Draft Counter-Terrorism and Border Security Act 2019 (Port Examination Code of Practice) Regulations 2023 Draft National Security Act 2023 (Video Recording with Sound of Interviews and Associated Code of Practice) Regulations 2023 Draft National Security Act 2023 (Consequential Amendments of Primary Legislation) Regulations 2023

Tom Tugendhat Excerpts

Wednesday 29th November 2023 General Committees

[The Minister for Security (Tom Tugendhat)]

I beg to move,

That the Committee has considered the draft Counter-Terrorism and Border Security Act 2019 (Port Examination Code of Practice) Regulations 2023.

[The Chair]

With this it will be convenient to consider the draft National Security Act 2023 (Video Recording with Sound of Interviews and Associated Code of Practice) Regulations 2023 and the draft National Security Act 2023 (Consequential Amendments of Primary Legislation) Regulations 2023.

[Tom Tugendhat]

It is a pleasure to serve under your extremely efficient chairmanship, Mr Twigg, and to see my very old friend, the hon. Member for Barnsley Central, who is scrutinising my work again in the way that only he can.

All three of these statutory instruments were laid before the House on 16 October, and relate to measures in the National Security Act, which received Royal Assent in July. It is the most significant piece of legislation for tackling the increase in state-based threats to our nation in a century. It brings together vital new measures to protect the British public, modernise counter-espionage 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. It is essential that we bring the powers in the Act into force to protect this country, and 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. These statutory instruments support the powers created by the primary legislation, and do not create new powers or make changes to primary legislation that has already been agreed by Parliament. They ensure that the legislation can be implemented effectively and proportionately.

The first instrument, the draft National Security Act 2023 (Video Recording with Sound of Interviews and Associated Code of Practice) Regulations 2023, will create a new code of practice governing the video recording of individuals arrested under the Act. Schedule 6 of the Act requires that any interview by a constable of a person detained using the arrest powers in section 27 be video recorded with sound, and that video recording be carried out in accordance with the code of practice. That is the same requirement as for anyone interviewed following an arrest made under equivalent terrorism legislation. The code of practice is based closely on the terrorism equivalent, and provides guidance on how interviews should be conducted, including on the sealing of video recordings, on taking breaks during interviews, and on conducting interviews with deaf people or those who do not understand English.

The second instrument, the draft Counter-terrorism and Border Security Act 2019 (Port Examination Code of Practice) Regulations 2023, updates the code of practice that governs the exercise of the port examination power in schedule 3 of the Act. That power allows accredited counter-terrorism police officers to stop and examine a person at a port or border area to determine whether they are, or have been, involved in malign activity on behalf of a state.

The amendments to the code of practice simply reflect a change made by the National Security Act. It requires a counter-terrorism 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. That change brings the process into line with the equivalent power in terrorism legislation, which has proven effective and avoids undue burdens on the system.

The Government carried out a statutory public consultation on the changes to this code and the creation of the video recordings code between 20 July and 31 August. The majority of consultees acknowledged that the codes were key to ensuring that police officers have clear guidance on their new powers, and that the powers are used in a way that is both fair and proportionate. However, where appropriate, we made further minor changes to meet the concerns of some consultees. For example, following feedback from Police Scotland on the video recording code, we made minor amendments to ensure that it is consistent with Scottish policing practice and procedure. The full response to the consultation can be found on gov.uk.

On the topic of codes of practice, there will be a debate tomorrow in which the Minister for Crime, Policing and Fire will discuss another instrument regarding six codes of practice under the Police and Criminal Evidence Act 1984 that are created or amended as a consequence of the powers in the National Security Act. I will not go into detail on those codes of practice—that is a matter for my right hon. Friend—but it is worth noting that they too went through a statutory consultation, which can be found on gov.uk.

Finally, the National Security Act 2023 (Consequential Amendments of Primary Legislation) Regulations 2023 makes consequential amendments to primary legislation using the power in section 95 of the National Security Act. While some consequential amendments are made through 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 customary part of any new legislation, and are required to ensure that existing legislation is up to date and reflects changes brought about by the National Security Act. They are not substantive amendments, but simply consequential to the creation of the National Security Act.

Several 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, are repealed entirely. This includes references to the prohibited places regime in the Official Secrets Act 1911 and the preparatory conduct offence under section 7 of the Official Secrets Act 1920, both of which have been updated and replaced by 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.

I hope I have made it clear that these regulations are simply supportive of primary legislation that has already been agreed by Parliament, and passing them is an important step to bringing that primary legislation into force. I therefore commend the regulations to the Committee.

--- Later in debate ---

[Tom Tugendhat]

I am grateful to the hon. Member for Barnsley Central and the hon. Member for Glasgow Central for their comments. On the Modern Slavery Act, the amendments are consequential to the primary legislation, so they are entirely in keeping with what was voted through in Parliament. I know the hon. Member for Barnsley Central is aware of that, but I will write to him on the statutory guidance to make the changes clear. I am grateful for his kind words on what I have been up to recently; I will chase up that letter on the last Delegated Legislation Committee, and will make sure that he gets it as soon as possible.

The consultations were carried out in the usual way. There is an open process: we announce that we are looking at an issue, and Members from devolved Administrations, local authorities, policing authorities or whatever bodies are relevant to the consultation are invited to comment. Others can comment as they see fit. Consultation began on 20 July and closed on 31 August. We did not have a huge number of comments, but we had some welcome interactions with Police Scotland and policing authorities in Scotland, which were useful in ensuring that we got the answers right.

Question put and agreed to.

DRAFT NATIONAL SECURITY ACT 2023 (VIDEO RECORDING WITH SOUND OF INTERVIEWS AND ASSOCIATED CODE OF PRACTICE) REGULATIONS 2023

Resolved,

That the Committee has considered the draft National Security Act 2023 (Video Recording with Sound of Interviews and Associated Code of Practice) Regulations 2023.—(Tom Tudgendhat.)

DRAFT NATIONAL SECURITY ACT 2023 (CONSEQUENTIAL AMENDMENTS OF PRIMARY LEGISLATION) REGULATIONS 2023

Resolved,

That the Committee has considered the draft National Security Act 2023 (Consequential Amendments of Primary Legislation) Regulations 2023.—(Tom Tugendhat.)