Lord Clement-Jones
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Lord Strasburger (LD)
When I observed these deployments of facial recognition and looked at the 20 policemen standing around, it occurred to me that they would probably find a lot more of the people they were looking for if they just went round to their houses and knocked on the door, rather than working on the off-chance that they might walk past them in the high street.
Lord Clement-Jones (LD)
My Lords, I thank my noble friend Lady Doocey for eliciting a very useful debate, as was the intention. I particularly welcome some of the comments made by the noble Lord, Lord Hogan-Howe, but say to him that a Crime and Policing Bill might possibly be the place for discussion of the use of live facial recognition in policing. Maybe we can make some progress with the Government, we hope, responding or at least giving an indication ahead of their consultation of their approach to the legislative framework around live facial recognition. I very much hope that they will take this debate on board as part of that consultation.
As my noble friend Lady Doocey clearly stated, these amendments are necessary because live facial recognition currently operates, effectively, in a legislative void, yet the police are rolling out this technology at speed. There is no explicit Act of Parliament authorising its deployment, meaning that police forces are in effect, as my noble friend Lord Strasburger indicated, writing their own rules as they go. This technology represents a fundamental shift in the relationship between citizen and state. When LFR cameras are deployed, our public spaces become biometric checkpoints where every face is indiscriminately scanned. By treating every citizen as a suspect in a permanent digital line-up, we are abandoning the presumption of innocence. The noble Baroness, Lady Jones, made that point very well. As a result, there is a clear issue of public trust.
Amendment 379 would prohibit the use of LFR during public assemblies or processions unless a specific code of practice has been formally approved by resolution of both Houses of Parliament. This is essential to protect our freedoms of expression and assembly under Articles 10 and 11 of the ECHR. The pervasive tracking capability of LFR creates what the courts have recognised as a chilling effect, as described by my noble friend Lady Doocey and the noble Baroness, Lady Jones. Law-abiding citizens are discouraged from attending protests or expressing dissenting views for fear of permanent state monitoring. We know that police forces have already used this technology to target peaceful protesters who were not wanted for any crime. People should not have to hand over their sensitive biometric data as the price of engaging in democratic processes. Without explicit parliamentary consent and an approved code of practice, we are sleepwalking into a surveillance state that bypasses democratic oversight entirely.
Amendment 471 would establish that LFR use in public spaces must be limited to narrowly defined serious cases—such as preventing major crimes or locating missing persons—and requires prior judicial authorisation specifying the scope and purpose of each deployment. The need for this oversight was made absolutely clear by the 2020 Court of Appeal ruling in R (Bridges) v Chief Constable of South Wales Police, which found LFR use unlawful due to fundamental deficiencies in the legal framework. The court identified that far too much discretion is left to individual officers regarding who ends up on a watchlist and where cameras are placed. We must replace operational discretion with judicial scrutiny.
The Government themselves now acknowledge the inadequacy of the current framework, which they describe as a “patchwork framework” and say it is
“complicated and difficult to understand”.
Well, that is at least some progress towards the Government acknowledging the situation. They say that the current framework does not provide sufficient confidence for expanded use—hear, hear. The former Biometrics and Surveillance Camera Commissioner made clear his concerns about the College of Policing guidance, questioning whether these fundamental issues require
“more than an authorised professional practice document from the College of Policing”
and instead demand parliamentary debate. The former commissioner raised a profound question:
“Is the status of the UK citizen shifting from our jealously guarded presumption of innocence to that of ‘suspected until we have proved our identity to the satisfaction of the examining officer’?”
Such a fundamental shift in the relationship between citizen and state cannot, and should not, be determined by guidance alone.
The College of Policing’s APP on LFR, while attempting to provide operational guidance, falls short of providing the robust legal framework that this technology demands. It remains non-statutory guidance that can be revised without parliamentary scrutiny, lacks enforceable standards for deployment decisions, provides insufficient detail on bias testing and mitigation requirements, and does not establish independent oversight mechanisms with real teeth.
Most critically, the guidance permits watch-list compilation based on subjective assessments without clear statutory criteria or independent review. This leaves fundamental decisions about who gets surveilled to operational discretion rather than judicial oversight. In response to the noble Lord, Lord Blencathra, who was keen on one bit of our amendment but not the other, I say that this intelligence-led tool effectively delegates it to a senior police officer and they, in a sense, have a conflict of interest. They are the ones who make the operational decisions.
Lord Blencathra (Con)
I am grateful to the noble Lord for giving way. It seems that he and his noble friends keep talking about the police and the restrictions which will be imposed on the police. But Amendment 471 seems to extend facial recognition to hundreds and hundreds of public authorities, provided they adhere to a code or comply with certain practices. Does he still stand by the idea that facial recognition should be extended to hundreds of public authorities, in addition to the police?
Lord Clement-Jones (LD)
If the noble Lord accepts the fact that controls are required, which he did not in his earlier comments, I think he would be greatly reassured if you had to have judicial oversight of the use of live facial recognition, which is useful in circumstances other than purely policing. What we are talking about is a greater level of control over the deployment of live facial recognition. We can argue perfectly satisfactorily about whether or not it should be extended beyond the police, but we are suggesting that, alongside that greater deployment, or possible greater deployment, there should be a much greater degree of oversight. I think that effectively answers the noble Lord.
The Metropolitan Police’s own data from recent LFR operations shows a false alert rate requiring officers to make numerous stops of innocent people. Even with claimed accuracy improvements, when a system processes thousands of faces, even a small error translates to significant numbers of misidentifications affecting law-abiding citizens.
More concerning is the evidence on differential performance, and that is where I fundamentally agree with the noble Lord, Lord Hogan-Howe. The National Physical Laboratory’s 2020 testing of facial recognition systems found significant variation in performance across demographic groups. While contemporary LFR systems used by UK police show better performance than earlier algorithms, independent research continues to identify measurable differences in accuracy rates across ethnicity and gender. The Court of Appeal in Bridges ruled that South Wales Police breached the public sector equality duty by failing to satisfy itself that the software was free from racial or gender bias, yet current deployment practices suggest insufficient progress in addressing these equality obligations.
We should also address the secrecy surrounding police watch-lists. The Justice and Home Affairs Committee of this House recommended that these lists be subject to compulsory statutory criteria and standardised training. There is no independent review of watch-list inclusion, no notification to those placed on lists and no clear route for challenge or removal.
I also very much appreciated what the noble Lord, Lord Moynihan, had to say about the problems with software. But the chilling sentence he delivered was “Technology has to take over”. That is precisely the problem that we are living with. If technology is to take over, we need a legal framework to govern it. The current patchwork of overlapping laws addressing human rights, data protection and criminal justice is not fit for purpose.
These amendments provide the democratic and judicial guard-rails needed to contain this technology, and we cannot allow the convenience of new tools to erode our established civil liberties. Only Parliament should determine the framework for how LFR is used in our society, and only the courts should authorise its deployment in individual cases.
Lord Hogan-Howe (CB)
Before the noble Lord, Lord Clement-Jones, sits down, can he address an issue that none of us has addressed yet? These amendments concern the state’s use of facial recognition, for all the reasons that we have talked about. But the private sector is far in advance of this. Some 12 or 13 years ago, it was using a product called Facewatch, which was started at Gordon’s Wine Bar because Gordon was sick of people walking into the bar and either violently assaulting his patrons or stealing things. He put a clever camera on the door and patrons did not get into the bar if they had been accused of something in the past. That product has moved right around the world, and certainly it is extensively used in the UK in different settings.
I am not arguing that that is good or bad; I merely observe that, if we end up in a position where the police have less access to something that can be a good technology, and private commerce is getting benefits that presumably it is able to justify, that inequality of arms does not benefit anyone. It should at least be considered in the consultation that the Government started, which is particularly focused on the police. But as well as the police, we should consider airports, railway stations, et cetera.
Lord Clement-Jones (LD)
Very briefly, I do not think that the noble Lord is making a bad case at all. Live facial recognition, whether in the hands of the public sector or the private sector, needs a proper legal framework: there is no doubt about that. My noble friend made it clear that we believe it is a useful technology, but, the more useful it is, the more we need to make sure that it is under proper control.
Lord Cameron of Lochiel (Con)
My Lords, this group of amendments touches on how the police should deal with modern threats and how we balance civil liberties with the clear duty of the state to protect the public.
I listened very carefully to the noble Baroness, Lady Doocey, when she introduced her Amendment 379, which, as she said, would prevent the police using live facial recognition when imposing conditions on public processions or assemblies under the relevant provisions of the Public Order Act, unless and until a new statutory code of practice had been approved. If we accept—as we on these Benches and, I think, others in your Lordships’ House do—that live facial recognition can be a legitimate and valuable policing tool in preventing crime, identifying suspects and protecting the public, it is difficult to justify singling out its use in this specific context for an additional and likely onerous layer of bureaucracy. The police already operate within an extensive framework of legal safeguards, such as data protection law. To require a further code of practice, subject to affirmative approval by both Houses of Parliament, risks delaying or deterring the deployment of technology precisely where it may be most needed. So, regretfully, we cannot support the amendment.
Amendment 471, tabled by the noble Lord, Lord Clement-Jones, goes further in seeking to affect the Government’s ability to use live facial recognition technology. It would restrict the circumstances in which live facial recognition could be used; it would require prior judicial authorisation in the specific circumstances of its use; and it would create an extensive new enforcement and oversight architecture. Public order situations are often fast-moving and unpredictable. Senior officers must be able to make operational decisions quickly, based on risk and intelligence on the ground. Introducing additional procedural hurdles at the point of use risks undermining that agility. We should focus on rolling out effective technology at pace to combat crime and disorder, while ensuring robust safeguards and scrutiny.
In particular, the requirement for prior judicial authorisation is, in our view, particularly problematic. One of the principal advantages of live facial recognition is its speed and flexibility. It can be deployed rapidly in response to emerging intelligence, acute threats or serious risks to public safety, and requiring prior judicial approval risks rendering the technology ineffective in precisely the circumstances where it could prevent serious harm. In dynamic operational scenarios, such as events of violent disorder, knife crime hot spots or rapidly evolving threats, delay can mean failure.
I was particularly taken by the speech of my noble friend Lord Moynihan, who spoke about the position in New York, where, because of there being fewer police on the streets, the technology had to take over. He was right to say that.
We on these Benches are concerned by the attempt to narrow the scope of live facial recognition to a tightly defined set of purposes, because, if Parliament accepts the use of this technology in principle, it makes little sense to confine it to only a small number of scenarios. Crime does not present itself neatly within statutory categories. Policing requires judgment and discretion. Artificially restricting the use of a tool that has demonstrated value risks depriving the police of one of the most effective capabilities available to them.
We of course recognise the need for appropriate safeguards to be implemented in the use of this technology. This new and expanded use of people’s data, even if to facilitate an objective that we support, must be enacted with transparency and proportionality. But these amendments would constrain the police’s operations and weaken our ability to respond to modern threats. At a time when criminals are increasingly sophisticated and technologically adept, Parliament should be empowering the police to use lawful, proportionate and effective tools rather than tying their hands.
Lord Clement-Jones (LD)
My Lords, this group addresses the extension of warrantless search powers for electronically tracked stolen goods to the service police, in Clause 129, alongside civilian police, in Clause 128. While we recognise the need for police to tackle high-tech crime, such sweeping powers, particularly warrantless searches, must be meticulously governed to avoid abuse and uphold civil liberties. I have tabled Amendments 386 to 389, which would ensure that robust governance and accountability mechanisms are embedded in these provisions.
Amendment 386 would require the Secretary of State to produce a code of practice for the operation of Clause 129, specifically mandating consultation with civil liberties and human rights organisations and relevant service police bodies. This would ensure due process regarding the authorisation, seizure, retention and disposal of evidence.
Amendment 388 would require the Secretary of State to provide appropriate training for service police personnel on how to exercise these powers proportionately and lawfully.
Amendment 387 would mandate the establishment of an independent mechanism for handling, investigating and reviewing public complaints arising from the exercise of these powers, giving complainants similar statutory rights to victims reporting to the Independent Office for Police Conduct.
Amendment 389 would mandate that the Secretary of State produces an annual report detailing the exercise of these warrantless search powers under Clause 128, ensuring transparency and accountability to Parliament. Further, these new obligations would require the affirmative procedure for their governing regulations, ensuring full parliamentary debate before they are enacted, as sought in Amendments 499 to 501.
We on these Benches are opposed to Amendments 383 to 385 from the noble Lord, Lord Davies, which seek to remove the requirement, as we have heard from the noble Lord, for an officer to even possess electronic tracking data before conducting a warrantless search. By stripping away this technologically justified threshold, these amendments would transform a specific investigative tool into an arbitrary power of entry, undermining the core principle that a person’s home is his castle.
In contrast, Amendments 386 to 389 provide the necessary basis for these intrusive powers to be overseen. Specifically, Amendment 386 mandates a statutory code of practice for the Armed Forces to ensure that their exercise of these powers is necessary, proportionate and strictly compliant with the Human Rights Act. Furthermore, Amendment 387 would establish an independent mechanism for handling public complaints, ensuring that any misuse of power is investigated by a body demonstrably independent of the service police.
Finally, my amendments would require post-implementation reporting to Parliament every 12 months. We must see the data on the demographic profile of those targeted and the subsequent criminal justice outcomes to guard against disproportionate application or mission creep. Without these safeguards, we risk creating a shortcut—as other provisions might do—to a surveillance state, where convenience is prioritised over constitutional protection.
The safeguards that I have proposed in Amendments 386 to 389 regarding service police are only as strong as the parliamentary scrutiny that would underpin them. We must ensure that these powers are exercised with not just efficiency but a regular check of parliamentary accountability.
Lord Katz (Lab)
My Lords, this group of amendments addresses Clauses 128 and 129 granting new powers to the police to enter premises to search for and seize stolen items that can be electronically tracked there, without the need to first apply to a court for a warrant. I welcome the welcome given to these new clauses by the noble Lord, Lord Davies of Gower, on behalf of the Opposition.
These new powers are intended, as he said, to be exercised where a stolen item is electronically tracked to a specific location. This is in direct response to public concern that the police are not able to act swiftly in response to crimes such as mobile phone theft, even when victims have clear, real-time electronic evidence of the phone’s location. It will reduce the risk that stolen goods are quickly moved on or used to facilitate other crime. I suggest to the Committee that the main benefit of these clauses is ensuring that mobile phone theft is addressed and combated.
The noble Lord, Lord Moynihan of Chelsea, is no longer in his place, but when speaking to an earlier group he suggested that there is an impression that the police do not prioritise criminal behaviour such as mobile phone theft but instead concentrate on other issues, which I will not go into. I suggest that the police being able to more quickly and effectively tackle very common criminal behaviour such as mobile phone theft would also very much enhance the reputation of the police. As the noble Lord, Lord Moynihan of Chelsea, said, it is sometimes at risk of being downplayed.
I will first address the amendments tabled by the noble Lord, Lord Davies of Gower. Amendments 383 to 385 would remove the requirement in Clause 128 that the power may be exercised by police only in relation to stolen goods electronically tracked to specified premises. They would also remove the condition that before the use of power is authorised by a senior police officer, he or she must be satisfied that there is electronic tracking data linking the stolen item and a specific premises. These amendments would significantly broaden the scope of the proposed powers and remove important safeguards.
Powers of entry are inherently intrusive, and there is a balance to be struck between ensuring that the police can act quickly and decisively against thieves, and retrieve victims’ stolen property, and safeguarding the right to a private and family life. The noble Lord, Lord Clement-Jones, put it very well when he referred to it as a technically justified threshold. I contend to the Committee that people generally accept the need for warrants to be used in detecting stolen goods, but some devices can be tracked electronically in real time. The police turn around and say, “We can’t do anything about this because we have to go and get a warrant”, but you can point to the address where you know that phone is and you know that, if the police do not act quickly, there is a good chance that phone will be moved out of the country. It is only right that we use that as an apposite threshold to introduce these powers, rather than saying that they should be used for any stolen good of whatever nature, where there is no electronic tracking data involved. It will do much to improve confidence in the police in catching up with the 21st century and current technology, but we do not see the need to go further.
The requirement for electronic tracking data linking at least one stolen item to the premises before powers can be exercised provides a further layer of reliability in their use, while ensuring, as I said, that the police can act swiftly when they need to. I say again that removing these requirements would dilute the safeguards intended to ensure that police officers use these powers lawfully, proportionately and only in specific circumstances.
That brings me neatly to Amendments 386 to 389 tabled by the noble Lord, Lord Clement-Jones. I commend his intent to ensure that there is strong accountability, independent oversight and scrutiny of the use of these powers. As I have said, the Government recognise that these new powers are intrusive by their nature, particularly as they can be exercised by officers without them first needing to seek authorisation from a court by obtaining a search warrant. We have, accordingly, built in appropriate safeguards to ensure that the new powers are used appropriately and within well-established independent oversight and scrutiny mechanisms.
Amendment 386 would require the Secretary of State to issue a statutory code of practice to which the service police must have regard when exercising the new powers. I stress to the noble Lord, Lord Clement-Jones, that these new powers will be subject to the relevant provisions in the Police and Criminal Evidence Act 1984 and its codes of practice. The Government will amend PACE Code B, and Code B of the service police codes of practice, to reflect the new powers, providing clear and detailed guidance around their use for both territorial and service police. These revisions to the codes will be completed before the powers are commenced. This will provide robust statutory guidance to police and will be complemented by the College of Policing’s authorised professional practice.
Amendment 387 would require the creation of an independent oversight mechanism to investigate public complaints about the use of these powers by service police. Any complaints about their use by territorial police would be addressed in the normal way through internal police complaints procedures and referrals to the Independent Office for Police Conduct, where required.
The service police are the focus of the noble Lord’s amendment, and any complaints would be dealt with under the complaints system for service police. As set out in the Service Police (Complaints etc.) Regulations 2023, this is overseen by the Service Police Complaints Commissioner, whose role is similar to that of the IOPC. The commissioner is independent of the service police and the MoD, and has a statutory duty to secure, maintain and review arrangements for procedures that deal with complaints and conduct. They deal with the most serious complaints and set the standard by which service police should handle complaints. The Service Police Complaints Commissioner has the same powers as the service police where it has been determined that they will carry out an investigation, and they can also determine that a complaint can be reinvestigated, if they are satisfied that there are compelling reasons to do so.
Amendment 388 would require service police to undertake training before they could exercise the new powers. All members of the service police undergo training that addresses each element set out in the noble Lord’s amendment, including on the legal requirements and limitations of search and seizure powers, proportionality, maintenance of clear records and compliance with Article 8 of the ECHR and the Human Rights Act 1998. Service police trainees are tested on arrest, entry, search and seizure before they can exercise these powers. Training is updated in response to any change in legislation that would affect service police officers’ exercise of their powers. Specifically, training will be updated in light of the new powers in this Bill.
Lord Clement-Jones (LD)
My Lords, I am sorry to interrupt. The Minister is clearly getting to the end of what he has to say. What raised my eyebrows reading Clause 129 is the fact that these powers have been given to the service police in the first place. What is the rationale for them having these powers in particular, how much mobile phone theft are the service police dealing with, and why are we putting them on all fours with the civilian police? The Minister will have noticed that I have not tried to amend Clause 128; all my focus is on the service police. If a military policeman turned up on my doorstep and asked to check out my house, I certainly would be rather concerned, hence the need for safeguards. But there seems to be no rationale for the service police being brought into this and being given these pretty extensive powers.
Earl Attlee (Con)
My Lords, the bad news is that not all service personnel are absolute angels: it could be one junior soldier stealing a mobile phone from another junior serviceman. These arrangements are very sensible, and I agree with everything that the Minister has had to say. My only question for him, while I am on my feet, is this: is there any evidence that the service police make mistakes on the procedures when they are exercising their powers? I am not aware of any problem.
Lord Katz (Lab)
I will take the last one first. I am not sure there is any evidence; I would have to look into that. To answer the more substantive intervention by the noble Lord, Lord Clement-Jones, as to why service police need the powers to deal with electronically tracked stolen goods, while service police deal with crime in the defence context, it is important that they are equipped to respond effectively to current and future trends in criminal behaviour. Obviously, the provisions in the Bill help to ensure that service police can respond with lawful, fair and proportionate action, now and in the future, to the full spectrum of criminality that threatens the cohesion and operational effectiveness of our Armed Forces. These new powers will give officers more chance of quickly finding and retrieving stolen items that are electronically tracked at premises, and reduce the risk they are lost or moved on. Maybe put it down to an overabundance of caution but also an acknowledgement that crimes that affect and have to be investigated by civilian forces can also affect and be investigated by the Armed Forces.
Lord Clement-Jones (LD)
My Lords, all I will say is that, faced with an abundance of caution—that is to say, if in doubt— “give the police powers” is not an approach that is particularly favoured on these Benches.
Lord Katz (Lab)
That is a point well made and well taken. I add that the powers would, of course, be exercised only within the jurisdiction of the service police, so service police would not suddenly be moving into areas of activity that you would expect the territorial police to be pursuing.
The noble Lord, Lord Clement-Jones, anticipated that I was winding up. I hope that my comments have reassured the noble Lord that the spirit and intention behind his amendments have been incorporated within the proposals in the Bill. In the light of my remarks, I hope that the noble Lord, Lord Davies, will withdraw his amendment.
Lord Hanson of Flint (Lab)
My Lords, these amendments build on Clauses 130 to 137, which confer powers on law enforcement agencies to extract information from online accounts as part of their investigations into immigration crime and sexual abuse cases, and to protect national security and our borders. Taken together, Amendments 441 to 444, 452, 393 and 394 ensure that the police can access information held in the online accounts of individuals subject to national security-related civil orders. These include terrorism and state threat prevention and investigation measures, as well as youth diversion orders, which are being introduced by clauses earlier in this Bill.
It is increasingly common for individuals to store data in the cloud for various reasons, such as to free up space on devices and, increasingly, because of the way devices or applications are designed, but also, regrettably, in some cases deliberately to make it less accessible to law enforcement. This is particularly the case with young people: police operational experience has shown that this cohort will regularly store data in online accounts. This data can be critical in supporting law enforcement to manage terrorist and broader national security risks. The increasing reliance on cloud data means that the police are likely to have an increased need to access cloud data as part of compliance checks where an individual—this is the important thing for the Committee—is subject to online restrictions as part of a civil order, such as the youth diversion order. These amendments will provide a clear statutory basis for officers to access cloud data when conducting a compliance check for an individual—again, this is the important point—who is subject to either a youth diversion order or a terrorism, state threat prevention or investigation measures order.
The Police, Crime, Sentencing and Courts Act 2022 contains a provision allowing for the extraction of information from electronic devices in cases where the user has died. Amendment 392 will clarify that this power also now applies to online information, as long as the authorised person is satisfied that the power is proportionate and there is no other practical way of obtaining the information.
Lastly, Amendments 389A to 389F are small but important drafting changes to Clause 132. The clause before the Committee identifies which senior officers may authorise the use of a power in Clause 130, which provides for a general extraction power for law enforcement agencies to obtain online information. Currently, the table refers to “Navy”, “Military” and “Force” but does not explicitly mention the police. I think noble Lords would wish the police to be mentioned, and therefore the amendments insert the term “Police” after each of those references to correct the omission. I hope that is clear to the Committee. This is in the specific circumstances that I have outlined in my speech, and I hope that noble Lords can accept the amendments at the appropriate time.
Lord Clement-Jones (LD)
My Lords, this grouping deals with the complex landscape of remotely stored electronic data, or what is commonly known as cloud access. Government amendments in this group, such as Amendments 393, 394 and 441, significantly expand the ability of the state to inspect online accounts through seized devices, including the interception of authentication codes. We acknowledge that, as evidence shifts from hardware to the cloud, the law must evolve. However, we remain deeply concerned by the widened scope for investigation, which carries an inherent risk of excessive prying.
These powers go beyond merely searching a phone. They allow law enforcement to walk through the digital doors of a person’s entire life—their private communications, financial history and medical records. As the Minister said, under Clause 169 these intrusive inspections can now be included as conditions of a youth diversion order. While the Government maintain that these are necessary to identify harmful online activity early, we must ensure that they are used only when strictly necessary and proportionate to protect the public from serious harm.
I ask the Minister to clarify the oversight mechanisms for these powers. We cannot allow the inspection of a child’s entire digital history to rest on a subjective belief, rather than a rigorous, objective assessment of risk. The digital ecosystem must not be a safe haven for perpetrators, but neither can it become a borderless opportunity for state surveillance.
Lord Davies of Gower (Con)
I thank the Minister for tabling, and setting out the rationale behind, this group of government amendments. Amendments 393 and 394 authorise the interception of certain communications in order to access online accounts. These amendments represent an additional measure to youth diversion orders on top of the existing powers provided to the authorities under the current drafting of the Bill.
Public safety is and should be the first priority of any Government. Youth diversion orders exist in order to curb and prevent young people from engaging in terrorist activity or associating with those affiliated to terrorist groups that seek to radicalise children. We are supportive of the measures in the Bill to increase the scope and applicability of youth diversion orders, such as Clause 167, which enables chief officers of police with the power to apply for a youth diversion order. These are necessary and proportionate measures that should be implemented in order to mitigate terrorist risk.
We on these Benches are equally supportive of the amendments in this group that are aimed at ensuring that, when youth diversion orders are made, they contain the necessary provisions to enable authorities to carry out their operations as effectively as possible. There is no point in making a youth diversion order if the provisions of that order do not sufficiently provide police with the ability to execute its objective. Terrorists and extremist groups are increasingly turning to online forums and communities in order to identify individuals for radicalisation and to spread misinformation. Therefore, where the courts deem it necessary to issue a youth diversion order, it is right that a provision of such an order can contain the inspection of any online account. Not only will that ensure that young people are kept safe from dangerous and hateful rhetoric, but it will enable authorities to understand who is targeting children and their methods of radicalisation.
It is also important that the imperative to keep the public safe is counterbalanced with appropriate regard for individual liberty. Youth diversion orders contain a number of provisions which impact on people’s daily lives, so it is right that they are sanctioned only where it is considered strictly necessary. I therefore seek assurances from the Minister that these amendments, and youth diversion orders more generally, are accompanied by having the appropriate safeguards in place to mitigate state overreach and the unnecessary deprivation of people’s freedoms and, of course, their right to privacy.
Lord Anderson of Ipswich (CB)
My Lords, the amendments in this group are designed to probe a proposed extension of counterterrorism and national security powers, usable only at ports, airports and places near the land border with Ireland, that are among the very strongest of all those powers vested in the police. I have consistently supported those powers, controversial though they once were, and I support the extension of them to data on the cloud by Clause 137. The issue raised by these amendments is whether those powers and their extension should be attended by improved but streamlined safeguards. My amendments suggest two simple and modest ways of achieving this.
Schedule 7 to the Terrorism Act 2000 and Schedule 3 to the National Security Act 2023 authorise counterterrorism police to stop any person passing through a port or airport, on a no-suspicion basis, for the purpose of determining whether they are or have been involved in terrorism or hostile activity. Such persons may be searched; they may be detained and questioned for up to six hours; they are denied the right of silence in the face of the officers’ questions; indeed, they are liable to be prosecuted if they refuse to speak. All these powers are exercisable, I repeat, on a no-suspicion basis.
There are some thousands of Schedule 7 examinations every year—well down from the peak, but still a significant number. That is not all: any “thing” that a traveller has with them can be seized and inspected, again without any need for suspicion. That power has its origins in the historical power to rummage through hand baggage, and there are all kinds of “things” in there. Thanks to modern technology, such “things” now include laptops and mobile phones. Under the existing law, the contents of these electronic devices may be copied and retained for as long as the examining officer believes that they may be needed for use as evidence in criminal proceedings, or in connection with deportation. That is fair enough in my book. In addition, however, and relevant to my proposed amendments, the contents may be copied and retained
“for as long as is necessary for the purpose of determining”
whether a person is or has been involved in terrorism or hostile activity.
Clause 137 would extend this power so that it applies not only to data that can be extracted from the phone itself but—as touched on in the previous group—to data that is accessible from the phone and stored on the cloud. This includes, for example, the entirety of a person’s Gmail account and all their iCloud photos. The operational logic of the extension is faultless: cloud storage is a fact of life. I have no problem with Clauses 130 to 134, which apply the same principle to powers that are already well attended by safeguards. But Clause 137 gives us an opportunity to reflect, not least in the light of comments from the courts, on whether the Government and your Lordships are content for data that has been seized without the need for suspicion—and which, as the noble Lord, Lord Clement-Jones, said in the previously group, increasingly encapsulates every aspect of a person’s private life—should be retained by the police without clearer parameters.
We are urged to take that opportunity to reflect by Jonathan Hall KC, my successor but one as the Independent Reviewer of Terrorism Legislation. In a note published last October, he suggested that Parliament might want to consider: what safeguards will prevent excessive data being extracted and copied; how journalistic and legally privileged material on an online account will be protected; and, given the quantity of personal data that members of the public knowingly or unknowingly hold on the cloud, accessible from their device, whether, as he put it,
“merely travelling through a port or border”
is
“a sufficient reason to surrender so much of their privacy”.
Jonathan Hall does not say for how long data is, in practice, retained for the purpose of determining whether a person is involved in terrorism or hostile activity. The experience of the old management of police information, or MoPI, regime suggests, however, that personal data may be retained in police systems for very long periods indeed, particularly when the grounds for doing so are very broadly and vaguely expressed.
As one would expect, powers as strong as these have attracted legal challenge. The leading case was brought by Mrs Beghal, who was questioned under Schedule 7 at East Midlands Airport in 2011. The essentials of Schedule 7, as it then stood, were found, in 2015, to be compatible with the European convention by a majority of the Supreme Court. Lord Kerr, followed by a unanimous first section of the European Court of Human Rights, found otherwise. Fortunately, for those tasked with defending the power in the courts, Mrs Beghal was not subject to the inspection, copying, or retention of data on her phone, let alone, of course, on the cloud, but the Supreme Court was sufficiently troubled by this aspect of the power to address the issue anyway. It did not object to the suspicionless seizure, copying and retention of data belonging to a person going through a port or airport, but it did express the view, by way of obiter dictum, in paragraph 58 of its judgment that retention beyond an initial period for the purposes of determining whether a person is involved in terrorism should require objective grounds for suspicion.
My Amendment 390 would act on that dictum of the Supreme Court in relation to the existing Schedule 7 power and the proposed amendment to it. It would fix the initial period during which no suspicion is required at three months. This might be considered rather generous to the police, given that the Supreme Court appears provisionally to have had a period closer to seven days in mind. Should Amendment 390 find favour with your Lordships, a similar amendment to Schedule 3 to the National Security Act could be tabled alongside it on Report.
My Amendment 391 is directed exclusively to the National Security Act 2023. Its Schedule 3 allows an even broader basis for retaining cloud data than the Terrorism Act. As proposed by the Government, it will be sufficient reason for retaining such data that
“the constable believes it necessary … in the interests of national security”
or the
“economic well-being of the United Kingdom”—
national security being a concept that is famously undefined in our legislation.
The test of subjective belief on the part of a constable in relation to these weighty matters is about the least onerous threshold that could be imagined. Amendment 391 would replace it with an objective test—the same objective test proposed in relation to the alternative ground for retention in new paragraph 22B(a) in the Bill. This is keyhole surgery of the most minor kind, but I suggest it is the least this situation requires.
These are probing amendments, but they go some way to meeting the challenge we have been posed by the independent reviewer. They invite discussion of a question that is surely significant by any measure: are we or are we not prepared to contemplate meaningful limits on police retention of the most extensive private details of the lives of people who have done nothing more suspicious than pass through a port or airport? I beg to move.
Lord Clement-Jones (LD)
My Lords, I support Amendments 390 and 391 tabled by the noble Lord, Lord Anderson of Ipswich, which I have signed. As he has explained, these amendments are designed to probe the proposed extension of border powers. These are powers which are already among the strongest vested in the police, which are useable at ports, airports and near the land border with Ireland.
The Committee needs very little reminder of the pedigree of the noble Lord, Lord Anderson, as the Independent Reviewer of Terrorism Legislation. This informs his view of these new powers under Clauses 135 to 137, which represent a major extension of state reach. They extend the existing power to seize a physical device to include data that is accessible from a phone but stored in the cloud. We are no longer talking about just a handset, but the entirety of a person’s Gmail account, iCloud photo library and private digital history. Although the operational logic of following data in the cloud is understandable, we should reflect that this information is seized without the need for prior suspicion of an offence. As the successor of the noble Lord, Lord Anderson, the current Independent Reviewer of Terrorism Legislation, Jonathan Hall KC, has asked,
“is merely travelling through a port of border a sufficient reason”
for a citizen
“to surrender so much of their privacy?”
As the noble Lord, Lord Anderson, said, Amendment 390 would introduce a vital safeguard based on the Supreme Court’s judgment in Beghal v DPP, which stipulates that if the police wish to retain the extracted cloud data for longer than three months they must have reasonable grounds to suspect the individual is involved in terrorism or hostile activity. We cannot allow the digital core of an innocent traveller to be duplicated and kept indefinitely by the state simply because they pass through a port of entry, as the noble Lord said.
As the noble Lord said, Amendment 391 is directed at the National Security Act 2023. As it is currently drafted, the Government would allow the retention of cloud data based on the purely subjective test that the constable believes that it is necessary. This is perhaps the least onerous threshold imaginable in our law. Amendment 391 would perform what the noble Lord, Lord Anderson, described as minor “keyhole surgery” by replacing this subjective belief with an objective test of necessity, which would ensure that the retention of highly sensitive personal data, which may include journalistic or legally privileged material, was governed by an actual legal standard that can be scrutinised, rather than a mere hunch or the personal belief of an individual officer.
Lord Hanson of Flint (Lab)
I hope I can help the noble Lord. The Schedule 7 and Schedule 3 powers are exercised at pace. Some investigations, particularly those involving complex or sensitive matters, could well extend beyond three months. Evidence often emerges gradually and may be fragmented.
Statutory codes of practice provide a flexible and responsive mechanism for setting out detailed safeguards and allow for timely updates on operational and legal contexts. If we embed such details in primary legislation, with due respect to the noble and learned Baroness, that would create inflexibility and mean that we may not keep pace with changing threats or operational realities. The codes are subject to parliamentary scrutiny; they can be revised as needed and ensure robust protection. That is why I have put that argument before the Committee. If it feels that that argument is not acceptable, we will have to have that discussion later on. That is my defence against having keyhole surgery at this time.
Lord Clement-Jones (LD)
The noble Lord, Lord Anderson, will respond shortly, but I am sure the Minister realises that he cannot sit down quite yet. He talked about the process, the statutory guidance and so on, but does he accept the substance of the amendments and has he given an assurance to the Committee that, if it were agreed hypothetically that the statutory code guidance was an acceptable way forward, the substance of these amendments would be incorporated into it? Does he accept the case made so eloquently by the noble Lord, Lord Anderson?
Lord Hanson of Flint (Lab)
I think I have said that the points raised by the noble Lord, Lord Anderson, are worthy of reflection, but we will put the discussion ultimately into the code of practice. The final settlement will be a consultation on the code of practice. I have heard what has been said today. There will be a consultation and an opportunity for the noble Lord, with his former hat on and his position in this House, and others to comment on it. That is the case I am making and I hope I have convinced the Committee. If not, methods are available. Given the late hour and the amendment target we are trying to reach, I will rest my case.
Lord Clement-Jones (LD)
My Lords, I am afraid that noble Lords are going to get the full set today. I support my noble friend’s Amendment 396, which is the meat of this group of amendments. It was proposed by my noble friend Lady Doocey and signed by me, and it addresses the profound privacy implications of Clause 138. While the Government describe the clause as a technical clarification of access to DVLA records, we on these Benches and groups such as Big Brother Watch see it as the foundation for a vast national facial recognition database. It is also a massive pre-emption, in our view, of the consultation on live facial recognition which is currently being conducted by the Government.
This amendment provides a specific and essential statutory bar. Authorised persons may not use DVLA information for biometric searches using facial recognition technology. Members of the public applying for driving licences do so to drive cars, not to be placed in a permanent digital lineup without their consent—and we know that facial recognition technology is demonstrably biased, as we discussed earlier today. Expanding its use to a database of tens of millions of law-abiding citizens would be a grossly disproportionate interference with the right to privacy under Article 8 of the ECHR. The Government claim that this is not their intention, yet they have not put that promise in the Bill.
If the Minister is sincere that this power will not be used for mass biometric surveillance, he should have no objection to this amendment. We cannot allow the end of anonymity in public spaces to be achieved through a legislative back door. We are being asked to buy into a massive extension of police access to biometric information. The technology represents a monumental shift in the relationship between the citizen and the state. Such a shift must be governed by Parliament, not by secret police watch lists. As my noble friend Lady Doocey said, this can only lead to further erosion of public trust in the police unless these safeguards are installed.
Lord Davies of Gower (Con)
My Lords, this group of amendments raises important questions about the use of data, modern policing techniques and the appropriate safeguards that must accompany them. We are sympathetic to the principle that underpins government Amendment 394A. It respects the devolution settlement in Northern Ireland and the constitutional and operational sensitivities around policing. There is a careful balance that must be struck between maintaining consistency across the United Kingdom, respecting the powers of devolved Administrations and ensuring that law enforcement agencies have the tools they need to keep the public safe.
There is also a parallel balance that must be struck between safeguarding individual liberties and being robust in tackling crime. While we recognise the intent behind the amendment, we also acknowledge that the Government must retain sufficient flexibility to ensure effective and coherent law enforcement arrangements across all parts of the UK. I look forward to hearing the Minister’s response in addressing both these issues.
Amendment 396 would prohibit the use of the DVLA database for searches using live facial recognition technology. It will probably come as no surprise that we are firmly opposed to that restriction, as it would undermine one of the key inputs on which the success of live facial recognition hinges. Live facial recognition is an important and increasingly effective tool in modern policing. Used lawfully and proportionately, it has already demonstrated its value in identifying serious offenders, locating wanted individuals and preventing violent crime before it occurs. It is particularly effective in high-crime environments and transport hubs, where the risk of serious harm is elevated and where rapid identification can make a decisive difference.
Equally, across the DVLA, using driver licensing data for law enforcement purposes is not new: nor is it unregulated. Clause 138 ensures that the use of this is accompanied by safeguards, regulation-making powers to the Secretary of State, consultation requirements, a statutory code of practice and annual reporting to Parliament. These measures are designed to ensure proportionality and accountability. To carve out facial recognition from this framework would unnecessarily impede law enforcement’s ability to use the technology effectively. It would also deny the police the ability to use accurate and targeted technology to identify individuals suspected of serious criminality, even where strong safeguards are in place.
I therefore welcome the opportunity for the Minister to expand on how facial recognition fits within this framework and on the safeguards that will ensure that its use is proportionate and effective. But we should be clear that this technology, which can save lives, disrupt violent crime and protect the public, should not be ruled out by default.