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

Volume 804: debated on Friday 10 July 2020

Motion to Approve

Moved by

That the draft Regulations laid before the House on 8 June be approved.

Relevant document: 19th Report from the Secondary Legislation Scrutiny Committee

My Lords, this instrument gives effect to the draft codes of practice and guidance relating to important changes to counterterrorism port examination and biometric retention powers made by the Counter-Terrorism and Border Security Act 2019, as well as new counter-hostile state activity port examination powers under that Act. It will bring into force a revised code of practice regarding functions carried out under Schedules 7 and 8 to the Terrorism Act 2000; a code of practice regarding functions carried out under Schedule 3 to the Counter-Terrorism and Border Security Act 2019; and revised guidance issued under the Protection of Freedoms Act 2012 concerning the retention of biometric data for national security purposes. I shall outline what these documents are and their significance to the operation of these important powers.

I turn first to the draft codes of practice for the port examination powers. Counterterrorism officers who currently use Schedule 7 port examination powers must do so in accordance with the relevant code of practice. While the code largely reflects the primary legislation, it also includes further procedural guidance for those exercising the powers and additional safeguards for those subject to them.

In passing the 2019 Act, the House approved amendments to the Schedule 7 powers that have necessitated changes to the code. It now reflects new provisions to pause the detention clock where a detained person requires medical treatment during the examination; to prohibit oral answers given by an examinee in response to questioning under compulsion being used as evidence in a criminal trial; and to require an examinee in detention to choose a different solicitor where there are concerns with their chosen solicitor.

A similar code was produced for the Schedule 3 powers. Noble Lords will recall considering an early draft alongside the Bill in Committee. It differs from the Schedule 7 code in two respects: first, to reflect that Schedule 3 is targeted at detecting those engaged in hostile activity, as opposed to terrorism; and secondly, to provide additional detail relating to new property seizure and retention powers, exclusive to Schedule 3, that require an examining officer to seek the authorisation of the Investigatory Powers Commissioner to retain and use a person’s property, or copies of that property.

Following passage of the 2019 Act, both codes were subject to public consultation. In response, we have strengthened safeguards for confidential material, making it clear that such material should not be accessed by front-line officers without prior judicial authorisation. We have extended these safeguards to cover material which may disclose a source of journalistic information. We have also provided further clarity on the practical operation of the new Schedule 3 retention powers. I trust that these improvements are welcome, especially to the noble Lords, Lord Rosser and Lord Kennedy, and the noble Baroness, Lady Jones of Moulsecoomb, who spoke persuasively about the need for additional safeguards in the codes. This instrument also brings into force updated guidance issued under the Protection of Freedoms Act 2012 on the making or renewing of national security determinations. NSDs allow the biometrics— that is, fingerprints and DNA profiles—of non-convicted individuals of national security interest to be retained after initial statutory retention periods have expired.

Revisions to the guidance reflect changes made by the 2019 Act and recommendations from the independent Biometrics Commissioner. The measures are intended to strengthen and support the police use of biometrics in counterterrorism investigations. The changes being made also protect civil liberties and ensure that the process remains subject to independent oversight. The changes include increasing the maximum length of an NSD from two to five years. Operational experience has shown that the previous two-year limit is too short in many cases. Those involved in terrorism will often pose a much more enduring threat than this. This extended period will strike a better balance between allowing the police to prioritise their resource and retaining appropriate safeguards and checks.

NSDs are an important national security capability. Biometric material retained using NSDs has led in the past year to the identification of individuals thought to have travelled to take part in the conflict in Syria and Iraq, provided evidence of potential terrorist offences and been matched to potential visa and asylum applications, resulting in individuals being refused entry to the UK. Following passage of the 2019 Act, we have undertaken significant consultation with key stakeholders when revising the biometrics guidance, including with the police, the devolved Administrations, the Lord Advocate and the Biometrics Commissioner.

I urge noble Lords to consider the draft codes and revised guidance favourably. It is clear that the UK faces a sustained threat from hostile state activity, and our citizens continue to be subject to heinous acts of terrorism by those intent on harming and dividing us. The provisions within this statutory instrument will support the police in their efforts to keep us safe from these threats. I commend the regulations to the House.

My Lords, I congratulate the Minister on demystifying a complex area and welcome the changes made in this statutory instrument, particularly the updating of Schedules 7 and 8 of the 2000 Act and their relationship to Section 3 of the 2019 Act. However, I want to concentrate not so much on the safeguards that my colleagues have previously raised but on the importance of the revised NSD guidance and extending the retention of biometric materials from two to five years.

The 2012 Act was a reaction to the campaign of those who rightly concentrated on civil liberties but who failed to understand how vital retaining biometric data is in safeguarding our well-being. Given that we are talking about state-sponsored terror, and in light of the examples the Minister gave concerning the Syrian conflict, this is about the protection of the nation, so updating those measures and closing the loophole in the 2014 Act must be welcomed.

It does not matter how good the updating of the NSD guidance and the processes are if we are not covering all the entry points into the country. We are talking about ports, many of which are not covered in a way that would make this border relevant. Can the Minister say something about that?

My Lords, the Schedule 7 power is enormously controversial in conferring extensive powers to stop, examine and search persons at ports without any need for evidence or reasonable suspicion. A 2012 review and the work of successive Independent Reviewers of Terrorism Legislation, including the noble Lord, Lord Carlile of Berriew, who is speaking today, and his successor, the noble Lord, Lord Anderson of Ipswich, has led to the introduction of some reforms.

The new code introduces further welcome improvements to the training of officers and the rights of persons stopped. One of these, which reflects fears of a threat to journalism such as that highlighted in the David Miranda case in 2013, is the ban on compelling a person to disclose the identity of a source of journalistic information without judicial authorisation, although that can be after the event.

Race, ethnicity and religion are barred as criteria for selection,

“except to the extent that they are used in association with considerations that relate to the threat from terrorism”,

which is a troubling criterion. There are fears that Schedule 7 stops are based on religious and racial profiling. Can the Government publish statistics on the religious affiliation of those stopped under Schedule 7, to address the accusation that it is being used predominantly and deliberately against the Muslim community?

I realise that Schedule 3 powers are not terrorism-related, but it is unfortunate that, while the Independent Reviewer of Terrorism Legislation oversees Schedule 7, it is the Investigatory Powers Commissioner who oversees Schedule 3. Is there scope for co-ordinating the reviewing? That would be helpful.

Lastly, the conditions for retention of biometrics under an NSD are too wide. The revised guidance says that chief officers should consider making an NSD for less than the maximum period of five years if they are not satisfied that retention for the full period would be necessary and proportionate. A cynic would doubt how often that will happen. Will the Government report back on the relevant statistics?

My Lords, I warmly welcome my noble friend’s words and the measures in this statutory instrument. I certainly support the changes to the Section 7 powers which were introduced in the 2019 Act. It is vital that we ensure that our citizens are protected against hostile activity. Retaining biometric data for five years rather than two years seems the minimum of what we need to do. I have a number of questions relating to this to ask my noble friend. If she does not have the answers now, perhaps she will write to me.

First, how many officers do we have engaged in this activity, how many ports are covered and how many are not covered? Secondly, what are the implications of leaving the EU and the EU security co-operation arrangements should we have no deal at the end of this year? Will my noble friend give the House an idea of how many immigration, customs and policing officers have undergone the training that is required under paragraph 56 of Schedule 3 to the 2019 Act, which requires ongoing training and new procedures for those officers? How are we doing in ensuring adequate training? Finally, what provision is there for the consideration of germ warfare by hostile states, as was potentially involved in the Novichok incident in Salisbury?

My Lords, I congratulate the Minister on her work and success in bringing this forward. To assist with balance in the debate, I shall challenge her on the decision on NSDs being extended from two years to five years.

In my view, five years is insufficient; 15 years would be a far more rational timescale. The idea that this impinges on civil liberties to an extent that is problematic for society is a nonsensical argument when one considers the amount of data that Facebook, Google and other internet companies have on all of us with electronic devices. I would feel more comfortable if it were a 15-year period. rather than a cut-off at five years. Perhaps the Minister would like to comment on why it is only an additional three years. Indeed, I would be much happier if we were to bring in a biometric ID card, which I think would be hugely popular among the population of this country because of its positive security and other implications.

My other question to the Minister relates to staffing, particularly with the possibility of a no-deal Brexit and the potential for a level of diversion of staff and staff attention at that time. Are we sure that we have enough staff working at our ports? My fear is that we do not and that we are not sufficiently well resourced. Will the Minister make the case strongly to the Treasury that a larger budget is required, in the knowledge that many in Parliament would support that larger budget to secure our borders?

My Lords, I draw attention to my interests as set out in the register. The Government have responded to concerns raised in your Lordships’ House about the safeguards accorded to journalists in protecting their sources. That is why we have these revised codes, balancing the protection of the country against the legitimate rights of journalists. That is all very welcome, but I return to the question that I have raised before in your Lordships’ House: how will this work in practice?

I should say at the outset that I believe in the importance of a free press that holds those in authority to account and acts in the public interest—but that does not mean that everything that all journalists do is automatically honourable. I am aware of instances where journalists have knowingly and illegally received information that is rightly secret and have gone ahead with publication, while knowing how damaging that is to the nation’s security.

However, I have a more fundamental question for the Minister. How does an officer at our ports know that someone is a journalist? What constitutes a journalist, so that they may be subject to the extra protections of paragraphs 42 and 52 of the Schedule 7 code? How can prior independent or judicial authorisation be obtained when the officer stopping an individual does not know that they are about to claim to be a journalist? If the individual stopped declares that he or she is a journalist, what defines that person as a bona fide journalist?

We can now all be citizen journalists. We can all blog, post on YouTube and tweet, and I accept that some very important material has rightly been put into the public domain through such routes. But what makes a citizen journalist? Could it be just one blog post or one tweet, or merely the intent to post? Does this mean that anyone stopped at the border can self-define as a citizen journalist and refuse to hand over material? How can we prevent the abuse of these protections for legitimate journalists by individuals with malign intent?

My Lords, I think the whole House agreed with the Minister when she said in her opening remarks that the country is facing a sustained threat of hostile activity from states. I want to ask two questions about the practicalities of enforcing some elements of the guidance which have been referred to by other noble Lords. One question refers to what I will term “intelligence ports of entry”, as regards us knowing the likelihood of people who are presenting themselves as hostile to the UK when they come to the UK. My other question is about physical ports of entry and the capabilities that we will have at them after 1 January 2021.

With regard to intelligence ports of entry, throughout the guidance and the legislation is the assumption that we will use intelligence-led security information from our officers at the ports of entry. I want to ask a question that the former Prime Minister asked the current Prime Minister on 3 June. She asked whether,

“the UK will have access to the quantity and quality of data that it currently has through Prüm, passenger name records, the European Criminal Records Information System and SIS—Schengen Information System—II, none of which, I believe, should require the European Court of Justice jurisdiction in the UK?”—[Official Report, Commons 3/6/20; col. 846.]

The Prime Minister was not able to give that reassurance. Given that no-deal planning and contingency arrangements have been dropped because of the Government’s assumption that we would have a security treaty with the European Union, what mechanisms will be in place to ensure that we can still rely on that data and that these officers can use that intelligence when people come to the UK?

My second question relates to paragraph 6 of the Schedule 3 guidance with regard to the examination of goods. The International Trade Secretary, Liz Truss, wrote to the Chancellor and the Minister for the Cabinet Office, Michael Gove, that a failure to make sure that all ports are ready to carry out the full range of checks from 1 January next year will mean that we are vulnerable not only to smugglers but to those with hostile interest. We already know that there has been a deferral of six months for full security checks at our ports of entry. Can the Minister assure us that there will not be a delay in these crucial elements at our ports?

My Lords, like the noble Lord, Lord Blunkett, I congratulate the Minister on demystifying highly complex regulations, and I congratulate the noble Lord, Lord Mann, on his sheer guts and chutzpah in challenging every liberal nostrum.

I am content with the proposed extension to five years on national security grounds, provided the material is properly destroyed if there are no grounds for suspecting people of terrorist activity. I am happy that people who are convicted of crimes should have their DNA and biometric material kept for evermore, but I do not see the need, or the moral legitimacy, of keeping for three years the biometric material of innocent people or of those who have been charged with an offence not related to terrorism—an ordinary crime. Three years is a great improvement, brought in by the coalition Government in 2012, on the completely open-ended system there was before, when the police, for no good reason and simply because they could, kept DNA and biometric data on innocent people. It is for Parliament to make that decision, not the police acting unilaterally.

When I was Police Minister way back in the 1990s, I vigorously defended the police, but it is with deep regret that I say that I do not trust them any more on a range of things, and that really upsets me. So I am not confident that the police are fully complying with the legal requirement to destroy all biometric data after three years. I would be grateful if the Minister will assure me—if not today, perhaps on some other occasion—that that is happening, that checks are being carried out, and that DNA and biometric data are not being retained by the police for longer than three years.

My Lords, I am grateful to the Minister for her openly consultative approach to these provisions and for the changes that have been made. I think that we have something that should unite most of the House.

These are important new codes of practice, and they are an improvement on their drafts. Codes of practice were almost unheard of when I was on the Police and Criminal Evidence Bill Committee in 1984. They have become a very important part of policing and of the scrutiny of policing, and rightly so. They have given much more confidence as to how significant powers are exercised. Schedule 7, which I have often seen exercised in practice in ports, is a very effective tool as part of the weaponry against terrorism. It produces significant intelligence that can be used across the board in this area.

It is also very helpful that these codes are not only comprehensive but comprehensible to the police officers and others who are trained to use them. I have sampled the training in the past and have found it to be very good.

I support the noble Lord, Lord Harris, on a point that he raised about the definition of a journalist. It is all too easy for people to self-define as journalists, and that is something that we would like to avoid.

It is very important that disclosure of confidential information is being protected so carefully in these provisions, although of course we need to be confident that it is not overprotected. I ask the Minister to confirm that the crime exception remains in force and that information that national security requires should be revealed will be revealed and used in the future.

My Lords, this is an absolutely vital piece of legislation. I agree with the noble Lord, Lord Mann, about the maximum duration of retention from two to five years, and in fact I ringed that when the question came up. I am not at all sure that five years is sufficient. Perhaps my noble friend can tell us why five years as opposed to a longer term has been chosen.

I also want to raise the question of ports. I raised this matter previously in relation to airports. Northampton has a modest airport outside the town, and at the height of terrorism no checks were made there. However, there is now a sort of observation post. Therefore, in relation to UK ports that are not permanently staffed, I wonder whether there should be a degree of observation and a means of communication.

Regarding paragraph 6.2 of the Explanatory Memorandum and the subject of staff, are we up to full complement? Are there regional differences? Are we confident that there is now diversity, and is the necessary skill set there? Those are important issues in today’s world but they might not have come up previously.

Under paragraph 7.6 of the Explanatory Memorandum, I am also slightly mystified as to why oral evidence cannot always be given. Oral evidence should presumably be recorded in today’s world. Also, I am not clear why, under Schedule 7, a different lawyer should be used at that point.

I also have some questions about the consultation, referred to in paragraph 10.2 of the Explanatory Memorandum. I do not know how many people were consulted and it would be interesting to know, but eight responses do not seem to be very many. Then there is the question of training and, finally, the withdrawal review. I wonder whether the review should not be more regular than is indicated in paragraph 14.1.

My Lords, I thank the noble Baroness for presenting to the House these regulations, which flow from our debates last year when we considered the Counter-Terrorism and Border Security Bill. Then, the House made a number of important changes to the legislation. I am content with what is before us but I have a few comments and questions which I hope that she will be able to respond to.

I endorse the comments of my noble friend Lord Blunkett about the retention of biometric data. This is important, as we are talking about the protection of our whole country from acts of terrorism and, as he said, state-sponsored terrorism.

A number of noble Lords have drawn attention to the fact that a number of ports might not have officers stationed at them to undertake the supervision of people arriving in the UK. I want to expand that to airports and small airfields. Are we confident that we are properly protected?

My noble friend Lord Harris of Haringey and the noble Lord, Lord Carlile, raised the important point of the risk to our security of people claiming to be journalists and saying that the material they have on them is protected from being searched. I want to protect real journalists from having their material searched, but this cannot be a means for those who want to do us harm to get into the country. Therefore, can the noble Baroness set out what protections we have? I have a Twitter account, have written a few blogs and have even had the odd article published, but I would never claim to be a journalist.

My Lords, I support these regulations, which at first blush are indeed technical, but they are an important part of the powers by which the Government can maintain strong security policies to protect all of us from terrorists and hostile state actors alike. The attempted assassination of Sergei and Yulia Skripal shows how such murderers can operate without any regard for the lives of others who take part in the investigation of the crime or those who suffer poisoning as a consequence of the reckless disposal of the killers’ evidence.

My question to the Minister therefore relates to the Home Office document Examining Officers and Review Officers under Schedule 3 to the Counter-Terrorism and Border Security Act 2019—Draft Code of Practice, which, as my noble friend the Minister said in opening, relates to hostile activity. Section 3, at page 13, sets out very clearly the proposed “Welfare considerations during examination”—the welfare, that is, of the suspects. It is right that those matters are prescribed carefully.

However, can my noble friend give me assurances that welfare procedures are in place for those carrying out the examination, who could be exposed to harmful chemical agents? What precautions are taken to prevent harm to the examining officials and others in the vicinity? Who carries out the training of those who engage in what is potentially life-threatening work? I look forward to her response.

My Lords, I hope that the Government will publish the statistics on the use of these regulations, particularly on the religious affiliation of those stopped under Schedule 7, so that Parliament can be assured that accusations based on religious and racial profiling do not occur. I hope that the Minister will be able to give us that reassurance.

Like many other noble Lords, I am concerned about the points of entry, and I want to ask specifically about free ports. The British Government have said that they want the first to be opened in the UK by 2021. Meanwhile, the European Commission has said that free ports’ special regulatory status has aided the financing of terrorism, money laundering and organised crime. There are 82 free ports in the European Union, so the EU has a great deal of experience in dealing with them. It is clamping down on them because they pose a security risk due to the high incidence of corruption, tax evasion and criminal activities such as people smuggling, corruption and money laundering.

Can the Minister reassure the House about the steps that the Government are taking to regulate the UK’s proposed free ports, and can she say whether these regulations will apply fully in such free ports to ensure that the EU experience does not happen here?

My second question relates to the codes of practice and training. The codes lay out the training and accreditation regime for police and officials exercising the powers, and they refer to nationally approved programmes and the compulsory nature of these training programmes and their accreditation. Since these codes of practice have legal effect only from the passing of these regulations, can the Minister outline the preparatory work that has been undertaken to ensure a seamless transition to the new training and accreditation regime? How long will it take to get the new schemes up and running, and are we right to assume that the officials and police who currently exercise the powers outlined will be able to continue in their roles while awaiting the new training and accreditation scheme to be embedded?

My Lords, I thank my noble friend the Minister for the clear and comprehensive manner in which she introduced the regulations, as is always her style; she has a great knack of making the complex comprehensible. Like other noble Lords, I will comment on the retention of biometrics. Can my noble friend say how much of a compromise position the five-year mark was, and how strong the evidence and arguments were for having a longer period—potentially, as the noble Lord, Lord Mann, suggested, 15 years?

Secondly, on the question of ports and the UK border, I think it would be fair to say that, in many ways, we do not have a porous border but a partial border. Can the Minister tell us what number of ports of all types are currently, to all intents and purposes, unpersonned in this respect? What percentage of the overall number of ports is this, and how many different levels of coverage are there from, say, an unpersonned port all the way through to what one might expect at the highest level at, say, London’s Heathrow Airport?

As a number of noble Lords have commented, if the Minister’s department were to make the case for greater coverage at all ports, I think that would get a good deal of support from all parties across Parliament.

My Lords, I too extend my congratulations to the Minister on attracting 24 speakers to her debate on a Friday morning and on presenting it so clearly. I want to make three points. The first is on biometric data. I agree strongly with the noble Lord, Lord Mann, but I would like to come at this from another angle. There seems to be a tendency to think that keeping biometric data is somehow wrong. I put forward the case that having a national register of biometric data might actually be a good thing, and that we should possibly extend it to having a national DNA database. This is the technology of the future—the technology that succeeds fingerprinting. The thing is not to let the police look after it but to have it in the hands of an independent agency—an independent, accountable agency, which is publicly responsible for the data so that we do not leave it to the whims of the police at all.

My second point, which occurs in the document, is about allowing the police to keep us safe. We all agree with that. Most people would agree that some of the recent things that have happened with regard particularly to race have done the police’s reputation no good at all. It is in everybody’s interest to get proper training so that the application of these powers is seen to be fair to all sections of society.

My third and final point is that we say we are strengthening UK defences against hostile state activity, but I would like to know what more is perceived as needed—and what, anyway, is a hostile act and how can an examining officer identify one?

My Lords, the Government have to be supported in their efforts to protect the public against both terrorism and acts of hostile states—and we know that they succeed in protecting us far more often than they fail. In the context of hostile states, I do hope that the report of the Intelligence and Security Committee into Russia and its involvement here might be made public sooner rather than later.

I support the noble Lord, Lord Balfe, in his call for a national database of biometrics. I see nothing sacrosanct about biometric data and I think that a national library of this data, protected by an independent body, would be useful. I welcome this SI and the changes that have been made to take account of some of the reservations expressed in the House. The provisions relating to the treatment of confidential information seem to go as far as they practically can in protecting journalism. I accept the qualms of the noble Lord, Lord Harris, regarding the use of journalism as a cloak beneath which to hide malign practices; I believe that, while a free press is crucial, national security has to come first.

My fear over these regulations is whether we actually have the resource to implement them fully and effectively. As other noble Lords have mentioned, not all ports are covered. I echo the questions asked by the noble Baroness, Lady Altmann, regarding the effects of our departure from EU security arrangements. As these regulations apply to UK ports and the Northern Ireland border area, can the Minister tell the House how the Northern Ireland border area is to be protected?

My Lords, I speak as a former Home Office Minister responsible for UK borders. In general, of course, I support any measure that helps us to fight terrorism and major criminality and denies opportunities to threaten our citizens. This is a piece of secondary legislation providing codes of practice for our officials. I was one of those who was involved in the drafting of many EU directives in the field, and we ensured that certain principles were always enshrined in the retention of data, including biometric data. In the GDPR, for instance, retention of data should be for no longer than is necessary. That principle, together with the generally accepted requirements for holding and using data of necessity and proportionality, has been the basis of all EU and UK measures for some years. I hope that my noble friend concurs with those principles.

I note the new guidance on obtaining national security determinations which is, of course, subject to safeguards and guidance under the Protection of Freedoms Act 2012, but I still have concerns. Under the PNR directive, for which I was directly responsible, data held should be deleted after five years and depersonalised after six months. We have evidence that, on that basis alone, many attacks on our own country have been deterred. In pursuing these new timescales for retaining data and preparing new guidance, is my noble friend the Minister taking into account the comparable provisions, limits and protections which are enshrined in EU directives, to which we are still party? Is she confident that this measure will not impede the necessary co-operation and real-time operability with our European neighbours once the transition period ends, nor provide an unnecessary complication in our current negotiations for a comprehensive security agreement with the EU?

I am sure my noble friend will agree that we certainly should not be introducing measures or standards which further distance us in areas where future joint efforts with our immediate neighbours to defeat and deter terrorism and major criminality are so vital to UK interests.

My Lords, terrorism is a cross-border problem requiring international co-operation between law enforcement agencies. Freedom and security can go hand in hand, but the first duty of government is the security of the people. That means providing both the human resources for policing and the associated physical resources needed, everywhere they are needed—whichever port or airport it might be.

The noble Lord, Lord Blunkett, made the point that he welcomed the introduction of NSD guidelines and the retention of biometric data being re-examined, but there are concerns over the increased length of national security determinations under the SI from two to five years. We need reassurances that this data will be stored correctly and securely, and used only for the purposes intended. I am hoping the Minister might be able to give some guidance on the assurances that are proposed.

There is evidence of potential abuse of power. Statistics from surveys in 2014 on Operation Insight found that 88% of a sample of those stopped under Schedule 7 were Muslim. Of the 419,000 people stopped under Schedule 7 since 2009, just 30 have been convicted. Despite stopping over 11,000 people in the year to March 2019, only three convictions were secured; that is a conviction rate 0.007%. This is hardly encouraging, particularly as convictions can be secured for, for example, failure to disclose passwords, even on the basis of client confidentiality, or refusal to answer questions. This is a bit rich coming from a Government who systematically use the excuse of commercial confidentiality not to reveal data and have raised the avoidance of answering both Oral and Written Questions from Members to an art form. Finally, this raises serious questions about the utility as well as the purpose of Schedule 7 in revealing actions associated with the planning of acts of terrorism.

My Lords, I thank my noble friend for the very clear exposition of these regulations and the case that she made out. The importance of these regulations is self-evident in relation to the prevention of brutal, murderous terrorism and chilling hostile state activity, such as we saw against Sergei and Yulia Skripal in Salisbury in 2018, with the serious repercussions and death that that activity caused.

Therefore, I welcome the updating and revision of the powers outlined in the regulations. It is right that we should have appropriate safeguards such as those for journalistic sources, but I join others in having concerns about the self-definition of journalism and hope that there are ways that we can ensure that this does not extend to that.

I also join others in asking about the retention of biometric material for five years. Two years certainly seems too short a period, and I am not sure that 15 years is necessarily right, but the question has to be asked and it demands a closer examination of why a five-year period was picked. I join others in wondering about a DNA bank, but that is perhaps a discussion for another day.

I also join others in asking about whether this covers all points of entry. I can quite see that the Minister will not want to give a list of those points of entry which are not covered—I can see that that would not be wise—but if she is able to say something general in this regard, it would be reassuring, particularly given the issue about Northern Ireland’s position at the end of the year. If she is able to say something on that, either today or in writing, if she wants a more detailed look at the matter, that would be very useful.

I have no doubt that these regulations are appropriate and I strongly support them.

My Lords, I also thank the Minister for her very clear opening comments and her kind remarks about my previous involvement in this issue, in trying to protect civil liberties. I was quite surprised to agree with the noble Lord, Lord Blencathra—that always upsets both of us—when he stated that he did not trust the police. I have a similar problem because the Met Police logged me as a domestic extremist and watched me for more than 10 years when I was an elected member of the London Assembly and Deputy Mayor of London. It is hard to trust the police; I do not mean as individuals—I have often worked with them—but as a group.

As the mother of a journalist, I had thought that we had put to bed this question of how we would recognise journalists and the fact that a free press is incredibly important for any country. What we see in repressive countries is that they have no free press.

I say to the noble Lord, Lord Balfe, that an independent host for biometrics is a good idea. At the moment, we have had six months without any oversight for the security services. The Intelligence and Security Committee was dissolved in December and we still do not have one. As a nation, we find it difficult to watch our security services and make sure that they are operating in our best interests and not against the interests of human rights and civil liberties.

Having said all that, the code of practice is quite chilling; it is almost dystopian in its repressiveness. If I had more time, I would read it out, because if you read it, some of the words leap out as being quite horrifying. People have to give away all their information, including their passcodes for electronic devices. They have no right to refuse having their biometrics taken. Overall, I am still extremely upset about it.

My Lords, I apologise: we lost our internet connection earlier. I hope noble Lords will forgive me if I repeat anything said earlier.

I welcome these powers, but have a practical question on their application. Schedule 3 of the code of practice includes

“additional powers to allow an examining officer to retain and copy a person’s property (including confidential material)”.

Repeating a point made by my noble friend Lord Harris, I am at a loss to understand how, if someone claims to be a journalist, an officer could exercise these statutory duties in the way outlined by the code of practice. After all, according to the Explanatory Memorandum from the Home Office, journalistic protection requires all confidential material to be handled with care, to minimise the risk of it being seen by a front-line officer. Again, there is probably a simple explanation for this, but I cannot understand it. If a front-line officer is forbidden from seeing confidential information, how do we know that such information exists in the first place?

I have another fairly simple question for the Minister. The Minister for Security, James Brokenshire, wrote to Yvette Cooper, chair of the Home Affairs Committee, on 8 June. Has the Minister or the department received a response to that letter, setting out the Home Affairs Committee’s view on this statutory instrument? If so, will she share it with us today?

My Lords, as is the case with most statutory instruments, we had a substantive and, in this case, substantial debate on the primary legislation, which is not up for discussion. However, as the SI brings into force codes of practice lower in the hierarchy, it is worth reminding ourselves of their status.

The fact that they are codes, are written down and are subject to consultation is very significant, as the noble Lord, Lord Carlile, has said. They are also subject to parliamentary approval, but they do not have the scrutiny which can lead to amendment. They are the practical application of the powers of the state. As the noble Lord, Lord Anderson of Ipswich, said during the passage of the Bill,

“the Bill will confer a bristling armoury of powers on ports police”.—[Official Report, 17/12/18; col. 1762.]

The current Independent Reviewer of Terrorism Legislation raised points on the draft codes about reflecting the language of the law, points which the Government rightly took, because the rule of law requires law.

I will use this opportunity—I have not managed to find another—to mention the recent report of Her Majesty’s Chief Inspector of Prisons on short-term holding facilities at the border. I have to say that “facilities” is something of a euphemism. There were some shocking findings, including that

“a pregnant woman was detained for over 27 hours; the detention log evidenced little meaningful engagement with her”


“Detainees’ … ability to make telephone calls was at best restricted, and at worst prohibited.”

Border Force staff said that they felt “forgotten”, and that there was no guidance or sharing of best practice. Can the Minister tell the House how the Government are responding to the finding of inadequate leadership?

Actions at the border must not raise any concerns about any sort of discrimination, a point to which a number of noble Lords have referred. I raised this recently when the EU Security and Justice Sub-Committee, of which I am a member, questioned the Security Minister, James Brokenshire, about access to data—a very important tool of border security—post Brexit. A number of noble Lords including the noble Baronesses, Lady Altmann and Lady Wheatcroft, and the noble Lord, Lord Purvis, referred to this. I asked him about stopping a disproportionate number of individuals whose ethnicity and dress were, to put it bluntly, not those of a white person who is not Muslim. He said “Ah—you’ve not seen the new code”. Now that I have, can the Minister point me to the answer? Is it through training, which must be kept under constant review, and accreditation? Will training, for instance, cover unconscious bias as well as, I assume, keeping and analysing data? This is a current issue but has always been a current issue, as my noble friend Lord German indicated.

During the passage of the Bill, we received a lot of briefing on the detail of the procedures: the length of time that someone could be detained, access to a named lawyer and so on. The Government’s response to the consultation on the codes on this point refers to the examining officer’s discretion and says that the detainee is told of this discretion. However, it is the criteria for the exercise of the discretion which are important and should be transparent.

As noble Lords have also mentioned, we have received a lot of briefing discussing journalism and journalistic sources—a contentious and difficult area. We are told that the Government are now considering whether to amend the definition of “confidential material” to make it clear that it includes material identifying a source of journalistic information. Can the Minister tell the House when we can expect to see this? Perhaps it will be in the current counterterrorism and sentencing Bill.

We scrutinise legislation; I am glad that we also have systems to scrutinise how things work in practice. However, applying the findings from those is essential because, as I know all noble Lords agree, trust in the means used by the state to keep us safe, but which reflect our values, is essential.

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

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

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

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

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

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

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

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

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

Finally, the Biometrics Commissioner recommended that data be deleted within a reasonable period of time in circumstances where an individual has been arrested but not convicted of a non-terrorism offence. The guidance states that a reasonable period is up to six months. Can the Minister say what evidence led to that timeframe being provided for in the guidance, and whether it was proposed or suggested by the commissioner?

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

I first thank all noble Lords who have made some very constructive points in this debate, and I fully concur with the noble Lord, Lord Rosser, about the quality of debate and scrutiny in your Lordships’ House. I knew I would not beat the 15 minutes in the Commons and that the questions would be somewhat more forensic.

The noble Lord, Lord Blunkett, was very supportive of the extension from two to five years. There probably was a difference of opinion within your Lordships’ House: some noble Lords wondered if five years was enough and others thought it was too long. In terms of the five-year limit, we are proposing to increase the length of a single NSD to five years; however, they can be renewed as many times as necessary to protect national security. A number of noble Lords questioned whether it was arbitrary. It was based on operational feedback and we think it strikes a better balance between allowing the police to prioritise their resources and retaining the safeguard of regular reviews. It is supported by the Biometrics Commissioner.

Another point was about some ports not being covered. Port monitoring is, of course, quite often intelligence-led. If we literally covered our entire border with officers, we would still have people getting through without the intelligence that is so crucial to being able to stop people and to question them. We have approximately 1,200 officers at the ports and the powers—I say just to clarify—are used by the police and not immigration and customs. Police use a very flexible model rather than a permanent presence at ports. They use regional hubs and they flex officers to meet demand at those ports.

The noble Baronesses, Lady Ludford and Lady Hamwee, were talking about ethnicity being used to stop people. I make it absolutely clear that it is actually unlawful to stop somebody because of their ethnicity. I am literally trying to cover every noble Lord’s question. My noble friends Lady Altmann and Lord Kirkhope and the noble Baroness, Lady Wheatcroft, asked about Brexit and Northern Ireland as it relates to these provisions. The political declaration provides the basis for a comprehensive and balanced future security partnership, which is in the mutual interest of the UK and the EU. I stress that these powers will not be used as an immigration control or indeed to interfere with the right to travel between jurisdictions. Their application to the border mirrors Schedule 7 to the Terrorism Act 2000, an analogous power for CT purposes that has been in operation for 20 years, and we have not seen wide-scale use of these powers in the border area. Noble Lords will also know that negotiations are ongoing and, of course, I would not pre-empt the outcome. However, the security of our borders and citizens is of the utmost importance.

My noble friend Lady Altmann talked about the training for officers, as did the noble Lord, Lord German, and my noble friend Lady Anelay talked about helping to safeguard people who might be handling dangerous subjects—I mean substances, but subjects even. The training and the accreditation is the responsibility of the College of Policing, but it goes without saying that these officers are highly trained, and the College of Policing and the new Schedule 3 powers will not be used until officers are trained and accredited.

In terms of the safety of front-line officers who put their lives at risk—of course, this is an absolute priority—these policing officers are experienced in dealing with a range of threats. There are strict procedures in place to mitigate the harm to officers and all officers will be trained in those procedures.

I move to the point that the noble Lord, Lord Rosser, made about transparency and oversight. As is the case for Schedule 7 powers, the Schedule 3 powers will be subject to the oversight of the Investigatory Powers Commissioner, who will be required to submit an annual report to the Home Secretary, which will be published and laid before Parliament. The commissioner may also make a report on any issue at any time. To support these functions, all examination records and data will be made available to the reviewer and to the commissioner. The Home Office also publishes a wealth of statistical information relating to counterterrorism legislation, including to the Schedule 7 powers.

To answer the point of the noble Baronesses, Lady Ludford and Lady Hamwee, I say that we do not intend to publish statistics about religion, so we are not intending to add to the burden of front-line officers, but further consideration will be given to the possibility of releasing figures for the Schedule 3 powers. That decision will be made once data is available to conduct a proper national security assessment of such information, and we anticipate this being at the time of the commissioner’s first report.

I turn to the important point about both abuse by people saying that they are journalists and the protection of genuine journalistic material. The noble Lord, Lord Harris of Haringey—so nice to see him and to be speaking to a human being—and the noble Lords, Lord Carlile and Lord Snape, asked about this. Officers will, of course, take steps to verify a person’s credentials, and that is why we have powers to seek judicial authorisation to access such material if there is a need. It is also why we have provided a means for independent legal counsel to assist examining officers in determining which items of material are protected and which are examinable.

On the other side of the coin are safeguards for protected materials and journalistic sources. Debates on this issue throughout the passage of the Bill highlighted the unique practical challenges in safeguarding such genuine material in the context of a time-bound court examination, while ensuring that the powers remain effective against terrorists and hostile state actors. For example, it would severely impact the utility of the powers if a person’s claim of carrying protected material was enough, on its own, to deny access to that property, or to any property comprising unprotected material. That also relates to the other point.

In answer to the question from the noble Lord, Lord Rosser, I can say that, after consideration of feedback received from groups representing the media, we believe that we have identified a constructive solution to address these practical concerns while preserving the confidentiality of genuine material. We have amended the codes to make it explicitly clear that front-line officers must not retain, copy or examine material that is believed to be protected. However, we have also allowed for the temporary retention of property containing protected material, or copies of that property, but only where a process can be undertaken to identify and separate this from examinable material. The process is subject to strict requirements to minimise the risk that protected material is seen by the examining officer, or any other officer involved in the examination. For example, as I said in answer to the noble Lord, Lord Harris of Haringey, independent counsel must be engaged for the purpose of identifying which items of material the officers are authorised to examine. Any protected material must then be returned to the property owner and copies destroyed. This process has been modelled on the Serious Fraud Office operational procedure upheld by the High Court. In addition, we have extended the safeguards for protected material, under either power, to include material which could disclose a source of journalistic information. I hope that noble Lords will agree that these changes are a pragmatic response to an important technical concern which was raised in the consultation feedback.

My noble friend Lord Naseby commented that there were not many responses to the consultation. I always see that as a good thing: in other words, it was not contentious. The noble Baroness, Lady Hamwee, referred to the HMIC report. The regulations do not apply to immigration detention, so this is not applicable to that report, although I am sure there will be plenty of opportunity—as we have had—to discuss it.

Motion agreed.

Sitting suspended.