Counter-Terrorism and Border Security Bill

Ben Wallace Excerpts

Thursday 6th September 2018 Written Statements

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

I am today placing in the Libraries of both Houses the Department’s analysis of the application of Standing Order 83L of the Standing Orders of the House in respect of the Government amendments tabled for Commons Report stage of the Counter-Terrorism and Border Security Bill scheduled for 11 September 2018. The analysis should be read alongside annex C to the explanatory notes to the Bill.

[HCWS941]

Prevent Duty Toolkit

Ben Wallace Excerpts

Wednesday 5th September 2018 Written Statements

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

The aim of the Prevent duty, commenced as part of the Counter Terrorism and Security Act 2015, is to reduce the threat to the UK from terrorism by stopping people being drawn into terrorism or supporting terrorism.

The statutory guidance which accompanied the Prevent duty was the starting point for the implementation of Prevent across sectors and places a duty on specified authorities to have “due regard to the need to prevent people from being drawn into terrorism”. A range of sector-specific advice to supplement the statutory guidance and further support duty implementation across sectors has since been issued.

The Prevent duty has made a significant positive impact in preventing people being drawn into terrorism. To further support the local government sector, the Office for Security and Counter-Terrorism has worked across government and with local partners to publish practical advice in the form of a toolkit. The toolkit supplements information provided in statutory guidance to ensure local authorities are effectively supported in implementing the Prevent duty. This toolkit does not replace the statutory guidance.

The publication of the Prevent toolkit is based on three years of productive engagement with the local government sector since the introduction of the duty, and illustrates examples of good practice to promote continuous improvement. It will support the practical delivery of Prevent by local authorities by providing information, implementation guidance, a self-assessment framework and case study examples to support local authorities and their partners in delivering the Prevent duty locally.

The toolkit has been published today and I will place a copy of it in the Library of the House. It has also been made available on Gov.uk at https://www.gov.uk/government/publications/prevent-duty-toolkit-for-local-authorities-and-partner-agencies

[HCWS934]

Organised Crime: Young People’s Safety

Ben Wallace Excerpts

Wednesday 5th September 2018 Westminster Hall

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

It is a pleasure to serve under your chairmanship, Mr Evans. I thank the hon. Member for West Ham (Lyn Brown) for securing this debate. I take the issue incredibly seriously, as do my colleagues. As the Minister for Security, my portfolio covers what we have just seen in the Chamber—the GRU, counter-espionage and counter-terrorism. However, the part of my portfolio that scares me the most, which I know I will see in my neighbourhood, my friends’ neighbourhoods and my child’s school, is serious organised crime.

One has to be very unlucky to be a victim of terrorism. One has to be even more unlucky to be a victim of an espionage event. The scale of organised crime and the empowerment of those networks in the past few years poses a threat not only to our young people of all classes through grooming, the growth in the use of drugs and the fuelling of that growth, but to all our communities. County lines have enabled crime to be exported into large parts of the United Kingdom that never had violent crime or serious organised crime. They might have had the local dealer or the local burglar, but they have never had the type of organised violence that is now wreaking havoc on their streets.

I heard the hon. Member for Gedling (Vernon Coaker), whom I have known over the years. He was a Home Office Minister in 2008, I think. What he said was incredibly pertinent. It was a well-crafted speech, if nothing else, and as ever I will horrify my officials by not reading my well-crafted speech or quoting endless facts about fund Y or fund B. I have been in this House long enough to know about listing funds—I have listened from the Opposition Benches to other Governments doing it. I am happy to write to Members with the list of funds for communities.

The hon. Gentleman is absolutely right that, to fix this problem, we will need to drive integration both horizontally and vertically. We need to integrate the community response, the local authority response, the healthcare response and the voluntary response with the vertical driving together of local policing, regional policing through the regional organised crime units, and national policing. We will need to do that to get some of the very serious gangsters at the top and bring to bear, where we can, the weight of the state to weaken them. That is not often going to be driven by the experts—the experts know what to do and are just all in different buildings in different parts of Government. It takes a ministerial drive.

One of the weaknesses in our system—I would be interested in whether the hon. Gentleman agrees—is the length of time we as Ministers have to drive the system. It might be one year in the Home Office. I have done this job for two years, and I happen to have a background in counter-terrorism. I went through all those lessons in counter-terrorism in the early 1990s in terms of sharing intelligence, ensuring we tackle permissive communities and supporting communities in distancing terrorists from that support base. I happened to start at a run, but I have been here for two years and who knows how much longer.

One of the strengths we have in our system is to drive through, to knock heads together and to box clever within Whitehall, but it is a challenge. How do I get the DCLG—I forget the new name; it is too long now they put an H in front of it—or the Cabinet Office to do something? How do I lobby the Chief Secretary to the Treasury that something needs to be done? We can sit here and talk about cuts and I can talk about debt, but it is also about priorities. If Opposition Members were on the Government side of the House, they too would be having discussions about priorities and where to spend money. We have to have stability.

The great thing about the work that the hon. Member for West Ham has done is that it is more collaborative. The way she has gone about tackling and highlighting the threat of county lines is an example to us all. We are all trying to find a solution collectively, both locally and nationally. If I may, I will address her points rather than those of other Members because of the short time available. She eloquently set out her asks.

First, there is an ask from me on social media and communication. What has accelerated county lines? What has gripped? Organised crime has existed for many years. Violence has existed in some pockets. What has accelerated county lines is social media and secure communication. There is à la carte drugs-buying from people who are posted. Sometimes they are groomed and abused, and sometimes they are willing. They go to other towns and boroughs and people order drugs à la carte through WhatsApp and Instagram. That is communicated safely to the drug barons and the drug buyers with end-to-end encryption. People can buy anything. There is an incredibly good documentary by a girl called Stacey Dooley on BBC—it is about kids buying drugs—that brings the issue home. She went to WhatsApp to show the research, and they would not even answer the door. The fuel on the fire has been that safe environment.

[Ronnie Cowan]

Will the Minister give way?

[Mr Wallace]

I do not have time. I remember Labour introduced the Regulation of Investigatory Powers Act 2000, which is where Labour brought in youth covert human intelligence sources. It was not a Conservative thing—it has been going on since 1999. When I was in the Scottish Parliament, the Scottish National party did not oppose it either. Using young people as CHIS has been around for many years.

When we introduce legislation to try to seek ways into encrypted technology there is often a knee-jerk reaction from the likes of Liberty, and too many people go along with it. Legislation is vital if we are to get into the top of those drug gangs and find out what is going on. The head of a cartel was arrested in Glasgow, I think last year. He had military-grade encryption to order directly from cartels in central America. He even distributed to the cartels and then distributed drugs back into Glasgow. We have to tackle that because that has been part of the fuel.

We also have to tackle education. What do we need to spot? It is the cuckooing and the vulnerable people. It is about educating local people, especially those in the leafy suburbs who have never seen it, and who do not know that a young person who has suddenly appeared in a flat is the victim of trafficking. Human trafficking leaks into the issue. There are nail bars up and down the country often manned by Vietnamese people who take only cash. Those people are trafficked 99% of the time, but in middle-class areas everyone still goes in to get their nails done. No one says, “There’s something odd here.” It is in plain sight, and we are working with our local authorities—the regional organised crime units are also working with them—to improve spotting the signs.

On reducing violent crime, I asked my officials to go and see an interesting project in Glasgow. I do not pretend that there have not been cuts to police, but in Glasgow, even in environments where there were falling police numbers, knife crime incidence has been massively reduced, which shows that working better together can sometimes make a significant difference. Some great work has been done in the Scottish Government on tackling that, which is important.

It leaks into the wider grooming piece. I see it in Prevent and in counter-terrorism. It is the same method whether it is sexual exploitation, crime or whatever. We have to take on the social media. That is why we are consulting, including on introducing regulations in this House. I went slightly freelance at one stage and said, “The polluter can pay.” If we have to spend hundreds of millions of pounds on police, I know where I would get that money from. They need to step up to the plate. There is the technology and we can do more. We have to tackle grooming and put people in the category of groomers. They are not glamorous. They are the same as paedophiles. They are dirty little rotten groomers who are sacrificing young people.

I saw a very successful Merseyside operation that was brilliantly done. It goes back to how we are pursuing the organised crime. As the hon. Member for West Ham said, I want to see the bad guys at the top get it. A brilliant operation was done in Merseyside where county lines were coming up into Lancashire. The police went top and bottom and worked with local authorities. Good police forces have something called local organised crime panels. Chief Constable Mike Barton in Durham has used local authorities on a regular basis. On such panels are the Environment Agency and representatives from local government. A whole load of government agencies are on the panel, saying, “If we can’t arrest them for X, we’re going to make their life a misery. We’re going to do them for fly-tipping, and then we’re going to publicly expose them and take the glamour off them.” That is happening, and with good results. Other areas could follow suit better. Some do and some do not.

I totally agree with what was said about witness protection and having a trusted system. I worked in intelligence. If no one picks up the phone, we are flying blind. No matter how many neighbourhood policemen and women we have, if people are doing it in their bedrooms on secure comms we need someone to pick up the phone and to trust the system. That is really important.

This year and next year we are going to move witness protection away from the regions. It will be administered in the regions but it will be nationally co-ordinated by the National Crime Agency. However, the Met police has not opted to do that. I urge the hon. Member for West Ham, as a London MP—this is about working with everyone—to have a word with the Mayor of London about whether that is the right way to tackle it. Some of the biggest exporters of county lines are London into the regions and Merseyside into the regions. I can say that because my home plain is Lancashire. Between the two, we need to think with our Mayors about how we can tackle some of that permissive society—some of it is permissive.

It is not just the raw victims—there is a hard edge, which is why we sometimes have to use youth as CHIS. I can write to the hon. Member for Inverclyde (Ronnie Cowan) with the many safeguards that we put in place around that risking. It is overseen by the Investigatory Powers Commissioner, Lord Justice Fulford. It has been in existence since 1999. Sometimes—very rarely—we do it. We have to do it if we are to penetrate where encryption is used, and some of the county lines where it is not. It is not something we want to do, but sometimes it is useful and we have to do it.

I would be delighted to take up the case of Ashley and Nathan if the hon. Member for West Ham and I could have a meeting. How they have been treated is outrageous. That is not the message we want to send, and I will do everything to ensure that they are given the support that they should be given. I had experience of settling people who were under threat of death if they were caught, and some of them tragically were killed.

Finally, the hon. Members for Gedling and for West Ham asked what we are doing on the organisation to tackle crime. Some 128 tonnes of class A drugs were snatched last year. Thousands of people were arrested by the NCA and 628 guns were seized. As with the Contest strategy, which started under Labour and has been refined with mistakes learnt from and driven into the fingertips of Britain, we have got to a place over the last few years where the policing response is in the right place. We have regional organised crime units, we have the National Crime Agency above that and we have local forces. If somebody goes to visit their local regional organised crime unit they will see that collaboratively such units are bringing to bear some very good resource. I am happy to facilitate that for whoever wants to go.

The Met are not in the ROCU—it chooses to do it separately. I have lots of faith that the Met has the resource—it has much more resource per head than we do in Lancashire and Merseyside—but there is a plus and a downside to that. It is well worth exploring with the Mayor of London whether he thinks that that is the right apparatus. The regional crime units can bring specialists and specialist surveillance. We often find that county lines cross county borders and constabulary borders. That is why the regional organised crime units work. My one in the north-west is based in Warrington. I will visit it again, and regularly. I have been around all of them in the country. Part of what they do is about gathering better intelligence, as the hon. Member for Gedling said, and mapping organised crime groups. Individual forces have been pretty weak at finding a common denominator. Cumbria claims to have more organised crime groups per head than Merseyside or some other parts of the country. That is a bit different, so we have to improve the intelligence.

I am happy to facilitate visits to the NCA where we can. With the upskilling and the changes that we implemented last year to conditions to make them compete better, we are getting much better capability. We are starting to deliver and bringing to bear purely intelligence-led collaborative working. I am not deaf to concerns about neighbourhood policing or cuts to the police. I know that there have been cuts to the police—I do not deny that. We can sit here and argue all day about why that had to happen and whether our priorities are right, but I recognise that we have to do something about it and we are going to try. Certainly it is about prevention as much as arrest. That is true of so many crimes, even this one—we cannot arrest our way out of it. I will not go down the long path of legalisation, but we have to keep empowering local authorities. I will send hon. Members the lists of what we do in local authorities.

One thing that I see from my desk at the Home Office—the hon. Member for Gedling will have seen this—is lots of people not bidding for funds. Colleagues understandably come and complain, and I say, “But your force or local authority didn’t actually bid into it.” I am very happy to share that with anyone if they come and say that they have seen the fund and no one has got it in their community. I can find out about it, and we will go together. We will go to Brighton and say, “Why didn’t you bid for it?” Not everybody can have the funds, but it is interesting that there are some who always bid and get them and some who never bid at all.

Mr Evans, I will sit down now and let the hon. Member for West Ham wind up the debate.

Proceeds of Crime Act 2002

Ben Wallace Excerpts

Tuesday 24th July 2018 Written Statements

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

My right hon. Friend the Home Secretary is today laying before Parliament the 2016-17 annual report of the appointed person under the Proceeds of Crime Act 2002. The appointed person is an independent person who scrutinises the use of the search and seizure powers that support the measures in the Act to seize and forfeit cash used for criminal purposes and to seize and sell property in settlement of confiscation orders.

The report gives the appointed person’s opinion as to the circumstances and manner in which the search and seizure powers conferred by the Act are being exercised. I am pleased that the appointed person, Mr Douglas Bain, has expressed satisfaction with the operation of the powers and has found that there is nothing to suggest that the procedures are not being followed in accordance with the Act. Mr Bain has made two recommendations this year. The Government will give due consideration to Mr Bain’s recommendations.

From 1 April 2016 to the end of March 2017, over £134 million in cash was seized by law enforcement agencies in England and Wales under powers in the Act. The seizures are subject to further investigation, and the cash is subject to further judicially approved detention, before forfeiture in the magistrates court. These powers are a valuable tool in the fight against crime and the report shows that the way they are used has been, and will continue to be, monitored closely.

Copies of the report will be available in the Vote Office.

[HCWS919]

Foreign Fighters and the Death Penalty

Ben Wallace Excerpts

Monday 23rd July 2018 Commons Chamber

[Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)]

(Urgent Question): To ask the Secretary of State for the Home Department to make a statement on the Government’s policy on the rendition of UK citizens who may be subject to capital punishment.

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

The Government take their responsibility to protect the public seriously. We have been consistently clear, where there is evidence that crimes have been committed, that foreign fighters, for example, should be brought to justice in accordance with due legal process regardless of their nationality. The specific process followed will always be dependent on the individual circumstances of the case.

The case of Alexanda Kotey and El Shafee Elsheikh is ongoing and obviously sensitive. In handling this case, the Government and Ministers have complied with the European convention on human rights and with due process, and we must be mindful to protect the integrity of the criminal investigation. In this instance, and after carefully considered advice, the Government took the rare decision not to require assurances in this case. It would be inappropriate to comment further on that specific case. Foreign fighters detained in Syria could be released from detention without facing justice. We have been working closely with international partners to ensure that they face justice for any crimes they have committed.

I can provide little further detail to the House beyond what the Government have already outlined in previous statements, but I can reassure the House that our long-standing position on the use of the death penalty has not changed. The UK has a long-standing policy of opposing the death penalty as a matter of principle regardless of nationality and we act compatibly with the European convention on human rights. In accordance with the Government’s overseas, security and justice assistance guidance, we have taken into account human rights considerations. The OSJA provides that where there are strong reasons not to seek death penalty assurances,

“Ministers should be consulted to determine whether, given the specific circumstances of the case, we should nevertheless provide assistance.”

On Guantanamo Bay, again our position has not changed. The UK Government’s long-standing position is that the detention facility at Guantanamo Bay should close. Where we share evidence with the US, it must be for the express purpose of progressing a criminal prosecution, and we have made that clear to the United States. We have planned and prepared for the risk posed by British nationals returning to the UK as Daesh is defeated in Iraq and Syria, and we are using a range of tools to disrupt and diminish that threat in order to keep the public safe. Each case is considered individually to determine which action or power is most appropriate.

I cannot say more about individual cases in this circumstance, but the Government have set out the extent to which these tools have been used in our annual transparency report. We will also be introducing new offences in the Counter-Terrorism and Border Security Bill, which is being debated by parliamentary colleagues and which will strengthen our terrorism legislation to increase our ability to prosecute returning foreign fighters.

[Ms Abbott]

Thank you, Mr Speaker, for granting this urgent question.

The whole House is united in condemning terrorism and the work of ISIS, and anyone found guilty of terrorism should face the full force of the law, but in an increasingly dangerous and unstable world, one of our strengths as a country is our willingness to stand up unflinchingly for human rights. It is a key aspect of our soft power. The Minister will therefore understand the widespread concern that the Government seem willing to abandon their long-standing, principled opposition to the death penalty in this case.

Ministers claim that the decision in this case does not reflect a change in our policy on assistance in US death penalty cases generally or the UK Government’s stance on the global abolition of the death penalty, but I put it to Ministers that they cannot be a little bit in favour of the death penalty. Either we offer consistent opposition, or we do not. So let me remind the Minister: capital punishment is not the law of this country; we do not extradite people to countries where it is potentially a sentence for the crime; the death penalty is outlawed under the Human Rights Act 1998; and it is in breach of the European convention on human rights.

Successive Governments have always sought assurances that those who face justice in other countries will not face the death penalty. Extradition is expressly prohibited where the subject could face the death penalty under the Extradition Act 2003. The UK is a signatory to the United Nations convention against torture and other cruel, inhuman or degrading treatment or punishment, and extraordinary rendition is unlawful under this convention, but in his letter to the US Attorney General, Jeff Sessions, of 22 June, the Home Secretary reportedly wrote:

“I am of the view that there are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurances will be sought.”

Can the Minister explain why the Home Secretary did not come to Parliament to disclose this change of policy, what his strong reasons are, what advice he has taken, whether the Law Officers have been consulted, what assessment has been made of the impact of extradition arrangements with third countries where capital punishment is outlawed and what steps he has taken to ensure there has been no torture in this case, unlike in the more than 200 cases of abuse of detainees identified by the Intelligence and Security Committee in its report of 28 June?

The Minister will be aware that the mother of one of the cell’s victims has said that she is “very against” the use of the death penalty. Diane Foley said:

“I think that you just make them martyrs in their twisted ideology…I would like them held accountable by being sent to prison for the rest of their lives. That would be my preference.”

This decision to abandon our principled opposition to the death penalty is abhorrent and shameful, and I call on Ministers, even at this late stage, to reverse the decision.

[Mr Wallace]

I have listened carefully to the right hon. Lady’s statement, and I agree with much of what she said. It is not a matter of extradition, as she will know if she has read the news reports; it is a matter of whether we were going to accept a request by the United States to share evidence on individuals not within the United Kingdom and not within the European Union, but abroad. No one is extraditing anyone in this country, and we are not talking about UK citizens, so the premise of her question in the first place is, I am afraid, skewed.

However, I will try to answer the questions the right hon. Lady has put to the House. First, she asked why the Home Secretary did not come to the House to announce a change in policy. That is because he has not changed the policy of the United Kingdom Government. The overseas security and justice assistance guidance clearly states

“that there will be cases where, as an exception to the general policy and taking into account the specific circumstances, Ministers can lawfully decide that assistance should be provided in the absence of adequate assurances”.

That has been the policy for many, many years. All Ministers have done is consider, in response to a request from one of our allies to seek evidence on individuals detained elsewhere, whether we should share that evidence and whether we should seek assurances in doing so.

I notice that the right hon. Lady mentioned Mrs Foley. I heard that interview this morning, too, and Mrs Foley also said that she thought it was right that these people face justice in US courts. Who are we to deny that to those victims in the United States, if the United Kingdom holds some of the evidence that may make it possible? The United States has the rule of law and due process, as do we in this country. In our many mutual legal assistance requests—there are more than 8,000 a year among countries and police forces around the world—we do it on a case-by-case basis, in accordance with the law. Throughout the process, other Ministers and I consulted lawyers. We constantly checked with existing guidance and the policy.

We should not forget that the crimes we are talking about involve the beheading, and videoing of the beheading, of dozens of innocent people by one of the most abhorrent organisations walking this earth. It would be bizarre to say that if we were unable to prosecute them in this country, we should simply let them be free to roam around the United Kingdom so as not to upset the right hon. Lady. Not to share our evidence with the United States would be simply bizarre and would not be justice for the victims.

[Sir Michael Fallon (Sevenoaks) (Con)]

Daesh/ISIL is a proscribed organisation still committed to waging acts of terrorism against this country. On the wider point, if it is still too difficult to prosecute here at home those who have gone to work for or to assist Daesh/ISIL abroad, and if that is because of some obligation under the European convention on human rights, is it not time to take back control?

[Mr Wallace]

I hear my right hon. Friend. I do not believe it is necessary or right to withdraw from the European convention on human rights. I believe it is incredibly important that we all follow the rule of law—both our obligations under the ECHR and United Kingdom law—and that is what we have done in this case. Where we have gaps in our statute book, we are seeking to fill them. The Counter-Terrorism and Border Security Bill is passing through this House to make it easier to prosecute and to ensure we are able to do so, and it includes changes to extraterritorial legislation so that our offences reach such places. In this case, however, it was decided—because of the horrendous crimes being alleged, with victims on both sides of the Atlantic—that it was important to seek the most appropriate jurisdiction. When the request came in for sharing the evidence, this Government took the decision, rare as it is, to share that evidence without seeking assurances.

[Joanna Cherry (Edinburgh South West) (SNP)]

It goes without saying that we all condemn terrorism and that we all believe terrorists should be brought to justice, and it really is not good enough for the Minister to imply that any of us in the House is against terrorists being brought to justice. The issue is why and in what circumstances the UK Government are departing from their long-standing policy of opposing the death penalty “in all circumstances”. In using those words, I am reading from the UK Government’s death penalty strategy. Curiously, it was not of course renewed when it was due for renewal in 2016, so will the Minister tell us when it will be renewed?

Not only Members of Parliament but the public are getting increasingly frustrated by the failure of Ministers in this Government to answer questions at the Dispatch Box. I will give him another chance: what are the strong reasons that the Home Secretary says exist for departing from the policy? I have another question for him: what requests were made by the Trump Administration with regard to the waiver of our long-standing policy? Was the decision to waive our long-standing policy on the death penalty signed off by the Prime Minister, and will the Minister tell us whether the waiver will happen only in relation to the United States, or will it happen in relation to other countries and allies, such as Saudi Arabia?

[Mr Wallace]

The hon. and learned Lady is a wise and knowledgeable barrister in her own right, and she will know that coming to this House to discuss individual cases that are subject to ongoing investigations does two things: it puts the investigation and the potential to bring charges at risk; and it could undermine the likelihood of those individuals getting a fair trial if we comment on it. I am sure that she, as a student of justice, would not wish that to happen. I will therefore not comment further on the cases involving these individuals. As we have said, it is incredibly rare in the first place that such issues are brought to the House or discussed in it.

There was no request from the US Administration for us to vary our assurances. That decision was taken within the United Kingdom by Ministers, and the Prime Minister was aware of that decision.

[Mr Andrew Mitchell (Sutton Coldfield) (Con)]

I have no doubt that my right hon. Friend, who is a distinguished former soldier, would have shot these two people had he engaged them on the battlefield, but these are not comparable circumstances and there are important and long-standing conventions in play. Will he bear in mind that, on human rights, we cannot distinguish between good and bad people? Human rights are indivisible and belong to everybody.

[Mr Wallace]

My right hon. Friend is absolutely right. In fact, I would not just have shot such people on the battlefield; I would have acted within the law and with the powers I was granted by Parliament and by the Government of the day, as he and I did under emergency deployment. We acted within the law, and just being a soldier on the battlefield did not exempt us from the law or human rights obligations.

I totally agree with human rights, and that is why Ministers have acted in line with our legal obligations and, indeed, taken advice in relation to the European convention on human rights. The right hon. Member for Hackney North and Stoke Newington (Ms Abbott) mentioned rendition, but no one is rendering. The UK Government fundamentally oppose rendition and will continue to do so.

[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

The whole House would agree that those who commit barbaric crimes should be locked away for the rest of their lives, but what the Minister has said is a contradiction of the long-standing abolition of the death penalty strategy—No. 10 have reaffirmed these words today—which says:

“It is the longstanding policy of the UK to oppose the death penalty in all circumstances as a matter of principle.”

In this case, the Home Secretary seems to have unilaterally ripped up those principles on a Friday afternoon in the summer. What does the Minister think “principle” and “all circumstances” mean if somehow these circumstances are not “all circumstances”? Is he not actually saying that principles mean nothing to the UK Government any more?

[Mr Wallace]

No, I am not saying that, and my right hon. Friend the Home Secretary did not rip up anything unilaterally. My right hon. Friend followed the advice, as did other Ministers, of the OSJA—the guidance that has been in existence for very many years—which does allow Ministers to sometimes seek the ability to share evidence where there is an absence of assurances. That is what the OSJA has done, as part of the guidance for the Government, and it has been there for many years.

[Dame Cheryl Gillan (Chesham and Amersham) (Con)]

The UK is a proud member of the Council of Europe, which has made the abolition of capital punishment one of its main priorities. It has been fighting for 30 years to outlaw the death penalty, and it now wishes to extend that to countries with observer status at the Council of Europe, including Japan and the United States of America. Will the Minister confirm that he will support that policy of the Council of Europe and say whether he is convinced that the actions relating to these two men are compatible with our membership of the Council of Europe and the priorities we put on its activities?

[Mr Wallace]

In answer to my right hon. Friend, yes and yes.

[Hilary Benn (Leeds Central) (Lab)]

The Minister just referred, in quoting the code, to the absence of assurances. What the Home Secretary wrote in the letter to the US Attorney General was that he was not even going to seek assurances. Therefore, the question that has been asked by many Members still holds: why have the Government decided to breach a long-standing policy against the death penalty in all circumstances in this case? We all want these individuals, if there is evidence, to face justice, but it is precisely because of the barbaric nature of the crimes of which they are accused that we as a country have to show that we are better than them and what they did. That is why there is so much unhappiness, I suspect in many parts of the House, about what the Home Secretary has done.

[Mr Wallace]

I am not going to take a lecture about being better from a right hon. Gentleman who sat in a Government when people were being rendered from Libya and across to Libya. I think that is outrageous. As I have said to other Opposition Members, I cannot go into the exact details of this case because it is currently under investigation and to do so would risk undermining the operation. The OSJA is the guidance that Ministers have followed in the past and will follow in future. That is absolutely the case.

The right hon. Gentleman asks questions about the semantics of the letter and whether we asked or did not ask. We have said in this case that it is the judgment of Ministers, based on the operation, the investigation and the evidence before us, that we will not seek assurances in this matter.

[Mr Dominic Grieve (Beaconsfield) (Con)]

It was my understanding that it was a policy decision of the United Kingdom Government—which I do not criticise in any way—that we would not seek the return of these two individuals to the United Kingdom for public interest reasons, and indeed have deprived them of their UK nationality. However, is it not the case that to move on from there to facilitate their going to the United States to face trial for capital offences is a major departure from normal policy, if we are doing so by providing evidence under a request for mutual legal assistance? When was the last time that we departed from these principles—I am not aware of this ever having happened before—and why have we not asked for an assurance when it would be perfectly proper to do so? Those are the two key questions, and until they are answered, I have to say to my right hon. Friend that this issue will continue to haunt the Government.

[Mr Wallace]

My right hon. and learned Friend, having produced plenty of advices in his previous role as Attorney General to Her Majesty’s Government, will recognise the challenges that Ministers face in balancing the need for making the decision about trial—[Interruption.] Opposition Members chunter from a sedentary position. The reality, as my right hon. and learned Friend said, is that we all desire these people to face trial. If Ministers are faced with the prospect of not being able to try them in the United Kingdom but an ally seeks evidence that could lead to them being tried, Ministers have an obligation to the citizens of this country to balance that request and the likelihood of trial with the extent to which they will seek assurances, if we think that is important for keeping people safe in the United Kingdom. In this case, Ministers have made the decision that we are not going to seek assurances, because we do not think we have the evidence here to try them in the United Kingdom and we hope that a trial will be carried out in the United States. That is the balance. My right hon. and learned Friend may disagree with the balance we have chosen to take, but that is the responsibility of the Ministers holding the onerous task of trying to keep us safe, while balancing that with human rights.

[Sir Edward Davey (Kingston and Surbiton) (LD)]

Why did Ministers not seek death penalty assurances?

[Mr Wallace]

Because we are interested in seeking criminal justice in line with international law and our law. Where we feel the assurance might get in the way of being able to do that—[Interruption.] No, no; if the right hon. Gentleman faced the choice of either having to see these people go free and potentially wander around his constituency or go to trial, he might take a different view. In this case, Ministers looked at the request before them and, acting lawfully and in line with the OSJA, chose to take that decision.

[Sir Peter Bottomley (Worthing West) (Con)]

My right hon. Friend, at the beginning, stated Government policy. I agree with the Government policy, and I am glad that the Government do as well. Will the Minister confirm that people accused of murdering British nationals can be tried in this country if there is evidence, even if they are not UK nationals?

[Mr Wallace]

Yes. Citizenship is not a factor. If we have the evidence and we can try them, we will. However, the point was made earlier about rendition and so on. It is one thing to share evidence with an ally or international partner, but the question arises about how you bring them back. The individuals we are talking about, and foreign fighters in general, are currently being held by non-state actors in Syria. How those people are brought back is a big challenge for all European states—and indeed the United States.

[Chris Bryant (Rhondda) (Lab)]

The Government have quite rightly tried over the past year to persuade China, Russia and Pakistan to suspend the death penalty. Is that not going to look like arrant hypocrisy if we adopt a different standard when it applies to the United States of America’s request? Will the Minister now please answer—if he does not have the detail now, will he write to all of us?—the question that the right hon. and learned Member for Beaconsfield (Mr Grieve) asked: when did the Government last choose not to seek such assurances?

[Mr Wallace]

In my time as Security Minister, they have not. I will write to hon. Members and let them know on how many occasions we have done that. It will be for their summer reading.

[Kwasi Kwarteng (Spelthorne) (Con)]

Amid this whole debate, is it not absolutely essential that the perpetrators of these crimes should be brought to justice and punishment? That is the most important issue in all of this. Does the Minister not agree with that?

[Mr Wallace]

My hon. Friend is right. There are countries around the world that we recognise have due process, the rule of law, separation of powers and values we agree with. That is why we share intelligence with some of those powers and why, in the 8,000 mutual legal assistance requests a year, we often share evidence that leads to prosecutions in court. We will always do that where we think it is about seeking justice and the best place for that justice to be delivered. In this case, we felt the best place was the United States of America.

[Stella Creasy (Walthamstow) (Lab/Co-op)]

Everybody in this House agrees that the crimes being talked about are abhorrent and that there is a desperate need for justice, but no straw man should conceal the fact that that should never come at the loss of our principled opposition to the death penalty. If the Minister is so confident that this is the correct decision, will he publish the legal advice that he and other Ministers have had that confirms they do not even need to ask the question for this country? On that point, he says that the Prime Minister is aware of this decision. Does she agree?

[Mr Wallace]

On the first point, the hon. Lady will know that it has been the policy of numerous successive Governments not to publish legal advice. On the second point, the Prime Minister was aware of the decision. The decision was made between the Home Office and the Foreign Office, and she agrees.

[Michael Fabricant (Lichfield) (Con)]

I remind my right hon. Friend that the United States shares English law with us. A particularly ridiculous point was made by the SNP spokesman, the hon. and learned Member for Edinburgh South West (Joanna Cherry), when she mentioned Saudi Arabia, which patently does not. I also tell the House that there are widespread reports in the press that these people were responsible for beheading 27 western hostages with a serrated knife. If the evidence is not available in the United Kingdom but is available in the United States, I tell my right hon. Friend that it is absolutely right that they be tried there, because the last thing we want is these people being tried here, and then, through a lack of evidence, being found innocent and allowed to roam free in this country.

[Mr Wallace]

My hon. Friend makes a really important point. At the end of the day, this is about the security of our country and about justice being delivered where that can be done. For all the stories about the United States of America, it has a robust judicial system, a lot of which is based on English law, and for that reason we should not fear that sharing evidence with the United States is somehow comparable with sharing it with some other states that have been mentioned, or indeed that justice will not be done and that these people will not be given a fair trial if a trial is to happen. That is why I have said repeatedly from the Dispatch Box that I cannot comment in too much detail about these individuals.

[Kevin Brennan (Cardiff West) (Lab)]

The point about a principled opposition to capital punishment is that it exists in all circumstances—not just in areas where there might be a miscarriage of justice, but in the most hideous, heinous crimes of the kind we are describing, where very clear evidence is available. Will the Government tell the House whether, when they spoke to the American authorities, the American authorities told them that no such assurances would be given if the Government sought them?

[Mr Wallace]

In this particular case, much of the potential for a trial was based on a comparison of the United States’ statute book and ours, and whether the US had the suite of offences that would achieve a conviction and we did not. As I said to my right hon. Friend the Member for Sevenoaks (Sir Michael Fallon), that is why we are bringing in some new offences in the Counter-Terrorism and Border Security Bill, which is currently going through the House.

[Tom Tugendhat (Tonbridge and Malling) (Con)]

Does my right hon. Friend agree that one of the great shames in this is that we have not brought a charge of betrayal against these people? Fundamentally, what they have done is not just to bring violence against people in Syria but to undermine community cohesion in this country. That betrayal against our own state—that sense of wrong done to the citizens of this country—is a crime in itself and should be tried as one.

[Mr Wallace]

I can give my hon. Friend the assurance that throughout the whole process of this and many other cases that we have to make decisions on, we try to keep in balance the security of the nation from people who pose such a threat, whether they betray our values or betray their nation. We do that all the time and work incredibly hard to try to make sure that where we achieve justice, we do not do it by cutting corners and breaking international law, which we have seen happen in this House previously. The consequences that flowed from that are significant, which is why I can say, and said earlier, that the Government’s position on Guantanamo Bay is not as was reported in the media this morning. We absolutely oppose its existence. We wish it to be closed down and we would not, and will not, share information with the United States if individuals were going to end up in Guantanamo Bay.

[Thangam Debbonaire (Bristol West) (Lab)]

I am baffled as to which of the many questions running through my head to ask. I could ask why the Minister had no answer for the right hon. and learned Member for Beaconsfield (Mr Grieve), because surely precedent is extremely important in this case. The Minister does not even seem to know when the country last made such a serious decision not to seek reassurances. May I press him to commit himself to finding out those reasons, and to expressing at least some understanding of why it baffles so many of us, on both sides of the House, that he will not seek those reassurances in this case, given that he has just said that he would have done so if there had been the possibility of a prisoner’s going to Guantanamo? It makes no sense.

[Mr Wallace]

First, I have given that commitment. I will find out how many times this has been used in the past, and, as I have said, I will write to Members. As for the seriousness, the reason the Government oppose Guantanamo Bay—as, indeed, do the Opposition Front Benchers—is that it is not an institution that follows due process. It is set outside the bounds of international law. It is not in compliance with nearly everything that this country stands for. That is very different from the justice system of the United States.

[Andrew Percy (Brigg and Goole) (Con)]

Like, I suspect, the majority of my constituents and those in the country as a whole, I am perfectly comfortable with the position of the Home Secretary. These people are not United Kingdom citizens, and they are owed nothing by this Government. May I urge my right hon. Friend to ensure that the unrepresentative grandstanding that we have seen from some today will not knock the Government off its course of assisting the United States in the prosecution of these murderous terrorist scum?

[Mr Wallace]

My hon. Friend is right to point out that it is our constituents who face the consequences of not getting this right. The last thing on my mind at night and the first thing on my mind when I wake up in the morning is the balancing of risk—the balance between people who we know pose a risk, trying to plot to bomb us and kill us every single day; and the needs of my constituents and the constituents of the United Kingdom. The duty of Ministers is to balance that risk, and to try to get that balance right.

[Tom Brake (Carshalton and Wallington) (LD)]

Like other Members in all parts of the House, I am proud of the role that successive UK Governments of all political persuasions have played in fighting against the death penalty. Is there any evidence that the Minister can give to challenge the assertion quoted in The Times this morning, from a “ministerial source”, that the Home Secretary’s decision

“is contrary to all government policy, and negates over a decade’s unequivocal FCO statements and DFID programme spending principles”?

[Mr Wallace]

I do not think that I need to guide the right hon. Gentleman not to quote from a ministerial source on any day of the week, and I would advise any colleagues against doing so. That ministerial source, whoever it may be, is wrong.

[Jack Lopresti (Filton and Bradley Stoke) (Con)]

Will my right hon. Friend confirm that it is a vital strategic priority of our Government to work as closely as possible with the United States on a range of national security issues, and to assist us in our fight against international terrorism and extremism to help to keep our people safe?

[Mr Wallace]

My hon. Friend has made an important point. Every week, the United States and our European allies share evidence and intelligence that keep us safe. They are our friends in this ever-unstable world. It is incredibly important that we stay close to all our allies and continue in partnership both to prosecute people where they pose a threat—if it is here, then here, but if it is not, elsewhere, in the countries that share our values—and to share intelligence in order to make sure that all of us keep safe.

[Steve McCabe (Birmingham, Selly Oak) (Lab)]

In the case of Abu Qatada, the Prime Minister, in her former guise, secured a special guarantee that evidence gathered through torture would not be used against him. Whatever these people are accused of, will the Minister give the House an assurance that there are the same guarantees for Alexanda Kotey and El Shafee Elsheikh?

[Mr Wallace]

On the basis of all the evidence that the United Kingdom holds, we would not hold evidence that we knew resulted directly or indirectly from torture; nor would we share that evidence if we had it.

[Mr William Wragg (Hazel Grove) (Con)]

Having taken the mood of the House this afternoon, will my right hon. and gallant Friend ask our right hon. Friend the Home Secretary to reconsider the action that he has taken, given the specifics of this case?

[Mr Wallace]

No.

[Martin Whitfield (East Lothian) (Lab)]

I am glad that the Minister intends to write to the right hon. and learned Member for Beaconsfield (Mr Grieve) to answer his question, but can he confirm, as he was unable to answer today, that no precedent played any part in the decision made in this case?

[Mr Wallace]

The hon. Gentleman is correct. As I said in answer to a question from the right hon. Member for Hackney North and Stoke Newington (Ms Abbott), all cases are taken on a case-by-case basis, and that will be the case in the future as well.

[Mike Wood (Dudley South) (Con)]

Does my right hon. Friend agree that the key human right in this case is access to a full and fair trial, and that the UK Government must do everything they can to make sure that is possible? If UK agencies and authorities were to withhold evidence they have in their possession, it would put that fundamentally at risk?

[Mr Wallace]

My hon. Friend is right that it is very important that anyone detained on suspicion of being a foreign fighter faces a full and fair trial in accordance with our values and laws and international law, and that is what we are trying to achieve.

[Andy Slaughter (Hammersmith) (Lab)]

Last week the Foreign Office confirmed the Government’s position that the death penalty undermines human dignity and that opposing it was in all circumstances a matter of principle. So that confirms what I think the Minister has said, which is that this is an individual decision by this Home Secretary. But the only reason the Minister seems to have given for why the assurance was not sought is that that would not facilitate trial in the United States, so has the US imposed a condition that that assurance is not sought in this case?

[Mr Wallace]

No, I did not say that. This is a Foreign Office-Home Office-led decision of the two Ministers, so quoting from the Foreign Office I would say that the true guidance for the policy is in line with the OSJA guidance.

[Michael Tomlinson (Mid Dorset and North Poole) (Con)]

One of the biggest challenges we face today as a society is countering violent extremism. What is my right hon. Friend’s Department doing to strengthen the sentencing framework for terrorism-related offences?

[Mr Wallace]

The new Counter-Terrorism and Border Security Bill increases some of the maximum sentences available. On the wider area of my hon. Friend’s point about prevention, that is why we embrace and promote the Prevent policy in Contest.

[Sammy Wilson (East Antrim) (DUP)]

These terrorists sneaked out of the UK to join a bunch of murderers who were at war with this country, and they then publicly boasted about beheading and torturing innocent hostages. Does the Minister not agree that it would be a betrayal of their victims and of this country if he did not supply information to the United States which would enable these people to be brought to justice and held to account, and that our only concern should be that that is what happens and that the US courts hand out whatever sentence they believe these people deserve?

[Mr Wallace]

It is of course a general policy and principle that we will do what we can to help acquire or share evidence with our allies to bring to justice people who have perpetrated violence through terrorism or any other offence against citizens, whether our citizens or those of other countries. I will not talk about this individual case and the United States, but the reality is that we should, of course, work to make sure that people face justice, but that justice must be in line with international law and our values, and with the due process that should be awarded to people who are innocent until proven guilty.

[Maggie Throup (Erewash) (Con)]

Does my right hon. Friend agree that any trial under any circumstance should always be fair and transparent because the relatives and friends of the victims deserve the best?

[Mr Wallace]

My hon. Friend makes an important point. Often in all of this—and, indeed, often in the media reporting—people forget that there are victims. The right place for the victims to see what is going on and understand the full picture is at a trial. That is why sometimes leaks in the media do not help anyone. Victims can certainly be upset when all these details come out in trials, and that is what we are trying to help by the sharing of evidence with the United States.

[Mike Kane (Wythenshawe and Sale East) (Lab)]

A number of us mourned the death this month of Cardinal Tauran, who told us that the conflict with radical Islam would be an intergenerational struggle that would require education, dialogue and, yes, force. Does the Minister not agree that facilitating vengeance in the judicial system via the use of the death penalty will make our world a much less safe place?

[Mr Wallace]

I do not believe that the death penalty is something that this country should have. I do not think it is what the public, or indeed this House, would support. However, I also respect the will of a number of countries around the world, including the United States, that have decided to have the death penalty in certain circumstances. As an ex-soldier, I am also aware that all states, including those that oppose the death penalty, use lethal force when they have to do so to keep themselves secure. We risk being seen as hypocrites if we say that we will never make an exception for assurances, while being prepared to use lethal force on the battlefield to kill people without due process. That is the balance that we always have to strike. It is not easy, but we do it to try to keep people safe.

[Huw Merriman (Bexhill and Battle) (Con)]

While I understand the concern of those who oppose the death penalty, I also understand the concern of my constituents that if this country has information or evidence that is not passed on to our closest ally, the United States, that will send out a very wrong signal indeed when this House calls for more action in countries where there is a war that directly impacts my constituents. Will the Minister confirm, in order to reassure us all, that if advice has been taken and if decisions have been overreached in terms of ministerial responsibility, they will of course be subject to the courts?

[Mr Wallace]

Yes, my hon. Friend is correct. All Ministers took these decisions in line with the law. They were acting lawfully, within international law and within our domestic obligations.

[Alison Thewliss (Glasgow Central) (SNP)]

Sending people to face the death penalty is unacceptable, and to be party to doing that undermines our own credentials. The Minister did not answer the question put by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry). When will the Government renew their own policy on the death penalty? When will that be brought before this House?

[Mr Wallace]

The hon. Lady makes one fundamental mistake. The two individuals in question are not under our control. They are not in our jurisdiction. We have no contact with them whatsoever. The reality is that this is based on a request from the United States Government to share evidence so that those individuals can potentially face trial in the United States.

[Jim Shannon (Strangford) (DUP)]

I thank the Minister for his comments so far. Those two men are not UK citizens. If the evidential base is as strong as the media suggest, they will be charged and tested in the US courts for the murder of two Americans. Is it not right that it should be the US courts that deliberate on those horrific murders?

[Mr Wallace]

There are American victims of this crime, and whoever the right people to face the consequences of that are, they should of course face justice where those victims are, as should be the case in relation to British victims here. It would have been good if we could have done that, but in this case, the decision was reached that the United States was the best place for those individuals to face justice, in the United States criminal system.

Non-EEA Visas: Inshore Fishing

Ben Wallace Excerpts

Tuesday 17th July 2018 Westminster Hall

[Angus Brendan MacNeil]

The hon. Gentleman is absolutely right. I cannot understand what people prefer about the sunny Philippines when they could be living on a fishing boat in the rain on the windy west coast of Scotland or Northern Ireland, but that is just me.

The Home Office also mentioned welfare, but I would argue that welfare is far better on the west coast of Scotland and Northern Ireland, where boats go home each night. If the Government are that concerned about welfare, they should check every boat outside the 12-mile limit. As the hon. Member for Moray said, those boats are fishing 92 hours on the trot, and giving people perhaps four hours off. We do not know what is happening on those boats. People are illegally working because they are outside the 12-mile limit. Just about the entire west coast of Scotland is inside the 12-mile limit, even though the waters go further than 12 miles. That is a good thing, and we welcomed it when it happened, because we kept those waters for our own boats on the west coast. Now we have been snookered by the Government in London and the Home Office, which are focusing on security rather than the economy. With the greatest respect to the Minister, it is instructive that they have sent the Minister for Security to deal with this immigration matter, and that will annoy many people.

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

With respect to the hon. Gentleman, I know he is a decent fellow but that is a slightly cheap point. I am here because the Immigration Minister is currently giving evidence to a Select Committee. She responded to the almost identical debate last week, but she cannot be in two places at once. She is incredibly happy to engage with all Members on this subject, and no discourtesy is intended by sending the Minister for Security to respond to the debate. The Immigration Minister cannot be in two places at once—the hon. Gentleman might like to make politics out of that, but it is a simple fact.

[Angus Brendan MacNeil]

The politics to be made out of it are in the way the Home Office does not see the economy and its needs, but sees migration as a security issue. Migration should be seen as beneficial to the economy. The Security Minister being sent to the debate is a totemic point that says it all about our dealings with the Home Office in recent years. I must be straight with the Minister about it. He is a decent fellow and probably means well, but he wears a particular Government hat and it does not help that the Security Minister is here.

The case has been made time and again by all of us—for the economy, jobs and the vibrancy of communities. The matter is a competency of the UK Government. We need them to act; it is their responsibility. They guard the power jealously and will not devolve it. We are not like Switzerland where 26 cantons hold half the visas. Everything is held centrally and it is the Government’s responsibility. The Republic of Ireland has an advantage, as the hon. Member for Strangford (Jim Shannon) has told me, because it can get fishermen in when it wants.

I am not sure how much progress we will get today but I make a plea to the UK Government, whose responsibility it is—the European Union is not to blame—to move. I am able to put things more strongly than Conservative Members from Scotland, although I am sure they feel the same frustrations. The UK Government—in particular the Home Office—must move, get on with the day job and get it done, so that fishing boats can go out and get on with their day job. The Minister may be smiling, but it is vital for people that the boats get to sea, the fish are caught, and jobs and the economy get going as a result. People in my constituency are frustrated, and I hope that I convey half their anger today. We need the pen to be lifted at the Home Office, to get the boats working and the people in question into the country.

--- Later in debate ---

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

Thank you, Mr Betts; it is a pleasure to serve under your chairmanship. I congratulate my hon. Friend the Member for Moray (Douglas Ross) on securing this debate. I noted earlier the point made by the hon. Member for Na h-Eileanan an Iar (Angus Brendan MacNeil) about the Security Minister answering the debate. The Home Office means no discourtesy by asking me to answer the debate. The Minister for Immigration, my right hon. Friend the Member for Romsey and Southampton North (Caroline Nokes) is attending Cabinet—not a Select Committee, and she answered a debate here only last week. She will always be available to do it.

I think they probably sent me, the Security Minister, because I represented north-east Scotland in the Scottish Parliament a long time ago. I have many fond memories—

[Angus Brendan MacNeil]

Will the Minister give way?

[Mr Wallace]

No, we do not have time. I am afraid the hon. Gentleman’s Front-Bench spokesperson spoke for way longer than the other two so the Scottish National party has used up most of its time already.

I lived in Donside, with an office in Stonehaven, and have fond memories of meeting with the Scottish Fishermen’s Federation, the Scottish White Fish Producers Association and the Scottish Pelagic Fishermen’s Association. I remember learning the differences between pelagic and demersal fish and so on. I have some experience. Indeed, I sat on the European committee and looked at reform of the Scottish fisheries policy when I was in the Scottish Parliament. At that time, the hon. Member for Na h-Eileanan an Iar was probably down here in Westminster. That may be why they sent the Security Minister; he has some experience and knowledge of those things. My grandmother’s family actually hails from Keith in Moray. A large part of my family, on both sides, are from Keith and Aberdeenshire. They were Unionists, I hasten to add, and still are.

I have listened carefully to the points that were made by all hon. Members and have noted the many concerns. It is tempting, as the Security Minister, to ensure that the Immigration Minister always attends these debates by simply going off script and just giving a commitment—I guarantee they will never ask me again.

I hear the strength of feeling, which is cross-party and deeply felt. When there is a skills shortage, whether in agriculture, fisheries or aerospace—which employs 6,000 workers in my constituency—it is incredibly important that skills requirements are met. Skills are like oxygen to an industry. We can debate regulation and tax, but skills are needed. That is not to say that we have to let employers off the hook for investment in their workforce. We should bear it in mind that while we remain members of the EU, we have a pool of 500 million people to recruit from. Youth unemployment in other fishing countries, such as Spain and Greece, is well over 30% or even 40%. It is interesting that we have been unable to recruit people from those countries. Employers have to ask themselves about wage rates and the Government have to ask themselves how we can do more to recruit people.

[Jim Shannon]

Will the Minister give way?

[Mr Wallace]

Sorry, we do not have a great deal of time. I am happy to speak to the hon. Gentleman afterwards.

Otherwise, we are in danger of constantly undermining employment rights and the basic standards that we expect by grabbing people off the shelf from further and further afield to meet demand. That is something that we should not take lightly. We have to ask why only 10% of the English fishing fleet’s workforce are from the European Union or non-EEA countries, but 35% of the Scottish workforce and 53% of the Northern Irish workforce are. There must be a reason for the difference.

[Jim Shannon]

I referred to the Department for Infrastructure, which is responsible for this in Northern Ireland. It did a Europe-wide recruitment programme and filled only five out of 150 jobs. Clearly, a lot of effort has been put in by the Northern Ireland Assembly and by other bodies in the United Kingdom. With respect, that proves that we need to trawl more widely to recruit fishermen from the Philippines, because that is the only place potential workers are coming from.

[Mr Wallace]

The Northern Ireland Assembly has to be commended for making that effort, but we also have to mention salaries. Margins in fishing and agriculture are not large, which is a big challenge, because people cannot rustle up a high salary if they are not making much profit, but basic economics says that if someone cannot recruit, they have to look at terms and conditions, and obviously salaries.

My right hon. Friend the Immigration Minister and I have looked carefully at some of the good ideas put forward by the Fishermen’s Welfare Alliance. I am open to the idea of the temporary scheme that existed between 2009 and 2012, and I will press the Immigration Minister, and the Government more broadly, to explore that to allow some of those issues to be addressed. We have also had representations from the trade unions, which wrote directly to the Home Office to express their concerns about proposals to lower the bar for the admission of fishermen working in the inshore fleet. In their view, that might weaken our commitment to increase employment opportunities in the UK’s domestic maritime sector.

As a Home Office Minister, I understand the industry’s pressing need, but I also understand that that need is not unique to fishing but is clearly present in agriculture, whether that is soft fruit or other parts. It is also extant for other skills. When I was a Northern Ireland Minister, there was a need for skills in the tech and digital industries, because firms were moving from Northern Ireland to the Republic of Ireland because they could find the skilled workforce more easily there. We have to tackle the skills issue in a way that reflects the pressing need, and invest in our domestic workforce at the same time. The Home Office should be open to looking to relieve some of those pressures temporarily, however, as it has in the past. I will press the case for doing that for fishing in the Department and to the Immigration Minister, as they are doing for other parts of the economy that face those issues.

As we approach leaving the European Union, it will be easier to strike the balance between immigration policy and domestic skills policy. The Government will obviously be listening to the industry and stakeholders about that to inform a new immigration Bill, in line with the new fisheries strategy that the Department for Environment, Food and Rural Affairs published, which looks at what we will do with our fisheries after Brexit to ensure that we have the skills to match.

In the past, there have been successful short-term schemes, but we need to stimulate our domestic skills base as well and ensure that the terms and conditions are met in a way that looks after people who come here to work. In offshore fishing, where there has not been that restriction, we have seen considerable exploitation of workers in some cases. Border Force has stopped factory ships, where people are part of the human slavery that has been going on. We have to be alert to that position. [Interruption.] It is not independence, by the way.

We have to listen to the independent Migration Advisory Committee, which has previously looked at the issue. It is looking at several factors again as we approach Brexit, and we will be open to its research-based views and suggestions. The Immigration Minister has obviously heard the previous calls from hon. Members, and I will ensure that this debate is reflected to her when I see her later today.

Hon. Members should not think that the Government do not take the importance of the fishing industry seriously; we absolutely do. We do not think that people working on boats are unskilled—clearly, they are. I have been up to some of the fishing boats at places such as Fraserburgh and Peterhead, and my seat neighbour Fleetwood has one of the main fishing processors in England, so I am not blind to the industry. The tier 2 visa is for work at a graduate level. As a non-graduate myself, perhaps there is something to examine in the way we define skills after Brexit.

It is a serious matter, and we should be trying to get on and deal with it. We will listen to representations from all hon. Members, but we have to bear in mind the wider immigration picture, no matter which party is in government—the rules were set in 2008. It is true that immigration and skills affect the constituencies of the hon. Members present, who predominantly represent north-east Scotland, but also Northern Ireland and the Western Isles, but they also affect all industries, and we have to address that in future.

There is no substitute for long-term planning for skills. I am acutely aware that employment, long-term planning and education in Scotland have been the Scottish National party’s responsibility for a very long time. If the fishing fleets are desperate for workers, what have the Scottish Government been doing for the last 10 years to prepare their workforce and people to come forward and fill those places? The answer is that education in Scotland has declined under the SNP’s leadership, which is tragic, because my forefathers in Keith were teachers. That is potentially why there is a big problem. [Interruption.] Although they are crowing from the side lines, the SNP—

[Mr Clive Betts (in the Chair)]

Order. Occasional comments are okay, but let us tone it down a bit.

[Mr Wallace]

The best way to approach a skills problem is through long-term investment, coupled with short-term measures to fill the gaps. At the same time, we need to address conditions and workforce problems so that people want to work in industries such as heavy industry, fishing or agriculture. I have listened to the genuine concerns constructively expressed by my hon. Friend the Member for Moray, and I will take forward his ideas to my right hon. Friend the Immigration Minister and into Home Office policy.

Draft Investigatory Powers (Codes of Practice and miscellaneous amendments) order 2018

Ben Wallace Excerpts

Monday 16th July 2018 General Committees

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

I beg to move,

That the Committee has considered the draft Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018.

It is a pleasure to serve under your chairmanship, Mr Bailey.

The Regulation of Investigatory Powers Act 2000—RIPA—provides the regulatory framework to govern the use and authorisation of a number of investigatory techniques, ensuring that their use by public authorities is compliant with the right to privacy under article 8 of the European convention on human rights. The provisions of RIPA and related legislation, including the Investigatory Powers Act 2016, play a most important role in the work of our law enforcement and intelligence agencies, as well as other public bodies with enforcement or regulatory functions. The techniques authorised under these Acts are crucial in enabling investigators to obtain intelligence and evidence that can prevent terrorist attacks, disrupt the activities of serious organised crime groups, establish culpability so that offenders can be brought to justice and effectively enforce a long list of laws and regulations.

The framework that RIPA established ensures that there are strong and transparent safeguards appropriate to the intrusive nature of these investigatory powers, ensuring that they are used lawfully and proportionately. The Investigatory Powers Act fundamentally overhauled the safeguards around a number of powers and the oversight of all investigatory powers. All these safeguards, the clear requirements set out in the codes of practice and the independent oversight provided by the Investigatory Powers Commissioner establish clear limits around the use of these powers, and ultimately provide reassurance to the public that the powers are being used in ways that serve the best interests of us all.

The order introduces three revised codes of practice as well as making some amendments and updates to the public authorities authorised to use surveillance powers under RIPA. The order also makes a minor technical amendment to provisions on the use of combined warrants under the Investigatory Powers Act 2016. The revised codes of practice provide guidance on specific investigatory powers that are regulated by RIPA, as well as by the Police Act 1997 and the Intelligence Services Act 1994. These are covert surveillance, property interference, covert human intelligence sources and the investigation of protected electronic information.

The CHIS and covert surveillance codes of practice, originally issued in 2002 and last updated in 2014, and the investigation of protected electronic information code have been updated to ensure that the guidance remains relevant and keeps pace with change. These updates are necessitated mainly by the changes made by the Investigatory Powers Act. This includes reflecting the creation of the new Investigatory Powers Commissioner, the changes made by the introduction of equipment interference as a technique separate to the existing property interference powers, and the need to mirror the strengthened safeguards for the handling of confidential and privileged material introduced by the Investigatory Powers Act.

A number of other updates and clarifications to the guidance reflect and improve current operational practice. These include expanded guidance on procedures to be followed where investigators use the internet for covert investigatory purposes, where covert surveillance is undertaken by means of drones and provisions intended to reinforce the safety of covert human intelligence sources.

Alongside the codes of practice, we are updating the lists of the public authorities and officers able to authorise the use of directed surveillance and covert human intelligence sources. These lists are in themselves a safeguard against the inappropriate or indiscriminate use of the investigatory powers, as they ensure that their use is limited to specified public authorities and can only be authorised by specified officers within those authorities, who have sufficient authority and expertise. These updates ensure that public authorities can continue to authorise the use of investigatory powers following changes to their organisational structures, and remove any authorities that no longer require the powers.

Finally, we are taking this opportunity to make a minor correction to the arrangements under the Investigatory Powers Act for authorising a combined warrant. This corrects a technical error, which meant that Parliament’s clear original intention that warrants should last for six months was limited to the clearly far too short period of two working days. This can never have been the intention, and so we are taking the opportunity to correct the error. This is a timely improvement that will be of assistance to our intelligence services as they set about their tasks of identifying and disrupting threats to our national security.

All the changes made by this order, both to the codes of practice and the authorisation framework for the powers, ensure that the highest standards continue to be required of those using the powers, and that they are underpinned by ever stronger safeguards against their misuse.

I commend the order to the Committee.

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[Mr Wallace]

I am grateful to all parties here for their support, in principle, for these guidelines. As I said at the beginning, they are designed to reflect changes—for example, in the areas around oversight. The three commissioners have been folded into the judicial commissioners—the Investigatory Powers Commissioner— and that needs to be reflected. They are also designed to reflect changes in technique since RIPA was introduced. Equipment interference used often to be included under property interference, but is now a technical capability—how the law enforcement agencies and intelligence services can access information within an electronic device. To some extent and in some examples they would use equipment interference, so that is only right and proper.

On the increasing safeguards, I specifically changed the guidance to increase the onus on journalistic protections, to ensure that that is properly reflected. There are now whole sections of the guidance that relate to what a police officer or a user using these powers has to follow. I think that was important.

On the subject of juvenile CHIS, it is regrettable that there are young people, below the age of 18 and even 16, who are engaged in criminality, sometimes with gangs; we see it more in county lines, as well. On some very rare occasions, with the authority of the parent, guardian, social worker or other person, we can authorise young people to be part of a process where they can share information, or indeed be tasked. It is not some sort of Alex Rider, secret agent or 007 scenario—my children and I enjoy those books on long car journeys—but a sad reflection of how criminality is working.

We wanted to change the operational impact. At the moment, under RIPA, there is authorisation for one month at a time. We said that that was leading to a stop-start situation and we needed a four-month period—with oversight, obviously. We wanted to slightly broaden who could give the authority, because the guardian or other individual might be engaged in the abuse or the problems that the young people might be tasked with. That is simply a reflection of our trying to ensure that we provide a broader number of people who can safeguard it and extend the time so that we can have an operational impact.

I am happy to write to my right hon. Friend the Member for Maldon about the extension in who can use some of the powers—he referred to the General Pharmaceutical Council—and explain why that is necessary.

The hon. Member for Paisley and Renfrewshire North and I might have a slightly different opinion of the ruling that he mentioned. Yes, the European Court of Justice ruled that the Data Retention and Investigatory Powers Act 2014 did not provide for enough independent authorisation. That is why we conceded that in court—I will grant him that. However, the broader stuff on our regime being indiscriminate, and on required notification, was not agreed with, and the UK Government’s case was upheld by the Court. The regime was proportionate and necessary, and recognised the reality of how some of this has to be dealt with.

I can give all colleagues confidence that the judicial commissioners are formidable, independent individuals. Lord Justice Fulford and his judicial commissioners are all senior or retired judges. I promise the Committee that they will not be a pushover. I have met them a considerable number of times; as members of the judiciary, they are not shy about asking when they think something is wrong.

We should be proud of where we have ended up. I would not like to see any further erosion of the balance that we have, which is a gentle one. I think Liberty is before the court at the moment trying to prevent us even from having communications data; we would not then even be able to find out about someone’s telephone when they were arrested. That would, in my view, be unacceptable and put the public at huge risk. It is time for some people to put aside their purity and realise that this is a balance between our constituents’ rights to life and to privacy. I think we have got the balance just about right. That is why I am very grateful for all parties’ support for tonight’s measures.

The guidelines are there to be used by the people using the powers. If they follow them and the judicial oversight, we will be in a better place—one where our rights are protected, but our law enforcement and intelligence services can get on and do the job of keeping us safe.

Question put and agreed to.

Oral Answers to Questions

Ben Wallace Excerpts

Monday 16th July 2018 Commons Chamber

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

14. What steps he is taking to tackle the fraudulent use and sale of British passports.

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

The Home Office shares reports of the loss or theft of UK passports via Interpol to prevent the illegal crossing of borders. We also work closely with partners here and overseas to share information and intelligence on that threat and the websites that purport to sell false and genuine documents for criminal purposes.

[Stephen Doughty]

There have been some very worrying reports in the past month that British passports have been stolen and sold for large sums of money in countries around Europe. How many passports have been stolen and subsequently suspended in the past year? Does the Minister agree that it is crucial to co-operate through Europol as well as Interpol to ensure that those stolen identity documents are not used?

[Mr Wallace]

In 2017, less than 1% of passports were reported stolen, but to tackle the threat and the abuse of stolen passports overseas, we have based immigration enforcement officials at international locations—embassies, high commissions and key transit points—to work not only with law enforcement to try to catch the people committing the fraud, but with airlines and border points so that they can spot what a false passport looks like.

[Douglas Ross (Moray) (Con)]

The Home Office has confirmed that it takes on average 73 days for people to report lost and stolen passports and that many countries do not regularly use Interpol’s stolen and lost travel documents database to check lost and stolen passports. What are the Government doing to encourage the true utilisation of both methods to stop the illegal trade of those documents?

[Mr Wallace]

My hon. Friend makes an important point, which is why in 2014 the Passport Office introduced an online tool for reporting. Since then, the number of passports lost has increased annually by 33%, so it is much easier to ensure they are reported and then picked up when being used.

[Gordon Henderson (Sittingbourne and Sheppey) (Con)]

15. What his Department’s target is for the length of time between a person’s immigration application being refused and their being deported from the UK.

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[Dr Caroline Johnson (Sleaford and North Hykeham) (Con)]

17. What steps the Government are taking to confiscate money from criminals; and how he plans further to strengthen the asset recovery regime.

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

We have recovered £1.6 billion under the Proceeds of Crime Act 2002 since 2010 and frozen many hundreds of millions more. The Government are also implementing the recommendations made in the Public Accounts Committee report of 2016. Our asset recovery action plan, to be published shortly, sets out how we will strengthen the regime by making the best use of new and existing powers, improving operational systems and ensuring that efforts are targeted effectively.

[Dr Johnson]

I thank my right hon. Friend for his answer. Lincolnshire police have been working hard to reduce hare coursing. The removal of dogs has been the most effective deterrent, but kennelling costs are now running to tens of thousands of pounds for Lincolnshire police. Will he look at what can be done to ensure that these costs, too, can be recovered from the criminal, rather than being borne by the taxpayer?

[Mr Wallace]

Under the Proceeds of Crime Act, police and prosecutors have the power to recover either profit or money accrued by those criminals from those processes. When they take that money, under ARIS—the asset recovery incentivisation scheme—50% of it or more will be released back to law enforcement prosecutors so that they can invest.

[Sir Edward Leigh (Gainsborough) (Con)]

18. What steps his Department is taking to improve religious literacy among UK Visas and Immigration staff.

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[Robert Courts (Witney) (Con)]

T2. Declaring an interest as someone who used to prosecute for Oxfordshire trading standards, I know the immense distress caused to the elderly by rogue traders. Disturbing research suggests that up to 1 million people are on what are called “suckers lists” of people who are known to be vulnerable and are repeatedly visited. What are Ministers doing to ensure that banks and trading standards link up and can help those who are known to be vulnerable?

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

My hon. Friend asks an important question. We have set up the joint fraud taskforce, bringing trading standards and the private sector, including banks, on board, along with law enforcement agencies, to make sure we work together. For example, it has produced a banking protocol under which banks train till staff to spot vulnerable people being exploited. So far, that work has prevented £21 million from being taken out of bank accounts and led to 180 arrests.

[Carolyn Harris (Swansea East) (Lab)]

Five months after the interim guidance on discretionary leave for victims of modern slavery, published in response to the PK (Ghana) judgment, too many victims are still being left in limbo. Do we know how many victims have received temporary status or even know their status? When will the Government update their guidance and end this human Russian roulette?

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[Mrs Sheryll Murray (South East Cornwall) (Con)]

T6. On Thursday, the Brexit Secretary, when discussing the number of people coming to our country post Brexit, said: “we will assert stronger security checks at the border”—[Official Report, 12 July 2018; Vol. 644, c. 1157.]What discussions and agreements have been made with the Irish Government to strengthen the common travel area in a similar way?

[Mr Wallace]

The common travel area was in existence long before the EU and all parties have agreed and signed up to continue those historical arrangements. In Northern Ireland, for example, we have always done checks in respect of immigration, customs and duty and, of course, simple criminal movement of individuals. That has always gone on and will always do so.

Counter-Terrorism and Border Security Bill (Seventh sitting)

Ben Wallace Excerpts

Tuesday 10th July 2018 Public Bill Committees

[Nick Thomas-Symonds (Torfaen) (Lab)]

It is a pleasure to serve under your chairmanship, Mrs Main.

We had a wide-ranging debate on this issue in Committee last week. I want to raise the specific issues in amendments 42 and 43 and to support what the hon. Member for Paisley and Renfrewshire North said about the importance of legal professional privilege. It is obviously a cornerstone of our criminal justice—indeed, our justice—system and is admired around the world as a gold standard, as the hon. Gentleman pointed out.

However, in the cases we are talking about, it is not as if we must have a trade-off between two purist positions. In my view, there is a simple, practical solution to the problem before us, which should satisfy the Government’s concerns about people who are detained passing on messages to others through a lawyer who either acts knowingly or is not in the know. I responded to the Minister on that point last week.

Legal professional privilege is circumscribed by the codes of conduct that govern lawyers in our country. No lawyer can be a party to an illegal act, and they have, of course, to be very mindful of money laundering regulations. The practical solution I suggest in amendment 43 is that the Law Society approve solicitors to provide advice to persons detained. Such solicitors would be subject to the professional code of conduct, which would plug the gap in the legislation as it stands, with people simply not having access to a lawyer at all.

I put that suggestion to Richard Atkinson, the co-chair of the Law Society’s criminal law committee, in the 26 June evidence session. I said:

“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 replied, “Absolutely. Again, code H”—he was referring to the Police and Criminal Evidence Act 1984—

“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.”—[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 27, Q56.]

This proposal would not involve a large number of cases. The Minister will recall his own questions to Richard Atkinson, when he asked whether a lawyer would be required every single time there was a stop, which clearly is not the point. The provisions apply only when we get to the questioning stage, as set out in the evidence.

The right to private legal advice can be maintained if we adopt the idea that solicitors approved by the Law Society can provide that advice. The arguments that the Minister made against the proposal last week—that those lawyers would somehow inadvertently hand on information—are incredible. These lawyers would be subject to training in this area and would have to act with the highest professional standards. Nor would it be a restriction on the right to confidential legal advice to have a limited number of, say, panel lawyers who are able to provide it.

I urge the Minister to go back and look at this proposal for Report stage. The Government’s concerns can be allayed if they put in place a practical scheme that would be limited only in terms of the number of people who would have to deal with it but that would have the crucial effect of maintaining the very important principle of legal professional privilege, upon which our criminal justice system is based.

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

Good morning, Mrs Main. I am delighted to serve under your chairmanship.

The challenge is that we are losing sight of what a schedule 7 or a schedule 3 stop is: it is to establish the purpose and intent of an individual travelling at our borders. The vast majority of the current stops under counter-terrorism measures are for people leaving the country and not returning. We do them in an environment in which the new challenge is the digital data that people are carrying with them.

If we were standing here in 1992, the limit of the examination would be what people had on them—what they had in their bag and pockets. Those things can currently be examined; the power to stop someone to do that, in public or in private, has been in existence for many years, whether it is a customs and border stop or simply an immigration stop. Some of that is purely screening and may take minutes, which was part of my questioning to the Law Society of England and Wales when it gave evidence.

The core of these schedules is to establish that purpose and intent. Because of the challenge of digital media, it is obviously harder to establish that in the shorter periods you might have been able to do it in in the past. That is why the last Labour Government introduced the power in 2000. If we magnify these things, 18 years on, when everyone has a smartphone—not just a mobile phone—which can carry gigabytes of data, we can understand the potential challenge our law enforcement agencies face at the border.

That, at its heart, is what this stop is about. It is not about an interview under caution at a police station, which can usually be an integral part of the investigation and evidence. The verbal evidence given in these stops is not admissible in court, so if I give up information in my interview, that cannot be used in itself as the basis of a prosecution. That is why that is there.

[Nick Thomas-Symonds]

I am grateful to the Minister for giving way. All that he has said so far is perfectly fine. It is just that there is a specific provision in the Bill that allows for an examining officer to overhear what is said between lawyer and client. The Government’s justification for that is the concern that the lawyer would, somehow, inadvertently pass on information. I have suggested a practical solution—I put it to Richard Atkinson of the Law Society in the evidence panel—that would deal with all the concerns the Minister has put forward so far, but also maintain legal professional privilege. What is wrong with that suggestion?

[Mr Wallace]

I will come to that. I am setting the scene of why we need this power.

Then we come to the two amendments and the ancient right to access a lawyer and legal advice. First, on the right to a lawyer, if you are detained beyond an hour at these stops, you then have a right to a lawyer. I suspect that, in 2000, when this law was introduced by the last Labour Government, it was decided that an hour was a reasonable time for that type of screening examination, which is similar to the question, “Could I search your bag?” from a customs officer and so on. That was a reasonable time. When you go beyond that hour, you have the right to a lawyer.

Another part of that very old and dear right within the UK legal system is the right to have a lawyer of your choice. It is not just, “And here is a selection of vetted lawyers decided by the state.” There are two rights here. The hon. Member for Paisley and Renfrewshire North talks about the right to access a lawyer.

[Nick Thomas-Symonds]

The last characterisation is simply so open to challenge: the idea that there are panels of lawyers for so many different things. My suggestion simply brings the law in line with what already exists in the Police and Criminal Evidence Act 1984, and that was why the Law Society agreed with it. This idea of the state choosing the lawyer simply does not hold water, given the reality of the legal profession. In addition, in terms of what we are talking about—legal professional privilege—confidentiality is the key. It is not about the right of access, but the right of confidential discussion, and it is justification for taking that away that is the big concern.

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[Mr Wallace]

I will get to that. Whether it is the Law Society or the state that defines the duty roster, the point is made that a detained individual should have a right to choose their own lawyer. The Law Society can produce a panel or a duty solicitors’ roster, but that does not impinge on someone detained in a police station tonight saying, “Thank you for that. I am going to pick my own lawyer.”

[Nick Thomas-Symonds]

I am grateful for that. Could the Minister indicate, then, whether it is the Government’s intention to repeal the Police and Criminal Evidence Act 1984, which already includes a provision like this one?

[Mr Wallace]

Let me get to the next bit, which is also about the right not to be overheard—for legal privilege to be protected—and the idea that that is somehow absolute. It has never been absolute. The justification for that not being absolute was that the last Labour Government introduced paragraph 9 of schedule 8 to the Terrorism Act 2000, which says:

“A direction under this paragraph may provide that a detained person who wishes to exercise the right…may consult a solicitor only in the sight and hearing of a qualified officer.”

The principle of, effectively, allowing the law enforcement agencies to do that, subject to chief officer authorisation, is not a new precedent that we are setting, as the hon. Member for Paisley and Renfrewshire North seems to suggest. It has existed for 18 years. The last Labour Government viewed that as important enough for it to happen when it applies to TACT offenders in a police station setting, never mind in a schedule setting. That is where that policy idea came from. It has not been rustled up in the last year. It has been around for 18 years.

If I was arrested tomorrow morning and taken to a police station, rather than the border, and I wanted to consult a solicitor, I would find that, if there were reasonable grounds—or stronger than that—and the chief officer gave permission, that discussion could, on a very few occasions, be listened to. It is not at all about “inadvertently”; it is about the few individuals, who, as I witnessed in the early ’90s, exploit that relationship for the simple purpose of tipping off or undermining or disposing of evidence. Under those circumstances, the power has already existed.

I bring the hon. Member for Torfaen back to the point of this schedule stop. What is this stop really about? The verbal evidence given is not admissible in court, and this is not the same as sitting in a police station. This is about effectively establishing the intent, the identity and the basic details at the time of a border stop.

Given that we are a free and open society, it is at our border that we are most vulnerable. Once someone is within our community, because of the way we live our lives, quite rightly, they have free movement and free everything. I am delighted that those are our values, but if we are to keep that special, and maintain that freedom within the United Kingdom, we have to be able to give that power for the simple purpose of establishing the intent—the who and the what—at our border.

The new schedule applies to hostile state activities and to people who come here to attack and undermine the very state that allows us to enjoy those freedoms. That does not put in peril the strength of our justice system and the right to a lawyer and to a fair trial—I am a Scot, and we take a slightly different philosophical view on the right to a jury, which is a very Norman thing in England and Wales. That is why I believe that these measures are proportionate and necessary to keep us safe, and I do not believe that going back on the principle established 18 years ago would keep us safe; in fact, we would be unpicking well-established law.

Funnily enough, in my two years as Security Minister, I have had lots of representations on the use of schedule 7 and whether people have a right to compensation, whether the schedule is abused, and whether we should be cleverer and faster in using it, so it does not impinge on people’s journeys. I have not yet had a representation in those two years to ask for paragraph 9 of schedule 8 to the Terrorism Act 2000 to be undone. Therefore, the Government will not accept these amendments and will leave the schedule to stand, for the purpose of screening the who, what, where and when at our border and of taking into account the large amounts of data some of these individuals carry on their way into this country.

[Gavin Newlands]

In the debate on the previous group of amendments, I indicated that I would keep my powder dry until this group. I have listened carefully to the Minister, but in making the point that each suspect should be able to consult a lawyer of their choosing, he seems to be arguing against some of the provisions in his own Bill. For that reason, I wish to press my amendment.

Question put, That the amendment be made.

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[The Chair]

We would now have come to amendment 47 to schedule 3, but the hon. Member for Cardiff South and Penarth is not present to move it, so it will not be called.

Schedule 3 agreed to.

Clause 21 ordered to stand part of the Bill.

Schedule 4

minor and consequential amendments

[Mr Wallace]

I beg to move amendment 48, in schedule 4, page 78, line 30, at end insert—

“Civil Legal Services (Financial) Regulations (Northern Ireland) 2015 (S.R. (N.I.) 2015 No. 196)

28A (1) In regulation 4(2) of the Civil Legal Services (Financial) Regulations (Northern Ireland) 2015 (exceptions from requirement to make a determination in respect of an individual’s financial resources), after sub-paragraph (a) insert—

‘(aa) is detained under Schedule 7 to the Terrorism Act 2000 or under Part 1 of Schedule 3 to the Counter-Terrorism and Border Security Act 2018;’.

(2) Nothing in sub-paragraph (1) affects any power under the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)) to revoke or amend any provision of the regulations amended by that sub-paragraph.

Civil Legal Services (Remuneration) Order (Northern Ireland) 2015 (S.R. (N.I.) 2015 No. 201)

28B (1) In Schedule 2 to the Civil Legal Services (Remuneration) Order (Northern Ireland) 2015 (advice and assistance)—

(a) for the title to Part 2 substitute ‘Matters other than those relating to PACE, Schedule 7 to the Terrorism Act 2000 or Schedule 3 to the Counter-Terrorism and Border Security Act 2018’;

(b) in the title to Part 3 after ‘matters’ insert ‘, Schedule 7 to the Terrorism Act 2000 matters or Schedule 3 to the Counter-Terrorism and Border Security Act 2018 matters’;

(c) in note (1) to Table 1 in Part 3 (which refers to work relating to interviews conducted under the Police and Criminal Evidence (Northern Ireland) Order 1989), at the end insert ‘, Schedule 7 to the Terrorism Act 2000 or Schedule 3 to the Counter-Terrorism and Border Security Act 2018’.

(2) Nothing in sub-paragraph (1) affects any power under the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)) to revoke or amend any provision of the Order amended by that sub-paragraph.”

This amendment would ensure that provision of legal advice and assistance, and the remuneration payable for such advice and assistance, to persons detained in Northern Ireland under Schedule 7 to the Terrorism Act 2000, or under Schedule 3 to the Bill, is available in the same way as applies in relation to persons arrested and detained under the Police and Criminal Evidence (Northern Ireland) Order 1989.

[The Chair]

With this it will be convenient to discuss Government amendment 49.

[Mr Wallace]

Amendment 48 relates to the new hostile state activities ports power in schedule 3. Paragraph 27 of schedule 4 already makes provision for persons detained under schedule 3 in England and Wales to be eligible for legal aid in order to pay for legal advice and assistance they obtain concerning their detention.

Amendment 48 makes analogous provision for Northern Ireland. It brings the provision of legal aid and assistance for individuals detained in Northern Ireland under schedule 7 to the Terrorism Act 2000 or schedule 3 to this Bill, in line with what is currently provided for when an individual is arrested and held under the Police and Criminal Evidence Act 1984.

Before the hon. Member for Paisley and Renfrewshire North asks, “What about Scotland?” I can advise the Committee that the Scottish Government will bring forward any necessary secondary legislation to make equivalent provision in Scotland.

Amendment 49 is consequential on the changes we are making to the notification regime for terrorist offenders. Paragraph 40 of schedule 4 amends the notification requirements in respect of foreign travel so that a terrorist offender must inform the police of any intended foreign travel and not just, as now, any foreign travel lasting three days or more. Amendment 49 ensures that this change flows through to the requirement on a terrorist offender to notify the police of their return to the UK.

[Nick Thomas-Symonds]

I rise simply to support the Minister’s position. They both seem sensible amendments in that context.

Amendment 48 agreed to.

Amendment made: 49, page 80, line 27, in Schedule 4, at end insert—

‘( ) in regulation 5 (notification of return), in paragraph (1), omit “for a period of three days or more”.’ —(Mr Wallace.)

Regulation 5 of the Counter-Terrorism Act 2008 (Foreign Travel Notification Requirements) Regulations 2009 requires a person to whom the notification requirements apply who leaves the United Kingdom for a period of three days or more to notify the police of the date of their return and the point of their arrival in the United Kingdom within three days of their return (if they did not notify this information before leaving the United Kingdom). This amendment would ensure that regulation 5 applies to a person who leaves the United Kingdom for any period of time instead of only for periods of three days or more.

Schedule 4, as amended, agreed to.

Clause 22

Notification requirements: transitional provisions

Question proposed, That the clause stand part of the Bill.

[Mr Wallace]

Clause 22 is a very exciting clause. It makes transitional provisions in respect of the changes to the notification scheme for terrorist offenders made by clauses 11 and 12. The changes will apply to terrorist offenders who are made subject to the notification requirements after clauses 11 and 12 come into force, as well as those who are subject to such requirements when the changes take place. Generally, that means that a terrorist offender who is already subject to the existing notification requirements must provide the police with the additional information within three months of the provision coming into force—in effect, within five months of Royal Assent. The police will ensure that existing registered terrorist offenders are informed of the new requirements being placed upon them.

Question put and agreed to.

Clause 22 accordingly ordered to stand part of the Bill.

Clause 23 ordered to stand part of the Bill.

Clause 24

Extent

Question proposed, That the clause stand part of the Bill.

[Mr Wallace]

This is a standard clause that sets out the territorial extent of the provisions in the Bill. As counter-terrorism is a reserved matter, the majority of the provisions apply to England and Wales, Scotland and Northern Ireland. Although the Bill relates to reserved matters, it clearly affects criminal justice agencies across the United Kingdom and local authorities in Great Britain and, accordingly, we extensively consulted the devolved Administrations on its drafting.

A number of the provisions have a more limited extent, in particular clause 8, “Extended sentences etc for terrorism offences: England and Wales”. There is a separate sentencing framework in Scotland and Northern Ireland, and clauses 9 and 10 respectively make similar changes to extended sentences there. In addition, clause 14, “Traffic regulation”, clause 18, “Persons vulnerable to being drawn into terrorism” and clause 19, “Terrorism reinsurance” pertain to England and Wales and Scotland only in line with the existing legislation amended by the clauses. Clause 24 also contains provision to apply certain provisions of the Bill to the Crown dependencies by Order in Council. In the normal way, that would be done only with their agreement and, indeed, at their request. The working assumption is that if any of the Channel Islands or the Isle of Man wish to make provision similar to that contained in the Bill they will bring forward legislation in their own Parliaments.

Question put and agreed to.

Clause 24 accordingly ordered to stand part of the Bill.

Clause 25 ordered to stand part of the Bill.

Clause 26

Short title

Question proposed, That the clause stand part of the Bill.

[Mr Wallace]

So that we do not suffer the criticism that we have galloped through a Bill that both sides of the House think is incredibly important—I have consulted hon. Members throughout the process—it is important that on this final clause, before we get to the new clauses, I simply speak to the title. The clause provides for the short title of the Bill.

Question put and agreed to.

Clause 26 accordingly ordered to stand part of the Bill.

[The Chair]

We should now come to new clause 1, tabled by Mr Doughty, but he is not here so we will skip over it and go straight to new clause 5.

New Clause 5

Fundraising for victims of terrorism: restrictions on profits

“(1) Organisations that provide services for the purposes of raising donations shall not be entitled to profit from those services where the conditions in subsection (2) are met.

(2) The conditions referred to in subsection (1) are that—

(a) the purpose of raising funds is wholly or substantially to support persons who have sustained a loss due to acts of terrorism; and

(b) the persons donating the funds are doing so without any expectation of personal benefit.

(3) In this section “profits” means any income derived from providing services for the purposes of raising donation in excess of the cost of providing those services.”

This new clause would mean that organisations such as online donation platforms would not be able to make a profit from supporting charitable fundraising for those affected by acts of terrorism.—(Neil Coyle.)

Brought up, and read the First time.

--- Later in debate ---

[Mr Wallace]

The hon. Member for Bermondsey and Old Southwark made, as with his other points, a passionate appeal to do something about this issue, as a direct result of working with his constituents in Borough market. Charities in this country do an incredible amount of work. I think the public gave more than £10.3 billion to charity in 2017. As a British citizen, I am incredibly proud that it is still in our nature to contribute to a range of charities. The establishment of the Charity Commission has played a hugely important role in supporting and helping to co-ordinate the work of fundraisers and charities in responding to such major incidents.

We should also reflect that it is not the incidents that define people’s hurt, need and suffering. The pain and goodwill of the husband, wife, brother or sister of someone desperately trying to raise money for an operation abroad, someone trying to raise money for the hospice where their father died, someone raising money to deal with someone injured in a car accident, or someone trying to campaign for change or for the NHS, for example, to produce some new treatment, are the same as those trying to support victims of terrorism. Someone who has lost their children at the hands of knife crime, not terrorism, will feel no different to, and no less a victim than, any other victims. I am not saying that the hon. Member for Bermondsey and Old Southwark suggested that.

There are emergencies all the time that result in a significant loss of life. Thankfully, they are not all caused by terrorism; in fact, they are very rarely caused by terrorism, and I would not seek to put a line on one versus another. I would not seek to say that one incident deserves a cap or a lesser fee than the other. We have to get to grips with the core of what needs to be put right.

[Neil Coyle]

It is different when there is an accidental need to raise, such as in the Minister’s example of a car accident, although I would hope that the NHS would cover that. Cancer was another example. Again, I would hope that NHS treatment and research would be done to try to prevent that from happening. In the context of the Bill, we are talking solely about terror attacks and those who deliberately sought to attack us, this country and our way of life. In response to that, I think a unique and different position should be adopted by the Government. Also, when we make donations we do not expect anyone to take a profit from those donations.

[Mr Wallace]

I hear what the hon. Gentleman says and I understand his dividing line of accidental or unavoidable, but many more people are killed in this country as a result of domestic abuse than terrorism. Many more people are killed because of knife crime or violent crime every year than terrorism. It is the same; no one went out to look for that. That is the position. We could probably debate all day where we would draw the line. That is one of the challenges we face.

The Government are committed to ensuring that victims of terrorism receive effective support that is comprehensive and co-ordinated. That is why last year we set up the cross-Government victims of terrorism unit to co-ordinate support to UK citizens directly affected by terrorist events at home and overseas. We continue to work across Government, including with the third sector and private sector organisations, to improve and strengthen the support available so that victims receive the best possible support now and in the future.

The Government’s approach to digital fundraising platforms is to promote self-regulation, with the aim of ensuring that transparency and the public interest are protected. The Fundraising Regulator, working with a number of digital fundraising platforms, has developed new transparency requirements, which it consulted on and announced just last month on 7 June. These changes were incorporated into the “Code of Fundraising Practice”, the rulebook for fundraising in the UK, and the platforms have until the end of August to make any necessary changes to their systems and processes. Most digital fundraising platforms have already registered with the Fundraising Regulator. Several platforms chose to waive or cap their fees in relation to some of the incidents last year, including the Manchester terror attack.

Alongside the updates to the “Code of Fundraising Practice”, the Fundraising Regulator has developed guidance for online fundraising platforms, to help them meet the expected standards of transparency. Guidance has also been produced to help members of the general public who want to use these platforms to ensure that they do not inadvertently breach the code and that they consider how funds will reach the intended beneficiaries.

We expect non-statutory regulation under the Fundraising Regulator to work, but as a backstop the Government have reserve powers to regulate fundraising under the Charities (Protection and Social Investment) Act 2016, should that prove necessary. We will not hesitate to do so, if that is the case.

These changes are already having an impact. One prominent for-profit funding platform has changed its practices; as well as being more transparent about its fees, it now offers donors the ability to make an additional payment to cover the fees, ensuring that the entire donation goes to the beneficiaries.

I have greater sympathy for a more directive approach when it comes to gift aid. Some digital fundraising providers include the gift aid amount when they calculate their charge. I think that is outrageous. Gift aid is taxpayers’ money that is given to charities; it is not meant for businesses that operate fundraising platforms. That is why my hon. Friend the Exchequer Secretary to the Treasury has asked Her Majesty’s Revenue and Customs to explore options to ensure that gift aid is passed on in full to the charities to which it is due.

Separate to the work of the Fundraising Regulator in improving transparency and the regulation of digital fundraising platforms, work is underway with the charity sector to better co-ordinate charities’ response to major emergencies. This programme is being supported by the Charity Commission, working closely with a range of charities, fundraisers and regulators, including the Fundraising Regulator.

In January this year the Charity Commission organised a roundtable event involving 25 charities, regulators, fundraising platforms and others, to start to develop a framework for a more co-ordinated charity sector response to national critical incidents. Attendees agreed to the principle of creating a collective framework for co-ordinating such responses. They formed a working group to develop the framework and operating principles behind any future disaster response. That work is progressing well and focuses on the themes of first response, fundraising, distribution of funds, and recovery.

I am sure that this is not the intention of the hon. Member for Bermondsey and Old Southwark in new clause 5, but we believe that, at the moment, there might be unintended consequences for reducing the charitable funds raised to help victims of terrorism. Were the new clause to become law, some of the digital fundraising platforms might stop people setting up fundraising pages for the victims of terrorism, resulting in less charitable funds being raised. There is also a risk that funds already raised by established charities, using professional fundraisers, which could have been used to support victims, could not be used for the proper purpose. There does not appear to be a clear rationale, as I said earlier, about where we draw the line. I hope that he understands why I cannot support the new clause.

I assure the Committee that work is underway to improve the transparency of digital fundraising platforms and the co-ordination of charities’ responses to major incidents, including supporting victims of terrorism. I am happy to facilitate a meeting with the hon. Gentleman and the Minister with responsibility for charities to talk that through directly. As a Security Minister, my locus is over terrorism, but the wider regulation of charities across the whole sector—all types of charities—is the responsibility of another Minister. I am happy to present the hon. Gentleman’s intentions in this new clause to that Minister and then arrange a meeting between them.

I hope that I have reassured the hon. Gentleman that we are working through the Fundraising Regulator and the Treasury to ensure that his concerns are met. At the same time, we are trying to balance the modern technology of the world, which a lot of people use to fundraise and collect donations.

[Afzal Khan (Manchester, Gorton) (Lab)]

I support the new clause tabled by my hon. Friend the Member for Bermondsey and Old Southwark. I am from Manchester—I am a former Lord Mayor—so I saw what happened there and I know how people feel. Millions of pounds have been raised in Manchester, because people there are generous. I think that they would find it offensive if someone was profiteering from the money they had donated in response to such a terrible attack. Is that acceptable?

[Mr Wallace]

I do not disagree with the hon. Gentleman. The first thing to do in a big event is get out loudly and publicly the alternative charitable telephone numbers. Telephone lines for donations are always set up, often directly to charities and sometimes through the Department for International Development—for foreign emergencies —or other Departments. That is the first path.

I am constantly disappointed by this. As an ex-soldier, I was approached by a forces charity and asked to be one of its many patrons, only to discover that a massive wedge was for the fee. The charity does not advertise that on its stall when it is raising money. The problem has gone on for too long, which is why the Government, with cross-party support, introduced the 2016 Act. That was also on the back of elderly people being ruthlessly pursued by some fundraisers. The charity sector, in many different areas, has to clean up its act. Recently we have seen sexual harassment cases in some major charities.

My worry is that those who sometimes oppose charities might seek to exploit all that. We have to get this fine balance right, because we want people to keep giving. We should be much more prescriptive about fees, we should publicise how much they are and what the alternatives are, and we must recognise that people give in many different ways. That giving costs money.

An amazing thing, which no one ever really publicises, is that during Ramadan mosques in this country raise £100 million for charitable causes. That is a huge collective effort over a short period. One of the pillars of Islam is charitable giving, but people do it differently. We have to ensure that the platforms that people use, whether verbally in the mosque or online, are supported and enabled without grotesque profits being made out of suffering.

We have therefore taken the power under the 2016 Act. The first process is to get the industry, through the regulator, to self-regulate, with us keeping a close eye on it. Where the system has been abused, we have to go to the heart of things and question motives. Abuse of gift aid, for example, makes me incredibly worried. What type of organisation does that? I hope that my hon. Friend the Exchequer Secretary takes strong and swift action—I shall reinforce his efforts—to ensure that is dealt with at once.

I hope that I have reassured the hon. Member for Bermondsey and Old Southwark. I agree with his motives but not his methods, so I ask him to withdraw the motion.

[Neil Coyle]

I have listened carefully to the Minister, but I am afraid that I am not reassured, for a number of reasons.

I have spoken to the Treasury about its plans and I am interested in having a discussion with the Minister with responsibility for charities, but I remain aware that JustGiving meets with charities in this country about the more immediate Disasters Emergency Committee-type approach to an international incident. It goes to the table with the charities, which are working out how best to support people through the immediate aftermath of a terror attack and the urgent need of communities affected. The fundraising platforms, however, are sitting at that table and they know that they can make a profit out of the incident and future events. Their involvement will guarantee them additional income and revenue on the back of a terror attack.

Precisely because the Bill covers terrorism, the charities issue deserves to be treated separately and can be drawn out uniquely. Terrorism, being so uniquely horrific, is clearly the reason why the public are so generous in their response. That is why the figures are so much higher after a terror attack, because people respond. The British public respond when they see children attacked in Manchester, because they want to be able to help. When they see innocent civilians enjoying a night out around Borough market, they want to donate. The large sums arising from those donations are the reason why there is more significant concern.

I had hoped that the platforms involved—JustGiving is the prime player, but there are others—would have done more to cap their own policies, but they have not done so. I do not accept the idea that they would no longer be there or that this would limit future donations, because others would always step in to fill that gap.

There is a unique opportunity with the Bill not to undermine the collective will of the British public who seek to help innocent civilians and their families. The ministerial mantra of terrorists not beating us or changing our way of life can be reflected in this new clause. It would mean that donations from the public that are designed to support the continuation of our way of life are not watered down through the profit margins of others. The Government are trying to take some action. The Minister suggests that we wait and see if that works, but we have a clause here that would do the job much quicker and better.

[Dr Rupa Huq (Ealing Central and Acton) (Lab)]

I wholeheartedly agree with my hon. Friend. Platforms such as JustGiving are behaving in a very uncharitable way. The Minister has an “It’ll be all right on the night” policy, but I am reminded of when in 2017—my hon. Friend the Member for Scunthorpe was with us then—the same argument was made about the public register of beneficial interests. The Minister on that occasion said, “Let them do it on their own,” but public opinion forced the Government to climb down. I urge Government Members to join my hon. Friend the Member for Bermondsey and Old Southwark. Even The Sun has backed this campaign—

[Mr Wallace]

Even The Sun!

[Dr Huq]

Even The Sun newspaper, which normally is not really friendly to the Labour party. I pay tribute to my hon. Friend’s work and I hope that the Minister will think again.

--- Later in debate ---

[Stephen Doughty]

It relates to the voting of the Minister. I am glad to see that the Minister actually supported these sensible measures. They were important measures on security co-operation that relate to the two new clauses, on the functioning of the European arrest warrant, and the sharing of data in order to enforce such warrants, and on the nature of our relationship with Eurojust and Europol—crucial mechanisms that the Minister saw right to support at the time. I assume that he continues to regard co-operation with those agencies as very important. Can he be clear on where the Government’s policies are in this area? As my hon. Friend the Member for Torfaen asked, does he support us retaining that close co-operation to keep all our citizens safe?

[Mr Wallace]

I had hoped that the Brexit word was never going to pass anyone’s lips in this Committee. On the penultimate new clause, I had hoped we would have had the chance of a long and healthy life. Unfortunately, the word has ventured into the Committee.

The aims of the new clause tabled by the hon. Member for Torfaen are exactly the aims of the Government’s negotiating position. We want access to the European arrest warrant. We want to play a full part in Eurojust in that way. We have made an unconditional offer to the European Commission on security. However, the difference between our position and the proposed primary legislation is that we want that to be the outcome. The drafting of the new clause is flawed, as it would have a limited practical impact on the new clause. It does not oblige the Government to secure an outcome or prescribe how negotiations are conducted but merely affirms that it is a negotiating objective of the Government to do so.

It is conceivable that the Commission is already well aware of our negotiating aims—in fact, I can tell you that it is. The inclusion of the new clauses could provide the Commission with more weight to leverage those tools in the negotiations.

[Nick Thomas-Symonds]

I am relieved to hear that the Commission is clear about our negotiating aims, but I would not be over-confident about that. On this crucial point, I am sure if I had been too prescriptive, the Minister would be jumping to his feet saying that I had not left enough flexibility for negotiation. Given that, so far, he has hardly disagreed with anything in the new clauses, I presume it is clear.

--- Later in debate ---

[Mr Wallace]

I do not believe the place for Government negotiation is in primary legislation. The ball is firmly in the court of the European Commission. Our position is an unconditional offer on security. The only time I ventured from the shelter of security to engage publicly on a European issue was when Michel Barnier said recently, in a rather dismissive and offhand manner, that we would not have access to any of these issues as a third country. That does not reflect the examples of special relationships with Europol, of which there are at least two—probably more.

The hon. Gentleman mentioned Denmark, which is unique as a member of the European Union that has pulled out of Europol. Switzerland and Norway, which are not EU members, have good access to Europol for the sharing of data. The point is, when the European Commission has wanted to, it has extended a bespoke or special unique relationship. I venture that the United Kingdom has contributed, shaped, funded and supported many of these European organisations. Europol was created predominantly by the United Kingdom, and it shares huge amounts of our data—our citizens’ data and our intelligence—with other European countries.

It is important that our unconditionality is taken on board and embraced by the Commission. My public venture to Mr Barnier, apart from a quip about gambling with safety, was that security was not a competition. We are not talking about trade. It is about working together, where the sum of the parts is greater than the individual contributions.

[Afzal Khan]

As I have said, I served as a vice-chair of the security and defence committee of the European Parliament, so I am aware of how important co-operation is. Does the Minister agree that if we want to be successful against terrorism we need to improve co-operation? We have benefited from co-operation.

[Mr Wallace]

We absolutely have. It is not just about scale or who is better at one thing over the other; it is genuinely that in such activity the sum of the parts is greater. The United Kingdom has developed a clear lead on counter-terrorism policy through our intelligence services and police services learning to work together on domestic issues quicker than our European allies. That needs to be scaled up to working internationally. At the same time, we need to navigate the real obligation of the state to protect its citizens’ data. It is not a free-for-all.

The hon. Member for Torfaen is right, and we are totally determined to get there through negotiation. It is not that we disagree; I simply take the view that primary legislation is not the place for individual parts of a negotiation. The new clauses would not make any difference, because the Government would not be bound to the outcome but just be saying, “This is what we intend.” The Prime Minister has said what our position is and what we want. I have said it to the Committee, and we have said it to the European Commission. It has been said on a number of occasions and no piece of primary legislation will change that. We agree with the intention, and I understand the symbolism of putting an objective into the Bill, but it is not necessary. As long as I am the Security Minister and the Government are negotiating, we wish that to be the case, and that is what we are asking for.

The hon. Member for Cardiff South and Penarth worries about the new Brexit Secretary, but we are all in a team with collective responsibility and he was probably not aware in 2014 of the clear importance of intelligence and security sharing and how it makes a difference to saving lives every single day. Most recently—two weeks ago—the United Kingdom contributed a significant part towards foiling a plot in Cologne involving a terrorist who had managed to make ricin and was making a bomb to devastate that city and its people.

As long as I have breath in my body, I shall do everything I can, but I do not believe that primary legislation is the place for our negotiating objectives. I will happily arrange it for anyone who is in any doubt to visit our police officers to see how important that is.

[Neil Coyle]

When she was Home Secretary, the Prime Minister warned that Brexit had risks for our national economy and national security. Does this new clause not go some way towards reassuring the Prime Minister about her concerns about Brexit?

[Mr Wallace]

I refer the hon. Gentleman to the Prime Minister’s Munich speech in February, in which she continued to make this point about security—it is not a competition and our offer is open. The only danger to our security would be a dismissal by the European Commission out of hand and refusal to give us any intelligence or data. That would be a danger to us and to it; it would cut off its nose to spite its face.

All the Commission’s professionals, and member states’ intelligence services and police forces, are telling them that. In all my meetings with member states’ Interior and Security Ministers, they agree and concur. It is time that the Commission reflects that, because it is in the interests of European citizens to continue this relationship. It is not purely in our interest; it is in their interests, too.

The Prime Minister is absolutely determined on this point: a safer Europe is a safer Britain; and a safer Britain is a safer Europe. I do not think that will change. My simple dispute with the Opposition Front-Bench spokesperson is that I do not believe that this duty needs to sit in primary legislation.

[Nick Thomas-Symonds]

I am confused as to why the Minister is indicating that he will vote against the new clause, because he seems to agree with it wholeheartedly.

First, it would make a difference to put it in primary legislation. It would send a clear message to the European Commission, about which the Minister is worried; it would reassure the public; and it would also give Government Members the chance really to put country above party, by supporting the new clause. I will therefore press it to a vote.

Question put, That the clause be read a Second time.

--- Later in debate ---

I would like to see a clearer and more consistent approach, particularly from airlines and other forms of travel. When the Minister responds to the new clause will he say something about the measures that have been put into place to ensure that information is shared in a comprehensive and timely manner to ensure that we can prevent those wishing to do harm to our country or other countries overseas from doing so?

[Mr Wallace]

I am grateful to the hon. Member for Cardiff South and Penarth for setting out the proposals in the new clause, and I hear what he said about his other proposals. It would have been interesting to debate those.

As the hon. Gentleman explained, the new clause would require travel operators to share passenger data with relevant law enforcement agencies and provide for restitution provisions to prevent wrongful denial of travel. I fully share his objective of ensuring that police and others have access to passenger data, but there are already provisions for the transfer of passenger name records for immigration and policing purposes in two different immigration Acts and in the passenger name record data regulations. All of those provisions are subject to safeguards provided for in the Data Protection Act 2018. Given the extensive legislation already in place governing the provision and processing of passenger data supply, it is unnecessary at this time to provide any new powers in this regard.

Turning to the provision of restitution to prevent wrongful denial of travel, I appreciate the hon. Gentleman’s concerns, but the new clause would have unintended consequences that would fundamentally undermine vital tools that protect this country from terrorism and hostile state activity. Although new clause 8 is intended to help passengers by enabling them to provide information to police that would protect against wrongful denial of travel, it would risk undermining the current no-suspicion element of the power. The effect of the new clause would be to allow some individuals to establish the fact that information exists on them on police databases—information that had been used to inform an examination under schedule 3.

We have already debated the necessity to conduct schedule 3 and schedule 7 stops on a non-suspicion basis, so I will not take up more time by going over the same arguments again. Decisions to examine a passenger under schedules 3 or 7 will be informed by a number of considerations, not just passenger data. Other considerations may include the current threat from terrorism and hostile state activity to the UK; available intelligence; trends or patterns of travel; and observations of passengers and their behaviour while they are in a port or border area.

We know that terrorists and hostile state actors are aware of the UK’s security measures to counter their activities, and intelligence shows that they flex and adapt accordingly. If we implement the process proposed in the new clause for confirming or amending any of the data that may be used in consideration for making a stop, terrorists and hostile actors will adapt their methods of travel to minimise the chances of alerting, and being interdicted by, the police, or will recruit individuals who are unknown to law enforcement to bypass data checks.

New clause 8 would undermine the utility of the powers, and compromise police and operational partner efforts to keep the public safe. However, the hon. Gentleman makes a valid point about when the powers are used and the financial consequences that they can lay on individuals stopped, and I met him recently to discuss that; indeed, I have constituency cases on the issue.

We are doing work in response to the hon. Gentleman’s points, to see what we can do to ensure that the data we have is used at the earliest opportunity for individuals transiting through ports, and to ask stronger questions of police officers about whether measures are necessary. For example, most of the loss occurs when people are exiting the UK—while they are on the outbound leg of a holiday, rather than the return. We are asking basic questions about whether measures could wait until they return. Obviously, if the intelligence or threat is high enough that they cannot, those measures will be taken. Also, we are looking at what we can do to speed up the data at check-in at the gate.

[Stephen Doughty]

I thank the Minister for giving way, and I have listened carefully to the arguments he has made on the other parts of the new clause. On the issue of speed, is he satisfied at the moment that all airlines, in particular, are sharing information quickly enough, and that their systems allow that to be done, so that we can detain people who might be going to commit acts and ensure that we do things at the earliest possible stage?

[Mr Wallace]

I believe the airlines are, but of course some of the data is held by airports. If someone checks in at security, that may, at the moment, be airport data, not airline data. How can we get that data to our police in a timely manner so that the most appropriate time is when I emerge from check-in or my baggage search, rather than when I am on an aeroplane, or just about to get on an aeroplane, and the clock is ticking down after I have been shopping in the terminal and so on?

I am absolutely determined—I picked up on the hon. Gentleman’s points from our meeting—to see what we can do to improve that. It slightly depends on the age of the airport and how its systems work. For now, I am content to see how that work goes, to see which airports can do that and which cannot, and to feed into the data other information that the police might have to better inform them.

I am not sure we will get many challenges from the Russian, or the hostile, state, but, in the terrorism space, if the powers are to continue to have predominant public support for their necessity, we have to ensure that they are targeted and sympathetically used—I do not want the powers to end up in the same debate as stop-and-search, which made that a toxic power for so long. I will be pressing to ensure that that happens, and I will happily update the hon. Gentleman.

[Stephen Doughty]

I thank the Minister for his comments. On the basis of what he said, I am happy not to press the new clause at this stage. I ask that he keeps this matter under review and looks at it closely, because we need to ensure that information is shared as quickly as possible, both from the point of view of keeping the public safe and ensuring that the powers are used effectively. We need the co-operation of all travel operators, airports and ports of entry and exit as much as possible. However, given what the Minister has said, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

[Mr Wallace]

On a point of order, Mrs Main. Before we draw to a close, I would like, to conclude these proceedings in an orderly manner, to put on the record my thanks for your chairmanship and Ms Ryan’s chairmanship. I do not think that those on either the Government or the Opposition Benches disappointed the Chair—I hope not.

I also thank those on the Opposition Front Benches. I am always amiable to the hon. Members for Torfaen and for Paisley and Renfrewshire North, and try to accommodate them. As I set out at the very beginning, I have sought, where possible, to concede. I have conceded on the suggested improvements to clause 3—the three clicks—and to the Scottish National party about clarifying that there will be no charging for public order and the right to protest.

I do not know about you, Mrs Main, but I sat for years on the Opposition and Government Back Benches listening to the valiant efforts of Opposition MPs, who get no recognition whatever. I always promised myself that I would never allow that to happen as a Minister.

I thank my officials, who have been very patient when I have said, “That makes sense. Why can’t we do it?” to which the whole Government says, “The Minister might actually change something!” The Bill manager, in particular, has been incredibly patient. I am still determined to improve the Bill before it gets on to the statute book.

I thank the Clerks, the Hansard writers and the Doorkeepers for keeping us on the record and safe. I thank the lawyers from the Home Office, the Ministry of Justice and the Treasury, and our witnesses, who set out their clear positions at the beginning.

[Nick Thomas-Symonds]

Further to that point of order, Mrs Main. I echo what the Minister said, and I thank him for taking a constructive approach to the Bill—he said on Second Reading that he would do that. I add my thanks to the Doorkeepers and the Hansard writers. I am very grateful to the Clerks, in particular, for dealing with the numerous amendments I emailed in.

I thank you, Mrs Main, and Ms Ryan for your excellent chairing of the Committee. I am very grateful to all the officials for their contribution to the Bill. I thank the hon. Member for Paisley and Renfrewshire North for working so constructively, and the witnesses for giving us very helpful evidence and cause for debate throughout the Committee.

Counter-Terrorism and Border Security Bill (Sixth sitting)

Ben Wallace Excerpts

Committee Debate: 6th sitting: House of Commons
Thursday 5th July 2018 Public Bill Committees

[Neil Coyle (Bermondsey and Old Southwark) (Lab)]

I beg to move amendment 26, in clause 19, page 19, line 27, at end insert—

“(4) Where an event occurs which the Secretary of State has grounds to believe may be an act of terrorism for the purposes of terrorism reinsurance, the Secretary of State must within three days of the event make a statement that—

(a) the event is or is not an act of terrorism for the purposes of terrorism reinsurance; or

(b) there is not yet enough evidence to make a statement under paragraph (a) and set a timeframe for when it is expected that such a statement is likely to be made.”

This amendment would require the Secretary of State to make a statement in relation to whether an event is an act of terrorism within three days of the event occurring, or else provide a statement of when such a statement is likely to be made.

It is a great pleasure to serve with you in the Chair, Ms Ryan. I hope the amendment is self-explanatory, so I shall keep my comments to a minimum. Under the Reinsurance (Acts of Terrorism) Act 1993, the Treasury holds responsibility for providing certificates of classification for acts of terror. Members might think that that duty would more sensibly sit under the Home Office, given its wider responsibilities for policing and security. The Bill is the chance to update that obvious discrepancy and to speed up classification to better help those affected when terror attacks occur. The Government and the security services tell us that the threat remains severe so, sadly, further attacks will come.

Under existing arrangements, the Treasury is supposed to classify within 21 days, but in practice that varies widely. There is also a contrast with individual Ministers, who often state on the day or the next day after an attack occurs that it was terrorism, but official certification takes longer. Ministerial comment should act as a guide to insurers and others involved, but the practical experience at London Bridge and Borough market in my constituency has taught me that that does not always happen, leaving those distraught after an attack with further problems just knowing how and when those with insurance can claim back losses.

I believe that the Westminster attack took 11 days to classify, and the London Bridge and Borough market one took far too long to declare: that happened 21 days after the attack, and only following pressure as a result of an Evening Standard intervention on behalf of classification. Those delays have consequences. The amendment aims to tackle situations in which businesses hit by terrorists are then held up by a convoluted process in moving on with their lives and their business.

As mentioned on Tuesday, claiming on insurance after attacks is tough enough. One insurer told a business affected by the Borough market attack that it was not covered for terror attacks, and the same insurer told another firm—one with terror insurance—that the Borough market attack had not been classified and that no payment could be made. That is simply not good enough, and the amendment would end that bad practice.

The amendment would allow for swifter declaration, in line with ministerial statements, and would protect businesses further and better. The uncertainty and delay over London Bridge and Borough market caused more anxiety for those affected at an already difficult time. It is unnecessary and unhelpful to experience delays in accessing the support that is supposed to be there in very tough circumstances, with businesses already badly damaged.

Ministers have claimed previously that London Bridge and Borough market took longer to classify due to the involvement of three police forces: the British Transport police, the Met and the City of London police. Blaming police forces that did so much to end the attack so swiftly and to help all those affected is simply distasteful. The amendment could provide a swifter process, to prevent police officers from being blamed for delays to classification.

Members may have concerns that a three-day limit is too short a timeframe in more complex incidents, but the amendment is designed not to be overly prescriptive—I thank the Clerks for helping me draft it. Cyber-attacks, by their very nature, can take more time to identify—months, in some cases—and any return to planting bombs around buildings or infrastructure without the involvement of suicidal attackers might also take more time to investigate to confirm motives. The amendment would allow for that.

The three-day process is designed for the more obvious attacks, such as that in my constituency last year. Ministers and the Prime Minister stated on the day that it was a terror attack—weeks before formal classification. However, the amendment includes a means of deferring formal declaration for more complex attacks. It would make a helpful, practical difference to employers affected by terror in the immediate aftermath. For attacks that take longer to classify, the amendment allows a statement to be made indicating what that time might be. At the time of any event, and in the face of all the facts, which may or may not be in the public domain, it would be entirely up to Ministers to make that statement and give direction, without that being burdensome.

The proposal would allow insurers and Pool Reinsurance to step in more swiftly to support those affected by any future attack. I hope that the amendment is welcomed by the Government, and I look forward to the Minister’s reply.

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

It is nice to serve under your chairmanship, Ms Ryan.

As the hon. Member for Bermondsey and Old Southwark (Neil Coyle) explained, the intention behind the amendment is to ensure that the Government make a public statement three days after an incident about whether it is an act of terrorism as defined by the Reinsurance (Acts of Terrorism) Act 1993. If that is not possible within three days, the amendment would require the Government to provide an estimate of when they will be able to make such a statement.

The amendment would significantly alter the current process, and would introduce uncertainty for businesses and insurers during what is already a stressful and challenging time, following a terrorist attack. The 1993 Act requires that reinsurance and guarantee arrangements can be extended only for losses related to acts of terrorism, as defined by the Act. There is an established contractual process, under which an incident is certified as an act of terror in accordance with the 1993 Act. That important process is designed to give the insurance industry certainty about whether an incident is within those reinsurance or guarantee arrangements.

In the case of the Government-backed terrorism insurer, Pool Re, Her Majesty’s Treasury has an agreed deadline to certify whether an incident is an act of terrorism. It must do so within 21 days of receiving a certification request from Pool Re. It is worth clarifying that Pool Re’s formal certification request may not necessarily arrive on the day of the terror event, as it is driven by whether any of its members have received a claim.

The Treasury treats certification as a priority, to ensure that Pool Re and its members can proceed with the claim process. That means that businesses can get the financial protection they have paid for through insurance contracts. The Westminster, Manchester and London Bridge attacks in 2017 were all certified within 21 days. For example, the Manchester Arena attack was certified within five business days of the certification request being received from Pool Re.

Once such a request has been received, Treasury officials consult the police and the Home Office before giving advice to the Chancellor of the Exchequer, who makes a final decision about whether an event should be certified as an attack. That certification process properly sits with the Treasury, as the Chancellor’s approval is ultimately required to authorise any financial support required for Pool Re.

Pool Re is not the only underwriter of terrorism risk in the country. Many businesses across the UK are insured via contracts with different terms, conditions and certification processes. That means that if the Government were to make a public statement about the status of the certification process, as it related to Pool Re, it would risk confusing those businesses about the status of their own claims.

I know that the hon. Member for Bermondsey and Old Southwark is particularly concerned about the length of time it took for the horrific terrorist attack in his constituency in June last year to be certified, and I am very conscious of the impact that any delays can have on businesses. I have therefore asked that our officials look at why the process is not quicker after a Pool Re certification request comes to the Treasury, given that, as Security Minister, I sometimes know within minutes or hours whether an attack is a terrorist offence. Indeed, the head of counter-terrorism often makes a public statement to that effect within hours, not days.

I have taken the essence of the hon. Gentleman’s amendment and his constituents’ concerns and sought to follow up to see why it takes so long when a request enters the Government system—I cannot do much about how long it takes for claimants to submit a claim. The clock starts not once the event happens but once a claimant makes a claim to an insurer, and then the insurer triggers the Pool Re request. That could take time, depending on loss adjustment and that end of the process.

I assure the hon. Gentleman that I will seek to improve the performance of the process and to find out why it takes so long once the Government formally receive a request. His point is well meant, and I do not disagree with it. I cannot see why the process takes so long in some cases. I assure him that I will follow that up. I hope my assurances, which I will keep the hon. Gentleman updated on, are enough to persuade him to withdraw his amendment.

[Neil Coyle]

I thank the Minister for his response. The difficulty is that he wants a reactive system, whereby insurers wait for someone to get in touch with them, but I think we should have a more proactive approach. Insurers should step in as soon as a Minister makes it clear that a terror incident has occurred. However, on the basis that the Minister is seeking further advice before the Bill progresses any further, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Mr Wallace]

I am very conscious of the wider impacts of terrorist attacks on surrounding communities and businesses. However, I am afraid that there are several issues with the proposed amendment and its objective. Most prominent among those is the increased regulatory burden that would arise from the amendment. That would be likely to lead to an increase in the cost of insurance for people across the UK, as the hon. Gentleman has said, as well as for businesses being sold terrorism insurance instead of other insurance products that might better suit their needs.

The amendment would also impinge on the existing regulatory protection provided by the Financial Conduct Authority. The FCA’s “Insurance: Conduct of Business” sourcebook sets out the regulatory framework for the conduct of insurers and brokers in the United Kingdom. It aims to ensure that customers are treated fairly and given clear and fair information when they are sold insurance. These rules already include an obligation on firms involved in selling or providing advice on insurance to make sure their customers have sufficient information to make an informed purchase. In practice, that would mean that if terrorism is excluded from a business interruption product that is being purchased by a business, the broker should tell them, so that different businesses can consider whether a different product might better suit their needs.

If a customer feels that they were not provided with advice that met that requirement, they can ask for a review by the Financial Ombudsman Service. That service is open to individuals as well as to small and medium-sized enterprises with less than 10 staff and an annual turnover of up to €2 million. Larger businesses can take their insurer to court.

The amendment would also reduce the flexibility of the existing regulatory framework and potentially stifle innovation. That is because further primary legislation would be required to adjust the statutory duty in the future if necessary, unlike with the rest of the FCA’s rules, which can be updated quickly in line with trends in the insurance sector.

By imposing a specific statutory duty outside the FCA’s regulatory framework, the amendment would also risk significant additional consumer detriment. It would require any firm involved in providing advice on insurance products or selling insurance products to consider whether terrorism insurance was relevant to every one of their customers. In practice, that would mean that such firms would have to consider whether individuals and businesses would benefit from terrorism insurance when they are looking to purchase other insurance products, such as home insurance, mobile phone insurance, travel insurance and motor insurance.

This prescriptive approach would likely result in cases of mis-selling and an increase in the cost of insurance. That would be driven by firms that are more concerned about avoiding penalties for breaching a new requirement cost than the interests of their customers, as well as by firms introducing new processes to ensure they are compliant with the amendment.

The amendment might also result in those firms over-prioritising the sale of terrorism insurance relative to other risks, which might be a greater threat to an individual business. There are over 5.7 million SMEs in the UK. It is not generally the Government’s role to prescribe to those businesses the risks against which they should be insured.

Officials at the Home Office, the Treasury and the Department for Business, Energy and Industrial Strategy are working on options to improve take-up of insurance by businesses and by SMEs in particular. This is part of an holistic approach, looking at insurance as one of the many steps that an SME can take to improve its resilience to financial shocks.

Given the steps that are already under way to improve take-up, the existing protections already available through the UK’s regulatory framework, and the potential for significant additional costs to consumers—

[Neil Coyle]

On that specific point about increasing take-up, will the Minister explain how take-up is being encouraged and what level he expects it to be at within, say, three years of implementation of the Bill?

[Mr Wallace]

The Association of British Insurers and the insurance broker trade industry do great amounts of marketing and promotion to get people to buy insurance and be protected and covered. The biggest threat to us all in the insurance space is inappropriately covered people, whether that is in terms of terrorism or anything else. That is a constant challenge to the industry, often because a number of its risks are mutually pooled, as we were talking about when considering a previous amendment on motor insurance. Therefore, it would be in the interests of the insurers to ensure that people have appropriate insurance for their risk; that is quite important.

The Government can play a role in highlighting awareness of the threat of terrorism. Everyone here will be very aware of the shift in terrorism over the last 18 months; it has been top of the news most weeks. Probably like everyone else, I will look at whether my travel insurance for my summer holiday covers terrorism—well, I am going to Wales, but if I was not, I would check that. The difference between me and the hon. Member for Bermondsey and Old Southwark is that he wants the Government to direct the insurance industry to tell people about that insurance. The position of the Government is that the FCA should use its regulations and advice to be more responsive, and we should not use primary legislation.

Members on the Government side of the House would also say that there is some onus on the customer to seek the most appropriate cover from their insurers to match the threat that they face. That is where we differ, and it is why I urge the hon. Gentleman to help us seek a way to improve take-up through the building up of marketing and promotional material on getting the right insurance, and indeed through regulations, rather than primary legislation. A project is under way to improve take-up, and I will write to him with further details if he would like me to. I urge him to withdraw his amendment.

[Neil Coyle]

I think the Minister has slightly misinterpreted my suggestion. I did not suggest placing an obligation on customers to purchase insurance—merely that insurers advise on its availability. On Tuesday the Minister talked about insurance market failure in some areas, and this will be a missed opportunity to correct that failure. However, on the basis that the Minister will outline the awareness-raising activities that the Government will undertake, and in the hope that doing so will allow a discussion before the Bill goes to the Lords, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Neil Coyle]

I rise to speak to new clause 4. I have nicknamed this “the resilience clause”, and I hope it will be adopted to protect UK firms. I will speak as briefly as possible, but I will touch more generally on clause 19, for which I have been campaigning for the last year, and I am grateful to see it emerge now. Had it been in place before last year, it would have made a huge difference to those affected by the terror attacks at Borough market and London Bridge last June. I have been seeking this through Westminster Hall debates, so I am pleased to see it. I am disappointed that, as my hon. Friend the Member for Torfaen just said, the Government are yet to offer any form of compensation—a single penny—for the damage felt and caused at Borough market and London Bridge last year. I will keep campaigning for that.

New clause 4 would ensure that terrorism reinsurance arrangements are kept under annual review by Pool Reinsurance, and would require the Secretary of State to respond to Pool Reinsurance recommendations in relation to terrorism reinsurance. The clause is designed to prevent the Government-backed system from falling behind terrorist methods and their future impact. It would help to build resilience in our anti-terror structures overall. The clause would require Pool Reinsurance to provide an annual report on the nature of terrorism and any need to improve the systems designed to protect UK citizens and businesses from the form of terrorism we currently face, and to advise on how it is changing and what we might expect in future.

If that system had been in place from the introduction of Pool Reinsurance in the 1990s, it could have ensured that as the Provisional IRA threat of physical damage to economic infrastructure diminished and as terrorism morphed into the deliberate targeting of innocent civilians with knives and vehicles, the pool would have adapted accordingly over time, or at least have had the potential to do so. The Provisional IRA targeted buildings—physical economic infrastructure—not civilians. The pool was designed for that early 1990s threat, after the devastating Canary Wharf and Manchester Arndale attacks. Sadly, the system has not been updated properly over time as the nature of the threat has changed and, with it, the impact on businesses and employers’ insurance needs.

As discussed on Tuesday, Pool Reinsurance, despite warnings dating back to at least February 2016, has not been updated swiftly enough by the Government to cover the brutal attacks against innocent people, such as those enjoying Borough market on Saturday 3 June last year. That should have been possible, and the new clause will ensure that it will be going forward. The pool should never be left to slip behind again. The duty would ensure an annual appraisal of the nature of terror threats and their potential impact on businesses in particular, and would ensure that advice and recommendations are provided on how to adapt to better protect under-insurance systems from contemporary systems, and who or what terrorists target.

The duty would be on Pool Reinsurance, but the clause is not prescriptive regarding how it would work in practice. The pool could involve a range of stakeholders, including Government Departments, ABI, BIBA and business representatives. The wording is kept simple enough to prevent too onerous a system, or too rigid a structure, from developing. The duty is on Pool, because Pool is obviously in a strong position to provide overview from a tactically strategic position, and at no new cost. Pool already provides a quarterly terrorism frequency report, which could form the basis of any future annual reporting of risks and the UK’s ability both to prevent companies from losing out and to protect employers and employees from job losses as a result of insufficient coverage.

I believe that Pool would welcome the role. It has already sought to improve its insurance coverage in terms of packaged costs, awareness of cover and extending the support offered after different forms of attack, including both cyber and business interruption. However, Pool’s work has not always been swiftly acted on by Ministers, creating the gap that so badly affected London Bridge and Borough market in my constituency last year, and that the Bill is aimed at addressing.

Pool Reinsurance would report, and make recommendations, to the Secretary of State, who would be obliged to reply. That obligation is not massively onerous, especially given the huge range of responsibilities, and the clause suggests an ample three-month timeframe. I hope that the proposed new clause will have the backing of the Minister, and I would welcome an indication of whether the Government will pursue it in the Bill’s later stages.

[Mr Wallace]

I understand what the hon. Gentleman is trying to do, which is, in order to ensure that we do not miss the impact—in terms of how victims of terrorism are dealt with—of the changing threat, to have a review of that to ensure that all the holes in cover are plugged in future. The only point on which I differ from him is in understanding what Pool Re is.

--- Later in debate ---

[Neil Coyle]

Is the Minister suggesting that Pool Re is seeking to extend its role beyond where it should? Is he suggesting that the Government and Ministers are in a better position to judge the impact—bearing in mind that the overall clause is about terror insurance—and to advise on what should be covered than Pool Re, which is already there doing the job and has sought to have cyber-attacks, and the kind of non-physical damage we have seen mentioned in this clause, brought into coverage? I would slightly disagree.

[Mr Wallace]

We have to be careful. Pool Re is, first of all, not the only organisation in the marketplace. The Government have a duty to all the insurers, including Pool Re, to indicate where risk, certainly in the security space, is developing or currently stands. We must be minded that it is not a stand-alone organisation. It should be the Government who indicate risk in security. It is our JTAC, the joint terrorism analysis centre, that indicates, independently of Ministers, what the latest analysis shows about where a security threat is developing. We raise severe threat levels and so on.

It is not the Government’s job to tell people how to do the insurance, and we would not seek to tell Pool Re how to carry out or issue insurance policies, but it is the role of Government—because the Government are independent of that vested interest—to be the owners of understanding where the threat is going and being able to pull together all those experiences. It is from the hon. Gentleman’s experience as a constituency MP that he has learned about his businesses in Borough Market. The police will have their experiences, as will the ambulance service and so on.

If we are to really get to grips with understanding the vulnerabilities, it requires someone who is set aside from the insurance industry. I do not think it would involve the Government producing a report saying, “You must insure this, and this is how you do it.” I think it would be the Government saying, periodically, “Let’s have a look at what has happened, what has been missed out, what the public need to be aware of and what action they need to take.” That is where I would sit; that is the issue I have with the start point of the hon. Gentleman’s new clause. Again, his meaning is not misplaced and nobody in the Committee disagrees with his determination to improve his constituents’ opportunities to get insurance, but I see it as a question of how we will get there.

[Neil Coyle]

My concern is that an expert body already exists specifically with this focus of terrorism reinsurance—a body that could do this job and in part does it already through the advice it offers. The new clause would formalise that role. Instead of taking that approach, the Minister seems to want to take on an even bigger Government, a bigger state and more civil servants. I thought we were meant to be the party of big Government, not the Conservatives, so I am confused.

[Mr Wallace]

The hon. Gentleman’s question would basically mean asking an insurer “Whom should we insure?”. As to the role of Government, they have secret intelligence at their fingertips, and have numerous reviews. After the Manchester attack, dozens of reviews took place over the past year; we have all of that. Some of it is secret, and some is not. That can help us understand and be better informed. We have no interest in the outcome of that.

[Neil Coyle]

Has Pool Reinsurance ever asked the Government to cover something that is not now covered—be it business interruption or cyber? Has that ever happened? That is what the Minister seems to be suggesting. Under the new clause the Minister would respond to recommendations. That is where the points that he makes would come in.

[Mr Wallace]

We have lots of discussions with Pool Re and many other insurers, and it has asked about cyber, as the hon. Gentleman has suggested. I have met its representatives several times, being the Security Minister. It has asked to do cyber, and we then take that into the process and go to the Treasury.

[Neil Coyle]

That was not my question.

[Mr Wallace]

We are not going to agree: I view the role of the Government in this space as being able to review an incident, take input from communities, police, ambulance services and everyone else who has dealt with damage, add that to the secret intelligence they have on emerging threat, and come up with a position.

When we do such reviews they are significant. In the case of Manchester attack, the operational improvement review alone was 1,300 pages. Every detail was examined. That is where that type of advice to the market, including Pool Re, should come from. Clearly we are not going to agree on that. It is not that Pool Re is not a great organisation; but it is owned by its members and is a reinsurance company. Call it big state, if you like, but I think that the role of the Government of the day is to be able to direct it. That is the right place for it to sit, so I urge the hon. Gentleman to withdraw the new clause.

[The Chair]

Order. May I make it clear that we are on the clause stand part debate? Although we are discussing new clause 4 within the debate, it will not be formally moved or voted on until we reach new clauses at the end.

[Nick Thomas-Symonds]

I asked for reassurance from the Minister about leaving no stone unturned in the matter of past compensation. I do not think he responded to that when he was responding to the new clause, and I wonder if he would do so.

[Mr Wallace]

We want Pool Re to be dynamic and we want it to stimulate other insurers to meet the growing threat. The issue relates to a point I have made on numerous occasions—the number of travel insurances that have slowly, over the years, dropped terrorist insurance. It is not just about increasing insurance cover; it is important to keep an eye out for areas that are losing it. One of the lessons of last year is that we must be very much in touch with the affected communities—and it is about not only the human beings, but other aspects—to understand what has not been covered, and what more we can do.

[Nick Thomas-Symonds]

I am grateful to the Minister for covering those issues. Last week he argued against compensation for past events—because a line would have to be drawn somewhere. He said there could be additional unfairness because if the past period was set at 12 months, as my hon. Friend the Member for Bermondsey and Old Southwark suggested, something that happened two years ago would not attract the benefit, but something that happened six months ago would. The Minister said that that would create a new unfairness. I seek assurances that he will leave no stone unturned to find out whether anything can be done in relation to some of those past events, including the one at Borough market.

[Mr Wallace]

The hon. Gentleman makes an important point. I spoke to the hon. Member for Bermondsey and Old Southwark after the Committee sitting last week. After last year’s attacks, mayors and local authorities got together and produced requests of Government, which we met, with £23 million or £24 million in Manchester. We also met a request from Salisbury.

I said to the hon. Gentleman, “Let’s meet and speak with the local authority that covers Borough market and put together an ask.” I did not receive a reply from the Mayor of London on that, but we did receive replies from the Mayor of Manchester and the Salisbury council leader. I am happy to sit down and see what we can do. We gave an extra £1 million to the NHS to deal with some of it, but in comparison, for the Manchester package—the hon. Member for Manchester Central (Lucy Powell) was involved in that—we gave in response to a big long list of everything, from a marketing budget—to help that great city attract people back—to help with infrastructure and so on.

I am happy to meet the hon. Gentleman and his local authority and say, “Okay, come on—what is it you seek?” whether it be business rate relief or whatever. The Treasury will go mad at me for suggesting that. The point is, I have not received such a request, but I am happy to help stimulate it and will also work with the Mayor of London to do so.

[Neil Coyle]

I will certainly take the Minister up on that offer. Those who have been affected and are trying to rebuild their businesses—some are still in combat with insurance companies—have put further effort, while their businesses have suffered, into a request. That was put to a BEIS Minister, who came to the Borough Market Trust and met those directly affected. It was also put to a Treasury Minister here in Westminster when traders came to talk about their experience and ask for help. Those requests for support have been made, but to date they have not been acknowledged.

The Prime Minister visited the site and came back for the commemorative service. She was obviously welcome to do so, but she was aware of what had happened, its direct impact, the lack of insurance cover and costs involved for some, including microbusinesses, who could have gone under without public support. It is a little unfair to suggest that a request has not been made, but I will look to draw up something more comprehensive with the leader of the council, Peter John, and the Mayor of London and come back to the Minister with that. I thank him for the offer.

Question put and agreed to.

Clause 19 accordingly ordered to stand part of the Bill.

Clause 20

Border security

Question proposed, That the clause stand part of the Bill.

[Mr Wallace]

The clause simply introduces schedule 3, which confers powers exercisable at ports and borders in connection with the questioning and detention of persons for the purpose of determining whether they are or have been engaged in hostile activity. It fulfils a mechanistic function; the new powers will be best discussed when we debate schedule 3.

Question put and agreed to.

Clause 20 accordingly ordered to stand part of the Bill.

Schedule 3

Border security

[Nick Thomas-Symonds]

I beg to move amendment 44, in schedule 3, page 35, line 37, leave out “whether or not there are” and insert “where there are reasonable”.

--- Later in debate ---

[Afzal Khan (Manchester, Gorton) (Lab)]

I shall be brief. I would like the Minister to take a couple of my questions into account when answering those raised by other Members. It is clear that this whole area gives a lot of power to officers, and that the term “hostile activity” risks casting an extremely wide net; in essence, anyone could be subject to the Bill’s invasive powers. Will the Minister explain how any confidential material obtained at the border will be protected? How do the Government intend to ensure that these powers will not lead to ethnic and religious profiling? In view of these broad powers, will the Minister also clarify whether any training will be given to officers?

[Mr Wallace]

First, the use of, effectively, no-suspicion stops on our border is not new. In fact, as we heard from those giving evidence to the Committee last week, lots of stops happen on our border, because borders are particularly vulnerable spaces. There are screening stops, in which people are asked questions about where they are coming from or going. There are also customs and excise stops, which go beyond that, and in which people are stopped and their bags and luggage are properly searched, perhaps in a side room. That is detaining, in a sense. It is not for a long period of time; it is certainly not as long as some of the scheduled stops that we will talk about.

Until someone is arrested, their access to legal advice and so on is different, because our vulnerability at a border, and our need to establish who, what and when, is really important for our national security. That is why many of those stops, in different guises—whether customs or identity screening—have been in place, sometimes, for hundreds of years. This is a development of that. In the Terrorism Act 2000, passed by the last Labour Government, the feeling was that, given our vulnerability at the border in a fast-moving world of millions of passengers, it was important to give our Border Force and our law enforcement community the ability to establish that information.

Some 89% of all stops at the border are done in under an hour. The vast majority are inward not outward, but to the point made by the hon. Member for Cardiff South and Penarth, I also have a constituent who was stopped when outward bound. My constituent was held up, and a family holiday and lots of money were effectively lost. Having met the hon. Gentleman, we have started a piece of work to look at exactly what we can do to minimise that. A good example would be asking whether it is really necessary to stop someone on the way out; they could perhaps be stopped only on the way back in. If we do not think they are going to travel to fight in Syria, but we think they might be going to do something else, we could just wait until they come back, and people are much less likely to suffer financial risk if they are done.

In answer to the question by the hon. Member for Manchester, Gorton, only officers who are specially trained are allowed to conduct a stop, search and detail. I think it would be illegal, and it would certainly be against the powers, to do it for arbitrary or discriminatory reasons. That would cover doing it on the basis of race or anything else. The no-suspicion power has been incredibly useful and has caught a significant number of terrorists, predominantly due to the fact that they have been stopped and data or biometrics has been seized. We have seen a number of cases. There was a guy from Wembley, I think, who was convicted of murder based on material recovered from a stop.

There will be safeguards in this new power. Our terrorism stops are reviewed by the Independent Reviewer of Terrorism Legislation. I have asked the Judicial Commissioner, Lord Justice Fulford, to review the use of the hostile state power on an annual basis. One of the reasons why we have introduced this is that the Independent Reviewer of Terrorism Legislation had serious concerns that in the past we were using a counter-terrorism power to stop people on a national security or hostile state concern. This is our response to what I think was David Anderson’s recommendation to take that forward.

The hon. Member for Torfaen and the Scottish National party have spoken about no-suspicion and the fact that we should have reasonable grounds. The biggest challenge is that the way our intelligence is presented to us can often be very broad. It can be based on a method, on a threat on a date, or on a plane, rather than on a person. The Government’s reading of the law is that if we had to have reasonable grounds, it would be too narrow for us to be able to respond to some of that intelligence threat.

It may even be that we have gone to a state of “critical”, where an attack is imminent but we do not know from which direction. I have personal experience, doing this job, of where we had some “reliable” intelligence about an attack in one part of the country, but in fact an attack happened in an entirely different place at another end of the country. The information was enough to consider raising the threat level, but not enough to know exactly where it was happening. I remember having rather an uncomfortable night, going out and having in the back of my head what I had been told might happen; while I was pleased that it did not happen, something else then happened elsewhere. It is a challenge; it is a difficulty. It is the way our intelligence is often presented to us, and that is why we need a no-suspicion stop.

There are protections for journalistic material and legal privilege. Because the seizing at this stop would not be under suspicion, the examining officer would have to apply to the Judicial Commissioner for that to be further examined, and the Judicial Commissioner could say no. We have included protections for journalists, lawyers and so on, to ensure that that happens, because we do not want the power abused, especially when we are talking about a hostile state rather than terrorism. Of course, hostile states are pretty clever at how they try to penetrate or come into the country.

[Stephen Doughty]

Obviously I do not expect the Minister to share any information here if it would be inappropriate to do so, but he mentioned the clever way in which hostile states may attempt to penetrate this country and undertake acts, whether that is the Skripal poisoning or other activities. Could he reassure us about measures in place at, for example, general aviation airports, smaller seaports and so on? Obviously, a lot of our focus is understandably on major locations such as Heathrow or Eurostar terminals and so on, but hostile states are well known for using alternative routes or, indeed, diplomatic channels to bring in individuals who conduct serious offences.

[Mr Wallace]

The hon. Gentleman makes an interesting point. Again, it goes to the reason we have the no-suspicion stop. They are most likely to be trained, capable agents of a country, not amateurs, or they may be disguised using amateurs. Look at the history of the cold war. That is why we sometimes have to respond to more general intelligence specifics. Let us say we had intelligence that a hostile state was seeking to use a minor port, a west coast port or a private air strip. That is all we would have, but if the threat was significant enough we would then have to—and we do—deploy individual police and Border Force officers from each region to cover that. However, that is quite wide. It is not, “Ben Wallace is coming in on flight X, Y or Z”; perhaps it is our responding to a flight plan. It is sometimes that simple.

I have come from a Cobra meeting this morning where we have seen the consequences of some really hostile state activity, which has put two innocent British citizens, who are very seriously ill, in hospital. We are being taken advantage of as an open country. I am afraid that there is far too much intelligence officer activity, not always under diplomatic cover in this country, from some of our adversaries, and we have to make our border a bit harder for them. Diplomats will not be covered by that—we will still be obliged under the diplomatic conventions—but their families may be. It goes back to the question on suspicion. I might have a suspicion that X is doing it, and they are a diplomat, but they may say, “Well, I’m not carrying that in; I’m not risking myself, but I’ll get someone else in the wider party who doesn’t have diplomatic cover to do it.”

I am afraid that is why it is really important for us. It is why the last Labour Government thought it was important on the terrorism issue. The Law Society of England and Wales witness said in his evidence that he had no concern about the suspicion part of the powers. He had some concerns about legal privilege, and I listened with interest to that part of his submission. That is why I think it would set us back in our national security and counter-terrorism work if we lost the power to do that. I am afraid the Government will therefore resist the amendment, and I ask colleagues on both sides of the Committee to reflect on that, and hopefully the hon. Gentleman will withdraw the amendment.

[Nick Thomas-Symonds]

I am grateful to the Minister for that explanation and exposition, and for the promise of the annual review under Lord Justice Fulford, which I think will be extremely useful. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Nick Thomas-Symonds]

I will be quite brief, because these amendments simply insert some further safeguards. They do not detract from the central aims of what the Government are seeking to do, but provide additional protections.

Amendment 37 relates to the power to stop, question and detain, which obviously we have been discussing in relation to my previous amendment. The amendment would simply allow the Investigatory Powers Commissioner to be informed when a person is stopped, and to make an annual report on the use of the power, which seems a perfectly reasonable request in the circumstances.

I will deal with amendment 35 in due course. Amendment 36 is simply about the commissioner being informed about the retention of property. The person who owned the article, or who was carrying or transporting it, will be notified by the examining officer when the commissioner is informed that it has been retained. These two amendments are not major interferences with the power, or with the aims of the Bill, but I suggest to the Minister that they are sensible safeguards.

[Mr Wallace]

As the hon. Gentleman has explained, the two amendments seek to enhance the oversight of the powers in schedule 3 by the Investigatory Powers Commissioner. I entirely agree that we need effective oversight, but I hope to persuade him that the Bill already provides for that.

Amendment 37 would require that when a person is stopped and examined under schedule 3, the commissioner must be informed. It would also require the commissioner to make an annual report on the use of those powers. As to the duty to prepare an annual report, I refer the hon. Gentleman to part 6 of schedule 3, which already sets out the duty on the commissioner to keep under review the operation of the provisions in the schedule and to make an annual report to the Secretary of State about the outcome of that review.

The mechanism outlined in part 6 mirrors the well-established reporting apparatus of the independent reviewer of terrorism legislation in relation to counter-terrorism powers. In his annual report, the independent reviewer reviews the operation of the equivalent port and border power in schedule 7 to the Terrorism Act 2000, and in doing so highlights any issues that have arisen through the exercise of those powers, provides a statistical breakdown of how they are used and makes recommendations for their future operation.

Amendment 36 would require that the examining officer informs the owner of an article that has been retained under paragraph 11(2)(d) or (e) of schedule 3 once the Investigatory Powers Commissioner has been notified of its retention. An examining officer may retain an article under paragraph 11 (2)(d) when

“the officer believes that it could be used in connection with the carrying out of a hostile act”,

or under paragraph 11(2)(e)

“for the purpose of preventing death or significant injury.”

Although I appreciate the amendment’s intent, it would place an unnecessary burden on the examining officer.

My officials are working with the Investigatory Powers Commissioner’s Office to determine the precise mechanism for keeping the individual informed of the fate of their property, including the appeal process and notice of any decision made. That will be set out in greater detail in the schedule 3 code of practice that we aim to publish in draft this autumn. Let me reassure the Committee that no individual will be left guessing as to what has happened. I agree wholeheartedly that the process should be governed appropriately and transparently. Given that the issues are already addressed in the Bill, or will be in the code of practice, I invite the hon. Gentleman to withdraw his amendment.

[Nick Thomas-Symonds]

I am grateful for those reassurances. I ask the Minister to comment on a further issue that relates to what I said previously. When the commissioner is carrying out the review process and producing the report that the Minister has referred to, will they be aware of every stop that has taken place?

[Mr Wallace]

Yes. As for the counter-terrorism stops that exist, the total numbers will be in the annual transparency report. Although the commissioner will not be informed every time someone is stopped, the numbers will all be recorded, and he will have the power, in the same way as the reviewer of terrorism legislation does, to investigate those stops while doing the review. It will not just be, “Are these the numbers? Have they complied?”

The reviewer of terrorism legislation can investigate intelligence agencies issues, police issues and the things that lay behind the stops, and that is what we expect them to do. That is why I want a judicial commissioner to do that for hostile states, so if we see it being abused or not being right, he will spot it—not us. He will spot where police officers are not being properly trained or are not doing it correctly, or if it is being overused with no results. I assure the hon. Gentleman that in that scenario the independent commissioners will not take it at face value.

[Nick Thomas-Symonds]

I am grateful for those reassurances. In those circumstances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Nick Thomas-Symonds]

I beg to move amendment 35, in schedule 3, page 40, line 27, at end insert—

“11A(1) This paragraph applies where—

(a) an examining officer intends to retain an article under paragraph (2); and

(b) the person who owns or was carrying or transporting the article alleges that the article contains confidential material.

(2) Where sub-paragraph (1) applies, the examining officer—

(a) may not examine the article; and

(b) must immediately provide the article to the Investigatory Powers Commissioner (the ‘Commissioner’).

(3) On receiving an article under sub-paragraph (2), the Commissioner must determine whether or not the article contains confidential material.

(4) Where the Commissioner determines the article contains confidential material, the Commissioner may authorise the examination and retention of material in accordance with the provisions of paragraph 12(5).

(5) Where the Commissioner determines the article does not contain confidential material, the Commissioner must return the article to the examining officer to determine whether the material should be retained under paragraph 11(2).”

The amendment relates purely to the protection of confidential material. I have based it squarely on what was said by the Master of the Rolls, one of our most senior judges, in the Miranda judgment, with which I am sure the Minister is familiar. The Court of Appeal judgment is dated 19 January 2016. The Master of the Rolls, who gave the leading judgment—this is from paragraph 119 of the judgment—said:

“But in disagreement with the Divisional Court, I would declare that the stop power conferred by para 2(1) of Schedule 7”—

to the Terrorism Act 2000—

“is incompatible with article 10 of the Convention”—

the European convention—

“in relation to journalistic material in that it is not subject to adequate safeguards against its arbitrary exercise and I would, therefore, allow the appeal in relation to that issue. It will be for Parliament to provide such protection. The most obvious safeguard would be some form of judicial or other independent and impartial scrutiny conducted in such a way as to protect the confidentiality in the material.”

It is important to protect the confidential material, as the Minister is aware. I have simply taken what one of our country’s most senior judges has said and tried to construct a protection that is in line with what he has asked Parliament to do. It would work through the oversight of the Investigatory Powers Commissioner.

The commissioner could determine whether an article contains confidential material and could then give powers in those circumstances where it can still be examined and retained, but there has to be that protection and that distinction given by the commissioner. Where there is a determination that the article does not contain confidential material, it could be returned to the examining officer. That is a sensible suggestion to deal with the lack of a safeguard that has been highlighted by one of our most senior judges.

[Mr Wallace]

I am grateful to the hon. Gentleman for explaining his amendment. I want to start by reaffirming the Government’s strong conviction that confidential material should always be handled with the utmost care and consideration. We have sought to provide for that in schedule 3. The Bill provides that the Investigatory Powers Commissioner must be the one who authorises the retention and use of an article that consists of or includes confidential material, subject to meeting the requirements of paragraph 12(5). Beyond the point at which the examining officer comes to hold a reasonable belief that an article contains confidential material, the officer will not be able to examine that article until further authorisation has been granted by the commissioner.

However, it would be improper to impose a restriction on the examining officer such that they were unable to establish their own belief that the article does in fact consist of confidential material. The police have a statutory obligation to protect our citizens and prevent crime. They cannot be expected always to take at face value the word of someone they are examining, who in some cases will be motivated to lie. If an individual being examined claims that an article consists of confidential material, the examining officer should be within their rights to verify that if they feel that is appropriate. Having verified that the article does indeed consist of confidential material, the examining officer should stop the examination and, if they wish to retain the article, seek the commissioner’s authorisation to examine it.

The point about face value is important. Bona fide people will usually be able to identify themselves as bona fide lawyers or journalists pretty quickly. If someone turned up with no law degree or legal background and said, “I’m a lawyer, so you cannot look at my devices,” it would be fair for the officer not to be able to examine the whole documentation or device, but to seek to establish the fact before they then take the next step and go to the judicial commissioner with a request to examine the material. Until the request is granted, the judicial commissioner can say, “No, you can’t. You have to destroy it.” They can direct them.

The difference between me and the hon. Gentleman is the extent to which we want face value to be established before it goes to the judicial commissioner. I stress that under this schedule the examining officer can seek to retain that material only if they believe that the article could be used

“in connection with the carrying out of a hostile act”,

or if they believe that retaining the article could prevent “death or significant injury”. Although it is not in the Bill, I assure the hon. Gentleman that it will be in the code of practice that is provided for in part 4 of schedule 3. If the commissioner concludes that the article could not be used in connection with the carrying out of a hostile act, or could not cause death or significant injury, they will direct the article to be returned to the person from whom it was taken.

I assure the hon. Gentleman that we are working with the police and the Investigatory Powers Commissioner on how those provisions will be implemented in practice. The mechanics will be set out in the schedule 3 code of practice that we aim to publish in draft in the autumn. I hope that I have persuaded him that that is the right approach and he will accordingly be content to withdraw his amendment.

[Nick Thomas-Symonds]

I am grateful that the Minister has set out the position regarding the proposed code of practice. If he would undertake to keep me updated on how discussions go leading up to that publication in the autumn, I would be very grateful and willing to withdraw the amendment.

[Mr Wallace]

To reassure the hon. Gentleman, it will be a statutory code, so it will go through the full process.

[Nick Thomas-Symonds]

In that case, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Nick Thomas-Symonds]

I support the amendments tabled by the hon. Member for Paisley and Renfrewshire North; I also want to speak to amendments 38 to 41, which I tabled. They follow the same general tenor as the hon. Gentleman’s amendments, in that they are practical suggestions for maintaining the right to access to a lawyer. Amendment 41 is about consultation via telephone.

I will not discuss the amendments in the next group now. They have far more to do with the right to consult a solicitor in private. None the less, that issue is also at the heart of the amendments in the group we are now considering. The hon. Member for Paisley and Renfrewshire North has already referred to the evidence given by Max Hill, and I commend the evidence of Richard Atkinson, too. He chairs the criminal law committee of the Law Society, and I am sure that the Minister recalls a conversation with him on this very issue.

The Minister put the practical point to Mr Atkinson about whether access to a lawyer would be requested on every stop at the border. However, that is not what is at the heart of the amendments. The Minister asked Mr Atkinson whether he thought

“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”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 29, Q66.]

That was about when the stage of being questioned was reached. The Minister mentioned a series of stages—whether it was a screening stop or another type of stop; but what I am talking about applies when questioning starts, when legal advice would be a necessity. We are not talking about the thousands of stops that are made. We are talking about particular circumstances that would be analogous to the position in the Police and Criminal Evidence Act 1984.

I also commend Mr Atkinson’s evidence in terms of seeking practical solutions to deal with the Government’s concerns and still maintain our cherished right of legal professional privilege. As I have said, Ms Ryan, I will not talk about that in principle now, as I will do so on the next group of amendments. However, Mr Atkinson suggested several ways in which the balance could be maintained. He said the consultation could be delayed; if there were concerns about a particular lawyer, the services of a different one could be offered; and advice could still be given within the sight of examining officers without necessarily being given within their hearing.

I recognise the issue of immediate physical threat, as well. However, I urge the Minister to look at the matter practically, and not to sacrifice legal professional privilege but to take note of the practical solutions by which we could deal with concerns about individuals abusing the right to consult a lawyer by, for example, consulting someone who is not a lawyer or passing on information. I accept that there is a risk and I accept what the Government say, but we should turn our minds to finding a practical solution that maintains legal professional privilege.

[Mr Wallace]

I commend the spirit of the amendments tabled by the hon. Members for Paisley and Renfrewshire North and for Torfaen. It is important that as we strengthen our powers to tackle hostile state activity, we ensure that appropriate safeguards are in place to govern the exercise of those powers. The amendments seek to ensure that if an individual has been detained under schedule 3 to the Bill, and schedules 7 and 8 to the Terrorism Act 2000, the examining officer must postpone questioning until the examinee has consulted a solicitor in private. The amendments, and those in the next group, would remove almost all restrictions on that right, which allow police officers to impose conditions on its exercise. The Government’s case against the amendments applies equally to those in the next group, so I ask for your indulgence, Ms Ryan, if I touch on the issues raised by amendments 24, 25 and 42. It may be that when we come to the next group, we will find that we have already covered much of the ground.

The powers under schedule 3 to this Bill and schedule 8 to the 2000 Act would afford any person who is formally detained the right to consult a solicitor privately, if they request to do so, subject to exceptional powers of delay, which I will explain further. I agree with Opposition Members that where an individual has been detained under those schedules and has requested to consult a solicitor, they should have the right to do so privately. In the vast majority of cases, there will be no reason to question that right. On rare occasions, there might be a need for the examining officer or a more senior police officer to impose certain restrictions.

I want to be clear that the restrictions in schedule 3 are not new or novel. Indeed, they are modelled on existing restrictions and conditions that are available now to police officers in schedule 8 to the 2000 Act and in the PACE codes governing the detention rights of those arrested under non-terrorist arrest powers. They are designed to be available only in specific and serious circumstances, namely where those detained seek to frustrate an examination, cause evidence to be interfered with or alert others who are in some way involved in an indictable offence.

[Nick Thomas-Symonds]

If there were, just as there would be in a police station, a list of duty solicitors—or a list of approved lawyers where, if there were concerns, those lawyers could be removed from the list—why would there be a concern about an individual speaking to one of those lawyers in private, if that control were in place?

[Mr Wallace]

In the PACE codes, we already have that small ability to reflect that concern, if there is a concern. It can be done already in such a situation.

[Nick Thomas-Symonds]

There can certainly be restrictions. There could be a restriction that an individual can consult a lawyer within sight of an examining officer—no issue with that. The issue is where the Bill goes further and provides that it must also be within the officer’s hearing. The justification given for that, as I understand it, is a worry that the individual will abuse that right and pass on information to someone, saying they have been picked up or whatever it might be. Why would that be a problem if there was an approved list of lawyers, which we were monitoring all the time, where we know that they are bona fide lawyers and there is not a concern?

[Mr Wallace]

I will address that issue later in my speech. I can inform the hon. Member for Torfaen that at the moment, if an individual is detained on a customs stop for an hour, they only have a right to a lawyer in that environment once they have been arrested, not while they are being detained. That is currently the practice.

In the vast majority of cases there will be no reason to question the right, but on rare occasions, there may be a need for the examining officer or a more senior police officer to impose certain restrictions. As I have already stated, these conditions are available now to police officers in schedule 8 to the 2000 Act and in the PACE codes. It is mainly about a situation where those detained seek to frustrate an examination or in some way alert others who might be themselves subject to an indictable offence. That might be where prior intelligence indicates that the individual might seek to obstruct an examination, either because they have a history of doing so or they have been trained to bypass, frustrate or subvert police examinations. The officer might also witness interactions between the individual and their solicitor, which alerts the officer to the possibility that they are conspiring to obstruct an examination or interfere with evidence.

[Nick Thomas-Symonds]

Clearly, the professional code of conduct that lawyers have would prevent them in engaging in any illegal activity, so that would be covered in any event. If there were, say, four or five approved lawyers who were completely regulated and we knew who they were, why would there be a risk of them passing information on to other people?

[Mr Wallace]

Let me proceed. When it comes to a person’s right to have access to a lawyer, no one currently prescribes in law that they may have only certain lawyers, except in Special Immigration Appeals Commission hearings. I would be interested in what the Law Society in Wales would say if we tried to set out that they could see only vetted lawyers.

[Nick Thomas-Symonds]

Police stations have duty solicitor rotas, and that has been in existence for decades.

[Mr Wallace]

I understand that, but that does not restrict arrested people in a police station to choosing only from those lawyers. They can say, “I don’t want any of those five. I want the one I want.” I understand the hon. Gentleman’s point about a lawyer being trustworthy or effectively selected not specifically by the person detained but from an approved list. However, it would be difficult to go down the path of trying to approve people.

[Nick Thomas-Symonds]

But that is already the case in Police and Criminal Evidence Act 1984 code H. Richard Atkinson said that

“where there is concern about an individual lawyer”—

let us take the example of a person who asks to ring someone we are not entirely sure about—

“there is provision for the suspect to have the consultation with that lawyer delayed but to be offered the services of another lawyer in the meantime.”––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 27, Q55.]

Why do we not take the equivalent of that to the border? We could offer the services of those on our duty list—problem solved.

[Mr Wallace]

I understand the hon. Gentleman’s point. All such schemes, including his, restrict people’s right to a lawyer, one way or another. They either say, “I don’t trust your lawyer, so you can have my lawyer,” or—this is how the Government are doing it—“We have exceptional grounds, authorised by a chief officer, because we are suspicious of something”.

The hon. Gentleman makes a point about police stations, but many of these examinations are about establishing who, what, where and when. We should remember that in the port stops power, to balance the removal of some rights, these verbal discussions are not admissible in court as evidence, unlike in a police station, where everything said can be taken down in evidence and used. We give that protection, as my hon. Friend the Member for Cheltenham (Alex Chalk) pointed out.

[Afzal Khan]

I accept what the Minister says about trying to balance rights by not allowing such conversations to be used as evidence, but would it not be better and in the wider interest to allow the use of solicitors from a pool and be able to use those conversations as evidence?

[Mr Wallace]

If I were to propose such a restriction on which lawyers could be consulted, I would find difficulty in the House of Lords. Let me proceed.

Accepting the amendments would in effect offer an opportunity to those engaged in activity of such severity to frustrate and obstruct an examination. Let me address the key point raised—the evidence we heard last week on restriction of the right to consult a solicitor in private. We must be clear that schedule 3 would allow use of the power only when an officer at least of the rank of commander or assistant chief constable has reasonable grounds for believing that allowing the examinee to exercise his or her right to consult a solicitor privately will have certain serious consequences.

The provisions are largely modelled on similar provisions in PACE: namely, where there are reasonable grounds to believe that private consultation will result in interference, injury to another person or hindering the recovery of property. Due to the potential severity of an act of terrorism, schedule 8 to the 2000 Act outlines additional consequences that might justify allowing the legal consultation to take place only within the sight and hearing of a qualified officer. Those include interference with information-gathering relating to an act of terrorism, alerting a person and making it more difficult to prevent an act of terrorism.

Schedule 3 to the Bill contains a similar consequence as a ground for allowing non-private legal consultations, namely the consequence of interference with information gathering about

“a person’s engagement in hostile activity.”

The need for the restriction is clear. It is there to disrupt and deter a detainee who seeks to use their right to a solicitor to pass on instructions to a third party. It already exists in legislation in schedule 8 to the 2000 Act, which the Bill seeks to replicate. In giving evidence to the Committee, the chair of the Law Society’s criminal law committee questioned why this restriction went beyond the equivalent provisions in PACE code H, which relate to a situation where an individual has been arrested on suspicion of a terrorism offence. PACE code H provides that:

“Authority to delay a detainee’s right to consult privately with a solicitor may be given only if the authorising officer has reasonable grounds to believe the solicitor the detainee wants to consult will, inadvertently or otherwise, pass on a message from the detainee or act in some other way which will have any of the consequences specified under paragraph 8 of Schedule 8 to the Terrorism Act 2000.”

Those consequences include harming others or tipping off terrorism suspects. In such circumstances,

“the detainee must be allowed to choose another solicitor.”

We have considered that carefully, but there are two main reasons why it is not feasible from an operational standpoint. First, in the circumstances described, where the police are concerned that an individual will use their solicitor to pass on instructions, allowing them access to a different solicitor in private will not prevent that possibility. The solicitor might be completely oblivious to the fact that their client is using them to pass on instructions to a third party. For instance, a detainee might ask the solicitor to contact someone and pass on a specific message, such as the fact that they are being detained and their location, with the solicitor unaware that the message will trigger some prearranged activity.

Secondly, inviting the detainee to choose another solicitor is not as straightforward at a UK port as it is at a police station. Unlike a detention under PACE, where there is time and access to a duty solicitor, it might take a substantial amount of time for an alternative solicitor to arrive at a UK port. To offer that option up front to the detainee, who is already presenting reasons to believe they are up to no good, provides another means for them to obstruct and frustrate the examination against a ticking detention clock.

Despite those reservations, I draw the Committee’s attention to two important safeguards that govern the exercise of such a direction. The first will ensure that a direction may be given only by an officer of the rank of assistant chief constable. The second will ensure that the officer present during the detainee’s legal consultation must not be connected with the detainee’s case. I reassure the Committee that the safeguards to the schedules have been carefully considered, following lessons learned through the exercise of the equivalent police powers, the work of the independent reviewers of terrorism legislation and our engagement with the public in respect of the existing powers for counter-terrorism purposes.

In relation to the amendments before us today, I stress that we should not hinder the ability of our law enforcement professionals to disrupt and deter those who present a threat to this country due to their involvement in terrorism or hostile state activity. Accordingly, I invite the hon. Member for Paisley and Renfrewshire North to withdraw his amendment.

[Nick Thomas-Symonds]

I do not propose to take this particular group of amendments to a vote at this stage, but I say to the Security Minister that the first of the two explanations given—that somehow solicitors bound by a code of conduct would be unwilling and unaware stooges passing on information to third parties—is not particularly credible. I do not think the distinction between a police station and a border security stop is particularly strong either, and I urge the Minister to look again at the practical steps around this. However, it is not my intention to push the amendments to a vote at this stage.