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

Conor McGinn Excerpts

Wednesday 8th July 2020 General Committees

[Conor McGinn (St Helens North) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Pritchard, and it is always good to see the Minister. I do not think familiarity breeds contempt in his case, because I have seen plenty of him and I am only growing fonder of him. I thank him and the Minister for Security, the right hon. Member for Old Bexley and Sidcup (James Brokenshire), who briefed me in advance on the SI, which was useful. It is in that spirit that I want to work constructively with the Government to ensure that we have robust national security policies firmly in place.

Although the regulations are, on the face of it, technical, they are an important aid in that task. As the Minister said, they bring into force revised codes of practice pertaining to port examination powers under schedule 7 to the Terrorism Act 2000—[Interruption.]—and also pertaining to those exercised as outlined in schedule 3 to the Counter-Terrorism and Border Security Act 2019 in relation to hostile state activity; I hope that that is not the cause of the noise outside.

In addition, the regulations contain proposed revisions to guidance on biometric data, as set out in section 22 of the Protection of Freedoms Act 2012—notably pertaining to conditions on when biometric data can be retained, such as when national security determinations are authorised, as the Minister said.

Our first responsibility, of course, is to protect the public, and there is little question that intercepting terrorist and hostile state actors is vital to that. The attempted assassination of Sergei and Yulia Skripal in March 2018, which led to the poisoning of Detective Sergeant Nick Bailey and Charlie Rowley, and of Dawn Sturgess, who sadly died, made it clear to what depths those who want to harm our values, communities, country and citizens will stoop in order to achieve their ends. Those events and the evolving nature of risks and security threats highlight the need to improve our lines of defence and fill gaps in the legislation. The 2019 Act and the regulations are an attempt to do that.

Our skilled counter-terrorism and border officers at UK ports are often the first line of defence against malign actors, and we need those threats to be intercepted at quick pace. That means that appropriate powers and training must be provided to those dedicated men and women, and their operational partners, so that they can stop, question, search and detain individuals they believe to be dangerous.

That requires updated codes of practice on rights and duties, and we welcome the further clarity in the draft guidance on the scope of an accredited officer’s engagement, as well as clarity on the rights and obligations of the individual being examined, including safeguards on timeframes, communication of information and robust complaints procedures.

Clear guidance not only ensures proportionate and fair use of the powers, but makes their operation as efficient as possible. The Opposition want that, because it keeps our country safe and secure. We welcome the clarification in the guidance of what “hostile activity” comprises. As set out in annex C to the draft schedule 3 code, that is now to include various types of actions, among them espionage, sabotage, assassination and subversion.

Will the Minister confirm whether the list will continue to be reviewed regularly so that activities could prospectively be added if a national security interest deemed it necessary? Clarity in response to evolving threats will help officers on the frontline to do their job and help to keep people safe.

We support the regulations in principle, and we simply seek some clarification and assurances, which I know the Minister is always happy to provide. We acknowledge the safeguards provided in relation to journalists and sensitive information, and I am sure we can agree that in a democracy such as ours, confidential material should be subject to higher legal protections. Investigatory Powers Commissioner oversight is therefore welcome, as are safeguards on retaining confidential material in secure ways. On that first point, will the Minister outline the timeframes that we can expect for independent authorisation—particularly for urgent cases? Will he also outline the systems and processes in place for secure storage?

On biometric retention, we accept the operational case for making changes and the need for the guidance to reflect that. The changes are on issues that include, as the Minister said, extending the length of NSDs from two to five years, allowing a chief officer of a police force in England and Wales to make an NSD in relation to data held by any force in those two countries, and giving the police greater opportunities in specified circumstances to prepare and consider an application before the data is deleted.

Those are, rightly, resilient measures, but we must remind ourselves that they apply to individuals who have not yet been convicted of any crime. It is therefore vital—this is similar to our discussion of terrorism prevention and investigation measures in the Counter-Terrorism and Sentencing Bill Committee yesterday—to have strong protections.

I understand that the Biometrics Commissioner suggested, as stated in the guidance, that officers should make an NSD for less than the new maximum statutory period of five years if they think that that would be proportionate. Again, I trust officers implicitly to make that call based on the evidence in front of them. Can the Minister confirm that further oversight and support would be provided in such scenarios, so that resources are allocated accordingly if the full period is genuinely needed? I am sure he will agree that it would be undesirable for the length of the measures to influenced by local resource considerations rather than underlying security concerns. Conversely, if an individual’s risk profile changes and they no longer pose a threat, will the Minister clarify whether data retention could also be changed, based on that judgment? A sense of flexibility and review is important for such measures.

The Biometrics Commissioner recommended that data be deleted within a reasonable period in circumstances where an individual has been arrested but not convicted of a non-terrorism offence. The guidance states that a reasonable period is up to six months. Can the Minister tell us what evidence led to the designation of that timeframe? Was it suggested by the commissioner?

As I said at the outset, national security is of the utmost importance to the official Opposition, the Government and all members of the Committee. In that context and that spirit, we support the action that the Government are taking.