Counter-Terrorism and Border Security Bill (HL Bill 153)

(a) the further fingerprints may be retained for as long as the
original fingerprints are retained under any power
conferred by paragraph 8, 9 or 11, and

(b) a requirement under any enactment to destroy the further
5fingerprints does not apply for as long their retention is
authorised by paragraph (a).

(6) Sub-paragraph (5)(a) does not prevent the further fingerprints
being retained after the original fingerprints fall to be destroyed if
the continued retention of the further fingerprints is authorised
10under any enactment.

(7) A written record must be made of a determination under this
paragraph.

(8) In this paragraph—

(a) “enactment” includes—

(i) 15an enactment comprised in, or in an instrument
made under, an Act of the Scottish Parliament, and

(ii) an enactment comprised in, or in an instrument
made under, Northern Ireland legislation;

(b) references to a part of the United Kingdom are references
20to—

(i) England and Wales,

(ii) Scotland, or

(iii) Northern Ireland.”

Protection of Freedoms Act 2012

18 25Part 6 of Schedule 1 to the Protection of Freedoms Act 2012 (material subject
to the Police and Criminal Evidence (Northern Ireland) Order 1989) is
amended as follows.

19 In paragraph 7, in sub-paragraph (3)(b) for “2 years” substitute “5 years”.

20 After paragraph 7 insert—

“7A (1) 30This paragraph applies where—

(a) fingerprints to which paragraph 7 applies have been taken
from a person (“the original fingerprints”), and

(b) a national security determination under that paragraph is
made in relation to the original fingerprints.

(2) 35A constable may make a determination under this paragraph in
respect of any further fingerprints taken from the same person
(“the further fingerprints”) if condition 1 or condition 2 is met.

(3) Condition 1 is met if—

(a) the further fingerprints are fingerprints to which
40paragraph 7 applies, and

(b) the further fingerprints or the original fingerprints were
taken in connection with a terrorist investigation, as
defined by section 32 of the Terrorism Act 2000.

(4) Condition 2 is met if the further fingerprints were taken from the
45person in Northern Ireland under—

(a) paragraph 10 of Schedule 8 to the Terrorism Act 2000,

(b) paragraph 1 of Schedule 6 to the Terrorism Prevention and
Investigation Measures Act 2011, or

(c) paragraph 34 of Schedule 3 to the Counter-Terrorism and
5Border Security Act 2018.

(5) Where a determination under this paragraph is made in respect of
the further fingerprints—

(a) the national security determination made in relation to the
original fingerprints also applies in relation to the further
10fingerprints, and

(b) a requirement under any enactment to destroy the further
fingerprints does not apply for as long as the national
security determination has effect.

(6) A written record must be made of a determination under this
15paragraph.

(7) In this paragraph “enactment” includes an enactment comprised
in, or in an instrument made under, Northern Ireland legislation.”

Section 22

SCHEDULE 3 Border security

20  Part 1 Powers

Power to stop, question and detain

1 (1) An examining officer may question a person for the purpose of determining
whether the person appears to be a person who is, or has been, engaged in
25hostile activity if condition 1 or condition 2 is met.

(2) Condition 1 is met if—

(a) the person is at a port or in the border area, and

(b) the examining officer believes that the person’s presence at the port
or in the border area is connected with the person’s—

(i) 30entry into, or departure from, Great Britain or Northern
Ireland, or

(ii) travel by air within Great Britain or Northern Ireland.

(3) Condition 2 is met if the person is on a ship or aircraft which has arrived at
any place in Great Britain or Northern Ireland (whether from within or
35outside Great Britain or Northern Ireland).

(4) An examining officer may exercise the powers under this paragraph
whether or not there are grounds for suspecting that a person is or has been
engaged in hostile activity.

(5) A person is or has been engaged in hostile activity for the purposes of this
40Schedule if the person is or has been concerned in the commission,
preparation or instigation of a hostile act that is or may be—

(a) carried out for, or on behalf of, a State other than the United
Kingdom, or

(b) otherwise in the interests of a State other than the United Kingdom.

(6) An act is a “hostile act” if it—

(a) 5threatens national security,

(b) threatens the economic well-being of the United Kingdom in a way
relevant to the interests of national security, or

(c) is an act of serious crime.

(7) For the purposes of this paragraph—

(a) 10it is immaterial—

(i) whether a person is aware that activity in which they are or
have been engaged is hostile activity, or

(ii) whether a State for or on behalf of which, or in the interests
of which, a hostile act is carried out has instigated,
15sanctioned, or is otherwise aware of, the carrying out of the
act;

(b) “State” includes the government of a State and any organ of its
government;

(c) references to a State other than the United Kingdom include
20references to any territory outside the United Kingdom;

(d) the reference to serious crime is to crime where—

(i) the offence, or one of the offences, which is or would be
constituted by the conduct concerned is an offence for which
a person who has reached the age of 18 (or, in relation to
25Scotland or Northern Ireland, 21) and has no previous
convictions could reasonably be expected to be sentenced to
imprisonment for a term of 3 years or more, or

(ii) the conduct involves the use of violence, results in substantial
financial gain or is conduct by a large number of persons in
30pursuit of a common purpose.

2 An examining officer may question a person who is in the border area for the
purpose of determining whether the person’s presence in the area is
connected with the person’s entry into, or departure from, Northern Ireland.

3 A person (“P”) questioned under paragraph 1 or 2 must—

(a) 35give the examining officer any information in P’s possession that the
officer requests;

(b) give the examining officer on request either a valid passport which
includes a photograph or another document which establishes P’s
identity;

(c) 40declare whether any documents of a kind specified by the examining
officer are in P’s possession;

(d) give the examining officer on request any such document.

4 (1) For the purposes of exercising a power under paragraph 1 or 2 an examining
officer may—

(a) 45stop a person or vehicle;

(b) detain a person.

(2) For the purpose of detaining a person under this paragraph, an examining
officer may authorise the person’s removal from a ship, aircraft or vehicle.

(3) Where a person is detained under this paragraph the provisions of Parts 2
and 3 of this Schedule (detention and review of detention) apply.

(4) The power conferred by sub-paragraph (1)(a) to stop a vehicle does not
include a power to stop an aircraft that is airborne.

5 (1) 5This paragraph applies where a person is questioned under paragraph 1 or
2.

(2) At the end of the 1 hour period, the person may not be questioned under
either of those paragraphs unless the person is detained under paragraph 4.

(3) If the person is detained under paragraph 4, the person must be released not
10later than the end of the 6 hour period (unless detained under another
power).

(4) In this paragraph—

• “the 1 hour period” is the period of 1 hour beginning with the time the
  person is first questioned under paragraph 1 or 2;

• 15“the 6 hour period” is the period of 6 hours beginning with that time.

(5) If a person detained under paragraph 4 is removed to hospital because the
person needs medical treatment—

(a) any time during which the person is being questioned under
paragraph 1 or 2 in hospital or on the way there or back is to be
20included in calculating the 6 hour period, but

(b) any other time when the person is in hospital or on the way there or
back is not to be included.

6 (1) An answer or information given orally by a person in response to a question
asked under paragraph 1 or 2 may not be used in evidence in criminal
25proceedings.

(2) Sub-paragraph (1) does not apply—

(a) in the case of proceedings under paragraph 23,

(b) on a prosecution for perjury, or

(c) on a prosecution for some other offence where, in giving evidence,
30the person makes a statement inconsistent with the answer or
information mentioned in sub-paragraph (1).

(3) A statement may not be used by virtue of sub-paragraph (2)(c) unless—

(a) evidence relating to it is adduced, or

(b) a question relating to it is asked,

35by or on behalf of the person in the proceedings arising out of the
prosecution.

(4) In sub-paragraph (2)(b) the reference to a prosecution for perjury is—

(a) in the case of England and Wales, a reference to a prosecution for an
offence under section 5 of the Perjury Act 1911;

(b) 40in the case of Northern Ireland, a reference to a prosecution for an
offence under Article 10 of the Perjury (Northern Ireland) Order 1979
(S.I. 1979/1714 (N.I. 19)).

Searches

7 An examining officer may, for the purpose of determining whether there are
any persons the officer may wish to question under paragraph 1—

(a) search a ship or aircraft;

(b) 5search anything on a ship or aircraft;

(c) search anything that the officer reasonably believes has been, or is
about to be, on a ship or aircraft.

8 (1) An examining officer who questions a person under paragraph 1 may—

(a) search the person;

(b) 10search anything on a ship or aircraft that the person has with them or
which belongs to them;

(c) search anything which the person has with them or which belongs to
them and which the officer reasonably believes has been, or is about
to be, on a ship or aircraft;

(d) 15search a ship or aircraft for anything falling within paragraph (b);

(e) search a vehicle which is on a ship or aircraft;

(f) search a vehicle which the officer reasonably believes has been, or is
about to be, on a ship or aircraft.

(2) Where an examining officer questions a person in the border area under
20paragraph 1 the officer may (in addition to the matters specified in sub-
paragraph (1))—

(a) search a vehicle;

(b) search anything in or on a vehicle;

(c) search anything which the officer reasonably believes has been, or is
25about to be, in or on a vehicle.

(3) The powers conferred by sub-paragraphs (1) and (2) are exercisable only for
the purposes of determining whether a person is or has been engaged in
hostile activity.

(4) A search of a person under this paragraph—

(a) 30must be carried out by somebody of the same sex;

(b) does not extend to the carrying out of an intimate search.

(5) A strip search of a person may not be carried out under this paragraph
unless—

(a) the person is detained under paragraph 4,

(b) 35the examining officer has reasonable grounds to suspect that the
person is concealing something which may be evidence that the
person is or has been engaged in hostile activity, and

(c) the search is authorised by a senior officer who has not been directly
involved in the questioning of the person.

(6) 40“Senior officer” means—

(a) where the examining officer is a constable, a constable of a higher
rank than the examining officer,

(b) where the examining officer is an immigration officer, an
immigration officer of a higher grade than the examining officer, and

(c) 45where the examining officer is a customs officer, a customs officer of
a higher grade than the examining officer.

(7) In this paragraph—

• “intimate search” means a search which consists of a physical
  examination of a person’s body orifices other than the mouth;

• “strip search” means a search which is not an intimate search but
  5involves the removal of an article of clothing which—

  (a)

  is being worn wholly or partly on the trunk, and

  (b)

  is being so worn either next to the skin or next to an article of
  underwear.

9 (1) An examining officer may examine goods to which this paragraph applies
10for the purpose of determining whether they have been used in connection
with a person’s engagement in hostile activity.

(2) This paragraph applies to—

(a) goods which have arrived in or are about to leave Great Britain or
Northern Ireland on a ship or vehicle, and

(b) 15goods which have arrived at or are about to leave any place in Great
Britain or Northern Ireland on an aircraft (whether the place they
have come from or are going to is within or outside Great Britain or
Northern Ireland).

(3) The reference in sub-paragraph (2)(a) to goods which are about to leave
20Great Britain or Northern Ireland on a ship includes goods which—

(a) are held at premises operated by a sea cargo agent, and

(b) are to be delivered to a place in Great Britain or Northern Ireland for
carriage on a ship.

(4) The reference in sub-paragraph (2)(b) to goods which are about to leave any
25place in Great Britain or Northern Ireland on an aircraft includes goods
which—

(a) are held at premises operated by an air cargo agent, and

(b) are to be delivered to a place in Great Britain or Northern Ireland for
carriage on an aircraft.

(5) 30An examination under this paragraph may be carried out only—

(a) at a port;

(b) at premises operated by a sea cargo agent or an air cargo agent;

(c) at a transit shed;

(d) at a designated examination location.

(6) 35For the purposes of determining whether to carry out an examination under
this paragraph an examining officer may—

(a) board a ship or aircraft;

(b) enter premises operated by a sea cargo agent or an air cargo agent;

(c) enter a transit shed;

(d) 40enter a designated examination location.

(7) In this paragraph—

• “air cargo agent” has the meaning given by section 21F(1) of the
  Aviation Security Act 1982;

• “designated examination location” means a location designated by the
  45Secretary of State under paragraph 9(2D) of Schedule 7 to the
  Terrorism Act 2000;

• “goods” includes property of any description and containers;

Counter-Terrorism and Border Security BillPage 46

• “sea cargo agent” has the meaning given by section 41(1) of the
  Aviation and Maritime Security Act 1990;

• “transit shed” has the meaning given by section 25A of the Customs
  and Excise Management Act 1979.

10 (1) 5An examining officer may authorise a person to carry out on the officer’s
behalf a search or examination under any of paragraphs 7  to 9.

(2) A person authorised under this paragraph is to be treated as an examining
officer for the purposes of—

(a) paragraphs 9(6) and 11, and

(b) 10Part 4 of this Schedule.

Retention of property

11 (1) This paragraph applies to any article which—

(a) is given to an examining officer in accordance with paragraph 3(d),

(b) is searched or found on a search under paragraph 8, or

(c) 15is examined under paragraph 9.

(2) An examining officer may retain the article—

(a) for the purpose of examination, for a period not exceeding 7 days
beginning with the day on which the retention commences,

(b) while the officer believes that it may be needed for use as evidence in
20criminal proceedings,

(c) while the officer believes that it may be needed in connection with a
decision of the Secretary of State whether to make a deportation
order under the Immigration Act 1971,

(d) while the officer believes that it could be used in connection with the
25carrying out of a hostile act, or

(e) while the officer believes it necessary to do so for the purpose of
preventing death or significant injury.

12 (1) This paragraph applies in relation to an article retained by virtue of
paragraph 11(2)(d) or (e), other than an article in respect of which an
30authorisation is granted under paragraph 14.

(2) The Investigatory Powers Commissioner (“the Commissioner”) must be
informed of the article’s retention as soon as is reasonably practicable.

(3) Sub-paragraph (4) applies where it appears to the Commissioner that there
are reasonable grounds to believe—

(a) 35that the article has been or could be used in connection with the
carrying out of a hostile act, or

(b) that returning the article to the person from whom it was taken could
result in a risk of death or significant injury to any person.

(4) The Commissioner may—

(a) 40direct that the article is destroyed, or

(b) authorise the retention and use of the article (subject to sub-
paragraph (5)).

(5) The Commissioner may authorise the retention and use of an article under
sub-paragraph (4)(b) that consists of or includes confidential material only if
45satisfied that—

(a) arrangements are in place that are sufficient for ensuring that the
material is retained securely, and

(b) the material will be used only so far as necessary and proportionate
for a relevant purpose.

(6) 5If the Commissioner does not proceed under sub-paragraph (4) in relation to
an article, the Commissioner must (subject to sub-paragraph (7)) direct that
the article is returned to the person from whom it was taken.

(7) Sub-paragraph (6) does not apply if the article is further retained under a
power conferred by paragraph 11(2)(b) or (c).

(8) 10In authorising the retention and use of an article under this paragraph the
Commissioner may impose whatever conditions the Commissioner thinks
appropriate in relation to its retention and use.

(9) For the purposes of sub-paragraph (5)(b), the use of material is necessary for
a relevant purpose if it is necessary—

(a) 15in the interests of national security,

(b) in the interests of the economic well-being of the United Kingdom so
far as those interests are also relevant to the interests of national
security,

(c) for the purpose of preventing or detecting serious crime, or

(d) 20for the purpose of preventing death or significant injury.

(10) In this paragraph “confidential material” means—

(a) confidential journalistic material, within the meaning of the
Investigatory Powers Act 2016 (see section 264(6) and (7) of that Act),
and

(b) 25protected material as defined by sub-paragraph (11).

(11) “Protected material”—

(a) in relation to England and Wales, means—

(i) items subject to legal privilege, within the meaning of the
Police and Criminal Evidence Act 1984 (see section 10 of that
30Act),

(ii) material falling within section 11(1)(a) or (b) of that Act
(certain personal records, human tissue or tissue fluid held in
confidence), or

(iii) material to which section 14(2) of that Act applies (other
35material acquired in course of a trade etc that is held in
confidence);

(b) in relation to Scotland, means—

(i) items in respect of which a claim to confidentiality of
communications could be maintained in legal proceedings,
40or

(ii) other material of a kind mentioned in paragraph (a)(ii) or (iii)
of this sub-paragraph;

(c) in relation to Northern Ireland, means—

(i) items subject to legal privilege, within the meaning of the
45Police and Criminal Evidence (Northern Ireland) Order 1989
(S.I. 1989/1341 (N.I. 12)) (see Article 12 of that Order),

(ii) material falling with Article 13(1)(a) or (b) of that Order
(certain personal records, human tissue or tissue fluid held in
confidence), or

(iii) material to which Article 16(2) of that Order applies (other
5material acquired in the course of a trade etc that is held in
confidence).

13 (1) Before proceeding under paragraph 12 in relation to an article, the
Commissioner—

(a) must invite each affected party to make representations, before the
10end of whatever period the Commissioner may specify, about how
the Commissioner should proceed under that paragraph, and

(b) must have regard to any representations made by an affected party
before the end of that period.

(2) Where a Judicial Commissioner, other than the Investigatory Powers
15Commissioner, exercises a function under paragraph 12 in relation to an
article, an affected party may ask the Investigatory Powers Commissioner to
decide whether to approve the way in which the function was exercised.

(3) Each of the following is an “affected party” for the purposes of this
paragraph—

(a) 20where the examining officer is a constable, the responsible chief
officer,

(b) the Secretary of State, and

(c) the person from whom the article was taken.

(4) In sub-paragraph (3) “responsible chief officer” means—

(a) 25in a case where the article was taken in connection with an
investigation being conducted by a police force in England and
Wales, the chief officer of police of that police force;

(b) in a case where the article was taken in connection with an
investigation being conducted by the Police Service of Scotland, the
30chief constable of the Police Service of Scotland;

(c) in a case where the article was taken in connection with an
investigation being conducted by the Police Service of Northern
Ireland, the Chief Constable of the Police Service of Northern
Ireland;

(d) 35in any other case—

(i) where the examining officer is a constable of a police force in
England and Wales, the chief officer of police of that police
force,

(ii) where the examining officer is a constable of the Police
40Service of Scotland, the chief constable of the Police Service of
Scotland, or

(iii) where the examining officer is a constable of the Police
Service of Northern Ireland, the Chief Constable of the Police
Service of Northern Ireland.

(5) 45Sub-paragraph (6) applies where —

(a) a direction for the destruction of an article is given under paragraph
12, or

(b) authorisation for the retention and use of an article is granted under
that paragraph.

(6) The Commissioner must inform the person from whom the article was taken
that—

(a) a direction to destroy the article has been given, or

(b) (as the case may be) authorisation to retain and use the article has
5been granted (and in this case the Commissioner must provide
details of any conditions subject to which that authorisation was
given).

(7) A requirement under this paragraph to invite representations from, or to
provide information to, the person from whom an article was taken applies
10only so far as it is reasonably practicable to do so.

(8) Representations under sub-paragraph (1) must be made in writing.

14 (1) This paragraph applies where—

(a) an article is retained by virtue of paragraph 11(2)(d) or (e), and

(b) the examining officer who retained the article considers that the
15urgency condition is met in relation to the article.

(2) The urgency condition is met in relation to an article if—

(a) there is an urgent need for the article to be examined or otherwise
used for the purpose of preventing—

(i) the carrying out of a hostile act, or

(ii) 20death or significant injury,

or for the purpose of mitigating the risk of any such act, death or
injury occurring, and

(b) the time it would take for the requirements of paragraphs 12 and 13
to be complied with in relation to the article would not enable such
25use to take place with sufficient urgency.

(3) The examining officer may apply to a senior officer for authorisation to
continue to retain and use the article.

(4) An application under sub-paragraph (3) in relation to an article may be
made only to a senior officer who has not been directly involved in the
30exercise of any power under this Part of this Schedule to take the article or
to question a person from whom the article was taken.

(5) A senior officer may grant an authorisation under this paragraph for the
retention and use of the article if satisfied—

(a) that there are reasonable grounds for considering that the urgency
35condition is met in relation to the article, and

(b) in the case of an article that consists of or includes confidential
material, that—

(i) arrangements are in place that are sufficient for ensuring that
the material is retained securely, and

(ii) 40the material will be used only so far as necessary and
proportionate for a purpose mentioned in sub-paragraph
(2)(a).

(6) An authorisation under this paragraph—

(a) must be recorded in writing;

(b) 45may be granted subject to whatever conditions the senior officer
thinks appropriate.