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 Committees 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 original
code of practice was brought into operation on 19 February 2001. Given
the importance of the legislation that the code supports and the
changing terrorist threats we face, we must ensure that the
advice
we give to those who utilise those powers remains relevant. To achieve
that, a thorough review of the code of practice was commenced in 2007,
which included input from those both applying for and affected by the
use of this legislation. The draft code is the product of that
consultation, and should we fail to agree the revision, the powers
would continue to operate under the previous code of practice agreed in
2001.
The powers
are a vital tool for ensuring that those who seek to harm the
UKs 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 Lords 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 Lords 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
groups raised a number of concerns, primarily in two areas. The first
was the subjectivity of targeting, and the second was the relevance of
the questions asked
during examination, including unwelcome attempts to recruit informants.
The changes to the code attempt to address those concerns by providing
guidance on factors to be used when selecting individuals for
examination so that it is clear that it is not acceptable to target any
community. It also reinforces the fact that examinations can be used
only for the purposes included in the Act and for no other reason. I
take seriously the concerns expressed by communities. For example, I
recently met the hon. Member for Leicester, South (Sir Peter Soulsby)
and the Leicester Federation of Muslim Organisations to discuss the
operation of the powers. I was grateful for their advice and
constructive input.
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 Majestys
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 whileit 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 Majestys 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 Committees
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
Ministers 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
codewe have the original code and now this draft codeto
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
forcethe Liberal Democrats have long advocated the setting up
of such a forcewhose 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 obviousfor 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
happenincorporating 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 womenalthough there is some
debate on that these daysand groups of older
men.
Similarly,
if we are looking at people coming through the border portsair,
sea and railinto 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 contextthe policing of the recent
G20 protestswe 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 Majestys 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.