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

Lord Rosser Excerpts

Friday 10th July 2020 Lords Chamber

[Lord Rosser (Lab) [V]]

I too thank the Minister for her explanation of the content and purpose of these regulations. When they were considered in the Commons two days ago the debate attracted two speakers, both of whom were required to be there, and was dealt with in 13 minutes. Clearly, life is harder for a Lords Minister than a Commons Minister.

These regulations address issues concerning our national security and the safety of our citizens. They bring into effect an amended code of practice for the counterterrorism port examination powers under the Terrorism Act 2000, a code of practice for the new hostile state activity port examination powers under the Counter-Terrorism and Border Security Act 2019 and amended guidance under the Protection of Freedoms Act 2012 relating to biometric retention provisions, as amended by the 2019 Act. The codes of practice have been the subject of public consultation.

Under the Terrorism Act 2000, a counterterrorism port and border officer can stop, question, search and detain a person at a UK port or the Northern Ireland border area to determine whether they are or have been involved in terrorism. The 2019 Act created similar powers to support law enforcement bodies in detecting and disrupting hostile state actors involved in, among other things, espionage, sabotage, assassination and subversion. The guidance under the Protection of Freedoms Act 2012 provides direction to law enforcement authorities about making or renewing a national security determination which allows for the retention and use of biometric material, fingerprints and DNA profiles for national security purposes.

The codes and guidance which these regulations bring into effect instruct and guide port and border officers in the procedural exercise of the powers to which I have referred, including rights and duties as well as safeguards for those who are subject to them. Only accredited officers will be able to exercise these powers, which must be done in accordance with the relevant code of practice. There will also be independent oversight of the use and application of the powers: by the Independent Reviewer of Terrorism Legislation in relation to Terrorism Act 2000 powers, and by the Investigatory Powers Commissioner in relation to the 2019 Act powers. It is vital that these oversight protections are strong and effective, since the measures to which the codes of practice and guidelines we are discussing relate apply to individuals who have not, or have not yet, been convicted of any crime.

The attempted assassination of Sergei and Yulia Skripal in March 2018 in Salisbury, the related death of Dawn Sturgess and the evolving nature of risks and security threats highlight the need to reinforce and improve our lines of defence and fill the gaps in our legislation that come to light. The 2019 Act and these draft regulations, including the codes of practice, seek to do that. The issues that are the subject of the guidance and the code of practice related to the 2019 Act were debated at some length during the passage of the then Bill. Two key changes were made to the Bill, which are reflected in the code of practice: the right to confidential legal advice with safeguards, and securing a tighter definition of what constitutes hostile activity.

It was right that the Government undertook a consultation on the codes of practice. As a result of it, extra safeguards have been added to the code of practice relating to the 2019 Act to protect journalists and journalistic material. I know that the Minister referred to this, but can she reiterate precisely which additional safeguards were added following the consultation, as well as responding to the points raised by my noble friend Lord Harris of Haringey and others?

That same code of practice specifies that an examining officer does not need “grounds for suspecting” that someone is engaged in hostile activity to stop them, but then also says that such stops must not be arbitrary and must be informed by the threat of hostile activity. The Government argued during Bill Committee that this was necessary because the security services sometimes have key information, but not enough to reach a reasonable suspicion threshold. Will the reason for a stop be recorded and, if so, where and by whom? If recorded, to whom would that information then be available? Would it be available on request and at any time to the Investigatory Powers Commissioner?

The code of practice for the 2019 Act also makes it clear that stopping someone based purely on a protected characteristic is not acceptable. There are concerns with any stop and search power that it will disproportionately impact BAME people. Will the Investigatory Powers Commissioner have access to information and statistics on how this power under the Act is used, and who is stopped?

In this code of practice, most of the reasons listed for the retention of an article or copy of an article are explicitly linked to preventing hostile activity under the 2019 Act. However, it also allows an article to be retained, or copied and retained, where the examining officer believes it may be needed for a decision to deport under the Immigration Act 1971. Can the Minister say how this provision will operate and whether the examining officer will be expected to proactively ascertain whether the article might be needed for a decision to deport?

Finally, the Biometrics Commissioner recommended that data be deleted within a reasonable period of time 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 say what evidence led to that timeframe being provided for in the guidance, and whether it was proposed or suggested by the commissioner?

Our national security is of utmost importance to us all and, in that context, we support the action the Government are taking but await with interest the Minister’s response to the many points raised and questions asked. We also express our appreciation of the work of the counterterrorism and border officers at our ports, who are often our first line of defence against those of malign intent—state-sponsored or otherwise.