Second Legislative Scrutiny Report: Counter-Terrorism and Border Security Bill Contents

11Access to a lawyer

Schedule 3

52.Schedule 3 imposes limitations on access to a lawyer for those questioned and detained under the new powers. We expressed concern that these powers unjustifiably interfere with the right to timely and confidential legal advice.

53.In its response, the Government states that, for those who are questioned (but not yet detained) under Schedule 3, “although there will be no entitlement, should an examinee [ … ] request access to a solicitor, the Schedule 3 Code of Practice will make clear that where reasonably practicable, the examining officer should permit them to seek legal counsel.”34 The Government also states that it intends to publish a draft Code of Practice prior to the Bill passing to Committee stage in the Lords.35

54.Those who are detained are entitled to a lawyer, however this right is not absolute. The Bill would allow an examining officer to continue to examine the detainee without a lawyer present where the officer reasonably believes that permitting them to exercise their right would prejudice the determination of the relevant matters. The Government explains that “these restrictions are to mitigate against the possibility of an examination being obstructed or frustrated as a result of a detainee using his right to a solicitor.”36

55.In some cases, the detainee may only consult a solicitor in the sight and hearing of a ‘qualified officer’. The Government explains that this restriction exists to disrupt and deter a detainee who seeks to use their legal privilege to pass on instructions to a third party, either through intimidating their solicitor or passing on a coded message.37

56.We recognise these concerns, but consider that there are more proportionate ways of mitigating these risks, such as pre-approval of vetted panels of lawyers. We suggest further consideration be given to alternative options so that timely and confidential legal advice can be given to all persons stopped and detained under these powers.

57.We suggest the following amendments:

Amendment 22

Page 49, line 19. At end insert -

“The detainee shall be informed of the rights in subparagraph (1) when first detained.”

Amendment 23

Page 49, line 43, leave out paragraph(b)

Amendment 24

Page 50, line 29, leave out paragraph 26.

Amendment 25

Page 53, line 12, at the end, insert:

“The detainee shall be informed of the rights in sub-paragraph (1) when first detained.”

Amendment 26

Page 54, line 12, leave out paragraph 32

Comment: these amendments ensure detainees are informed of their rights and provided with timely and confidential legal advice in all four jurisdictions.

Published: 12 October 2018