Counter-Terrorism and Border Security Bill — House of Lords, 2018-11-14
Topic: Law and Crime
Susan Williams (Conservative, Centre-right): My Lords, the government amendments in this group make a number of necessary changes to the provisions in Schedule 3 governing the retention of property and the power to make and retain copies of documents and other items The new powers under Schedule 3 have been introduced to strengthen the tools of our law enforcement officers to tackle the harmful activities of hostile actors. Over recent years, we have seen a number of foreign powers demonstrating a significantly increased risk appetite regarding the conduct of their intelligence officers and agents. They seek to acquire and pass on property or information that would damage our national security. This could include highly classified protectively marked UK Government material, prototypes of UK defence infrastructure and hardware, or even the contact details of persons employed by our secret intelligence agencies. The Committee will appreciate that, to assert themselves in this way, foreign intelligence officers or those acting on their behalf are known to actively use the cover of certain professions; this includes journalists, lawyers and others. There is, therefore, a national security imperative for the police to be able to retain, copy and examine articles which may also include confidential journalistic or legally privileged material. In response, Schedule 3 introduces new powers that would allow an examining officer to retain, examine, copy and potentially destroy a person’s property, including confidential material, where the officer believes it could be used in connection with a hostile act or to prevent death or serious injury. Once a person’s property has been retained under these powers, no further action can be taken without the authorisation of the Investigatory Powers Commissioner. The retention process requires the commissioner to consider representations made by the owner of the article, the police and the Home Secretary before coming to a decision Section 3 of the draft Schedule 3 code of practice, which I recently circulated to noble Lords, outlines the steps and timings for this process, which have been designed to strike a balance between affording the examinee an opportunity to defend possession of their property with the operational need to retain, use or potentially destroy it. The entire process from the point at which the property has been retained, to the point at which the commissioner authorises further action may take as long as four weeks but could possibly take longer as a result of delays or appeals In the vast majority of cases, this process will be the right one, as there will not be an urgent need to examine the property and the immediate risk will have been mitigated by dispossessing the individual of the article in question. In some cases, however, these timeframes will not be acceptable, in particular where urgent action is needed to prevent death or significant injury or a hostile act. An example of such a situation might be where hostile agents are trying to leave the UK with information detailing live UK intelligence agency operations, capabilities and employees. Stopping an agent with this material and being able to access it immediately will give the police a greater chance of determining whether other hostile operatives are in possession of the material and which UK intelligence officers or agents are potentially at risk of exposure. In such a case, an expedited process would allow an urgent decision to be taken on whether the property should be returned to the individual, in parallel to examining the property to mitigate the immediate threat Amendment 77 would provide for this expedited process by allowing the examining officer, with the approval of a senior officer not below the rank of superintendent, to examine or copy the property, including confidential material, before a decision has been made by the commissioner. This mechanism would require authorisation to be given or withheld by the commissioner, or a delegated judicial commissioner, after the event. Should the commissioner withhold that authorisation, he would have the power to direct that the article be returned to the examinee and the destruction of any information taken from it, including copies. As with the existing process provided for in the Bill, the decision of the commissioner will be taken after consideration of any representations made by affected parties and there will also be an opportunity to appeal that decision where it has been delegated to a judicial commissioner This urgency procedure has been modelled on similar provisions in the Investigatory Powers Act in relation to interception warrants and has been set out in further detail in Section 3 of the draft code of practice. We had considered with operational partners and the IPC whether an expedited prior authorisation procedure could be put in place but have concluded that, while the process could be truncated, the requirement to receive and consider representations is such that any fast-track prior authorisation procedure would still take some days. I want to reiterate that these powers would only be used in the most urgent circumstances and subject to the safeguards that I have described. The consequences of misusing the powers are clear—the commissioner may direct the destruction of any information acquired through use of the property I now turn to Amendments 78 to 82, which concern similar retention powers for copies that consist of, or include, confidential material. These amendments aim to make two key changes. First, as with Amendment 77, which I have just described, they would provide for an urgent process for the retention and use of copies that consist of, or include, confidential material. Secondly, they will ensure that the non-urgent process for retention of copies works in the same way as the non-urgent retention process for a person’s property.