Counter-Terrorism and Border Security Bill (Fifth sitting)

Gavin Newlands Excerpts

Committee Debate: 5th sitting: House of Commons
Tuesday 3rd July 2018 Public Bill Committees

[Mr Wallace]

I want to speak to clause 16 because I am conscious that, even if no amendments are tabled, some parts of the Bill are important and the concerns that we heard in evidence should be reflected. Even if hon. Members on both sides of the Committee agree with the provision, it is important that those on the outside can hear some of our justification.

The clause amends the Terrorism Act 2000 to exclude time spent in, and travelling to and from, hospital from the calculation of the time a suspect spends in pre-charge detention. General criminal law has long recognised that it is appropriate to pause the detention clock so that the time an individual spends in pre-charge detention does not include any time they are receiving hospital treatment or travelling to or from hospital, in the relatively rare cases where a detainee needs hospital treatment.

At present, the calculation of the maximum period of pre-charge detention for an individual arrested under the 2000 Act makes no allowance for any time spent by the suspect receiving hospital treatment. Consequently, if a suspect were to be injured or fall ill in custody, the amount of time available to the police to interview the suspect would be reduced. That could impair the police investigation and prevent a proper decision from being reached on whether to charge the individual before they must be released. They could therefore evade justice and the public could be put at risk.

The change will ensure that the police can use the full amount of time permitted to them under the law to question a suspect, investigate the suspected offence, and work with the Crown Prosecution Service to reach a charging decision. Terrorist investigations are often exceedingly complex and can involve a high level of risk to the public. As such, it is important that the police are able to investigate fully and get such decisions right.

The change will also apply to the calculation of the maximum time for which an individual may be detained for the purpose of examination under schedule 7 to the 2000 Act, which stands at six hours including the initial hour during which a person may be examined without being detained. That will give effect to a recommendation made by the former independent reviewer of terrorism legislation, David Anderson, QC, and will bring the provisions of the 2000 Act in line with the Police and Criminal Evidence Act 1984.

Question put and agreed to.

Clause 16 accordingly ordered to stand part of the Bill.

Clause 17 ordered to stand part of the Bill.

Schedule 2

Retention of biometric data for counter-terrorism purposes etc

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

I beg to move amendment 14, in schedule 2, page 26, line 5, leave out paragraph 2.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 34, in schedule 2, page 26, line 16, at end insert—

“(c) the Commissioner for the Retention and Use of Biometric Material has consented under section 63G to the retention of the material.”

Amendment 15, in schedule 2, page 26, line 29, leave out sub-paragraph 3(4).

These paragraphs extend from two years to five years the time period for which invasive biometric data, including fingerprints and DNA, can be retained. This amendment and amendments 16, 17, 18, 19 and 20 would mean that the time period remains at two years.

Amendment 16, in schedule 2, page 29, line 3, leave out sub-paragraph 7(4).

These paragraphs extend from two years to five years the time period for which invasive biometric data, including fingerprints and DNA, can be retained. This amendment and amendments 15, 17, 18, 19 and 20 would mean that the time period remains at two years.

Amendment 17, in schedule 2, page 30, line 3, leave out sub-paragraph 10(4).

These paragraphs extend from two years to five years the time period for which invasive biometric data, including fingerprints and DNA, can be retained. This amendment and amendments 15, 16, 18, 19 and 20 would mean that the time period remains at two years.

Amendment 18, in schedule 2, page 31, line 32, leave out sub-paragraph 13(4).

These paragraphs extend from two years to five years the time period for which invasive biometric data, including fingerprints and DNA, can be retained. This amendment and amendments 15, 16, 17, 19 and 20 would mean that the time period remains at two years.

Amendment 19, in schedule 2, page 33, line 4, leave out sub-paragraph 16(4).

These paragraphs extend from two years to five years the time period for which invasive biometric data, including fingerprints and DNA, can be retained. This amendment and amendments 15, 16, 17, 18 and 20 would mean that the time period remains at two years.

Amendment 20, in schedule 2, page 34, line 28, leave out paragraph 19.

These paragraphs extend from two years to five years the time period for which invasive biometric data, including fingerprints and DNA, can be retained. This amendment and amendments 15, 16, 17, 18 and 19 would mean that the time period remains at two years.

[Gavin Newlands]

It is a pleasure to see you in the Chair this afternoon, Mrs Main. I rise to speak on amendments 14 to 20, which have been tabled in my name. Clause 17 is obviously a significant provision and relates to the governance and retention of fingerprints, DNA samples and profiles, otherwise known as biometrics, by the police for counter-terrorism purposes. It would affect, among other powers, the retention of biometric data, in particular increasing the maximum duration of a national security determination, or NSD, from two years—or two plus one—to five years.

In addition, paragraph 2 of schedule 2 amends the Police and Criminal Evidence Act 1984, so that fingerprints and DNA evidence relating to a person arrested but not charged with a terrorism-related qualifying offence may be retained for three years. The fact that the power could affect an innocent individual who has not been found guilty of any offence is concerning. That concern was shared by Richard Atkinson of the Law Society, who provided evidence to us. He said:

“It is an area of concern for us because, clearly, it is right that individuals’ data is not routinely withheld”.––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 32, Q76.]

He suggested that the case for the provision has yet to be made by the Government.

The Police and Criminal Evidence Act 1984 provides the authority to a chief officer of the police to determine whether it is necessary and important to retain biometric data for an additional period of up to two years for the purpose of national security. Although NSDs are reviewed independently by the Biometrics Commissioner, the Bill proposes extending the duration of an NSD from the maximum of two years to a maximum of five years. Amendment 14, in deleting paragraph 2, would retain the Biometrics Commissioner oversight and keep the status quo in terms of the length of time data can be kept.

These provisions have attracted controversy due to the belief of many that they are a direct attack on individuals’ right to privacy. Throughout the Bill’s passage, I have spoken about the need to adopt appropriate counter-terrorism methods that can deal with the current threat. However, that goal does not mean that we should eliminate all appropriate checks and balances that safeguard potential abuses of power, which can affect individual civil liberties.

The commissioner also performs a vital, independent role, reviewing every NSD. In doing so, he will assess the nature, circumstances and seriousness of the alleged offence, the grounds for suspicion, the reasons why the arrestee has not been charged, the strength of any reasons for believing that retention may assist in the prevention or detection of crime, the nature and seriousness of the crime or crimes that that retention may assist in preventing or detecting, the age and other characteristics of the arrestee and any representations by the arrestee about those or any other matters. In addition, the commissioner has the power and authority to order that retained material be destroyed where retaining it is no longer necessary.

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[Gavin Newlands]

Despite the Minister praying in aid the Biometrics Commissioner, I still do not buy the Minister’s comments or the strength of his argument about these provisions. However, despite the outrageous description by the hon. Member for Torfaen of my amendment as a blunt instrument, I am conscious that the Labour Front Bench has tabled an amendment in the next group that retains the Biometric Commissioner’s oversight, although it also retains the five years. I will throw my support behind that amendment and for that reason I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Nick Thomas-Symonds]

I beg to move amendment 33, in schedule 2, page 35, line 17, at end insert—

“21 (1) A person whose biometric data is retained under the provisions of this schedule may apply to the Commissioner for the Retention and Use of Biometric Material (‘the Commissioner’) for the destruction of that data when the conditions in sub-paragraph (2) are met.

(2) The conditions referred to in sub-paragraph (1) are—

(a) that the retention of the biometric data has not been previously authorised by the Commissioner or a court of law; and

(b) that the biometric data was taken from the person—

(i) in circumstances where the arrest or charging of the person was substantially due to a mistake, whether of identity, place or other material fact; or

(ii) the person was arrested but never charged for the relevant offence.

(3) On receiving an appeal under sub-paragraph (1), the Commissioner must seek representations from the chief officer of police in the area in which the biometric data was taken as to whether the data should be destroyed or not.

(4) The Commissioner must determine an appeal under sub-paragraph (1) within three months of receiving the appeal.”

Although I described the previous amendment as a blunt instrument, it was proposed in an effective way and was eloquently argued.

[Gavin Newlands]

You are forgiven—just don’t do it again.

[Nick Thomas-Symonds]

I will try not to.

I will put the case for amendment 33, as I started to do in the last series of amendments. The amendment squarely aims at striking an appropriate balance between liberty and security. Two circumstances are highlighted. The first is when there has been a mistake, which can happen, such as a mistake involving identity, place or any material fact—or in the intelligence, which can also happen, as the security Minister would accept. The second circumstance is when a person has been arrested but not charged for the offence. My hon. Friend the Member for Manchester, Gorton referred to the impact on the BAME community, which fits precisely into that category—people who do not end up being charged with an offence.

The amendment states that an application can be made to the commissioner for the destruction of data when the conditions are met. On receiving the appeal, the commissioner must seek representations from the chief officer of police in the area from which the biometrics data was taken as to whether it should be destroyed or not. Even if there is an appeal by an individual to the commissioner, that additional sub-paragraph means that the chief officer of police can make representations, which seems to strike a balance between the two. The individual person has the right, but if there are background concerns, the chief officer of police can make those representations.

There would also be a period of three months in which to determine the appeal, which is a reasonable period for collecting the necessary data from the chief officer of police and for consideration. Of course, there will be circumstances in which appeals will be turned down on that basis, but none the less it provides a framework. If people’s data is being retained in circumstances where a mistake has been made or when they have not ultimately been convicted of an offence, they can appeal to have it taken away, but that safeguard of representations from the chief officer of police remains. In those circumstances, I commend the amendment as a reasonable way through what I accept is a difficult problem.

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[Gavin Newlands]

In supporting the intention of the amendment, I shall briefly set out the differences in the devolved Administrations’ implementation of the Prevent strategy.

The Prevent strategy is implemented in Scotland through Scottish public bodies. The delivery and implementation of Prevent in Scotland is overseen through Consent. There has always been a distinction between preventing terrorism, and community cohesion and integration. In Scotland, Prevent has been more closely aligned to the areas of policy that promote community safety, tackling crime and reducing violence.

Agencies in Scotland have defined terrorism on the basis of the rule of Scottish law. The delivery of Prevent in Scotland benefits from the positive relationships that the community has built through years of regular engagement. That is perhaps missing from its implementation in England and Wales. The Prevent strategy is not universally popular. The Educational Institute of Scotland, a teaching union, opposes it. However, it noted the difference in implementation, stating:

“Scottish councils have, by and large, not bought into the anti-Islam narrative that pervades Prevent in England.”

Given that, will the Minister, in acquiescing to the amendment of the hon. Member for Torfaen, as I feel sure he will, look at the implementation of Prevent in Scotland in any overall review of the Prevent strategy?

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

It is a pleasure to serve under your chairmanship, Mrs Main. I, too, support a review, but perhaps for slightly different reasons.

I have had a close working relationship with South Wales police for many years, and my experience of Prevent locally has been largely positive. Indeed, my interactions with South Wales police overall have been positive. I know that they take great care to engage with the relevant parts of communities, build the necessary personal relationships and focus on what they can do to prevent young people from being drawn into any form of terrorism or extremism—not just Islamist-related extremism, which is regularly referred to, but far-right and other types of extremism.

I am clear from speaking to colleagues in this place that experiences of Prevent vary widely up and down the country. I have no truck whatever with those who suggest that we should prevent Prevent—scrap the whole programme—or those who demonise it, because that does not reflect how it operates in many parts of the country, and scrapping it would be wholly counterproductive in dealing with the issues that we want to deal with.

Many members of my community—Muslims, Hindus, those of other religions and those of no religious faith—have concerns about extremism and terrorism, and want to deal with them. In fact, when I was first elected to this place just under six years ago, a local imam came to me to express serious concerns about what young Muslims in the community were viewing online—the sort of grooming that we discussed in previous sittings.

I take a slightly different approach from my hon. Friend the Member for Ealing Central and Acton. We should have nothing to do with organisations such as Cage—she did not suggest we should. I also have deep concerns about the organisation Muslim Engagement and Development, which I have raised directly with MEND representatives in my community. I have seen some of its positive work to tackle Islamophobia and raise awareness of issues affecting the Muslim community. However, like any other organisation, it does not speak for “the” Muslim community or any other sector of society. It is one organisation that puts forward a set of views and concerns. Sometimes those are positive, but sometimes I have significant concerns.

I have discussed those with my local police force and directly with the organisation. I believe in having a dialogue and understanding where the organisation is coming from, but I am not afraid to raise concerns about things that have been said. Cardiff featured in the Channel 4 documentary to which my hon. Friend referred. I was somewhat alarmed by its findings, although some parts of it may have been alarmist and created undue fear. We have to be cautious, frank and robust with such organisations.

I support a review, but because of a different set of reasons and concerns about the way Prevent is working. My major concern, which I have expressed to the Minister and his predecessors, is that at times Prevent is too focused on elites and community leaders, who are often self-appointed, and does not do enough to deal with grassroots organisations and individuals, particularly young people. That is my experience locally. At times there has been too much silo working. People meet under local authority structures and ways of working when we actually need complex, nuanced and deep relationships across the community to understand what is going on and the concerns that people have about Islamist extremism or far-right extremism, and to build the trust that can help prevent people from being drawn into such activity.

I do not think Prevent’s role in relation to far-right extremism is understood fully enough. I know about the work that is going on locally and the extent to which work is done with individuals who are drawn into far-right organisations, but there is a great deal of concern in some of the most diverse religious communities in my area, such as Grangetown, Butetown and the docks areas of Cardiff, where we have one of the oldest Muslim communities in the UK. We have six mosques and three Hindu temples—there are many different faiths and backgrounds—but unfortunately we have recently seen concerning examples of far-right extremism.

A few months ago, just before I was due to speak at an anti-racism march in Cardiff, neo-Nazi swastikas and slogans were posted all over the community on the route that many children take to school. The fantastic response by South Wales police and the council re-established trust and assurance in the community, but there is understandably concern about what the individuals who are drawn into such groups may do.

We have only to look at the individual who drove from Cardiff to attempt to kill many people in Finsbury Park, or of course at the tragic murder of our former colleague, Jo Cox, by a neo-Nazi who was inspired by far-right ideology, to understand why that is so crucial. However, the issue is not widely understood. Dealing with extremism and terrorism, whatever community or ideological background it comes from, is key to bringing confidence to all communities.

I note what the hon. Member for Paisley and Renfrewshire North, who represents the Scottish National party, said about the devolved Administrations. The Welsh Government play a crucial role as a partner, but that can create clunkiness in the system. I am sure the Minister accepts that UK Departments do not always deal as consistently with the devolved Administrations as we may want. I have had conversations about things that it was assumed were being done by the Ministry of Housing, Communities and Local Government with civil servants and officials who did not understand that those matters were dealt with on a practical level by the devolved Administrations in Scotland, Wales and Northern Ireland. I would therefore like assurances from the Minister about how the UK Government will work with the Welsh Government to ensure that these programmes work.

I support a review, so I support the amendment tabled by my hon. Friend the Member for Torfaen, but I do so for the reasons I have outlined rather than because I think we should not have such a programme or we should not attempt to stop people being drawn into extremism and terrorism.