UK port in the course of their duties with no intention of selecting them for an examination of any kind. Of course, the person’s behaviour might lead the officer to consider use of a police power, but Amendment 63A could have the unfortunate implication that, in other contexts and absent specific statutory powers, officers are unable to talk to the public or request to see their documents in the ordinary course of their duties to determine whether they need to take the further step of invoking their legal powers. It would define such questioning as being part of the Schedule 3 examination itself, rather than something that takes place before an examination. All that said, even though I do not agree with the amendment, we will consider whether further clarity is needed in the code before formally laying it before Parliament for a debate and approval by both Houses. I hope that, with that assurance, the noble Lord will be content to withdraw his amendment.

[Lord Rosser]

I thank the Minister for that response and all other noble Lords who have participated in this brief debate. I am grateful to the Minister for saying, if I understood her correctly, that there will be further reflection on this issue. I accept that she has not, on behalf of the Government, accepted the amendment. I do not know whether it is the listing of potential questions that is the cause of the difficulty. If it is, one solution might simply be to make reference to the fact that there may be a screening process, without laying down specifically what the questions are that may or may not be asked as part of it, since most of the debate seems to have centred on listing the specific questions. These, of course, were lifted straight from the code of practice.

[Baroness Williams of Trafford]

I think that the noble Lord, Lord Carlile, put it correctly. Rather than prescribe a list of questions, I am seeking to get clarity within the code in due course.

[Lord Rosser]

I take it from that that the Minister will be coming back to let us know the outcome. On that basis, I thank the Minister for her response and I beg leave to withdraw the amendment.

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[Lord Rosser]

I will be very brief indeed. We will listen with interest to what the Government have to say in response to the amendment moved by the noble Lord, Lord Anderson of Ipswich, but—obviously, subject to what the Government say—it seems to us to have considerable merit.

[Baroness Williams of Trafford]

My Lords, I echo the words of the noble and learned Lord, Lord Judge: the noble Lord, Lord Anderson, is indeed wise and elegant in his words. As the noble Lord has explained, this group of amendments deals with the definition of “hostile act” in Schedule 3.

It is important to emphasise that the design of any new power should be specific to the threat it is seeking to mitigate. The scope of this power has been designed to do just that; namely, to mitigate the known threats from hostile state activity. The danger of these amendments, therefore, is that they will limit the scope of the power, thereby limiting the range of threats that it has been designed to combat.

For the benefit of the Committee, the ports powers under Schedule 3 will be used by examining officers at UK ports or the border area,

“for the purpose of determining whether the person appears to be a person who is, or has been, engaged in hostile activity”.

A person is engaged in hostile activity if they are,

“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”.

Under this schedule, a hostile act is defined as an act that,

“threatens national security … threatens the economic well-being of the United Kingdom, or … is an act of serious crime”.

By replacing “hostile act” with “serious crime”, these amendments would significantly narrow the range of hostile activity that these powers are designed to counter. It would undoubtedly limit the ability of our ports officers to detect, disrupt and deter hostile actors. Serious crime is defined in the Bill as being an offence which could reasonably be expected to result in,

“imprisonment for a term of 3 years or more, or … the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose”.

Some of the activities which I believe noble Lords would expect to be captured through these new powers would not fall within the scope of the truncated definition of hostile activity. As the noble Baroness, Lady Manningham-Buller, explained earlier, some offences under the Official Secrets Act 1989 attract a maximum penalty of only two years’ imprisonment and may not involve the use of violence, result in financial gain or involve a large number of people acting in pursuit of a common purpose. Consequently, an examining officer would not be able to exercise Schedule 3 powers for the purpose of detecting, disrupting or deterring this type of hostile activity even if the activity threatens national security or could be prosecuted for offences under the Official Secrets Act. This is simply not acceptable.

There may even be occasions when we have intelligence to suggest that a person linked to hostile state activity is travelling to the UK for a hostile purpose but the intelligence we have is incomplete and the nature of the hostile purpose cannot be determined; therefore, we cannot assess whether the purpose is linked to a serious crime. In this circumstance, it would be very important to have a power to stop and examine them at the port to establish the nature of the hostile act.

As noble Lords will know, following the appalling acts in Salisbury, the Government are undertaking a review of legislation to combat hostile state activity. Hostile activity, by its very nature, is often covert and undertaken by foreign intelligence officers or their agents seeking to acquire sensitive information to gain an advantage over the United Kingdom and undermine our national security. On occasions this activity may not be considered criminal under the law as it stands; for example, if a foreign intelligence officer intended to travel to the UK to maintain or build a relationship with employees contracted to work on UK defence projects with the aim of acquiring sensitive information, this may not be a crime but it would be imperative to detect and disrupt this activity at the earliest opportunity, before irreversible damage to our national security occurred.

It is entirely plausible that a hostile actor should want to visit the UK in order to collect classified documents from an agent who had committed acts of espionage on their behalf. It is not a crime for the hostile actor to receive these documents and leave the country but, although the individual has not committed a crime, a Schedule 3 examination would enable an examining officer to make a determination as to whether they have been engaged in a hostile act. An examination would also allow the examining officer to remove the classified documents from the hostile actor, preventing the disclosure of potentially damaging information.

Even though the purpose of a Schedule 3 examination is to make a determination as to whether the actor has been engaged in a hostile act, exercise of the power may provide a number of secondary benefits. In instances such as the example I have just talked about, it would provide the first leads into an investigation to detect who the agent is—if we did not already know—and prevent the documents from ever being disclosed. These investigations may or may not lead to future prosecutions. It is therefore right to give the police the power to investigate hostile state activity, even at a preliminary stage before we have reasonable suspicion that a foreign intelligence officer has committed an offence. I know that noble Lords do not really think that the police should not have the power to stop someone who is from, or acting on behalf of, a foreign intelligence service as they enter or leave the United Kingdom.

If we were to accept these amendments, traditional behaviours undertaken by hostile states which have the potential to have such a detrimental effect would fall out of scope of the power and we would not be able to detect, disrupt or deter them. I put it to noble Lords that such activity should not go unchallenged. The definition of “hostile act” is necessarily broad to ensure that the powers capture the full range of activities which hostile actors engage in. We recognise the concerns that have been raised and I reassure the Committee that these were considered in the drafting of Schedule 3. This is why we have explicitly restricted the definition to an act that is carried out for, or on behalf of, or otherwise in the interests of, a state other than the United Kingdom.

I also recognise the concerns about the term,

“economic well-being of the United Kingdom”.

As has been pointed out, there may be instances where an act undertaken by a hostile state actor threatens that economic well-being yet does not threaten our national security; it is also true for acts of serious crime. Economic well-being, like national security, is a term already used in UK legislation. The intention of this limb of the definition is to ensure that these powers can be used to mitigate hostile acts which could damage the country’s critical infrastructure or disrupt energy supplies to the UK. For example, if an employee in the banking sector of the City of London discovered a serious vulnerability in computer networks and shared this information with a hostile state, it would drastically undermine confidence in the City of London and cost the UK economy millions, if not billions.

I hope that with these explanations, the noble Lord will feel content to withdraw his amendment.

[Lord Anderson of Ipswich]

My Lords, I am grateful to the Minister and to all noble Lords who contributed to this debate, including the noble Baroness, Lady Manningham-Buller, who made her remarks earlier.

I asked the Minister whether she could give another example of the police being given strong, coercive powers for the purpose of determining whether people are acting in a way which may be undesirable but which is perfectly lawful under the law of the land. I do not think that I had an answer and, if there is no answer, I would suggest that the Bill as written constitutes a new and very dangerous departure. That is the point of principle behind this amendment and, with great respect to the Minister, she did not address it in her reply. I hope that the Minister will consider this carefully because my concerns, as she has heard, are shared by lawyers far more distinguished than I—and not only by lawyers.

As to the pragmatic solution, the Minister has heard suggestions as to how the scope of this power could be reduced in a way that achieves its objectives in a manner more consistent with the principle of legality. I hope that she will deliberate further on those suggestions. I would be more than happy to discuss them with her but, in the meantime, I beg leave to withdraw the amendment.

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[Baroness Hamwee]

My Lords, I was not clear whether the noble Lord, Lord Rosser, was using this amendment to seek more information, but we wonder about the operational practicality of its first paragraph. It suggests that if the commissioner is informed of a particular stop, they would have some power or role to respond. More important are the points implicit in what the noble Lord said about keeping records or data. In another context, the noble Lord, Lord Anderson, used the term “meticulous” about keeping records in Northern Ireland, and reference was made to using them as the basis for review of practice. That is very important and although we have hesitations about the amendment’s first paragraph, what has prompted it is important.

[Baroness Williams of Trafford]

As the noble Lord, Lord Rosser, pointed out, Amendment 67ZA would require an examining officer to notify the IPC each time a person is examined under Schedule 3 and require the commissioner to publish an annual report on the use of the powers in the Northern Ireland border area. In relation to the second part of the amendment, as the noble Lord stated, Part 6 of Schedule 3 already requires the commissioner to review the use of the powers and make an annual report.

The police will make a record of every examination conducted under Schedule 3, as they already do with Schedule 7. I reassure noble Lords that the commissioner will be afforded full access to these records on request, and to information on how the powers have been exercised. It would place an unnecessary burden on the examining officer to have to notify the commissioner each and every time a person has been examined.

Regarding concerns about how these powers will be exercised at the border in Northern Ireland, media and political commentary over the summer sought, wrongly, to conflate the introduction of this legislation with the discussions on the Irish border in the context of Brexit and concerns over the possibility of more stringent measures. The Security Minister wrote to the shadow Secretary of State for Northern Ireland on 4 October to address these concerns. I circulated a copy of that letter after Second Reading, so I will not repeat his response in full here. However, I want to reiterate that it is simply not the case that these powers will be used as an immigration control or to interfere with the right to travel within the CTA. Their application to the border area mirrors that of the analogous counterterrorism powers in Schedule 7 to the 2000 Act, which have been in operation for 18 years. In that time, we have not seen a blanket or large-scale use of these powers in the border area. In fact, the number of examinations in Northern Ireland as a whole during 2017-18 amounted to 6% of the UK total.

The Schedule 3 powers must be used only to determine a person’s involvement in hostile activity. The location and extent of their use will be informed by the threat from hostile activity and any decision to use them will be on a case-by-case basis. While the commissioner’s annual report will not provide a location breakdown of where the powers are exercised, for clear national security reasons, he will review police exercise of the powers, including their use in Northern Ireland.

The noble Lord, Lord Rosser, asked whether the Bill regularises stops that are already taking place under Schedule 7. The answer is no. Schedule 3 powers will be used only to determine whether a person is engaged in hostile activity. We have already discussed the definition of hostile activity. Its broad scope is to mitigate a range of threats. Schedule 7 is about persons engaging in terrorism.

I hope that I have been able to reassure the noble Lord, Lord Rosser, and that he will be content to withdraw his amendment.

[Lord Rosser]

I thank the Minister for that response and the noble Baroness, Lady Hamwee, for her contribution to this brief debate. The point I was seeking to clarify is that, as I understand it, the Government have maintained that sometimes the powers under Schedule 7 to the Terrorism Act 2000 were being used to stop people who, it might be argued, are involved in hostile activity. The point that I was trying to confirm is whether the Government feel that they are simply regularising what happened under another Act, or whether we are talking about a new group of people who may be stopped and detained. I gather from what the Minister said that we are, and that we are not talking about people who, rightly or wrongly, may have been stopped and detained under the Terrorism Act on the basis that it was counterterrorism.

I assume that the Minister is once again going to say that she is unable to respond, but are we expecting any significant increase in the number of people being stopped and detained? She said that they will be people who are not being stopped and detained at present under other powers when perhaps those powers should not have been used, and that these will be new people. Is that the situation? Is it likely to be an extensive number? She said that it would be very difficult for the commissioner to be advised every time somebody was stopped, which suggests that there will be significant numbers of people.

[Baroness Williams of Trafford]

Mercifully for the UK public, the number of people involved in hostile state activity is low. The commissioner will have access to all the reports. We are expecting far fewer stops than under Schedule 7. I think I expressed that, but in a different way. We do not expect a plethora of new cases. The IPC can have access to all the records, but he does not have to be informed every time. He will have all the information he needs.

[Lord Rosser]

I thank the Minister for that response. I want to reflect on what has been said. In the meantime, I beg leave to withdraw the amendment.

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[Lord Paddick]

My Lords, briefly, I agree in principle with the intention behind the amendments, at least on confidential journalistic material and material that is subject to legal privilege. However, I recognise the dilemma of how you determine whether it is confidential information unless you just take the person’s word for it. Clearly, if you just accepted the person’s word that the matter was confidential, anybody could get away with not handing over documents. I do not think that Amendment 69A could work in practice in real time, but there is a real problem here that needs an explanation and some reassurance.

[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.

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Moved by

[Baroness Williams of Trafford]

72: Schedule 3, page 45, line 6, after “representations” insert “, before the end of whatever period the Commissioner may specify,”

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Moved by

[Baroness Williams of Trafford]

82: Schedule 3, page 47, line 6, at end insert—
“15A(1) Before proceeding under paragraph 15 in relation to a copy, the Commissioner—(a) must invite each affected party to make representations, before the end of whatever period the Commissioner may specify, about how the Commissioner should proceed under that paragraph, and(b) must have regard to any representations made by an affected party before the end of that period. (2) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, exercises a function under paragraph 15 in relation to a copy, an affected party may ask the Investigatory Powers Commissioner to decide whether to approve the way in which the function was exercised.(3) Each of the following is an “affected party” for the purposes of this paragraph—(a) where the examining officer is a constable, the responsible chief officer,(b) the Secretary of State, and(c) the person from whom the article was taken from which the copy was made.(4) In sub-paragraph (3) “responsible chief officer” means—(a) in a case where the copy was made in connection with an investigation being conducted by a police force in England and Wales, the chief officer of police of that police force;(b) in a case where the copy was made in connection with an investigation being conducted by the Police Service of Scotland, the chief constable of the Police Service of Scotland;(c) in a case where the copy was made in connection with an investigation being conducted by the Police Service of Northern Ireland, the Chief Constable of the Police Service of Northern Ireland;(d) in any other case—(i) where the examining officer is a constable of a police force in England and Wales, the chief officer of police of that police force,(ii) where the examining officer is a constable of the Police Service of Scotland, the chief constable of the Police Service of Scotland, or(iii) where the examining officer is a constable of the Police Service of Northern Ireland, the Chief Constable of the Police Service of Northern Ireland.(5) Sub-paragraph (6) applies where—(a) a direction for the destruction of a copy is given under paragraph 15, or (b) authorisation for the retention and use of a copy is granted under that paragraph.(6) The Commissioner must inform the person from whom the article was taken from which the copy was made that—(a) a direction to destroy the copy has been given, or(b) (as the case may be) authorisation to retain and use the copy has been granted (and in this case the Commissioner must provide details of any conditions subject to which that authorisation was granted).(7) A requirement under this paragraph to invite representations from, or to provide information to, the person from whom an article was taken from which a copy was made applies only so far as it is reasonably practicable to do so.(8) Representations under sub-paragraph (1) must be made in writing.15B(1) This paragraph applies where—(a) a copy consisting of or including confidential material is retained by virtue of paragraph 14(3)(d) or (e), and(b) the examining officer who retained the copy considers that the urgency condition is met in relation to the copy.(2) The urgency condition is met in relation to a copy if—(a) there is an urgent need for the copy to be examined or otherwise used for the purpose of preventing—(i) the carrying out of a hostile act, or(ii) death or significant injury, or for the purpose of mitigating the risk of any such act, death or injury occurring, and(b) the time it would take for the requirements of paragraphs 15 and 15A to be complied with in relation to the copy would not enable such use to take place with sufficient urgency.(3) The examining officer may apply to a senior officer for authorisation to continue to retain and use the copy.(4) An application under sub-paragraph (3) in relation to a copy may be made only to a senior officer who has not been directly involved in the exercise of any power under this Part of this Schedule to make the copy or to question a person from whom the article was taken from which the copy was made.(5) A senior officer may grant an authorisation under this paragraph for the retention and use of a copy if satisfied that—(a) there are reasonable grounds for considering that the urgency condition is met in relation to the copy,(b) arrangements are in place that are sufficient for ensuring that confidential material contained in the copy is retained securely, and(c) the material will be used only so far as necessary and proportionate for a purpose mentioned in sub-paragraph (2)(a).(6) An authorisation under this paragraph—(a) must be recorded in writing;(b) may be granted subject to whatever conditions the senior officer thinks appropriate.(7) Paragraphs 15C and 15D contain further provision about authorisations granted under this paragraph.(8) In this paragraph—“confidential material” has the meaning given by paragraph 12(10) and (11);“senior officer” means—(a) where the examining officer is a constable, another constable of at least the rank of superintendent, (b) where the examining officer is an immigration officer, an immigration officer of a higher grade than the examining officer, and(c) where the examining officer is a customs officer, a customs officer of a higher grade than the examining officer.15C(1) If a senior officer grants an authorisation under paragraph 15B, the examining officer who applied for the authorisation must inform the Investigatory Powers Commissioner and each affected party of its grant.(2) The information required under sub-paragraph (1) must be given as soon as reasonably practicable and in any event within 24 hours after the grant of the authorisation.(3) An affected party may make representations to the Commissioner about how the Commissioner should proceed under paragraph 15D in respect of an authorisation granted under paragraph 15B.(4) Representations under sub-paragraph (3) must be made in writing no later than the end of two working days beginning with the first working day after the day on which the authorisation is granted.(5) The information provided under sub-paragraph (1) must include an explanation of the right to make representations in writing and the time by which they must be made.(6) The Commissioner must have regard to any representations made before the end of the time mentioned in sub-paragraph (4) in determining how to proceed under paragraph 15D.(7) The requirement under this paragraph to provide information to the person from whom an article was taken from which the copy was made applies only so far as it is reasonably practicable to do so. (8) In this paragraph and paragraph 15D—“affected party” has the meaning given by paragraph 15A(3);“working day” means a day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom in which the authorisation is granted.15D(1) This paragraph applies after the Investigatory Powers Commissioner has considered any representations made about an authorisation in accordance with paragraph 15C.(2) The Commissioner must—(a) approve the grant of the authorisation, or(b) cancel the authorisation.(3) A decision under sub-paragraph (2) must be made—(a) after the end of the period for making representations referred to in paragraph 15C(4), and(b) before the end of three working days beginning with the first working day after the day on which the authorisation is granted.(4) If the decision under sub-paragraph (2) is to approve the grant of the authorisation, the retention and use of the copy may continue in accordance with the conditions on which the authorisation was granted (subject to any further conditions or variation of the existing conditions that the Commissioner specifies).(5) If the decision under sub-paragraph (2) is to cancel the authorisation, any further use of the copy must stop as soon as possible.(6) If the Commissioner cancels the authorisation the Commissioner may direct that—(a) the copy is destroyed, and (b) all reasonable steps are taken to secure that any information derived from the copy is also destroyed.(7) Sub-paragraphs (5) and (6) do not apply if the copy is further retained under a power conferred by paragraph 14(3)(b) or (c).(8) The Commissioner must inform each affected party of the Commissioner’s decision under sub-paragraph (2).(9) The requirement under this paragraph to provide information to the person from whom the article was taken from which the copy was made applies only so far as it is reasonably practicable to do so.(10) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, exercises a function under this paragraph in relation to a copy, an affected party may ask the Investigatory Powers Commissioner to decide whether to approve the way in which the function was exercised.(11) Nothing in this paragraph affects the lawfulness of—(a) anything done under an authorisation before it is cancelled;(b) if anything is in the process of being done under an authorisation when it is cancelled—(i) anything done before that thing could be stopped, or(ii) anything done which it is not reasonably practicable to stop.”

--- Later in debate ---

[Lord Morrow (DUP)]

My Lords, I congratulate the noble Baroness, Lady Howe, on bringing forward Amendments 89 and 91, which I am content to support.

Like the noble Baroness, I scrutinised the Minister’s letter, which I will come back to. The letter makes two key claims with respect to the Channel guidance. First, it states:

“The Channel Duty Guidance is clear that ‘preventing terrorism will mean challenging extremist (and non-violent) ideas that are also part of a terrorist ideology’”.


In this context, the Minister argues that the only point of intervention would be where extremist ideas are used,

“to legitimise terrorism and are shared by terrorist groups”.

In truth, however, as the noble Baroness, Lady Howe, pointed out, the guidance contains some references to extremism that are not rooted in a necessary connection to terrorism, and it thereby effectively mandates two interventions: one quite properly, where there is concern that the individual in question is being drawn into terrorism, whereas the other is effectively a monitoring intervention to monitor people whose views the state considers extreme but in relation to which there is no need for any immediate connection to terrorism. I assume that the thought is that because they have extreme views, there is a chance that they could at some point show signs of interest in terrorism, but in the absence of anything other than a vague definition of extremism, this opens the door for the state to start monitoring any views its officers decide are extreme. I find this second intervention Orwellian and illiberal.

The current legislation in Section 36 of the 2015 Act provides a clear and narrow remit that is confined to terrorism. It is completely inappropriate to issue guidance that strays into undefined views that the state or its representatives happen to find extreme, unless they are connected to espousing or celebrating terrorism.

This problem is clearly underlined by the fact that paragraph 124 of the new Counter-Terrorism Strategy, published in June, comments on the Channel programme and states:

“Channel is run in every local authority in England and Wales and addresses all types of extremism”.


That tells us all we need to know: it addresses extremism in all its forms, and thus there is no necessary connection of any sort with terrorism. I find somewhat disingenuous the suggestion from the Minister that the Channel guidance is the only guidance that will inform the approach of local government officials in discharging their responsibilities under Section 36. I completely accept that the Channel guidance has been specially developed to help local government discharge its responsibilities with respect to Section 36. It is certainly the guidance to which local authorities refer first when considering their Section 36 responsibilities. However, that does not mean that the other guidance documents to which the noble Baroness, Lady Howe, referred will not be consulted.

The fact that the Channel process is part of the Prevent strategy is spelled out for us by the Channel guidance. Paragraph 7 of Section 1 states:

“Channel forms a key part of the Prevent strategy”.


In this context it would not be at all surprising if the Prevent Duty Guidance was consulted in addition to the Channel guidance to provide a broader context as Channel is, by the guidance’s own admission, part of the Prevent strategy. On the same basis, it would not be at all surprising if a local authority in want of a better understanding of extremism also turned to the Counter-Extremism Strategy, or if a local authority in want of a better understanding of terrorism also turned to the Counter-Terrorism Strategy. This is where Justice Ouseley’s judgment becomes so important.

In her letter, the Minister said:

“The High Court in the case of Salman Butt v the Secretary of State for the Home Department, which Baroness Howe also mentioned, was clear that the Government was fully within its powers to include this form of non-violent extremism within the scope of the Prevent Duty Guidance”.


I accept that it is possible to find a good number of statements in the Prevent Duty Guidance that are consistent with this statement. Take paragraph 38, for example, which states:

“We expect local authorities to use the existing counter-terrorism local profiles … produced for every region by the police, to assess the risk of individuals being drawn into terrorism. This includes not just violent extremism but also non-violent extremism, which can create an atmosphere conducive to terrorism and can popularise views which terrorists exploit”.


However, it is also possible to find numerous references to extremism in the Prevent Duty Guidance, where no such distinction applies—for example, in paragraph 106, which states:

“Prisons should perform initial risk assessments on reception, including cell-sharing risk assessments, and initial reception and induction interviews to establish concerns in relation to any form of extremism, be that faith based, animal rights, environmental, far right, far left extremism or any new emerging trends”.


Let us now consider paragraph 109:

“Appropriate information and intelligence sharing should take place, for example with law enforcement partners, to understand whether extremism is an issue and to identify and manage any behaviours of concern”.


Again, there is plainly no necessary link to terrorism here; and let us consider paragraph 131:

“In addition PCTLs should lead the development of, for example, faith awareness or Extremism Risk Screening training of local training and staff development to supplement the Prevent awareness training. This should focus on emerging issues and any new support and interventions that become available”.


I could go on, but in some ways the most damning statement from the guidance is the glossary definition of extremism, which provides the baseline account for the term in the guidance. The glossary in the 2015 guidance, which can be located on page 21, states:

“‘Extremism’ is defined in the 2011 Prevent strategy as vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs. We also include in our definition of extremism calls for the death of members of our armed forces, whether in this country or overseas”.


Crucially, this definition does not require any connection with terrorism. The calling for the death of servicemen is not necessary to meet the definition which also does not require any other link to terrorism. It is this glossary definition of extremism that is being used to broaden the scope of the Channel and Prevent duties. The very moment these duties divert from their primary aim of addressing the risk of people being drawn into terrorism to addressing the risk of people being drawn into terrorism and extremism—where the two are contrasted they clearly are not the same—we are at risk of becoming an Orwellian state.

In this context, it is particularly concerning that, as reported by the Joint Committee on Human Rights, Dr Charlotte Heath-Kelly at the University of Warwick has warned about her concerns with local authority involvement in Prevent. She said:

“We have found that this leads healthcare professionals and Local Authority processes to enquire into incidences of dissent and illiberal political beliefs—rather than vulnerability to abuse in persons with formal care needs (the legal definition of safeguarding). For example, during our study of local authority owned Prevent work, we found cases where children had been referred to safeguarding teams for watching Arabic television, and where adults were referred for planning pilgrimage trips. While these incidents did not reach Channel, it is crucial that the select committee investigate the low level, and misguided, monitoring of religiosity and political beliefs. People have a right to their beliefs without them being interpreted and medicalized as ‘vulnerabilities’”.


I very much hope that, when the Minister responds to this debate, she will acknowledge that there are real concerns here; I hope she might be willing to meet concerned Members to discuss the matter between Committee and Report about the way the relevant guidance documents handle extremism.

I should say that there are members of the other place who would also like to attend such a meeting with the Minister. They had wanted to raise this matter through an amendment on Report but were somewhat taken aback by the fact that the day the Government announced the date for Report in another place was the very same day as the deadline for submitting amendments. This meant that the only amendments tabled on Report in another place were from the Front Benches, who knew in advance the date for Report and thus the deadline for tabling amendments to explore these issues. There was not a single Back-Bench amendment.

[Baroness Williams of Trafford]

My Lords, I thank both the noble Lord, Lord Morrow, and the noble Baroness, Lady Howe, for explaining the amendments at length. I say at the outset that I am happy to meet with both the noble Baroness and the noble Lord in due course.

Both at Second Reading and today, the noble Baroness mentioned a number of guidance documents and strategies which she suggested had informed the decisions made by local authorities about the referral of individuals to a Channel panel. Among them, she referred to the Prevent Duty Guidance. However, this guidance is not the relevant document which will guide local authorities through this process. The Prevent Duty Guidance concerns a separate duty, the wider Prevent duty, containing Section 26 of the Counter-Terrorism and Security Act 2015. The proposal in Clause 19 instead talks of the duty of local authorities to maintain a panel to assess and provide support to people who are vulnerable to being drawn into terrorism; this is commonly known as the Channel panel. The statutory basis for these Channel panels is found in Sections 36 to 41 of the 2015 Act. This is accompanied by its own statutory guidance, issued under the power in Section 36(7), known as Channel duty guidance.