Counter-Terrorism and Border Security Bill (First sitting)

Ben Wallace Excerpts

Committee Debate: 1st sitting: House of Commons
Tuesday 26th June 2018 Public Bill Committees

[The Chair]

Before we begin, let me say that you are welcome to remove jackets or ties—I would call it a day at that—because it is very hot. I have just a few preliminary points. Please make sure that your electronic devices are switched off. Tea and coffee are not allowed during sittings—I have been asked to say that because people keep walking in with coffee cups and so on.

We will consider the programme motion on the amendment paper and then take the motion enabling the reporting of written evidence for publication, before taking a motion to enable us to deliberate in private. We will then talk about the order in which Members may wish to kick off and look at the questions provided—you can of course add in any of your own.

I call the Minister to move the programme motion, which was agreed by the Programming Sub-Committee yesterday.

[The Minister for Security and Economic Crime (Mr Ben Wallace)]

I beg to move,

That—

(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 26 June) meet—

(a) at 2.00 pm on Tuesday 26 June;

(b) at 11.30 am on Thursday 28 June;

(c) at 9.25 am and 2.00 pm on Tuesday 3 July;

(d) at 11.30 am and 2.00 pm on Thursday 5 July;

(e) at 9.25 am and 2.00 pm on Tuesday 10 July;

(f) at 11.30 am and 2.00 pm on Thursday 12 July;

(g) at 9.25 am and 2.00 pm on Tuesday 17 July;

(2) the Committee shall hear oral evidence in accordance with the following Table:

[The Chair]

Copies of the written evidence the Committee receives will be made available in the Committee Room.

Resolved,

That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Mr Wallace.)

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[The Chair]

As we are in an oral evidence session, I am taking people in the order in which they indicate, which I think is fair. Mr Chapman will have to wait.

[Mr Wallace]

Q Assistant Commissioner, can I bring you back to clause 1—expressions of support? How dangerous was Anjem Choudary over the years? Obviously he is convicted at the moment, but how dangerous is an individual of such inspiration to radicalisation and to people around the country?

Assistant Commissioner Basu: It is the comment I made earlier: it is the greatest threat to this country that people such as Anjem Choudary have been able to speak very persuasively and charismatically for long periods of time. The difficulty in prosecuting him, as Mr McGill will know, was immense over many, many years. If my MI5 colleagues were sitting here today, they would be able to give exact numbers on how many terrorist atrocities al-Muhajiroun—he is a leader of ALM—have a footprint in, not just here in the UK but abroad, and on the number of disruptions we have had where people have been influenced by ALM rhetoric or material.

[Mr Wallace]

Q The number of those cases is in the hundreds—is that not correct?

Assistant Commissioner Basu: Yes.

[Mr Wallace]

Q How long did it take us effectively to get a conviction against him? For how many years was he on our radar, and we were worried about him?

Assistant Commissioner Basu: Many years.

[Mr Wallace]

Dozens? I think it was 20 years.

Assistant Commissioner Basu: I would not be able to give you the exact number.

Gregor McGill: It was certainly a significant number of years, and I think it was into double figures. I think it was somewhere around 10 years, at least.

[Mr Wallace]

Q We knew he was dangerous, so why did it take us so long to achieve a conviction? Was one of the factors the gaps in that legislation—the difference between inviting support and inspiration for support?

Gregor McGill: Precisely so. He was a very charismatic and intelligent man who was very able to stay just the right side of the legislation as it was at the time. That provided a real difficulty for investigative colleagues to gather evidence and for prosecutors to bring a case.

[Mr Wallace]

Q Would it be right for me to say that you see this clause as trying to deal with the significance of inspirers, people who use their profile and presence to inspire people recklessly into joining a proscribed organisation or following those beliefs?

Assistant Commissioner Basu: Exactly.

[Mr Wallace]

Q One of the criticisms will be: “But what if four blokes are down the pub and they say, ‘You know that bloke Tommy Robinson, I think he’s a good geezer’.” Those blokes, as they would have been described to me, would not necessarily be prosecuted because the discretion of the prosecutor would say: “Well that is just freedom of thought, that’s people chatting around a bar, versus someone addressing loads of people at Speakers’ Corner”. Is that where you see the prosecutor’s discretion being able to stop that happening?

Gregor McGill: It is not the job of a prosecutor to stop people having odious thoughts and opinions. In a democracy, people are entitled to hold whatever opinions they want to. When the expressions of those opinions become criminal and go into what has been called “the radicalisation agenda”, that is where we think there is a lacuna in the law and where we think it needs addressing.

[Mr Wallace]

Q If I were to take the Hitler test, the inspiration test—Adolf Hitler stood up at a Nuremberg rally and did not say to his followers, “Join the fascists in Britain”, but said, “I think they’re fantastic”—at the moment, he probably could not be prosecuted for that offence, unless he said, “Go out and join them”. Would that be right?

Assistant Commissioner Basu: Yes

Gregor McGill: Yes.

[Mr Wallace]

Q So the power of inspiration is our biggest danger to radicalisation and this clause seeks to deal with that, would that be fair?

Assistant Commissioner Basu: Yes

Gregor McGill: Yes.

[Mr Wallace]

Q The last Labour Government rightly brought in the Racial and Religious Hatred Act 2006, which effectively deals with incitement both in public and private places. It was not called thought police at the time. It dealt with people using hate against religions as a cause, as opposed to proscribed terrorist groups. Is that why we cannot use that Act to prosecute? If people stand up and say: “I hate the Jews”, you could prosecute them now for inspiring or inciting hatred, but you could not prosecute them if they stood up and said: “I think ISIL”—or National Action—“is fantastic”?

Assistant Commissioner Basu: Yes.

[Mr Wallace]

So the principle is already embedded in law around inspiration when it comes to racial hatred, but not when it comes to terrorism?

Assistant Commissioner Basu: Yes, precisely so.

[Mr Wallace]

Q Have we had any problems with the use of the Religious Hatred Act over the last 12 years?

Gregor McGill: Prosecution is fraught with problems, but none have come out. It is a perfectly workable piece of legislation and another tool in the prosecutor’s armour to be able to deal with this type of behaviour.

[Mr Wallace]

Q Could I move on to the publication of images, the clause 2 issue? Assistant commissioner, do we see quite a few cases where people use their Facebook page or upload images of themselves standing behind flags or speaking to a group of people, for example, in the back of a house, with a black flag or a Hezbollah flag or a National Action flag or whatever else behind them. The image is up there, but because it is in a photograph, it is difficult to prosecute. Is that a challenge?

Assistant Commissioner Basu: Yes, it is a challenge and it is quite common.

[Mr Wallace]

Q Is it common for some of the foreign fighters in Syria beaming themselves backwards, effectively, saying to people, “Look at me, aren’t I great?”

Assistant Commissioner Basu: Yes.

[Mr Wallace]

Q Would you say this clause is more of a modernisation reflecting how the internet is used, rather than anything new or magical? Is it just that people are using the internet differently and we need to adapt to that?

Assistant Commissioner Basu: That is exactly what it is. If you marched down the street with that flag, you would be in a different place.

[Mr Wallace]

Q Yes, and if you dressed up in some of the bizarre uniforms.

On clause 3, I am keen to be open to solutions on the three clicks issue. Would you both agree that streaming, again reflecting modernisation, is a major problem and that the law as it sits is not capable of defining the difference between streaming and downloading?

Assistant Commissioner Basu: Yes.

[Mr Wallace]

Q Maybe, for those who are worried about three clicks, a definition of streaming that does not use clicks but a more technical term might be a solution, as long as we deal with streaming as a problem; that is the main challenge.

Assistant Commissioner Basu: Yes.

[Mr Wallace]

Q May I fast forward and ask a question about the hostile state powers on the border? How important is “no suspicion” in the use of these powers? Why would we need to maintain it?

Gregor McGill: From a prosecutor’s point of view, although these probably would not be exercised, they would be more investigative powers, if you are using an evidence base or intelligence base, you would have to make that intelligence or evidence available.

There are some complications and difficulties with that. There are some legal difficulties with making some intelligence available. There are some operational difficulties in making such material available, which may impact investigative colleagues’ ability to run some of their operations. On that basis, if we had to disclose that, it may limit the powers significantly.

[Mr Wallace]

Q If I had intelligence, let’s say, that a hostile agent—maybe an assassination team or people using non-official cover—were going to come to the UK and take the nine o’clock flight from Amsterdam, but we did not know who they were, only that they were taking a flight. If we had to have suspicion, would that prevent us being able effectively just to target the flight, because we would have to have suspicion about an individual? Or is just suspicion that they might be on a particular flight enough to be grounds for suspicion? Or is it too general?

Assistant Commissioner Basu: Yes, I think it would be too general; that is the problem. It would need to be a reasonable suspicion test. If you look at section 1 stop-and-search powers, it would have to be much more directive than that. Certainly, in counter-terrorism and the example you have given, that would not be uncommon. Intelligence is very fragmented; it is very incomplete. We might have very limited material, possibly just on the travel method or a particular flight, and nothing more than that.

To echo Mr McGill’s point about having a suspicion threshold undermining the utility of this particular investigative power, certainly very sensitive sources and methodology could be disclosed. Certainly, the people who were targeted could quickly work out how to bypass our methods. Certainly, it would be open to those people to displace their travel by passing on evidence to a travel companion, who would not be under suspicion. The lack of suspicion in terms of the power is critical to the utility of actually using it.

[Mr Wallace]

Q Would that breadth of suspicion being challenged as not narrow enough, also apply to a method? Let’s say that we had intelligence that a hostile state agent was moving a radioactive substance in a flask but we did not know which flight, so we decided to target all people carrying flasks. That would be too broad because that would potentially cover every flight coming into the country. So, we would not be able to do that if we had a suspicion test.

Assistant Commissioner Basu: Yes.

[Matt Warman (Boston and Skegness) (Con)]

Q Earlier you mentioned the prospect of extraterritorial powers and that Australia has them and we do not. As you know, a lot of MPs brought that up on Second Reading. Could you say a little more about how helpful they would be and how they might be used in practice? Would you just like to cut and paste the rules that Australia has or would you like to do something slightly different, if you could start with a blank piece of paper?

Assistant Commissioner Basu: Do you mean the designated area offence that we discussed earlier?

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[Nick Thomas-Symonds]

Q I have a narrow question. Clause 12 concerns the power to enter and search houses. I am trying to get a practical sense of that. There are, of course, various requirements. On at least two occasions there has to have been attempts at entry before. The purpose is this:

“to enter premises specified in the warrant for the purpose of assessing the risks posed by the person to whom the warrant relates;”

Could you expand on that? Mr Basu, what exactly do you think is meant by “assessing the risks”? What practically would be likely in a situation like that?

Assistant Commissioner Basu: This is based around lifetime offender management of terrorism. The parallel is obviously registered sex offenders, where this power exists. You are looking for anything that looks as though they have re-engaged or are breaching their notification requirements, if they are on notification. It is something that allows us to assess the ongoing risk of their re-engaging with terrorism. You might find material if you were to do such a warrant. You might find a flag being displayed. You might find material that is of use to a terrorist. That is the purpose of it.

[Mr Wallace]

Q I think we are coming towards the end. Can I just thank you very much for your evidence? Could I ask you to set the scene, assistant commissioner, of where we are with today’s threat and to put in context why these powers are needed?

Assistant Commissioner Basu: Certainly. You can listen to me or you can listen to Andrew Parker from MI5, who has spent 35 years in terrorism and says he has never seen anything like it. If I wanted to describe the threat, that is where I would start. It is definitely a shift, not a spike. We saw the start of problems that were predictable when the military push went into Mosul and Raqqa at the beginning of 2017.

Before Khalid Masood hit Westminster Bridge on 22 March, the number of leads from international partners, covert means and here in the UK were starting to increase in January. What we reached, post Khalid Masood’s attack, was probably a lowering of the bar for terrorism in this country, where people thought that perhaps we were not as hostile to terrorism as we could be and, therefore, they were capable of committing attacks. The attacks that followed were not connected in any way, shape or form, but they say something about the inspiration and the radicalisation that we have discussed.

That has left us with a trebling of our leads; on a monthly basis we deal with three times the number of investigative leads that might later work themselves through into a priority investigation against terrorism. There is more attack planning here in the UK, which is why section 58 of the Terrorism Act 2000 is so important. Holding information is often a precursor for people seeking to do a much more serious offence down the line. We are seeing something in the region of about a 30% increase in case load.

We talk about somewhere between about 500 and 600 cases. Taking the cases that are not police and MI5-led and including the ones that are led by police alone, it is more like 650. We have talked openly about the fact that 3,000 subjects are of acute interest to us, which means 3,000 open cases of individuals who are considered a national security threat. We talk about the growing pool of those we have looked at and are no longer considered a national security threat, but who may re-engage in the future, as being 20,000.

We also have a number of issues, as we have discussed, of people who have been exposed to this in countries overseas. Now that the caliphate has collapsed, what will happen to those people? Will they return to their countries of origin? We still have a substantial number of people who could return against whom we do not have prosecutable case.

Within our communities, we continue to see a rise in extremism. Most disturbingly, along with the jihadist Islamist threat that we see in international counter-terrorism, we now see the extreme right wing growing as well. Those probably feed off of each other, which is why this becomes a whole-society problem, because we are seeing both sides of the coin. The previous Home Secretary proscribed National Action. We have done a great deal of work against National Action.

The most disturbing thing about the extreme right-wing threat, in terms of how it transfigured as National Action, is that it shows very similar signs to what was discussed about al-Muhajiroun—ALM—many years ago. It probably took years to get on top of ALM, and we did not want to make that same mistake with the extreme right-wing threat. Counting that together with the scale of the pace, our ability to counter that level of threat will be severely challenged over the next couple of years. This legislation provides me with some help on that.

[The Chair]

If there are no further questions from Members, I thank the assistant commissioner and Mr McGill for giving evidence this morning and for their time. It has been most helpful to the Committee. Thank you very much. We will now move on to our next panel.

Examination of Witness

Richard Atkinson gave evidence.

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[Nick Thomas-Symonds]

Q From what you are saying, there is a practical solution for any legitimate concerns there may be. There is also a situation—in a police station, for example—where you can have a duty solicitor or lawyer made available. That person could be someone of particular standing and reputation in whom we could all have faith and whom we would not have those concerns about.

Richard Atkinson: Absolutely. Again, code H allows exactly for that. If there are specific concerns about a lawyer, the duty lawyer or solicitor can be called to come and advise. That maintains privilege and maintains the defendant’s access to advice at that point.

[Mr Wallace]

Q In your earlier replies, you talked about how an individual who was detained could have a conversation without legal advice or compromising themselves. It is right, is it not, that in this environment such a conversation would not be admissible in court, under the grounds of the stop?

Richard Atkinson: Not necessarily, because although there is a provision to limit its use, it is not absolute, is it? There are three exceptions where it can be used.

[Mr Wallace]

Q What are those exceptions?

Richard Atkinson: If I am right, the three are proceedings for an offence under schedule 7(18) of the Terrorism Act 2000; on a prosecution for perjury; and on a prosecution for another offence where, in giving evidence, the defendant makes a statement inconsistent with the answer or information provided by him or her in response to the schedule 7 examination.

[Mr Wallace]

Q Let us take perjury. Whenever any of us goes to the airport, a passport control person will ask us, potentially, where we are going or where we have been. They will question us, won’t they? They have the power to do that.

Richard Atkinson: They will.

[Mr Wallace]

Q Do we have a right at that stage—because this is all about being at the border—to ask for a lawyer then?

Richard Atkinson: No. I think, though, there are three almost categories of questioning recognised in the legislation. You have screening, examination and detention. What you are talking about is much more akin to screening, and no one is suggesting that those sorts of questions require someone to be offered legal advice. Having gone past the screening exercise and moving into the position of examination, where someone can be held for up to an hour, they are now someone of interest. Their status has moved on from simply that person who walks through passport control.

[Mr Wallace]

Q What about customs, because we are really talking about a customs screening in the example of a passport? If I am coming in from a country with my baggage, a customs officer stops me and asks me where I have come from—there is the screening—and they wish to search my bag or my person, they will take me away. They can take me to a side room. They can hold me while they examine my bag, screen it, and take it through an X-ray machine. Do you have a right to a lawyer in that environment at the border?

Richard Atkinson: No.

[Mr Wallace]

Q But that is a detention. You can be held, I think, for quite some time. We have all seen the television programmes; it happens all the time. How long has that power been held at the border by customs officers?

Richard Atkinson: I am afraid I do not know the answer to that.

[Mr Wallace]

Q Because you started your critique of this part of the law by referring to the long established view, the cornerstone of British advice. If I may give you a clue, it has been centuries that customs has had that power at our border in order to protect our border.

Richard Atkinson: Sorry, I think you are conflating things that I have said. The cornerstone is legal professional privilege. That is not access to a lawyer; it is the confidential nature of discussions between a lawyer and their client. That is the cornerstone that has been in existence for hundreds of years and that is held out internationally as a gold standard that we have in this country. That is what is being undermined by this Bill saying that a police officer can stand and listen to the consultation that is going on between the client and the lawyer. That is not the same as access to a lawyer, which is none the less important but is not of the same nature as I was describing in relation to legal professional privilege.

[Mr Wallace]

Q That is the particular bit that you would have the most beef with—the discussion between, effectively, a client and a lawyer when they are allowed access to a lawyer at that stage.

Richard Atkinson: That is the most alarming part, yes. Access to a lawyer is important, but you were seeking to conflate the two. I am happy to discuss either, but not the two together.

[Mr Wallace]

Q Let us go to the access to a lawyer point, because I think there is an amendment down about that. On access to a lawyer, would you venture, therefore, it should happen from the first—not from the screening? Not from the initial detention, in the way customs is done? Or would you say that they should really have access as soon as they have gone beyond the screening?

Richard Atkinson: Yes, I think they should, and under the code of practice that currently applies to schedule 7 to the 2000 Act, if a suspect requests legal advice, that is entitled to be considered and they may be given it, so this is not something new to terrorism legislation. It is already there in the code of practice that suspects are entitled to ask for legal advice at that point.

[Mr Wallace]

Q I am just trying to get consistency. Does that mean you think that when a Border Force person, a customs person, seeks to detain you for an hour or however long to examine and question you further, they, too, should have access to a lawyer?

Richard Atkinson: If they are questioning you, yes.

[Mr Wallace]

Q But they do that every day in their thousands across the country, because that is how we control our borders.

Richard Atkinson: If it has gone beyond screening, then yes.

[Mr Wallace]

Q That is a significant shift in what you would desire on the borders of our country. There would be thousands of lawyers. Let’s say someone goes beyond “Are you Ben Wallace? Did you come from Jamaica on this aeroplane? What’s in your bag?” They start taking my bag away, screening it, X-raying it, and asking me questions about what hotel I stayed in. Are you saying they should have a lawyer there?

Richard Atkinson: I would separate out some of those actions. If they are X-raying your bag, if they are looking for physical evidence to support a suspicion, then no, you do not have a lawyer at that point. If they have formed a suspicion and are now looking to ask you questions, then yes. However, more particularly under this legislation, the concern is that you have no right to remain silent, you have to answer these questions. So, devoid of legal advice and required to answer the questions is a significant act on the part of the state.

[Mr Wallace]

Q I think it is right to say that access to a lawyer on the border has been qualified quite considerably over many years. Would you not say that? Whether it is a customs stop or not conducive to the public good or a whole load of establishing, it often goes beyond screening.

Richard Atkinson: That is not something I can comment on. It may be correct. I do not know.

[Mr Wallace]

Q As the Minister, I definitely take your point about access to legal advice and that privileged space. Do you understand why we are trying to use schedule 7 and schedule 3 on the hostile state? Do you understand why there is a need to try to establish people coming into our country? What alternatives would you proffer as a way to deal with people who sometimes do not want to answer the screening questions, obviously, but may have a lot of evidence on their telephones?

Richard Atkinson: I do understand what is being sought. What I am saying is that there is a need for legal safeguards for those individuals. I do not see how those prevent evidence of the type you are talking about from being obtained. With a telephone, you are talking about the material being taken away and examined. It is not a matter of questioning at that point, and I have not sought to say that that should not be the case.

If you want to move on to the wider issue around seizure of legally privileged material, that is a different issue and I would have comments on that.

[Mr Wallace]

Q So the Law Society does not oppose the concept of the schedule 7 or 3 type stop; it just wishes better access to legal advice.

Richard Atkinson: That is correct.

[Mr Wallace]

Q Does it oppose the lack of reasonable grounds, the no suspicion?

Richard Atkinson: No.

[Afzal Khan]

Q I would like to ask about the confidentiality between the solicitor and the client. It has been long-established that that is a privileged sort of advice. You also said you understand where the legislation is trying to go and why the Government are trying to pass it. Is an alternative available where both could be achieved without compromising and losing one?

Richard Atkinson: I do not think the two prevent one another. Obtaining legal advice, bearing in mind that the individual has to answer questions, is not going to stop the objectives of the legislation or investigation. As I have already indicated, if there are specific concerns about the individual adviser, they can be met in the way that the codes of practice attached to the Police and Criminal Evidence Act currently address the matter. So, no, I do not think there is any problem in maintaining legal professional privilege and achieving the objectives that are sought.

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[Nic Dakin]

Q The provisions under clause 17 and schedule 2 will bring terrorism offences under the Police and Criminal Evidence Act 1984 in line with those under the Terrorism Act 2000, in relation to biometric data. To what extent do you think it is necessary and proportionate to retain biometric data for individuals who are arrested for terrorist offences but not charged?

Richard Atkinson: It is an area of concern for us because, clearly, it is right that individuals’ data is not routinely withheld, and we have looked at that in the past. I do not think I am qualified to answer on the need to extend the period, but your question very much enunciates our position, which is that any extension of time periods needs to be justified by objective evidence. I know the Committee were asking for examples of that from the two earlier witnesses. Before one could be satisfied of the need to extend periods of retention of biometric data, there would need to be a case made out. I certainly have not seen it. It was not something that could readily be articulated this morning, and great caution needs to be expressed before extending the periods of the retention of that data without an evidential base.

[Mr Wallace]

Q Can I just come back on the oversight of retained material? That is mainly paragraph 11 of schedule 3, on page 40 of the Bill. You have talked about an independent barrister or legal view about legally protected privilege. The Bill says that when a number of things are seized, including legally protected privileged material, but also broader material such as journalistic material and even health material, it has to go before the Investigatory Powers Commissioner. The Investigatory Powers Commissioner’s Office is an independent body, headed by Lord Justice Fulford. That body will then have to make the decision on whether that material could be examined or destroyed and so on. They are all judges. The Investigatory Powers Commissioner is Lord Justice Fulford, and his judicial commissioners are obviously former judges. What is the gap—what is missing—therefore between that oversight and the oversight that you think needs to be improved?

Richard Atkinson: First, the conflation of journalistic material and legally privileged material is unfortunate. I understand the importance of journalistic material, but I would respectfully submit that it is not in the same category as legally privileged material. It is a different category of material and should be treated differently. I may have misunderstood the process, but as I understand it, the investigator views the material, seizes it and then seeks power to retain it, which means that the privileged material has already been viewed and the privilege breached.

[Mr Wallace]

Q I am not entirely sure that that is correct. I think he will initially seize it. I think he needs permission. He must be informed of the retention. The Bill talks about the retention by the commissioner where

“there are reasonable grounds to believe”.

Richard Atkinson: So you have seized it, viewed it and seek permission to retain it.

[Mr Wallace]

Q The Bill states in schedule 3 that

“an examining officer may retain the article…for the purpose…while the officer believes”.

Paragraph 12 states:

“This paragraph applies in relation to an article retained by virtue of paragraph 11(2)(d) or (e)…The Investigatory Powers Commissioner…must be informed of the article’s retention”.

Paragraph 12(4) states:

“The Commissioner may…direct that the article is destroyed, or…authorise the retention and use of the article”

subject to whatever.

Richard Atkinson: My understanding—I could be wrong—is that that material will have been viewed prior to the application to retain it, which is a breach of legal professional privilege. The breach occurs, and then in order to perpetuate the breach, if I may put it that way, an application is made. That is too late, so far as legal professional privilege is concerned. Whether that is the case with journalistic material, I leave for others to argue. For legal professional privilege, to breach it and then seek permission to retain it is too late. It should be that as soon as privilege is claimed, that material is then examined. Ordinarily, you cannot go behind privilege, and that is it, but I understand that, in the particular circumstances being addressed here, it is important that the veracity of the claim is properly checked. That is what I am saying the first stage is. It is someone saying, “I am taking your briefcase.” The person says, “Don’t look at that file. That is a privileged file.” The other person responds, “Right. I will put it in a bag, and we will see whether it is.”

[Mr Wallace]

Q We should get some clarity on this. The legislation talks about seizing, rather than viewing. That may be enough to trigger it. If I claim something has legal privilege, that may be enough to trigger that a judicial commissioner looks at it—it is then referred to the commissioner, as opposed to your assumption that it will have to have been viewed before the request for judicial oversight.

Richard Atkinson: If your proposition is correct and there is therefore judicial oversight of that material, I would not have concerns, but that is not how I read it operating. We differ on that.

[Mr Wallace]

Q Are you happy with the Bill’s oversight of that process, with the judicial commissioners and the independent commissioners being the ones who give the authorisation to retain or destroy material?

Richard Atkinson: Yes, but the issue is whether privilege is breached prior to that.

[Nick Thomas-Symonds]

Q Staying on this point, but moving away from the distinction about whether a document is privileged, do you think it would help if the Bill said, “Every single time this power is used, the commissioner will be informed about it”?

Richard Atkinson: Yes, I do.

[Mr Wallace]

The judicial commissioners will be the oversight for the use of the hostile port stops overall—the annual report or whatever it is.

[The Chair]

As there are no further questions from Members, I thank you, Mr Atkinson, for your time and evidence this morning. As the Committee is not due to meet again until 2 pm, I invite the Government Whip to move the adjournment.

Ordered, That further consideration be now adjourned. —(Paul Maynard.)