Introduction
The Counter-Terrorism and Security Act 2019 confers extensive powers on an “examining officer” to stop, question and detain a person at a UK port or border area to determine whether he or she appears to be a person who is, or has been, engaged in “hostile activity”. The powers came into effect a few weeks ago on the 13 August 2020. They have been presented as a necessary response to the perceived threat posed by hostile actors or agents on behalf of a foreign State. The immediate trigger was the poisoning of two Russian nationals (among others) by a Novichok nerve agent in Salisbury in March 2018.
As often happens with such draconian police powers, the new measures have much wider reach than their purported target. Not only do they expose all travellers to the risk of being subjected arbitrarily to coercive and severe intrusion on their liberty, person and privacy, but they also provide a powerful tool to curtail the legitimate activities of actors who threaten powerful political and economic interests.
Initial examination powers
The statutory powers conferred on an examining officer under these provisions parallel the draconian counter terrorism police powers. An examining officer in this context is a constable, designated immigration officer or designated customs officer. He or she can stop, question and search a person in a port or border area where that person is believed to be travelling in to or out of the UK. The search power extends to personal items and mobile electronic devices. It also extends to a search of goods and vehicles in a port or border area where they are believed to be coming into or out of the UK.
Critically, there is no requirement for a prior suspicion in any individual case that the person (or goods etc) may be, or may have been, engaged in hostile activity (see below). It can be an arbitrary exploratory check.
The person stopped must give the officer any information in his or her possession that the officer requests. The same applies to any documents (including passwords to electronic devices) requested by the officer. It should also be noted, however, that the examining officer should avoid asking questions that are likely to lead to disclosure of a journalist’s sources; but that restriction is not absolute.
Information and documents
An officer may retain any article obtained from the person subjected to examination. It can also be destroyed in certain circumstances. Significantly, the purposes for which an article can be retained (or destroyed) are not confined to suspected association with hostile activity.
There is an obvious risk that the article may comprise confidential journalistic material or protected material such as legally privileged documents or medical records. While there is provision for independent oversight of access to such materials, it does not provide full protection for them. Moreover, it applies only in respect of articles that are believed to be connected with a hostile act or where retention is necessary to prevent death or significant injury. The grounds for retaining confidential materials extend well beyond them.
The examining officer has an even broader power to make and retain a copy of anything (including electronic data) obtained from the person or pursuant to a search. The copy may contain confidential or sensitive material, such as a journalist’s sources.
It must be acknowledged that the person concerned will normally have an opportunity to make representations (albeit after the event) as to why any particular article or document (or a copy) should not be retained. The Code of Practice (see below) also offers some further, but limited, protection for confidential material.
Detention
After the first hour of examination, a person can be detained for up to another five hours, during which the same obligation to answer questions and provide information etc continues.
The regime applicable to the detained person is very similar to that applicable to the detention of terrorist suspects. He or she can be photographed, fingerprinted, measured, identified, strip-searched and questioned. Non-intimate body samples can be taken. These include a swab from the inside of the mouth from which a DNA profile of the person can be derived. Fingerprints and DNA profiles can be retained for six months and can be retained indefinitely if the person has been convicted of a recorded offence (or equivalent) in the UK or elsewhere. Conviction in this context includes a caution, reprimand or warning. The prints and profiles can also be retained as long as necessary in the interests of national security.
It is important to note that the detained person can be subject to these draconian invasions of his or her liberty, bodily integrity and privacy although he or she is not suspected of a criminal offence. Indeed, there is no requirement even for a suspicion that the detained person may be, or may have been, engaged in hostile activity. The powers can be used simply as part of a process for determining whether a traveller selected at random might be engaged in hostile activity.
There are some limited protections. The detained person has a qualified right of access to a solicitor and to have a named person informed of his or her whereabouts. The need for continued detention must be reviewed after one hour and, after that, at least every two hours.
Hostile activity
These draconian powers are deemed necessary to combat the perceived threat of foreign agents engaging in “hostile activity”. The first point to note about this is that it signals a major step-change in the expansion of exceptional coercive powers. Previously these were mostly confined to, and officially justified as necessary to deal with, terrorism or an emergency situation. Now, their reach is being expanded into new territory, the limits of which arguably are even broader and more ill-defined than terrorism.
Hostile activity is the commission, preparation or instigation of a hostile act that is or may be carried out on behalf of another State or otherwise in the interests of another State. An act is hostile for this purpose if it threatens national security, threatens the economic well-being of the UK in a way relevant to the interests of the UK or constitutes an offence punishable by a term of imprisonment of at least three years.
This definition gives the powers an incredibly broad reach. It goes far beyond the stereotype of foreign spies coming to the UK to steal military secrets or to engage in criminal activity aimed at threatening life or essential national infrastructure. It is not even necessary for the ‘hostile’ act to constitute a criminal offence or to have occurred on UK territory. Nor is it necessary for the person concerned to be aware that he or she is engaged in a hostile act. Nor is it necessary for a foreign State to have sanctioned the act or even to be aware that it is being carried out. Hostile activity could feasibly be satisfied, for example, by a major foreign enterprise engaging in legitimate commercial activities that damage British interests in markets for sensitive information technology goods or services.
Ultimately, the concept of the hostile act is so broad that its limits are difficult to identify in practice. It leaves almost unbridled discretion over the exercise of the associated draconian powers to the examining officer on the ground and to the security and political authorities who can guide how and when they should be applied. It is yet another example of government using a shocking criminal or terrorist act as justification for a major expansion of government and security powers. These are framed so broadly that they could potentially be used to suppress political dissent. Equally they could be used in a manner that would silence those who might otherwise be minded to disclose evidence of matters that government and powerful economic interests would prefer to remain hidden to protect their own selfish interests.
Northern Ireland
It is worth taking particular note of the application of these provisions to the border area in Northern Ireland. There, the officer does not even have to be checking whether the person might be engaged in hostile activity. The officer can stop, question and detain any person simply to determine whether his or her presence in the border area “is connected with the person’s entry into or departure from Northern Ireland.” Where such a person is detained, he or she can be subjected to all the powers pertaining to photographs, fingerprints, measurement, identification, strip-search, questioning, non-intimate body samples and DNA profiles.
Almost inevitably, the entry or departure in question will relate to the Republic of Ireland which lies on the other side of the border and which is part of a common travel area with Northern Ireland and Britain. Indeed, the legislation defines the border area in this context as any place not more than one mile from the border between Northern Ireland and the Republic of Ireland (or the first place that a train from the Republic of Ireland stops in Northern Ireland to allow passengers to leave).
The power exposes all persons living and moving in the border area in Northern Ireland to random and intrusive police monitoring for no apparent reason beyond determining whether they are moving backwards and forwards across an ‘invisible’ border within a common travel area. It is not at all clear why an officer would want to know whether a person was coming from or going to the Republic of Ireland in this context. In effect, it is putting such ordinary everyday travel on the same footing as hostile activity.
Curiously the Explanatory Notes to the legislation state that the Northern Ireland border provision is essentially a precursor power to enable an examining officer determine whether a person satisfies a pre-condition for the exercise of the main power, which is itself exercisable on a random and arbitrary basis. At best, this is an implausible explanation. Why would a police officer need a power to stop and examine a person at random in order to determine whether that person can be stopped and examined at random? And why is it not necessary to give police officers a similar “precursor” power at all of the UK ports?
Perhaps, the real explanation is that the power is a post-Brexit policing measure which has been slipped in quietly under cover of the hostile foreign actor provisions. The permanent police hard-border checks of old may well be gone. It may now be, however, that they have been superseded by random mobile checks that are even more intrusive on the personal liberty, privacy and bodily integrity of all persons living, working and socialising within one mile of the UK’s ‘invisible border’ with the Republic of Ireland and, soon to be, Euro border.
Code of Practice
The Code of Practice applicable to these port and border area powers offers a few protections for persons examined and detained. Two are worth noting, even if they are very light, relative to the enormity of the powers themselves. The first is the reminder that race, ethnic background etc must not be used as criteria to target persons. The potential benefits of this, however, are severely undermined by the fact that it is legitimate to use criteria such as suspected sources of hostile activity and possible sources of future hostile activity. When added to the exceptionally broad definition of hostile activity, it seems clear that the cautions against using race and ethnic background etc as profilers will have little currency.
A second protection concerns access to material that is confidential in the hands of the person examined. This applies where the examining officer wants to retain or copy documents containing confidential material which cannot easily be detached from the rest. In this event, there is provision for an independent counsel to conduct the separation so that the examining officer will not have to read the confidential material. It should be noted, however, that confidential material is not given absolute protection. There is provision for an examining officer to access it in certain circumstances.
A failure to observe any provision of the Code of Practice does not of itself amount to a criminal or civil matter.
Conclusion
These port and border powers represent a major escalation of the exceptional regime that up to now has been confined essentially to counter terrorism. Extending the substance of the latter to vaguely defined hostile activity effects another ground-breaking expansion of draconian executive powers to police and government. The pattern is now familiar and relentless. A single shocking incident has been used as the pretext for this power grab. The consequential measures are voluminous, sweeping, lacking in clear limits and go far beyond anything that may have been needed to deal with the nature of that incident.
Another striking feature about the port and border control powers is that they are contained not in the main body of an Act of Parliament, but in one of the Schedules appended to it. The provisions run to 45 pages of small print and are accompanied by a 64-page Code of Practice. They are complex, impenetrable for the layperson and add to the already extensive body of similar counter terrorism measures. That in itself is an affront to the rule of law, given the extent to which the measures intrude on the personal liberty, privacy and bodily integrity of the individual. It is a stark illustration of our seemingly inexorable transition from government in accordance with law in these matters to government by sweeping discretionary powers.
It must be asked if we are any safer under the weight of this vast edifice of draconian powers. Is it possible that the measures introduced supposedly to protect us from certain harms are now so extensive and extreme that they pose an even greater risk of harm to fundamental values that we hold dear?
Download the September 2020 edition of Criminal Justice Notes