Clause 20 - Powers of search etc

National Security Bill – in a Public Bill Committee am 11:30 am ar 14 Gorffennaf 2022.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Question proposed, That the clause stand part of the Bill.

Photo of Rushanara Ali Rushanara Ali Llafur, Bethnal Green and Bow

With this, it will be convenient to consider the following: Government amendment 12.

That schedule 2 be the Second schedule to the Bill.

Photo of Stephen McPartland Stephen McPartland Minister of State (Home Office) (Security)

Robust investigative tools are crucial to enable the police effectively to counter threats by state actors, which operate using highly sophisticated means and often have access to significant resources and are skilled in tradecraft.

Clause 20 introduces schedule 2, which provides the police with powers of search and seizure when investigating threats posed by state actors to the UK and its interests. These powers replace the power of search in section 9 of the Official Secrets Act 1911.

Under the existing powers and those provided in schedule 2, the police can act on a reasonable suspicion that a relevant act has been, or is about to be, committed. This threshold is a crucial element within the provisions to enable the police to act with the necessary speed to counter state threats activity.

Photo of Kevan Jones Kevan Jones Llafur, North Durham

Can the Minister clarify what he means by “reasonable”? I know what it means in law, but I also know that there is a reasonableness test in the existing section 7 of the Act, which the security services say is not enough? So why is it okay here and it is not okay when it comes to clause 23?

Photo of Stephen McPartland Stephen McPartland Minister of State (Home Office) (Security)

The difference is that under the Police and Criminal Evidence Act 1984, or PACE, the police need to be able to identify in this situation that a crime has been committed, whereas for this measure the police are trying to intervene earlier, so that they can stop a crime from being committed. Effectively, that is what the difference is.

We will debate clause 23 when we get to it—

Photo of Stephen McPartland Stephen McPartland Minister of State (Home Office) (Security)

No, no—we will debate clause 23 when we get to it. I will be very happy to talk about clause 23 then.

Photo of Stephen McPartland Stephen McPartland Minister of State (Home Office) (Security)

No. [Laughter.]

As I was saying, clause 20 introduces schedule 2 to the Bill. Under the existing powers and those provided by schedule 2, the police can act on a reasonable suspicion that a relevant act has been, or is about to be, committed.

The threshold is a crucial element within the provisions to enable the police to act with the necessary speed to counter state threats activity. General search and seizure powers, such as those provided under PACE, are comparatively restrictive because they do not allow the police to act pre-emptively when there is intelligence to indicate that an offence is about to be committed. So, both the Ministry of Justice in 2014 and the Law Commission in 2020 reviewed the existing power, concluding that it was necessary and that reliance on PACE powers alone would limit the ability of the police to disrupt and investigate state threats.

These powers may only be used to deal with the most serious offences covered by this Bill, as well as where state threats activity involves violence or constitutes a serious threat to life or public safety.

Turning to the powers themselves, part 1 of schedule 2 legislates for powers of search and seizure as they apply in England, Wales and Northern Ireland. They provide for the police to gain access to material likely to be evidence of a relevant act, which covers specific offences or certain acts or threats under the Bill.

Where the relevant act has been, or is about to be, committed the powers in part 1 of this schedule are different, depending on the nature of the material sought to reflect the enhanced safeguards that are required to protect confidential material.

Under paragraph 2, for non-confidential material, the police can obtain a warrant to enter and search premises and to seize and retain material. There are two key conditions that a court must be satisfied are met for such a warrant to be granted: first, that a relevant act has been, or is about to be, committed and, secondly, that the material sought on a premises is likely to be evidence of that act and is not confidential material. Should the police apply for an all-premises warrant, an additional condition applies: it must not be reasonably practicable to set out all the premises that the person of interest occupies or controls, but that may need to be searched. To access confidential material, a production order must be obtained, should this course fail or be unavailable through a warrant.

For a production order to be granted, there are four tests or conditions, all of which must be satisfied for a judge to grant a production order. First, there must be reasonable grounds to suspect that a relevant act has been, or is about to be, committed. Secondly, it must be confidential material that will likely evidence a relevant act and not be legally privileged. Thirdly, the material must be likely to be of substantial value to the investigation. Finally, it must be in the public interest considering the benefit it would provide to the investigation in question and the circumstances in which it is held.

Given the nature of the material, it is right that more robust tests must be met before access to this material is granted. If granted, a production order requires a person to produce or give the police access to material. There are also circumstances in which a judge may grant a production order where the police suspect that evidence will come into a person’s possession within 28 days. That mirrors the power available in counter-terrorism legislation—that is an important point. In certain circumstances, a constable can apply to a judge to grant a warrant to enter premises, and search for and seize confidential material. This type of warrant cannot be granted unless it satisfies all four of the same tests that are required for a production order.

In addition, the warrant must be required for one of several reasons, including, first, that it is not practicable to communicate with the person who may grant access to the premises or material. Secondly, that it would be seriously prejudicial to the investigation to do so or, thirdly, that a production order has not been complied with. Under paragraph 8, a constable can obtain an order from a judge for a person to provide an explanation as to why they had in their possession certain material recovered during the execution of the above powers. That enables police to build a greater picture of how material came to be in an individual’s possession and for what purposes they held it.

Investigators have a responsibility to pursue all legitimate lines of inquiry, regardless of where they may lead, and this power provides a vital tool to support the investigative inquiries of the police. Part 1 of schedule 2 provides specific powers for search and seizure in urgent cases whereby a superintendent may authorise the police to enter premises, search for and seize material if it appears to them that the case is one of great emergency in which immediate action is necessary. Similarly, there is an emergency power to require an explanation. Again, these powers are likely subject to safeguards, which I will come on to shortly.

Part 2 of schedule 2 provides a similar set of powers for police in Scotland, but with minor differences to reflect their devolved powers. In addition to the conditions I have already covered, there are additional safeguards within these provisions, including, first, that orders and warrants must be made by an independent judicial authority in all cases, expect in cases of great emergency. Secondly, in the rare instance that the urgent powers are exercised by a senior police officer, the Secretary of State must be notified of their use, and if certain confidential material is recovered during the search that the police want to retain as evidence, its retention must be authorised by a judge. I will come to that in more detail shortly. Finally, nothing in the schedule provides for access to legally privileged information.

Recognising the importance that we place on press freedoms, there are specific safeguards that govern the handling of confidential journalistic material. In an exceptional case where such material is seized during a search that has been authorised under the urgent procedure, a warrant must be sought from a judge for its continued retention. In instances where a warrant is refused, a judge may direct that the confidential journalistic material be returned or destroyed. That reflects recent case law and ensures that the provisions provide appropriate protection for journalists.

Government amendment 12 is to schedule 2. As I am sure hon. Members would agree, it is important that court rules are able to be amended to cover the powers of search and seizure provided for in schedule 2, if required. This technical amendment achieves that. Under part 1, paragraph 2 of schedule 2, a constable can apply for a warrant to enter a premises and search for and seize material classed as non-confidential where they suspect a relevant act in the Bill has been, or is about to be, committed. As provided for in paragraph 2(1)(b), a constable in Northern Ireland must apply for that type of warrant from a lay magistrate. Government amendment 12 will ensure that, should it be necessary to do so, the court rules can be amended to reflect any specific requirements that apply to the application and issuing of such warrants.

In summary, the Government have reformed an existing tool, the utility of which has been independently recognised and provided for in its use in state threats investigations, while ensuring that it is subject to a range of modern and vital safeguards. I ask the Committee to support the inclusion of clause 20 and schedule 2 in the Bill, along with Government amendment 12.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office) 11:45, 14 Gorffennaf 2022

I thank the Minister for his explanation. Clause 20 and schedule 2 deal with the power of entry, search and seizure in relation to the new offences created by part 1 of the Bill. There are a number of powers here that seem largely appropriate and proportionate for the reasons outlined by the Minister.

However, I will press the Minister on paragraphs 3 and 4 of part 1 in schedule 2, on the production orders relating to confidential material. These provisions set out the conditions that must be met in order for a constable to apply to a judge for a confidential material production order. I was listening carefully to what the Minister said on that. The person specified in that order then has to produce, within a specified period, any material that they have in their possession, custody or control.

The specified period is seven days. The clause says that it is seven days unless it appears to the judge that a different period would be appropriate in the particular circumstances of the application. Why is it seven days? Given the seriousness of some of the offences and the consequences of confidential material being in the hands of someone who should not have it—potentially to the benefit of a hostile state—that feels like quite a long period for such material to be able to be used against us. I would be grateful if the Minister explained the rationale for specifying the period as seven days.

My second point is that there is a lot going on in schedule 2, much as there is in schedule 3. While there are provisions for an ongoing review of the powers created by part 2 of the Bill, at clause 49, I think that part 1 should be reviewed by an independent reviewer to safeguard against any unintended consequences once the legislation is enacted. That is why the Opposition have tabled new clause 2; we will make the case for that provision when we reach the appropriate point.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

I broadly welcome the provisions. As the hon. Member for Halifax said, they are extensive powers, so I am very sympathetic to her suggestion that they should be subject to review in the same way that other parts of the Bill are. I appreciate that those extensive powers are modelled on the equivalent provisions in terrorism legislation. I have no problem with those provisions being borrowed from such legislation, but they need to be justified in their own context. The Minister has usefully set out why exactly they are needed here. The SNP is broadly supportive of that.

I have a couple of questions. I am not familiar with the idea of allowing police officers or sheriffs to order a person to explain material that is seized. I see that is borrowed from terrorism legislation. However, I wonder how that works alongside the right not to require someone to self-incriminate, particularly when there is an emergency power for police officers to require an explanation—if that is not complied with, it can be a criminal offence. I am interested in how that works; I assume it works in the context of the terrorism legislation, but it would be interesting to hear a bit more about that. I am also interested in the idea of what a “great emergency” amounts to. That is not a concept that I have seen before. Are we talking about threat to life and limb, essentially? I am not sure about that.

My only other point is that how the provisions on search and seizure apply depends largely on how the foreign power condition operates. I said at the outset of our debates on clause 1 that I have some difficulties with how broadly some aspects of the term were drawn. For example, the non-governmental organisations I referred to during that debate and journalists working for a foreign state broadcaster can be brought within the foreign power condition, meaning that they are subject to the search-and-seizure powers. We can probably come back to that in the context of clause 1, but it is relevant to our discussion. It could be those people who are searched or who have documents seized under the schedule, including confidential journalistic material.

Those are a couple of points to emphasise, but we broadly support what is in the clause and the schedule.

Photo of Stephen McPartland Stephen McPartland Minister of State (Home Office) (Security)

I am grateful for Members’ support. To sum up, the important thing is to recognise that between 2017 and 2022, the powers relating to great emergency have been used seven times in England and Wales and once in Scotland, and they have never once been used by a senior police officer during that five-year period. This will not happen weekly or monthly; it will be a very rare event. We are trying to mirror the legislation that has proven to be successful in the Terrorism Act 2000. The seven days figure also mirrors the legislation in that Act. I totally accept the point made by the hon. Member for Halifax: if the judge has the evidence in front of him and wants to make it a different time period, that is then a judicial decision as opposed to any other kind of decision.

Question put and agreed to.

Clause 20 accordingly ordered to stand part of the Bill.