Counter-Terrorism and Border Security Bill

Baroness Winterton of Doncaster Excerpts

Ping Pong: House of Commons
Tuesday 22nd January 2019 Commons Chamber

[Mr Wallace]

I beg to move, That this House agrees with Lords amendment 12.

[Madam Deputy Speaker (Dame Rosie Winterton)]

With this it will be convenient to consider Lords amendments 14, 15 and 17 to 42.

[Mr Wallace]

This group of amendments relates to the new port and border powers in schedule 3 to the Bill to tackle hostile state activity, as well as to the existing counter-terrorism ports powers in schedule 7 to the Terrorism Act 2000. I will focus my remarks on the substantive amendments.

During the passage of the Bill through this House, the hon. Member for Torfaen (Nick Thomas-Symonds) has pressed the Government on whether there is an alternative to the power exercisable in exceptional circumstances for a police officer to be in the sight and hearing of a consultation between an individual detained under schedule 3 and their solicitor. While the Government were clear that safeguards were needed to prevent the right to consult a solicitor from being abused, thereby potentially putting lives at risk, the hon. Gentleman argued that such a provision would undermine the principle of confidentiality of consultations between lawyer and client.

On Report in September, I undertook to consider the issue further. Where there are concerns about a detainee’s chosen solicitor, Lords amendments 35 to 37, 39 and 40 would allow a senior police officer to direct that the individual consult a different solicitor. In practice, that is likely to be the duty solicitor. This provision is modelled on the Police and Criminal Evidence Act 1984—PACE—code H and reflects the suggestion made by the Law Society in its evidence to the Public Bill Committee in June last year. The change will apply to persons detained under both schedule 3 to the Bill and schedule 7 to the 2000 Act. I hope that the hon. Gentleman will agree that this change adequately addresses the concerns that he raised.

Lords amendment 25 provides for a procedure to enable the urgent examination of a detainee’s property, including confidential journalistic or legally privileged material, in cases where there is an imminent threat to life or significant injury, or where there is an imminent threat of a hostile act being carried out. In such cases, the police must be able to act with immediate effect and, consequently, the usual process whereby any such examination must be approved in advance by the Investigatory Powers Commissioner cannot apply.

These Lords amendments to schedule 3 would instead allow an examining officer, with the approval of a senior officer, to examine a detainee’s property before a decision has been made by the commissioner. Under this exceptional procedure, authorisation would be required to be given or withheld by the commissioner or a judicial commissioner after the event. Where the commissioner withholds authorisation, he would have the power to direct that the property be returned and that information taken from it, including copies, is not used and destroyed.

As with the existing process provided for in the Bill, the commissioner’s decision will be taken after consideration of any representations made by affected parties, and there will also be an opportunity to appeal that decision where it has been delegated to a judicial commissioner. That approach is consistent with the Court of Appeal’s judgment in the case of Miranda, where the Court recognised that there might be a need for

“post factum oversight in urgent cases”.

Further details of the process for examining retained property, including where it contains confidential material, will be set out in the schedule 3 code of practice, which must be debated and approved by both Houses before the provisions in schedule 3 can come into force. These Lords amendments improve the provisions in the Bill, and I commend them to the House.

At present, the schedule 7 code of practice requires that an individual examined under schedule 7 is informed of their rights on first being detained. There is analogous provision in the draft schedule 3 code of practice. The Joint Committee on Human Rights suggested that this protection for detainees is sufficiently important that it should be provided for on the face of the Bill and not left to a code of practice. The Government were content to accept the Joint Committee’s recommendation, and Lords amendments 33, 34 and 38 provide for that.

Lords amendments 41 and 42 respond to a recommendation from the Delegated Powers and Regulatory Reform Committee. The Committee argued that the regulation-making power in paragraph 53 of schedule 3 is too widely drawn. Under that power, the Home Secretary must specify additional categories of persons with whom information acquired by an examining officer may be shared. The Delegated Powers and Regulatory Reform Committee pointed out that this regulation-making power places no limitation on the categories of persons who could be specified for those purposes, including an organisation in the private sector. Lords amendment 41 narrows the schedule 3 regulation-making power so that it can be used only to specify persons carrying out public functions, and Lords amendment 42 makes a similar change to the Terrorism Act 2000. I commend these amendments to the House.