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