Counter-Terrorism and Border Security Bill

Lord Rosser Excerpts

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

[Baroness Williams of Trafford]

My Lords, the government amendments in this group make a number of changes in response to the debates in both Houses regarding the ports powers under Schedule 3 to the Bill and Schedule 7 to the Terrorism Act 2000. They also respond to the reports of the Joint Committee on Human Rights, the Constitution Committee and the Delegated Powers Committee, and to representations from the Law Society and others.

During the course of the previous debates, there has been much focus on the important topic of a detainee’s right to consult a solicitor in private, and on the exceptional power that would allow an officer to overhear that consultation to mitigate concerns that the detainee might pass on a message to a third party. While this power was not without safeguards—for example, it could only be authorised by an assistant chief constable where the officer had reasonable grounds for believing that allowing the detainee to exercise his or her right to consult a solicitor privately will have certain serious consequences—the Government have heard the concerns raised and are prepared to take a different approach.

Amendments 37 to 39, 41 and 42, would replace that power and instead allow an officer, in the situation that I have just described, to require the detainee to choose a different solicitor. The detainee will then be reminded of the right to free legal counsel from an approved duty solicitor who has met the standards and competence of the Law Society’s criminal litigation accreditation scheme. This approach, which will apply to both Schedule 7 and Schedule 3 ports powers, will mitigate the concerns regarding the detainee’s first-choice solicitor but will still allow the detainee to receive private legal counsel—in all likelihood, with a trusted solicitor from the duty solicitor scheme. It mirrors the provisions in PACE Code H with regard to the detention of terrorist suspects as proposed by the Law Society in its evidence to the Public Bill Committee in the House of Commons, and aligns with the proposals of the shadow Security Minister and noble Lords in this House.

The new power will also be subject to important safeguards. For example, it can only be directed by a superintendent and only 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 gathering of information; injury to another person; alerting others that they are suspected of an indictable offence; or hindering the recovery of a property obtained by an indictable offence.

Amendments 35, 36 and 40 concern the points raised in Committee by the noble Baroness, Lady Hamwee, regarding the information provided to a detainee about their right to access a solicitor. During that debate, I drew the House’s attention to the draft Schedule 3 code of practice which, like its equivalent for Schedule 7, is clear that a person who has been 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. Furthermore, at each periodic review of the detention, the examining officer must remind the detainee of any rights that they have not yet exercised.

While the Government are satisfied that all the safeguards that the noble Baroness asked for are already in place through the codes of practice, Amendments 35, 36 and 40 will make it explicit in the primary legislation that a detainee has to be made aware of his or her right to access a lawyer at the moment of detention. We are in complete agreement that any person who is detained under these ports powers should be informed of their rights before any further questioning takes place.

Amendments 43 and 44 will address concerns raised by the Delegated Powers and Regulatory Reform Committee with respect to the scope of the regulation-making power in what is now paragraph 60 of Schedule 3. This power would allow the Secretary of State to specify additional persons who may be supplied with information acquired by an examining officer. The power mirrors an equivalent in Schedule 14 to the Terrorism Act 2000 relating to information acquired through a Schedule 7 examination. These regulation-making powers are an important means of future-proofing the mechanisms to share information with government bodies and operational partners. Currently this information can be shared, if needed, with the Secretary of State, HMRC, a constable or the National Crime Agency.

We recognise the concerns raised by the Delegated Powers and Regulatory Reform Committee that the powers as drafted could allow sensitive information to be passed to any organisations, including those in the private sector. That is not our intention. The Government are clear that such information should be held and managed responsibly and should not be made available to any person or organisation. Amendments 43 and 44 would ensure that the Secretary of State, in relation to either power, could specify a person to be supplied with this information only if the person exercised a public function, whether or not in the United Kingdom.

I hope that noble Lords are reassured that the Government have listened to a number of concerns raised during the debates and have acted to improve this legislation. I beg to move.

[Lord Rosser (Lab)]

The shadow Security Minister in the Commons, it has been said, proposed that a list should be drawn up of lawyers properly regulated through the Law Society and the Solicitors Regulation Authority, who would be available to give legal advice and thus overcome the Government’s concern that a person detained under the hostile activity ports powers might seek the service of a rogue solicitor to give legal advice but, in reality, use that person to pass on information to a third party with potentially damaging consequences.

The Government in the Commons said they would consider this proposition and, as the Minister has just said, they have now tabled an amendment that takes out the reference in the Bill to consulting a solicitor,

“in the sight and hearing of a qualified officer”,

and instead provides for a senior officer to be able to require a detainee to consult a different solicitor of the detainee’s choosing. In her letter of 27 November setting out the Government’s amendment, the Minister has said that in practice a different solicitor of the detainee’s choosing is likely to be the duty solicitor. Can she say what will happen if the further different solicitor of the detainee’s choosing is also deemed unacceptable? Will, in effect, the detainee be told either that they choose the duty solicitor or they will not have a solicitor to consult? It would be helpful if this point could be clarified in respect of persons detained under the port and border control powers.

We support the amendments and recognise that the Government have endeavoured to address the concerns expressed in the Commons by the shadow Minister, as well as the similar concerns expressed by noble Lords in this House.

--- Later in debate ---

[Baroness Williams of Trafford]

I thank the noble Baroness for those questions. The noble Lord, Lord Rosser, asked what happens if the detainee chooses another solicitor, who is then of concern. I am trying to read the writing here. If concerns still exist, the superintendent is within his or her right to direct that the detainee should choose a different solicitor, and that applies not just to the first-choice solicitor. The point about confidential material—

[Lord Rosser]

I appreciate the difficulty with reading writing. I cannot read my own, let alone somebody else’s. Does it mean that if the detainee chooses an unacceptable second solicitor, they will then be told, “It’s the duty solicitor or you don’t have a solicitor at all”?

[Baroness Williams of Trafford]

From what I understand, a panel of approved solicitors is available to detainees—I am sure that the Box will fly over with a piece of paper if I am wrong about that. However, if, for whatever reason, the first solicitor from the panel is given to the detainee—

[Baroness Williams of Trafford]

I do agree with the noble Lord; that is absolutely brilliant. But I have just received another piece of information: if the detainee is still not satisfied, they can consult a solicitor by phone, so that is a third arm of the options for detainees. Between us, we have got there.

As for who approves the access to confidential material, it would be the Investigatory Powers Commissioner.

[Lord Rosser]

The reason for my asking the question is that, as I understand it, sub-paragraph (2)(b) of Amendment 41 states that the right of the detainee,

“may instead be exercised by consulting a different solicitor of the detainee’s choosing”.

I have nothing at all against duty solicitors and hold them in high regard. However, if the detainee then chooses another solicitor who is unacceptable—presumably not one of the duty solicitors—we are fairly clear that the detainee will then be told to use the duty solicitor or have no solicitor at all.