House of Lords
Wednesday 14 November 2018
Prayers—read by the Lord Bishop of Chelmsford.
His Royal Highness the Prince of Wales
Motion for a Humble Address
That a Humble Address be presented to Her Majesty the Queen as follows:
“Most Gracious Sovereign,
We, Your Majesty’s most dutiful and loyal subjects, the Lords Spiritual and Temporal in Parliament assembled, beg leave
To assure Your Majesty of the great pleasure felt by this House on the seventieth birthday of His Royal Highness the Prince of Wales;
To convey to Your Majesty the admiration that is felt by this House for His Royal Highness; and
To express the hope that His Royal Highness the Prince of Wales may long continue to enjoy good health and happiness.”
My Lords, it is my happy duty today to lead the House in agreeing a humble Address to mark the 70th birthday of His Royal Highness the Prince of Wales. He is not only a remarkable public servant but a remarkable individual: as a tireless promoter of charitable causes and their potential to provide practical help to people; as a representative of this country and of the Commonwealth; and as a father, husband and grandfather. It is fitting that on this significant birthday we pay tribute to him and express our admiration for his exemplary commitment and service.
The Address before the House today rightly mentions the Prince of Wales’s achievement in establishing the Prince’s Trust. Since 1976, the trust has helped more than 870,000 young people into employment, education or training. The work of the trust has brought the Prince of Wales into close contact with young people from all backgrounds, including those who have encountered serious difficulty in life. The success and reach of the scheme is staggering: around 87,000 young people have been helped to set up their own businesses. The transformative effect of his and his trust’s work on those individuals is testament to his unstinting personal commitment. Like many noble Lords across all Benches, I have had the privilege of meeting a number of impressive young people who have benefited from the work of the trust over the years.
Through his effort in this and other areas, the Prince of Wales has set an extraordinary example of hard work and stamina in the cause of public service. At times, he has been accused of meddling, but he has raised important issues, such as the impact of climate change and the effect of waste and plastics on the environment, well before they became political priorities.
With a passion for the built environment, he has understood the value of fostering sustainable communities and the serious and lasting impact on people of not having the infrastructure—both hard and soft— they need to build thriving lives. He has stewarded developments in Poundbury, in Dorset, and more recently in Nansledan, near Newquay, in Cornwall. Through those developments, the communities that live there have assets which will be valued for generations to come, as do the communities in areas developed by the Duchy of Cornwall, such as those within spitting distance of this place in Vauxhall and Kennington, which were stewarded by his predecessors.
His Royal Highness’s deep belief in the value of the built environment does not stop at our coastline: the Prince’s Foundation for the Built Environment helped to reconstruct and redesign buildings in Port-au-Prince, Haiti, after the appalling damage caused by the earthquake in 2010, as well as to refurbish historic buildings in Kabul, Afghanistan, and Kingston, Jamaica.
His commitment to public service and duty is exemplary. It is a frequent occurrence for him to resume work on his boxes in the evenings, when public engagements allow, and to work long into the early hours. While many of us in this House may be familiar with such a routine, other than Her Majesty the Queen, nobody else has carried it for so long or with so much dedication.
However, it is not just this country that has benefited from the commitment of the Prince of Wales. He has been a proud supporter of the Commonwealth throughout his adult life and played a central role in maintaining the Royal Family’s strong connection to its member countries, as his most recent visit to Ghana, the Gambia and Nigeria once again highlighted. Earlier this year, the Commonwealth Heads of State confirmed that they wish the Prince of Wales to succeed Her Majesty as Head of the Commonwealth—a vote of confidence which is fully merited.
Of course, we as a House also have a special connection to the Prince of Wales. He was one of us and almost certainly will go down in history as the last Prince of Wales to sit in this House. As with everything he has done, he took his membership of this House seriously and participated in proceedings. I commend to noble Lords his maiden speech, delivered on 13 June 1974, in which he noted that it had been a century since a member of his family had spoken in the House but that in 1829 there had been a debate in which three Royal Dukes took part. The Prince of Wales recalled:
“Each got up one after the other and attacked each other so vehemently and used such bad language that the House was shocked into silence”.
Needless to say his own speech, which he approached with as much trepidation as any other new Member of this House, went down rather better, and introduced the House to an earnest, committed and well-informed young man, passionate about galvanising the potential of young people everywhere. He was also, I am assured, attired in smart business dress, which paled into comparison with his predecessor as Prince of Wales, also Prince Regent and later King George IV. In his speech the current Prince of Wales memorably described him as,
“exquisitely dressed in black velvet, lined with pink satin and embroidered in gold and wearing shoes with pink heels”.—[Official Report, 13/6/1974; col. 624.]
If the Prince of Wales’s speech summed up the young man, the life he has lived since, played out in the public eye, has given us many further examples of his personal qualities. As a father he has been devoted to the welfare of Prince William and Prince Harry and the whole nation shares his pride at the outstanding young men they have turned out to be. We have also shared in his obvious joy in his important role as a grandfather. On behalf of the whole House, I congratulate His Royal Highness and his family on what we hope is a very happy 70th birthday. I beg to move.
My Lords, it is a pleasure to follow the Deputy Leader of the House, and we join in wishing the Prince of Wales a very happy 70th birthday. There is no job description for the role of heir to the Throne. As the longest serving heir during a time of significant social change, it has been an opportunity and no doubt at times a challenge to fulfil the role in the meaningful way that the Prince has undertaken. It is significant that the Prince is the first heir to the Throne to go to school rather than be educated by a personal tutor in a royal palace. He was the first to gain a university degree and the first have a cameo role in “Coronation Street”. He was also the first to be on Twitter, and the first to have his own birthday hashtag, #Charlesat70. He was also most definitely the first to run his classic Aston Martin car on fuel from the by-products of wine and cheese. I do not think that trying to get the Royal Train running on environmentally friendly used cooking oil has been quite so successful.
As we have heard from the noble Earl, the speech of His Royal Highness in the House of Lords followed in the footsteps of his great-great-grandfather, Prince Edward, later Edward VII, who had made such a speech 90 years before. Both speeches focused on social issues. In a thoughtful contribution on a Lords Select Committee report on sports and leisure, which was developed in a later speech made to your Lordships on volunteering, His Royal Highness gave a glimpse of some of the issues that he would make it his life’s work to champion. In both speeches he reflected on how society could best support young people, the environment and our environmental heritage.
But these were not woolly, do-gooder speeches; they had an edge to them and posed a challenge. The Prince recognised the role of the citizen and the state working together and the importance of support for life outside work to enhance physical and mental well-being. He advocated alternative activities and provision to challenge crime and anti-social behaviour. That personal interest led directly to the establishment in 1976 of the Prince’s Trust—but who knew that it was set up with his £7,000 Royal Navy severance pay? I know that the noble Lord, Lord Newby, will say more about the Prince’s Trust, but the vision that Prince Charles set out in the 1970s—that all young people, particularly those who have not had a good start in life, should have the opportunity to succeed—remains true today. He continues to be genuinely interested in the lives and life stories of young people, engaging directly with them. His vision and commitment have ensured that thousands of disadvantaged young people have been provided with the opportunity to transform their lives, helping nearly a million individuals into employment or business.
However, it is on environmental matters that Prince Charles has at times ruffled a few feathers. Who could have failed to see the amusement in his face when it was put to him by John Bridcut in the BBC programme last week that he had been accused of meddling? He replied with a smile, “Really—you don’t say?” There is no doubt, however, that what in the 1970s were regarded as somewhat eccentric issues are today’s problems that we are all trying to grapple with, having failed to heed past warnings. That 1970 speech in which he warned of the approaching waste crisis arising from using non-returnable plastic bottles and indestructible plastic stands out, as does his long-term concern about climate change. Perhaps we should re-examine a few more of those so-called “eccentric” issues.
The Prince’s Foundation is one of the many charities he has established and focuses on the built environment, heritage and community education projects. It aims to create a modern, viable and productive use for historic buildings. It proves that it is possible to bring together the past and the future in sustainable communities. The Prince has always been passionate about the nations’ built heritage, as I found out personally during my time as Environment Minister in Northern Ireland. As other Ministers will endorse, the usual response after a visit is a short note of thanks. Following one such visit to Northern Ireland, Prince Charles’ first letter to me ran to three long pages, with well-informed observations, thoughts and suggestions for future collaboration and support on heritage issues. It was what we would nowadays call “a nudge”. In the correspondence that followed, the Prince offered to arrange visits to newly developed sites and meetings with key advisers, all of which turned out to be both fascinating and useful.
Around that time in 2003, my much-loved grandmother died. As her funeral was during his visit, which was over several days, there were a number of engagements that I was due to host or attend that I was unable to make. When I returned to Northern Ireland, I was surprised to receive many lovely messages of condolence from people whom I only slightly knew and I did not really understand why. I later found out that, at all the events I had missed, Prince Charles had explained to everybody why I was unable to be there and that I was with my family. It was very thoughtful and greatly appreciated.
My favourite story of kindness is about the new young assistant private secretary accompanying his Minister to a meeting with His Royal Highness. Nervous and inexperienced, he read every book and took as much advice as possible on protocol and etiquette—he was not going to make a mistake. However, he became steadily more anxious as the day drew near. That his female Minister strode up to Prince Charles, arm outstretched to shake hands, did nothing to quell his nerves. As the Prince and the Minister sat talking over tea, the poor, now terrified, private secretary was unable to stop his hands shaking to such an extent that the sound of a cup clattering against saucer was in danger of drowning out the conversation. Ignoring it just made it worse. At which point, the Prince, sensing his acute discomfort, reached out and said, “May I take that from you?”—much to the relief of all.
No comments would be complete without an acknowledgement of His Royal Highness’s deep commitment to the Commonwealth, especially now it is confirmed that he will be its next Head. His recent visit to west Africa demonstrates that this is more than a formal duty but a responsibility that he clearly respects and enjoys.
None of us can choose the life that we are born into, but, especially from a position of privilege, we have a choice of how to live it and how to contribute. When His Royal Highness spoke in your Lordships’ House more than four decades ago, the then Leader of the House and previous Labour Leader, Malcolm Shepherd, reflected:
“The noble Prince was born to great privilege and great opportunity, and also to a position of influence. Equally, such a position, by its very nature, is open to temptation. It would be easy to find the easy way out and to seek narrow, selfish interests, for we are all human … But the noble Prince … has chosen the hard road of duty and service”.—[Official Report, 13/6/74; col. 632.]
While we hope that, on his birthday, he will be allowed to succumb to some temptation, on this side of the House we wish the Prince of Wales a very happy birthday.
My Lords, it is a particular pleasure for me to support the humble Address, which we are debating today. For 20 years from the early 1990s, I worked with the Prince’s Trust, first as a consultant and then as chair of its Football Initiative.
Started with the Prince’s severance pay when he left the Royal Navy in 1976, the trust has now helped more than 900,000 young people. Its turnover is more than £50 million a year. It turns around the lives of the vast bulk of the young people with whom it works.
This has been possible only because of the hands-on commitment of the Prince, who has devoted an enormous amount of his time and energy to promoting its work. In doing so, he has deployed in an extremely canny way the soft power he wields—and which he knows he wields.
One example sums this up. In the autumn of 1997, the trust had just launched an initiative to involve the Premier League football clubs in its work: to use the stardust of the clubs and their grounds to motivate participants in trust programmes. I had managed to persuade seven of the 20 Premier League clubs to become involved. To persuade the remainder, we held a tea party in St James’s Palace for the club chairmen. They all came. Prince Charles had tea with the ones who had signed up. The others had to suffer a lecture from me. At the end of my homily, double doors swung open and the Prince emerged, followed by seven grinning chairmen. The others were furious at their second-class treatment. One of them marched across the room and said in threatening tones, “You’ll be hearing from me in the morning”. Indeed, the next morning his club secretary rang and sheepishly asked to get involved, which the club then did. More than 20 years later this programme alone has raised more than £9 million from the Premier League and the Professional Footballers’ Association, and impacted on the lives of tens of thousands of young people.
None of this could have happened without the Prince’s personal involvement at the start and his continuing involvement ever since. It is one of countless cases where the Prince has used his influence for the good of the country of which he will eventually become monarch. It is a formidable record of achievement which I suggest has had a greater impact on the country than that of any Prince of Wales since the Black Prince some 650 years ago. The country is fortunate in having such a thoughtful, committed and energetic Prince of Wales. He fully deserves all our good wishes for his 70th birthday and for his future health and happiness.
My Lords, as the House knows very well, the Cross-Bench group, whom I represent, seldom speaks with one voice, but on this occasion I am quite sure that every Member of my group would wish me to say how delighted we all are to be associated in every way with the tributes that have been paid across the House.
Our group brings to this House Members with a wide range of experience. Some, by reason of the positions they have held, have a much greater appreciation than the rest of us of the work which His Royal Highness has done, and is still doing, in so many areas of public life with such a sense of dedication and commitment. But all of us, in one way or another, have our own memories of him and of the service that he has given, and we can all share in paying tribute to his many achievements in so many areas, to which reference has already been made.
Our tribute would not be complete without special mention of His Royal Highness’s close interest in Dumfries House, near Cumnock in East Ayrshire. This is but one example of the many cases to which the noble Earl, Lord Howe, paid tribute in his address. Dumfries House is a handsome building which dates from the 1750s, a large country house with a priceless collection of furniture, and all was at risk of being abandoned and sold off had it not been for a very substantial loan from the Prince’s charitable trust. That was not all: as a result of his personal intervention in 2007 and his constant encouragement and unique guidance ever since, all of this has now been preserved and renovated, to the great benefit of the local economy. The estate is now open to the public and the surrounding area has been completely revitalised. This was a community which was suffering greatly, as East Ayrshire did, from the closure of its coal mines. What has happened since has been a renovation of the community as a result of the interest which His Royal Highness has taken. The whole enterprise has benefited greatly throughout from the close interest which he has taken in everything that goes on, and his belief, made clear in the television programme to which the noble Baroness, Lady Smith, made reference earlier, that in such things it is the detail that matters. If ever there was an example of his ability to make a difference, and to inspire others to do so, this is it. I know that the local community is immensely grateful for what he has done.
I think that it is fair to say that His Royal Highness is not quite as well known for one-liners as his father, but I do remember one, because I was there and heard it. The date was 30 December 1999. The place was the Palace of Holyroodhouse in Edinburgh. His Royal Highness had decided to observe the arrival of the new millennium in Scotland and not, like many others, at the Dome in Greenwich. He gave a dinner party in the Palace that evening, and it was preceded by a parade. As we were in Scotland, it was of course a march past of pipe bands. There were hundreds of pipers and drummers of all ages and all shapes and sizes. I recall one little drummer boy who caught everyone’s attention. He was so small, and the drum so big, that his father had to hold it for him as he marched past. After dinner, His Royal Highness made a very brief speech. He summed up the whole evening for us at the end of it in one sentence, which I will always remember. It revealed his charming and kindly sense of humour, which is never very far away and was certainly there that evening. He said, “Love hath no greater gift to offer”, adding, to much laughter, “than that a father should carry his son’s drum”.
On behalf of all of us on the Cross Benches, I join the rest of the House in supporting this Motion and wishing His Royal Highness a very happy birthday. To adopt the time-honoured phrase, we all wish him very many happy returns of the day.
My Lords, on behalf of these Benches, I express our warm congratulations to His Royal Highness on the occasion of his 70th birthday and associate myself with the sentiments already expressed by those on the other Benches, especially as regards His Royal Highness’s work in the Commonwealth.
In a speech that he gave some 40 years ago in this Chamber, His Royal Highness spoke of,
“the very real desire on the part of all sorts of people to give service to other human beings without thought of any remuneration or particular recognition for themselves”.—[Official Report, 25/6/1975; col. 1418.]
I am sure we can all agree that he has lived up to his own statement through his lifelong dedication to the service of our nation and his ongoing concern for our young people, especially through the Prince’s Trust, as was outlined by the noble Earl, Lord Howe, and the noble Lord, Lord Newby.
There has been talk of meddling. In the Church we politely say “being prophetic”. To some extent, His Royal Highness is a prophet. A prophet in the Old Testament is someone who sees slightly further into things than other people and, perhaps to some people’s discomfort at times, may bring them out and is then proved to be right. He has shown his prophetic instincts, not least in his welcome advocacy of the critical need to protect the environment and, as has already been said by the noble Baroness, Lady Smith, his instincts around plastics pollution. Those efforts have been well ahead of most of us in this Chamber.
His Royal Highness has been a leader also in speaking out on the plight of persecuted Christians around the world—something for which I am most grateful personally, including, as it does, benefit to the Christians of the Anglican Communion. His deep confidence in his own personal faith has been a basis for, as he has put it, “building bridges across chasms”. His own personal clear and orthodox Christianity is, like that of Her Majesty, combined with a proper, informed and profound hospitality to those of other faiths or no faith, and an equal concern for their flourishing.
When I have had the privilege of seeing His Royal Highness at work, I have been struck by his profound pastoral skills, which have been outlined this afternoon. I think particularly of an event at Liverpool Cathedral for the bereaved relatives of police who had died in the line of duty. The impact he had on some of those who had been very recently bereaved was noticeable. His focused attention on the person he is meeting is always evident, as well as his striking sense of humour, as has already been said. His love for his family has been spoken of. As the whole nation has seen, it is matched by his clear love for and dutiful service to his country. We have united this year to celebrate his family’s joys and I am delighted to express the same joy on this occasion.
In this Chamber, before business every day we pray for our Royal Family. I am sure that we join, in one way or another, with the good wishes or prayers that His Royal Highness may be endued, as the Prayer goes, “with thy Holy Spirit”; enriched “with Heavenly Grace”; prospered “with all happiness”; and brought “to thine everlasting kingdom”.
My Lords, in briefly closing these contributions, I will say that what is clear from everything said today is the great affection with which His Royal Highness is viewed in this House. We send him our sincere congratulations and, at the same time, our best wishes to Her Royal Highness the Duchess of Cornwall. I would add only this directly to His Royal Highness: if you have reservations about turning 70, just you wait until you get to 80. Happy Birthday.
Motion agreed nemine dissentiente.
His Royal Highness the Prince of Wales
Motion that a Message be Conveyed
That a Message be conveyed to His Royal Highness the Prince of Wales as follows:
“Your Royal Highness,
We, the Lords Spiritual and Temporal in Parliament assembled, warmly congratulate Your Royal Highness on Your Royal Highness’s seventieth birthday;
We express our gratitude for Your Royal Highness’s outstanding service to the nation, not only in supporting Her Majesty The Queen but also in making Your Royal Highness’s own deep contribution to national life, in particular in Your Royal Highness’s creation of The Prince’s Trust, which has done so much to support disadvantaged young people and in your work with The Prince of Wales’s charities;
We wish Your Royal Highness many happy returns”.
Motion agreed nemine dissentiente.
My Lords, a stroke programme board was established in March 2018, co-chaired by NHS England’s national medical director, Professor Stephen Powis, and the CEO of the Stroke Association, Juliet Bouverie. Following this, the NHS long-term plan will include a focus on cardiovascular disease and stroke, and is set to be published before the end of this year.
I thank the Minister for his response. While the promise of including the national stroke plan in the full NHS long-term plan is welcome, nevertheless publishing it in its own entity after the national strategy ran out last year would surely have helped to sustain the progress and momentum since 2010, particularly in the reconfiguration of stroke services. Instead, thousands of stroke survivors say that they feel abandoned after they come out of hospital: 70% of patients are not offered a personalised care plan for their ongoing treatment, care and support; only 30% of CCGs are commissioning the vital six-month reviews of their progress and problems; one in four hospitals does not have access to stroke specialist early supported discharge at home; and, on average, stroke survivors wait 10 weeks for urgent psychological support. What action are the Government taking to ensure that CCGs tackle these problems now?
I understand the noble Baroness’s frustration about the gap between the strategy and the plan but it was right to include the work undertaken on the stroke plan within a long-term plan, because clearly that covers every aspect of how the NHS is working. In the meantime, I point out to her that the NHS RightCare programme for cardiovascular disease has been set up. It is aimed specifically at dealing with some of the variation in service that she talked about. But there is good news in stroke care: not only is there less incidence than 10 years ago but 30-day mortality rates have more than halved, so there is progress which we need to build on.
If the noble Baroness and the House will allow me, I would like to use this opportunity to pay tribute to my noble friend Lord Skelmersdale, who died very recently. He was a predecessor in this role and a great champion of stroke care, both as a Minister and as chair of the Stroke Association for 10 years. I am sure that everyone in the House would offer their sincere condolences to his family and friends.
My Lords, will the Government outline the plans to roll out thrombectomy, which is sucking out the blood clot and is done under remote X-ray control? It has massively improved outcomes, even on thrombolysis, which tries to dissolve the clot. Such services need to be available across the UK on a 24/7 basis because stroke does not respect the clock or the calendar.
The noble Baroness is absolutely right. In 2017, NHS England announced a rollout of the mechanical thrombectomy procedure to 24 centres across England. It is expected that 10% of stroke patients will be eligible. It leads to big reductions in disability after stroke, is now approved by NICE, and will be a significant part of the long-term plan which we will publish by the end of the year.
My Lords, my husband had a stroke and it was not recognised. It was a clot. He got to the hospital rather late and his arm was definitely damaged for ever more. He died 10 years ago; the stroke did not affect his continuing to live. The hospital in Newcastle was so far ahead in clot-busting that it was three years ahead of London. I remind the House of how much effort Lady Rendell, who is no longer with us, put into Act FAST, a campaign to let people know pretty quickly what the symptoms are and not to delay so that they have more hope of being successfully treated. We have made great progress, but there is a clearly a lot more to make.
I did not know that my noble friend’s husband had had a stroke; I am grateful to her for sharing that with the House. She is right that the examples of Newcastle and Northumbria have shown that hyperacute stroke units—the centralisation of services—save lives. Closing hospitals or changing services can be controversial, but in stroke we know that it makes a big difference. It is a focus of what we need to do, and we need to take courage on that. The Act FAST campaign, which my noble friend mentioned, has been incredibly successful in making sure that we get fast action when people have a stroke. More than 5,000 fewer people have been disabled by stroke since that campaign started.
My Lords, when the national stroke plan is finally published, we should expect clinical elements. I hope that we will see some lifestyle elements around protection from stroke and stroke prevention. What actions are being discussed with Public Health England on the prevention part of the plan? Can he guarantee sufficient funding for local authorities to deliver it?
The noble Baroness is right about prevention. There are lots of ways that we can prevent stroke, including by reducing hypertension, obesity and other things. Of course that will be a big part of it. She will know that decisions about funding for Public Health England will be taken at the spending review.
My Lords, the Minister will be aware that one of the medical conditions that can lead to stroke is atrial fibrillation. The important thing is to treat the patient once it is discovered. Some time ago, I attended a demonstration in the Palace of Westminster where patients put their hand on to a machine which detected whether they had that problem so that they could be treated. The idea was that the machine would be rolled out into doctors’ surgeries so that people could use it while they were waiting. How is that scheme progressing?
The noble Lord is quite right that patients with atrial fibrillation have a five times greater risk of stroke. Most patients are diagnosed but about 300,000 are not yet, so finding them is critical. The tests are available now not just in GPs’ surgeries but increasingly in pharmacies. I will write to him with specific details about the rollout.
Of course the prevention and treatment of stroke is very important, but unfortunately some people have strokes and are incapacitated by them, sometimes physically but sometimes mentally as well. What work are the Government doing to ensure that as many people as possible register a lasting power of attorney so that, when that bad thing happens to them, a proper care plan is available?
I will need to write to the noble Baroness with specific details on promoting lasting power of attorney. There has been an improvement in the availability of occupational therapy for those who suffer disabilities from stroke, but I do not know whether there is support in terms of planning ahead.
Development Co-operation: European Union
The White Paper and technical notes published on external security in the summer set out our vision for a future partnership with the EU on development co-operation. We have proposed a co-operative accord to cover development co-operation and international action. Our future relationship will be different and focused on areas of mutual interest. We remain open to pooling resources and expertise with the EU to maximise the combined development impact where it makes sense to do so.
My Lords, I am sure the Minister shares my understanding that continuity in development programmes is essential, both for impact and for the professional skills that can be involved, particularly if the capacity is being built on the ground in developing countries. Continuity in the programmes that we either currently share with the EU or fund through it will therefore be essential through the so-called transitional period. I would therefore welcome an assurance from the Minister that, first, those who are poorest and living in conflict around the world will be at the heart of our decision-making in this partnership over the coming months and, secondly, the Government will publish more detailed plans in advance of the end of March 2019 for how these programmes will be financed in future.
I am very happy to give that assurance. In fact, it is an assurance that has already been given in the White Paper, which refers on page 68 to our,
“commitments to continue to work together to address global development challenges, supporting a cooperative accord between the UK and the EU on the development and external programming”.
I should say that, as the Minister who has the privilege of attending the Foreign Affairs Council on development, I find that on virtually all the issues that we are raising in discussion we have absolutely common approaches and agendas. Both the EU and the UK are major actors on international development, peace and security, migration issues and humanitarian response, and we want to ensure that that continues—this is not a political point, it is a humanitarian one—for the people that the noble Lord has referenced and that we all care about.
My Lords, I say to my noble friend that now that the facts are becoming clearer than they were in June 2015, a more informed choice is now possible. Given that, is the best way forward not to ascertain public opinion by holding a further referendum, the question in which should be whether to remain in the EU on existing terms or to proceed in accordance with the proposed deal?
There has been a referendum and 17.4 million people cast their opinion in it. There has subsequently also been a general election in which over 580 of the 650 Members of the House of Commons were elected on platforms to respect that referendum. What the Government are now doing is seeking to implement it.
My Lords, I know the Minister shares my concern that the EDF represents best value. This country was instrumental in terms of humanitarian development, but the fact is that that is at risk if we do not reach an agreement. What contingency plan is there for, and what consultation are the Government having with all the NGOs about, a no-deal Brexit? What are we doing to ensure that we do not face a cliff edge, and that those least able to defend themselves are protected?
On the specific point that the noble Lord raises, in the event of no deal then we have already said that we will guarantee the funding for projects that are already under way. However, that is of course not what we are working towards. The EDF is the essential development framework that underpins the Cotonou agreement. We are party to that, and the Prime Minister has been very clear that as we leave the EU we will honour our obligations. That applies especially to the world’s poorest.
My Lords, development policy in the EU is evolving and proposals for the multiannual financial framework 2021-27 include a single instrument to cover all development aid, called the neighbourhood development and international co-operation instrument, which has worldwide coverage. As a member state, we have had a hand in designing it. Have mechanisms been built in to that framework to give third countries an equal voice in shaping strategy and oversight of funds, and do they allow programme delivery by UK NGOs, which are widely regarded as being among the best in the world?
I absolutely agree with the latter point about the importance of our British NGOs and that they should continue to have access to those funds. Yes, we are participating in the discussion which the noble Baroness referenced. We have said that we want to participate, we want to be able to work in areas of common interest, but changes need to be made not just on our side but in how the EDF and Heading 4 funds operate to allow us to participate as a third country. If we are to do that, we have been clear that it is only right to look after the interests of the British taxpayer, so we should have some say in how the funds are overseen, and that UK entities should be able to bid for them, as she suggests.
My Lords, regardless of the Brexit outcome, the European partnership agreements are immensely valuable to many smaller island states, including many in the Commonwealth. Can the Minister assure us that, whatever happens, we will manage a smooth transition and enable those partnerships to continue, which have helped many small and very vulnerable states in the past?
My noble friend is absolutely right. The trade preferences element of the economic partnerships have already been covered by legislation which we passed in this House in September on taxation and cross-border trade. We are currently negotiating seven economic partnership arrangements impacting on 29 countries. When the Prime Minister was in Africa, she announced the first, which had been agreed with the Southern African Customs Union and Mozambique. We are working to achieve more, because we passionately believe that one of the best routes out of poverty is trade, prosperity and giving people free access to our developed markets. That will continue to be the policy of Her Majesty’s Government.
My Lords, as the Minister looks at future markers for development, with the approaching 70th anniversary of the Universal Declaration of Human Rights, will he look particularly at Article 18 and what it has to say about the right to believe, not to believe or to change belief? Professor Brian Grim says that those countries which respect those things become the most prosperous. How, therefore, do we justify spending £2.8 billion over the past 20 years in a country such as Pakistan which, as the case of Asia Bibi has shown, has no regard for minorities or the rule of law?
My Lords, that is the reason why that funding predominantly goes to the education of young girls in Pakistan which, we hope, will contribute to change in future. I hope that the noble Lord will welcome two major initiatives announced following the Prime Minister’s commitment to act in this area. The first was the appointment of my noble friend Lord Ahmad as the Prime Minister’s special envoy on freedom of religion or belief, and the second was a meeting at the Foreign Office last week, where we announced the successful bidders for a £12 million DfID fund to promote freedom of religion and belief. That shows how clear and committed the Government are from the very top.
My Lords, as set out in the national shipbuilding strategy, the Type 31e programme is the pathfinder for a new streamlined competitive procurement process which allows the Ministry of Defence to work collaboratively with industry to deliver warships to meet the Royal Navy’s needs. The Type 31e procurement is still under way. However, industry has welcomed the approach, and initial engagement indicates a healthy interest throughout the supply chain.
I thank the Minister for his Answer, but there is a strong case for awarding contracts for all Royal Navy ships, including those serving under the Royal Fleet Auxiliary, to UK shipyards. The Government are making an unnecessary distinction by insisting on putting RFA ships to international tender. Does the Minister agree that awarding these contracts to UK shipbuilders would provide certainty, and enable shipyards to grow in size and capacity, train more apprentices, help sustain their supply chains and, importantly, keep prices down? Does he also agree that this would be one of the MoD’s objectives: to contribute to UK prosperity?
My Lords, I absolutely share the noble Baroness’s ambition for the prosperity of the UK shipbuilding sector. Future warship procurement will be restricted to UK-wide competition for reasons of national security. However, we think it right for other naval ships to be subject to open competition. This is not just because of the rules of the EU treaty. Of course, we hope that UK shipyards will be able to compete for those contracts, but they will win them only if they are internationally competitive. It is that competitiveness that will ultimately secure their prosperity, not only as suppliers in the UK context, but as potential exporters in the global marketplace.
Will my noble friend tell the House what effect he thinks the recent announcement in the Budget of an extra £1 billion for the Ministry of Defence will have, not only on the building of complex warships in the United Kingdom, but on the wider operational activities of the Ministry of Defence?
I am grateful to my noble friend. As the House will be aware, the Autumn Budget gave defence a further £1 billion between now and 2020, in addition to the £800 million of in-year support that we received earlier this year from the Treasury. We have not yet allocated precise sums to particular programmes, but there is no doubt that the additional funds represent a substantial boost for defence. It means that we will be able to modernise some key capability areas. Offensive cyber, anti-submarine warfare and protection of the deterrent are some good examples. Importantly, it also means that we do not have to make any cuts to the force structure or changes to our capability plans.
My Lords, there has been a lot of talk about shipbuilding but very little building. It seems to me that we have to get a grip on things such as the Type 26 programme. We will now wait for six or seven years for the first frigate to appear, carrying all the costs of that yard, rather than pushing ahead, ordering all eight, getting all the long lead items and actually delivering them one a year. It seems that we are not grasping these key fundamental issues. The Solid Support Ships add into the programme, but we do not look at the real cost to the nation of not building them here in this country.
My Lords, as regards Type 26, it is true to say that ordering ships in batches is normal commercial practice. For one thing, it enables lessons learned in building the early batches to be reflected in lower prices for the later ships, which of course achieves better value for money overall. Contracting for all eight ships up-front would have precluded us from benefiting from the potential economies of scale, which may now come from the successful export campaigns to Australia and Canada.
My Lords, all the frigates and destroyers that the Royal Navy has at its disposal are in one way or another fully operational. They may be subject to training of crew, they may be alongside having refits or they may be on deployments, but none of them is non-functional.
Brexit: Proposed Agreement
My Lords, a deal is in the interests of not just the UK but the European Union. We want to make progress as soon as possible, but there will not be an agreement at any cost. As the Prime Minister said on Monday, we are now in the end game for negotiations and are working extremely hard to deliver the withdrawal agreement and the future framework.
My Lords, this has turned out to be a really topical Question. Does the Minister recall that the vote that took place in 2016—contrary to what the noble Lord, Lord Bates, said in answer to the noble Viscount, Lord Hailsham—was a vote by the narrow majority to authorise the start of negotiations for withdrawal? Now that we are imminently to be told the terms, surely the choice between leaving the European Union on those terms or the status quo should be put to another people’s vote.
I should congratulate the noble Lord on his foresight in tabling such a Question for such a slow Brexit news day, but perhaps we will be able to enlighten him further. I think that he is totally wrong in what he said and I agree totally with the answer given by my noble friend Lord Bates. We have already had a people’s vote and the people voted to leave. The question on the ballot paper was, “Do you want to leave the European Union or remain in the European Union?” and people said that they wanted to leave.
My Lords, will my noble friend confirm that, if Parliament rejects this agreement—as may well be the case given that the opposition to it spans the vast gulf between a brace of Johnsons—taxpayers will save £40 billion, which could be spent on taxpayers’ priorities? The second consequence is that we would trade on World Trade Organization terms, which should not be frightening. I say that not just because I helped to negotiate the establishment of the WTO but because our trade with countries with which we trade on WTO terms has grown three times as rapidly as our trade with the single market since it was established.
My Lords, Parliament needs to see the actual text; perhaps the Minister can tell us when that will happen—preferably not too far behind the journalists. We already know enough to understand that this is a miserable Brexit; indeed, it is impossible for any Brexit deal to be as good as EU membership. When will the Government be honest about this, stop the disinformation and put it to the people for them to decide?
The noble Baroness says that she wants to see the text, but she has already decided what it says before she has seen it, which is of course typical of the attitude of the Liberal Democrats—they have decided what they believe before they see the final deal. The Cabinet is meeting this afternoon to consider the draft agreement that the negotiating teams have reached in Brussels and will decide on the next steps in the national interest.
My Lords, I congratulate the Minister on trying to bring everyone together. Does he appreciate, and agree, that there are 2 million people who will be much more affected than he or I will be by whatever deal the Government are considering and whatever deal is accepted? They were not allowed to vote in the referendum, but they would be entitled to vote today. Do they not deserve a say?
The people who have a say are those who vote in the referendum or election that you have at the time. You cannot go back to elections and say, “What would the result have been if different numbers of people had taken part?” I reiterate the point my noble friend Lord Bates made: we have already had a people’s vote and people voted to leave. In my view, that is the settled will of the country, and we are implementing that outcome.
My Lords, despite the rumours, the Minister is a fair-minded man. Would he not therefore agree, in answer to the Question from the noble Lord, Lord Foulkes, that, bearing in mind that the Government psychologically lost the mandate to pursue the Brexit negotiations anyway in the 8 June 2017 election, now is the time to reflect the changes in public opinion and the younger voters coming on to the roll, and for the Government to allow Parliament to make that decision about a people’s vote?
I thank the noble Lord for his compliment but no, I do not agree with him. At the general election, both we and the Labour Party stood on manifestos saying that the result of the referendum should be respected. Indeed, the leader of the Opposition confirmed that last week. Over 80% of votes were cast in that general election for parties that said that they would respect the outcome of the referendum.
My Lords, does the Minister agree that, in addition to the 550 pages, the impact assessment should also be made available before this House debates the meaningful vote? Will he also ensure that our committees have time to predigest it so that we can benefit from their advice?
I have discussed this with the noble Baroness before, but following the conclusion of the negotiation and ahead of the meaningful vote we will make available to all Members of the House a full, reasoned position statement laying out both the political and legal position of the Government on the proposed withdrawal agreement, including any protocols that might be attached to it.
My Lords, while I endorse what the noble Baroness just said, is this not a time when we should remember that it is always a mistake to rush to judgment? We have not seen this document yet; I await it with great interest. It is important that we have proper time to consider it. But we also have to bear in mind that in negotiations there has to be compromise on both sides. If those who have been ramping up the rhetoric in another place would only be calm for a week or two, we might come to a considered judgment.
My Lords, to have a meaningful vote, the House of Commons has insisted that it must have full information on the legal implications, impact assessments and future economic projections, otherwise it will not be meaningful. None of that was available at the time of the last referendum. In the event of a logjam in Parliament, which seems at least possible, why will the Government not allow the people, in the light of all that information, to have the final say on this issue?
I set out in my reply to the noble Baroness, Lady Hayter, what information we will make available. Of course, the House of Commons needs to come to its judgment in the light of all the available information and studies, and we will provide that. But I reiterate that we will not hold a second referendum; we have already had one, the people reached their view and we are implementing that view.
Counter-Terrorism and Border Security Bill
Committee (4th Day)
Relevant documents: 35th Report from the Delegated Powers Committee, 11th Report from the Joint Committee on Human Rights, 14th Report from the Constitution Committee
Clause 21: Port and border controls
60: Clause 21, page 22, line 4, leave out from “borders” to end of line 7
My Lords, the government amendments in this group make a number of necessary changes to the provisions in Schedule 3 governing the retention of property and the power to make and retain copies of documents and other items.
The new powers under Schedule 3 have been introduced to strengthen the tools of our law enforcement officers to tackle the harmful activities of hostile actors. Over recent years, we have seen a number of foreign powers demonstrating a significantly increased risk appetite regarding the conduct of their intelligence officers and agents. They seek to acquire and pass on property or information that would damage our national security. This could include highly classified protectively marked UK Government material, prototypes of UK defence infrastructure and hardware, or even the contact details of persons employed by our secret intelligence agencies. The Committee will appreciate that, to assert themselves in this way, foreign intelligence officers or those acting on their behalf are known to actively use the cover of certain professions; this includes journalists, lawyers and others. There is, therefore, a national security imperative for the police to be able to retain, copy and examine articles which may also include confidential journalistic or legally privileged material.
In response, Schedule 3 introduces new powers that would allow an examining officer to retain, examine, copy and potentially destroy a person’s property, including confidential material, where the officer believes it could be used in connection with a hostile act or to prevent death or serious injury. Once a person’s property has been retained under these powers, no further action can be taken without the authorisation of the Investigatory Powers Commissioner. The retention process requires the commissioner to consider representations made by the owner of the article, the police and the Home Secretary before coming to a decision.
Section 3 of the draft Schedule 3 code of practice, which I recently circulated to noble Lords, outlines the steps and timings for this process, which have been designed to strike a balance between affording the examinee an opportunity to defend possession of their property with the operational need to retain, use or potentially destroy it. The entire process from the point at which the property has been retained, to the point at which the commissioner authorises further action may take as long as four weeks but could possibly take longer as a result of delays or appeals.
In the vast majority of cases, this process will be the right one, as there will not be an urgent need to examine the property and the immediate risk will have been mitigated by dispossessing the individual of the article in question. In some cases, however, these timeframes will not be acceptable, in particular where urgent action is needed to prevent death or significant injury or a hostile act. An example of such a situation might be where hostile agents are trying to leave the UK with information detailing live UK intelligence agency operations, capabilities and employees. Stopping an agent with this material and being able to access it immediately will give the police a greater chance of determining whether other hostile operatives are in possession of the material and which UK intelligence officers or agents are potentially at risk of exposure. In such a case, an expedited process would allow an urgent decision to be taken on whether the property should be returned to the individual, in parallel to examining the property to mitigate the immediate threat.
Amendment 77 would provide for this expedited process by allowing the examining officer, with the approval of a senior officer not below the rank of superintendent, to examine or copy the property, including confidential material, before a decision has been made by the commissioner. This mechanism would require authorisation to be given or withheld by the commissioner, or a delegated judicial commissioner, after the event. Should the commissioner withhold that authorisation, he would have the power to direct that the article be returned to the examinee and the destruction of any information taken from it, including copies. As with the existing process provided for in the Bill, the decision of the commissioner 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.
This urgency procedure has been modelled on similar provisions in the Investigatory Powers Act in relation to interception warrants and has been set out in further detail in Section 3 of the draft code of practice. We had considered with operational partners and the IPC whether an expedited prior authorisation procedure could be put in place but have concluded that, while the process could be truncated, the requirement to receive and consider representations is such that any fast-track prior authorisation procedure would still take some days. I want to reiterate that these powers would only be used in the most urgent circumstances and subject to the safeguards that I have described. The consequences of misusing the powers are clear—the commissioner may direct the destruction of any information acquired through use of the property.
I now turn to Amendments 78 to 82, which concern similar retention powers for copies that consist of, or include, confidential material. These amendments aim to make two key changes. First, as with Amendment 77, which I have just described, they would provide for an urgent process for the retention and use of copies that consist of, or include, confidential material. Secondly, they will ensure that the non-urgent process for retention of copies works in the same way as the non-urgent retention process for a person’s property.
I note that Amendment 81 in the name of my noble friend Lord Attlee also seeks to provide for this. Currently, the Bill does not afford affected parties the opportunity to make representations before the commissioner decides to approve or otherwise the retention and use of copies. In applying the urgency procedure to copies, including the provision enabling affected parties to make representations, the amendments also provide for representations to be made in non-urgent cases. In summary, the aim of these amendments is to ensure that there are symmetrical processes for the retention of property and copies of that property that consist of, or include, confidential material. I hope that my noble friend is reassured that the government amendments will give effect to what he was aiming to achieve.
The remaining amendments in this group are comparatively minor or consequential. Amendment 70 is a consequential amendment to clarify that the process of retention will be different where the urgency condition applies. Amendments 72 and 73 are to clarify that the commissioner may specify the timeframes for receiving representations through the non-urgent process, which are currently outlined in the draft Schedule 3 code of practice. Amendments 74 and 75 refine the definition of an “affected party” in paragraph 13(3) of Schedule 3. Currently, the Bill specifies that representations to the commissioner by the police in relation to a person’s property that has been retained under the new retention powers should be made by the chief officer of the police force to which the examining officer belongs. The amendments allow for the possibility of a chief officer from a different force to make those representations. This is because the force to which the examining officer belongs will not always be the investigating force and so would not necessarily be best placed to make representations regarding the decision to retain the property. Amendment 76 clarifies that the requirement to invite representations from a person whose property has been retained,
“applies only so far as it is reasonably practicable to do so”.
This is to allow for a situation where it is not possible to get in contact with the person, for example because they provided false contact details. Finally, Amendment 60 is a drafting amendment to ensure that Clause 21 appropriately describes the provisions in Schedule 3.
I hope my explanation for these amendments is clear and that noble Lords agree with the importance of being able to act quickly against the imminent threat of hostile activity. I beg to move.
My Lords, I have some small questions for the Minister, and I hope she has been given notice of them in her brief—I contacted the Bill team yesterday. I think she has largely answered one of them, but I will ask it anyway. In her Amendment 73 and elsewhere, there is provision for a cut-off to the period for representations. I understand the need for that. Is there a timetable for the rest of the process? This is likely to be significant to the passenger, the affected party.
Secondly, in Amendment 76 and other amendments—the Minister has just mentioned this—what is an example of what is not “reasonably practicable”? She mentioned the possible difficulty of getting in touch with the individual. Again, I understand that. Does the term “reasonably practicable” go to that sort of thing? In other words, is it on the part of the person trying to get in touch, or is it looked at from the point of view of the passenger? Destruction of an article or conditions as to the use of the article are likely to be significant in this situation.
Thirdly, I have a similar question about the urgency condition in Amendment 77. Who assesses what is urgent? Is it the Home Office or the commissioner, and is it urgency in the eyes of the passenger? If the Minister can help to flesh out some of those queries, I will be grateful.
Perhaps I may add one further question to those raised by the noble Baroness, Lady Hamwee. It relates to the urgency procedure. The noble Baroness has already asked who makes the decision on what is or is not urgent, but can we also have some feel, presumably based on the experience of the agencies concerned, of how frequently they expect to use this procedure?
My Lords, the kind of situation in which we can expect the urgency provisions to be used possibly goes to the question asked by the noble Lord, Lord Rosser, about how frequently they are used. It is difficult for me to talk about the average frequency in any week, year or other given timescale, but clearly there is a spike nature to some of these events. Therefore, I hope that the noble Lord will accept that I cannot give a definitive answer to his question. However, basically the provisions will be used to disrupt a live threat—for example, where a hostile agent tries to leave the UK with information detailing live UK intelligence agency operations, capabilities and employees. Stopping an agent with this material and being able to access it immediately will give the police a greater chance of determining whether other hostile operatives are in possession of the material and which UK intelligence officers or agents are potentially at risk of exposure. In the aftermath of something like the Salisbury event, Schedule 3 powers would provide the police with additional tools to stop and question persons with potential links to a hostile state or its actors who might have knowledge of or involvement in the attack. In such a scenario, it would be critical to analyse their devices and material at speed in order to understand the extent to which they were engaged in hostile activity.
The noble Baroness, Lady Hamwee, talked about the timeframe. Obviously, the urgency procedures would be used only where there was an immediate risk of death or significant injury or of a hostile act being carried out. In such a case, the police must be able to act with immediate effect. However, on the question of whether we could have done it the other way round, with a prior authorisation procedure being put in place, the answer is that that would still take some days. I hope that that answers the question.
The point was made that the timeframe for the urgency process—that is, within 24 hours—makes it very difficult to make representations to the commissioner. I was asked whether that is enough time or whether it should be longer. The timescales for the urgency process aim to strike a balance between giving the property owner enough time to make representations and ensure that the police are not able to use the property without judicial authorisation with the decision having to be taken by the commissioner within three days, and, by the same token, conceding that it is likely the property owner will want a decision to be taken as quickly as possible to prevent the police using their property without a decision by the commissioner. The draft Schedule 3 code of practice, which is available online, makes it clear that the examining officer must provide a notice that will explain to the property owner that they are invited to make representations to the commissioner, including contact details and the associated timescales.
Did the noble Baroness ask me what happens if the property owner cannot be contacted?
She did, and I have the answer here—as if by magic. Paragraph 63 of the draft Schedule 3 code of practice is clear that, where the examining officer retains a person’s property beyond the period of examination, the officer should ask the person how they would prefer to be contacted regarding the status or return of their property. The officer will typically seek to acquire the phone number, email address or postal address of the examinee. However, under the urgency process, the examining officer would attempt to use the details provided by the examinee to make contact and to provide the information. This would typically include attempting to call the person a number of times, as well as sending them information by recorded post and email. If the person is at the known UK address then the officer from the local force could be tasked to attend the address to deliver the relevant information in person. Obviously, however, it would not be reasonably practicable for the police to take this approach on every occasion or where the person is abroad. It would not be reasonably practicable for the examining officer to make contact with the person where they have provided false contact details. I hope that satisfies the noble Baroness.
I appreciate that the Government cannot stand at the Dispatch Box and announce that this will be used X number of times a week, a month or a year—of course I understand that. But is the provision there because of previous experience that there is a gap in the arrangements, for which we have had to pay a price because we have not been able to enact the procedure, or is it there because there is a feeling that there might arise a need for such a procedure in the future?
There are several answers to that. Obviously, the Terrorism Act 2000 needs updating. The Salisbury attack showed us the need to update our laws in this regard, and clearly the way that technology and other things have moved on creates a gap in our abilities because they have not been provided for in previous legislation.
Amendment 60 agreed.
Debate on whether Clause 21, as amended, should stand part of the Bill.
My Lords, it is my intention to oppose the Questions that Clause 21 and Schedule 3 stand part of the Bill. I will later move specific amendments, but it is my view that Schedule 3 should be entirely removed from the Bill.
Schedule 3 creates a new regime in which anyone who is travelling into or out of the country can be searched, detained, interrogated and forced to hand over confidential documents without any suspicion by the border guards. That means that anyone could have their travel interfered with for no good reason—but of course it could be that people of black, Asian and minority ethnic groups will be disproportionately targeted by these broad powers. These powers already exist for the purposes of establishing whether someone is or has been involved in acts of terrorism. They are contained in Schedule 7 to the Terrorism Act 2000. The Government now seek to extend these powers beyond terrorism, to a very broadly defined set of “hostile acts”, which include threatening national security or threatening the so-called,
“economic well-being of the United Kingdom”.
Border officers could force anyone to hand over documents and information, and it would be a criminal offence to say no. They could detain anyone at the border for up to six hours without needing anything at all to suggest that the person has done anything wrong. A person who is questioned or detained has no right to remain silent and commits a criminal offence if they do so. An individual who is detained under these powers will have a right to speak to a solicitor, but the Bill does not appear to require them to be informed of this right until they have been detained for at least two hours. If a detainee chooses to speak to a solicitor, this can be delayed by officers under paragraph 25 or simply ignored altogether under paragraph 24. Additionally, paragraph 26 allows the police to watch and listen to the private conversations with the solicitor. I cannot believe that this is anything other than a fundamental attack on legal privilege and confidentiality.
These powers are simply too broad and too intrusive. They mean that anyone passing through a port or airport is essentially waiving their basic legal rights. While some people might consider this proportionate when it applies to finding terrorists, it is completely unjustifiable when it is applied to find out whether people are threatening the economic well-being of the United Kingdom. I would therefore like the Minister to clarify some points for me.
What does “threatening the economic well-being of the United Kingdom” mean? Has the phrase been defined anywhere and has it been considered by the courts? Would a business person who moves their business from the UK to another country be threatening the economic well-being of the UK? Why does the Bill allow a person to be detained for up to six hours without a single suspicion that they had done anything wrong? Would any Member of your Lordships’ House be prepared to be detained at the border for six hours without any suspicion that they had done anything wrong? If it were applied to us—as it could well be— we would think it most unfair. How will the Government ensure that these suspicionless powers are not used in racist and discriminatory ways, further entrenching the abuse that black and Asian men face with existing stop and search powers?
Dozens of amendments could be made to Schedule 3, but it is so fundamentally wrong that it must be opposed altogether. I beg to move.
My Lords, I support the noble Baroness, Lady Jones of Moulsecoomb, in opposing the additional powers conferred by Schedule 3, for some of the reasons she has just mentioned. We have already debated whether the powers in Schedule 7 of the Terrorism Act are used appropriately in every case. From complaints made to me, I believe that there is increasing concern that Schedule 7 powers may be being used arbitrarily—particularly against black and other ethnic minority passengers—resulting in missed flights with no compensation.
As the briefing provided by Liberty suggests, Schedule 3 covers a potentially vast and uncertain range of behaviours. Paragraph 1(1) refers to,
“a person who is, or has been, engaged in hostile activity”.
As the noble Baroness said, the Bill defines hostile activity as any act which threatens national security, the economic well-being of the UK or which constitutes a serious crime, where the act is,
“carried out for, or on behalf of, a State other than the United Kingdom or … otherwise in the interests of a State other than the United Kingdom.
However, the person need not be aware that they are engaged in hostile activity, and the state for which the hostile act is being carried out need not even be aware that the hostile act is being carried out. As the Bill is worded, someone from Paris or Frankfurt travelling to the UK to encourage UK businesses to relocate to their city in the face of Brexit will be caught by these provisions, because his mission would threaten the economic well-being of the UK and would be in the interests of another state—France or Germany. In a later group, the noble Lord, Lord Anderson of Ipswich, has an amendment in relation to what the definition of hostile act should be, and we will return to this subject then.
This schedule and the powers it contains, according to the Home Office briefing we were provided with, is supposed to be a response to the attempted assassination of Sergei and Yulia Skripal, yet almost all commentators agree that this was an act of terrorism already adequately covered by Schedule 7 of the Terrorism Act. Perhaps the Minister can give an example of a hostile act that has been committed against the UK that was not an act of terrorism.
The fact sheet provided by the Home Office suggests that these provisions are needed because:
“The UK faces a sustained threat from hostile actors seeking to undermine our national security in a wide variety of ways”.
Can the Minister explain how every and all acts that threaten the economic well-being of the UK are a threat to national security, and why the wording used in the Investigatory Powers Act 2016 is not used here—for example, with regard to the issuing of bulk interception warrants under Section 138(2) of the 2016 Act, where the issue of a warrant has to be,
“in the interests of the economic well-being of the United Kingdom”,
but only so far as those interests are relevant also to the interests of national security?
My Lords, we have already debated a number of points related to the new ports powers under Schedule 3 to the Bill. Groups of amendments to come will address other aspects of these provisions. That being the case, I will limit my remarks in responding to this stand part debate to explaining the overarching case for these new powers to combat hostile state activity. Schedule 3 will serve to address a current gap in our ability to tackle the threat from hostile state actors by introducing provisions to allow an examining officer to stop, question, search and detain persons at a UK port or the border area in Northern Ireland to determine whether they are or have been engaged in hostile activity.
For the purposes of this legislation, a person is or has been engaged in hostile activity if they are or have been concerned in the commission, preparation or instigation of a “hostile act” that is or may be carried out for or on behalf of a state other than the United Kingdom, or otherwise in the interests of a state other than the United Kingdom. An act is a hostile act if it threatens national security, threatens the economic well-being of the United Kingdom, or is an act of serious crime. The noble Baroness, Lady Jones, asked about the types of activity that would threaten the economic well-being of the UK. Acts of that kind include those which damage the country’s critical infrastructure or disrupt energy supplies. The power absolutely will not be used to target the legitimate activity of foreign businesses, an example of which was given by the noble Lord, Lord Paddick. The noble Baroness also asked whether the power will be used in a discriminatory fashion. The response is an emphatic no, it will not. That is because selection based solely on ethnicity, religion or other protected characteristics is quite clearly unlawful. Selection for examination will be informed by a number of considerations, including available intelligence about hostile activity, as listed in the criteria set out in the draft code.
The events in Salisbury were a stark reminder of the impact that hostile activity can have on the safety and security of our communities. The use of a military grade nerve agent on UK soil demonstrated very clearly the lengths to which hostile actors such as the Russian state will go in order to achieve their illegitimate ends. We should not underestimate this threat. The Director General of MI5, Andrew Parker, set out the position in stark terms in a speech delivered in Berlin in May:
“We are living in a period where Europe faces sustained hostile activity from certain states. Let me be clear, by this I … mean deliberate and targeted malign activity intended to undermine our free, open and democratic societies; to destabilise the international rules-based system that underpins our stability, security and prosperity … Chief protagonist among these hostile actors is the Russian Government”.
It is not often that the general public are so exposed to the work of hostile actors. These actions highlight a contempt for public safety, the rule of law and international norms. However, they are consistent with the activities of the Russian state and others which our operational partners work tirelessly to counter.
In introducing these new powers, the Government are seeking to provide the additional capability needed better to detect, disrupt and deter the threats from these hostile actors. As the noble Lord, Lord Anderson, put it in his evidence to the Home Affairs Select Committee in January, if it is accepted that we need powers to stop and examine people at ports to combat terrorism, should not the police have similar powers to stop people on a similar basis who pose an equal but different threat to national security? In the Government’s view, the answer to the question must be an unequivocal “yes”.
It is worth reiterating that the provisions of Schedule 3 are not entirely novel. They will in many respects mirror existing powers to stop and question persons at the border to determine whether they are terrorists, but will instead be used to determine whether a person is or has been engaged in hostile state activity.
The Government are not saying that, simply because we have these powers for counterterrorism purposes, it justifies expanding them to hostile activity. Rather, we are saying that we have experience in exercising these powers; we already know the vital role that they play in countering the activities of terrorists, and we have taken into account the views of the Independent Reviewer of Terrorism Legislation on the exercise of the powers to ensure that the subject of an examination is appropriately safeguarded.
The noble Lord, Lord Paddick, asked for examples of hostile activity that would not be considered a serious crime or even be captured under current UK law or constitute terrorism. Examples might include unauthorised disclosure under the Official Secrets Act 1989; foreign intelligence officers building relationships with government officials with a view to influencing decision-making or recruiting them as an agent, or foreign intelligence officers receiving protectively marked information or stealing research plans for the UK’s next aircraft carrier. Section 1 of the Theft Act 1968 is applicable to tangible and in-action property, but does not cover information. It may be possible to prosecute a person for theft of the medium on which sensitive information is recorded, but the offence would carry limited sentencing.
The threat to this country from hostile state activity is greater now than it has ever been. It is therefore vital that the police are equipped to disrupt and deter such activity.
My Lords, I think we went through this the other day. It is because officers may have fragmented information which does not amount to reasonable suspicion but may show a pattern emerging. That may not reach the “reasonable suspicion” threshold. As the noble Baroness said, we cannot just stop and search black people arbitrarily; there has to be some rationale for stopping that person. It would not be arbitrary but would not meet threshold of reasonable suspicion.
I am grateful to the Minister for giving way. If somebody is coming through a port of entry and their passport is examined, and in the moment of examination it becomes apparent that there is something about the passport that does not look quite right—for example, there may be very few entries in it whereas the person concerned looks to be a sophisticated traveller—would not such a situation fall well short of being reasonable suspicion but be a proper exercise of the ability of good officers to use intelligence applied in the moment?
Will the Minister answer my question about why the wording from the Investigatory Powers Act 2016 is not used? It attaches to the consideration of the economic well-being of the United Kingdom the further consideration of the interests of national security to differentiate between acts such as I described, of envoys from Paris and Frankfurt trying to steal UK business, and the example given by the Minister of somebody looking to target the electricity infrastructure.
The Minister said that the powers could not be used to target people on the basis of race and religion because it would be illegal. In which case, can she explain why, in one police force area, you are 25 times more likely to be stopped and searched if you are from a black or minority ethnic background than if you are white? Why is that happening when it is illegal?
Police stop and search is very often intelligence based. There may be areas where there is a higher than average proportion of black people. Quite often, some of the gang activity is black on black, but you cannot be stopped because you are black.
That does help me, and of course it is where the noble Baroness, Lady Jones, lives. The noble Lord makes a very good point in that instance. As for envoys trying to steal business, there is nothing wrong with healthy business competition, but undermining the economy, through critical infrastructure, is entirely different. He also asked about the IP Act and I will write to him on that. The answer just handed to me contains a quotation from the noble Lord, Lord Anderson, who wrote:
“If Schedule 7 is being skilfully used, therefore, one would expect its exercise to be ethnically ‘proportionate’ not to the UK population, nor even to the airport-using population, but rather to the terrorist population that travels through UK ports”.
That is a far more eloquent description of the proportionality. I will write to the noble Lord about the IP Act.
It may help the Committee to focus on this as a counterespionage issue. In the years that I have been here we have had, as I said at Second Reading, endless debates and legislation on terrorism. We are now talking about something that was part of my career 30 years ago. The noble Lord, Lord Paddick, rightly suggests that the poisoning of the Skripals was attempted murder and a serious crime, but there is a range of hostile activity, much of which has been mentioned by the Minister, which is potentially seriously damaging to the UK. At one end, obviously, there is the Skripals and coercive repatriation, but before that there is the collection of information, the targeting of dissidents, collecting really important stuff which is sometimes difficult to detect. In answer to the noble Lord, Lord Rosser—which I should not do—I suspect that this will not be a very frequent occurrence, but as we heard from my successor but one in MI5, this is an increasing and serious problem. This is an attempt by the Government to address a counterespionage issue.
I have a commitment this evening which may mean that I cannot stay to the end of this important debate, but I want to say at this stage that there is also the problem that there is quite a lot of this activity which is not serious crime. Under the Official Secrets Act—which, a bit like me and possibly some of your Lordships, is old and creaky—that is not adequately covered. I was encouraged to see that the Prime Minister suggested in the House of Commons on 5 September that some espionage legislation was necessary to bring this subject up to date. I look forward to seeing whether that materialises, and it would be interesting to know whether it is regarded as a patch, temporary or long-term, to some of those other problems. I fear that the later amendments trying to make this all serious crime will not work, because Official Secrets Act offences get only two years’ maximum, whereas serious crime starts at three years. So there is a gap which we have to attempt to fill.
I thank the noble Baroness for her very experienced and helpful comments. She asked: is this a patch or have we thought further ahead? Obviously, in legislation that we introduce we try to look at future threats, but who is to know what threats may emerge in the future? Clearly, cybercrime is a hugely growing threat to us. But I thank her for those very helpful clarifications. On that note, I beg to move.
Clause 21, as amended, agreed.
61: After Clause 21, insert the following new Clause—
“Review: dual passports
(1) Within the period of 12 months beginning with the day on which this Act is passed, the Secretary of State must lay a report before both Houses of Parliament evaluating the case for requiring dual nationality British citizens to declare the nationality of their other passport or passports in order to assist with border security.(2) The review must consider whether information on dual or multiple passport holders should be made available to border security staff and other relevant national authorities via a centralised database.”
My Lords, in this country we allow, quite rightly, UK passport holders to be in the possession of passports of other countries—not just one but two or three; whatever is needed. When someone applies for a UK passport, they are required to declare what other passports they hold. But, astonishingly, this information is not kept in any sort of central database and still less is it available to border officers whose responsibility it is to examine the passports of those entering or leaving the UK. This is why my noble friend the Minister had to tell me, in a Written Answer on 16 April this year, when I asked about a register of second passports:
“No statistical information is available showing whether British citizens hold another citizenship”.
About five years ago I was tipped off by a member of the Security Service that its operations were made much more difficult by the fact that UK citizens were using their UK passport to travel to one destination and then another passport to get up to mischief, perhaps, in third countries. This was and is particularly relevant to would-be jihadists who travel to Pakistan, for example, and then attend training camps or indeed join al-Qaeda, ISIS or some other terrorist organisation in other countries. I raised this point a couple of years ago with Cressida Dick, the present Commissioner of the Metropolitan Police, who was at that time responsible for anti-terrorist operations. She expressed astonishment that border control officers were not automatically alerted to other passports held when a UK passport was electronically scrutinised at the point of entry.
My Amendment 61 is exceedingly modest. It asks merely that the Government require dual nationals to declare other passports and that this information,
“should be made available to border security staff and other relevant national authorities via a centralised database”.
In fact, it is even more modest because all I am asking them to do is to study whether this is a sensible idea. That is not asking very much.
This would be no more difficult or complicated than many other centralised databases, such as the DVLA for vehicle licences and all the rest of it, and the National Firearms Licensing Management System—the central firearms register—which I caused to be introduced under Section 29 of the Firearms (Amendment) (No. 2) Act 1997, which finally came into operation in September 2007, and is working very well. I checked quite recently with my own county firearms officer.
The Government have previously used three arguments to oppose what I am proposing. The first is that it would be an infringement of civil liberties. My answer to that is that such a concept of civil liberties is wholly outdated in an age when we are all subject to intense and often intrusive surveillance by foreign powers such as Russia and, rather more efficiently, China. The second is that there could be no way of enforcing the declaration of other passports. That of course has a simple remedy, which is—if it is declared to be deliberate and pernicious—the forfeiture of a UK passport when that is discovered. Noble Lords in the Committee might have their own view on this but I am quite sure that the great majority of second passport holders would have not the slightest objection to this being known to the authorities. After all, we all have to put up with a lot of inconvenient baggage examination under existing counterterrorism operations.
Nor should we neglect the possibility of connivance by Home Office staff in committing terrorist or other serious criminal offences, whether in connection with passports or border control. The Minister will be well aware that in the last 12 years no fewer than 54 members of Home Office staff have been sent to prison, sometimes for long periods—nine or 11 years. In a recent case Shamsu Iqbal, an official in the immigration department of the Home Office, was sentenced in April to 15 years for misconduct in public office. Sometimes this connivance involves selling visas or trafficking in passports, assisting illegal immigration, forgery, bribery, money laundering and other serious matters. Only today the newspapers are carrying a report of a Mr Pellett, an officer in the Home Office Border Force, who has just been found guilty of assisting criminal gangs with smuggling in weapons and drugs at Dover. I suggest that the Home Office really cannot argue that we can rely on its existing standards of efficiency, let alone integrity, in the protection of our borders.
The third argument is that we should have confidence in the Home Office’s intelligence-led processes and not concern ourselves with these matters. I am sure that my noble friend does not feel this but I think that Home Office officials regard me as pretty impertinent to be talking about these matters. On that I would simply say: it is now 12 years since the noble Lord, Lord Reid, declared when he was Home Secretary that the Home Office was not fit for purpose, while only this month the House of Commons Select Committee concluded, in the matter of my right honourable friend Amber Rudd, that the Home Office had lost its grip. This simple and modest proposal is necessary for national security. I believe that it will improve the Bill and I hope that the Government will show that they have some inclination to get a grip by adopting it. I beg to move.
My Lords, I am grateful to my noble friend Lord Marlesford for raising this matter and I acknowledge his long-standing interest in this issue. I share his aim of preventing those who may be of interest on the grounds of terrorism, serious crime or hostile activity from avoiding detection at the border. But before I reply substantively to him, I believe the Home Office to be blessed with many, many committed, honourable and very able civil servants. It is wrong for this Committee to gain the impression that it is somehow shot through with those who would seek to disobey the law. That is not my experience and it is certainly not the experience of my noble friend the Minister or, I dare say, any of your Lordships in this House who have had dealings with the Home Office.
Holding dual national status is perfectly lawful in the UK and it is not a barrier to acquiring British citizenship or obtaining a British passport. When making such applications, dual nationals are required to provide the Home Office with details of any foreign passports or other nationality held. Such information will assist in the assessment of the application, including, in the case of an application for naturalisation, the assessment of any grounds for refusal based upon conduct through past or present activities.
The request for dual national passport information is also necessary in understanding whether a person is using one name for all official purposes. The UK, through the Home Office, has also instituted a policy that a person must have one name for all official purposes and that this is reflected in biometric residence permits, naturalisation and registration documents and passports. This policy is in place not only for travel purposes but to frustrate the use of multiple names for access to goods and services. This, together with other measures in place, minimises the ability of a British citizen to manipulate travel documents to travel into and out of the UK and other countries undetected for terrorism, trafficking and other criminal activities.
My noble friend has asked that the Home Secretary considers two issues: first, the case for dual national British citizens to declare the nationality of their other passport or passports; and secondly, the case for such information to be made available to border officials and other national authorities through a centralised database in order to assist with border security.
On the first issue, I have already indicated that when a dual national makes an application for a new, replacement or renewed British passport, Her Majesty’s Passport Office will always ask if the person holds any other passports. Where names in these passports are inconsistent with that being applied for in their British passport, the application will not be granted unless the person aligns their names or meets one of the limited exceptions. An exception is granted for gender change where this is not recognised by the other country to comply with the Equality Act 2010, but any other exception, where granted, requires the applicant to have an observation added to their British passport detailing the name and nationality of their dual national passport. Should such a person fail to disclose at the point of application for a British passport that they hold a passport under another nationality, they would be committing a criminal offence by making a false statement on the application form, and the Home Office would consider withdrawing or refusing to issue a British passport. That would be considered on the individual circumstances of the case and the seriousness of the consequences of the attempted deception.
I recognise my noble friend’s concern about preventing those people who seek to cause harm to this country or our allies being able to travel in and out of countries on different passports. The Committee will be aware that the statement setting out the policy on exercising royal prerogative powers in relation to passports was updated by the Home Secretary on 25 April 2013. In her Statement to the House of Commons, the then Home Secretary made clear the importance of being able to refuse or withdraw passport facilities from British nationals who may seek to harm the UK or its allies by travelling on a British passport to, for example, engage in terrorist-related or other serious or organised criminal activity.
The Government went further in the Counter-Terrorism and Security Act 2015 which provided new powers to deal with the problem of foreign fighters and prevent radicalisation. This provided powers to the police temporarily to seize the passports of those suspected of leaving the UK in connection with terrorism-related activity. In some cases, this led to longer-term disruptive action such as use of royal prerogative powers to cancel British passports.
I hope my noble friend will agree that a person’s identity is of primary importance and that safeguards are already in place to ensure that when differences in a dual national’s personal details are identified, alignment is required prior to the issue of a British passport. Information and documentation, including foreign passports, provided when making a passport application is recorded and available to others through existing data-sharing agreements.
I turn to my noble friend’s second point. He suggested that information on dual or multiple passport holders should be made available to law enforcement agencies through a central database. Border security staff already have access to British passport and intelligence information, and if there is a person of specific interest they can access full details on immigration and passport history through current records. Where provided, this will include any declared dual national passports.
We believe that this targeted approach makes the best use of Border Force resources and provides a relevant, timely and proportionate use of HM Passport Office data on dual nationality. This approach is compliant with the data protection principles as laid down in the general data protection regulation and the Data Protection Act 2018, and respects those principles of data minimisation.
Of course a person can change their name by deed poll or with overseas authorities at any time. However, we do not believe that a requirement to inform UK authorities of name changes, or of the acquisition or loss of other nationality, will make those seeking to hide their identity more likely to provide such information. That is why we believe that the use of facial matching, biometrics and other security checks, focusing on identifying individuals and tying them to an identity, rather than simply seeking to monitor the travel documents that they hold is a more effective safeguard. The UK, in aligning names for all official purposes or adding different names as observations where names are not aligned, assists other countries as well as the UK to identify British citizens who may be seeking to use more than one identity.
Furthermore, as we have indicated to my noble friend when he has pursued this issue on previous occasions, we are clear that setting up any additional database on dual nationals would be of limited value. We have seen no evidence to indicate that a dual national database would enhance security at our ports, nor has it been requested by any security, intelligence or border agency. Moreover, there is no reason to believe that the study envisaged by the amendment would reach a different conclusion.
I hope my noble friend will agree that steps are already in place to deal with the concerns that he raised. I am satisfied that the existing processes that focus on identity, and recording dual nationality and passports when required, provide the necessary safeguards. Importantly, mechanisms are already in place to share that data with relevant national agencies, including border staff, in a proportional and targeted approach. As Part 2 of the Bill demonstrates, we are ready to strengthen the powers that we need to protect our borders where a compelling operational case has been made and the investment required represents value for money, but we do not believe that a case currently exists for a database of dual nationals.
I know this will come as a disappointment to my noble friend, but I hope he will nevertheless be content to withdraw his amendment.
My Lords, I have great sympathy with my noble friend for having to read out a Home Office response that completely misses the point of my amendment. The point is that when people hold more than one passport, if their passport is scanned then the fact that they have another passport is automatically revealed. That would be very simple to do, and it is very necessary because that may well give the clue in certain cases—not many, but you do not need many cases for these things to be worth while—of the need for a follow-up. I will of course withdraw the amendment for the moment, but I must ask the Home Office to look at what I am actually proposing because a great deal of what my noble friend read out is wholly irrelevant to the point that I was trying to make. Having said that, I beg leave to withdraw the amendment.
Amendment 61 withdrawn.
62: After Clause 21, insert the following new Clause—
“Consultation on the impact of this Act on the right to protest etc
(1) Within the period of one month beginning with the passing of this Act the Secretary of State must consult on the probable impact of the provisions of this Act on the right to protest and undertake peaceful, non-violent direct action.(2) As part of this consultation, the Secretary of State must consider whether to introduce—(a) a statutory definition of “domestic extremism” and statutory criteria for designating individuals as “domestic extremists”; and(b) independent judicial oversight of counter-terrorist operations relating to domestic extremism, including the designation of individuals as “domestic extremists”.(3) The Secretary of State must lay a report of the outcome of the consultation before both Houses of Parliament.”
My Lords, my Amendment 62 would require consultation on the right to protest and undertake peaceful, non-violent direct action. This is a very personal amendment for me because I do go to peaceful protests, and it is possible that some other Members of your Lordships’ House do as well—although, looking round, possibly not.
I am compelled to bring the amendment for personal reasons but also in the knowledge that the Stansted 15 are undergoing a criminal trial for heroically trying to stop deportations in response to the Windrush scandal and the Government’s now discredited hostile environment policy. I also bring the amendment in the name of all environmental protectors who are harassed by armies of police and private security in the fight against fracking. This includes the Fracking Three, who were thrown in jail by a judge who had family ties to the oil and gas supply chain. They were later freed by the Court of Appeal. I also highlight the tree protectors in Sheffield, who spent years trying to stop the council felling thousands of healthy trees. They faced rough tactics by the police, and the council has taken unprecedented steps that risk bankrupting individual protesters.
I pay my respects to all environmental protectors in the UK and around the world who face persecution and prosecution for the crime of protecting our planet. A noble Lord earlier said something about civil liberties being outdated. Not in my world they are not. I argue that if we want to live in a democratic society, civil liberties are a crucial component of it.
A common thread runs through all the cases that I just mentioned. That thread is the use and abuse of laws which stamp out legal, peaceful protest. Whether it is terrorism legislation at Stansted, obstruction of the highway in Lancashire or trade union legislation in Sheffield, we see time and again that the state will use the law creatively to deter and punish those who put their bodies on the line to fight injustice and environmental destruction.
There is an emerging application of civil injunctions, which means that companies and councils can bankrupt people for exercising their right to protest, even when they have not broken the law. Environmental protesters and campaigners have faced persecution in other ways, too. We have often been designated as domestic extremists and put into the same category as far-right neo-Nazis and the man who murdered MP Jo Cox. We have been spied on by the police and had our campaigns infiltrated by police officers. Some of us have even been deceived by police into forming a sexual relationship as part of their cover story. The sense of state intrusion in our lives is difficult to convey, and undoubtedly puts many people off taking part in protests.
We have seen our causes proved right with time. The Intergovernmental Panel on Climate Change has said that even if we meet the targets in the Paris climate agreement, which is unlikely, we will still see catastrophic consequences. The anti-fracking movement, once mocked for its suggestion that fracking would cause earthquakes, has been proven right by Cuadrilla causing dozens of quakes in the vicinity of its fracking site in Lancashire. Those quakes have repeatedly breached the upper limits set by the Government’s “gold-standard fracking regulations”. The Government’s response has been to change their myth-busting fact sheet from stating that fracking does not cause earthquakes to saying that it does not cause “serious earthquakes”.
If the suffragettes were alive today, they would be standing alongside us as domestic extremists facing trumped-up criminal sanctions for doing the right thing. I am sure that in time history will recognise the environmental movement as forcing the same scale of social change as the suffragettes are credited with today.
For these reasons, my amendment would require the Government to conduct a consultation on the impact of the Bill on the right to protest and to consult on a statutory system for designating people as “domestic extremists”. This is an essential first step towards enshrining a true right to protest in the UK, recognising that people should have legal defences when they act in protection of the environment and human rights. The powers in the Bill would add to the already long list of laws which can be used or abused against honest, dedicated campaigners—and that must be opposed. I beg to move.
Amendment 62 proposed by the noble Baroness, Lady Jones of Moulsecoomb, seeks to add a new clause to the Bill after Clause 21concerning the right to protest.
The right to protest peacefully is an extremely important right that we should all cherish. I have been on a few marches and protests in my time. I have usually gone with a few friends, standing up for what we believe in. Many of my noble friends have been on marches, and I am sure many other noble Lords have been as well. I do not think any one group can claim that they are the party of protest marches.
I hope that the Government will agree that this is an important issue. The right to protest is an important one that we should all cherish. I have generally agreed with the Bill, and am happy to support it. However, I accept that we are giving the Government some extra powers. I support the Bill because it has a narrow focus, dealing with some very important matters, so I hope to get some assurance from the Government. I would not want to see anything in the Bill to stop people protesting peacefully; it is very important that we do not have that.
The noble Baroness raised a point about domestic extremism, which is an important issue. I like the noble Baroness very much. We get on, and sometimes we agree on things, and sometimes we do not. I do not regard her as a domestic extremist; she is a campaigner and a noble Member of the House who makes a valuable contribution. It is important that people should not be branded or grouped together so that somehow, their rights can be taken away. However, let us be clear: there are dangerous people in this country. People who have been born here can be very dangerous; they can be on the hard right, the hard left, in other groups, or religious extremists. We need to have laws in place to deal with them, but at the same time we need to protect our right to protest and stand up for what we believe in. I look forward to the Government’s response.
I was not going to speak, and perhaps I should declare an interest, in that I have probably been to more protests than any other Member of this House, but mainly in uniform rather than to protest myself.
I am struggling to understand which part of the Bill the noble Baroness is concerned about that would directly impact on peaceful protest. That is why I hesitated to make a contribution.
My Lords, I am grateful to the noble Baroness, Lady Jones, for setting out the case for her proposed new clause. I would like to reassure her that the provisions in the Bill will not impact on an individual’s right to peacefully protest. Let me say without ifs or buts that this is a right central to a free and democratic society such as ours, and one which we would all seek to uphold and defend.
The noble Baroness, Lady Manningham-Buller, argued at Second Reading that,
“there is no liberty without security”.—[Official Report, 9/10/18; col. 27.]
With due respect to the noble Baroness, I am inclined to agree.
The measures in the Bill are intended to ensure that the fundamental rights and values held so dearly by the vast majority of individuals in this country are upheld, and that people are able to express their views and stand up for what they believe in in the face of a malign and growing terrorist threat. While we saw the ultimate expression of these hateful views in Finsbury Park, Westminster, London Bridge and Manchester, these attitudes also undermine the cohesion of our communities, restrict our freedoms and diminish our rights, in particular those of women and girls.
I should make it clear that the type of conduct that the Bill’s provisions are aimed at concerns support for proscribed organisations—those which are, by definition, concerned with terrorism. There is a clear public interest in stymieing support for terrorist organisations, since the more support they have, the stronger their capacity to engage in terrorism. The Bill’s provisions, however, would not extend to support for other organisations that are not proscribed, or indeed to expressions of support for causes that are neither terrorism nor otherwise illegal.
Tackling the evil ideology of extremism is one of the greatest challenges of our time, and we need a new approach to identifying, exposing and defeating it. This year, to step up the fight against extremists, we established the independent Commission for Countering Extremism, which will be crucial to bringing new drive and innovative thinking to all our efforts to tackle extremism. Our published charter sets out the commission’s status as a transparent organisation operating independently from government, and provides it with a clear remit to support the Government in identifying and confronting extremist ideology in all its forms, whether Islamist, far and extreme right-wing, violent or non-violent. It also confirms that the commission will have no remit on counterterrorism policies, including Prevent. In its first year, the commission is engaging widely and openly and is undertaking an intensive evidence-gathering phase to inform the advice to government on new policies to counter extremism. This will include revisiting the extremism definition. The commission has now engaged with over 400 experts and activists and, in September, published the terms of reference for its study, which will be informed by an open public consultation, evidence from government and further research. I urge everyone to engage with the commission in this vital effort.
Peaceful protest is a vital part of a democratic society. It is a long-standing tradition in this country that people are free to gather together and to demonstrate their views, however uncomfortable these may be to the majority of us, provided that they do so within the law. Articles 9, 10 and 11 of the ECHR form the basis of an individual’s right to participate in peaceful protest. There is, of course, a balance to be struck. Protesters’ rights need to be balanced with the rights of others to go about their business without fear of intimidation or serious disruption to the community. Rights to peaceful protest do not extend to violent or threatening behaviour and the police have powers to deal with any such acts. However, these powers are not contained within counterterrorism legislation, but in the Public Order Act 1986. Under that Act, chief officers of police may impose conditions on assemblies and public processions to prevent serious public disorder, serious damage to property, or serious disruption to the life of the community. The directions can relate to the duration, location and size of any demonstration. If the police assess that a march will cause serious public disorder, despite conditions being set, they can apply to the local council for an order prohibiting the holding of a public procession for a period of up to three months. The council must obtain the consent of the Home Secretary before making a banning order. In the London area, the Metropolitan Police Commissioner would need to apply to the Home Secretary for consent to ban the march.
The police must not prevent, hinder or restrict peaceful assembly, except to the extent allowed by Article 11(2) of the ECHR. They must not impose unreasonable, indirect restrictions on persons exercising their rights to peaceful assembly, such as imposing a condition on the location of a protest which effectively negates the purpose of the protest. Pre-emptive measures taken by the police which restrict the exercise of the right to peaceful assembly will be subject to particular scrutiny. In certain circumstances, the police have a duty to take reasonable steps to protect those who want to exercise their rights peacefully. This applies where there is a threat of disruption or disorder from others. This does not mean that there is an absolute duty to protect those who want to protest, but the police must take reasonable measures in particular circumstances.
Following debate in Committee in the House of Commons, my colleague the Security Minister undertook to consider amendments designed to prevent charges being levied on the organisers of a public procession or assembly, should an anti-terrorism traffic regulation order be required to protect such an event. The Government brought forward an amendment to Clause 15 to achieve this, so as not to restrict the right to peaceful protest, as we believe that people should not be charged to exercise these fundamental human rights.
Prior to introduction of the Bill in the House of Commons, the Home Secretary made a statement that in his view the provisions of the Bill are compatible with the European Convention on Human Rights—a view which my noble friend shared when the Bill was introduced to this House. Given all this, and the scrutiny the Bill has received during its passage through both Houses and by the Joint Committee on Human Rights and the Constitution Committee, I am not persuaded that the consultation exercise envisaged by Amendment 62 is necessary.
I hope that, with that somewhat lengthy explanation, and having had this opportunity to debate this important topic, the noble Baroness will be content to withdraw her amendment for the time being.
Amendment 62 withdrawn.
63: After Clause 21, insert the following new Clause—
“Access to a solicitor
(1) Schedule 8 to the Terrorism Act 2000 is amended as follows.(2) In paragraph 7(1) leave out “paragraphs 8 and 9” and insert “paragraph 8”.(3) In paragraph 7A—(a) leave out sub-paragraph (3);(b) in sub-paragraph (6) leave out from second “would” to the end and insert “create an immediate risk of physical injury to any person”;(c) in sub-paragraph (7) at the end insert “provided the consultation is in private”;(d) leave out sub-paragraph (8).(4) Leave out paragraph 9.”
My Lords, this amendment is also in the name of my noble friend Lord Paddick and the noble Lords, Lord Rosser and Lord Kennedy of Southwark. It would amend Schedule 8 to the Terrorism Act to protect the right of a person detained or questioned under Section 41—on suspicion of being a terrorist—or Schedule 7 of that Act, which is concerned with questioning at ports and borders, to consult a solicitor and to do so without delay and in private.
The first and third parts of our amendment, in proposed new subsections (2) and (4), would amend paragraph 7(1) and omit paragraph 9 of Schedule 8. Paragraph 7(1) presently provides, subject to two exceptions to which I will turn in a moment, that a person so detained,
“shall be entitled, if he so requests, to consult a solicitor as soon as is reasonably practicable, privately and at any time”.
The two exceptions to the entitlement under paragraph 7(1) are, first, the power to delay a consultation with a solicitor. Under paragraph 8, an officer of the rank of superintendent or higher may authorise a delay in permitting the detained person to consult a solicitor in certain prescribed circumstances; the second is a restriction on the right to consult in private, which we suggest is central to the right to confidential advice. Under paragraph 9(1), a direction by a police officer of the rank of commander or assistant chief constable or above may in certain circumstances provide that a detained person who wishes to consult a solicitor may only do so,
“in the sight and hearing of a qualified officer”.
The specified circumstances for the application of both exceptions are—I paraphrase—where the lack of such a direction may lead to any of a number of risks. They include damage to evidence of a serious offence, interference with or physical injury to any person, alerting other suspects, hindering the recovery of property obtained as a result of a serious offence, hindering information gathering or investigation, alerting someone to an investigation so as to make it more difficult to prevent an act of terrorism, and alerting someone so as to make it more difficult to apprehend, prosecute or convict a person of the commission, preparation or instigation of an act of terrorism.
Our amendment would, significantly, leave the exception under paragraph 8 relating to the power to delay a consultation in the specified circumstances but would remove the exception under paragraph 9—that is, the denial of the right to a consultation in private. We are clear in our view that it is fundamental to the right to consult a solicitor that the consultation should indeed be in private. The Joint Committee on Human Rights considered this question in its second report. It said in the section on access to a lawyer, in respect of Schedule 3 to this Bill, at paragraph 55 and 56:
“In some cases, the detainee may only consult a solicitor in the sight and hearing of a ‘qualified officer’. The Government explains that this restriction exists to disrupt and deter a detainee who seeks to use their legal privilege to pass on instructions to a third party, either through intimidating their solicitor or passing on a coded message … We recognise these concerns, but consider that there are more proportionate ways of mitigating these risks, such as pre-approval of vetted panels of lawyers. We suggest further consideration be given to alternative options so that timely and confidential legal advice can be given to all persons stopped and detained under these powers”.
It is profoundly regrettable that the Government seem to have fallen into a habit of cavalier disregard of the recommendations of that very distinguished and largely consensual cross-party committee of both Houses. I echo the regret expressed by my noble friend Lady Hamwee at Second Reading at some of the disparaging remarks made by the Security Minister Ben Wallace MP in the House of Commons about that committee. In objecting to the proposals in the Bill on this point, the Law Society said:
“Legal professional privilege … is a cornerstone of the constitution and the rule of law in this country. It guarantees that individuals can consult a legal representative in confidence, underpinning the right to a fair trial and access to justice. This privilege belongs to clients not lawyers. Not only is legal privilege central to the protection of the rights of individuals, the ability to access a fair and efficient legal system is the reason why our law and jurisdiction are used throughout the world”.
The second part of our amendment in sub-paragraph (3) would amend paragraph 7(a) of Schedule 8 to the Terrorism Act, which prevents questioning of a person detained at ports or borders,
“until the person has consulted a solicitor (or no longer wishes to do so)”.
That consultation must generally be a consultation in person. These protections are subject to two exceptions. The first is that the entitlement to consult a solicitor does not apply if,
“the examining officer reasonably believes that postponing the questioning until”,
a solicitor has been consulted,
“would be likely to prejudice determination”,
of the matters under investigation. The second is that the consultation need not be in person if,
“the examining officer reasonably believes that the time it would take to consult a solicitor in person would be likely to prejudice”,
Our amendment would remove the exception for reasonable suspicion that consulting a solicitor might risk the determination of the matters under investigation. It is far too easy for an officer to come to that view, and the right to consult a solicitor is too fundamental to natural justice, to allow a suspicion of possible prejudice to an investigation to displace it. One must remember that this paragraph is concerned only with questioning at ports and borders where no suspicion of terrorism is necessary. It is not an investigation under Section 41, where there is suspicion of terrorism.
In relation to the right for a consultation to be in person, our amendment would remove the general and very broad exception for likely prejudice to the investigation but would permit an exception in a more limited class of case where the examining officer reasonably believes that the delay involved in arranging a personal consultation would create an immediate risk of physical injury to any person.
Finally, in relation to this amendment, the exception to the right to a consultation in person permits the examining officer in a case where the exception applies to require the consultation to take place in another way. Our amendment would add the proviso that such a requirement must ensure that the consultation will be in private.
Before closing, I add my support to Amendments 83 to 88 in this group in the names of my noble friends Lord Paddick and Lady Hamwee, and the noble Lords, Lord Rosser and Lord Kennedy of Southwark. These amendments intend to protect the right of a person detained under Schedule 3 at a port or border area. They are recommended in exact terms by the Joint Committee on Human Rights and I repeat my observations about the respect that ought to be accorded to that committee’s recommendations. We should always remember when considering counterterrorism legislation that a central aim of it is to defend our democracy. Human rights, including the right to take timely and confidential legal advice, are fundamental to our democracy and should be limited only where the case is overwhelming. That is one of the reasons why we have a Joint Committee on Human Rights, otherwise the terrorists gain what they wish.
My noble friend Lady Hamwee will explain these amendments in more detail. Amendment 83 would confer a right on detained persons to be informed of their right to consult a solicitor when first detained. Amendment 84 would remove the right to delay a consultation with a solicitor. Amendment 85 would remove the exception to the right to have a consultation with a solicitor in private in circumstances parallel to those that apply under the Terrorism Act by committing consultations in the sight and hearing of a qualified officer. Amendment 86, as an alternative, would substitute a consultation in the sight of a qualified officer but not in his or her hearing.
We firmly suggest that the Government place a higher value on the importance to human rights of timely access to confidential legal advice from a solicitor in person. The restrictions in the Terrorism Act and in this Bill are disproportionate and should, I suggest, be amended in the ways we propose. I beg to move.
My Lords, my noble friend’s curtain-raiser has covered a great deal of the ground. I will speak to Amendments 83, 84, 85, 87 and 88, which come from the Joint Committee on Human Rights and seek to ensure that, under Schedule 3 to the Bill, detainees are informed of their rights and provided with timely and confidential legal advice in all four jurisdictions. It is because there is more than one jurisdiction that there are a number of amendments.
We are concerned that the safeguard of access to a lawyer is not adequately protected under this Bill. In particular, it is not clear that an individual will even be informed of his right to request access—apparently, this is available only on request. Access to a lawyer may not be available when a person is questioned initially; it may be delayed. In our view, it is not sufficient to rely on a code of practice in this area. The legislation should be adequate in itself and, as regards access, unqualified or very close to unqualified. I will come to that in a moment.
The Government told the committee that a code of practice would make clear that permission to seek legal advice should be permitted when “reasonably practicable” and that the,
“restrictions are to mitigate against the possibility of an examination being obstructed or frustrated as a result of a detainee using his right to a solicitor”.
Leaving aside whether we should accept the second point—and I do not think I do—it is my view that the two statements are barely consistent or compatible.
My noble friend quoted the Government’s response that legal privilege might be used to pass on instructions to a third party through intimidation or a coded message. These powers, or restrictions, unjustifiably interfere with the right to timely and confidential advice and therefore, ultimately, with the right to a fair trial if there is a prosecution. I make that point because the Joint Committee approaches everything from the point of view of human rights, the right to a fair trial being one. There is not in the Bill a sufficient safeguard against the arbitrary exercise of the powers.
The last time I recall there being a question on legal privilege being regarded as a problem by the Government, I sat and listened in a Minister’s office to something like a seminar with the Minister and two very senior lawyers—both Members of this House and both of whom are here this afternoon—who articulated very effectively and authoritatively what I would describe as my own queasiness about the suggestion that access to a solicitor should be restricted. They dealt very effectively with the safeguards that exist against dodgy lawyers, if I may put it like that. After all, this issue is not peculiar to this situation. As my noble friend said, there have been suggestions such as the pre-approval of vetted panels of lawyers.
I am not quite convinced—we will hear from the noble Lord, Lord Rosser—that Amendment 86, tabled by the Labour Benches, meets the Government’s points or deals with the principle, but we urge the Government to consider how a client’s fundamental human rights in this area should be protected, because there are other ways of dealing with this.
My Lords, I invite the Government to think rather carefully about this. This provision enables an individual to be stopped, detained and searched—it is true that it is not an intimate search, but it is a strip search—and his or her property to be detained. It really should be elementary that he or she should be able to speak to a lawyer of some kind within the ambit of the amendment of the noble Lord, Lord Marks, if only to be told, “Yes, they do have these powers. It would be rather a good idea for you to comply”.
My Lords, I too am concerned about the subject, and I agree with the comments that have been made. The right to confidential legal advice is fundamental to the rule of law. The right to consult a solicitor is simply pointless if it is not to take place in private—a client will not speak freely in those circumstances. Therefore, any restrictions must be necessary and proportionate. I agree with the noble Lord, Lord Marks, that it is vital to look for more proportionate means of addressing the Government’s legitimate concerns. I also agree with him that a way forward is to adopt the approach that the client ought to be able to speak freely to any solicitor unless there are reasonable grounds to believe that that solicitor will not act in accordance with his or her professional obligations. Regrettably, there have been cases of such solicitors, although they have been very few, and it seems to me entirely disproportionate to prevent access to confidential legal advice because of the misbehaviour of a few rogue solicitors. We can deal with rogue solicitors in other ways.
We too are obviously concerned about the right to access a solicitor. My name, and that of my noble friend Lord Kennedy, is attached to all the amendments in this group, but the one I wish to speak to in particular is Amendment 86. As the others do, this amendment refers to legal professional privilege and to a person’s ability to consult a lawyer in private in relation to stops at the border. As has been said, there is a power in the Bill for an officer not only to watch someone receiving legal advice but to hear that legal advice being given.
Concerns were raised by the Government when the matter was discussed in the Commons. The first argument advanced by the Government was that, rather than contacting a lawyer, a person might contact someone they wanted to notify of the fact that they had been stopped. The Government further argued that that person might notify a lawyer who would not adhere to the professional standards that we would expect and who might pass some information on. The third argument advanced was that of a lawyer inadvertently passing on a piece of information. That appears to be the guts of the Government’s argument in favour of what is in the Bill at present.
As the Minister will know, the shadow Minister for Security in the Commons put forward a proposition that there should be a panel of lawyers, properly regulated, he said, by the Solicitors Regulation Authority and the Law Society. I have subsequently found out that not necessarily all lawyers hold those organisations in complete awe, but the principle was one of having a panel of lawyers that was properly regulated. In his response in the Commons, the Minister for Security said he thought that the suggestion was a good one and promised to take it away and look at it.
I hope that, in the light of that, we will be able to make some progress on this issue and that the Minister, on behalf of the Government, will be able to indicate movement—a great deal of movement, I hope—on the Government’s part towards the objective of ensuring a right to legal advice, to access a solicitor and to do so in private.
My Lords, the provisions relating to access to a lawyer, so far as they replicate those in Schedule 7, which I understand they are intended to do, should be seen against the background of three matters.
First, the maximum period under both schedules is six hours’ detention, which was reduced from nine hours a few years ago and from much longer periods during the Troubles, when, as now, these controls could be applied to travellers between Northern Ireland and Great Britain—a long-standing example of a border down the Irish Sea. Secondly, some of these seaports and airports are remote, and stops, let alone detentions, are so unusual that it would be quite impracticable always to have a panel of lawyers on tap. Thirdly, a fact long considered obvious by the courts, and now enshrined in Clause 16, is that answers given under these compulsory powers may not be used in subsequent criminal proceedings save in the special circumstances outlined for Schedule 7 by the Supreme Court in Beghal and echoed in the Bill.
The last of those factors caused Mr Justice Collins, in the case of CC, in 2012, to doubt whether there was any value at all in the presence of a lawyer during Schedule 7 questioning, since no responsible lawyer could advise their client to break the law by remaining silent. That view was rejected by the Divisional Court in the case of Elosta, which held that:
“The solicitor does have a useful, if limited, role to play”.
The fact remains that there are differences between an examination under Schedule 3 or Schedule 7, on the one hand, and a classic police interview under caution, on the other. It is perhaps also relevant to have in mind that, unless I am mistaken—I am sure I will be corrected if I am—these equivalent powers appear not only under Schedule 7 to the Terrorism Act but under Schedule 8, where detention for much longer periods, of up to 14 days, is contemplated.
Before the Minister thinks I have become too tame, let me please make this point. The operation of any powers to delay or impose limitations on access to legal advice, if they are to continue and to be extended, must be subject to effective independent review. This will only be possible if the reasons are recorded, as is correctly provided for in Schedule 3, and if the number of occasions on which they have been used is published, so that concerned citizens are aware and the independent reviewer can investigate individual cases or draw attention to and explore the reasons for any increasing trend in the use of the powers.
The number of occasions on which access to a solicitor has been delayed for those detained under Schedule 8 is logged meticulously in Northern Ireland and published by the NIO in its annual statistics on terrorism legislation. The latest figures tell us that between 2001 and March 2018, only five persons in Northern Ireland were refused immediate access to a solicitor. However, effective review requires the equivalent figures to be available for the whole country.
I was given to understand four years ago by the Home Office—not for the first time—that this was work in progress, at least where Schedule 8 was concerned. Will the Minister undertake that the statistics relating to delayed and conditional access to a solicitor on the part of those detained under the Terrorism Act and the new hostile state activity powers will be published across the country; and will she tell us whether there is anything she can do to speed things up a bit?
My Lords, I thank noble Lords for their comments on these amendments, particularly the noble Lord, Lord Marks. I hope that by the end of my remarks, your Lordships will be more satisfied about the progress of the Bill in this area.
The amendments in this group raise the important issue of a detainee’s right to access a solicitor when detained under the ports powers in Schedule 3 to the Bill or Schedule 7 to the Terrorism Act 2000. These amendments seek to ensure that where an individual has been detained under these schedules, the examining officer must postpone questioning until the examinee has consulted a solicitor in private.
I am aware that the right to access a solicitor under these ports powers was the subject of much debate as this Bill was scrutinised in the House of Commons, as the noble Lord, Lord Rosser, pointed out. The good speeches at Second Reading in this House served as a fitting reminder that, as new threats emerge, we must continue to be steadfast in our commitment to the principles that our laws and practices are founded on.
The powers under these schedules would afford any person formally detained the right to consult a solicitor, privately, if they request to do so. In the vast majority of cases where an individual has been detained under these powers, there will be no reason to interfere with that right. In exceptional circumstances, however, there may be a need for a more senior police officer to restrict that right 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 the gathering of information; injury to another person; alerting others that they are suspected of an indictable offence; or hindering the recovery of property obtained by an indictable offence.
I have listened carefully to the debate; it is clear that there are particular concerns about the restrictions under these schedules that would allow an assistant chief constable to require the detainee to consult their solicitor within the sight and hearing of another police officer. Let me explain that the intention behind this restriction is to disrupt a detainee who seeks to exploit their right to consult a solicitor by using the solicitor as a conduit to pass on instructions to a third party, either through intimidation, willing collusion or the use of a coded message, as the noble Lord, Lord Marks, pointed out. Reasonable grounds for belief might develop where prior intelligence indicates that the individual may seek to obstruct an examination, either because they have a history of doing so or they have been trained to evade, frustrate or subvert police examinations. The officer might also witness interactions between the individual and their solicitor that alerts them to the possibility that the detainee is intimidating their solicitor.
Amendments 85, 86 and 88 and the equivalents in the new clause proposed by Amendment 63 would see these restrictions removed from Schedules 3 and 7 in their entirety. I understand the rationale for these amendments and recognise the force of the arguments that have been made in defence of the principle of lawyer-client confidentiality. At the same time, we are all here because we recognise the threat that we face from hostile state actors and terrorists and the risk of leaving loopholes to be exploited.
As alluded to by the noble Lord, Lord Rosser, during the debate on similar amendments on Report in the House of Commons, the Security Minister undertook to consider the proposal of the Opposition Front Bench to allow a senior officer, in such circumstances, to direct that the detainee use a solicitor from an approved panel—a point mentioned by the noble Lord, Lord Marks, and the noble Lord, Lord Rosser, who reiterated this same proposition in today’s debate. Such an approach may offer an acceptable way through this issue and I can undertake to give sympathetic consideration to his amendment in advance of Report.
However, I cannot be so accommodating about Amendment 84 because it would remove the power under Schedule 3 to delay a consultation between the detainee and their solicitor where a senior officer has reasonable grounds to believe that the exercise of this right will result in the consequences I have previously described. Powers for an officer to delay the communication of the fact of a person’s detention to a named person and to delay that detainee’s access to a solicitor have been enshrined in PACE for many years. These powers are therefore not novel but are familiar in the wider policing context and allow the police to delay contact with a third party or consultation with a solicitor where there are reasonably founded concerns that knowledge of the person’s detention may result in serious consequences. Removing this power of delay would undermine the ability to mitigate these risks.
I have already addressed part of Amendment 63 but let me now respond to the proposed changes to the other powers that allow an examining officer to restrict a Schedule 7 detainee’s access to a solicitor. These restrictions under Schedule 8 to the 2000 Act currently allow an examining officer to question a detainee without a consultation having first taken place with a solicitor in person. However, I must point out that this does not preclude the detainee from consulting a solicitor via another means—for example, by telephone.
These powers can be exercised only where the officer reasonably believes that to wait for the solicitor to arrive in person would prejudice the determination of the relevant matters. Amendment 63, however, would limit the availability of these restrictions to a situation where waiting for the solicitor to arrive in person could create an immediate risk of physical injury to any person. This is contrary to the intention of the powers, which were designed to mitigate the risk of a detainee using their right to consult a solicitor to obstruct and frustrate the examination and run down the short detention clock. As noble Lords will be aware and as the noble Lord, Lord Anderson, pointed out, the maximum period of examination is limited to six hours. It would not take a trained terrorist or hostile actor to work out that if they were to insist on speaking to a solicitor, in person, who happens to be located many miles away from the port where they are being examined, they have a means of significantly delaying their examination.
The current powers under Schedule 8 provide a practical solution to mitigate that risk by allowing the person to consult that solicitor over the phone. If the person refuses that alternative, or the solicitor is unavailable, the officer can continue questioning the person while they wait for the solicitor to arrive. Any decision by the officer to apply these restrictions must be clearly recorded.
Before using these restrictions, the examining officer will exhaust all other means to ensure that the detainee has been able to consult a solicitor in private, including directing them to a solicitor of the duty solicitor scheme. The changes proposed in Amendment 63 would resurrect the risks that I have described and undermine key powers for countering terrorism.
The noble Lord, Lord Anderson, asked about recording when restrictions are used in Great Britain and Northern Ireland. We will consider with our operational partners which statistics it would be appropriate to publish with regard to Schedule 3. I hope that the noble Lord is satisfied with that response and I will keep him updated.
The noble Baroness has asked whether I am satisfied with the response. As the independent reviewer, I was told four years ago that this was happening, and it was not the first time that I had been told it was happening, in relation to Schedule 8. I am sure that the Minister did not mean to backtrack on that commitment, but I would be very grateful if she felt able to give someone a bit of a push.
I was going to use the word “shove”, but I will give them a push instead, which is probably more in keeping with your Lordships’ House.
Perhaps I may move on finally to Amendments 83 and 87. I draw the attention of the Committee to the draft Schedule 3 code of practice, which I have already circulated to noble Lords. Like its equivalent for Schedule 7, the draft code is clear that a person 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. In addition, at each periodic review of the detention, the examining officer must remind the detainee of any rights that they have not yet exercised.
The Government are in complete agreement that any person detained under Schedule 3 should be informed of their rights before any further questioning takes place. It has always been the case through the exercise of Schedule 7 powers and it is why we have made it explicit in the equivalent draft code of practice for Schedule 3. While the Government are clear that the intention behind these amendments has already been satisfied through the provision of the draft code, I am now ready to consider further the merits of writing such a requirement into Schedule 3 and Schedule 8 to the Terrorism Act.
With those remarks, I hope that the noble Lord, Lord Marks, will be content to withdraw his amendment.
I am grateful to the Minister for the points that she has said she will consider. We will wait to hear the results of that consideration. I also thank all noble Lords who have spoken in the debate. Although I do not necessarily come from the same position as the noble Lord, Lord Anderson, on these amendments, he made an important point about the recording of incidents when the right of consultation with a solicitor is either delayed or restricted. Whether it is a push or a shove that is needed, it would be helpful if that could be clearly achieved.
I also make the point that while it is helpful that, in the vast majority of cases, the Government intend to ensure that the right to consult a solicitor in private in a timely and confidential manner is preserved, they should not underestimate the importance of the confidentiality of advice—a point made eloquently by the noble Lord, Lord Pannick. That is of course particularly relevant in circumstances where answering questions under these powers is compulsory. I therefore invite the Government to consider carefully, over and above the matters that the Minister has said she will consider, how far more proportionate ways of ensuring that detainees do not disrupt the purposes of their examination can be achieved without compromising confidentiality or the fundamental right to consult a solicitor. If we have that assurance—I note that the Minister is nodding in assent—I am happy to withdraw my amendment. However, it is a matter that we may well return to on Report.
Amendment 63 withdrawn.
Schedule 3: Border security
63A: Schedule 3, page 38, line 35, at end insert—
“(3A) In order to inform a decision on whether to select a person for questioning under this paragraph an officer may approach a person and ask questions for screening purposes. (3B) Screening under sub-paragraph (3A) may include, but is not limited to—(a) asking questions to establish the identity, provenance and destination of a person;(b) asking questions to establish the method of travel and purpose of travel of a person;(c) scrutiny of a person’s travel document;(d) a comparison of the holder against the image contained in the document;(e) requesting additional documents from the person relevant to screening;(f) checking personal information against records where there is no significant additional delay.(3C) It is not an offence for a person to refuse to answer questions asked for screening purposes or to refuse to otherwise engage with officers in the screening process. (3D) An officer must inform any person they approach for screening purposes that they are not obliged to answer questions or engage with the officer on the screening process.(3E) An examining officer must not exercise powers under this Schedule, with the exception of the power to approach a person for screening purposes under sub-paragraph (3A), in respect of any person unless that person has been notified that an examination under this Schedule has commenced.”
My Lords, as has been said, the Bill provides for a person to be questioned and detained under Schedule 3 powers and makes it an offence to refuse to answer questions in examinations. The draft code of guidance, which we have now seen, recognises that there may be a preliminary stage of questioning during which people may be screened before an officer chooses to officially question them under the schedule. During screening, a person is not required to answer a question they do not want to and the code of practice states that a person must be told when the screening ends and an official examination begins. The purpose of this amendment is simply to put the screening process, the right of a person not to answer questions and, equally importantly, the right of a person to be told when screening ends and questioning begins on to the face of the Bill.
The screening does not appear to be an insignificant process. The draft code of practice, which we have sought to enshrine in the amendment, sets out the kinds of questions that can be asked and the issues that can be raised during the screening process. It states that there is no requirement for officers to keep a record of a screening interaction unless the person is subsequently selected for a Schedule 3 examination. There will be circumstances in which there is a requirement to make a record of a screening interaction. Indeed, it also says that while the screening of persons should take only a few minutes—I do not know what “a few minutes” is in this context—it states:
“If it appears that this period will take significantly longer, the examining officer must conclude the screening process and either commence a Schedule 3 examination or notify the person that they have no further questions”.
Again, in a situation where they run out of time and decide to commence a Schedule 3 examination, a record of the screening interaction must be made.
It is not clear to us at the moment why no reference to this process has appeared in the Bill. One purpose of the amendment is to get an answer to that question since it would appear to be a part of the process under Schedule 3, which we have been discussing. I beg to move.
My Lords, for every person who is subject to a Schedule 7 examination, as I often used to report, some 10 to 20 others are asked light-touch screening questions on a consensual basis, as a result of which it is determined that a Schedule 7 examination is not necessary. The prevalence of screening questions may explain the discrepancy between the low and rapidly declining incidence of Schedule 7 examinations, on the one hand—I think they are running at around a quarter of the level they were when the noble Lord, Lord Carlile, handed over the post of independent reviewer to me—and, on the other hand, the perception of some people that they are stopped on a routine basis when they travel abroad. I reported in 2016 the example of a security-cleared government lawyer with a Muslim-sounding name who had been stopped by police on each of the last five occasions that he had left the country and on the majority of occasions when he re-entered it. On each occasion, as he acknowledged, he was stopped for screening questions only. Because screening questions are not recorded, there was of course no way of alerting ports officers of the previous fruitless stops.
I agree with the noble Lord, Lord Rosser, that the parameters applicable to screening questions need to be clearly set out under Schedule 3 to the Bill, as under Schedule 7. The draft code of practice, which I thank the Minister for providing well in advance, goes a long way towards doing that, although I am not sure that it cracks all the old chestnuts, one of them being how, if at all, one can administer screening questions to a coachload of people who are on their way to a possibly troubled part of the world.
As to whether screening questions should go into statute, the noble Lord is not alone in his provisional view. Senior ports officers have said to me—as I have recorded in the past—that if screening questions appeared in Schedule 7, we would all know where we stood. Against that, one thinks of the provisions in PACE Code C relating to “voluntary interviews”, which are not enshrined in the Police and Criminal Evidence Act 1984, no doubt because of the moral and social duty, as it has been described by the courts, that every citizen has to give voluntary assistance to the police. I approach this issue with an open mind and look forward to hearing what the Minister has to say. In particular, can she tell us whether she has consulted the Investigatory Powers Commissioner, who is to have oversight of Schedule 3 and, if so, what he had to say, because I suspect that his view may help to inform mine?
My Lords, my noble friend Lord Anderson tempts me to say a few words on this matter. He is absolutely right that the number of Schedule 7 stops declined dramatically over the years, and there was a very good reason for it. When I became Independent Reviewer of Terrorism Legislation, a phrase commonly used with me was “copper’s nose”. I was extremely concerned, because—if the noble Lord, Lord Paddick, will forgive me—coppers do not always have the same-sized noses nor the same air throughput into them. Some officers started to develop them for themselves. The noble Lord, Lord Hogan-Howe, is no longer here, but some officers in Scotland Yard with what is now called SO16 demonstrated to me how they had refined copper’s nose into a series of behavioural analyses that led them to decide whether and how to ask screening questions. A whole behavioural science has built up around this; it is called behavioural analysis. It emanated from America, but it has been well used by police officers here—I have been to a number of lectures about it.
I regret that the formalisation of screening questions, as suggested in the amendment, is completely impractical. My noble friend Lord Anderson referred to a coachload of passengers. One place that I used to visit quite regularly was Dover port, where buses come through at speed. Officers go on to them and ask questions such as, “Where are you going?” or “When did you come to this country?”, usually based on a reason that they have derived from the methodology they use for the people they are questioning. Formalising this process would make it very slow and more oppressive in the minds of those asked simple screening questions. They do not mind being asked a simple question or two, but they would mind if it were done in a way that suggested that it was part of a formal police process.
The police generally do this very well. They should be left to do it as they do it. We should not over-formalise something which has evolved to a point where the people who are stopped, asked a series of questions and detained for a time, and whose attention is demanded for a time, are usually those of whom there are good reasons to ask more detailed questions.
My Lords, I accept what the noble Lord has just said, but in my reading of the amendment, which uses the phrase,
“may include, but is not limited to”,
it would not limit the sorts of questions that could be asked, but it would differentiate formally between a Schedule 7 situation and asking the simple questions as indicated in it.
Does the noble Lord really think that an examining officer getting on to a bus at Dover should walk up to a passenger and say, “I am notifying you that an examination under Schedule 7 to the Terrorism Act has been commenced. You’re not obliged to answer any questions or engage with me during this screening process. It is not an offence to refuse to engage with me in any way during this screening process. Where are you going?”? It sounds an absurdity, and it would be obstructive to the normal work of police officers under Schedule 7. Does the noble Lord not agree that, although the number of Schedule 7 stops has been reduced dramatically, there remains effectiveness in Schedule 7, which was never shown, for example, in Section 44 stop and search, which he will remember well?
My reading of the amendment is that it would differentiate between a Schedule 7 encounter, where the person is not entitled to silence and has to answer questions because they commit an offence if they do not, and the informal process that leads up to a Schedule 7 encounter.
I thank noble Lords for their points on this amendment. I start by saying to the noble Lord, Lord Anderson, that the IPC has been consulted throughout the drafting of the code.
The interactions between noble Lords probably go to the root of the amendment proposed by the noble Lord, Lord Rosser. The section on screening outlined in the Schedule 3 code, which mirrors the existing guidance for the equivalent CT powers, is there to provide ports officers with clarity on the distinction between questions that can be asked by police officers in the ordinary course of their duties with a view to deciding whether to examine someone and questions that are permissible only once a Schedule 3 examination has commenced; that is, those questions designed to elicit information to enable an officer to determine whether the person is or has been concerned in hostile activity.
We have all come across police officers as we go about our daily lives and are used to seeing them on local streets and in tourist hotspots or protecting our national infrastructure. Wherever officers are on the ground, it is reasonable to expect them to interact with the public. It is not only a reasonable expectation but a vital aspect of front-line policing.
Such interactions will vary and depend on the specific purposes. They may range from polite conversation between an officer and a member of the public to a situation where an officer wants to query why a person is acting in a certain way or why they are present in a certain place. In such circumstances, police officers do not rely on specific powers of questioning; rather, they are simply engaging members of the public during their ordinary duties, as the noble Lord, Lord Carlile, pointed out. It is no different when officers are stationed at UK ports.
It would be unusual if officers did not interact with the public in this way. It would be even more unusual if front-line officers were not able to use those interactions to determine whether any further action was needed. It is unfortunate that, in trying to clarify this distinction between what would constitute questioning or interaction during ordinary police duties and questioning that can take place only once a Schedule 3 examination has commenced, the language and intention of the code have somehow been misunderstood.
Let me be clear: what is referred to as “screening” in the draft code is not a prescribed process or procedure that ports officers must adopt before selecting a person for examination. It is a clarification of what questions can be asked, if appropriate, prior to selection for examination, as against the questions that can be asked only during an examination.
It is quite possible that a ports officer will speak to members of the public at a UK port in the course of their duties with no intention of selecting them for an examination of any kind. Of course, the person’s behaviour might lead the officer to consider use of a police power, but Amendment 63A could have the unfortunate implication that, in other contexts and absent specific statutory powers, officers are unable to talk to the public or request to see their documents in the ordinary course of their duties to determine whether they need to take the further step of invoking their legal powers. It would define such questioning as being part of the Schedule 3 examination itself, rather than something that takes place before an examination. All that said, even though I do not agree with the amendment, we will consider whether further clarity is needed in the code before formally laying it before Parliament for a debate and approval by both Houses. I hope that, with that assurance, the noble Lord will be content to withdraw his amendment.
I thank the Minister for that response and all other noble Lords who have participated in this brief debate. I am grateful to the Minister for saying, if I understood her correctly, that there will be further reflection on this issue. I accept that she has not, on behalf of the Government, accepted the amendment. I do not know whether it is the listing of potential questions that is the cause of the difficulty. If it is, one solution might simply be to make reference to the fact that there may be a screening process, without laying down specifically what the questions are that may or may not be asked as part of it, since most of the debate seems to have centred on listing the specific questions. These, of course, were lifted straight from the code of practice.
Amendment 63A withdrawn.
Amendments 64 to 65A not moved.
66: Schedule 3, page 38, line 41, leave out “hostile act” and insert “serious crime”
My Lords, this amendment goes to the purposes for which the Schedule 3 power can be used. It raises what I believe is an important point of principle, to which there may, however, be a pragmatic solution. Schedule 3, like Schedule 7, contains perhaps the most extensive police powers anywhere in the statute book, extending to questioning, with no right to silence, detention, the taking of fingerprints and DNA samples, and the downloading of mobile devices and the long-term retention of their content, all without the need for any objective or even subjective suspicion of wrongdoing. Those powers are already used under Schedule 7 by police of all ranks, at very short notice, in seaports and airports both large and small, and anywhere within a mile of the Northern Irish border. Their extraordinary strength makes it all the more important that the purpose for which the powers can be used is clearly defined and understood.
Schedule 7 is limited to the purpose of determining whether someone is a terrorist. Having learned from intelligence reports that it was in practice being extensively used also for the purpose of determining whether people were involved in proliferation or espionage, I suggested some years ago, as independent reviewer, that the reach of the power could usefully be extended to these other purposes. This would have put practice in accordance with the law, and it would have avoided the absurdity of having to pretend that David Miranda, stopped under Schedule 7 when carrying documents through Heathrow Airport stolen by Edward Snowden, might have been a terrorist, when more obvious explanations, falling outside the scope of Schedule 7, suggested themselves.
After the Salisbury incident, this suggestion found favour with the Government. Schedule 3 powers, it is proposed, may be used for counterproliferation and counterespionage, and to determine whether persons crossing the border are involved in other forms of hostile activity, such as assassination, whether or not with biological weapons. For myself, I entirely support that objective. Where I part company with the Bill is in the suggestion that these very extensive powers, memorably described by my noble friend Lord Carlile in his regular talks to the police as a Ming vase—precious and to be treated with very great care—should be used in order to determine whether a traveller has been engaged in activity which is perfectly lawful.
That is the consequence of paragraphs 1(6)(a) and 1(6)(b) of Schedule 3. National security, as is well known, is nowhere defined in legislation, or even in the draft code of practice. The concept of threats to the economic well-being of the United Kingdom is more nebulous still and as the noble Lord, Lord Paddick, said, it is not even linked in Schedule 3, as it is in other contexts, to the concept of national security, let alone to a concept as specific as the critical national infra- structure, to which the Minister referred earlier. Acts falling into these categories need not be crimes. Indeed, they need not even be carried out for or on behalf of a foreign state; it is enough that they are judged by the officer on duty to be in the interests of such a state.
It is quite true that MI5 is tasked by Section 1 of the Security Service Act 1989 with the functions of protecting national security and safeguarding the economic well-being of the United Kingdom from foreign threats. No one would quarrel with that. My unease stems from the proposal that the police be given new and very strong coercive powers, powers that intrude into civil liberties and that are not allowed to our intelligence agencies, for the purpose of determining whether persons may have acted in ways that are not contrary to the law.
I am concerned by that. The police are entrusted with executive powers for the purpose of detecting crime and enforcing the criminal law. We have a wide range of offences relating to CBRN materials, espionage, sabotage and other types of hostile state activity. If that range is insufficient, or if the sentences are too short, as the Minister indicated she thought might have been the case with some of the lesser offences under the Official Secrets Act 1989, it is open to the Government to seek change. They could change the law on official secrets or change their own definition of serious crime for the purposes of the Bill, as they apparently had no difficulty in doing in the Data Retention and Acquisition Regulations. I see the noble Lord, Lord Paddick, nodding ruefully: those regulations were considered only very recently by the House. I think that in that case the definition was reduced to 12 months, so if the issue is the sentences of only two years for lesser offences under the Official Secrets Act 1989, that is worth thinking about.
The Bill as it stands would allow these strong coercive powers to be used by any police officer for the purpose of defining whether people have acted in undefined ways that the Government may not like but have not chosen to make unlawful. I am not sure that I can think of any precedent for this, and I would be grateful if the Minister would tell me if she knows of any. In their human rights memorandum, the Government rely heavily, in relation to Schedule 3, on the majority decision of the Supreme Court in the case of Beghal on Schedule 7, but in Schedule 7 the scope of non-consensual police powers is strictly defined and limited to the detection of serious criminal activity. That is certainly not the case here.
My noble friend Lady Manningham-Buller, who I know cannot be in her place at the moment, thought that the current version of the schedule could perhaps be swallowed as a temporary patch—perhaps pending the amendment of the Official Secrets Act or a change to the definition of serious crime. I am not very reassured by that. Temporary patches sometimes have a way of turning into slippery slopes. I shall listen carefully to the Minister, but I wanted to signal by this amendment that I am troubled.
I support this amendment, as I have supported every one of my noble friend Lord Anderson’s amendments to the Bill. Every time he has spoken during our debates and said things that are agreeable to the Government, he is wise and elegant—I cannot think of all the many complimentary adjectives that have rightly been paid to him. When he raises a point with which the Government do not agree, can they please reflect that he is wise, elegant and so on and so forth, so that his submissions to the Government are taken with the seriousness they merit? I entirely support the noble Lord’s expressions of anxiety about the breadth of this provision. If I may say so, we could make life much easier for everybody who has to administer it, not least the examining officer, if we just reflected on a way of amending it slightly.
I added my name to the noble Lord’s amendment. I support it. But I have listened to the debate this afternoon and I see that there are problems with it, in particular the problem raised by the noble Baroness, Lady Manningham-Buller, who, as has just been said, is not now in her place. But we really could turn sub- paragraphs (6) and (7) into a much simpler piece of legislation by saying that an act is a hostile act if it is an act of serious crime and then at sub-paragraph (7)(d) defining serious crime—I know it is defined differently in different parts of terrorism legislation, but this is a new power, in effect producing a new scheme and a new way of administering it—if on conviction the offender would be liable to a term of imprisonment of two years. That, I think, would cover all the various matters raised earlier by the noble Baroness, Lady Manningham-Buller, and it might make life much easier for everybody.
I share the concern about the breadth of the definition of “hostile act” as covering acts which threaten “national security” or,
“the economic well-being of the United Kingdom”.
These concepts are vague to the point of absurdity. No doubt some people would say that the Prime Minister’s Brexit deal threatens the economic well-being of the United Kingdom. I would not share that view, but some people might. Because of the vagueness of these concepts, they would inevitably confer extensive discretionary powers, which are inimical to the rule of law. Because they are so vague, they would inevitably also inhibit perfectly lawful activities.
My Lords, I do not want to add to the comments that I made in the debate on whether Clause 21 and Schedule 3 should stand part of the Bill, which echoed the comments of other noble, and noble and learned, Lords.
As the noble Lord, Lord Anderson of Ipswich, has said, regulations that we recently considered that were made under the Investigatory Powers Act radically redefined “serious crime” to mean offences which carry a minimum sentence of 12 months’ imprisonment but also all offences involving communication or the invasion of privacy. The Government are quite capable of redefining—and in fact have redefined—serious crime to fit more precisely the powers referred to in different pieces of legislation, even regulations made under a piece of legislation in which the definition of serious crime is different. So I do not agree with the noble Baroness, Lady Manningham-Buller, who mentioned earlier that it would not capture Official Secrets Act offences, because the Government, as has been suggested, can change, have changed and could change the definition of serious crime in relation to Schedule 3 powers.
I will be very brief indeed. We will listen with interest to what the Government have to say in response to the amendment moved by the noble Lord, Lord Anderson of Ipswich, but—obviously, subject to what the Government say—it seems to us to have considerable merit.
My Lords, I echo the words of the noble and learned Lord, Lord Judge: the noble Lord, Lord Anderson, is indeed wise and elegant in his words. As the noble Lord has explained, this group of amendments deals with the definition of “hostile act” in Schedule 3.
It is important to emphasise that the design of any new power should be specific to the threat it is seeking to mitigate. The scope of this power has been designed to do just that; namely, to mitigate the known threats from hostile state activity. The danger of these amendments, therefore, is that they will limit the scope of the power, thereby limiting the range of threats that it has been designed to combat.
For the benefit of the Committee, the ports powers under Schedule 3 will be used by examining officers at UK ports or the border area,
“for the purpose of determining whether the person appears to be a person who is, or has been, engaged in hostile activity”.
A person is engaged in hostile activity if they are,
“concerned in the commission, preparation or instigation of a hostile act that is or may be … carried out for, or on behalf of, a State other than the United Kingdom, or … otherwise in the interests of a State other than the United Kingdom”.
Under this schedule, a hostile act is defined as an act that,
“threatens national security … threatens the economic well-being of the United Kingdom, or … is an act of serious crime”.
By replacing “hostile act” with “serious crime”, these amendments would significantly narrow the range of hostile activity that these powers are designed to counter. It would undoubtedly limit the ability of our ports officers to detect, disrupt and deter hostile actors. Serious crime is defined in the Bill as being an offence which could reasonably be expected to result in,
“imprisonment for a term of 3 years or more, or … the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose”.
Some of the activities which I believe noble Lords would expect to be captured through these new powers would not fall within the scope of the truncated definition of hostile activity. As the noble Baroness, Lady Manningham-Buller, explained earlier, some offences under the Official Secrets Act 1989 attract a maximum penalty of only two years’ imprisonment and may not involve the use of violence, result in financial gain or involve a large number of people acting in pursuit of a common purpose. Consequently, an examining officer would not be able to exercise Schedule 3 powers for the purpose of detecting, disrupting or deterring this type of hostile activity even if the activity threatens national security or could be prosecuted for offences under the Official Secrets Act. This is simply not acceptable.
There may even be occasions when we have intelligence to suggest that a person linked to hostile state activity is travelling to the UK for a hostile purpose but the intelligence we have is incomplete and the nature of the hostile purpose cannot be determined; therefore, we cannot assess whether the purpose is linked to a serious crime. In this circumstance, it would be very important to have a power to stop and examine them at the port to establish the nature of the hostile act.
As noble Lords will know, following the appalling acts in Salisbury, the Government are undertaking a review of legislation to combat hostile state activity. Hostile activity, by its very nature, is often covert and undertaken by foreign intelligence officers or their agents seeking to acquire sensitive information to gain an advantage over the United Kingdom and undermine our national security. On occasions this activity may not be considered criminal under the law as it stands; for example, if a foreign intelligence officer intended to travel to the UK to maintain or build a relationship with employees contracted to work on UK defence projects with the aim of acquiring sensitive information, this may not be a crime but it would be imperative to detect and disrupt this activity at the earliest opportunity, before irreversible damage to our national security occurred.
It is entirely plausible that a hostile actor should want to visit the UK in order to collect classified documents from an agent who had committed acts of espionage on their behalf. It is not a crime for the hostile actor to receive these documents and leave the country but, although the individual has not committed a crime, a Schedule 3 examination would enable an examining officer to make a determination as to whether they have been engaged in a hostile act. An examination would also allow the examining officer to remove the classified documents from the hostile actor, preventing the disclosure of potentially damaging information.
Even though the purpose of a Schedule 3 examination is to make a determination as to whether the actor has been engaged in a hostile act, exercise of the power may provide a number of secondary benefits. In instances such as the example I have just talked about, it would provide the first leads into an investigation to detect who the agent is—if we did not already know—and prevent the documents from ever being disclosed. These investigations may or may not lead to future prosecutions. It is therefore right to give the police the power to investigate hostile state activity, even at a preliminary stage before we have reasonable suspicion that a foreign intelligence officer has committed an offence. I know that noble Lords do not really think that the police should not have the power to stop someone who is from, or acting on behalf of, a foreign intelligence service as they enter or leave the United Kingdom.
If we were to accept these amendments, traditional behaviours undertaken by hostile states which have the potential to have such a detrimental effect would fall out of scope of the power and we would not be able to detect, disrupt or deter them. I put it to noble Lords that such activity should not go unchallenged. The definition of “hostile act” is necessarily broad to ensure that the powers capture the full range of activities which hostile actors engage in. We recognise the concerns that have been raised and I reassure the Committee that these were considered in the drafting of Schedule 3. This is why we have explicitly restricted the definition to an act that is carried out for, or on behalf of, or otherwise in the interests of, a state other than the United Kingdom.
I also recognise the concerns about the term,
“economic well-being of the United Kingdom”.
As has been pointed out, there may be instances where an act undertaken by a hostile state actor threatens that economic well-being yet does not threaten our national security; it is also true for acts of serious crime. Economic well-being, like national security, is a term already used in UK legislation. The intention of this limb of the definition is to ensure that these powers can be used to mitigate hostile acts which could damage the country’s critical infrastructure or disrupt energy supplies to the UK. For example, if an employee in the banking sector of the City of London discovered a serious vulnerability in computer networks and shared this information with a hostile state, it would drastically undermine confidence in the City of London and cost the UK economy millions, if not billions.
I hope that with these explanations, the noble Lord will feel content to withdraw his amendment.
My Lords, I am grateful to the Minister and to all noble Lords who contributed to this debate, including the noble Baroness, Lady Manningham-Buller, who made her remarks earlier.
I asked the Minister whether she could give another example of the police being given strong, coercive powers for the purpose of determining whether people are acting in a way which may be undesirable but which is perfectly lawful under the law of the land. I do not think that I had an answer and, if there is no answer, I would suggest that the Bill as written constitutes a new and very dangerous departure. That is the point of principle behind this amendment and, with great respect to the Minister, she did not address it in her reply. I hope that the Minister will consider this carefully because my concerns, as she has heard, are shared by lawyers far more distinguished than I—and not only by lawyers.
As to the pragmatic solution, the Minister has heard suggestions as to how the scope of this power could be reduced in a way that achieves its objectives in a manner more consistent with the principle of legality. I hope that she will deliberate further on those suggestions. I would be more than happy to discuss them with her but, in the meantime, I beg leave to withdraw the amendment.
Amendment 66 withdrawn.
Amendment 67 not moved.
67ZA: Schedule 3, page 39, line 7, at end insert—
“( ) The Investigatory Powers Commissioner (“the Commissioner”) must be informed when a person is stopped under the provisions of this paragraph.( ) The Commissioner must make an annual report on the use of powers under this paragraph in the border area.”
As has been said on more than one occasion, Schedule 3 deals with border security and the power to stop, question and detain and states:
“An examining officer may question a person for the purpose of determining whether the person appears to be a person who is, or has been, engaged in hostile activity”.
It goes on to say:
“An examining officer may exercise the powers … whether or not there are grounds for suspecting that a person is or has been engaged in hostile activity”.
There does not need to be reasonable suspicion. That is a very considerable power and safeguards are needed to ensure that it is used in a necessary and proportionate manner. Amendment 67ZA seeks to have such a safeguard in relation to this power by providing that the Investigatory Powers Commissioner,
“must be informed when a person is stopped”,
“make an annual report on the use of”,
In the schedule, there is provision for the Investigatory Powers Commissioner to keep under review the operation of the many provisions in the schedule and make an annual report to the Secretary of State about the outcome of the review. In the Commons, the Government were asked whether in carrying out the review process and producing the report—under Part 6 of Schedule 3 —the commissioner would be aware of every stop that had taken place. Our amendment provides that the commissioner must be informed of such stops. The initial reply from the Minister in the Commons was “Yes”, but he then went on to say:
“Although the commissioner will not be informed every time someone is stopped, the numbers will all be recorded, and he will have the power … to investigate those stops while doing the review”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 5/7/18; col. 190.]
That appears to be a qualification of the initial answer of yes. The information that the commissioner will get is the numbers—perhaps total numbers—but that may apparently be some time after individuals have been stopped.
This amendment provides that the commissioner must be informed when a person is stopped. Will the Investigatory Powers Commissioner be informed when people are stopped, questioned and detained or only given numbers at a frequency that is unstated? Will the commissioner be told why people have been stopped, questioned and detained, or will he or she have to inquire about that when given overall numbers at some later stage?
As I understand it, the Government’s argument appears to have been that the Terrorism Act 2000 powers on counterterrorism have been used to stop, question and detain people where there is an issue of potential hostile activity, and that the Bill simply regularises what is already happening. If I have understood the Government’s argument, does that mean that they expect no increase in the number of people being stopped, questioned and detained at our borders, particularly at the sensitive border in Ireland between north and south? One could put that interpretation on it, if it is correct that the Government are saying that the Bill simply regularises something that has been happening under the powers in the Terrorism Act 2000. But if not, and the Government expect an increase in the numbers of people being stopped as a result of this provision, on what scale is that increase expected to be? I beg to move.
My Lords, I was not clear whether the noble Lord, Lord Rosser, was using this amendment to seek more information, but we wonder about the operational practicality of its first paragraph. It suggests that if the commissioner is informed of a particular stop, they would have some power or role to respond. More important are the points implicit in what the noble Lord said about keeping records or data. In another context, the noble Lord, Lord Anderson, used the term “meticulous” about keeping records in Northern Ireland, and reference was made to using them as the basis for review of practice. That is very important and although we have hesitations about the amendment’s first paragraph, what has prompted it is important.
As the noble Lord, Lord Rosser, pointed out, Amendment 67ZA would require an examining officer to notify the IPC each time a person is examined under Schedule 3 and require the commissioner to publish an annual report on the use of the powers in the Northern Ireland border area. In relation to the second part of the amendment, as the noble Lord stated, Part 6 of Schedule 3 already requires the commissioner to review the use of the powers and make an annual report.
The police will make a record of every examination conducted under Schedule 3, as they already do with Schedule 7. I reassure noble Lords that the commissioner will be afforded full access to these records on request, and to information on how the powers have been exercised. It would place an unnecessary burden on the examining officer to have to notify the commissioner each and every time a person has been examined.
Regarding concerns about how these powers will be exercised at the border in Northern Ireland, media and political commentary over the summer sought, wrongly, to conflate the introduction of this legislation with the discussions on the Irish border in the context of Brexit and concerns over the possibility of more stringent measures. The Security Minister wrote to the shadow Secretary of State for Northern Ireland on 4 October to address these concerns. I circulated a copy of that letter after Second Reading, so I will not repeat his response in full here. However, I want to reiterate that it is simply not the case that these powers will be used as an immigration control or to interfere with the right to travel within the CTA. Their application to the border area mirrors that of the analogous counterterrorism powers in Schedule 7 to the 2000 Act, which have been in operation for 18 years. In that time, we have not seen a blanket or large-scale use of these powers in the border area. In fact, the number of examinations in Northern Ireland as a whole during 2017-18 amounted to 6% of the UK total.
The Schedule 3 powers must be used only to determine a person’s involvement in hostile activity. The location and extent of their use will be informed by the threat from hostile activity and any decision to use them will be on a case-by-case basis. While the commissioner’s annual report will not provide a location breakdown of where the powers are exercised, for clear national security reasons, he will review police exercise of the powers, including their use in Northern Ireland.
The noble Lord, Lord Rosser, asked whether the Bill regularises stops that are already taking place under Schedule 7. The answer is no. Schedule 3 powers will be used only to determine whether a person is engaged in hostile activity. We have already discussed the definition of hostile activity. Its broad scope is to mitigate a range of threats. Schedule 7 is about persons engaging in terrorism.
I hope that I have been able to reassure the noble Lord, Lord Rosser, and that he will be content to withdraw his amendment.
I thank the Minister for that response and the noble Baroness, Lady Hamwee, for her contribution to this brief debate. The point I was seeking to clarify is that, as I understand it, the Government have maintained that sometimes the powers under Schedule 7 to the Terrorism Act 2000 were being used to stop people who, it might be argued, are involved in hostile activity. The point that I was trying to confirm is whether the Government feel that they are simply regularising what happened under another Act, or whether we are talking about a new group of people who may be stopped and detained. I gather from what the Minister said that we are, and that we are not talking about people who, rightly or wrongly, may have been stopped and detained under the Terrorism Act on the basis that it was counterterrorism.
I assume that the Minister is once again going to say that she is unable to respond, but are we expecting any significant increase in the number of people being stopped and detained? She said that they will be people who are not being stopped and detained at present under other powers when perhaps those powers should not have been used, and that these will be new people. Is that the situation? Is it likely to be an extensive number? She said that it would be very difficult for the commissioner to be advised every time somebody was stopped, which suggests that there will be significant numbers of people.
Mercifully for the UK public, the number of people involved in hostile state activity is low. The commissioner will have access to all the reports. We are expecting far fewer stops than under Schedule 7. I think I expressed that, but in a different way. We do not expect a plethora of new cases. The IPC can have access to all the records, but he does not have to be informed every time. He will have all the information he needs.
Amendment 67ZA withdrawn.
67A: Schedule 3, page 39, line 41, at end insert—
“( ) give the examining officer on request a sample of P’s DNA.”
My Lords, in putting down this amendment, I am not particularly concerned with what the power should be for stopping people, nor am I concerned with the way powers are used and the various matters that have been discussed about the retention of information. All I am concerned with is to make it more efficient than it appears to be under the Bill as drafted.
Paragraph 3(b) of Schedule 3 states that a person questioned under paragraph 1 or 2 must,
“give the examining officer on request either a valid passport which includes a photograph or another document which establishes P’s identity”.
It is an incredibly amateur way of doing things. Nowadays we have much better methods of establishing people’s identity. DNA is probably one of the best. It is now wholly unintrusive—you no longer have to take a blood sample or anything like that. You can simply take a swab. All I am suggesting is that the Bill should give those officers who feel it necessary to try to establish or record an identity the means of doing so in a much more certain way. This is a very limited proposal. I am merely suggesting that a tool should be included in this schedule.
My Lords, I hope I can reassure my noble friend Lord Marlesford at least in part. As he has explained, Amendment 67A would allow an examining officer, during the course of a Schedule 3 ports examination, to require a person to provide a DNA sample. This would be in addition to the powers available to these officers to request information and identity documents.
The ability to establish a person’s identity is undoubtedly an important aspect of an examination to determine whether that individual is or has been engaged in a hostile activity. I therefore highlight to my noble friend that these powers already allow for the taking of fingerprints and samples to help to ascertain a person’s identity. Paragraphs 27 and 35 currently allow for the taking of fingerprints and samples where a person has been detained. This biometric information can also be taken from the detainee without their consent but only at a police station and if authorised by a superintendent who is satisfied that it is necessary in order to assist in determining whether the detainee is or has been engaged in a hostile activity, or to ascertain the detainee’s identity.
We are satisfied that these powers, which are subject to important safeguards, are fit for purpose and achieve the right outcome. In particular, we do not consider it necessary or proportionate to confer power on examining officers to require examinees who have not been detained to provide a DNA sample. The provisions in Schedule 3 to the Bill governing the taking and retention of DNA and fingerprints mirror the long-standing provisions in Schedule 8 to the Terrorism Act 2000, which governs the taking of biometric information from those detained under Schedule 7 to that Act. The experience gained in operating the counterterrorism ports powers does not suggest that a different approach is needed here. Indeed, the police have not asked for the power envisaged in my noble friend’s amendment.
Given that, and on the basis that Schedule 3 already makes provision for the taking of fingerprints and DNA from persons detained under Schedule 3, I ask my noble friend to withdraw his amendment.
My Lords, the only difference with what I seek is that, if it is thought necessary to investigate someone—not necessarily to detain them—and establish their identity, it is sensible to have the power to take a sample that will help to do so. That is my point. Once again, I am not contradicting what the Minister says about the powers that already exist for the taking of samples from persons who have been detained. I am concerned that when, for whatever reason, it is regarded as desirable to establish someone’s identity, at the same time there should be the power to take the biometric samples required, which I am suggesting should be DNA because that is so much more certain and easy now than it ever used to be. I honestly do not quite see what the Minister’s argument is against that. Perhaps he could comment a little further on that before I withdraw the amendment.
The argument is that the police and the authorities believe they have all the powers that they need already, and that those powers enable them to detain a person, if they think it is necessary and if that decision is confirmed in the way that I described, in order to assist in determining whether the detainee has been engaged in a hostile activity or, as relevant to my noble friend’s amendment, to ascertain the detainee’s identity. If a suspicion arose about the individual’s identity, the detention process could offer a way through to enable the DNA sample to be taken.
I hoped that my noble friend would realise that what I am proposing is the use of the DNA capability in circumstances where it is not necessary—at that stage, at any rate—to detain people. This almost goes back to the point that I made on Monday on the need to have identity numbers with secure biometrics—I never envisaged that the establishment of identity should be able to be done only when someone was detained. Being detained is a much more serious matter than merely asking someone to give a method of establishing their identity. That is where I am sure that not my noble friend but perhaps the Home Office misunderstands what I am trying to say. I do not know whether my noble friend would like to say anything further.
I am grateful to my noble friend. Possibly the answer is for me to write to him after this Committee sitting. My feeling would be that to require someone who was not detained to supply a DNA sample would cross a civil liberties line that many would find uncomfortable. In my judgment, it should therefore be only for those detained—obviously you are detained only for a good reason—to be required to supply such a sample.
I agree with the Minister on the civil liberties issue. The other problem is that taking a DNA sample would assist in identifying who the individual was only if that person’s DNA had already been taken and was on the database. I do not think we have many Russian spies’ DNA that we would then be able to use to identify that they were hostile actors by taking a DNA sample from them. It is only a small proportion of the UK population who have been arrested and convicted and whose DNA would therefore appear on the database. So, in addition to the infringement of civil liberties of completely innocent people having to provide DNA samples, the proposed measure would be of limited benefit because of the limited nature of the existing DNA database against which the DNA sample could be compared.
I support the Minister and the noble Lord, Lord Paddick. It is quite rare for me to agree with the noble Earl so I thought I would take this opportunity to do so. More importantly, there would be widespread condemnation of this particular move; it would be deeply unpopular. It would be hard enough getting ID card legislation through without a lot of resistance, and this idea would be even tougher.
I have listened to what people have said. I think the Minister made the important point here: we still have a hang-up about DNA samples. I agree that perception is what matters, and it may be that I am slightly ahead of public perception, but I do not see any difference between being asked to give a DNA sample for identification and almost any other method of doing so. If it involved taking blood or something then that would be another matter, but nowadays DNA can be taken by a simple swab. It is self-evident that if you do not have matching DNA then that does not take you very far, but there would be many circumstances in which, having suspected someone, having their DNA might at some stage be useful. I do not accept the general point that there is something sinister about DNA that means we should not use it; I think it should be used a great deal more than it is. Having said that, I beg leave to withdraw the amendment.
Amendment 67A withdrawn.
68: Schedule 3, page 39, line 41, at end insert—
“( ) A person may refuse a request for documents or information under sub-paragraph (1) where—(a) the information or document in question consists of journalistic material within the meaning of either section 13 of the Police and Criminal Evidence Act 1984 or section 264(1) to (4) or (6) and (7) of the Investigatory Powers Act 2016; or(b) the information or document in question is subject to legal privilege.”
My Lords, I spoke earlier in Committee about my opposition to the whole of Schedule 3. I shall now speak to my Amendments 68 and 69. I declare an interest: I have a journalist daughter and know many of her friends, and they could be very adversely affected by this part of the Bill because it is about the protection of journalistic material.
Because Schedule 3 of the Bill allows border officials to question, search and detain anyone at the border without any suspicion whatever, people carrying journalistic or legally privileged material might want to refuse to hand over that material without committing a criminal offence. Without Amendment 68, journalists and lawyers could be forced to hand over sensitive and confidential material at the border. This surely cannot be the Government’s intention in drafting the Bill, and it surely will not be Parliament’s will to allow such a scheme to become law.
Without Amendment 69, journalistic material confiscated at the border, including information about confidential sources, could be exposed in open court as evidence. This would be an enormous erosion of press freedom and the sacrosanct duty of journalists to protect their sources. It would have a chilling effect on individuals coming forward with information which is in the public interest. I have myself been approached by whistleblowers who are well aware of the severe consequences that await them. We must not add to the burden that deters people from coming forward with information about corrupt practices or wrongdoing.
As drafted, Schedule 3 would put sources in danger of losing their job, their liberty or even their life. The Government would never allow their confidential intelligence sources to be exposed in this way, and I ask the Minister to explain why journalists’ sources should be treated any differently.
Previously in Committee, the Minister declined to put specific protections in law for journalists on the basis that it was too broad a term. This is why my amendments and Amendment 71 in the name of the noble Earl, Lord Attlee, use the existing definitions in the Police and Criminal Evidence Act and the Investigatory Powers Act. I hope that this approach is more palatable to the Minister and could be adopted at Report.
I omitted to mention that the noble Earl, Lord Attlee, is unable to be here today. I said that I would say a few words on his behalf, and he said that he was sure that I could find the right ones—so let us hope that I have.
My amendments are essential to protect press freedom and the confidentiality of sources. I hope that the Minister will listen to the concerns and bring forward amendments to fix the problems highlighted. I beg to move.
We have Amendment 69A in this group. The purpose of our amendment is to provide that, where an examining officer wishes to retain an article which the owner alleges contains confidential material, the examining officer may not examine the article and must immediately send the article to the Investigatory Powers Commissioner. The commissioner must then determine whether the article contains confidential material and may then authorise the examination and retention of the article under the provisions of the Bill or return it to the examining officer if it is not confidential. This would provide for the independent oversight of confidential material, as required by the Miranda judgment.
I appreciate that what the Government propose is not in line with our amendment. However, we now have the code of practice, which states:
“If during the process of examining an article it becomes apparent to the examining officer that there are reasonable grounds for believing that the article consists of or includes items that are confidential material, the examining officer must cease examining”,
the item. It also states:
“An examining officer should take reasonable steps to review the credentials of an examinee to verify any such claim when considering whether there are reasonable grounds to believe that a specific item is confidential material”.
It would be helpful if the Minister could respond to my points, as the purpose of my amendment is primarily to find out how it is intended that the process will operate—although we would obviously be extremely grateful if the Government decided to accept the amendment. If an examining officer who reviews the credentials of an examinee feels that the credentials stand up, will they still be able to examine material which they think may be confidential? If the examinee has said that there is confidential material and the examining officer is satisfied with their credentials, is that enough to prevent the item being examined, or would the officer still be expected or able to examine an item to ascertain for themselves that it contains what appears to be confidential material?
In other words, on checking or reviewing the credentials of the examinee, if the examining officer is satisfied, does that mean that there is no question of the examining officer looking at any material that the examinee maintains is confidential, but instead they have immediately to send it to the commissioner to decide whether it should be retained?
Despite what I have just said, we are not unappreciative of the Government’s argument that an officer may not always be able to accept at face value a claim that something contains confidential material. But do the Government believe that the system now set out in the Bill and the code of practice, which still involves the examining officer having sight of an article before it is passed to the commissioner, fully realises the protections that the Miranda judgment recommended? I ask that particularly as the Government have now introduced an emergency procedure so that urgent cases will not be slowed down by any system of independent oversight. We must ensure that we get these protections right and that they conform with the Miranda judgment.
There appears to be no protection for confidential journalistic material, for example, if an examining officer looks at a notebook containing names and contact details of confidential sources as part of assessing whether there is confidential material. In that situation, an examining officer cannot unremember what they have seen. So the intended system does not mean that confidential material will not be seen by the examining officer. If the Government are satisfied with the credentials of the person being examined, nevertheless, the officer can proceed to check material which that individual claims is confidential. They do not have to apply straight away without looking at it to the commissioner to get the commissioner’s approval for retention and examination.
It would be helpful if the Government could clarify that point. I think I know the answer already; nevertheless, it would be helpful if the Government could clarify it. Also, could they clarify that what they are proposing meets the requirements of the Miranda judgment?
My Lords, briefly, I agree in principle with the intention behind the amendments, at least on confidential journalistic material and material that is subject to legal privilege. However, I recognise the dilemma of how you determine whether it is confidential information unless you just take the person’s word for it. Clearly, if you just accepted the person’s word that the matter was confidential, anybody could get away with not handing over documents. I do not think that Amendment 69A could work in practice in real time, but there is a real problem here that needs an explanation and some reassurance.
My Lords, I hope that I can reassure noble Lords with my explanation, but I thank those who have raised their concerns about the use of Schedule 3 powers to compel a journalist to reveal their material, including confidential material.
In drafting the Bill, we have been alive to such concerns and at pains to ensure that adequate safeguards, which I think noble Lords are talking about, are in place to protect confidential material, including confidential journalistic material. As the noble Lord, Lord Rosser, pointed out, the new retention powers in respect of confidential information require the authorisation of the Investigatory Powers Commissioner, who has to be satisfied that certain conditions are met before granting that authorisation.
In earlier debates on the powers under Schedule 3, I explained that a number of foreign powers and hostile actors are becoming even more bold and inventive in their methods. For example, as I outlined earlier, intelligence officers and their agents actively use the cover of certain professions, including journalism, the law and others. To ensure that our police officers are equipped to detect, disrupt and deter such activity, it is critical that they are able to retain, copy and examine documents or other articles that may include confidential journalistic or legally privileged material. That is why Schedule 3 introduces new powers and mechanisms to allow for such action to be taken where the article, which may include confidential material, could be used in connection with a hostile act or to prevent death or significant injury.
I recognise that the protection of journalistic material held by any individual examined under ports powers is a sensitive matter and one where we clearly need to get the safeguards in the Bill right. I want to be clear that the powers in Schedule 3 are not intended to disrupt or impede the vital work of journalists in any way. Journalistic freedoms of speech and expression are the absolute cornerstone of our democracy, which should be protected in the exercise of any police powers. The provisions in the Bill, however, are aimed at those who seek to abuse our legal frameworks to put our national security at risk and who are often trained to do so.
Amendment 68 would allow a person to refuse a request for documents or information where the information or documents in question consist of journalistic material, as defined by the Police and Criminal Evidence Act and the Investigatory Powers Act, or are subject to legal privilege. In practice, this would prohibit the examining officer from verifying that the material in question was confidential and would require the officer to take the examinee at their word. Amendment 69A is similar and, while it does not quite go as far as allowing a person to refuse to provide requested documents or information, it would prohibit an examining officer from verifying that that material was confidential. Instead, it would be for the IPC to determine the question.
Restricting powers in this way would be problematic, particularly where the examinee is a trained hostile actor. Amendment 68 would provide a ground for a person to refuse to hand over documents or information simply by claiming that the material is journalistic or legally privileged. Furthermore, it would mean that the examining officer could not seek to examine such material, where there was a need, by retaining the material and applying for IPC authorisation. Amendment 69A is also concerning, as it would impose a restriction on the examining officer such that they were unable to establish their own reasonable belief that the article consisted of confidential material. The police have a duty to protect our citizens and prevent crime. They cannot be expected to take at face value the word of someone they are examining who, in some cases, will be motivated to lie.
It is important to note that there are additional safeguards to govern the retention of property under Schedule 3 that consists of, or includes, confidential material. The IPC will authorise the retention and use of the material only if satisfied that arrangements are in place that are sufficient for ensuring that the material is retained securely, and that it will be used only so far as is necessary and proportionate for a relevant purpose—that is, in the interests of national security or the economic well-being of the United Kingdom; for the purposes of preventing or detecting serious crime; or for the purposes of preventing death or significant injury.
The Government are of the view that it is reasonable to expect that an examining officer will need to review material, to conclude one way or the other that specific items are, or include, confidential journalistic or legally privileged material. That being said, the draft Schedule 3 code of practice is clear:
“If during the process of examining an article it becomes apparent to the examining officer that there are reasonable grounds for believing that the article consists of or includes items that are confidential material, the examining officer must cease examining and not copy these items unless he or she believes there are grounds to retain it under either paragraph 11(2)(d) or (e)”.
The provisions in paragraph 11 of Schedule 3 contain the retention powers involving oversight by the IPC and the safeguards that I described earlier. I acknowledge that handling confidential material requires vigilance and discretion to safeguard it against unnecessary examination or retention, which is why the mechanisms under paragraphs 12, 13 and 15 of Schedule 3 in relation to these retention powers require prior authorisation of the IPC to be sought, save in exceptional circumstances, before an examining officer is able to examine such material.
We are therefore confident that the safeguards provided for in Schedule 3 and the associated draft code of practice are sufficient to protect the work and privacy of legitimate journalists and lawyers, and are consistent with the Court of Appeal’s judgment in the Schedule 7 case of Miranda that,
“independent and impartial oversight … is the natural and obvious adequate safeguard”,
in examining cases involving journalistic material.
Amendment 69 would extend this bar to information and documents where the material falls under the definition of journalistic material, as defined by the PACE and IP Acts. Such a position would go much further than safeguarding the examinee against self-incrimination. By extending the statutory bar to cover information or documents that are considered journalistic material, Amendment 69 could prevent evidence of a hostile act being used in criminal proceedings where it had been acquired through the legitimate examination of confidential material on the authorisation of the IPC. This would significantly undermine the ability of the police and the CPS to prosecute hostile actors who have used journalistic cover to disguise their criminal activities and been uncovered through the Schedule 3 examination powers.
In answer to the noble Lord, Lord Rosser, an officer can proceed to verify that material is confidential, subject to IPC authorisation, and look at confidential material, even if satisfied of the credentials of the journalist who might nevertheless be a hostile state actor.
Amendment 71 concerns the definition of “confidential material” in paragraph 12(10) of Schedule 3 and the associated protections. For the purposes of Schedule 3, confidential material adopts the definition of the IP Act. This definition covers, for example, journalistic material and communication that the sender intends the recipient to hold in confidence. As I explained, this material would fall under the definition of confidential material. It cannot be used or retained by an examining officer unless authorised by the IPC.
With those explanations—I am sorry they were so lengthy—I hope that the noble Baroness will feel happy to withdraw her amendment.
My Lords, I have listened very carefully and will reread the Minister’s arguments tomorrow. I do not feel entirely comforted. I hope that the Government feel that this has been a useful debate in terms of perhaps adjusting their position. I very much hope that that will happen. While we talk all the time about hostile actors and people who could lie, we also rely so much on the individual who is stopping them, and on their discretion and judgment. When there is so much leeway for these people, there are opportunities for wrong decisions that could impact quite heavily on some people. I beg leave to withdraw my amendment.
Amendment 68 withdrawn.
Amendments 69 and 69A not moved.
70: Schedule 3, page 43, line 29, at end insert “, other than an article in respect of which an authorisation is granted under paragraph 13A”
Amendment 70 agreed.
Amendment 71 not moved.
Amendments 72 to 80
72: Schedule 3, page 45, line 6, after “representations” insert “, before the end of whatever period the Commissioner may specify,”
73: Schedule 3, page 45, line 8, at end insert “before the end of that period”
74: Schedule 3, page 45, line 15, leave out from “constable” to end of line 21 and insert “, the responsible chief officer,”
75: Schedule 3, page 45, line 23, at end insert—
“( ) In sub-paragraph (3) “responsible chief officer” means—(a) in a case where the article was taken in connection with an investigation being conducted by a police force in England and Wales, the chief officer of police of that police force;(b) in a case where the article was taken in connection with an investigation being conducted by the Police Service of Scotland, the chief constable of the Police Service of Scotland;(c) in a case where the article was taken in connection with an investigation being conducted by the Police Service of Northern Ireland, the Chief Constable of the Police Service of Northern Ireland;(d) in any other case—(i) where the examining officer is a constable of a police force in England and Wales, the chief officer of police of that police force,(ii) where the examining officer is a constable of the Police Service of Scotland, the chief constable of the Police Service of Scotland, or(iii) where the examining officer is a constable of the Police Service of Northern Ireland, the Chief Constable of the Police Service of Northern Ireland.”
76: Schedule 3, page 45, line 35, at end insert—
“( ) A requirement under this paragraph to invite representations from, or to provide information to, the person from whom an article was taken applies only so far as it is reasonably practicable to do so.”
77: Schedule 3, page 45, line 36, at end insert—
“13A(1) This paragraph applies where—(a) an article is retained by virtue of paragraph 11(2)(d) or (e), and (b) the examining officer who retained the article considers that the urgency condition is met in relation to the article.(2) The urgency condition is met in relation to an article if—(a) there is an urgent need for the article to be examined or otherwise used for the purpose of preventing—(i) the carrying out of a hostile act, or(ii) death or significant injury,or for the purpose of mitigating the risk of any such act, death or injury occurring, and(b) the time it would take for the requirements of paragraphs 12 and 13 to be complied with in relation to the article would not enable such use to take place with sufficient urgency.(3) The examining officer may apply to a senior officer for authorisation to continue to retain and use the article.(4) An application under sub-paragraph (3) in relation to an article may be made only to a senior officer who has not been directly involved in the exercise of any power under this Part of this Schedule to take the article or to question a person from whom the article was taken.(5) A senior officer may grant an authorisation under this paragraph for the retention and use of the article if satisfied—(a) that there are reasonable grounds for considering that the urgency condition is met in relation to the article, and(b) in the case of an article that consists of or includes confidential material, that— (i) arrangements are in place that are sufficient for ensuring that the material is retained securely, and(ii) the material will be used only so far as necessary and proportionate for a purpose mentioned in sub-paragraph (2)(a).(6) An authorisation under this paragraph—(a) must be recorded in writing;(b) may be granted subject to whatever conditions the senior officer thinks appropriate.(7) Paragraphs 13B and 13C contain further provision about authorisations granted under this paragraph.(8) In this paragraph—“confidential material” has the meaning given by paragraph 12(10) and (11);“senior officer” means—(a) where the examining officer is a constable, another constable of at least the rank of superintendent,(b) where the examining officer is an immigration officer, an immigration officer of a higher grade than the examining officer, and(c) where the examining officer is a customs officer, a customs officer of a higher grade than the examining officer.13B(1) If a senior officer grants an authorisation under paragraph 13A, the examining officer who applied for the authorisation must inform the Investigatory Powers Commissioner and each affected party of its grant.(2) The information required under sub-paragraph (1) must be given as soon as reasonably practicable and in any event within 24 hours after the grant of the authorisation.(3) An affected party may make representations to the Commissioner about how the Commissioner should proceed under paragraph 13C in respect of an authorisation granted under paragraph 13A.(4) Representations under sub-paragraph (3) must be made in writing no later than the end of two working days beginning with the first working day after the day on which the authorisation is granted. (5) The information provided under sub-paragraph (1) must include an explanation of the right to make representations in writing and the time by which they must be made.(6) The Commissioner must have regard to any representations received before the end of the time mentioned in sub-paragraph (4) in determining how to proceed under paragraph 13C.(7) The requirement under this paragraph to provide information to the person from whom an article was taken applies only so far as it is reasonably practicable to do so.(8) In this paragraph and paragraph 13C—“affected party” has the meaning given by paragraph 13(3);“working day” means a day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom in which the authorisation is granted.13C(1) This paragraph applies after the Investigatory Powers Commissioner has considered any representations made about an authorisation in accordance with paragraph 13B.(2) The Commissioner must—(a) approve the grant of the authorisation, or(b) cancel the authorisation.(3) A decision under sub-paragraph (2) must be made— (a) after the end of the time for making representations referred to in paragraph 13B(4), and(b) before the end of three working days beginning with the first working day after the day on which the authorisation is granted.(4) If the decision under sub-paragraph (2) is to approve the grant of the authorisation, the retention and use of the article may continue in accordance with the conditions on which the authorisation was granted (subject to any further conditions or variation of the existing conditions that the Commissioner specifies).(5) If the decision under sub-paragraph (2) is to cancel the authorisation, any further use of the article must stop as soon as possible.(6) If the Commissioner cancels the authorisation the Commissioner may direct that the article—(a) is destroyed, or(b) is returned to the person from whom it was taken,and the Commissioner may further direct that all reasonable steps are taken to secure that any information derived from the article is destroyed.(7) Sub-paragraphs (5) and (6) do not apply if the article is further retained under a power conferred by paragraph 11(2)(b) or (c).(8) The Commissioner must inform each affected party of the Commissioner’s decision under sub-paragraph (2).(9) The requirement under this paragraph to provide information to the person from whom the article was taken applies only so far as it is reasonably practicable to do so.(10) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, exercises a function under this paragraph in relation to an article, an affected party may ask the Investigatory Powers Commissioner to decide whether to approve the way in which the function was exercised.(11) Nothing in this paragraph affects the lawfulness of—(a) anything done under an authorisation before it is cancelled; (b) if anything is in the process of being done under an authorisation when it is cancelled—(i) anything done before that thing could be stopped, or(ii) anything done which it is not reasonably practicable to stop.”
78: Schedule 3, page 46, line 15, at end insert “, other than a copy in respect of which an authorisation is granted under paragraph 15B”
79: Schedule 3, page 46, line 45, leave out sub-paragraph (10)
80: Schedule 3, page 47, leave out line 4
Amendments 72 to 80 agreed.
Amendment 81 not moved.
82: Schedule 3, page 47, line 6, at end insert—
“15A(1) Before proceeding under paragraph 15 in relation to a copy, the Commissioner—(a) must invite each affected party to make representations, before the end of whatever period the Commissioner may specify, about how the Commissioner should proceed under that paragraph, and(b) must have regard to any representations made by an affected party before the end of that period. (2) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, exercises a function under paragraph 15 in relation to a copy, an affected party may ask the Investigatory Powers Commissioner to decide whether to approve the way in which the function was exercised.(3) Each of the following is an “affected party” for the purposes of this paragraph—(a) where the examining officer is a constable, the responsible chief officer,(b) the Secretary of State, and(c) the person from whom the article was taken from which the copy was made.(4) In sub-paragraph (3) “responsible chief officer” means—(a) in a case where the copy was made in connection with an investigation being conducted by a police force in England and Wales, the chief officer of police of that police force;(b) in a case where the copy was made in connection with an investigation being conducted by the Police Service of Scotland, the chief constable of the Police Service of Scotland;(c) in a case where the copy was made in connection with an investigation being conducted by the Police Service of Northern Ireland, the Chief Constable of the Police Service of Northern Ireland;(d) in any other case—(i) where the examining officer is a constable of a police force in England and Wales, the chief officer of police of that police force,(ii) where the examining officer is a constable of the Police Service of Scotland, the chief constable of the Police Service of Scotland, or(iii) where the examining officer is a constable of the Police Service of Northern Ireland, the Chief Constable of the Police Service of Northern Ireland.(5) Sub-paragraph (6) applies where—(a) a direction for the destruction of a copy is given under paragraph 15, or (b) authorisation for the retention and use of a copy is granted under that paragraph.(6) The Commissioner must inform the person from whom the article was taken from which the copy was made that—(a) a direction to destroy the copy has been given, or(b) (as the case may be) authorisation to retain and use the copy has been granted (and in this case the Commissioner must provide details of any conditions subject to which that authorisation was granted).(7) A requirement under this paragraph to invite representations from, or to provide information to, the person from whom an article was taken from which a copy was made applies only so far as it is reasonably practicable to do so.(8) Representations under sub-paragraph (1) must be made in writing.15B(1) This paragraph applies where—(a) a copy consisting of or including confidential material is retained by virtue of paragraph 14(3)(d) or (e), and(b) the examining officer who retained the copy considers that the urgency condition is met in relation to the copy.(2) The urgency condition is met in relation to a copy if—(a) there is an urgent need for the copy to be examined or otherwise used for the purpose of preventing—(i) the carrying out of a hostile act, or(ii) death or significant injury, or for the purpose of mitigating the risk of any such act, death or injury occurring, and(b) the time it would take for the requirements of paragraphs 15 and 15A to be complied with in relation to the copy would not enable such use to take place with sufficient urgency.(3) The examining officer may apply to a senior officer for authorisation to continue to retain and use the copy.(4) An application under sub-paragraph (3) in relation to a copy may be made only to a senior officer who has not been directly involved in the exercise of any power under this Part of this Schedule to make the copy or to question a person from whom the article was taken from which the copy was made.(5) A senior officer may grant an authorisation under this paragraph for the retention and use of a copy if satisfied that—(a) there are reasonable grounds for considering that the urgency condition is met in relation to the copy,(b) arrangements are in place that are sufficient for ensuring that confidential material contained in the copy is retained securely, and(c) the material will be used only so far as necessary and proportionate for a purpose mentioned in sub-paragraph (2)(a).(6) An authorisation under this paragraph—(a) must be recorded in writing;(b) may be granted subject to whatever conditions the senior officer thinks appropriate.(7) Paragraphs 15C and 15D contain further provision about authorisations granted under this paragraph.(8) In this paragraph—“confidential material” has the meaning given by paragraph 12(10) and (11);“senior officer” means—(a) where the examining officer is a constable, another constable of at least the rank of superintendent, (b) where the examining officer is an immigration officer, an immigration officer of a higher grade than the examining officer, and(c) where the examining officer is a customs officer, a customs officer of a higher grade than the examining officer.15C(1) If a senior officer grants an authorisation under paragraph 15B, the examining officer who applied for the authorisation must inform the Investigatory Powers Commissioner and each affected party of its grant.(2) The information required under sub-paragraph (1) must be given as soon as reasonably practicable and in any event within 24 hours after the grant of the authorisation.(3) An affected party may make representations to the Commissioner about how the Commissioner should proceed under paragraph 15D in respect of an authorisation granted under paragraph 15B.(4) Representations under sub-paragraph (3) must be made in writing no later than the end of two working days beginning with the first working day after the day on which the authorisation is granted.(5) The information provided under sub-paragraph (1) must include an explanation of the right to make representations in writing and the time by which they must be made.(6) The Commissioner must have regard to any representations made before the end of the time mentioned in sub-paragraph (4) in determining how to proceed under paragraph 15D.(7) The requirement under this paragraph to provide information to the person from whom an article was taken from which the copy was made applies only so far as it is reasonably practicable to do so. (8) In this paragraph and paragraph 15D—“affected party” has the meaning given by paragraph 15A(3);“working day” means a day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in the part of the United Kingdom in which the authorisation is granted.15D(1) This paragraph applies after the Investigatory Powers Commissioner has considered any representations made about an authorisation in accordance with paragraph 15C.(2) The Commissioner must—(a) approve the grant of the authorisation, or(b) cancel the authorisation.(3) A decision under sub-paragraph (2) must be made—(a) after the end of the period for making representations referred to in paragraph 15C(4), and(b) before the end of three working days beginning with the first working day after the day on which the authorisation is granted.(4) If the decision under sub-paragraph (2) is to approve the grant of the authorisation, the retention and use of the copy may continue in accordance with the conditions on which the authorisation was granted (subject to any further conditions or variation of the existing conditions that the Commissioner specifies).(5) If the decision under sub-paragraph (2) is to cancel the authorisation, any further use of the copy must stop as soon as possible.(6) If the Commissioner cancels the authorisation the Commissioner may direct that—(a) the copy is destroyed, and (b) all reasonable steps are taken to secure that any information derived from the copy is also destroyed.(7) Sub-paragraphs (5) and (6) do not apply if the copy is further retained under a power conferred by paragraph 14(3)(b) or (c).(8) The Commissioner must inform each affected party of the Commissioner’s decision under sub-paragraph (2).(9) The requirement under this paragraph to provide information to the person from whom the article was taken from which the copy was made applies only so far as it is reasonably practicable to do so.(10) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, exercises a function under this paragraph in relation to a copy, an affected party may ask the Investigatory Powers Commissioner to decide whether to approve the way in which the function was exercised.(11) Nothing in this paragraph affects the lawfulness of—(a) anything done under an authorisation before it is cancelled;(b) if anything is in the process of being done under an authorisation when it is cancelled—(i) anything done before that thing could be stopped, or(ii) anything done which it is not reasonably practicable to stop.”
Amendment 82 agreed.
Amendments 83 to 88 not moved.
Schedule 3, as amended, agreed.
Clause 22 agreed.
Schedule 4 agreed.
Clauses 23 and 24 agreed.
Clause 25: Extent
My Lords, I do not wish to detain the Committee for long on this clause, but I would like to put a couple of points on the record about the devolution implications of this Bill. Counterterrorism and national security are reserved matters in Scotland and Wales and excepted matters in Northern Ireland. Consequently, in the view of the UK Government, none of the provisions in the Bill relates to matters within the legislative competence of the Scottish Parliament, National Assembly for Wales or Northern Ireland Assembly. None the less, we recognise that there will be an impact on devolved criminal justice agencies in Scotland and Northern Ireland, and on local authorities in Scotland and Wales. Consequently, we have consulted the devolved Administrations extensively throughout the preparation of the Bill and, subsequently, during its parliamentary passage.
I am very grateful for the collaborative approach adopted by the Scottish Government and Northern Ireland Department of Justice towards this Bill, so that we can ensure that it is fit for purpose in Scotland and Northern Ireland, recognising that those parts of the UK have a criminal justice system distinct from that in England and Wales. There are two provisions in the Bill that impact on the executive competence of the Scottish Ministers, namely those relating to the power to charge for an anti-terrorism traffic regulation order in Clause 15 and the amendment to the Legal Aid (Scotland) Act 1986 in Schedule 4. I am therefore also grateful to the Scottish Government for taking forward a legislative consent Motion in relation to these provisions; the Motion is due to be debated in the Scottish Parliament later this month. With that, I beg to move that Clause 25 stand part of the Bill.
Clause 25 agreed.
Clause 26: Commencement
89: Clause 26, page 25, line 30, at beginning insert “Subject to subsection (2A), ”
My Lords, I rise to speak to Amendments 89 and 91 in my name and, in doing so, I thank the Minister for the letter that she sent to noble Lords before Committee stage began, which responded to a number of different concerns, including the points that I made at Second Reading. I am grateful for that response and will use it as my starting point in moving these amendments today. By way of introduction, it would probably help if I recapitulated my central concern, which I expressed at Second Reading and is the reason that I move these amendments.
It is absolutely right that the Government should do everything in their power to tackle the great evil that is terrorism. The events of last year must cause them to apply themselves, with even greater determination than before, to the development of really effective policy and legislation to deal with the threat that terrorism poses. Part of our response to terrorism is to say that it has no place here and to defend the British commitment to liberty and all the attendant constitutional safeguards that uphold it. In this context, it seems to me that when we cross from terrorism to extremism which is not related to terrorism, we enter very difficult territory. While I have no problem with the state intervening when someone’s values cause them either to commit a terrorist act, to glorify a terrorist act or to encourage others to engage in a terrorist act, I have the greatest difficulty with the idea of censuring extremism without a connection to terrorism.
When we start to engage extremism with no connection to terrorism, it seems to me that we enter entirely different territory. It is all so very subjective. One person’s “extreme views” could be another’s common sense, just as their common sense could seem extreme to another person. Part of the challenge of living in a free society is accommodating differences of opinion, including those that we may find, for want of a better phrase, “nutty and extreme”. I feel uncomfortable about the idea that we should start policing these thoughts.
Having reminded noble Lords of this backdrop, I turn to detailed consideration of my amendments and the Minister’s letter. As things stand, Clause 19 amends Section 36 of the Counter-Terrorism and Security Act 2015, which requires local government to seek to identify those at risk of being drawn into terrorism. Clause 19 broadens the scope of Section 36 and the point that I made at Second Reading is that Clause 19 should not be implemented until such a time as the accompanying guidance is updated to prevent policing people’s views which the state describes as extreme but which do not espouse and celebrate acts of violence. There is no basis for that reach beyond terrorism in the primary legislation.
In her response, the Minister has suggested that the Channel guidance is very clear that the point at which an intervention is made is the point at which the person concerned is indeed deemed at risk of either espousing, celebrating or committing acts of violence. There are, however, two problems. First, while the Channel guidance is clear about the point of intervention to bring someone in, it in fact ranges rather more widely. This is reflected in the references to extremism in that guidance, where there is no need for any reference to terrorism. Paragraph 51, for example, encourages the consideration of,
“indicators that an individual is engaged with an extremist group, cause or ideology”.
It goes on to say that these indicators include things such as,
“spending increasing time in the company of other suspected extremists”,
“day-to-day behaviour becoming increasingly centred around an extremist ideology, group or cause”.
It seems to me that, as currently defined, the Channel guidance mandates two forms of intervention: an intervention where there is a perceived risk that someone is in danger of being drawn into terrorism—with which I have no difficulty—and a prior intervention for the purpose of monitoring because the state does not like the views espoused, even though they have nothing to do with espousing, celebrating or committing acts of terrorism. Of course I have no difficulty with the idea of monitoring to identify when someone is at risk of being drawn into terrorism, but that must be because they are coming under the influence of those who are in some sense connected to terrorism, and not simply because they come into contact with those whose views the state deems extreme. That is a key distinction, but it is one that I am not convinced the Channel guidance currently respects.
In expressing this concern, I highlight once again the judgment in the case of Salman Butt. In her letter, the Minister suggested that Mr Justice Ouseley’s judgment in that case merely underlines and indicates the current approach of the Government in being clear that the point of intervention is when there is a risk that the person will be drawn into violence. With respect, however, Mr Justice Ouseley was underlining this distinction in response to a concern that, while on some occasions it is being respected by guidance, on other occasions it is not. Of course I fully understand that Mr Justice Ouseley’s judgment refers specifically to the Prevent guidance, but I think the same principle should be applied with respect to the Channel guidance.
This takes me to the second difficulty with the Government’s response. In her letter, the Minister suggested that the only relevant guidance at this point is the Channel guidance, inferring that other forms of guidance such as the Prevent guidance and the Counter-Extremism Strategy are simply not relevant. I do not find that argument in any way convincing. Quite apart from anything else, paragraphs 6 and 7 of section 1 of the Channel guidance relate it to Prevent and the Prevent guidance. In this context, it seems entirely possible that those discharging their duties under Section 36 of the 2015 Act will feel it entirely appropriate to allow their conduct to be impacted by the broad approaches set out in that document.
Moreover, it seems entirely reasonable to me that someone discharging their duties under Section 36 and wanting a better handle on extremism should turn to the Counter-Extremism Strategy or counterterrorism strategy for additional guidance. However, these documents completely fail to respect the crucial distinction that Mr Justice Ouseley sets out in his judgment. For example, paragraph 74 of the latest version of the counterterrorism strategy states:
“We protect the values of our society – the rule of law, individual liberty, democracy, mutual respect, tolerance and understanding of different faiths and beliefs – by tackling extremism in all its forms”.
Paragraph 124, meanwhile, references the Channel guidance and says:
“Channel is run in every local authority in England and Wales and addresses all types of extremism”.
The Counter-Extremism Strategy, meanwhile, states at paragraph 8:
“We are clear that this strategy will tackle all forms of extremism: violent and non-violent”.
These are just a few of the examples. This means that the guidance that feeds into thinking about the application of the duty to prevent people from being drawn into terrorism, or assessing the extent to which identified individuals are vulnerable to being drawn into terrorism, is broadened to cover a very broad concept of extremism where there is not always a connection to terrorism. I believe that this is simply not acceptable, and the Government need to rein in their focus away from extremism in all its forms to focus very specifically on those who espouse, celebrate or commits acts of violence or who are in danger of doing so. In making that point—and in moving this amendment—that would require the Channel guidance, the Prevent duty guidance, the counterterrorism strategy and Counter-Extremism Strategy to be updated, so that they do not transgress beyond the narrow focus on a necessary connection to violence to extremism in all its forms.
I close by quoting from the Salman Butt judgment in which Mr Justice Ouseley stated very clearly that the Prevent duty does not refer to all forms of extremism as defined in the Prevent duty guidance of 2015 and the Counter-Extremism Strategy of 2015. Mr Justice Ouseley rightly said that extremism is,
“active opposition to fundamental British values”,
“must in some respect risk drawing others into terrorism before the guidance applies to it. If there is some non-violent extremism, however intrinsically undesirable, which does not create a risk that others will be drawn into terrorism, the guidance does not apply to it”.
Thus, the Prevent duty does not apply to all forms of extremism, and specifically not to non-violent extremism if there is no risk of people being drawn into terrorism. The Prevent duty guidance should be updated so that the guidance consistently reflects this position. The other relevant guidance documents that could also have bearing on the discharging of the responsibilities defined by Section 36 of the 2015 Act, which Clause 19 amends, should be similarly updated. Moreover, these documents should also be updated to reflect the distinction that Mr Justice Ouseley has made in their application generally beyond Section 36. I beg to move.
My Lords, I congratulate the noble Baroness, Lady Howe, on bringing forward Amendments 89 and 91, which I am content to support.
Like the noble Baroness, I scrutinised the Minister’s letter, which I will come back to. The letter makes two key claims with respect to the Channel guidance. First, it states:
“The Channel Duty Guidance is clear that ‘preventing terrorism will mean challenging extremist (and non-violent) ideas that are also part of a terrorist ideology’”.
In this context, the Minister argues that the only point of intervention would be where extremist ideas are used,
“to legitimise terrorism and are shared by terrorist groups”.
In truth, however, as the noble Baroness, Lady Howe, pointed out, the guidance contains some references to extremism that are not rooted in a necessary connection to terrorism, and it thereby effectively mandates two interventions: one quite properly, where there is concern that the individual in question is being drawn into terrorism, whereas the other is effectively a monitoring intervention to monitor people whose views the state considers extreme but in relation to which there is no need for any immediate connection to terrorism. I assume that the thought is that because they have extreme views, there is a chance that they could at some point show signs of interest in terrorism, but in the absence of anything other than a vague definition of extremism, this opens the door for the state to start monitoring any views its officers decide are extreme. I find this second intervention Orwellian and illiberal.
The current legislation in Section 36 of the 2015 Act provides a clear and narrow remit that is confined to terrorism. It is completely inappropriate to issue guidance that strays into undefined views that the state or its representatives happen to find extreme, unless they are connected to espousing or celebrating terrorism.
This problem is clearly underlined by the fact that paragraph 124 of the new Counter-Terrorism Strategy, published in June, comments on the Channel programme and states:
“Channel is run in every local authority in England and Wales and addresses all types of extremism”.
That tells us all we need to know: it addresses extremism in all its forms, and thus there is no necessary connection of any sort with terrorism. I find somewhat disingenuous the suggestion from the Minister that the Channel guidance is the only guidance that will inform the approach of local government officials in discharging their responsibilities under Section 36. I completely accept that the Channel guidance has been specially developed to help local government discharge its responsibilities with respect to Section 36. It is certainly the guidance to which local authorities refer first when considering their Section 36 responsibilities. However, that does not mean that the other guidance documents to which the noble Baroness, Lady Howe, referred will not be consulted.
The fact that the Channel process is part of the Prevent strategy is spelled out for us by the Channel guidance. Paragraph 7 of Section 1 states:
“Channel forms a key part of the Prevent strategy”.
In this context it would not be at all surprising if the Prevent Duty Guidance was consulted in addition to the Channel guidance to provide a broader context as Channel is, by the guidance’s own admission, part of the Prevent strategy. On the same basis, it would not be at all surprising if a local authority in want of a better understanding of extremism also turned to the Counter-Extremism Strategy, or if a local authority in want of a better understanding of terrorism also turned to the Counter-Terrorism Strategy. This is where Justice Ouseley’s judgment becomes so important.
In her letter, the Minister said:
“The High Court in the case of Salman Butt v the Secretary of State for the Home Department, which Baroness Howe also mentioned, was clear that the Government was fully within its powers to include this form of non-violent extremism within the scope of the Prevent Duty Guidance”.
I accept that it is possible to find a good number of statements in the Prevent Duty Guidance that are consistent with this statement. Take paragraph 38, for example, which states:
“We expect local authorities to use the existing counter-terrorism local profiles … produced for every region by the police, to assess the risk of individuals being drawn into terrorism. This includes not just violent extremism but also non-violent extremism, which can create an atmosphere conducive to terrorism and can popularise views which terrorists exploit”.
However, it is also possible to find numerous references to extremism in the Prevent Duty Guidance, where no such distinction applies—for example, in paragraph 106, which states:
“Prisons should perform initial risk assessments on reception, including cell-sharing risk assessments, and initial reception and induction interviews to establish concerns in relation to any form of extremism, be that faith based, animal rights, environmental, far right, far left extremism or any new emerging trends”.
Let us now consider paragraph 109:
“Appropriate information and intelligence sharing should take place, for example with law enforcement partners, to understand whether extremism is an issue and to identify and manage any behaviours of concern”.
Again, there is plainly no necessary link to terrorism here; and let us consider paragraph 131:
“In addition PCTLs should lead the development of, for example, faith awareness or Extremism Risk Screening training of local training and staff development to supplement the Prevent awareness training. This should focus on emerging issues and any new support and interventions that become available”.
I could go on, but in some ways the most damning statement from the guidance is the glossary definition of extremism, which provides the baseline account for the term in the guidance. The glossary in the 2015 guidance, which can be located on page 21, states:
“‘Extremism’ is defined in the 2011 Prevent strategy as vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs. We also include in our definition of extremism calls for the death of members of our armed forces, whether in this country or overseas”.
Crucially, this definition does not require any connection with terrorism. The calling for the death of servicemen is not necessary to meet the definition which also does not require any other link to terrorism. It is this glossary definition of extremism that is being used to broaden the scope of the Channel and Prevent duties. The very moment these duties divert from their primary aim of addressing the risk of people being drawn into terrorism to addressing the risk of people being drawn into terrorism and extremism—where the two are contrasted they clearly are not the same—we are at risk of becoming an Orwellian state.
In this context, it is particularly concerning that, as reported by the Joint Committee on Human Rights, Dr Charlotte Heath-Kelly at the University of Warwick has warned about her concerns with local authority involvement in Prevent. She said:
“We have found that this leads healthcare professionals and Local Authority processes to enquire into incidences of dissent and illiberal political beliefs—rather than vulnerability to abuse in persons with formal care needs (the legal definition of safeguarding). For example, during our study of local authority owned Prevent work, we found cases where children had been referred to safeguarding teams for watching Arabic television, and where adults were referred for planning pilgrimage trips. While these incidents did not reach Channel, it is crucial that the select committee investigate the low level, and misguided, monitoring of religiosity and political beliefs. People have a right to their beliefs without them being interpreted and medicalized as ‘vulnerabilities’”.
I very much hope that, when the Minister responds to this debate, she will acknowledge that there are real concerns here; I hope she might be willing to meet concerned Members to discuss the matter between Committee and Report about the way the relevant guidance documents handle extremism.
I should say that there are members of the other place who would also like to attend such a meeting with the Minister. They had wanted to raise this matter through an amendment on Report but were somewhat taken aback by the fact that the day the Government announced the date for Report in another place was the very same day as the deadline for submitting amendments. This meant that the only amendments tabled on Report in another place were from the Front Benches, who knew in advance the date for Report and thus the deadline for tabling amendments to explore these issues. There was not a single Back-Bench amendment.
My Lords, I thank both the noble Lord, Lord Morrow, and the noble Baroness, Lady Howe, for explaining the amendments at length. I say at the outset that I am happy to meet with both the noble Baroness and the noble Lord in due course.
Both at Second Reading and today, the noble Baroness mentioned a number of guidance documents and strategies which she suggested had informed the decisions made by local authorities about the referral of individuals to a Channel panel. Among them, she referred to the Prevent Duty Guidance. However, this guidance is not the relevant document which will guide local authorities through this process. The Prevent Duty Guidance concerns a separate duty, the wider Prevent duty, containing Section 26 of the Counter-Terrorism and Security Act 2015. The proposal in Clause 19 instead talks of the duty of local authorities to maintain a panel to assess and provide support to people who are vulnerable to being drawn into terrorism; this is commonly known as the Channel panel. The statutory basis for these Channel panels is found in Sections 36 to 41 of the 2015 Act. This is accompanied by its own statutory guidance, issued under the power in Section 36(7), known as Channel duty guidance.
The Channel duty guidance is quite clear that,
“preventing terrorism will mean challenging extremist (and non-violent) ideas that are also part of a terrorist ideology”,
as the noble Lord and the noble Baroness pointed out. The guidance also states that the way in which vulnerability to being drawn into terrorism is to be assessed is through a “vulnerability assessment framework”, containing 22 factors that can contribute to such vulnerability. The guidance goes on to say:
“Association with organisations that are not proscribed and that espouse extremist ideology as defined in the Prevent strategy is not, on its own, reason enough to justify a referral to the Channel process”.
Given this, I am not persuaded that the provisions in Clause 19 which, as I say, relate to Channel panels and not the wider Prevent duty, call for a wholesale revision of the Channel guidance and certainly not in respect of the issues raised by the noble Baroness.
We keep the Channel guidance under review and from time to time it will need updating. But it would be quite wrong to make the revision of this guidance, or the separate Prevent guidance, a precondition of the commencement of the much-needed provisions in the Bill. As I said, I am very happy to meet the two noble Lords and, in the meantime, I ask the noble Baroness to withdraw her amendment.
My Lords, I thank the Minister for her reply although it was obviously not the one I would have hoped for. I will have to think about it in quite a lot of detail before coming to a conclusion about what should happen on Report. I also thank the noble Lord, Lord Morrow, for his contribution and for backing what I still consider to be a very important range of thoughts. As there is a need for a bit of talk before we come to any full conclusions about this, a look at diaries before Report would be good to fix a convenient time for all concerned. I beg leave to withdraw the amendment.
Amendment 89 withdrawn.
Amendments 90 and 91 not moved.
Clauses 26 and 27 agreed.
Bill reported with amendments.
Cameroon: English-speaking Minority
Question for Short Debate
My Lords, Cameroon is in the grip of a humanitarian disaster that threatens to affect it and the whole region. The anglophone communities in the country see their rights and their expectations of a prosperous and safe life trampled underfoot. The crisis has its origins in a 1961 plebiscite, which I, a child in the region at the time, recall as being of concern then to the region, to my father—a Cabinet Minister in a neighbouring country—and, significantly, to Members of this House and the other place. They saw a flawed plebiscite that posed a binary question to the English-speaking regions of Cameroon: join Nigeria or join francophone Cameroon. They were not given the choice to form their own independent state.
We live with the legacy of that plebiscite in the plight of the peoples of Cameroon to this day, the English-speaking ones in particular. The horrific figures speak for themselves: 460,000 people have been displaced; 3.3 million are in need of humanitarian assistance; and more than 450 innocent civilians have been killed—often in horrific circumstances—in the conflict in the anglophone regions, as well as countless separatist fighters and government soldiers. Only this morning, I met someone whose family member was giving assistance to a government soldier who, when he returned to the place where the soldiers had gathered, had seen the heads of four of his comrades displayed on the road. Not surprisingly, he has gone mad.
Atrocities have been committed on both sides. As we speak, people are held without trial, people have disappeared and people have been kidnapped. It is a dirty war and no one comes out of it with any credit at all. What is to be done? The answer surely has to be that we have to engage. We have heard numerous expressions of concern from Her Majesty’s Government. Concern is welcome but it is not enough. The time has come to engage with the specific purpose of inculcating a genuinely national dialogue within Cameroon designed to address these grievances. The grievances are real, continuing and some years ago now—the situation has been deteriorating over the last two or three years in particular—led lawyers and teachers to go on strike.
The protections they had secured from the original federalist solution that followed the plebiscite had been so dissipated that anglophone students were at a disadvantage when they took exams. Cases could not properly be heard in the courts because francophone judges were adjudicating on a common law of which they had no knowledge, in languages that were improperly translated. All of that led to the increasing marginalisation of the English-speaking people of Cameroon. In no other country in the world is an English-speaking minority as discriminated against and disadvantaged as it is in Cameroon. Regardless of our historical responsibilities as the holders of the mandate that led to the creation of a federal Cameroon after independence, and, equally, with the universal right of people to protection, which we are obliged to accept, how can we stand by to see English people discriminated against in this way? We hope to hear from the Government tonight the practical measures that they will take to address this issue.
We have an excellent high commissioner in Cameroon. How is he to be supported by additional resource? After all, the Government have been very clear that we have made a commitment to increase the resources available to ensure that the Foreign Office is able to guarantee the right to protection against atrocity. Are these resources to be made available to the high commission in Cameroon? It cannot follow through that guarantee on the resources currently allocated for that purpose.
On 21 and 22 November, the Anglophone General Conference will be organised by Cameroonian religious leaders. How are we, as a nation, to support that with resources? Will we encourage the Government of Cameroon to engage with religious leaders at that conference and, crucially, will we encourage the separatist movements also to engage? Innocent people are being caught between a rock and a hard place: between the separatists, who terrorise them, and the Government, who also terrorise them and at the same time fail to protect them.
I declare an interest in this concern. I chair two charities that currently work in Cameroon. The Minister of State for Africa rightly, in my view, referred to the long-standing friendship between the British people and Cameroon, and the fact that we are partners in the Commonwealth. That long-standing friendship has caused Book Aid International, previously the Countess of Ranfurly library trust, to work in both English-speaking and French-speaking Cameroon since 1962. It is a charity that trains librarians and provides books. It helped me as a little boy growing up in the Gold Coast and then Ghana by founding the first dedicated children’s library in sub-Saharan Africa. We are now no longer able to work in English-speaking Cameroon, such is the impact on education in those provinces.
Similarly, I chair the International Council of the Duke of Edinburgh’s Award. We have had a long-standing relationship with Cameroon and work closely with ministries and civil society there. However, we are no longer able to work in English-speaking Cameroon. That is the reality on the ground and something has to be done.
I shall close my remarks by allowing the people of English-speaking Cameroon to speak for themselves. One child describes how she and her family have had to take to the forest to be safe both from government troops and from the separatists. Her education has been disrupted. She has no access to what we would expect any child to have. She says, “I will not be able to go back to my village and school, which have been burnt down. The forest is now my home, though there are no schools or books here. I still have hopes to go to school and read books again”. Book Aid International has no government support—it does not ask for it. It is supported by publishers, which provide brand-new books, by ordinary British people, and, because of the difficulty of working in Cameroon at this time, by the People’s Postcode Lottery, to which I give great thanks and credit.
As a result, we have now been able to send 5,000 brand- new publisher-donated books to be distributed not as they normally are through schools and libraries but in the forests, on the roads, in the camps and in places where these displac