My name is attached to the amendments in this group in the name of my noble friend Lord Lester, who, as my noble friend Lady Hamwee has already said, is unfortunately indisposed and unable to be present for this debate.
Let me say at once that I agree with all the amendments proposed by the noble Baroness, Lady Kennedy, as well as those in our name. She made a convincing argument, particularly on the ineffectiveness of the legislation. In spite of the vast number of stops and searches that have taken place, we have not had a single conviction. This is not a device for catching terrorists or even being able to question them—the noble Baroness added that none of them had even been charged. This matter has caused enormous concern to the Joint Committee on Human Rights and to the Equality and Human Rights Commission, with which we have an opportunity to discuss the amendments. It is as worried as we are that Schedule 7 to the Terrorism Act could violate human rights and equality laws and cause immense damage to community relations because of its widespread negative impact, particularly on our Muslim population. The EHRC made submissions to the Home Office consultation on Schedule 7 powers, and again, in 2013, it made a further submission to the Joint Committee on Human Rights in relation to its scrutiny of the Bill. It seems to me that the EHRC has been ignored.
We recognise the importance of stop and search powers as a tool for crime detection and prevention, and we acknowledge that Schedule 7 forms part of the UK’s counterterrorism strategy, which is aimed at protecting people in ports and airports and on the chief modes of transport which have been targeted by terrorists in the past. It could also prevent terrorists from entering UK territory.
However, we believe—with others—that the legal form and practical exercise of these powers should comply with equality and human rights legislation. The powers have to be used appropriately, proportionately and in a non-discriminatory manner. In its report, The Impact of Counter-terrorism Measures on Muslim Communities, the EHRC noted that Schedule 7 is eroding Muslim trust and confidence in policing and called for greater transparency and accountability around its use. Following the consultation already mentioned, Clause 132 and Schedule 8 to the Bill propose certain changes to the provisions in Schedule 7 to the Terrorism Act 2000 for stopping, examining and detaining people at ports. However, I agree with the EHRC that to do this without the need for reasonable suspicion or other limitations is far too broad, lacks efficient safeguards, and could be a breach of the requirement that such an interference should be prescribed by, and in accordance with, the law pursuant to Articles 5 and 8 of the European Convention on Human Rights.
This point has also been made by the Joint Committee on Human Rights and several of the amendments in this group are based on its recommendations. This is especially the case when an individual is questioned about his political and religious beliefs and activities, as well as those of others in his community and family. The Islamic Human Rights Commission says it has received dozens of complaints of inappropriate questioning, such as officers asking Muslims whether they pray, whether they would be willing to spy on their communities and which party they voted for at the last election. The commission concludes that,
“Schedule 7 has done more to alienate people than address the issue of national security.”
I will give two examples from my own experience. First, a British Shia imam, returning to the UK through Heathrow terminal 1, was detained, interrogated at length and had his fingerprints and DNA taken. I was told the samples would be retained indefinitely, for comparison with samples taken at the scene of terrorist offences. I wrote to Jacqui Smith, then Secretary of State for the Home Office, on 5 December 2008, asking for the samples to be destroyed, in the light of the case of S and Marper at the European Court of Human Rights. I finally got the samples destroyed and the imam’s name expunged from the database on 25 January 2010 after 13 months of correspondence and telephone calls with Ministers and their offices and various branches of the police, including SO15, or Counter Terrorism Command.
In a second case, which is still ongoing, a friend of mine, who is a Bahraini national, has been stopped several times at Heathrow and King’s Cross and his complaint was taken over by the IPCC, which issued proceedings against the Metropolitan Police on 10 October 2013 because it would not investigate the basis for the stops. It was expected that some months could elapse before the case was heard in the High Court, and I would be grateful if my noble friend could give me an update on that. As I said to the security Minister, James Brokenshire, it is clearly unacceptable that our police should be harassing and intimidating Bahraini refugees here, including British citizens, when they are entitled to protection from the regime that persecuted them. Instead, it is clear that our police are acting as agents of the al-Khalifa oppressors. It is odious that peaceful opponents of any state which violates human rights should continue to be persecuted after they seek asylum here. It is not simply an operational matter for the police, but one that touches on our obligations under the refugee convention. As I also said to Mr Brokenshire, I do not believe the police would have acted in this disgraceful way unless they had been told from on high that this is how they were expected to behave.
More widely, the EHRC’s statistical analysis of examinations and detentions under Schedule 7 suggests that disproportionately high numbers of black and Asian passengers are being stopped and the disproportion increases further with over-the-hour examinations and still further with detentions. The code of practice on Schedule 7 prohibits reliance on ethnicity as the sole reason for examining a person, so the EHRC suggests that an investigation be undertaken to see whether that is the practice. However, statistics alone cannot prove that a power is being used in a discriminatory manner; a more comprehensive study is needed to see whether the conduct of the police under Schedule 7 breaches the Equality Act. I hope that my noble friend will say that in light of the experience, such an inquiry will be undertaken.
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To look at the amendments for a few minutes, Amendment 57 would ensure that Schedule 7 powers cannot be used inappropriately where the dominant purpose is to gather general intelligence, or evidence for the security services or others, to use in legal proceedings beyond the statutory purpose of the power, which is solely for the examining officer to determine whether the person appears to be,
“concerned in the commission, preparation or instigation of acts of terrorism”.
Amendment 57 provides that there is adequate ongoing monitoring and analysis of the use of the power, and that no individual can be forced to answer questions under the threat of criminal sanction unless they are arrested as a suspected terrorist who is or has been “concerned in ... terrorism”.
We are advised that statements made by individuals during Schedule 7 stops cannot lawfully be relied upon in control order or terrorism prevention and investigation measures proceedings, nor in asset-freezing proceedings, because that is not the statutory purpose of Schedule 7. That needs to be made clear. This amendment adds safeguards by ensuring that Schedule 7 powers should not be used where the dominant purpose is to gather general intelligence, or evidence for the security services or others, to use in legal proceedings beyond the scope of the statutory purpose of Schedule 7.
Amendments 57A, 61A and 61B, in the name of my noble friend Lord Lester, concern the accessing, searching, examining, copying and retention of data on personal electronic devices. The JCHR said in paragraph 122 of its fourth report that these powers in Schedule 7 were,
“so wide as not to be ‘in accordance with the law’”.
It welcomed the express reference to necessity and proportionality in the working draft of the revised code of practice but does not consider that the code is sufficient to circumscribe the width of the powers. The Joint Committee said that the powers should only be exercisable on reasonable suspicion; these amendments give effect to its recommendations.
Amendment 58 provides that the power to detain and question for more than an hour can be exercised only if the examining officer has by that point formed a reasonable suspicion that the person being questioned is or has been “concerned in … terrorism”. This is another of the amendments recommended by the JCHR. I hope that your Lordships would agree with the distinction that it draws between, on the one hand, the powers which can be exercised without reasonable suspicion—such as the power to stop, question and request documentation, and physically search persons and property—and, on the other, the more intrusive powers such as detention, strip-searching, searching contents of personal electronic devices, the taking of biometric samples and the seizure and retention of property, including personal information on electronic devices, which should be exercisable only if the examining officer reasonably suspects that the person is or has been “concerned in … terrorism”. This amendment gives effect to the JCHR proposal for a reasonable suspicion requirement before the more intrusive powers under Schedule 7 are exercisable, and to its suggestion that the threshold for these powers should be the point at which the person being examined is formally detained, after one hour of questioning.
As to Amendments 59, 60 and 61, paragraph 2 of Schedule 8 removes the current nine-hour maximum time for questioning under Schedule 7. Paragraph 2(3) proposes new paragraph 6A that provides that a person may be questioned for up to one hour under paragraphs 2 and 3 of Schedule 7. If the examining officer wants to question the person for more than one hour, then the person will have to be detained under new paragraph 6 of Schedule 7, which triggers the safeguards contained
in Schedule 8 to the Terrorism Act 2000. As the noble Baroness, Lady Kennedy, pointed out, between 1 January 2009 and 31 March 2012, only 3% of examinations continued for more than one hour, and only one in 2,000 examinations lasted more than six hours. It is therefore correctly proposed in these amendments that the maximum length of detention under Schedule 7 should be reduced from six to three hours. That is appropriate.
On Amendment 62, paragraph 4 of Schedule 8 inserts new paragraph 11A in Schedule 7 to the 2000 Act enabling examining officers to copy anything which is given to them or is found during a search and to keep a copy of such material for as long as it is necessary for the purpose of determining whether the person is or has been “concerned in … terrorism”.
This is a very wide power, which could lead to sensitive personal data being retained for indefinite periods of time. Even with a reasonable suspicion that the information retained may prove that the person is “concerned in... terrorism”, this power has the clear potential to infringe the Article 8 rights of persons examined under Schedule 7, because of its highly intrusive and open-ended nature. In addition, even if further safeguards were implemented, such as limits on the length of time the data could be retained or prohibitions on sharing the data, there is still the potential for breaches of Article 8 to occur, resulting from the retention of the data. Therefore Amendment 62 correctly proposes that this provision should be removed entirely from the Bill.
I will not go through the remaining amendments because time is short, but your Lordships may wish to note the recent Administrative Court decision in the case of Elosta v The Commissioner of Police for the Metropolis, in which it was held that it is unlawful to restrict a person who has been detained at a port or airport under Schedule 7 to the Terrorism Act to being entitled to have legal advice from a solicitor on the telephone only prior to a police interview, rather than having the right to have a solicitor present in person during the questioning where the detainee has specifically asked for that greater form of protection. I am pleased to see that Amendment 63 would give effect to that provision.
Finally, Amendment 64 would prohibit the collection of non-intimate DNA samples without consent from people who have not been arrested or charged. Taking and retaining samples from a person who has not been arrested or charged, and who is not the subject of reasonable suspicion, has serious privacy implications and should not be allowed.
I hope that all these amendments will be acceptable to the Government.