Counter-Terrorism and Border Security Act 2019 (Port Examination Code of Practice) Regulations 2023

Lord Sharpe of Epsom Excerpts

Monday 4th December 2023 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

That the draft Regulations laid before the House on 16 October be approved.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, in moving that the House approves this statutory instrument, I will also speak to the National Security Act 2023 (Video Recording with Sound of Interviews and Associated Code of Practice) Regulations 2023 and the National Security Act 2023 (Consequential Amendments of Primary Legislation) Regulations 2023. All three of these instruments, which were laid on 16 October and debated in the other place on 29 November, relate to measures in the National Security Act.

The National Security Act, which received Royal Assent this July, is the most significant piece of legislation to tackle the increase of state-based threats to our nation in a century. It brings together vital new measures to protect the British public, modernise counterespionage laws and address the evolving threat to our national security. In essence, it provides our world-class law enforcement and intelligence agencies with new and updated tools to do their critical work. We should bring the powers in the Act into force as soon as possible to protect this country. These instruments are an important part of making that happen. Once they are approved and come into force, we can also bring into force Parts 1 to 3 of the Act.

To be clear, these regulations do not create new powers or make changes to primary legislation which has already been approved by Parliament. They are merely supportive of the powers in primary legislation and ensure that the legislation can be implemented effectively and proportionately.

The National Security Act 2023 (Video Recording with Sound of Interviews and Associated Code of Practice) Regulations 2023 create a new code of practice to govern the videorecording of individuals arrested under the Act. Schedule 6 to the Act requires that any interview by a constable of a person detained using the arrest powers in Section 27 must be videorecorded with sound and that the videorecording must be carried out in accordance with the code of practice. This mirrors the requirement for anyone interviewed following an arrest under equivalent terrorism legislation. The code of practice has been based closely on the terrorism equivalent and provides guidance on how interviews should be conducted—for example, with guidance on sealing the recordings of videos, taking breaks during interviews and conducting interviews with deaf people or those who do not understand English.

The Counter-Terrorism and Border Security Act 2019 (Port Examination Code of Practice) Regulations 2023 make an update to the existing code of practice governing the exercise of the port examination power in Schedule 3 to that Act. This power allows accredited counterterrorism police officers to stop and examine individuals to determine whether a person at a port or border area is or has been involved in malign activity on behalf of a state. The amendment to the code of practice simply reflects a change made by the National Security Act. It requires a counterterrorism police officer of at least the rank of superintendent to authorise the retention of copies of confidential business material instead of the Investigatory Powers Commissioner. This change brings the process into line with the equivalent power in terrorism legislation, where it has proven effective and avoided undue burdens on the system.

It is worth noting that the Government carried out a statutory public consultation on the changes to this code and the creation of the videorecording code from 20 July to 31 August. Consultees generally acknowledged that these codes were key to ensuring that police officers have clear guidance on the powers and that the powers are used fairly and proportionately. However, where appropriate, we made further minor changes to meet the concerns of some consultees. For example, following feedback from Scottish policing on the videorecording code, we made minor amendments to ensure that it is consistent with Scottish policing practice and procedure. The full response to this consultation can be found on GOV.UK.

The final instrument in the package is the National Security Act 2023 (Consequential Amendments of Primary Legislation) Regulations 2023. This makes consequential amendments to primary legislation using the power in Section 95 of the National Security Act. Although some consequential amendments are made in Schedule 18 to the Act, the power in Section 95 allows any further amendments to be made as a consequence of the provisions in the National Security Act.

Consequential amendments are a standard part of new legislation. They are required to ensure existing legislation is up to date to reflect changes brought about by the National Security Act. They are not substantive amendments but simply consequential on the creation of the National Security Act.

Several of the amendments concern the Official Secrets Acts 1911, 1920 and 1939, which the National Security Act replaces and repeals. References to those Acts in other legislation are updated to reference the relevant provisions in the National Security Act or, where appropriate, repealed entirely. This includes references to the prohibited places regime in the Official Secrets Act 1911 or the preparatory conduct offence under Section 7 of the Official Secrets Act 1920, both of which have been updated and replaced in the National Security Act.

Other amendments made through this instrument account for other powers and offences created in the National Security Act. For example, amendments to the Criminal Justice and Police Act 2001 account for search and seizure powers created by Schedule 2 to the National Security Act.

To sum up, these instruments simply support primary legislation which has already been agreed by Parliament. Passing them is an important step to bringing this primary legislation into force. I commend them to the House. I beg to move.

--- Later in debate ---

We support these SIs, but some clarity would be helpful, if the Minister can respond to those questions as fully as he can.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank both noble Lords for their contributions. I will do my best to answer the detailed questions and, if inadvertently I miss any, I will definitely write. This subject matter is technical, but the debate, as ever, has been interesting.

The powers under Schedule 3 to the Counter-Terrorism and Border Security Act 2019 help to protect the public, as I have explained. They allow an officer to stop, question and, when necessary, detain and search individuals and goods travelling through UK ports and the border area, for the purpose of determining whether the person appears to be somebody who is or has been engaged in malign activity on behalf of a state. As has been noted, only officers who have been accredited as having successfully completed relevant training can use these Schedule 3 powers. The changes to authorisation for copies of confidential business material come into force at midnight on 20 December this year. After that point, examining officers will seek authorisation from an officer of at least the rank of superintendent to copy and retain business material of this type. In answer to the noble Baroness, Lady Suttie, the Investigatory Powers Commissioner and the police have been consulted on the date and they are very well prepared for the changes.

I have outlined the timeframe, scope and response of the public consultation on these codes in my opening remarks. The full details of the consultation and the Government’s response can be found on GOV.UK. The Government’s approach to consultation was in accordance with the requirements of the primary legislation. We considered that the six-week consultation was appropriate, given the changes to Schedule 3 on the port stop code were relatively minor and followed changes to primary legislation and the National Security Act video recording code closely followed existing precedent.

The noble Lord, Lord Coaker, asked when the hour started. As far as I am aware—and I will correct this if I am wrong—it starts from the moment of examination, but no one can be detained for more than six hours anyway. On the question about recruitment, that is still under way, as far as I know, but announcements will be forthcoming as soon as possible. Counterterrorism officers are carefully trained in the use of their powers. There are safeguards in place relating to children which are set out in the code. Careful safeguards are also in place for strip-searches in the code. Individuals can also have an interpreter as necessary.

I think that I have answered the questions so, in closing, I reiterate that these instruments provide essential supporting materials and updates to allow the National Security Act to come into force. They do not provide substantive changes to the primary legislation that has already been agreed in Parliament. They will help the police to use the powers in a proportionate and consistent manner in accordance with the primary legislation. These consequential amendments will ensure that existing primary legislation continues to function properly after the commencement of the National Security Act. I commend these regulations to the House.

Motion agreed.