Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2022

Lord Ponsonby of Shulbrede Excerpts

Monday 13th June 2022 Grand Committee

We remain of the view the Schedule 7 and Schedule 8 powers are necessary, but we still have concerns that they are being used disproportionately against innocent minorities, particularly Muslims, and that the widening of the use of the powers to areas other than ports and the Northern Ireland border area may add to this disproportionality. Having said that, we understand the purpose behind these regulations and are generally supportive of the fact that they are necessary.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we, too, support this statutory instrument. As the Minister said, it gives effect to the draft code of practice. We understand that these changes are being made in response to a recommendation by the Independent Reviewer of Terrorism Legislation, Jonathan Hall. We believe it is important that the proper safeguards are in place, support the order and thank Jonathan Hall for his work.

When speaking to the introduction of these powers during the passage of the Nationality and Borders Bill, the Minister, Lord Sharp, said that

“this is by no means an attempt to treat all migrants arriving in this manner as terrorists, or to stop and examine large numbers of people away from ports and borders. Schedule 7 is not designed and cannot be used as a universal screening mechanism”.—[Official Report, 10/2/22; col. 1939.]

What safeguards will be put in place to ensure that there is no slide into using these powers more extensively and frequently?

Furthermore, can the Minister clarify whether information given by someone in answer to a Schedule 7 examination, which is strictly counterterrorism powers, will be used for other purposes, for example by an immigration officer? I think the Minister answered that point, but I repeat the question. I also make the point that our staff got in touch with the department to ask this question and others, using the contact details given in the Explanatory Note, and did not receive a response. Usually there is a named civil servant at the bottom of an Explanatory Memorandum, but, in this case, there was a general email to contact. Our staff sent the email at 2.15 pm on Thursday and there was no response.

Although this order relates only to examinations under existing counterterrorism powers, new immigration offences under the Nationality and Borders Act have given rise to an issue about what questions it is appropriate for a person to be asked as part of these examinations. The nature of the questions was looked at as part of the Government’s consultation.

As far as those new offences are concerned, I repeat the general point we made during the passage of the Nationality and Borders Bill that we on this side of the Committee are opposed to the Government creating a broad offence of arrival that makes it illegal for people to travel to the UK to seek asylum, regardless of whether they are fleeing a war zone or there is a risk to their life. During the passage of the Nationality and Borders Bill we asked the Government instead to create an offence which captured the actual criminal behaviour that they want to target, such as arriving in breach of a deportation order, rather than an overly broad offence. We believe it is crucial that the Schedule 7 counterterrorism powers are used properly and proportionately to target terrorism concerns and not as a universal screening mechanism for people to be captured by broad, unrelated measures.

In conclusion, we must not let our fear of terror prevent us responding compassionately to those who need our help. Indeed, many of those arriving on our shores in an irregular manner are fleeing the same terror and violence that these measures are trying to protect our own citizens from. Terrorist organisations that would do us harm are ruthless and opportunistic; they look to utilise situations such as the refugee crisis for their own gain if given the chance. Therefore, we believe it is right that we ensure that our national security legislation is up to date and takes this into account, so that we can minimise the risk posed by irregular crossings of the channel.

[Baroness Williams of Trafford (Con)]

My Lords, I again thank both noble Lords for their very constructive points and in general. I will not repeat some of our debates on the Nationality and Borders Act—it keeps coming up and I think we will be talking about it for some years to come. The noble Lord, Lord Paddick, is absolutely right that it is the Immigration Act 1971, not 1972.

Preventing extension of scope is a very good point. Criteria for exercising the powers away from port have been drawn tightly to ensure that they catch those who have evaded conventional border controls by their irregular arrival; they do not extend more widely. The change reflects the practical consideration arising from the number of people embarking on illegal channel crossings, and it will ensure that those who enter the UK by such means are subject to the same scrutiny and powers as if they had entered the UK by conventional means. I think that avoids the conflation of some of the worries that noble Lords have.

The noble Lord, Lord Paddick, asked about confidential material; absolutely, yes, nothing has changed there. On the safeguards that the noble Lord, Lord Ponsonby, asked about, we are an open democracy, subject to scrutiny on a regular basis. On extension of scope, we will certainly keep an eye on ensuring that the legislation does what it is supposed to do and nothing further.

On the conflation of terrorism and immigration, it is worth reiterating my noble friend Lord Sharpe’s point that this is not a back-door method to treat all those who arrive in the UK irregularly as if they were terrorists—I think that reinforces the point I just made to the noble Lord, Lord Paddick.