My Lords, I thank the noble Baroness, Lady Smith, for the way in which she has contributed to the debate. All noble Lords have recognised the seriousness of this issue. I understand that all noble Lords who have spoken have tried to exercise their best judgment in this particularly sensitive area. My noble friends Lady Hamwee and Lord Avebury, the noble Baroness, Lady Kennedy, and my noble friend Lord Lester—I am sure we all wish him a speedy recovery in his absence—have all raised a number of issues through their amendments.
As has been pointed out, the independent reviewer of terrorism legislation, David Anderson QC, has recently made some recommendations for further reforms to the powers contained in Schedule 7 to the Terrorism Act. These recommendations, as my right honourable friend Damian Green reported, are being considered by Ministers. We are grateful to the independent reviewer of terrorism legislation for his report.
I have to say that, as Mr Anderson has also observed, there is a limit to how far these matters can be considered before the conclusion of the judicial review proceedings in the case of David Miranda. That being the position, while I welcome the opportunity to air these important issues in debate now, I propose only to set out the Government’s preliminary view of the amendments before us today. Subject to the timing of a judgment in the Miranda case, I hope to give a more definitive view before the Bill moves on to Report—I will make sure that noble Lords are aware as soon as we are in that position.
As the noble Baroness, Lady Smith, invited me to do, I begin by touching on Amendments 56YJ and 56YK, which deal with some complex issues. The first of these is around safeguards for legally privileged and related material and the use of admissions in criminal proceedings. It is right that the Government are considering these matters and they are doing so now. There is no need for the Bill to require that consideration in future.
I would like to be clear that the current compulsion under Schedule 7 to the 2000 Act to answer questions means that admissions made in an examination would not normally be considered admissible in criminal proceedings. Both the High Court and the independent reviewer of terrorism legislation have suggested that a statutory bar be introduced to this effect, and this is something that we are examining carefully.
It is right that the independent reviewer of terrorism legislation makes recommendations, but amendments 56YK and 100A seek to tie the hands of the Secretary of State by, in effect, requiring her to implement the recommendations of the independent reviewer. It is for the Government and Parliament to decide what legislative changes should flow from the independent reviewer’s recommendations. Given the importance of these issues, any such legislative proposals should be subject to full parliamentary scrutiny—as with the provisions in this Bill—rather than implemented through secondary legislation, as my noble friend has suggested in amendments 56YK and 100A.
Amendments 57 and 58 deal with fundamental principles of the powers. First, Amendment 57 seeks to qualify the definition of the purpose for which these powers can be used. The legislation is already clear: they are for the purpose of determining whether a person appears to be someone who has been concerned in the commission, preparation or instigation of acts of terrorism.
The noble Baroness, Lady Kennedy, has expressed concern that the powers may be used in a discriminatory way. Accordingly, Amendment 57 also includes requirements on collecting data. Requiring examining officers to collect data on all protected characteristics from all individuals examined under Schedule 7 would be both very intrusive and extremely bureaucratic. It would also prolong the majority of examinations, of which 63% are completed within 15 minutes. There is a question as to how useful such data would be.
Direct comparison with the UK population is not really relevant here. A significant proportion of those who travel through ports are not UK residents. The use of the powers is based on the current terrorist threat to the United Kingdom, meaning that certain routes are given greater focus. Consequently, some ethnic groups may be more likely to be examined, but not because the powers are being used inappropriately. As the independent reviewer of terrorism legislation reported in his recent annual report:
“If the power is being properly exercised ... one would expect—
that those examined, in terms of breakdown, would
“correlate not to the ethnic breakdown of the travelling population, but rather to the ethnic breakdown of the terrorist population”.
He went on:
“Police are however entitled and indeed required to exercise their Schedule 7 power in a manner aligned to the terrorist threat. As in previous years, I have seen no evidence, either at ports or from the statistics, that Schedule 7 powers are exercised in a racially discriminatory manner”
That said, we are working with the police and the Equality and Human Rights Commission to find a balance between increasing transparency without increasing the bureaucratic burden. I would also like to reassure the noble Baroness that the statutory code of practice for examining officers makes clear that someone cannot be examined based solely on their ethnicity or their religion.
The final element of Amendment 57 would remove the compulsion on individuals examined at ports and airports to provide information. This would fundamentally undermine the whole purpose of the legislation. Schedule 7 examinations have led to individuals being convicted
for terrorist-related offences and have produced information which has contributed to long and complex intelligence-based counterterrorist investigations and the disruption of terrorist activity. If someone could simply refuse to answer questions, the utility of the provision would be fundamentally brought into question.
Amendment 58 seeks to introduce a reasonable suspicion test to be met before an examining officer may detain a person under Schedule 7. Again, this would undermine the capability of the police to identify individuals who are involved in terrorism as they passed through our ports and borders. Examinations are not simply about the police talking to people who they know or already suspect are involved in terrorism. They are also about talking to people travelling to and from places where terrorist activity is taking place or emerging to determine whether those individuals appear to be involved in terrorism, whether that is because they are or have been involved, are going to become involved or are at risk of becoming involved either knowingly or unknowingly.
For those reasons, I am not persuaded that it would be right to introduce a test of reasonable suspicion. I am pleased that my noble friend Lord Faulks has been able to explain that the Joint Committee on Human Rights has supported this position. However, the independent reviewer of terrorism legislation has recently recommended that detention be permitted and continue on periodic review only when an officer is satisfied that there are grounds for suspecting that the person appears to be a person concerned with terrorism. We are reflecting on this recommendation ahead of Report.
Amendments 59, 60 and 61 would further reduce the maximum period of detention. The police need time to carry out checks and questioning. The person may have a lot to say, detailed or complex questioning may be required, inconsistencies in the person’s account or documentation may need to be understood, or time may be needed to allow the person to consult privately with a legal adviser or to allow for interpretation. We are already reducing the maximum period by a third but there is a balance to be struck, and for that reason I do not believe that it should be reduced further.
Amendments 57A, 61A, 61B and 62 seek to restrict examining officers’ powers in respect of the property of people who are examined. The power to search for and examine property, including on personal electronic devices, is an essential part of the Schedule 7 powers. As the independent reviewer of terrorism legislation has observed,
“it is of vital importance that the copying and retention of data from mobile phones and other devices should be provided for by a law that is clear, accessible and foreseeable”.
New paragraph 11A of Schedule 7 to the 2000 Act, by clarifying the law, meets a requirement of the European Convention on Human Rights that interference with convention rights be in accordance with law that is adequately accessible and foreseeable. Amendment 62 would take away that clarification.
On Amendment 62A, noble Lords will understand that ports, airports and international rail terminals are quite different from police stations, and, as such, recording facilities are not always going to be available. If recording were mandatory, more individuals would
be liable to being transported from the port to a police station where facilities are available, extending the duration of the examination. The questioning of any person detained for examination under Schedule 7 at a police station already falls under a code of practice for the video recording of interviews.
Amendments 63, 64 and 64ZA relate to areas where we are already introducing reforms through the Bill. While the Bill ensures that all persons detained under these powers will have a right to consult a lawyer and to have someone informed of their detention, Amendment 63 would extend those rights to everyone examined. As I have explained, some 63% of examinations last less than 15 minutes. More than 96% are concluded within an hour. Extending statutory rights to all those being examined, even briefly, would create an unnecessary burden and could well lead to longer examinations than are necessary. I would also like to remind noble Lords that the Bill already ensures that anyone examined for more than an hour must be formally detained, so there is no question of prolonged examination without these rights applying.
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Amendment 64 relates to biometrics. Biometrics play an important part in establishing the identity of those travelling through the ports and in assisting the determination of those involved in terrorism. Samples are taken from less than 1% of people examined under Schedule 7. However, a small but significant number of samples have provided links to counterterrorism investigations and identified individuals using alias details. It is therefore important to retain this power. However, perhaps I can reassure my noble friend Lord Avebury that DNA and biometric material obtained under a Schedule 7 examination must be destroyed in line with the Protection of Freedoms Act 2012. If the person has not been convicted of an offence, the sample cannot be retained indefinitely. We recognise the impact that taking a sample could have on a person’s privacy and we are taking steps to limit it. I would remind the noble Baroness that the Bill will repeal the current provision in Schedule 7 to obtain intimate samples.
Finally, Amendment 64ZA would build on one of the key changes we are making in the Bill: we are introducing a statutory review of detention. We recognise the importance of clear review periods as part of the new provisions. Our intention is to address this in the code of practice for the examining officer, and this is clearly set out in the draft code we have published. However, in the light of the debate today, the Government will reflect further on whether these periods should be set out in the statute itself.
This debate has been well worth while. It has given me an opportunity to explain how the Government are responding to the independent reviewer’s report and how the Bill is moving this issue forward. I hope that I have been able to give noble Lords some reassurance on the issues raised. As I said at the start of my remarks, we continue to consider these issues in the light of the recommendations in David Anderson’s recent evidence to the Home Affairs Select Committee. That evidence was submitted only on 20 November and noble Lords would expect us to take a little time to
consider our response given the sensitivity and complexity of the issues. However, above all, we are awaiting the outcome of the judicial review in the David Miranda case. We want to reflect carefully on the points made in the debate today because they have been valuable.
On that basis, I hope that my noble friend will withdraw her amendment and that the noble Baroness, Lady Kennedy, will not press her amendments in the knowledge that we will come back to this issue at Report with clarification of the Government’s position in the light of the report and the judicial review.