Counter-Terrorism and Border Security Act 2019 (Port Examination Code of Practice) Regulations 2023

Monday 4th December 2023 Lords Chamber

Motion to Approve

15:35

Moved by

[Lord Sharpe of Epsom]

That the draft Regulations laid before the House on 16 October be approved.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, in moving that the House approves this statutory instrument, I will also speak to the National Security Act 2023 (Video Recording with Sound of Interviews and Associated Code of Practice) Regulations 2023 and the National Security Act 2023 (Consequential Amendments of Primary Legislation) Regulations 2023. All three of these instruments, which were laid on 16 October and debated in the other place on 29 November, relate to measures in the National Security Act.

The National Security Act, which received Royal Assent this July, is the most significant piece of legislation to tackle the increase of state-based threats to our nation in a century. It brings together vital new measures to protect the British public, modernise counterespionage laws and address the evolving threat to our national security. In essence, it provides our world-class law enforcement and intelligence agencies with new and updated tools to do their critical work. We should bring the powers in the Act into force as soon as possible to protect this country. These instruments are an important part of making that happen. Once they are approved and come into force, we can also bring into force Parts 1 to 3 of the Act.

To be clear, these regulations do not create new powers or make changes to primary legislation which has already been approved by Parliament. They are merely supportive of the powers in primary legislation and ensure that the legislation can be implemented effectively and proportionately.

The National Security Act 2023 (Video Recording with Sound of Interviews and Associated Code of Practice) Regulations 2023 create a new code of practice to govern the videorecording of individuals arrested under the Act. Schedule 6 to the Act requires that any interview by a constable of a person detained using the arrest powers in Section 27 must be videorecorded with sound and that the videorecording must be carried out in accordance with the code of practice. This mirrors the requirement for anyone interviewed following an arrest under equivalent terrorism legislation. The code of practice has been based closely on the terrorism equivalent and provides guidance on how interviews should be conducted—for example, with guidance on sealing the recordings of videos, taking breaks during interviews and conducting interviews with deaf people or those who do not understand English.

The Counter-Terrorism and Border Security Act 2019 (Port Examination Code of Practice) Regulations 2023 make an update to the existing code of practice governing the exercise of the port examination power in Schedule 3 to that Act. This power allows accredited counterterrorism police officers to stop and examine individuals to determine whether a person at a port or border area is or has been involved in malign activity on behalf of a state. The amendment to the code of practice simply reflects a change made by the National Security Act. It requires a counterterrorism police officer of at least the rank of superintendent to authorise the retention of copies of confidential business material instead of the Investigatory Powers Commissioner. This change brings the process into line with the equivalent power in terrorism legislation, where it has proven effective and avoided undue burdens on the system.

It is worth noting that the Government carried out a statutory public consultation on the changes to this code and the creation of the videorecording code from 20 July to 31 August. Consultees generally acknowledged that these codes were key to ensuring that police officers have clear guidance on the powers and that the powers are used fairly and proportionately. However, where appropriate, we made further minor changes to meet the concerns of some consultees. For example, following feedback from Scottish policing on the videorecording code, we made minor amendments to ensure that it is consistent with Scottish policing practice and procedure. The full response to this consultation can be found on GOV.UK.

The final instrument in the package is the National Security Act 2023 (Consequential Amendments of Primary Legislation) Regulations 2023. This makes consequential amendments to primary legislation using the power in Section 95 of the National Security Act. Although some consequential amendments are made in Schedule 18 to the Act, the power in Section 95 allows any further amendments to be made as a consequence of the provisions in the National Security Act.

Consequential amendments are a standard part of new legislation. They are required to ensure existing legislation is up to date to reflect changes brought about by the National Security Act. They are not substantive amendments but simply consequential on the creation of the National Security Act.

Several of the amendments concern the Official Secrets Acts 1911, 1920 and 1939, which the National Security Act replaces and repeals. References to those Acts in other legislation are updated to reference the relevant provisions in the National Security Act or, where appropriate, repealed entirely. This includes references to the prohibited places regime in the Official Secrets Act 1911 or the preparatory conduct offence under Section 7 of the Official Secrets Act 1920, both of which have been updated and replaced in the National Security Act.

Other amendments made through this instrument account for other powers and offences created in the National Security Act. For example, amendments to the Criminal Justice and Police Act 2001 account for search and seizure powers created by Schedule 2 to the National Security Act.

To sum up, these instruments simply support primary legislation which has already been agreed by Parliament. Passing them is an important step to bringing this primary legislation into force. I commend them to the House. I beg to move.

[Baroness Suttie (LD)]

My Lords, I thank the Minister for his explanation of these regulations. As he explained, they are consequential on the National Security Act and do not create new powers or make substantial changes to the primary legislation.

Clearly, there is cross-party consensus on the need to protect the public and to ensure national security, including border security. As a general comment, however, a balance should always be struck to ensure that measures are proportionate and that civil liberties are respected.

I will concentrate my very brief remarks on the draft Counter-Terrorism and Border Security Act 2019 (Port Examination Code of Practice) Regulations, which, through requiring a counterterrorism police officer of at least the rank of superintendent to authorise the retention of confidential business material, bring the process in line with existing terrorism legislation. In his concluding remarks, can the Minister expand on how the Government intend to ensure this will not add undue burdens to the system?

I thank the Minister for the letter he sent to noble Lords last week outlining the consultation that took place on these regulations. It is to be welcomed that the Government took on board the comments from Police Scotland on the videorecording code. However, regarding Northern Ireland and the very particular set of circumstances and international commitments regarding the border there, can the Minister confirm that, in the continued absence of a Northern Ireland Executive, consultations took place with the PSNI?

I was struck by the fairly small number of responses received to the consultation. I believe only five responses were received; perhaps the Minister could confirm that. I note that the consultation period was during the peak summer holiday period from 20 July to 31 August, which is perhaps, in part, an explanation for this. Can the Minister say if there was any particular reason why the consultation period was so relatively short?

[Lord Coaker (Lab)]

My Lords, I thank the Minister for outlining the SIs and for the statement he made. As he said, we have three statutory instruments before us: two relate to the National Security Act 2023, and one relates to the Counter-Terrorism and Border Security Act 2019. We fully support these instruments and the consequences they will have on the threats posed by hostile activities and for the national security of our country. I join the Minister in thanking our intelligence services and those who work so hard to keep us safe.

15:45

As always, there are many questions that can be asked of the detail. Oversight of the new legislation is vital to ensure the various safeguards and protections outlined in the code are fully respected. Of course, this requires a careful balance, with the need for those using these powers to properly protect us from potential and real threats. To that end, can the Minister update us on the appointment of the independent reviewer of state threats legislation, as laid out in Paragraph 14.1 of the Explanatory Memorandum to the Counter-Terrorism and Border Security Act 2019 (Port Examination Code of Practice) Regulations 2023? I can find the advert for that post, but I cannot find whether there has been any appointment. Can he update us on where that has got to? I note that the job advert came to an end a few weeks ago, if I have read it correctly. Can he outline the interaction between the new reviewer, as proposed by the National Security Act and outlined in these regulations, and the Independent Reviewer of Terrorism Legislation? Indeed, as the memorandum lays out, there is a close connection between those two, and it would be helpful if the Minister has anything to say about the interaction between them.

If someone is to be examined under Schedule 3, there is, first of all, as I understand it, a maximum detention of one hour, which can be extended to six hours. Can the Minister explain when the hour actually starts? Does it start from the moment that an examining officer stops someone, or is there a process at which this hour starts? You can see the point I am making, because if it does not start until a couple of hours after they have stopped someone, that is three hours. The further period can be up to six hours. Is this another six, is it five plus one to make six, or is it six plus one to make seven? Again, these are the sorts of things that are quite important for us to know. That detail is important.

An examining officer does not need suspicion to select someone for questioning. Just so I am clear, I support and understand that. Again, as explained in the Explanatory Memorandum, will the Minister agree with me that training therefore becomes vital in ensuring that protected characteristics are not inappropriately used to influence the choice that is made? That is a point that is made in the detail that has come with the Bill, but it is a really important one for the Minister to put on the record. Can he assure us that proper account will be taken of the needs of children, whether as persons being questioned or being connected to someone who is being questioned? Again, this is a question of detail which is quite important.

An examining officer questioning someone is not required to be in uniform to conduct these processes, even in the situation of a search where reasonable force can be used. How do we ensure that a non-uniformed officer can be identified, should an individual wish to do so, for example, if a complaint were to be made? There is reference in there to the requirement for the ID number to be given if an examining officer is not in uniform, but how is that actually going to be made known to somebody who is being examined, and how will we ensure that this process is properly undertaken? Will the Minister also say something about the need, as you can imagine, for people with language skills to be available to explain these various rights and the importance of that?

The Minister will know that what I have just said about identification of officers is extremely important, because the code of conduct allows strip-searching, including the strip-searching of children. Again, one understands the need for these requirements, but the oversight of them becomes particularly important.

There are many other pieces of clarity needed, but the final piece of clarity in reading this was to do with legal representation and the ability to inform others of what is happening. I appreciate the difficulty of this in a practical environment, but fair process is crucial, even as we seek to ensure national security.

We agree with the video recording of interviews undertaken under Schedule 3 and about the voice being recorded. The video recording of those interviews will help the examining officer and the person being examined. The various protections, however important, have been carefully written but will require proper monitoring, so the appointment of the new state threats legislation reviewer is extremely important, as paragraph 14.3 of the Explanatory Memorandum to the National Security Act 2023 (Video Recording with Sound of Interviews and Associated Code of Practice) Regulations 2023 makes clear. I will quote from that, as it is extremely important:

“Part 3 of the NS Act creates the role of the Independent Reviewer of State Threats Legislation (IRSTL). The IRSTL will assess the operation of UK state threats legislation including its fairness, effectiveness and proportionality. As part of this, the IRSTL will consider the exercise of powers including the arrest and detention powers within the NS Act and the related guidance. The reviewer will report their findings and recommendations to Parliament in order to inform parliamentary and public debate on state threats law and civil liberties”.

The Minister will understand why the appointment of that reviewer becomes particularly important, to enable Parliament to have oversight of the operation of this legislation.

We support these SIs, but some clarity would be helpful, if the Minister can respond to those questions as fully as he can.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank both noble Lords for their contributions. I will do my best to answer the detailed questions and, if inadvertently I miss any, I will definitely write. This subject matter is technical, but the debate, as ever, has been interesting.

The powers under Schedule 3 to the Counter-Terrorism and Border Security Act 2019 help to protect the public, as I have explained. They allow an officer to stop, question and, when necessary, detain and search individuals and goods travelling through UK ports and the border area, for the purpose of determining whether the person appears to be somebody who is or has been engaged in malign activity on behalf of a state. As has been noted, only officers who have been accredited as having successfully completed relevant training can use these Schedule 3 powers. The changes to authorisation for copies of confidential business material come into force at midnight on 20 December this year. After that point, examining officers will seek authorisation from an officer of at least the rank of superintendent to copy and retain business material of this type. In answer to the noble Baroness, Lady Suttie, the Investigatory Powers Commissioner and the police have been consulted on the date and they are very well prepared for the changes.

I have outlined the timeframe, scope and response of the public consultation on these codes in my opening remarks. The full details of the consultation and the Government’s response can be found on GOV.UK. The Government’s approach to consultation was in accordance with the requirements of the primary legislation. We considered that the six-week consultation was appropriate, given the changes to Schedule 3 on the port stop code were relatively minor and followed changes to primary legislation and the National Security Act video recording code closely followed existing precedent.

The noble Lord, Lord Coaker, asked when the hour started. As far as I am aware—and I will correct this if I am wrong—it starts from the moment of examination, but no one can be detained for more than six hours anyway. On the question about recruitment, that is still under way, as far as I know, but announcements will be forthcoming as soon as possible. Counterterrorism officers are carefully trained in the use of their powers. There are safeguards in place relating to children which are set out in the code. Careful safeguards are also in place for strip-searches in the code. Individuals can also have an interpreter as necessary.

I think that I have answered the questions so, in closing, I reiterate that these instruments provide essential supporting materials and updates to allow the National Security Act to come into force. They do not provide substantive changes to the primary legislation that has already been agreed in Parliament. They will help the police to use the powers in a proportionate and consistent manner in accordance with the primary legislation. These consequential amendments will ensure that existing primary legislation continues to function properly after the commencement of the National Security Act. I commend these regulations to the House.

Motion agreed.