Consultation outcome

Consultation document: National Security Act 2023 codes of practice (accessible)

Updated 16 October 2023

July 2023

About this consultation

To:

Representations are welcome from operational organisations who will use the powers, as well as interest groups and the wider public.

Duration: From 20/07/2023 to 31/08/2023 (6 weeks)

Enquiries

National Security Act 2023 consultation
Homeland Security Group
Home Office
5th Floor, Peel Building
2 Marsham Street
London
SW1P 4DF

Email: NationalSecurityConsultations@homeoffice.gov.uk

How to respond

Please provide your response by 23:59 on 31/08/2023 at: Consultation: National Security Act 2023 codes of practice

Please indicate in your response whether you are content for it to be published in our public response paper, with or without attributing it to you/your organisation. Please note the confidentiality statement at page 13 which sets out the Home Office’s requirement to act in accordance with information access regimes.

If you are unable to use the online system, for example because you use specialist accessibility software that is not compatible with the system, you may download a word document version of the form and email or post it to the above contact details.

Please also contact the above details if you require information in any other format, such as braille, audio or another language.

We may not be able to analyse responses not submitted in these provided formats.

Topic of this consultation

This consultation concerns a new Code of Practice relating to Video Recording of interviews of people detained under the National Security Act and changes to the Code of Practice for officers who will exercise powers under Schedule 3 to the Counter-Terrorism and Border Security Act 2019.

Scope of consultation

This consultation seeks representations on whether these Codes of Practice are sufficiently clear to ensure the effective, fair and proportionate use of these powers.

Response paper

A response to this consultation exercise is due to be published at National Security Act 2023 codes of practice. Following the consultation period, responses will be analysed, and the draft codes revised as necessary. They will then be laid before Parliament for approval.

Geographical scope

UK wide

Executive Summary

The National Security Act (“the Act”) obtained Royal Assent on the 11th July 2023. It contains a suite of new measures to further protect our national security, the safety of the British public, and our vital interests from those who would seek to do us harm.

Part 1 of the Act completely overhauls and updates our espionage laws and creates a whole host of measures to enable our law enforcement and intelligence agencies to deter, detect and disrupt the full range of modern-day state threats. It will keep our country safe by making the UK an even harder target for those states who seek to conduct hostile acts against the UK, steal our information for commercial advantage, or interfere in our society covertly.

As part of a group of enhanced investigative powers, the Act creates new capabilities of arrest and detention, specifically designed to support state threats investigations. Where individuals are arrested and detained under the Act, any interview of an individual by a constable must be video recorded with sound. A new Code of Practice is required to give guidance to police constables on the conduct of such interviews (‘the Video Recording Code’).

The Act also makes changes to the state threats port stop examination power in Schedule 3 to the Counter-Terrorism and Border Security Act 2019. Revisions to the Code of Practice under that Act (‘the Schedule 3 Code’) are necessary to reflect these changes.

This consultation seeks input to ensure the guidance contained in these Codes of Practice is clear, effective and proportionate.

Background Information

State threats

Many of those who conduct state threats activity in the UK are highly capable actors, backed by foreign powers who are intent on causing significant harm in the UK. The Act represents the biggest overhaul of state threats legislation for a generation and provides our law enforcement and intelligence agencies with an enhanced suite of tools and powers to tackle the evolving threat of hostile activity by states.

There are times when state actors act with malign intent, operating covertly in an attempt to interfere with our national security, economy and democracy. These diverse threats are persistent and varied and include espionage, foreign interference in our political system, sabotage, disinformation, cyber operations, and even assassinations or kidnappings. These actions often take place in the shadows, but the harm is very real.

We must be able to deter, detect and disrupt those state actors who seek to harm the UK by covertly targeting our national interests, sensitive information, trade secrets and democratic way of life. Defeating the activity that threatens our people, property, economy, democracy, and freedom requires us to be even more sophisticated than those who would hurt us.

What are the arrest and detention powers in the Act?

The police work tirelessly to protect the British people from harm and we must do all that we can to ensure they have the required tools to do their job. We have seen with the Salisbury incident of 2018 that state threats activity can seriously disrupt the lives of UK residents and even tragically lead to loss of life. We must do everything possible to ensure that police have the required tools to stop this activity and protect the UK from harm to our national security, critical national infrastructure, our residents, and our democratic values.

The Act introduces new arrest and detention powers (Section 27 and Schedule 6), whereby a constable may arrest and detain, without a warrant, anyone who the constable reasonably suspects is, or has been, involved in foreign power threat activity, as defined in the Act.

Early disruption by police is critical to ensuring that harmful activity is not allowed to occur. State threats activity is often covert in nature, and it may be that upon arrest police do not yet have the full intelligence picture to determine the intended offence but have evidence to suspect involvement in state threats activity.

The equivalent arrest and detention powers available for terrorism investigations have been effective in disrupting terrorism and securing convictions.

The Act also introduces the potential for longer periods of detention to reflect the complex nature of such investigations and the likely sophistication of and techniques used by the individuals involved. Various safeguards are included to ensure that there is oversight on the use of these powers – including reviews of detention by officers independent of the investigation and the involvement of judicial authorities in authorising further detention.

What is the Video Recording Code?

Paragraph 3 of Schedule 6 to the Act requires that any interview by a constable, of a person detained under Section 27 of the Act must be video recorded with sound in accordance with a code of practice. The draft Video Recording Code includes guidance on:

• How interviews should be recorded

• The conduct of the interview – conducting interviews with those who may need assistance (for example, an interpreter), taking breaks and remote monitoring

• Media security – guidelines for securely storing recordings and breaking their seal when the recordings are required for criminal proceedings or other purposes

• The process for recording interviews by secure digital network

What is Schedule 3 to the Counter-Terrorism and Border Security Act 2019?

Schedule 3 to the Counter-Terrorism and Border Security Act 2019 allows Counter-Terrorism Police to stop, question, search and detain people at UK ports and Northern Ireland border area to determine if someone is engaged in state threat activity.

The Act makes amendments to Schedule 3 to allow Counter-Terrorism Police and MI5 to progress operations and investigations at the required pace to detect, disrupt and deter states who are engaging in hostile activity against the UK. The Act replaces the requirement for the Investigatory Powers Commissioner to authorise the retention of confidential business material with a new Counter-Terrorism Police authorisation procedure, which will require an officer of at least the rank of superintendent to authorise access to such material. This brings the powers in line with other policing powers that require the seizure of confidential business material.

Authorisation from the Investigatory Powers Commissioner will still be required to retain physical articles which contain confidential business material or any such material that includes personal records. Authorisation via the Investigatory Powers Commissioner will also remain the requirement for legally privileged and confidential journalistic material, whether articles or copies.

What is the Schedule 3 Code?

The Schedule 3 Code of Practice, which was last consulted on in 2020 when the Counter-Terrorism and Border Security Act 2019 powers came into force, sets out the processes and safeguards governing the exercise of these border powers by accredited examining officers. It gives detail on how these powers should be used, including examples where relevant, and is intended to provide additional clarity and ensure the highest standards of professionalism and compliance with these important powers.

Why are we consulting on these Codes?

Under paragraph 4 of Schedule 6 to the National Security Act, the Secretary of State must publish a draft of the Video Recording Code and consider any representations made about the draft, modifying the code if appropriate, before the code can be brought into force.

Additionally, under paragraph 57(1) and (4) of Schedule 3 of the Counter-Terrorism and Border Security Act 2019, the Secretary of State must publish a draft revised Code, consider any representations made about the draft, and where appropriate, modify the draft in light of any such representations.

This consultation, carried out pursuant to those statutory requirements, seeks to ensure the guidance in the codes is appropriate, practical and proportionate to the objectives sought.

Consultation

The Government welcomes comments on whether the Video Recording Code and the amendments to the Schedule 3 Code are sufficiently clear to ensure the effective, fair and proportionate use of the powers that they enable.

Video Recording Code

The new draft code attached to this consultation provides guidance on the conduct of interviews and has been based closely on the terrorism equivalent. We have taken this approach given that code is in line with wider, standard police practice, has been effective to date, and because the guidance is broadly appropriate (with necessary amendments) to the state threats context. Furthermore, mirroring the existing code will support the police in ensuring that, where appropriate, the processes they follow are consistent, reducing the opportunity for inconsistencies or errors in their application.

In particular, please tell us how well, in your view, the Video Recording Code:

• sets out the requirements for officers when conducting video recordings

• is appropriate for investigations into foreign power threat activity

• is clear and accessible to those who will need to use it

Schedule 3 Code

The revisions to this code will reflect the amendments made to Schedule 3 through the National Security Act in relation to the person who can authorise retention of confidential business material. The key differences between the updated Code and the previous version are:

• Removal of the definition of confidential business material (material acquired in course of a trade and that is held in confidence) from the definition of protected material. Therefore, the code removes the requirement for authorisation from the Investigatory Powers Commissioner for access to copies of confidential business material.

• Inclusion of a new section on the authorisation of retention of confidential business material which must be by a Counter-Terrorism Police officer of at least the rank of superintendent.

In particular, please tell us how well, in your view, the Schedule 3 Code:

• Is clear about the new authorisation process for copies of confidential business material.

The Government will consider any representations, including suggestions for other changes that could be made to these codes based on the National Security Act. It should be noted, however, that the primary legislation is settled and so the overarching legal framework cannot be altered through amendments in the Codes.

This consultation is being directed at the following organisations or groups of people:

• UK Police Forces and UK Border Force

• Community and Human Rights groups

• Journalist and Media associations

• Legal professions associations

• The general public

Your feedback will be essential in shaping the future operation of powers related to the interviewing of suspects in detention under the National Security Act, as well as retention of confidential business material under Schedule 3 to the Counter-Terrorism and Border Security Act 2019. All those who have an interest in how these Codes of Practice will operate can help ensure that the powers are used effectively, fairly and proportionately by responding to this consultation.

We will publish a formal government response and summary of any representations received after the consultation. The final codes will then be put before Parliament for agreement.

Further information

Complaints or comments

If you have any complaints or comments about the consultation process, you should contact the Home Office at the above address.

Confidentiality

Information provided in response to this consultation, including personal information, may be published or disclosed in accordance with the access to information regimes (these are primarily the Freedom of Information Act 2000 (FOIA), the Data Protection Act 2018 and the UK GDPR).

If you want the information that you provide to be treated as confidential, please be aware that, under the FOIA, there is a statutory Code of Practice with which public authorities must comply and which deals, amongst other things, with obligations of confidence. In view of this it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of the information we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the Home Office.

The Home Office will process your personal data in accordance with the DPA and in the majority of circumstances, this will mean that your personal data will not be disclosed to third parties.