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12 May 2009 : Column GC333

12 May 2009 : Column GC333

Grand Committee

Tuesday, 12 May 2009.

Arrangement of Business


3.30 pm

The Deputy Chairman of Committees (Baroness Fookes): Before the Minister moves that the first statutory instrument be considered, I remind noble Lords that, in the case of the four statutory instruments, the Motion before the Committee will be that the Committee do consider the statutory instrument in question. I should perhaps make it clear that the Motion to approve the statutory instrument will be moved in the Chamber in the usual way. Of course, if there is a Division in the House, the Committee will adjourn for 10 minutes.

Terrorism Act 2000 (Code of Practice for Examining Officers) (Revision) Order 2009

Copy of the Order
8th Report from JCSI

Considered in Grand Committee

3.31 pm

Moved By Lord West of Spithead

Relevant Document: 8th Report from the Joint Committee on Statutory Instruments.

The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead): This is a revised code of practice that deals with the powers of examining officers currently in use at air and sea ports in the United Kingdom, along with international rail services. The draft before the Committee relates to the Terrorism Act 2000 (Code of Practice for Examining Officers) (Revision) Order 2009, which is designed to bring into operation the revised code of practice for examining officers that was laid before the House on 26 February and which would replace the original code that was brought into operation on 19 February 2001. The powers will continue to operate under the original code should we fail to agree the revised code.

The code of practice covers powers contained in Schedules 7 and 8 to the Act, which allow examining officers at the locations that I mentioned to stop, question and detain persons. This examination is for ascertaining whether the person is or has been concerned in the commission, preparation or instigation of acts of terrorism.

Schedule 14(5) to the Act requires officers to perform functions conferred on them in accordance with any relevant code of practice. There is also a requirement under the Act for the Secretary of State to issue the relevant code of practice. An “examining officer” is defined as a constable, immigration officer or customs

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officer. However, it remains the intention that immigration or customs officers will use these powers only under very specific and exceptional circumstances in support of the police service, as detailed in the revised code of practice.

Given the importance of the legislation that this code supports and the changing terrorist threats that we have to face, we must ensure that the advice that we give to officers performing this difficult function remains comprehensive and pertinent. Therefore, the code of practice aims to provide clear guidance to ensure that the powers are used proportionately and without discrimination, thus meeting the high standards that we expect of the police service.

We recently refreshed CONTEST, the cross-government counterterrorism strategy, which highlights the international nature of the threat that we must tackle. The powers covered by this code of practice are essential to ensuring that those who seek to harm the interests of the UK are unable to travel through our borders unhindered. The information gathered supports us in bringing to justice individuals involved in terrorist activity and allows the public to go about their lives freely and with confidence.

As part of his annual review into the operation of the Terrorism Act 2000, the noble Lord, Lord Carlile, reports on the operation of Schedule 7. Given his great knowledge of this topic, the noble Lord provided significant advice regarding the revision of this code, and his assistance is greatly appreciated.

The Act requires a period of formal consultation as part of the process of issuing a code of practice, which we undertook during 2007 and 2008. In addition to seeking the opinions of the public in general, we specifically invited a range of community groups that may be affected by these powers to comment. I am grateful to those organisations and individuals who responded to the consultation.

A number of concerns were raised during the consultation and, in addition to technical issues, a key matter of interest for the community groups was the subjectivity of selection of individuals for examination under these powers. To address these concerns, the revised code provides guidance on the factors to be used when selecting individuals for examination so that it is clear that it is unacceptable to target any specific community.

The police service, supported by the Home Office, will continue to monitor and address the concerns of communities to ensure that we continue to strive to minimise the inconvenience to those not involved in terrorism while maintaining a strong defence against those who seek to harm our society. I commend the revised code to the Committee. I beg to move.

Baroness Neville-Jones: I thank the Minister for explaining the statutory instrument and its purpose. As he said, the code of practice for examiningofficers was first issued in 2001 and it is right that it has been consulted on and reviewed in the light of the experience of practitioners and to reflect changes in technology and other pieces of terrorism legislation. I echo the Committee on the Merits of Statutory Instruments in commending the practice of review and improvement

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to produce a practicable guide. The procedure has been excellent. I also welcome the Minister’s remarks on comprehensiveness, relevance and proportionality in implementation.

The Minister outlined in detail the specific changes made to the code of practice. I will not touch on them all, but I seek clarification on five points. First, the code makes it clear that neither examination nor detention of an individual, nor a combination of examination and detention, should exceed nine hours. How was this figure of nine hours arrived at? If, during that period, the officer concludes that nothing terrorism-related was found in relation to the foreign national being examined, is the presumption that he or she will then be admitted?

Secondly, from the report of the statutory reviewer of terrorism legislation, it is clear that the operation of the Terrorism Act 2000 and the implementation of the related powers should be only for terrorism-related purposes, not for other purposes, otherwise their credibility and community relations will be damaged. As the Minister mentioned, the Government have now added guidance notes to the code to help examining officers to decide when to exercise their powers. These notes say that the examining officers should base their decisions on a number of considerations, including known and suspected sources of terrorism, information on the origins and locations of terrorist groups, current or emerging terrorist activity, local trends and patterns of travel known to be linked to terrorist activity, and so on.

I freely acknowledge that this is sensible guidance, but will the Minister say how the examining officers will come to have knowledge of these factors and how they will test them when examining an individual, all within nine hours? Some police forces have little experience of and expertise in terrorism, so will they be briefed regularly by the security services, the regional counterterrorism units or some other body? Will the Minister assure us that the different agencies and organisations will share the necessary intelligence with those tasked to be examining officers? In other words, is the system adequately joined up?

I know that, in relation to the Prevent strand of the CONTEST strategy, Her Majesty’s Inspectorate of Constabulary and the Audit Commission have raised concerns about the lack of systems and procedures to allow information sharing between the security services, the local police forces and local authorities. So my question is not idle. It is important to have some assurance that the guidance that has been put in place will be implemented in a context that enables it to have real effect.

Thirdly, the code of practice states that,

beginning with the day on which the detention commences. The code goes on to say:

“If anything is found which in the opinion of the examining officer may be needed for use in criminal proceedings or ... in connection with a decision ... to make a deportation order ... it may be detained for as long as is necessary”.

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The key question is: what is “necessary”? In these circumstances, under what obligation is the examining officer to inform and keep up to date the person to whom the property belongs? Are they kept in the loop?

Fourthly, the code of practice states that an examining officer may,

The subsequent guidance note says that only examining officers who have been trained to exercise search functions should carry out searches. Can the noble Lord confirm, therefore, that only a constable, immigration officer or customs officer trained as an examining officer may conduct a search?

Fifthly, will the Minister clarify two points about the collection of fingerprint samples, which do not seem to be entirely clear from the revised code? When can fingerprints be taken? Can they be taken only once a person is detained or, if they have given their consent, can the applicant’s fingerprints be taken before they are informed that they are being detained? Will the Minister clarify the purpose of taking fingerprints? This is an important point. Is it only to confirm a person’s identity or can the fingerprints be used for other purposes?

There is obviously a wider point about how the state retains and uses fingerprint samples. This is my last point, but one to which I attach a good deal of importance. There has rightly been a great deal of argument about the retention and use of DNA samples, which implicate about 1 million people who have not been convicted of anything. We on these Benches are extremely uneasy about this situation and have put forward proposals to remedy what we regard as an unwarranted approach. We do not want a replication in other fields with other forms of identification. What is the Government’s position on the retention and use of fingerprint samples taken in these circumstances? The samples of innocent people should not be held indefinitely, particularly as examining officers at ports of entry can examine and even detain a person, regardless of whether or not they suspect that that person is, or has been, concerned in the commission, preparation or instigation of an act of terrorism. In other words, there is no distinct standard for a reasoned basis for a fingerprint sample being taken.

During the public consultation, which the Minister mentioned, I know that a number of concerns were raised about how to ensure the objectivity of examining officers when they decide whether to use the powers available to them. In the report that I mentioned, the noble Lord, Lord Carlile, said of examination at ports of entry:

“In the past I have suggested repeatedly that the number of random or intuitive stops could be reduced considerably. From my discussions with counter-terrorism police officers I know that considerable attention is being focused by the police ... on behavioural analysis and the better use of intelligence”.

That observation is positive and very good news, but it clearly needs to have practical effect and implementation. Will the Minister update the Committee on the follow-up to those observations? I am sure that we do not want a situation akin to that which we have

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seen with Section 44 of the Terrorism Act, where people are suspicious about the use of stop-and-search powers and whether they are being used inconsistently or for reasons that are entirely unrelated to those for which the powers were put on the statute book. How many people have been stopped under Schedule 7 to the Terrorism Act by examining officers in the past two years? How many of these have led to terrorism-related charges?

Being able to stop and examine an individual without reasonable suspicion is certainly a wider power than is normally available to the police, immigration officers or customs officers. As I have said, we do not want a situation to arise where the powers of examining officers are used inconsistently or for reasons not entirely related to those for which the powers were put on the statute book. We must be conscious of the risk of this, particularly given that powers that have been much more tightly defined have attracted criticism for that very reason. These Benches will be extremely grateful for an update on the implementation of the recommendations of the noble Lord, Lord Carlile.

3.45 pm

Baroness Miller of Chilthorne Domer: From these Benches we welcome the update of the code. However, it would have been useful—no doubt the Minister will tell me whether this was procedurally possible—for this to have been an amendment to the Borders, Citizenship and Immigration Bill. Obviously, it has only just come to the Government, but did they consider that route? The revised code could have been debated in context, especially the issue of training, which is a key to the implementation of the code. On 28 April, the order was debated in the other place. Referring to training, the Minister said that,

The noble Lord will remember that these Benches put down amendments to the Borders, Citizenship and Immigration Bill to explore training much more fully. That would have enabled discussion about a combined police force, its merits and so on. Effectively, this order represents that effort to further streamline the way in which various officials work and, in this case, take on extra powers of the police. When the other place debates that Bill, it will have the benefit of looking at the debates in its own Committee and in our House and will no doubt reflect on some of the points that were made.

The code has profited much from the scrutiny of my noble friend Lord Carlile of Berriew. As he has underlined throughout his report, it is critical to be fair and to be seen to be fair. That is the key. I know that the Minister is concerned with this. He has made the point before that in the context of the counterterrorism plan, CONTEST, the Government have referred to the necessity to be as open as possible so that certain groups do not feel unfairly singled out. Being as open and transparent as possible feeds through to how well we can scrutinise the implementation of the code, a matter to which I shall return in my concluding remarks on statistics.

12 May 2009 : Column GC338

I know that the Conservative Front-Benchers share our concern that Section 44 of the Terrorism Act should be given the same scrutiny and treatment that we are giving to this code. I must say to the Minister how disappointed we are that the Home Office will not even say where the designated areas are in which you can be stopped and searched under that Act. I gather that that information is simply unavailable, even when applied for under the Freedom of Information Act, so it is hard for the public to know when they have been stopped reasonably under the PACE code and when they have been stopped unreasonably under the Terrorism Act. That is not good practice. Perhaps we could take a leaf out of the book of the New York police authority. It may not always be in the forefront of good practice, but it has just introduced a new code, “Stop, Frisk and Explain”, and is retraining its officers in the absolute importance of explanation. When the PACE code was drawn up, the feeling was that it should be very clear why someone was being stopped.

We welcome the move towards a much more targeted and less random approach. The Government suggest that there will be less room for intuitive stops. I recognise that these are difficult questions, but will the Minister say what part intuition will be able to play now and what proof we have had that it is ineffectual? Intelligence-led action is bound to reflect intuition, so the new code needs to be clear about exactly the part that intuition can play and when it is reasonable. That comes back to the training particularly of senior staff, because it is a difficult balance.

We are pleased that the code will cover the relevance of the questions asked of the people who are stopped. It is extremely important that people are asked relevant questions, not irrelevant ones. However, we are disappointed to note that the numbers of local stops at different airports and ports are not collated centrally. This brings me back to my point that it is difficult for us, and for senior management and Ministers, to judge on the basis of the statistical evidence just how well the code is operating. Do we know how many people overall have been stopped and how many of those stops and examinations have led to arrests, deportations or refused entries? Perhaps the Minister will tell me that those statistics are available, but I have not been able to find them. I gather that the rate of stops and examinations is in the order of 1,200 per annum, but is that figure going up or down? It is essential to know these figures. Surely the local stops can simply be fed into a spreadsheet that adds up the total number of examinations. This is not rocket science, so I am surprised that it is not done.

We certainly share the worries expressed by the noble Baroness, Lady Neville-Jones, about the fingerprints of innocent people being retained. When those fingerprints are taken and retained, what conventions now govern sending them off to other countries, for example? What agreements do we have to do that, or is it never done? If it is done, in what circumstances is it done?

Overall, we welcome the updating of the code; it is certainly a move in the right direction. However, in order to have a really good idea of how it is operating, some of these basic questions about numbers need to be answered, as do the more ephemeral ones about the role of intuition.

12 May 2009 : Column GC339

Lord West of Spithead: I thank those who have contributed to the debate. The powers that the code supports are significant but the points that have been discussed demonstrate just how important it is that we provide adequate advice to those who carry out this vital role. We have gone a lot further with what we have done now than was the case beforehand. The revised guidance seeks to reflect not only the changes to the terrorist threat since the original code was introduced in 2001 but all the feedback that I talked about that we have received during the consultation process.

I shall reply to some of the many questions that I have been asked. The noble Baroness, Lady Neville-Jones, asked about the nine hours. This was set out in the Terrorism Act 2000. It was regarded at that time as acceptable to both Houses and was felt to be an appropriate period. I think that it was slightly subjective. After nine hours the examining officer must decide what action to take—either to allow the person to pass through to immigration controls or to take other action as appropriate.

The noble Baronesses, Lady Neville-Jones and Lady Miller, touched on the briefing of officers. Counterterrorism officers are all trained on a specialist training course. This was raised during the BCI Bill and I absolutely accept the fact that training is very important. They are trained on a specialist training course accredited by the National Police Improvement Agency. In addition, officers are not only linked directly to the security services, but there is a national facility to co-ordinate the dissemination of intelligence to ports officers. The noble Baroness, Lady Neville-Jones, is absolutely right: historically, the linkage—how joined up this has been—has not been that clever. I think that we are getting better at it now, but certainly I remember visiting Gatwick 18 months ago and being slightly shocked by how poor the linkage was. We put in hand various things to make sure that linkage is there so that officers have the data that they require to give them the information to conduct investigations and to see where they should be focusing, so that their investigations are primarily intelligence-based on a whole raft of issues that feed into that intelligence.

The police examining officers are generally from the Special Branch, and their main focus is counterterrorism, so they are immersed in this intelligence area. They are always dealing with security and intelligence agencies and, as I say, I think that we have dramatically improved the sharing of information. However, we always have to be extremely careful with this because, as we have debated a number of times on the Floor of the House, when one has these sorts of data, how they are passed backwards and forwards and who has access to them is extremely important. It is extremely dangerous not to handle them very carefully indeed. We have put in hand safety measures to ensure that they are looked after properly and cannot be accessed by the people whom we would not wish to access them.

Both noble Baronesses touched on fingerprints. Fingerprints can be taken only by a constable, either with the consent of that person in writing or with the authority of a superintendent at the police station, for

12 May 2009 : Column GC340

the purpose of determining whether the person is, or has been, involved in terrorism or to facilitate ascertaining whether the person’s identity is as they say. The fingerprints may be retained and used only for terrorism investigation, the prevention or detection of a crime, investigation or prosecution. I think that, post the Marper case, the retention period will probably be about 12 years for samples taken from the person detained under Schedule 7.

Examining officers are able to conduct searches under the code. At present, this is undertaken only by police examining officers. However, an examining officer can empower another person to conduct the search on his behalf. I am not sure exactly what the criteria are that that person has to fulfil; I shall get back in writing on that. I am assuming that we are talking about those other two types of officer, but it might be broader and I shall get back on that point. If I have not covered all the points raised by the noble Baroness, Lady Neville-Jones, I hope that she will get back to me, as I shall get back in writing on the others.

The noble Baroness, Lady Miller, touched on the difficult balance to be struck in both applying these powers to defend our borders and treating individuals fairly. It is a difficult issue, as I know from my travels around the UK. I was in Edinburgh recently, where a number of Sikhs feel that they are being targeted unfairly. I am sure that the noble Baroness has come across a number of cases, too. After talking with various groups, we have tried hard to ensure in the guidance that officers have to use the broad range of information available.

On the question put by the noble Baroness, Lady Neville-Jones, I go back to the point that these are counterterrorism officers, who are looped in on the intelligence side. They normally do these things on an intelligence basis. She mentioned the sources, origins and travel patterns of terrorist groups. We talk about intuition, but the distance between intelligence and intuition is sometimes not that great, as officers are so immersed in this area. However, the work is intelligence-based and evidence-based. The new code of practice—

4.01 pm

Sitting suspended for a Division in the House.

4.10 pm

Lord West of Spithead: When one has been caught in mid-flow, it is always a bit tricky to get cracking again. I was in the midst of answering the point made by the noble Baroness, Lady Miller, about subjectivity. We talked about the training of officers and the fact that they were Special Branch and immersed in this intelligence area; we also talked about intuition. We have to be careful in codifying not to write out and remove all those things, while giving clear indications of what people should base their reason on for stopping someone to ask questions.

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