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

Baroness Williams of Trafford Excerpts

Friday 10th July 2020 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That the draft Regulations laid before the House on 8 June be approved.

Relevant document: 19th Report from the Secondary Legislation Scrutiny Committee

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

My Lords, this instrument gives effect to the draft codes of practice and guidance relating to important changes to counterterrorism port examination and biometric retention powers made by the Counter-Terrorism and Border Security Act 2019, as well as new counter-hostile state activity port examination powers under that Act. It will bring into force a revised code of practice regarding functions carried out under Schedules 7 and 8 to the Terrorism Act 2000; a code of practice regarding functions carried out under Schedule 3 to the Counter-Terrorism and Border Security Act 2019; and revised guidance issued under the Protection of Freedoms Act 2012 concerning the retention of biometric data for national security purposes. I shall outline what these documents are and their significance to the operation of these important powers.

I turn first to the draft codes of practice for the port examination powers. Counterterrorism officers who currently use Schedule 7 port examination powers must do so in accordance with the relevant code of practice. While the code largely reflects the primary legislation, it also includes further procedural guidance for those exercising the powers and additional safeguards for those subject to them.

In passing the 2019 Act, the House approved amendments to the Schedule 7 powers that have necessitated changes to the code. It now reflects new provisions to pause the detention clock where a detained person requires medical treatment during the examination; to prohibit oral answers given by an examinee in response to questioning under compulsion being used as evidence in a criminal trial; and to require an examinee in detention to choose a different solicitor where there are concerns with their chosen solicitor.

A similar code was produced for the Schedule 3 powers. Noble Lords will recall considering an early draft alongside the Bill in Committee. It differs from the Schedule 7 code in two respects: first, to reflect that Schedule 3 is targeted at detecting those engaged in hostile activity, as opposed to terrorism; and secondly, to provide additional detail relating to new property seizure and retention powers, exclusive to Schedule 3, that require an examining officer to seek the authorisation of the Investigatory Powers Commissioner to retain and use a person’s property, or copies of that property.

Following passage of the 2019 Act, both codes were subject to public consultation. In response, we have strengthened safeguards for confidential material, making it clear that such material should not be accessed by front-line officers without prior judicial authorisation. We have extended these safeguards to cover material which may disclose a source of journalistic information. We have also provided further clarity on the practical operation of the new Schedule 3 retention powers. I trust that these improvements are welcome, especially to the noble Lords, Lord Rosser and Lord Kennedy, and the noble Baroness, Lady Jones of Moulsecoomb, who spoke persuasively about the need for additional safeguards in the codes. This instrument also brings into force updated guidance issued under the Protection of Freedoms Act 2012 on the making or renewing of national security determinations. NSDs allow the biometrics— that is, fingerprints and DNA profiles—of non-convicted individuals of national security interest to be retained after initial statutory retention periods have expired.

Revisions to the guidance reflect changes made by the 2019 Act and recommendations from the independent Biometrics Commissioner. The measures are intended to strengthen and support the police use of biometrics in counterterrorism investigations. The changes being made also protect civil liberties and ensure that the process remains subject to independent oversight. The changes include increasing the maximum length of an NSD from two to five years. Operational experience has shown that the previous two-year limit is too short in many cases. Those involved in terrorism will often pose a much more enduring threat than this. This extended period will strike a better balance between allowing the police to prioritise their resource and retaining appropriate safeguards and checks.

NSDs are an important national security capability. Biometric material retained using NSDs has led in the past year to the identification of individuals thought to have travelled to take part in the conflict in Syria and Iraq, provided evidence of potential terrorist offences and been matched to potential visa and asylum applications, resulting in individuals being refused entry to the UK. Following passage of the 2019 Act, we have undertaken significant consultation with key stakeholders when revising the biometrics guidance, including with the police, the devolved Administrations, the Lord Advocate and the Biometrics Commissioner.

I urge noble Lords to consider the draft codes and revised guidance favourably. It is clear that the UK faces a sustained threat from hostile state activity, and our citizens continue to be subject to heinous acts of terrorism by those intent on harming and dividing us. The provisions within this statutory instrument will support the police in their efforts to keep us safe from these threats. I commend the regulations to the House.

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[Baroness Williams of Trafford]

I first thank all noble Lords who have made some very constructive points in this debate, and I fully concur with the noble Lord, Lord Rosser, about the quality of debate and scrutiny in your Lordships’ House. I knew I would not beat the 15 minutes in the Commons and that the questions would be somewhat more forensic.

The noble Lord, Lord Blunkett, was very supportive of the extension from two to five years. There probably was a difference of opinion within your Lordships’ House: some noble Lords wondered if five years was enough and others thought it was too long. In terms of the five-year limit, we are proposing to increase the length of a single NSD to five years; however, they can be renewed as many times as necessary to protect national security. A number of noble Lords questioned whether it was arbitrary. It was based on operational feedback and we think it strikes a better balance between allowing the police to prioritise their resources and retaining the safeguard of regular reviews. It is supported by the Biometrics Commissioner.

Another point was about some ports not being covered. Port monitoring is, of course, quite often intelligence-led. If we literally covered our entire border with officers, we would still have people getting through without the intelligence that is so crucial to being able to stop people and to question them. We have approximately 1,200 officers at the ports and the powers—I say just to clarify—are used by the police and not immigration and customs. Police use a very flexible model rather than a permanent presence at ports. They use regional hubs and they flex officers to meet demand at those ports.

The noble Baronesses, Lady Ludford and Lady Hamwee, were talking about ethnicity being used to stop people. I make it absolutely clear that it is actually unlawful to stop somebody because of their ethnicity. I am literally trying to cover every noble Lord’s question. My noble friends Lady Altmann and Lord Kirkhope and the noble Baroness, Lady Wheatcroft, asked about Brexit and Northern Ireland as it relates to these provisions. The political declaration provides the basis for a comprehensive and balanced future security partnership, which is in the mutual interest of the UK and the EU. I stress that these powers will not be used as an immigration control or indeed to interfere with the right to travel between jurisdictions. Their application to the border mirrors Schedule 7 to the Terrorism Act 2000, an analogous power for CT purposes that has been in operation for 20 years, and we have not seen wide-scale use of these powers in the border area. Noble Lords will also know that negotiations are ongoing and, of course, I would not pre-empt the outcome. However, the security of our borders and citizens is of the utmost importance.

My noble friend Lady Altmann talked about the training for officers, as did the noble Lord, Lord German, and my noble friend Lady Anelay talked about helping to safeguard people who might be handling dangerous subjects—I mean substances, but subjects even. The training and the accreditation is the responsibility of the College of Policing, but it goes without saying that these officers are highly trained, and the College of Policing and the new Schedule 3 powers will not be used until officers are trained and accredited.

In terms of the safety of front-line officers who put their lives at risk—of course, this is an absolute priority—these policing officers are experienced in dealing with a range of threats. There are strict procedures in place to mitigate the harm to officers and all officers will be trained in those procedures.

I move to the point that the noble Lord, Lord Rosser, made about transparency and oversight. As is the case for Schedule 7 powers, the Schedule 3 powers will be subject to the oversight of the Investigatory Powers Commissioner, who will be required to submit an annual report to the Home Secretary, which will be published and laid before Parliament. The commissioner may also make a report on any issue at any time. To support these functions, all examination records and data will be made available to the reviewer and to the commissioner. The Home Office also publishes a wealth of statistical information relating to counterterrorism legislation, including to the Schedule 7 powers.

To answer the point of the noble Baronesses, Lady Ludford and Lady Hamwee, I say that we do not intend to publish statistics about religion, so we are not intending to add to the burden of front-line officers, but further consideration will be given to the possibility of releasing figures for the Schedule 3 powers. That decision will be made once data is available to conduct a proper national security assessment of such information, and we anticipate this being at the time of the commissioner’s first report.

I turn to the important point about both abuse by people saying that they are journalists and the protection of genuine journalistic material. The noble Lord, Lord Harris of Haringey—so nice to see him and to be speaking to a human being—and the noble Lords, Lord Carlile and Lord Snape, asked about this. Officers will, of course, take steps to verify a person’s credentials, and that is why we have powers to seek judicial authorisation to access such material if there is a need. It is also why we have provided a means for independent legal counsel to assist examining officers in determining which items of material are protected and which are examinable.

On the other side of the coin are safeguards for protected materials and journalistic sources. Debates on this issue throughout the passage of the Bill highlighted the unique practical challenges in safeguarding such genuine material in the context of a time-bound court examination, while ensuring that the powers remain effective against terrorists and hostile state actors. For example, it would severely impact the utility of the powers if a person’s claim of carrying protected material was enough, on its own, to deny access to that property, or to any property comprising unprotected material. That also relates to the other point.

In answer to the question from the noble Lord, Lord Rosser, I can say that, after consideration of feedback received from groups representing the media, we believe that we have identified a constructive solution to address these practical concerns while preserving the confidentiality of genuine material. We have amended the codes to make it explicitly clear that front-line officers must not retain, copy or examine material that is believed to be protected. However, we have also allowed for the temporary retention of property containing protected material, or copies of that property, but only where a process can be undertaken to identify and separate this from examinable material. The process is subject to strict requirements to minimise the risk that protected material is seen by the examining officer, or any other officer involved in the examination. For example, as I said in answer to the noble Lord, Lord Harris of Haringey, independent counsel must be engaged for the purpose of identifying which items of material the officers are authorised to examine. Any protected material must then be returned to the property owner and copies destroyed. This process has been modelled on the Serious Fraud Office operational procedure upheld by the High Court. In addition, we have extended the safeguards for protected material, under either power, to include material which could disclose a source of journalistic information. I hope that noble Lords will agree that these changes are a pragmatic response to an important technical concern which was raised in the consultation feedback.

My noble friend Lord Naseby commented that there were not many responses to the consultation. I always see that as a good thing: in other words, it was not contentious. The noble Baroness, Lady Hamwee, referred to the HMIC report. The regulations do not apply to immigration detention, so this is not applicable to that report, although I am sure there will be plenty of opportunity—as we have had—to discuss it.

Motion agreed.