Facial Recognition Technology

Debate between Lord Anderson of Ipswich and Baroness Williams of Trafford

Wednesday 2nd October 2019 Lords Chamber

[Baroness Williams of Trafford]

I hate to differ on this with my noble friend, but e-gate technology is in fact superb at matching facial recognition to passports—in some cases, better than humans. However, the human eye in these things is of course not to be dismissed and it can detect all sorts of other things in terms of e-gates.

[Lord Anderson of Ipswich (CB)]

My Lords, the Surveillance Camera Commissioner reported in July that not only facial recognition but gait analysis, lip-reading technology, algorithms that can predict fights and sensors that can detect explosives and radiation are all in development and all linked to surveillance cameras. Given the enormous potential of those developments, both positive and negative, and the need for trust on the part of the public, will the Government commission an independent review, with clear parameters, into how, if at all, such investigatory powers should be used and how that use should be supervised in the public interest? Does she agree with the commissioner that there is a case for placing the oversight of all these powers with the existing Investigatory Powers Commissioner’s Office?

[Baroness Williams of Trafford]

I agree with the noble Lord that the emergence of these new technologies necessitates a very careful approach. The live facial recognition technology is currently being trialled rather than fully rolled out, so we need to be very careful about it. In terms of oversight, the Surveillance Camera Commissioner has provided guidance for the police. We have established an oversight board, and the police are bringing forward proposals for new trials. We are working with the police on the development of national operational guidance, which will capture the lessons learned, as well as best practice. However, the noble Lord is absolutely right: with all these new technologies, we need to tread with extreme care and balance their proportionate use with the interests of the public.

Intelligence and Security Committee of Parliament

Debate between Lord Anderson of Ipswich and Baroness Williams of Trafford

Monday 9th September 2019 Grand Committee

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

I thank all noble Lords who have taken part in this debate, particularly my noble friend Lord Lothian for securing it. He and many noble Lords made the point that the committee has not had an opportunity to discuss this, and in my time as Home Office Minister, I have not had the opportunity to reply to the committee until now. I hope that, in the future, the committee requests more regular debates. I will certainly be happy to respond to them.

Before I proceed, I echo the comments of my noble friend Lord Lothian in praising the noble Lord, Lord Janvrin, and the work that he does, and the committee, which does the most incredible work. When I listened to some of the comments from the committee today, I felt quite humbled by the expertise we are so lucky to have in your Lordships’ House and the contributions that the committee has made. I also join noble Lords from the committee in thanking the right honourable Dominic Grieve QC for his leadership and direction of the work of the committee since 2015. Security and intelligence have featured heavily in public discourse over recent years, and it is to the credit of the chairman and the committee members that parliamentary oversight of the intelligence community has been so effectively maintained, even when the pace of events has been extraordinarily fast.

Noble Lords from the committee talked about its output since 2015 and managed to divvy up various contributions so that they were entirely different and focused on different aspects of the committee’s work. The committee has taken evidence on numerous occasions from Ministers and senior officials, conducted a number of inquiries and published several comprehensive reports on a variety of issues.

I shall take a moment to focus on some of the notable achievements of the committee. First, its report into the terrorist attacks in 2017, to which several members of the committee referred, was well researched with tangible recommendations that will help to improve the safety and security of our country. The Government’s official response to that report made clear that the police, the Security Service and the Home Office are all implementing improvements based on it.

Secondly, the committee’s reports into current and historic issues relating to detainees in the Afghanistan and Iraq conflicts were the result of several years of hard work by the committee and its staff. Those reports were extremely thorough and highlighted a number of important findings.

Thirdly, we must commend the committee’s efforts in looking into at how the intelligence community can become even more diverse and inclusive. It was interesting that a number of noble Lords made that point. Again, the report included useful recommendations that build on the significant work that the agencies have already done to make their organisations more diverse and inclusive places to work. The noble Lord, Lord Kennedy, rightly pointed out that inclusivity and diversity is not just a “nice to have”: it enhances the workforce at hand. I am very glad that the committee gave that issue equal standing with the other topics that it has examined.

Finally, the annual reports demonstrate the breadth of its remit and the wide-ranging nature of its oversight role. The conclusions and recommendations of those reports are always noted with interest by the Government and the agencies.

I have so far acknowledged the vital work that the Intelligence and Security Committee conducts to ensure that the UK’s oversight of its security and intelligence agencies is world-leading, but of course, like other noble Lords, I want to put on record the excellent work that the agencies do. As the noble Lord, Lord Janvrin, mentioned, their families support them in their work, and one must not underestimate the strain that that probably often puts them under.

I turn to the various points that noble Lords made, starting with the point made by my noble friend Lord Lothian and others on lethal drone strikes in Syria. A precision airstrike against a British citizen is one of the most difficult decisions a Government can take. However, if there is a direct threat to UK citizens, such as that posed by Reyaad Khan, this Government will always be prepared to act. In 2015, there was no alternative to a precision airstrike in Syria. There was no Government who the UK could work with and no military on the ground to detain Daesh operatives. There was also nothing to suggest that Rayeed Khan would desist from his desire to murder innocent people in the UK. The Government had no way to ensure that all of his planned attacks would not become murderous reality without taking direct action. As the then Prime Minister informed the House in September 2015, a rigorous decision-making process underpinned the airstrike. A direct and imminent threat was identified by the intelligence agencies and the National Security Council agreed that military action should be taken. The Attorney-General was consulted and was clear that there would be a clear legal basis for action in international law. An air strike was the only feasible means of effectively disrupting the attack planning, so it was necessary and proportionate for the individual self-defence of the UK. On that basis the Defence Secretary authorised the operation, which was conducted according to specific military rules of engagement that complied with international law and the principles of proportionality and necessity.

The ISC announced on 29 October 2015 that it would be,

“investigating the intelligence basis for the lethal strikes”.

The ISC was provided with all the relevant information in this respect, and we are very grateful to the committee for its work. The decision-making process was not part of the review’s remit, which meant that the committee was not provided with a number of documents, including what the ISC has referred to as the “key Ministerial submission”. More generally, I assure noble Lords that the Government take all ISC requests for information very seriously and respond in line with the memorandum of understanding between the Government and the committee.

My noble friend Lord Lothian, the noble Lord, Lord Anderson, and others talked about the detainees and the committee saying its inquiry was neither authoritative nor credible because of government restrictions. The Government and the agencies fully and willingly co-operated with the committee and the earlier Gibson inquiry. The Government provided all relevant documentary evidence to assist inquiries into this issue, including the committee’s. The committee had access to the Government’s material provided to the Gibson inquiry and the agency heads’ responses to the 27 themes issued by Sir Peter Gibson in his preliminary report. As the committee said, it took 50 hours of oral evidence, reviewed 40,000 original documents and devoted over 30,000 staff hours to its inquiry. The only sticking points were the committee’s request to interview junior staff and staff subject to ongoing legal proceedings.

The point about Russia has been well made, and we look forward to reading the committee’s report on Russia when it is published.

My noble friend Lord Lothian asked why the Prime Minister has not met the committee and whether it is a statutory requirement. The Prime Minister takes the work of the committee seriously and will provide evidence to it at an appropriate point in the future.

My noble friend also asked me about air strikes in Syria outlined in the 2017-18 annual report. All indications were that this was a chemical weapons attack, and we were and are clear about who was responsible. Both the Organisation for the Prohibition of Chemical Weapons’ interim report on the Douma attack and the UN commission of inquiry’s most recent report support the Government’s conclusion that a chemical weapons attack was carried out on Douma on 7 April. While we do not comment on specific targeting decisions, targets were selected on the basis of rigorous intelligence and were extensively examined and assessed to ensure that our objective was achieved while protecting civilian life.

The action we took has had a disruptive effect on the Syrian regime’s capabilities. There should be no doubt as to our resolve regarding any future use of chemical weapons. As the then Prime Minister said at the time:

“It is in our national interest to prevent the further use of chemical weapons in Syria”,—[Official Report, Commons, 16/4/18; col. 42.]


and we will continue to work with partners, including through the UN and other international organisations, to uphold and defend the global consensus that these weapons should not be used. The Syrian conflict has been one of the most destructive in recent human history, and we reacted with our largest-ever humanitarian response. Our priority now is for the war to end as quickly as possible through the UN-facilitated political process reaching a lasting settlement to the conflict that protects the rights of all Syrians.

I will move on to the comments of the noble Lord, Lord Anderson of Ipswich. The Government welcome the assurance that the noble Lord has provided in order to monitor the progress of the work of MI5, CT policing and the Home Office. As he highlighted, it is of great importance that MI5 and CT policing improvement programmes continue to be scrutinised. It should be noted that as part of the ongoing scrutiny, the Government are providing six and 12-month updates on a number of the recommendations in the committee’s recent report, The 2017 Attacks: What needs to change?

The noble Lord talked about the reconstitution of the committee and the speed, or lack thereof, with which appointments were made. As he will know, the Justice and Security Act 2013 devolved more of the appointments process to Parliament. Candidates for membership of the committee are nominated by the Prime Minister, after consultation with the leader of the Opposition, and Parliament then votes to appoint them.

The noble Lord talked also about the lack of speed in publications. The Government aim to publish our response to ISC reports within 60 days, as set out in the MoU, but I will defer to the noble Lord, Lord Paddick, who seems to think that one of them was not responded to. We aim to do so within 60 days.

The noble Lord, Lord Anderson, also referred to the IPCO, civil society and wider expertise. I thank him for his suggestions about IPCO resourcing, the involvement of civic society and the opening up to wider expertise. These suggestions will be considered by government.

On the same theme, the noble Lord, Lord Paddick, mentioned that the committee cannot sit during Prorogation, which is right. Both Prorogation and general election campaigns unfortunately do not provide for that process to continue.

I will move on to the comments from the noble Lord, Lord Janvrin. Rightly, his first point—

[Lord Anderson of Ipswich]

Before the Minister leaves those comments, I wonder might I press her a little further on a point that was raised a number of times. We have heard in this debate of no fewer than three reports—on drone strikes, a detainee inquiry and Parsons Green—in which the committee has not been allowed either to see relevant documents or to speak to relevant personnel. That seems to be something of a pattern. Could the Minister explain how the public can have the necessary confidence that we have comprehensive intelligence oversight when the overseer itself complains that it is not being given the tools it needs to do the job? What guarantees can we have that this situation will not recur in future ISC inquiries?

[Baroness Williams of Trafford]

As I said to noble Lords, we endeavour to respond within 60 days. There will be certain occasions when responses cannot be given for reasons possibly of national security, but where responses can be given, we endeavour to give them.

[Lord Anderson of Ipswich]

Is the Minister saying that there may be reasons of national security why information cannot be provided to the privy counsellors on the Intelligence and Security Committee to hold the intelligence agencies to account?

[Baroness Williams of Trafford]

I am saying—I will be corrected if I am wrong—that there may be occasions when it is not possible for that information to be provided. But, for the benefit of the noble Lord, Lord Anderson, I will go back and interrogate each event that he mentioned and confirm that in writing to the committee if that is the case—but I suspect that is the reason why sometimes documents cannot be provided. I know the noble Lord does not look happy about that.

Moving back to the point about diversity and inclusion, I said that better workforces are more diverse workforces, and the other point I wanted to make was about flexibility in working styles to allow for more inclusivity within the workforce.

The noble Lords, Lord Janvrin and Lord Ricketts, talked about 5G suppliers. The UK Government have recently conducted a comprehensive review to ensure the security and resilience of 5G in the UK. We published that review earlier this month. Our response to the review is based on evidence and a hard-headed assessment of the risks. We will never compromise security in our pursuit of economic prosperity. I think we can have both. I stress that no final decision has been made about Huawei. The US entity listing is a new and relevant factor for the findings of this review, with potential implications for the market as a whole. The Government will further consider the position regarding high-risk vendors and make a decision in due course.

The noble Lord, Lord Janvrin, referred to Prevent and the Abedi case. As with all the other issues relating to the 2017 terrorist attack, the Government have looked for lessons learned relating to the Prevent programme. Abedi was not referred to the Prevent programme following the closure of investigations into him in 2014 by MI5 or CT policing. The investigations were closed because he was thought to be an individual seen acting suspiciously with a subject of interest, but he turned out not to have been that individual and therefore was judged to be low risk. He was also not referred separately to Prevent as part of the operational improvement review. Investigators must now give thought to referring an individual to Prevent upon the closure of an investigation.

The noble Lord, Lord Ricketts, made a point about how Brexit might impact on intelligence sharing with our EU partners. We work exceptionally closely with our European counterparts on intelligence sharing, joint operational work and sharing experiences of the developing threat. National security is outside the EU purview, but the noble Lord made the point that when we leave the EU the whole dynamic will change.

The light is flashing. I hope that noble Lords will be content for me to continue for another minute.

The noble Lord, Lord Kennedy, asked why the purchase of chemicals used in the Manchester and Parsons Green attacks was not picked up and why it took an attack for the Government to realise that the suspicious activity reporting regime was out of date. Terrorists diversify their methods, including their methods of acquisition, and therefore our methods need to adapt over time to maintain that correct balance. Since the attacks we have refined our comprehensive strategy for preventing and detecting terrorists’ acquisition of explosives precursors to make our activities smarter and more efficient. The Government are actively working with retailers to design out the threat by substituting products with safer alternatives that cannot be used in an attack.

The noble Lord also made the point about the Manchester attacker visiting a known terrorist prisoner in prison and asked why that was allowed. All offenders of extremist or terrorist concern are managed actively as part of the comprehensive counterterrorism case management system. We are currently scoping work to strengthen controls around communications and visits for TACT and TACT-related offenders that could continue to pose a risk to the community irrespective of their prison security category. This process will be part of the wider review of all contact and transactions between people in the community and extremists in prison, and it will include addressing arrangements currently in place under the approved visitors scheme.

Finally, the noble Lord made a point about bots—about what is real news and what is fake news. I have to say that the past week has led me to wonder what is real in the world; so much is going on on Twitter. The noble Lord made an important point about elections because we need them to be based on what people have actually voted for rather than on what might have been influential over the internet. We have the Online Harms White Paper and will be doing further work on what appears on the internet, but the noble Lord makes a valid point in which I know that DCMS will also be very interested.

I thank noble Lords for their patience—the light has now been flashing for three minutes—and particularly my noble friend.

Counter-Terrorism and Border Security Bill

Debate between Lord Anderson of Ipswich and Baroness Williams of Trafford

Report stage (Hansard - continued): House of Lords
Monday 3rd December 2018 Lords Chamber

[Baroness Williams of Trafford]

My Lords, as the noble Baroness pointed out, Clause 13 confers on police the power to enter and search the home address of a registered terrorist offender, under the authority of a warrant issued by a justice, for the purpose of assessing the risk the offender poses. Amendment 28 would narrow the purpose for which the power of entry and search may be operated, limiting it to assessing whether the offender is in breach of the notification requirements. There was a good debate on this in Committee, so I will not detain the House by setting out again the underlying purpose of the terrorism notification requirements, and their importance in helping the police to manage the risk posed by those convicted of serious terrorism offences. However, it may assist your Lordships if I briefly rehearse the purpose of this power, and why it is needed in its current form.

The purpose of the power of entry and search, as currently drafted and as intended by the Government, is to allow the police to assess the risk posed by a convicted terrorist who is subject to the notification requirements. The police consider that home visits are an important tool in managing and risk-assessing registered terrorist offenders during the time they are subject to the notification regime. Such visits allow them to ascertain whether the offender does in fact reside at the address they have notified to the police, and to check their compliance with other aspects of the notification regime. Home visits are also helpful, as they allow a broader assessment of risk to be made. They allow the police to identify any other factors that might contribute to the overall risk an offender poses to themselves or their community, and their risk of reoffending. This might include their general living conditions, as well as any signs of mental health decline, or of drug or alcohol misuse.

It seems an entirely appropriate purpose for the police to wish to keep in touch with a registered terrorist offender. Indeed, given that the police are charged with protecting us all from such serious offenders, it would surely be irresponsible to do otherwise. However, Amendment 28 would mean that the new power could not be used for that purpose. The police will, of course, always seek to conduct such visits on a voluntary basis and the clause requires that this approach must be attempted at least twice before a warrant is sought. A positive and co-operative relationship is always preferable, and leads to more effective management of risk. However, a power of entry and search is needed because this is not always the reality, and registered terrorist offenders will often not comply with such home visits voluntarily. They will often be generally unco-operative and refuse to engage constructively with the police in conducting necessary checks.

In previous debates, I have highlighted that an identical power exists in relation to registered sex offenders. It was introduced by the Violent Crime Reduction Act 2006, by the then Labour Government. Indeed, the then Home Office Minister, the noble Lord, Lord Bassam, said at the time in reference to sex offenders that,

“we are now of the view that further powers are required to enable the police to gather all the information they need about a small but, it has to be said, determined group of offenders who, while in apparent compliance with the notification requirements, do all they can to frustrate the risk assessment process”.—[Official Report, Commons, 22/5/06; col. 678.)

I can only echo the noble Lord’s words.

The police report that their experience with registered sex offenders, as a result of this power being available, is that the offenders will normally comply voluntarily and that they are able to build a far more constructive relationship with them. This is simply because those offenders know that if they refuse to engage on a voluntary basis the police will be able to return with a warrant. We anticipate this power bringing similar benefits in the management of registered terrorist offenders, who are equally in a particular category of risk, such that monitoring of this kind is appropriate following a conviction. I cannot see that there is a rational argument for why the police should have less effective powers to monitor the risk posed by registered terrorist offenders than they do for registered sex offenders. I hope that the noble Baroness will withdraw her amendment in light of this explanation.

[Lord Anderson of Ipswich]

Before the Minister sits down, perhaps she can explain whether she is saying that, if there is no rational basis for providing this power in a different way from the way it was done in the case of sex offenders, the TPIM Act 2011 was not rational in how it approached the issue, and what does she say about that parallel with the TPIM Act?

[Baroness Williams of Trafford]

I would not like to say that the TPIM Act was not rational. I can write to the noble Lord to outline the significant differences here, but I think that the parallel with sex offenders that I posed is pertinent.

Counter-Terrorism and Border Security Bill

Debate between Lord Anderson of Ipswich and Baroness Williams of Trafford

Committee: 4th sitting (Hansard): House of Lords
Wednesday 14th November 2018 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, the provisions relating to access to a lawyer, so far as they replicate those in Schedule 7, which I understand they are intended to do, should be seen against the background of three matters.

First, the maximum period under both schedules is six hours’ detention, which was reduced from nine hours a few years ago and from much longer periods during the Troubles, when, as now, these controls could be applied to travellers between Northern Ireland and Great Britain—a long-standing example of a border down the Irish Sea. Secondly, some of these seaports and airports are remote, and stops, let alone detentions, are so unusual that it would be quite impracticable always to have a panel of lawyers on tap. Thirdly, a fact long considered obvious by the courts, and now enshrined in Clause 16, is that answers given under these compulsory powers may not be used in subsequent criminal proceedings save in the special circumstances outlined for Schedule 7 by the Supreme Court in Beghal and echoed in the Bill.

The last of those factors caused Mr Justice Collins, in the case of CC, in 2012, to doubt whether there was any value at all in the presence of a lawyer during Schedule 7 questioning, since no responsible lawyer could advise their client to break the law by remaining silent. That view was rejected by the Divisional Court in the case of Elosta, which held that:

“The solicitor does have a useful, if limited, role to play”.


The fact remains that there are differences between an examination under Schedule 3 or Schedule 7, on the one hand, and a classic police interview under caution, on the other. It is perhaps also relevant to have in mind that, unless I am mistaken—I am sure I will be corrected if I am—these equivalent powers appear not only under Schedule 7 to the Terrorism Act but under Schedule 8, where detention for much longer periods, of up to 14 days, is contemplated.

Before the Minister thinks I have become too tame, let me please make this point. The operation of any powers to delay or impose limitations on access to legal advice, if they are to continue and to be extended, must be subject to effective independent review. This will only be possible if the reasons are recorded, as is correctly provided for in Schedule 3, and if the number of occasions on which they have been used is published, so that concerned citizens are aware and the independent reviewer can investigate individual cases or draw attention to and explore the reasons for any increasing trend in the use of the powers.

The number of occasions on which access to a solicitor has been delayed for those detained under Schedule 8 is logged meticulously in Northern Ireland and published by the NIO in its annual statistics on terrorism legislation. The latest figures tell us that between 2001 and March 2018, only five persons in Northern Ireland were refused immediate access to a solicitor. However, effective review requires the equivalent figures to be available for the whole country.

I was given to understand four years ago by the Home Office—not for the first time—that this was work in progress, at least where Schedule 8 was concerned. Will the Minister undertake that the statistics relating to delayed and conditional access to a solicitor on the part of those detained under the Terrorism Act and the new hostile state activity powers will be published across the country; and will she tell us whether there is anything she can do to speed things up a bit?

[Baroness Williams of Trafford]

My Lords, I thank noble Lords for their comments on these amendments, particularly the noble Lord, Lord Marks. I hope that by the end of my remarks, your Lordships will be more satisfied about the progress of the Bill in this area.

The amendments in this group raise the important issue of a detainee’s right to access a solicitor when detained under the ports powers in Schedule 3 to the Bill or Schedule 7 to the Terrorism Act 2000. These amendments seek to ensure that where an individual has been detained under these schedules, the examining officer must postpone questioning until the examinee has consulted a solicitor in private.

I am aware that the right to access a solicitor under these ports powers was the subject of much debate as this Bill was scrutinised in the House of Commons, as the noble Lord, Lord Rosser, pointed out. The good speeches at Second Reading in this House served as a fitting reminder that, as new threats emerge, we must continue to be steadfast in our commitment to the principles that our laws and practices are founded on.

The powers under these schedules would afford any person formally detained the right to consult a solicitor, privately, if they request to do so. In the vast majority of cases where an individual has been detained under these powers, there will be no reason to interfere with that right. In exceptional circumstances, however, there may be a need for a more senior police officer to restrict that right where the officer has reasonable grounds for believing that allowing the detainee to exercise his or her right to consult a solicitor privately will have certain serious consequences—for example, interference with evidence or the gathering of information; injury to another person; alerting others that they are suspected of an indictable offence; or hindering the recovery of property obtained by an indictable offence.

I have listened carefully to the debate; it is clear that there are particular concerns about the restrictions under these schedules that would allow an assistant chief constable to require the detainee to consult their solicitor within the sight and hearing of another police officer. Let me explain that the intention behind this restriction is to disrupt a detainee who seeks to exploit their right to consult a solicitor by using the solicitor as a conduit to pass on instructions to a third party, either through intimidation, willing collusion or the use of a coded message, as the noble Lord, Lord Marks, pointed out. Reasonable grounds for belief might develop where prior intelligence indicates that the individual may seek to obstruct an examination, either because they have a history of doing so or they have been trained to evade, frustrate or subvert police examinations. The officer might also witness interactions between the individual and their solicitor that alerts them to the possibility that the detainee is intimidating their solicitor.

Amendments 85, 86 and 88 and the equivalents in the new clause proposed by Amendment 63 would see these restrictions removed from Schedules 3 and 7 in their entirety. I understand the rationale for these amendments and recognise the force of the arguments that have been made in defence of the principle of lawyer-client confidentiality. At the same time, we are all here because we recognise the threat that we face from hostile state actors and terrorists and the risk of leaving loopholes to be exploited.

As alluded to by the noble Lord, Lord Rosser, during the debate on similar amendments on Report in the House of Commons, the Security Minister undertook to consider the proposal of the Opposition Front Bench to allow a senior officer, in such circumstances, to direct that the detainee use a solicitor from an approved panel—a point mentioned by the noble Lord, Lord Marks, and the noble Lord, Lord Rosser, who reiterated this same proposition in today’s debate. Such an approach may offer an acceptable way through this issue and I can undertake to give sympathetic consideration to his amendment in advance of Report.

However, I cannot be so accommodating about Amendment 84 because it would remove the power under Schedule 3 to delay a consultation between the detainee and their solicitor where a senior officer has reasonable grounds to believe that the exercise of this right will result in the consequences I have previously described. Powers for an officer to delay the communication of the fact of a person’s detention to a named person and to delay that detainee’s access to a solicitor have been enshrined in PACE for many years. These powers are therefore not novel but are familiar in the wider policing context and allow the police to delay contact with a third party or consultation with a solicitor where there are reasonably founded concerns that knowledge of the person’s detention may result in serious consequences. Removing this power of delay would undermine the ability to mitigate these risks.

I have already addressed part of Amendment 63 but let me now respond to the proposed changes to the other powers that allow an examining officer to restrict a Schedule 7 detainee’s access to a solicitor. These restrictions under Schedule 8 to the 2000 Act currently allow an examining officer to question a detainee without a consultation having first taken place with a solicitor in person. However, I must point out that this does not preclude the detainee from consulting a solicitor via another means—for example, by telephone.

These powers can be exercised only where the officer reasonably believes that to wait for the solicitor to arrive in person would prejudice the determination of the relevant matters. Amendment 63, however, would limit the availability of these restrictions to a situation where waiting for the solicitor to arrive in person could create an immediate risk of physical injury to any person. This is contrary to the intention of the powers, which were designed to mitigate the risk of a detainee using their right to consult a solicitor to obstruct and frustrate the examination and run down the short detention clock. As noble Lords will be aware and as the noble Lord, Lord Anderson, pointed out, the maximum period of examination is limited to six hours. It would not take a trained terrorist or hostile actor to work out that if they were to insist on speaking to a solicitor, in person, who happens to be located many miles away from the port where they are being examined, they have a means of significantly delaying their examination.

The current powers under Schedule 8 provide a practical solution to mitigate that risk by allowing the person to consult that solicitor over the phone. If the person refuses that alternative, or the solicitor is unavailable, the officer can continue questioning the person while they wait for the solicitor to arrive. Any decision by the officer to apply these restrictions must be clearly recorded.

Before using these restrictions, the examining officer will exhaust all other means to ensure that the detainee has been able to consult a solicitor in private, including directing them to a solicitor of the duty solicitor scheme. The changes proposed in Amendment 63 would resurrect the risks that I have described and undermine key powers for countering terrorism.

The noble Lord, Lord Anderson, asked about recording when restrictions are used in Great Britain and Northern Ireland. We will consider with our operational partners which statistics it would be appropriate to publish with regard to Schedule 3. I hope that the noble Lord is satisfied with that response and I will keep him updated.

[Lord Anderson of Ipswich]

The noble Baroness has asked whether I am satisfied with the response. As the independent reviewer, I was told four years ago that this was happening, and it was not the first time that I had been told it was happening, in relation to Schedule 8. I am sure that the Minister did not mean to backtrack on that commitment, but I would be very grateful if she felt able to give someone a bit of a push.

[Baroness Williams of Trafford]

I was going to use the word “shove”, but I will give them a push instead, which is probably more in keeping with your Lordships’ House.

Perhaps I may move on finally to Amendments 83 and 87. I draw the attention of the Committee to the draft Schedule 3 code of practice, which I have already circulated to noble Lords. Like its equivalent for Schedule 7, the draft code is clear that a person detained under either power must be provided with a notice of detention that clarifies their rights and obligations. The examining officer must also explain these rights and obligations to the detainee before continuing with the examination. In addition, at each periodic review of the detention, the examining officer must remind the detainee of any rights that they have not yet exercised.

The Government are in complete agreement that any person detained under Schedule 3 should be informed of their rights before any further questioning takes place. It has always been the case through the exercise of Schedule 7 powers and it is why we have made it explicit in the equivalent draft code of practice for Schedule 3. While the Government are clear that the intention behind these amendments has already been satisfied through the provision of the draft code, I am now ready to consider further the merits of writing such a requirement into Schedule 3 and Schedule 8 to the Terrorism Act.

With those remarks, I hope that the noble Lord, Lord Marks, will be content to withdraw his amendment.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, I echo the words of the noble and learned Lord, Lord Judge: the noble Lord, Lord Anderson, is indeed wise and elegant in his words. As the noble Lord has explained, this group of amendments deals with the definition of “hostile act” in Schedule 3.

It is important to emphasise that the design of any new power should be specific to the threat it is seeking to mitigate. The scope of this power has been designed to do just that; namely, to mitigate the known threats from hostile state activity. The danger of these amendments, therefore, is that they will limit the scope of the power, thereby limiting the range of threats that it has been designed to combat.

For the benefit of the Committee, the ports powers under Schedule 3 will be used by examining officers at UK ports or the border area,

“for the purpose of determining whether the person appears to be a person who is, or has been, engaged in hostile activity”.

A person is engaged in hostile activity if they are,

“concerned in the commission, preparation or instigation of a hostile act that is or may be … carried out for, or on behalf of, a State other than the United Kingdom, or … otherwise in the interests of a State other than the United Kingdom”.

Under this schedule, a hostile act is defined as an act that,

“threatens national security … threatens the economic well-being of the United Kingdom, or … is an act of serious crime”.

By replacing “hostile act” with “serious crime”, these amendments would significantly narrow the range of hostile activity that these powers are designed to counter. It would undoubtedly limit the ability of our ports officers to detect, disrupt and deter hostile actors. Serious crime is defined in the Bill as being an offence which could reasonably be expected to result in,

“imprisonment for a term of 3 years or more, or … the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose”.

Some of the activities which I believe noble Lords would expect to be captured through these new powers would not fall within the scope of the truncated definition of hostile activity. As the noble Baroness, Lady Manningham-Buller, explained earlier, some offences under the Official Secrets Act 1989 attract a maximum penalty of only two years’ imprisonment and may not involve the use of violence, result in financial gain or involve a large number of people acting in pursuit of a common purpose. Consequently, an examining officer would not be able to exercise Schedule 3 powers for the purpose of detecting, disrupting or deterring this type of hostile activity even if the activity threatens national security or could be prosecuted for offences under the Official Secrets Act. This is simply not acceptable.

There may even be occasions when we have intelligence to suggest that a person linked to hostile state activity is travelling to the UK for a hostile purpose but the intelligence we have is incomplete and the nature of the hostile purpose cannot be determined; therefore, we cannot assess whether the purpose is linked to a serious crime. In this circumstance, it would be very important to have a power to stop and examine them at the port to establish the nature of the hostile act.

As noble Lords will know, following the appalling acts in Salisbury, the Government are undertaking a review of legislation to combat hostile state activity. Hostile activity, by its very nature, is often covert and undertaken by foreign intelligence officers or their agents seeking to acquire sensitive information to gain an advantage over the United Kingdom and undermine our national security. On occasions this activity may not be considered criminal under the law as it stands; for example, if a foreign intelligence officer intended to travel to the UK to maintain or build a relationship with employees contracted to work on UK defence projects with the aim of acquiring sensitive information, this may not be a crime but it would be imperative to detect and disrupt this activity at the earliest opportunity, before irreversible damage to our national security occurred.

It is entirely plausible that a hostile actor should want to visit the UK in order to collect classified documents from an agent who had committed acts of espionage on their behalf. It is not a crime for the hostile actor to receive these documents and leave the country but, although the individual has not committed a crime, a Schedule 3 examination would enable an examining officer to make a determination as to whether they have been engaged in a hostile act. An examination would also allow the examining officer to remove the classified documents from the hostile actor, preventing the disclosure of potentially damaging information.

Even though the purpose of a Schedule 3 examination is to make a determination as to whether the actor has been engaged in a hostile act, exercise of the power may provide a number of secondary benefits. In instances such as the example I have just talked about, it would provide the first leads into an investigation to detect who the agent is—if we did not already know—and prevent the documents from ever being disclosed. These investigations may or may not lead to future prosecutions. It is therefore right to give the police the power to investigate hostile state activity, even at a preliminary stage before we have reasonable suspicion that a foreign intelligence officer has committed an offence. I know that noble Lords do not really think that the police should not have the power to stop someone who is from, or acting on behalf of, a foreign intelligence service as they enter or leave the United Kingdom.

If we were to accept these amendments, traditional behaviours undertaken by hostile states which have the potential to have such a detrimental effect would fall out of scope of the power and we would not be able to detect, disrupt or deter them. I put it to noble Lords that such activity should not go unchallenged. The definition of “hostile act” is necessarily broad to ensure that the powers capture the full range of activities which hostile actors engage in. We recognise the concerns that have been raised and I reassure the Committee that these were considered in the drafting of Schedule 3. This is why we have explicitly restricted the definition to an act that is carried out for, or on behalf of, or otherwise in the interests of, a state other than the United Kingdom.

I also recognise the concerns about the term,

“economic well-being of the United Kingdom”.

As has been pointed out, there may be instances where an act undertaken by a hostile state actor threatens that economic well-being yet does not threaten our national security; it is also true for acts of serious crime. Economic well-being, like national security, is a term already used in UK legislation. The intention of this limb of the definition is to ensure that these powers can be used to mitigate hostile acts which could damage the country’s critical infrastructure or disrupt energy supplies to the UK. For example, if an employee in the banking sector of the City of London discovered a serious vulnerability in computer networks and shared this information with a hostile state, it would drastically undermine confidence in the City of London and cost the UK economy millions, if not billions.

I hope that with these explanations, the noble Lord will feel content to withdraw his amendment.

[Lord Anderson of Ipswich]

My Lords, I am grateful to the Minister and to all noble Lords who contributed to this debate, including the noble Baroness, Lady Manningham-Buller, who made her remarks earlier.

I asked the Minister whether she could give another example of the police being given strong, coercive powers for the purpose of determining whether people are acting in a way which may be undesirable but which is perfectly lawful under the law of the land. I do not think that I had an answer and, if there is no answer, I would suggest that the Bill as written constitutes a new and very dangerous departure. That is the point of principle behind this amendment and, with great respect to the Minister, she did not address it in her reply. I hope that the Minister will consider this carefully because my concerns, as she has heard, are shared by lawyers far more distinguished than I—and not only by lawyers.

As to the pragmatic solution, the Minister has heard suggestions as to how the scope of this power could be reduced in a way that achieves its objectives in a manner more consistent with the principle of legality. I hope that she will deliberate further on those suggestions. I would be more than happy to discuss them with her but, in the meantime, I beg leave to withdraw the amendment.

Counter-Terrorism and Border Security Bill

Debate between Lord Anderson of Ipswich and Baroness Williams of Trafford

Committee: 3rd sitting (Hansard): House of Lords
Monday 12th November 2018 Lords Chamber

[Lord Anderson of Ipswich]

Since the Minister mentioned Assistant Commissioner Basu and what he had to say about the Prevent strategy, is she familiar with the interview he gave, I think to an American periodical, a few weeks before he was appointed to his current role in relation to counterterrorism in which he made a number of constructive suggestions for changing the Prevent strategy, in particular to make it more, as he put it, community focused and less top down?

[Baroness Williams of Trafford]

I shall read it with interest.

--- Later in debate ---

[Baroness Williams of Trafford]

My Lords, I am not entirely sure. They are different procedures. I shall write to the noble Lord on the difference because he makes a valid point.

[Lord Anderson of Ipswich]

I am grateful to the Minister. While she is writing to the noble Lord, Lord Pannick, could she perhaps answer my question? Even if she is correct that the ability to apply to have an organisation deproscribed is a substitute for my amendment—the track record very much suggests that it is not—and assuming that in her favour, could the Minister explain in the letter, or in person if she prefers, what consolation that could be to the innocent member of the community in London who comes under suspicion for alleged links with a proscribed organisation but who has no connection with it and could not in 100 years have been expected to be the person who makes that application?

I am trying to avoid naming specific communities, although I have spent plenty of time in London with Tamils, for example. For them, the fact that the LTTE remains a proscribed organisation—rightly or wrongly; I have no judgment on that—can be a significant impediment on how they go about their everyday life. What consolation could it be for the Tamil greengrocer in London to know that, had they wished to do so, the top brass of the LTTE, or others intimately connected with it, might have made an application for deproscription?

[Baroness Williams of Trafford]

They could have done. I do not know whether or not it is a consolation, but they could have done.

The point made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, does not conflict with Clause 1 because there is no offence to suggest that a group should be deproscribed under Clause 1. Is that what he was referring to?

[Baroness Williams of Trafford]

The first part of that would not conflict with Clause 1, but the second part of that statement would, as you are then promoting it as an organisation. Perhaps we can talk about that subsequently.

I move on to Northern Ireland, because I want to talk about the amendment in that context. Any change to the current regime must be carefully considered, paying particular regard to the unique historical and current security context and challenges in that part of the United Kingdom. Paramilitary activity has a greater impact in Northern Ireland than in any other part of the UK. Because of this complex environment, proscription remains an essential tool in the wider, strategic approach to tackling the continued and widespread existence and impact of paramilitary groups in Northern Ireland.

Terrorism legislation, including the proscription regime, is of course an excepted matter in Northern Ireland—it is reserved to the UK Government—but the impact of this amendment cannot be divorced from what is happening at the devolved level. Any change to the proscription regime would have a significant impact on wider efforts to tackle paramilitary activity currently being undertaken at a devolved level and supported by the UK Government and multiple agencies and bodies through the Tackling Paramilitarism programme. A decision to change the proscription regime in Northern Ireland could not, and should not, be taken in isolation from these other initiatives and without detailed prior consultation with the devolved Administration and security partners.

Given the current suspension of the Northern Ireland Assembly and Executive, the opportunity to undertake such consultation does not present itself at this time. We simply cannot ignore the operational, policy, resourcing and wider political ramifications of this amendment. These implications arise in relation to the proscription of international terrorist organisations, but are particularly acute in relation to Northern Ireland-related terrorist organisations. I know that this is a sensitive area, and that this House is rightly concerned to ensure that we strike the right balance, both in relation to the proposed new clause and to the other clauses in the Bill which amend proscription offences.

Finally, I suggest that noble Lords proceed with great caution in this area, given the considerations which I have just outlined. The learned position which the noble Lord has set out needs to be balanced against the reality that these are serious and, in some cases, unpleasant terrorist groups. They have been proscribed with good reason and the Government are anxious to ensure that they do not pose a resurgent threat to the public. I hope that, at this stage, the noble Lord will be content to withdraw the amendment.

[Lord Anderson of Ipswich]

My Lords, I am grateful for the flattering words with which the Minister began and overwhelmed by the distinguished support for the amendment from so many noble Lords. With great respect to the noble Lord, Lord Carlile, I hope that the Minister will not only carefully consider the amendment—as improved by the noble Lord, Lord Pannick—but see the benefits to the Government of having it enshrined in law and not just in an undertaking, so that there can be no doubt who wins in any future conflict within the Government of the sort that the noble Baroness, Lady Manningham-Buller, and I have experienced in our different capacities.

In case it was in any doubt, I clarify that the amendment seeks not to change the proscription regime in Northern Ireland but simply to ensure that the existing regime, as written very plainly in law, is applied. I beg leave to withdraw the amendment, but fully expect to return to it on Report.