Clause 89 — Searches, examinations and fingerprinting: England and Wales

Orders of the Day — Anti-terrorism, Crime and Security Bill — [2nd Allotted Day] – in the House of Commons at 8:15 pm on 26th November 2001.

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Photo of James Paice James Paice Shadow Spokesperson (Home Affairs) 8:15 pm, 26th November 2001

I beg to move amendment No. 143, in page 47, line 17, after "station", insert—

'in connection with a terrorist investigation'.

The First Deputy Chairman:

With this it will be convenient to discuss the following amendments: No. 144, in clause 90, page 49, line 12, after "station", insert—

'in connection with a terrorist investigation'.

No. 145, in clause 91, page 51, line 6, after "station", insert—

'in connection with a terrorist investigation'.

No. 146, in clause 92, page 52, line 11, after "station", insert—

'in connection with a terrorist investigation'.

No. 149, in clause 93, page 53, line 32, after "of", insert "terrorist".

No. 150, in clause 94, page 55, line 17, after "of", insert "terrorist".

Photo of James Paice James Paice Shadow Spokesperson (Home Affairs)

As the Minister, unsurprisingly, foresaw in her last comments, we come to a major issue which runs throughout part 10. The first group of amendments deals with clauses 89 to 94. It seeks to insert the words "in connection with a terrorist investigation" to narrow the scope of these significant clauses to deal purely with terrorism.

The Bill, of course, arises from the atrocities of 11 September. The general feeling across the country and the House was that we needed to ensure that our legislation was adequate for the authorities in this country to combat terrorism from whichever direction it may come and in whatever form it may be practised. We must be able to deal with all those who may be involved, or may try to be involved, in terrorism.

On that basis, the Opposition gave the Government their assurance that we would co-operate in getting such anti-terrorist legislation through the House as soon as possible. However, we did not, and I would not wish it to be believed that we did, give the Government a Blunkett undertaking—a Freudian slip—a blanket undertaking that any measure that they sought to introduce in the guise of anti-terrorist legislation would automatically get our agreement. I can tell the Committee that that is not the case. That is what lies behind this group of amendments.

The Minister rightly said on clause 88 that it is not always easy to know in advance what is terrorism and what is not. That is the nub of most of the amendments to part 10. In that case, why are the Government bothering to change the anti-terrorist legislation in clauses 89 onwards, given that these clauses represent a significant extension of what is known as the PACE Act? That is not a narcissistic statement.

I was struck by the fact that earlier this evening, the Government moved amendments to clauses 58 and 75, which deal with pathogens and toxins, to restrict those clauses to issues relating to terrorism. Thus in one part of the Bill the Government recognise the need to narrow the context to deal purely with terrorist issues, but the clauses in part 10 go well beyond that. Clause 89 covers searches, examinations and fingerprinting in England and Wales, and the provisions are repeated in clause 90 with reference to Northern Ireland.

Those clauses create huge new powers for police forces to search for any form of identifying mark. They are not specified, but we can all imagine that they include birthmarks, tattoos and various other marks or blemishes that could be used to identify a person. If that were done solely for the purpose of linking the person to a terrorist act or a suspected or imminent terrorist act, that would be fine, but as these and subsequent clauses are currently drafted, they could be applied to any aspect of crime, however minor.

The provisions allow the police—albeit with the authorisation of an officer of the rank of inspector—to search or examine someone detained in a police station. The police can search or examine him for identifying marks, and, under subsequent clauses, photograph him and require the removal of disguises. Provided that an offence has been committed serious enough to warrant the person's detention at a police station, the Government are giving the police those powers.

We accept that there is an argument for the police to have such powers. There are also strong arguments against, particularly on the grounds of civil liberties and overweening police powers. However, we do not accept that the Bill is the appropriate vehicle for the granting of those powers. The Bill is about terrorism and its prevention and detection. It is not about extending police powers and extending PACE to cover all manner of other issues.

As the Minister well knows, we expect a police reform Bill later in the Session. It was announced in the Queen's Speech, we believe that it is still on its way, and we expect a White Paper on the subject even before Christmas. It is not unreasonable to suggest that the Government accept our amendments so that the clauses would apply only if the person were detained in a police station in connection with a terrorist investigation, which is a fairly broad statement of purpose.

If the Government wish to introduce the powers more widely, they should advance the arguments for that in the White Paper and include the powers in the police reform Bill, which we hope will have considerably more time for debate. We are concerned that the Government have cast this Bill much more widely than many of us expected when we vouchsafed our support for the principle of anti-terrorist legislation.

Because of the inevitable constraints on time—I shall not rehearse those arguments now—it behoves the Government to ensure that the Bill addresses only those matters that rightly should be addressed in it. It is not the appropriate vehicle for the huge extension of police powers so dramatically evidenced by clauses 89 to 94. Such an extension should be considered on another occasion, when more time is available.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

I rise to support the comments of Mr. Paice, to whose amendment I and Liberal Democrat colleagues have appended our names. We entirely support the thrust of his argument, irrespective of the merits of the extra powers, although we have our doubts about whether they are merited and whether they give too much to the law enforcement agencies and too little respect to civil liberties.

Irrespective of those doubts, we believe that the Government are abusing their position by seeking to introduce to so-called emergency legislation intended to deal with a terrorist incident, run-of-the-mill criminal matters that, as the hon. Gentleman said, are more appropriate to a police or criminal justice Bill. It is perhaps telling that the title of the Bill includes the word "crime". I am reminded that the emergency Bill that we considered after the IRA bombing in Birmingham in the early 1970s was 15 clauses long. This Bill, in its putative state, was 40 clauses long, and that total has now multiplied into 125 clauses.

If the Government want all-party support for measures to deal with terrorism, they will find it throughout the House, on their Benches, the Conservative Benches and on ours. However, if they seek to piggyback important anti-terrorist measures with a range of other bits and pieces that are lying around the Home Office cupboard, they must expect hon. Members in all parts of the House to be sceptical and angry about abuse of their position.

I want to draw the Minister's attention to the comments of the Joint Committee on Human Rights, which has considered these clauses. I hope that the Government are not going merely to wash away the Committee, which is distinguished. I make that comment even though I serve on the Committee, which has other distinguished members. It is formed of experts from both Houses and was established by the Government expressly to consider such matters. If they are to ignore the advice of a Committee that they have set up, one wonders why it is there.

Photo of Patsy Calton Patsy Calton Liberal Democrat, Cheadle 8:30 pm, 26th November 2001

Does my hon. Friend agree that any changes in policing in Northern Ireland should be made in the spirit of the Patten report? Not making such changes in that spirit could cause needless tensions in the reform of policing in Northern Ireland.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

I agree with my hon. Friend, who takes her interest in Northern Ireland very seriously. A further issue to bear in mind is that, when we introduce rushed proposals in a delicate situation such as that in Northern Ireland, we must be very careful that the good work done there by the Government and their predecessors is not upset. We know how difficult it is to get matters right in Northern Ireland politics and legislation.

I return the Minister to the comments of the Human Rights Committee. In dealing with clauses 88 to 92, it states:

"We are concerned about such provisions relating to the powers of the police being hurried through Parliament as part of a Bill which purports to be aimed primarily at taking emergency measures in respect of terrorism."

Those comments are entirely consistent with the point that I am making and which the hon. Member for South–East Cambridgeshire made a moment ago. The Committee also notes:

"We are particularly concerned that the Bill does not make clear the steps (if any) which would be taken to ensure that the regime covering the taking, storage, cross-matching, retention, disclosure and destruction of such photographs"— the photographs to which the clauses refer—

"will contain safeguards sufficient to ensure that the process as a whole, and each stage in it, would meet the justifying requirements of Article 8(2)."

In conclusion, the Committee states:

"We regard the provisions relating to police powers contained in clauses 88 to 92 of the Bill as being in need of additional safeguards and mature consideration, and accordingly draw them to the attention of each House."

Of course, the Bill has been rushed though very quickly, but I think that the report was published about a week and a half ago. I am interested in how seriously the Government took the Committee's comments. Do they agree that additional safeguards are necessary, having given its recommendation mature consideration? Do they intend to introduce additional safeguards in the light of the Committee's recommendations, or are they simply going to say, "These people are a damn nuisance and we have no interest in what they say"? Will they say merely, "We're right, we know what we're doing and we have had the proper advice, so the rest of the House, whether the Members in question are Liberal Democrats, Conservatives or Labour Back Benchers, do not have much to say in the matter"? I hope that the Minister will tell me that I am entirely wrong on that point and that the Government are giving due cognisance to the views of the Human Rights Committee and will accordingly recommend safeguards when the Bill reaches the House of Lords, even if they will not do so now.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

I shall be very brief. I hope that Norman Baker is entirely wrong in his suspicions, but I suspect that he is correct.

Will my hon. Friend the Minister deal with two points? First, in relation to the previous clause, I mentioned the holding of fingerprint information. It is perfectly reasonable that, when the police take fingerprints that are subsequently proven to be unnecessary, as the suspect has been released and no charge has been proffered, there is no case for keeping them; otherwise the police can have a permanent record on somebody who is wholly innocent of all suspicions, and one then has to ask why any records of any sort are being kept. During the passage of the prevention of terrorism Act, many of us suspected that it was intended more to enable the police to haul people in and keep records on them than to lead to serious prosecutions.

Secondly, the report of the Joint Committee on Human Rights, to which hon. Members have referred, reveals serious anxieties about the way in which clause 89 and associated provisions have suddenly been thrust into the Bill when they have little to do with its purported intention. It is supposed to deal with a terrorist emergency; indeed, hon. Members have been asked to decide that there is such an emergency. It would therefore be helpful if the Government withdrew clause 89 and the associated provisions.

If there are genuine anxieties about fingerprinting and right of access, the Government should introduce a separate measure that can be properly scrutinised. It is inappropriate to deal with such a major topic in a 15-minute debate in the middle of considering an enormous Bill that is being rushed through at inordinate speed.

Photo of Beverley Hughes Beverley Hughes Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

The anxieties that have been expressed by the Joint Committee on Human Rights and hon. Members have not been ignored or treated lightly. That is far from the case. The need for the clauses and powers that relate to establishing identity were considered carefully. Several points justify their retention.

Clause 89 and the associated provisions simply replicate existing police powers for investigating crime at the point when people are detained and their identity is not known, either because they withhold co-operation or because they have given a false identity. That applies to only a small number of cases. Most people co-operate with the police in saying who they are. However, that does not happen in a small number of cases and valuable time may be lost.

Photo of Oliver Letwin Oliver Letwin Shadow Secretary of State (Home Office)

Does that small number of cases involve terrorism?

Photo of Beverley Hughes Beverley Hughes Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

Those cases may involve terrorism. I shall talk about that later, but people may be detained for another offence, which is not a terrorist offence, but may be shown in the fullness of time to be linked to terrorist acts.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

Will those powers be used and initiated in connection with terrorist investigations?

Photo of Beverley Hughes Beverley Hughes Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

As I said, I shall deal with that point later. However, the powers that we are considering will be available to the police when they have detained someone in connection with a crime that is not a terrorist offence.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

I believe that I understand the Minister. However, will the investigations or powers be initiated in connection with terrorist investigations? We want to know about their initiation.

Photo of Beverley Hughes Beverley Hughes Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

As I said, the powers relate to establishing identity. If someone is detained on suspicion of involvement with terrorism and refuses to disclose identity, or gives a false identity, the powers will be initiated.

Photo of James Paice James Paice Shadow Spokesperson (Home Affairs)

I suspect that there will be several interventions on the Minister. She said that the powers relate to identification, but I could draw her attention to many other aspects of the clauses. They do not simply cover identification. Clause 89(9) states:

"A photograph taken under this section—

(a) may be used by, or disclosed to, any person for any purpose related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution".

That has nothing to do with identity.

Photo of Beverley Hughes Beverley Hughes Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

Certainly, once a photograph has been taken, it may be retained by the police and used for those purposes. The original taking of the photograph, and the powers in the Bill that allow the police to take it, are for the purposes of identification. The information collected, be it a photograph or a fingerprint, can be retained and used in the subsequent investigation of other crimes or acts of terrorism. The power relates, initially, to the need to identify people.

I ask hon. Members to think about the practicalities of the circumstances in which the police have detained someone without knowing who it is. At that point, the police do not know what they are dealing with, in relation either to the person or to the offences that the person might have committed.

Photo of Norman Baker Norman Baker Shadow Spokesperson (Home Affairs)

If, having photographed somebody, a law enforcement agency such as the police discovered that the person had no connection whatsoever with terrorism, would the photographs be destroyed?

Photo of Beverley Hughes Beverley Hughes Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

No, they would not be destroyed. Consistent with existing provisions, fingerprints or photographs will be able to be retained and used in the investigation of further offences, whether they are criminal or terrorist offences. That is the law at the moment. We are not giving a new power to the police; we are simply applying the powers that pertain at the moment to these new powers.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

Will the Minister tell the House what the Home Office's recommendation is to police authorities as to the length of time that they should keep records on people against whom all suspicion has evaporated, in relation to any offence, in the eyes of the police?

Photo of Beverley Hughes Beverley Hughes Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

Under the current legislation, such records can be kept indefinitely. The Bill will not change those circumstances.

Photo of Beverley Hughes Beverley Hughes Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

I would like to make some progress on the arguments that I want to put to hon. Members.

When the police are holding someone in a police station without knowing who it is—either because the person will not co-operate or because he has given a false identity—they do not know what they are dealing with. They do not know whether the person has been involved in terrorist acts, or whether the reasons for detaining—[Interruption.] Well, let us take a specific example, if hon. Members are finding this difficult to understand.

Let us take the example in which someone has been brought into a police station and detained because he was trespassing on the property of a public utility, and has refused to divulge his identity. Clearly, the reasons for his trespassing could be many and varied. They could involve a range of criminal offences, sabotage or the planting of a bomb on those premises in relation to a terrorist activity.

At that point, because the police do not know who the person is, they cannot begin to identify the kind of person with whom they are dealing or what that person might have been seeking to do. It is, therefore, critical that the identity of the person should be discovered in the shortest possible time, and that the police should have the powers to enable them to establish that identity. If, in that example, someone had already planted a bomb, time would be of the essence. The police would be doing many things at that point, but one thing that they would surely need to do would be to establish the identity of that person.

Photo of James Paice James Paice Shadow Spokesperson (Home Affairs) 8:45 pm, 26th November 2001

I am grateful to the Minister for giving way again. As she describes it, that is perfectly reasonable, but she is on very dangerous ground, even with the example she gives.

Under the Countryside and Rights of Way Act 2000, this Government have made it a criminal offence to trespass on private ground in a number of situations. Therefore, in theory, what the Minister has said could apply to somebody caught trespassing with a dog off a lead in Snowdonia. That is a criminal offence according to her Government's legislation and her remarks apply to it, but what about somebody arrested for a road traffic offence? Is she suggesting that, under these proposals, somebody detained in a police station for any criminal offence—perhaps an ordinary traffic offence—must be subject to all those procedures as it is vaguely possible that it may one day be proven that they had some link with a terrorist activity? In the ordinary balance of events, that is highly unlikely.

Photo of Beverley Hughes Beverley Hughes Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

Let me give the hon. Gentleman another example, which is relevant. He mentioned road traffic incidents. In 1997, a group of three Algerian people were arrested in London for a road traffic offence. The circumstances of the case are that there were explosives in the back of the van. In the ensuing incident, the police officer was shot, so what brought that person—

Photo of Beverley Hughes Beverley Hughes Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

No, I shall finish my point.

A road traffic infringement brought that person to police attention and the activities in which that person was engaged are exactly those against which the police would want to use these powers. They would use them to identify the driver of the truck.

Photo of James Paice James Paice Shadow Spokesperson (Home Affairs)

But the Terrorism Act 2000, coupled with clause 88, which we have just passed, achieve precisely that objective. Of course, any sensible police officer who stops a car and finds explosives in the back will suspect nefarious activity, and probably terrorism, but I contend that those powers already exist in that context. They do not need the proposed draconian extension.

Photo of Beverley Hughes Beverley Hughes Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

I remind the hon. Gentleman that, as I outlined in the trespass example, we are discussing the circumstances in which somebody is detained, albeit on a minor charge or allegation, but refuses to give his identity and prevents the police from identifying him. If the police do not know who he is, they will not know what they are dealing with. It is imperative that the police have powers to identify that person in the shortest possible time. At that point, they would not know whether the limit of the transgression by a person who refused to give his identity was walking his dog and trespassing or being involved in a road traffic incident. If the person will not give his identity, the police cannot establish whether any other investigation ought to be pursued.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

I am grateful to the Minister for giving way. She has given examples: a trespass on property owned by a public utility, someone planting a bomb and a truck with explosives in the rear. Surely no police power would be curbed or curtailed by accepting the amendments. In other words, the powers exercised must be justified as being in connection with a terrorist investigation. Prima facie, in those examples surely a terrorist investigation is warranted.

Photo of Beverley Hughes Beverley Hughes Parliamentary Under-Secretary, Home Office, The Parliamentary Under-Secretary of State for the Home Department

Not in the trespass example. As I have tried to make clear to hon. Members, when the police detain a person who refuses to disclose his identity, they will not know which possible scenario that person is involved in, whether it be robbery or something more than robbery. The police do not have the benefit of hindsight. They have to deal with a person in a police station who will not disclose his identity. The establishment of the detained person's identity is critical to the police's ability to discriminate between those scenarios and the activities that he may have been involved in.

There is a link between crime, especially organised crime, and terrorist activities. There is a great deal of organised crime in this country, including counterfeiting, trading in counterfeit goods, smuggling cigarettes, alcohol and drugs, and trading in drugs. The security services estimate that about half of all organised crime groups, certainly in Northern Ireland, have links with terrorist groups. Organised crime fuels and funds terrorist activities.

If a person is detained on suspicion of being involved in organised crime or smuggling large quantities of cigarettes, drugs or alcohol and he refuses to give his identity, the likelihood of his activity being used to fuel and fund terrorism is even greater. It is a serious impediment to the police's investigations and to their discovery of terrorist activities if they cannot identify that person.

We have considered carefully the points made by the Joint Committee, which have been reiterated by hon. Members in this debate. However, it is critical that the police have these additional powers because of the strong connection between crime and terrorist activity, because it is not possible for the police to draw a firm line between various crimes and terrorism, and because of the small number of cases in which the police cannot identify a suspect or get his co-operation to do so. Therefore, we will not accept the Opposition's amendments.

Photo of James Paice James Paice Shadow Spokesperson (Home Affairs)

It has been a useful debate. I am pleased that we tabled these amendments, not least because they have brought out from the Minister some elucidating remarks about the Government's attitude to this whole issue. If we were in any doubt about the wisdom of our amendments when we started, we were certainly in no doubt at the end of her contribution. The logic of her argument is that the police should have universal stop-and-search powers because anyone could be a terrorist. That is true, but anyone who is detained by a policeman in a police station—

Photo of James Paice James Paice Shadow Spokesperson (Home Affairs)

That is not correct. I suggest that the hon. Gentleman read the clauses, because the provisions apply whether or not consent is given. I hope that he is better informed when we get to the Ministry of Defence provisions.

The clause provides that anyone who is brought to a police station and detained there for any crime—it could be a footling traffic offence—is subject to all these provisions. The examples that the Minister gave do not stand up. Of course, if there is justification for believing that terrorism could be involved, it is perfectly right and proper for the police to have these powers. There is no dispute about that—certainly not from Conservative Members. The dispute is over the idea that those powers should be all-embracing and apply to anyone in any circumstances.

If someone has been caught trespassing on a public utility—assuming the offence is of any significance—a police officer may, especially in a period of heightened security, suspect that the person could have planted a bomb in a power station or wherever. That is reasonable—and I sincerely hope that if a van containing three Algerians and explosives in the back were stopped, any reasonable police officer would assume that terrorism might be involved. Neither case, however, negates the need for the amendments, which refer to detention

"in connection with a terrorist investigation".

The Minister's examples could stand and still be covered by our proposals.

I believe that the arguments are overwhelming. Terrorism itself should be dealt with in the Bill, but not the proposed widespread expansion of police powers. A few moments ago, the Minister said that the Bill allowed the police to discriminate. It allows them to discriminate, but does not oblige them to do so. That, too, is a serious civil liberties concern. Unless the police are obliged to be reasonable in the use of their powers, there is a risk of excessive use of those powers.

The Minister said that more than 50 per cent. of organised crime related to the funding of terrorism. That may be the case in Northern Ireland—I am not sufficiently knowledgable about Northern Ireland to dispute such a claim—but it is a pretty sweeping statement to make about the rest of the United Kingdom. If the Minister is right, what she said puts things in context, but I suspect she wishes that she had not said it.

In any event, the Minister failed to undermine the logic of our arguments. Indeed, I feel that the example she gave enhanced our case that the provision should be limited to those detained in connection with a terrorist investigation. In view of her intransigence, we wish to press the matter to a vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 199, Noes 330.

Division number 82 Anti-terrorism, Crime and Security Bill — Amendment to Clause 89 — Identification at a Police Station

Aye: 199 MPs

No: 330 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Absent: 126 MPs

Absents: A-Z by last name

Question accordingly negatived.

Clause 89 ordered to stand part of the Bill.

Clauses 90 to 92 ordered to stand part of the Bill.