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Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2022

Volume 822: debated on Monday 13 June 2022

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2022.

My Lords, this instrument would give effect to the draft code of practice which covers the exercise of counterterrorism port examination powers under Schedule 7 to the Terrorism Act 2000. These powers were amended by the Nationality and Borders Act and outline what the code of practice is and its significance to the operation of these 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 Nationality and Borders Act 2022, this House approved amendments to the powers under Schedule 7 which allow officers to examine individuals away from port areas in the following circumstances. First, an individual must either be detained or in custody under relevant provisions of the Immigration Acts. Secondly, the individual must have arrived in the UK by sea and have been apprehended within 24 hours of their arrival. Thirdly, a period of five days, beginning on the day after apprehension, must not have expired.

This will allow officers to examine those who, following their irregular arrival in the UK, have been moved from a port location or have been encountered inland. In short, those who have arrived irregularly by sea will now be subject to the same powers as if they had arrived through conventional means, adding a further protective layer to our existing precautions.

The draft code before us includes changes to cover the exercise of this amended power as well as several other minor changes to clarify language around existing safeguards. The code was subject to public consultation earlier this year and, in response to feedback received, we have clarified officers’ responsibility to inform those being examined that the purpose of the examination is not to gather evidence or information on any potential immigration offences. I hope that the Committee will consider the draft code favourably.

The UK and its citizens continue to face the threat of terrorism from those who are intent on harming and dividing us. These provisions within this statutory instrument will support the police in their tireless efforts to keep us safe from these threats. I beg to move.

My Lords, I again thank the Minister for explaining this order. Schedule 7, in particular, and Schedule 8 to the Terrorism Act 2000 are controversial in providing powers to the police and other agencies to stop, question, search and if necessary detain anyone who is travelling across the UK border, without reasonable suspicion, to require them to answer questions and be subjected to a search, in order to establish whether or not they appear to be a person who is, or has been, involved in the commission, preparation or instigation of acts of terrorism. The exercise of the power remains controversial, with many being detained and missing flights as a result, for example, with the guidance saying:

“Although the selection of a person for examination is not conditional upon the examining officer having grounds to suspect that person of being engaged in terrorism, the decision to select a person for examination must not be arbitrary.”

Despite the guidance giving examples, it remains unclear where the line is between “reasonable suspicion” and “not arbitrary”.

However, we debated these powers extensively at the time. While we remain of the view that there needs to be reasonable suspicion, we accept that these regulations are not about either the original power or the new power provided for by the Nationality and Borders Act 2022, but about revising the codes of practice in relation to Schedules 7 and 8 to the Terrorism Act 2000. A change in the use of the powers under Schedules 7 and 8 has been brought about by Nationality and Borders Act 2022 to enable those crossing the English Channel in small boats, who may initially evade detection, to be questioned and detained under Schedules 7 and 8 to the Terrorism Act 2000 away from the border, as the noble Baroness has explained.

As she has also explained, there are safeguards in place. The powers can be exercised only by specially trained and accredited officers; the subject must have been apprehended within 24 hours of arrival on land in the UK, and no longer than five days must have passed since the day of their detention; and they are detained under a provision of the Immigration Acts. The Explanatory Memorandum, at paragraph 7.5, talks about persons detained under paragraph 17(1) of Schedule 2 to the Immigration Act 1972. I could not find an Immigration Act 1972. Do the Government mean paragraph 17(1) of Schedule 2 to the Immigration Act 1971, which refers to a person found on premises where a warrant has been issued to search for people thought to be liable to examination or removal from the UK? Perhaps the Minister can clarify. There is also a safeguard to tell the person detained that the questions put under Schedule 7 about terrorism—as the Minister has explained—are not for the purpose of obtaining evidence or information on immigration offences.

We welcome the other additional safeguard, unrelated to the Nationality and Borders Act, that clarifies that no procedure exists under Schedule 7 for examining officers to seek or receive authorisation to ask questions which, when answered, may disclose or confirm confidential information in relation to journalistic sources or information subject to legal privilege. I do not think the Minister mentioned that additional safeguard, which we welcome.

We remain of the view the Schedule 7 and Schedule 8 powers are necessary, but we still have concerns that they are being used disproportionately against innocent minorities, particularly Muslims, and that the widening of the use of the powers to areas other than ports and the Northern Ireland border area may add to this disproportionality. Having said that, we understand the purpose behind these regulations and are generally supportive of the fact that they are necessary.

My Lords, we, too, support this statutory instrument. As the Minister said, it gives effect to the draft code of practice. We understand that these changes are being made in response to a recommendation by the Independent Reviewer of Terrorism Legislation, Jonathan Hall. We believe it is important that the proper safeguards are in place, support the order and thank Jonathan Hall for his work.

When speaking to the introduction of these powers during the passage of the Nationality and Borders Bill, the Minister, Lord Sharp, said that

“this is by no means an attempt to treat all migrants arriving in this manner as terrorists, or to stop and examine large numbers of people away from ports and borders. Schedule 7 is not designed and cannot be used as a universal screening mechanism”.—[Official Report, 10/2/22; col. 1939.]

What safeguards will be put in place to ensure that there is no slide into using these powers more extensively and frequently?

Furthermore, can the Minister clarify whether information given by someone in answer to a Schedule 7 examination, which is strictly counterterrorism powers, will be used for other purposes, for example by an immigration officer? I think the Minister answered that point, but I repeat the question. I also make the point that our staff got in touch with the department to ask this question and others, using the contact details given in the Explanatory Note, and did not receive a response. Usually there is a named civil servant at the bottom of an Explanatory Memorandum, but, in this case, there was a general email to contact. Our staff sent the email at 2.15 pm on Thursday and there was no response.

Although this order relates only to examinations under existing counterterrorism powers, new immigration offences under the Nationality and Borders Act have given rise to an issue about what questions it is appropriate for a person to be asked as part of these examinations. The nature of the questions was looked at as part of the Government’s consultation.

As far as those new offences are concerned, I repeat the general point we made during the passage of the Nationality and Borders Bill that we on this side of the Committee are opposed to the Government creating a broad offence of arrival that makes it illegal for people to travel to the UK to seek asylum, regardless of whether they are fleeing a war zone or there is a risk to their life. During the passage of the Nationality and Borders Bill we asked the Government instead to create an offence which captured the actual criminal behaviour that they want to target, such as arriving in breach of a deportation order, rather than an overly broad offence. We believe it is crucial that the Schedule 7 counterterrorism powers are used properly and proportionately to target terrorism concerns and not as a universal screening mechanism for people to be captured by broad, unrelated measures.

In conclusion, we must not let our fear of terror prevent us responding compassionately to those who need our help. Indeed, many of those arriving on our shores in an irregular manner are fleeing the same terror and violence that these measures are trying to protect our own citizens from. Terrorist organisations that would do us harm are ruthless and opportunistic; they look to utilise situations such as the refugee crisis for their own gain if given the chance. Therefore, we believe it is right that we ensure that our national security legislation is up to date and takes this into account, so that we can minimise the risk posed by irregular crossings of the channel.

My Lords, I again thank both noble Lords for their very constructive points and in general. I will not repeat some of our debates on the Nationality and Borders Act—it keeps coming up and I think we will be talking about it for some years to come. The noble Lord, Lord Paddick, is absolutely right that it is the Immigration Act 1971, not 1972.

Preventing extension of scope is a very good point. Criteria for exercising the powers away from port have been drawn tightly to ensure that they catch those who have evaded conventional border controls by their irregular arrival; they do not extend more widely. The change reflects the practical consideration arising from the number of people embarking on illegal channel crossings, and it will ensure that those who enter the UK by such means are subject to the same scrutiny and powers as if they had entered the UK by conventional means. I think that avoids the conflation of some of the worries that noble Lords have.

The noble Lord, Lord Paddick, asked about confidential material; absolutely, yes, nothing has changed there. On the safeguards that the noble Lord, Lord Ponsonby, asked about, we are an open democracy, subject to scrutiny on a regular basis. On extension of scope, we will certainly keep an eye on ensuring that the legislation does what it is supposed to do and nothing further.

On the conflation of terrorism and immigration, it is worth reiterating my noble friend Lord Sharpe’s point that this is not a back-door method to treat all those who arrive in the UK irregularly as if they were terrorists—I think that reinforces the point I just made to the noble Lord, Lord Paddick.

Motion agreed.