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Terrorism Act 2000 (Alterations to the Search Powers Code for England and Wales and Scotland) Order 2022

Volume 824: debated on Tuesday 11 October 2022

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Terrorism Act 2000 (Alterations to the Search Powers Code for England and Wales and Scotland) Order 2022.

My Lords, I beg to move that the order, which was laid before this House on 18 July, be approved.

Following the horrific terrorist attack at Fishmongers’ Hall in November 2019, the then Home Secretary commissioned the Independent Reviewer of Terrorism Legislation, Jonathan Hall KC, to review the Multi Agency Public Protection Arrangements, commonly referred to as MAPPA, used to supervise terrorist and terrorist-risk offenders on licence in the community.

The Police, Crime, Sentencing and Courts Act 2022, hereafter referred to as the 2022 Act, established three new powers for counterterrorism policing: a personal search power, a premises search power, and a power of urgent arrest. These powers were established in response to recommendations made by Jonathan Hall KC following his review of MAPPA.

This order relates to the new power of personal search, the creation of which was also recommended by the Fishmongers’ Hall Inquests—Prevention of Future Deaths report. The personal search power has been inserted into the Terrorism Act 2000, in new Section 43C, by the 2022 Act. The new search power came into force on 28 June this year.

As was set out by the Government during the passage of the 2022 Act, the new personal search power applies across the UK, enabling the police to stop and search terrorist and terrorism-connected offenders released on licence who are required to submit to the search by their licence conditions, should the Parole Board determine such a condition is necessary. The officer conducting the stop and search must also be satisfied that it is necessary to exercise the power for purposes connected with protecting members of the public from a risk of terrorism.

Section 47AA of the Terrorism Act 2000 imposes a requirement on the Secretary of State to prepare a code of practice containing guidance about the exercise of search powers that are conferred by that Act. In June, Parliament approved regulations laid by the Government that amended Section 47AA so that it extends to cover the new personal search power inserted into the Terrorism Act 2000 by the 2022 Act. This created a requirement for the Secretary of State to prepare a revised code of practice that includes guidance on the exercise of the power conferred by new Section 43C.

We have duly prepared a draft revised code of practice, and this order seeks Parliament’s approval to bring the revisions we have made to the existing code of practice into force.

I will now set out the nature of the revisions the Government have made. The primary update to the code of practice is the incorporation of the new stop and search power provided for by Section 43C of the Terrorism Act 2000. The revised code sets out important parameters that govern the use of the Section 43C power and provides clarity for police officers on the power’s scope. This includes providing guidance on the thresholds to be met before the section 43C power can be used, scenarios in which it might be appropriate for use and the powers of seizure associated with the search power.

We have also set out clearly within the revised code the limitations on the clothing that a person can be required to remove when the Section 43C power is being exercised by the police. In keeping with existing stop and search powers, police officers exercising the Section 43C power may not compel a person to remove any clothing in public except for an outer coat, a jacket or gloves, and an intimate search may not be authorised or carried out under the new power.

The new Section 43C stop and search power has been specifically created to help manage the risk posed by terrorist offenders on licence who are assessed to be high or very high risk to the public. The Government plan to collect data from police forces on the use of this targeted power, as we routinely do for other stop and search powers, and make this data publicly available through future statistical publications.

Given that the existing version of the code was brought into force in 2012, the Government have also taken this opportunity to make other minor changes to the code to ensure that it accurately reflects current practice, legislation, terminology and organisational responsibilities. The updated code reflects the creation of police and crime commissioners and structural changes to other police authorities, including the creation of authorities overseeing combined police areas.

We have also ensured that organisational names have been updated, for example replacing previous references to the Association of Chief Police Officers’ counterterrorism co-ordination centre—it does not trip off the tongue—with up-to-date references to the Counter Terrorism Policing national operations centre.

The revised code also includes a new paragraph which references the Children Act 2004, and its Scottish equivalent, to highlight the need for the police to ensure that in the discharge of their functions they have regard to the need to safeguard and promote the welfare of all persons under the age of 18. Although this is not a new policy, the Government considered it important when revising the code for safeguarding duties such as this to be made explicit.

In addition, we have used this opportunity to make other minor but necessary amendments, such as updating links and contact details within the code, including refreshing the web address where the most up-to-date version of the Government’s counterterrorism strategy, known as Contest, can be found.

In the course of revising the code, the Home Office has consulted the Lord Advocate and other appropriate persons and organisations, including the Independent Reviewer of Terrorism Legislation, Counter Terrorism Policing and Police Scotland, all of which are supportive of the approach being taken.

The revised code promotes the fundamental principles to be observed by the police and helps preserve the effectiveness of, and public confidence in, the use of police powers to stop and search under the Terrorism Act 2000. I very much hope that noble Lords will support these alterations to the code of practice.

My Lords, I congratulate the Minister on his elevation to Home Office Minister. If it were me, I would also be thinking, “Oh goodness, what have I done?”, but I am sure he will be excellent in his new role. I thank him for explaining this order. As when we considered the primary legislation that lies behind this order, clearly we are supportive of the changes in the legislation. We know from the tragedy at Fishmongers’ Hall how the risk posed by offenders on licence is an inexact science. These additional powers for the police to stop and search people on licence on the recommendation of the Parole Board are an important tool in trying to manage that risk and act as a deterrent to those on licence from carrying out the sort of appalling attacks that we saw at Fishmongers’ Hall.

As the Minister explained, the order is about the revised code of practice, which is quite a lengthy document. We are here to hold the Government to account for, in this case, the changes that have been made to the extensive code of practice. I understand the issues around the change in the legislation and Section 43C but, as the Explanatory Memorandum and the Minister have explained, a series of other amendments have been made to the code. The Explanatory Memorandum says that these “include”, and then gives a list of those changes, as the Minister explained. It would be extremely helpful to have a “track changes” copy of the code of practice so that we could see exactly what the changes are to the revised code of practice. Although the changes to incorporate the new Section 43C are fairly obvious, as I say, the others are difficult to find in among the code of practice. However, this is an important step forward in terms of giving these additional powers to the police for those who may pose a risk after they have been released from prison, and it is important for the police to have a code of practice to go with those changes. Having said that, we are supportive of the order.

I congratulate the noble Lord, Lord Sharpe, on his promotion and wish him well in his task—not too well, perhaps, but pretty well. But seriously, I know that he will be diligent in the execution of his duties and will work with his usual co-operative manner.

We too support what is obviously a very sensible and necessary step forward by the Government. I have a couple of questions that I want to ask. The Fishmongers’ Hall attack clearly highlighted some problems, which the independent reviewer took up and made recommendations about. It is good that the Government have reacted and responded to that. Along with the noble Lord, Lord Paddick, we support what they are doing here.

The order is called the Terrorism Act 2000 (Alterations to the Search Powers Code for England and Wales and Scotland) Order 2022. It revises the code of practice with respect to those three, yet its extent is to the whole of the UK, which includes Northern Ireland. I do not quite understand how a code that relates to three parts of the UK extends to all four. You would expect the title to refer to England, Wales, Scotland and Northern Ireland.

We all appreciate the sensitivity in Northern Ireland, but can the Minister explain how a British order, which does not include Northern Ireland, extends to the whole of the UK, as in the notes? If there has been widespread consultation, does that include Northern Ireland and who has it been with, notwithstanding that the Northern Ireland Assembly has not been sitting? I just do not understand the process or how that works. I am sure there is a very simple reason laid out by somebody, but I cannot find it. I do not understand this, but it is laid out in the order.

The Explanatory Memorandum says that this new power can be used with a convicted terrorist who is released on licence, provided that a search power is included in the licence. Can the Minister explain for all our benefit in what circumstances a terrorist released from prison would not have a search power included in their licence? If that were the case, what power would a police officer or whoever else have with respect to a potential terrorist?

One would assume—the noble Lord, Lord Paddick, would know better than me—that if a police officer thought a terrorist act was about to be committed, they would have a power to try to do something about that. If that is the case, why would you have a new power included in the Act? In other words, what is the purpose of including the search power in the Act and in what circumstances would you not have that anyway? That would be interesting to know.

Can the Minister say a little more about the thresholds? It seems to me that in most cases, and particularly in Section 43C, we are talking about powers to search without suspicion. What are the thresholds for that? Is that where the officer has a belief that a terrorist act is going to be committed, even though they have no grounds for that? How does that happen?

As the noble Lord, Lord Paddick, quite rightly said, there are a number of changes. The Government talk about minor changes being made, but it is very difficult to understand what those changes are and to track them through. For example, the Minister said that there are examples in the code of what a police officer can or cannot do with respect to clothing or in a public place. Is this the same or has that changed as a result of the new power that this secondary legislation gives to police officers? Is there any change in relation to who can carry out the search—for example, a female officer searching a male terrorist, or the other way around?

The Minister talked about children and this applying to children under 18. Is there a lower age limit? What do we mean by children? I understand that children means those under 18, but is there a lower limit or does this apply to anybody, irrespective of age, who a police officer believes may be about to commit a terrorist act?

As the noble Lord, Lord Paddick, said, the questions we have laid out are important because public confidence, particularly in the use of stop and search without suspicion, is of real importance. I would be keen to hear what steps the Government have taken to ensure that public confidence has been and will be sought in some of these situations. One can imagine the difficulty for the police operating in communities where this power might be used and the sensitivity of it.

I had a question about oversight. I was very pleased that the Minister talked about the fact that the Government were going to collect data on the use of the power and keep it under review. Presumably, the Independent Reviewer of Terrorism Legislation will also be involved with all that. I was pleased that the Minister included that in his remarks, because the oversight of how the legislation will work is particularly important. Given that the legislation commenced on 28 June, has anything happened since which has informed the Government about the code of practice?

With those few remarks, generally speaking, we are very supportive of what Government are doing and hope the legislation helps keep our communities and our country safe.

My Lords, first, I thank both noble Lords for their warm welcome; I hope that we continue to operate in total agreement.

I am not sure about that either, but we will try.

On the specific points that both noble Lords raised, to the noble Lord, Lord Paddick, we will be happy to provide a tracked change version as he requested, and I will make sure he gets that as soon as possible. That was the easy question.

Moving to the questions of the noble Lord, Lord Coaker, I shall try to deal with them in order. He asked about the extent of the code of practice and why it is confined to Great Britain. A separate code exists for stop and search powers under the Terrorism Act in Northern Ireland—a fact that the noble Lord alluded to. The Northern Ireland Office is responsible for that. We continue to work with colleagues there and offer them support in updating their equivalent code in Northern Ireland, which they have advised is likely to happen next year.

I just ask, because this is a very important point. The new power exists with respect to Northern Ireland, but the code of practice under which it operates is separate, legislated for under a different Act and in a different way. Is that correct—the power is a new power to be extended to Northern Ireland?

As I understand it, it could be extended to Northern Ireland, but the Northern Ireland Office is, of course, responsible for the application of such things in Northern Ireland. I may not be entirely correct on that, so I will come back to the noble Lord if I am not.

I am sorry to labour this point, but it is so important. I may be wrong, but I understood the Minister to be saying that a different code of practice applies to Northern Ireland, hence this is called a code of practice for England, Scotland and Wales—in other words, Britain. For Northern Ireland, there is a separate code of practice. Given that the new power extends to the whole of the UK, one presumes that the police and others in Northern Ireland will have the ability to stop and search without reasonable suspicion a terrorist out on licence, where that is part of their licence. Is that the case or not?

To clarify—I think this does—the new search power applies UK-wide, but there are two separate codes. Does that make sense?

That makes absolute sense. It is not what I understood the Minister to say in the first place, but I was just trying to clarify that. If I had realised that, I would have made different remarks, because it is a quite interesting extension of power with respect to Northern Ireland, for obvious reasons.

Understood. The noble Lord asked me how it is determined who qualifies under the new code. To go back to the point I made in my opening remarks, in most cases the Parole Board determines whether it is appropriate for the offender, when released, to have their licensing condition expressed as a part of the conditions of their release. Its assessment is based on a contemporary assessment of the offender’s risk profile, including whether they are judged to represent a high or very high risk to the public.

How is it determined which terrorist offenders should have licence conditions permitting the search imposed on them? As I say, it is imposed on offenders convicted of terrorism or a terrorism-connected offence and assessed as posing a high or very high risk of serious harm. In those cases, it may be imposed where there is a concern that the offender may carry a weapon or to provide an additional protection for staff—for example, where they are subject to polygraph testing, a search can be carried out prior to the examination for the safety of the examiner. I hope that clarifies that.

The noble Lord, Lord Coaker, asked about the sex of the searching officer. The answer to his specific question is no: a same-sex officer is not required unless the individual being searched requests one. The noble Lord also referenced the data that is collected. I can assure him that it will be extensive. He asked about age as well. I will come back to him on that; I do not have a specific answer. The notes I have deal only with the 18 year-old point.

In closing, I reiterate that this order provides for alterations that the Government have made to the code of practice for the exercise of search powers conferred by the Terrorism Act 2000 to be brought into force. I think I have covered the rest of the information requested, and as such I commend this order to the Committee.

Motion agreed.