My Lords, I thank noble Lords who have raised a number of important issues relating to the ports and border powers under Schedule 3 to the Bill and Schedule 7 to the Terrorism Act 2000. While it is incumbent on the Government of the day to keep the people of this country safe and respond to a range of evolving threats—as the noble Lord, Lord Blair, says, that is what it is all about—it is also critical that we are mindful of the wider impact that these measures can have if exercised arbitrarily or without due care.
As noble Lords will be aware, the powers under Schedule 3 have been introduced to address a gap in our capability to tackle the threat posed by hostile state actors. As with the equivalent powers under Schedule 7 for counterterrorism purposes, they will provide the police with the tools that they need to counter the threat from hostile states. I have listened carefully to the points made at Second Reading and today about the powers and the concerns about how they might be used. The Government share the view that the arbitrary use of any police power is objectionable, as the noble Lord, Lord Rosser, says, which is why they will be subject to a number of checks and balances.
Amendment 64 would ensure that an examining officer may exercise examination and detention powers under Schedule 3 only where he or she has reasonable grounds to suspect that a person is or has been engaged in hostile activity. Amendments 42 and 46 would make similar changes to Schedule 7. Noble Lords may recall that in relation to the powers under Schedule 7 the Government have consistently rejected the introduction of such a threshold. We share the view of our operational partners that to amend the legislation in this way would fundamentally undermine the utility of capabilities that the police rely on to keep the public safe.
There are three key reasons for that and they apply to Schedule 3 in equal measure. First, we would risk disclosing to hostile actors the extent of our intelligence coverage and capabilities, as the noble Lord, Lord Anderson, pointed out. These powers are and will be used to examine individuals who have been identified by operational partners as working with or for terrorists or hostile actors, which could also include foreign intelligence operatives or agents of a foreign intelligence service. Any person examined under a power subject to a suspicion threshold could infer that they were of active interest to the police and intelligence agencies and the tradecraft behind that intelligence coverage. Port officers may also be required to explain to these individuals the reasons for stopping them. In such an event, it is likely that terrorists or hostile actors would use this information to reverse-engineer our methods, bypass future security checks and increase their reliance on clean skins, as the noble Lord, Lord Anderson, pointed out.
Secondly, requiring grounds for suspicion would in effect remove a key tool to identify and disrupt previously unknown terrorists or hostile actors. In giving evidence to the Commons Public Bill Committee, Assistant Commissioner Neil Basu explained that the police are often in possession of intelligence that is “fragmented” or “incomplete” and is not always focused on a specific individual. Such intelligence may instead point to trends or patterns of travel, or an active threat linked to a particular destination and timeframe. The introduction of a suspicion threshold would limit the availability of these powers to known individuals, or those who have demonstrated suspicious behaviour at a port. It would prevent port officers from selecting individuals for examination who are potentially exploiting travel routes that have been uncovered by intelligence or are heading to a specific destination within an identified threat window.
To put it another way, if intelligence indicated that an unidentified individual of terrorism or hostile activity concern, who belonged to a certain nationality, would be arriving at a particular destination within a particular timeframe, those powers would be critical to identifying that person. There would not necessarily be sufficient material in respect of any particular person to amount to reasonable grounds to suspect involvement in terrorism or hostile activity, nor would the code permit the selection of any person on the basis of their nationality alone. Yet taken together, the nationality, arrival destination and arrival time would be sufficient under a no-suspicion power for the critically important purpose of allowing the port officers to stop and question a person, and following up on the intelligence concerning terrorist or hostile state activity risk. Finally, these amendments would also severely limit any secondary gains from use of these powers, such as excluding individuals from further investigation, acquiring additional intelligence on subjects of interest, or deterring those involved in such activity from travelling to and from the United Kingdom.
A short port examination may be the difference between identifying or excluding a person from further investigation, allowing the police and intelligence services to focus their limited resources on monitoring those individuals of most concern. The intelligence benefit would be dramatically reduced by the unavailability of these powers with respect to unknown individuals and may be eliminated altogether if officers are required to disclose to the person the reasons for their selection.
The approach taken in Schedule 3 and Schedule 7 is supported by no less of an authority than the Supreme Court. The noble Lord, Lord Anderson, alluded to the case of Beghal. The court said that,
“it is clear that the vital intelligence gathering element of Schedule 7 would not be achieved if prior suspicion on reasonable grounds were a condition for questioning”.
For completeness, it is worth also quoting from a later passage in the same judgment:
“it is easy to understand why Schedule 7 does not limit the right to stop and question to those people who give rise to objectively explicable suspicion. The fact that officers have the right to stop and question unpredictably is very likely to assist in both detecting and preventing terrorism, and in deterring some who might otherwise seek to travel to or from this country for reasons connected with terrorism”.
It is a powerful endorsement of the approach taken in Schedule 7 and, by extension therefore, Schedule 3 to the Bill.
Amendment 65 would require that an examining officer exercise Schedule 3 powers only where “necessary and proportionate”. Amendment 65A, in the name of the noble Lord, Lord Rosser, covers similar ground. This would require that the decision of a port officer to select a person for examination must not be arbitrary and must be informed by the threat from hostile activity. The Government agree with the sentiment behind these two amendments, as it is important that any police power is exercised only where it is necessary and proportionate to do so. It is not the case, however, that without these amendments examining officers would exercise Schedule 3 powers arbitrarily or disproportionately. Not only are these the same officers who are trained and accredited to exercise Schedule 7 powers, and have done so for many years to the highest professional standards, but there are also a number of important safeguards to prevent misuse of the powers. For example, officers will be trained and accredited to a national standard before being able to use Schedule 3 powers. These will be separate courses and examinations to those currently undertaken by officers exercising the Schedule 7 powers. Exercise of these powers must also comply with the standards and obligations set out in the statutory code of practice and will be subject to the oversight and scrutiny of the Investigatory Powers Commissioner, who will be required to report annually on his findings.
I must remind the Committee that Schedule 7 powers have consistently been judged necessary and proportionate due to the location of their application and their impact on what is a small subsection of the travelling public. In another passage in the Supreme Court judgment in the case of Beghal, the court supported the principle that,
“those who pass through our ports have always been adjusted to border controls, including the requirement to identify oneself and to submit to searches and answer questions in aid of general security”.
By extension, this logic must also apply to the new port power under Schedule 3 to the Bill.
In addressing the other amendments, I have already touched on the possible reasons for selection under the new port powers, which will be informed by considerations including the current threat to the UK from hostile activity, available intelligence and trends or patterns of travel in relation to a known security threat. Again, this demonstrates that use of the powers will not be for arbitrary or discriminatory reasons.
The draft Schedule 3 code of practice makes the position clear on this issue. It is important to remember that the Bill provides that although the failure of an examining officer to observe a provision of a code does not of itself make the officer liable to criminal or civil proceedings, a code is admissible in such proceedings and is to be taken into account by a court in any case in which it appears to the court to be relevant. Therefore, any departure by an officer from a provision of the code may have to be defended in court as necessary, reasonable and proportionate in all the circumstances.
I have an answer to the noble Baroness, Lady Hamwee, but I cannot read it and therefore do not know what the question was. Whatever the question was, I shall write to her about it.