Port Examination Codes of Practice and National Security Determinations Guidance Regulations 2020 — House of Lords, 2020-07-10
Topic: Law and Crime
Susan Williams (Conservative, Centre-right): 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.