Terrorism Act 2000 (Alterations to the Search Powers Code for England and Wales and Scotland) Order 2022

Lord Coaker Excerpts

Tuesday 11th October 2022 Grand Committee

[Lord Paddick (LD)]

My Lords, I congratulate the Minister on his elevation to Home Office Minister. If it were me, I would also be thinking, “Oh goodness, what have I done?”, but I am sure he will be excellent in his new role. I thank him for explaining this order. As when we considered the primary legislation that lies behind this order, clearly we are supportive of the changes in the legislation. We know from the tragedy at Fishmongers’ Hall how the risk posed by offenders on licence is an inexact science. These additional powers for the police to stop and search people on licence on the recommendation of the Parole Board are an important tool in trying to manage that risk and act as a deterrent to those on licence from carrying out the sort of appalling attacks that we saw at Fishmongers’ Hall.

As the Minister explained, the order is about the revised code of practice, which is quite a lengthy document. We are here to hold the Government to account for, in this case, the changes that have been made to the extensive code of practice. I understand the issues around the change in the legislation and Section 43C but, as the Explanatory Memorandum and the Minister have explained, a series of other amendments have been made to the code. The Explanatory Memorandum says that these “include”, and then gives a list of those changes, as the Minister explained. It would be extremely helpful to have a “track changes” copy of the code of practice so that we could see exactly what the changes are to the revised code of practice. Although the changes to incorporate the new Section 43C are fairly obvious, as I say, the others are difficult to find in among the code of practice. However, this is an important step forward in terms of giving these additional powers to the police for those who may pose a risk after they have been released from prison, and it is important for the police to have a code of practice to go with those changes. Having said that, we are supportive of the order.

[Lord Coaker (Lab)]

I congratulate the noble Lord, Lord Sharpe, on his promotion and wish him well in his task—not too well, perhaps, but pretty well. But seriously, I know that he will be diligent in the execution of his duties and will work with his usual co-operative manner.

We too support what is obviously a very sensible and necessary step forward by the Government. I have a couple of questions that I want to ask. The Fishmongers’ Hall attack clearly highlighted some problems, which the independent reviewer took up and made recommendations about. It is good that the Government have reacted and responded to that. Along with the noble Lord, Lord Paddick, we support what they are doing here.

The order is called the Terrorism Act 2000 (Alterations to the Search Powers Code for England and Wales and Scotland) Order 2022. It revises the code of practice with respect to those three, yet its extent is to the whole of the UK, which includes Northern Ireland. I do not quite understand how a code that relates to three parts of the UK extends to all four. You would expect the title to refer to England, Wales, Scotland and Northern Ireland.

We all appreciate the sensitivity in Northern Ireland, but can the Minister explain how a British order, which does not include Northern Ireland, extends to the whole of the UK, as in the notes? If there has been widespread consultation, does that include Northern Ireland and who has it been with, notwithstanding that the Northern Ireland Assembly has not been sitting? I just do not understand the process or how that works. I am sure there is a very simple reason laid out by somebody, but I cannot find it. I do not understand this, but it is laid out in the order.

The Explanatory Memorandum says that this new power can be used with a convicted terrorist who is released on licence, provided that a search power is included in the licence. Can the Minister explain for all our benefit in what circumstances a terrorist released from prison would not have a search power included in their licence? If that were the case, what power would a police officer or whoever else have with respect to a potential terrorist?

One would assume—the noble Lord, Lord Paddick, would know better than me—that if a police officer thought a terrorist act was about to be committed, they would have a power to try to do something about that. If that is the case, why would you have a new power included in the Act? In other words, what is the purpose of including the search power in the Act and in what circumstances would you not have that anyway? That would be interesting to know.

Can the Minister say a little more about the thresholds? It seems to me that in most cases, and particularly in Section 43C, we are talking about powers to search without suspicion. What are the thresholds for that? Is that where the officer has a belief that a terrorist act is going to be committed, even though they have no grounds for that? How does that happen?

As the noble Lord, Lord Paddick, quite rightly said, there are a number of changes. The Government talk about minor changes being made, but it is very difficult to understand what those changes are and to track them through. For example, the Minister said that there are examples in the code of what a police officer can or cannot do with respect to clothing or in a public place. Is this the same or has that changed as a result of the new power that this secondary legislation gives to police officers? Is there any change in relation to who can carry out the search—for example, a female officer searching a male terrorist, or the other way around?

The Minister talked about children and this applying to children under 18. Is there a lower age limit? What do we mean by children? I understand that children means those under 18, but is there a lower limit or does this apply to anybody, irrespective of age, who a police officer believes may be about to commit a terrorist act?

As the noble Lord, Lord Paddick, said, the questions we have laid out are important because public confidence, particularly in the use of stop and search without suspicion, is of real importance. I would be keen to hear what steps the Government have taken to ensure that public confidence has been and will be sought in some of these situations. One can imagine the difficulty for the police operating in communities where this power might be used and the sensitivity of it.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, first, I thank both noble Lords for their warm welcome; I hope that we continue to operate in total agreement.

[Lord Coaker (Lab)]

I am not sure about that.

[Lord Sharpe of Epsom (Con)]

I am not sure about that either, but we will try.

On the specific points that both noble Lords raised, to the noble Lord, Lord Paddick, we will be happy to provide a tracked change version as he requested, and I will make sure he gets that as soon as possible. That was the easy question.

Moving to the questions of the noble Lord, Lord Coaker, I shall try to deal with them in order. He asked about the extent of the code of practice and why it is confined to Great Britain. A separate code exists for stop and search powers under the Terrorism Act in Northern Ireland—a fact that the noble Lord alluded to. The Northern Ireland Office is responsible for that. We continue to work with colleagues there and offer them support in updating their equivalent code in Northern Ireland, which they have advised is likely to happen next year.

[Lord Coaker (Lab)]

I just ask, because this is a very important point. The new power exists with respect to Northern Ireland, but the code of practice under which it operates is separate, legislated for under a different Act and in a different way. Is that correct—the power is a new power to be extended to Northern Ireland?

[Lord Sharpe of Epsom (Con)]

As I understand it, it could be extended to Northern Ireland, but the Northern Ireland Office is, of course, responsible for the application of such things in Northern Ireland. I may not be entirely correct on that, so I will come back to the noble Lord if I am not.

[Lord Coaker (Lab)]

I am sorry to labour this point, but it is so important. I may be wrong, but I understood the Minister to be saying that a different code of practice applies to Northern Ireland, hence this is called a code of practice for England, Scotland and Wales—in other words, Britain. For Northern Ireland, there is a separate code of practice. Given that the new power extends to the whole of the UK, one presumes that the police and others in Northern Ireland will have the ability to stop and search without reasonable suspicion a terrorist out on licence, where that is part of their licence. Is that the case or not?

[Lord Sharpe of Epsom (Con)]

To clarify—I think this does—the new search power applies UK-wide, but there are two separate codes. Does that make sense?

[Lord Coaker (Lab)]

That makes absolute sense. It is not what I understood the Minister to say in the first place, but I was just trying to clarify that. If I had realised that, I would have made different remarks, because it is a quite interesting extension of power with respect to Northern Ireland, for obvious reasons.

[Lord Sharpe of Epsom (Con)]

Understood. The noble Lord asked me how it is determined who qualifies under the new code. To go back to the point I made in my opening remarks, in most cases the Parole Board determines whether it is appropriate for the offender, when released, to have their licensing condition expressed as a part of the conditions of their release. Its assessment is based on a contemporary assessment of the offender’s risk profile, including whether they are judged to represent a high or very high risk to the public.

How is it determined which terrorist offenders should have licence conditions permitting the search imposed on them? As I say, it is imposed on offenders convicted of terrorism or a terrorism-connected offence and assessed as posing a high or very high risk of serious harm. In those cases, it may be imposed where there is a concern that the offender may carry a weapon or to provide an additional protection for staff—for example, where they are subject to polygraph testing, a search can be carried out prior to the examination for the safety of the examiner. I hope that clarifies that.

The noble Lord, Lord Coaker, asked about the sex of the searching officer. The answer to his specific question is no: a same-sex officer is not required unless the individual being searched requests one. The noble Lord also referenced the data that is collected. I can assure him that it will be extensive. He asked about age as well. I will come back to him on that; I do not have a specific answer. The notes I have deal only with the 18 year-old point.

In closing, I reiterate that this order provides for alterations that the Government have made to the code of practice for the exercise of search powers conferred by the Terrorism Act 2000 to be brought into force. I think I have covered the rest of the information requested, and as such I commend this order to the Committee.