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

Chris Philp Excerpts

Wednesday 8th July 2020 General Committees

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

I beg to move,

That the Committee has considered the draft Port Examination Codes of Practice and National Security Determinations Guidance Regulations 2020.

As always, it is a pleasure to serve under your chairmanship, Mr Pritchard. Approval of this statutory instrument is required before changes to the counter-terrorism port examination and biometric retention powers made by the Counter-Terrorism and Border Security Act 2019 can come into effect, as well as new counter-hostile state activity port examination powers under the same Act. These regulations will bring into force a revised code of practice regarding functions carried out under schedules 7 and 8 to the Terrorism Act 2000, a code of practice regarding those functions under schedule 3 to the 2019 Act and revised guidance issued under the Protection of Freedoms Act 2012 and concerning the retention of biometric data for national security purposes.

Counter-terrorism officers who currently use schedule 7 port examination powers must do so in accordance with the relevant code of practice. Although the code largely reflects the primary legislation, it also includes further procedural guidelines for those exercising the powers and additional safeguards for those who are subject to them.

Amendments to the powers through the 2019 Act necessitated consequential changes to the code, which we are now making. This reflects new provisions to pause the detention clock where a detained person requires medical treatment during the examination, to prohibit oral answers given by an examinee in response to questioning under compulsion being used as evidence in a criminal trial and to require an examinee in detention to choose a different solicitor where there are concerns with their chosen solicitor.

A similar code was produced for the schedule 3 powers, but with two key differences: first, to reflect that schedule 3 is targeted towards detecting those engaged in hostile activity—potentially hostile state activity—as opposed to terrorism; and, secondly, to provide additional detail relating to the new property seizure and retention powers exclusive to schedule 3 that require an examining officer to seek the authorisation of the Investigatory Powers Commissioner to retain and use a person’s property or copies of that property.

Both these new codes were subject to public consultation last year. In response to the feedback that we received, we have strengthened safeguards for confidential material, making it clear that such material should not be accessed by frontline officers without prior judicial authorisation. We have extended these safeguards to cover material that may disclose a source of journalistic information. We have also provided further clarity on the practical operation of new schedule 3 retention powers.

In addition, the regulations bring into force updated guidance, issued under the 2012 Act, on the making or renewing of national security determinations. NSDs allow the biometrics—fingerprints and DNA profiles—of unconvicted individuals of national security interest to be retained after initial statutory retention periods have expired. That is obviously to strengthen our ability to fight terrorism and other threats. The changes include increasing the maximum length of an NSD from two to five years, which operational experience shows is important. NSDs are an important national security capability. Biometric material retained using NSDs is known in the last year to have led to the identification of individuals thought to have travelled to take part in the conflict in Syria and Iraq, has provided evidence of potential terrorism offences and has been matched to potential visa and asylum applications, resulting in the subject individuals being refused entry to the United Kingdom.

In revising the biometrics guidance, we have undertaken significant consultation with key stakeholders, including the police, the devolved Administrations, the Lord Advocate and the independent Biometrics Commissioner. I urge the Committee to consider the draft codes and the revised guidance favourably, and I therefore commend these regulations to the Committee.

--- Later in debate ---

[Chris Philp]

Let me briefly reply to some of the points that the shadow Minister made. I echo his comments about what a pleasure it is to appear opposite each other once again—this is becoming quite a double act, and one that I hope will continue for many months and years to come. I promise that I did not organise the honking of horns on the river that occurred, very rudely, during his speech a few moments ago.

On the ongoing review of how these provisions operate, the Minister for Security and the Investigatory Powers Commissioner will be taking a close, ongoing interest in how they operate, to ensure they are operating as intended. If the threat changes or an evaluation is made that further changes need to be made to the codes of practice that we are debating, I am sure that the Investigatory Powers Commissioner will suggest them or the Minister for Security will move them forward if he or she considers them to be necessary.

On the processes for storage, I do not want to go into the technical or operational details, but suffice it to say that there is a high level of assurance that the systems being used to retain this information are extremely secure. We are conscious that the material concerned is personal and confidential to the person to whom it relates, and that it is often of some national security importance.

In relation to the shadow Minister’s question about the time of retention, we will expect officers who exercise these powers to do so proportionately. If the threat is such that the full period of time is not required, we would expect them not to use it. If, as the shadow Minister said, the nature of the threat changes, we would expect that to be reflected in any ongoing retention decisions. Those are clearly day-to-day operational decisions, and we have to rely on the officers on the ground to make those decisions within the confines of the law and the confines of the codes of practice that we are debating. On that basis, I commend the regulations to the Committee.

Question put and agreed to.