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Terrorism Act 2000 (Code of Practice for Examining Officers) (Revision) Order 2009

I thank the Minister for explaining the statutory instrument and its purpose. As he said, the code of practice for examining officers was first issued in 2001 and it is right that it has been consulted on and reviewed in the light of the experience of practitioners and to reflect changes in technology and other pieces of terrorism legislation. I echo the Committee on the Merits of Statutory Instruments in commending the practice of review and improvement to produce a practicable guide. The procedure has been excellent. I also welcome the Minister’s remarks on comprehensiveness, relevance and proportionality in implementation. The Minister outlined in detail the specific changes made to the code of practice. I will not touch on them all, but I seek clarification on five points. First, the code makes it clear that neither examination nor detention of an individual, nor a combination of examination and detention, should exceed nine hours. How was this figure of nine hours arrived at? If, during that period, the officer concludes that nothing terrorism-related was found in relation to the foreign national being examined, is the presumption that he or she will then be admitted? Secondly, from the report of the statutory reviewer of terrorism legislation, it is clear that the operation of the Terrorism Act 2000 and the implementation of the related powers should be only for terrorism-related purposes, not for other purposes, otherwise their credibility and community relations will be damaged. As the Minister mentioned, the Government have now added guidance notes to the code to help examining officers to decide when to exercise their powers. These notes say that the examining officers should base their decisions on a number of considerations, including known and suspected sources of terrorism, information on the origins and locations of terrorist groups, current or emerging terrorist activity, local trends and patterns of travel known to be linked to terrorist activity, and so on. I freely acknowledge that this is sensible guidance, but will the Minister say how the examining officers will come to have knowledge of these factors and how they will test them when examining an individual, all within nine hours? Some police forces have little experience of and expertise in terrorism, so will they be briefed regularly by the security services, the regional counterterrorism units or some other body? Will the Minister assure us that the different agencies and organisations will share the necessary intelligence with those tasked to be examining officers? In other words, is the system adequately joined up? I know that, in relation to the Prevent strand of the CONTEST strategy, Her Majesty’s Inspectorate of Constabulary and the Audit Commission have raised concerns about the lack of systems and procedures to allow information sharing between the security services, the local police forces and local authorities. So my question is not idle. It is important to have some assurance that the guidance that has been put in place will be implemented in a context that enables it to have real effect. Thirdly, the code of practice states that, ""an examining officer may seize and retain for examination anything produced during an examination or found during a search for a period of up to seven days"," beginning with the day on which the detention commences. The code goes on to say: ""If anything is found which in the opinion of the examining officer may be needed for use in criminal proceedings or … in connection with a decision … to make a deportation order … it may be detained for as long as is necessary"." The key question is: what is "necessary"? In these circumstances, under what obligation is the examining officer to inform and keep up to date the person to whom the property belongs? Are they kept in the loop? Fourthly, the code of practice states that an examining officer may, ""authorise another person to carry out a search on his behalf"." The subsequent guidance note says that only examining officers who have been trained to exercise search functions should carry out searches. Can the noble Lord confirm, therefore, that only a constable, immigration officer or customs officer trained as an examining officer may conduct a search? Fifthly, will the Minister clarify two points about the collection of fingerprint samples, which do not seem to be entirely clear from the revised code? When can fingerprints be taken? Can they be taken only once a person is detained or, if they have given their consent, can the applicant’s fingerprints be taken before they are informed that they are being detained? Will the Minister clarify the purpose of taking fingerprints? This is an important point. Is it only to confirm a person’s identity or can the fingerprints be used for other purposes? There is obviously a wider point about how the state retains and uses fingerprint samples. This is my last point, but one to which I attach a good deal of importance. There has rightly been a great deal of argument about the retention and use of DNA samples, which implicate about 1 million people who have not been convicted of anything. We on these Benches are extremely uneasy about this situation and have put forward proposals to remedy what we regard as an unwarranted approach. We do not want a replication in other fields with other forms of identification. What is the Government’s position on the retention and use of fingerprint samples taken in these circumstances? The samples of innocent people should not be held indefinitely, particularly as examining officers at ports of entry can examine and even detain a person, regardless of whether or not they suspect that that person is, or has been, concerned in the commission, preparation or instigation of an act of terrorism. In other words, there is no distinct standard for a reasoned basis for a fingerprint sample being taken. During the public consultation, which the Minister mentioned, I know that a number of concerns were raised about how to ensure the objectivity of examining officers when they decide whether to use the powers available to them. In the report that I mentioned, the noble Lord, Lord Carlile, said of examination at ports of entry: ""In the past I have suggested repeatedly that the number of random or intuitive stops could be reduced considerably. From my discussions with counter-terrorism police officers I know that considerable attention is being focused by the police … on behavioural analysis and the better use of intelligence"." That observation is positive and very good news, but it clearly needs to have practical effect and implementation. Will the Minister update the Committee on the follow-up to those observations? I am sure that we do not want a situation akin to that which we have seen with Section 44 of the Terrorism Act, where people are suspicious about the use of stop-and-search powers and whether they are being used inconsistently or for reasons that are entirely unrelated to those for which the powers were put on the statute book. How many people have been stopped under Schedule 7 to the Terrorism Act by examining officers in the past two years? How many of these have led to terrorism-related charges? Being able to stop and examine an individual without reasonable suspicion is certainly a wider power than is normally available to the police, immigration officers or customs officers. As I have said, we do not want a situation to arise where the powers of examining officers are used inconsistently or for reasons not entirely related to those for which the powers were put on the statute book. We must be conscious of the risk of this, particularly given that powers that have been much more tightly defined have attracted criticism for that very reason. These Benches will be extremely grateful for an update on the implementation of the recommendations of the noble Lord, Lord Carlile.