46.Schedule 3 introduces new stop and search powers for examining officers at ports and borders. These powers can be exercised for the purpose of determining whether an individual is involved in the commission of a ‘hostile act’ without any need for suspicion. ‘Hostile act’ is defined broadly as (a) threats to national security, (b) threats to the economic well-being of the UK, or (c) acts of serious crime, which are carried out for or on behalf of another State or in the interests of another State.
47.We expressed concern that Schedule 3 provides for interference with the rights to private life, freedom of expression, and property, yet the powers it gives are dangerously broad. In particular, the definition of ‘hostile act’ is extremely wide and there is no threshold test of suspicion required before a person is detained and examined.
48.In its response, the Government acknowledges that the definition of hostile activity is broad but states that “it is required to encompass the spectrum of threats currently posed to the UK by hostile states, which includes espionage, subversion and assassination”.
49.We would be grateful for more clarity of the Government’s position on the necessity of this ‘no suspicion’ power. On the one hand the Government states that “[t]he no suspicion element is, furthermore, an operational necessity since were the power contingent on a prior reasonable suspicion of hostile activity, that would risk making it obvious to, for example, foreign intelligence agents that the UK’s security services were aware of their activity.” The Government response also states that “[i]ntroducing a reasonable suspicion test for the exercise of the powers under Schedule 3 would fundamentally undermine the capability of the police to determine whether that person appears to be or has been involved in hostile activity.” However, the Government also states that decisions to stop an individual will not be arbitrary and “will be informed by considerations such as the current threat to the UK posed by hostile states, available intelligence, and trends of patterns of travel of those suspected of being involved in hostile activity”.
50.If decisions to stop and search individuals will in fact be informed (and known to be informed) by intelligence and the travel patterns of those “suspected” of being involved in hostile activity, then the arguments for a “no suspicion” power are weakened. We consider that the circumstances described by Government would amount to factors giving rise to a reasonable suspicion. It is only in situations where entirely random stops and searches are carried out that the ‘no suspicion’ power is needed. We suggest amendments to allow the House of Lords to probe this power in more detail.
51.We suggest the following amendments:
Page 38, line 36, leave out “exercise the powers under this paragraph whether or not there are” and insert “only exercise the powers under this paragraph where there are reasonable”.
Page 38, line 38, after “activity” insert “and where it is necessary and proportionate to do so”.
Comment: these two amendments insert a threshold of reasonable suspicion and require that the exercise of the power must be necessary and proportionate.
29 [Lords], Schedule 3, [Bill 131 (2017–19)]
30 , para 80
32 Counter-Terrorism and Border Security Bill, European Convention on Human Rights, Memorandum by the Home Office,
Published: 12 October 2018