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The Committee consisted of the following Members:

Chairman: Sir Nicholas Winterton
Blunt, Mr. Crispin (Reigate) (Con)
Burns, Mr. Simon (West Chelmsford) (Con)
Coaker, Mr. Vernon (Minister for Security, Counter-Terrorism, Crime and Policing)
Davies, David T.C. (Monmouth) (Con)
George, Mr. Bruce (Walsall, South) (Lab)
Gerrard, Mr. Neil (Walthamstow) (Lab)
Holmes, Paul (Chesterfield) (LD)
Huhne, Chris (Eastleigh) (LD)
McCabe, Steve (Lord Commissioner of Her Majesty's Treasury)
Mercer, Patrick (Newark) (Con)
Soames, Mr. Nicholas (Mid-Sussex) (Con)
Todd, Mr. Mark (South Derbyshire) (Lab)
Truswell, Mr. Paul (Pudsey) (Lab)
Twigg, Derek (Halton) (Lab)
Whitehead, Dr. Alan (Southampton, Test) (Lab)
Wilson, Phil (Sedgefield) (Lab)
Mark Etherton, Committee Clerk
† attended the Committee

Third Delegated Legislation Committee

Tuesday 28 April 2009

[Sir Nicholas Winterton in the Chair]

Draft Terrorism Act 2000 (Code of Practice for Examining Officers) (Revision) Order 2009
The Chairman: I invite the Committee to consider the draft Terrorism Act 2000 (Code of Practice for Examining Officers) (Revision) Order 2009 at length.
4.30 pm
The Minister for Security, Counter-Terrorism, Crime and Policing (Mr. Vernon Coaker): I beg to move,
That the Committee has considered the draft Terrorism Act 2000 (Code of Practice for Examining Officers) (Revision) Order 2009.
It is a pleasure to serve under your chairmanship, Sir Nicholas. As I remarked to you earlier, our paths seem to cross in several ways, in Bill Committees and other Committees. I welcome all hon. Members to the Committee this afternoon, particularly the hon. Member for Reigate. He and I have been members of various Committees together and he has asked me questions during Question Time on the Floor of the House, but this is the first time that I have faced him as a spokesman in Committee. I congratulate him formally, and sincerely welcome him to his new post. I know from discussions we have had that he is interested in the issues, understands them well and seeks, as we all do, to keep our borders and our country safe.
I seek the Committee’s approval of a revised code of practice for the powers currently used by examining officers in air and sea ports in the UK, along with international rail services. The order is designed to bring into operation the revised code of practice for authorised officers, which was laid before the House on 26 February. The powers covered under that code of practice are those contained in schedules 7 and 8 to the Terrorism Act 2000, and they allow examining officers to stop, question and detain persons at those locations for the purpose of ascertaining whether they are or have been concerned with the commission, preparation or instigation of acts of terrorism.
Under schedule 14(5) to the 2000 Act, officers are required to perform functions conferred on them in accordance with any relevant code of practice. There is also a requirement in the Act for the Secretary of State to issue the relevant code of practice. The Act defines an officer as a constable, immigration officer or customs officer, although it remains our intention that immigration or customs officers will use the powers only in specific and exceptional circumstances in support of the police service, as detailed in the revised code of practice.
The powers are a vital tool for ensuring that those who seek to harm the UK’s interests are unable to cross our borders unhindered and are key to our being able to gather information required to bring those involved in terrorism to justice. However, the scope of the powers within the schedules is significant, so the code of practice aims to provide clear guidance to ensure that they are used proportionately, without discrimination, and meet the high standards that we expect of officers.
We recently refreshed “Contest”, the cross-Government counter-terrorism strategy, which was the first time we have published a strategy on this topic in such detail. We wanted to be as open as possible in describing the threat that we face and the response necessary to address them effectively. Again, I know that the hon. Member for Newark, in the sub-committee of the Home Affairs Committee, is considering those issues. The strategy demonstrates the international nature of the threat that we must tackle. It highlights the fact that the powers covered by the code of practice are vital to reducing the risk to the United Kingdom from international terrorism so that people can go about their lives freely and with confidence.
David T.C. Davies (Monmouth) (Con): Can the Minister give us an idea how many people are likely to be stopped under the measures each year?
Mr. Coaker: The figures for those stopped are not collated centrally; they are collected locally. The figures collected centrally involve the number of stops that turn into examinations. If somebody is held for more than an hour after the examination has started, the statistics are collected centrally, but the numbers of stops are collected and held locally, not centrally.
The revised code of practice plays an integral part in supporting the strategy by ensuring that fundamental rights and freedoms are at the heart of our work. The operation of schedule 7 is included in the annual independent review on the operation of the Terrorism Act 2000 prepared by Lord Carlile. We sought the noble Lord’s advice on the revision of the code, and his assistance, as always, is greatly appreciated.
The revision forms part of a range of initiatives by the police service to improve targeted use of the powers and reduce the reliance on intuitive stops by officers, in response to the noble Lord’s last report. As part of the process of issuing a code of practice, the Act included a requirement to consult formally on any changes. We undertook the consultation in 2007 and 2008. As well as seeking the opinions of the public in general, we specifically invited a range of community groups that might be affected by the powers to comment. I am grateful to the organisations and individuals who responded to the consultation.
The Home Office will continue to work with the police service to monitor and address any concerns, in order to ensure that we continue striving to minimise inconvenience to those not involved in terrorism while maintaining a strong defence against those who seek to harm our society. With those comments, I ask the Committee to support the revised code.
The Chairman: I remind the Committee that the debate can continue for an hour and a half from when the Clerk read the title of the order. I call the spokesman for Her Majesty’s Opposition.
4.38 pm
Mr. Crispin Blunt (Reigate) (Con): Sir Nicholas, thank you for your invitation to speak at length at the beginning of this debate. We should examine the order properly, but I am certain that Committee members will already have examined it in some detail in preparation for this debate, so I hope that we can manage to squeeze in before the 90 minutes are up.
I thank the Minister for his kind words to me. If he could have heard the sotto voce comments coming from my hon. Friend the Member for West Chelmsford on my left, he would be aware that he was not doing my career much good. However, having been in post for three months now, I would like to respond in kind by thanking the Minister for the bipartisan assistance that he has given me in learning my brief. This is not a matter in which it is wise for anyone to play politics. The security interests of our citizens are extremely serious and I have been extremely grateful for the assistance that I have received from the Minister.
On a procedural point, will the Minister explain the timing and the handling of the matter? It has been on the Order Paper for a while—it was not dealt with when the order was first laid. I know that there has been some delay in process, but is there an explanation for that? Is there some significance in the delay?
These are important matters. We are talking about how officials treat British and non-British citizens at ports. As the code of practice makes clear, an examining officer may question a person under it, whether or not he suspects that they have been concerned with the commission, preparation or instigation of an act of terrorism. Those powers are not to be used lightly, nor without due respect for the citizen. I am satisfied that the code of practice makes it clear to examining officers that the powers are to be used in specific circumstances, on which basis the Conservatives welcome the fact that individuals will now have the option of being fingerprinted at port rather than at a local police station. That should avoid unnecessary delays if an individual questioned or detained is wholly innocent, as is likely to be the case, I suspect, in most circumstances.
It is right that the examining officer informs an individual as soon as he is being screened that he is being questioned under schedule 7 of the Terrorism Act 2000. Her Majesty’s Opposition welcome that change. The use of sections of terrorism legislation overtly for non-terrorism offences serves to devalue and undermine the legislation. The clarification in the order is welcome.
The Minister has explained that the report by the noble Lord Carlile, who reviews terrorism legislation, prompted the revision. Will the Minister respond to a question that I am prompted to ask by my hon. Friend the Member for Monmouth? Is he aware of the number of occasions on which stops have turned into examinations? He said that the examination figure was held centrally. It would be helpful for the Committee’s understanding of how many times the code of practice will be applied in practice if he could tell us how many stops turn into examinations, or give us an estimate.
The code of practice also allows the powers of an examining officer to be used by someone who is not a policeman, in exceptional circumstances. On that basis, it is acceptable to allow the proviso that in those circumstances, a customs or immigration officer will be able to act under schedule 7, including the power to detain, in the narrow circumstances outlined in the code of practice. It is obviously important, given the powers in the order, that customs officials and immigration officers are at least familiar with the code of practice. Indeed, I take the measure as a helpful endorsement of our policy of having a proper border police force, in which such distinctions in such circumstances would no longer apply, and we would not have to widen powers under the scope of the Act.
I note the Minister’s remarks on the consultation. Groups will not be targeted directly, but given where the terrorist threat to the United Kingdom comes from, the code of practice allows for sensible targeting by the officers involved. Obviously, a tension between the communities will result. The Minister has met them and they have responded to the consultation, so he has discharged his functions in that regard. It will inevitably be an area of discomfort, but it reflects the reality that we face. We need to ensure that the officers on our borders who are charged with the powers and with protecting the citizens of the United Kingdom are not handicapped in any way in ensuring that they protect UK citizens. On that basis, and subject to what is said in the rest of the debate, I do not intend to divide the Committee.
4.45 pm
Paul Holmes (Chesterfield) (LD): The updating and amendment of the code that we are considering today goes back to the original code introduced in February 2001. At that point, the provisions were widely welcomed and non-controversial, and the debate in Committee was short. Indeed, my friend the then Liberal Democrat Member for Taunton, Jackie Ballard, was really the only person who asked questions at that point. Two of her questions are still relevant today. One was about how vulnerable people such as children and adults with learning disabilities were dealt with. That issue is always relevant in these situations.
Another of the points that Jackie Ballard raised eight years ago is still relevant and has already been alluded to. It relates to the provisions in the draft code—we have the original code and now this draft code—to allow immigration and customs officials to act on some occasions when police officers are not available. It tries to define exactly when that can happen. That point was relevant in February 2001 and is relevant in 2009. As has been said, if there were a unified national border force—the Liberal Democrats have long advocated the setting up of such a force—whose members all had police powers while they were on duty at ports of entry into this country, there would be no need to dance around in codes, trying to define exactly when members of bodies such as the Border and Immigration Agency and Customs can act in the role of police officers because police officers are absent. That simplification and strengthening of the process of guarding the borders would be widely welcomed.
The issue arises in the draft code at, for example, paragraph 6, which talks about exercising functions under the Act only when the police are not available. It arises in paragraph 12 of the amended code when it talks about needing to refer persons to a police officer when an examination is needed. It would be a welcome strengthening and simplification if we had a unified border force, rather than the fragmented three elements that we have at present.
Back in February 2001, the code was non-controversial and widely welcomed. Similarly, these revisions have general support. They follow the review by Lord Carlile, public consultation and discussions with groups involved, including the front-line officers who have to enforce the regulations. They are largely very welcome improvements, and we support them. Much of the updating is obvious—for example, allowing for the taking of fingerprints at ports with the new Livescan technology, rather than having to refer people to a police station, as used to happen—incorporating codes that relate to the channel tunnel and other modernisations.
I have just three questions for the Minister, starting with paragraphs 9 and 10 of the code. The provisions refer to taking “particular care” that selection of persons for examination is not based solely on a perceived ethnic or religious background; people should not be discriminated against according to a particular creed or religion. Again, that has already been referred to. Obviously, it is a difficult balancing act. We can think of parallel situations. If, for example, there is an outbreak of knife crime in one of our urban areas and the police are carrying out stop and search in a preventive way, they will target certain groups. They will target, naturally, groups of young men, rather than groups of young women—although there is some debate on that these days—and groups of older men.
Similarly, if we are looking at people coming through the border ports—air, sea and rail—into this country under suspicion of terrorism, there will be groups that inevitably are subject to more scrutiny. That will change over time. There was a time when the IRA was active; current terrorism threats are perceived to be different. The perceived threat will change over time. The perceived group from which that threat comes will change over time. However, there will be cases in which the border force thinks that certain groups need more scrutiny and more attention paying to them than others.
On one hand, the code says that we should not discriminate against people from particular backgrounds in terms of religion, ethnicity or nationality. On the other hand, there clearly is a need sometimes to focus on certain groups. Will the Minister comment on how the security forces and the border agency are directed to carry out the very difficult balancing act between upsetting certain groups and effective policing against certain dangerous sources?
Paragraphs 31 and 32 are about when the different elements of the border forces are searching a person. If they are not wearing a uniform with an identity number on clear display, they must show a warrant card or something similar. That is so that even without identifying the security officer by name, there is an identification process whereby people can come back and complain about particular individuals, at least by number. That is a sensible ruling, but if we think about recent events in a parallel context—the policing of the recent G20 protests—we have seen examples of officers covering up their numbers. There was even a police inspector who covered up his identifying numbers and refused to reveal them when asked repeatedly by a journalist to do so. In terms of the parallel example with normal policing duties, how clear are the code and the instructions about what must be displayed? The code states that a warrant card or identifying number on the uniform must be displayed, but what are the penalties if that is not done? Recently, we have seen members of the police flout that rule, seemingly with impunity. What are the penalties for members of Her Majesty’s Revenue and Customs, or the police at the airports, rail stations and seaports, who do not provide those identifying numbers? What would the result be? How well would that be enforced?
Paragraphs 23 and 24 of the code are about taking various kinds of identifying samples such as fingerprints or, as it says in the code, samples under paragraph 2 of schedule 8 to the Terrorism Act. Those samples can cover a range of things that could include photographs or our controversial friend DNA. Will the Minister clarify whether DNA is part of that sample as defined there? Where do the Government stand on the issue of the retention of DNA after a suitable time period has elapsed and the person is apparently innocent because they have not been prosecuted or convicted? Where do the Government stand on that when it relates to taking samples at ports of entry into the country? I know that the Government are struggling to find an answer to that in relation to the Policing and Crime Bill, and the recent European Court ruling. Nevertheless, clarity is needed now in relation to the powers to be exercised as a result of the order, not some weeks or months in the future.
4.52 pm
Mr. Bruce George (Walsall, South) (Lab): I will be relatively brief. I do not often speak up for a Liberal Democrat and agree with most of the things that he says, but in this case I do agree. The hon. Member for Chesterfield (Paul Holmes) expressed his views more delicately than I would normally express them, but this is a hard decision. However well trained an officer is, as MPs we know from our surgeries that great mistakes are made. People who come in on the basis of asylum, or whatever, can turn out to be different from the person who appeared before an immigration officer. We know the consequences of that which, in this difficult era, can potentially be fatal.
If I have misconstrued the hon. Gentleman, I hope that he will interrupt me, but in essence, I think that he said, very delicately, that we know the source of potential danger. Therefore, being excessively bound by the principles of human rights might deter those people who are doing the enormously difficult job of trying to minimise the risk to society as a whole, and who will make mistakes. I want reassurance that it will not.
We cannot simply have a quota system and say that we want to interview x Hindus, y Sikhs and z Muslims. If we operate on that sort of principle, we run the risk of not interviewing sufficient people, which may cause more danger. I am not being racist in any way. I want assurances that the officers are properly trained and retrained, and that they are aware of human rights legislation and know the consequences of behaving improperly. They should be chosen and trained in such a way that they have the flexibility to meet the requirements not only to protect the human rights of people who turn up at an airport or a port but to assist the human rights of people who are already here, who may as a result of an excessive preoccupation with human rights at a border post damage those who are here legally and have human rights as well. The principal human right is the right to preservation of your life and that of your family.
 
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