Counter-Terrorism and Border Security Bill — House of Lords, 2018-11-14
Topic: Law and Crime
David Anderson (Crossbench, Unknown): 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 also 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 ride 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.