Policy paper

Powers of arrest and detention: National Security Bill factsheet

Updated 12 February 2024

Summary

• State threats are persistent and take many forms, including: espionage, interference (eg. political interference), sabotage, and physical threats to individuals, such as assassination.
• Robust investigative tools are required to enable the police to counter the threats posed to the UK and its interests by state actors who operate using highly sophisticated means, often having access to significant resources and are skilled in tradecraft.
• The Bill contains specific powers and measures to provide the police with the necessary tools to investigate and respond to state threats activity.
• These measures will bring the powers available to tackle state threats in line with those available to tackle terrorism.

Background

• Currently, the police have to rely on the powers of detention available under the Police and Criminal Evidence Act 1984 (PACE) when tackling state threats activity, i.e. they are relying on the same powers they have available for all other crime types.
• In contrast, under the Terrorism Act 2000, police have enhanced powers to facilitate early disruption and investigation of acts of terrorism and terrorist-related activity.
• The enhanced police powers available for terrorism investigations have proven effective; we consider the risks posed by state threats are similar and thus justify enhanced powers and tools.
• The need for enhanced search and seizure powers for state threats investigations has also been recognised; these powers have been brought forward and modernised in this Bill.

What harm do the powers tackle?

• The Bill will give the police the necessary tools to investigate and respond to state threats activities, preventing damage to UK national security and the safety of those who reside here.
• Our intent is to protect the UK from serious, highly trained operatives who seek to significantly harm our way of life, in the same way the UK is protected from terrorism.
• State threats activity can endanger UK national security and, in extreme cases, people’s lives, as illustrated by the Salisbury incident. Due to the complexity of state threats activity, which involves significant technical resources and sophisticated tactics, it can be challenging to conduct timely and effective investigations with the current powers and tools available.

Key quotes

“We will reform laws, policies and practices to remove impediments to the protection of national security, ensuring that the security and intelligence agencies and police have appropriate powers to combat all the threats we now face while appropriately protecting the legal rights of individuals.” Global Britain in a competitive age: The Integrated Review of Security, Defence, Development and Foreign Policy, March 2021

How do the powers work?

• Arrest: The Bill creates a new arrest power where a constable can arrest without a warrant a person whom they reasonably suspect to be involved in foreign power threat activity.

• Detention: The Bill creates a new state threats detention regime whereby police can detain without charge an individual suspected of being involved in foreign power threat activity for up to 48 hours initially. The Bill then provides the ability for police and prosecutors to apply to the courts for a warrant to detain the suspect for up to 7 days, with the ability to apply for a further extension up to a maximum of 14 days. In exceptional circumstances (normally with the approval of Parliament through emergency legislation), the maximum detention period for those arrested under the new power can be extended to 28 days.

• Retention of Biometric Data: State threats investigations can be complex and resource intensive. Longer retention periods for biometric data will strengthen the ability of the police to use biometrics to support such investigations. The Bill creates a new regime whereby biometric data that is collected upon arrest for foreign power threat activity can be retained for an initial period of 3 years, with the option to extend the retention period for a further 2 years irrespective of whether there is further action, the arrestee is charged or if they are acquitted. The Bill amends PACE so that core state threats offences will be added to PACE’s list of qualifying offences which cover the most serious activity. Therefore biometric data taken upon an arrest made under PACE will also be automatically retained for 3 years.

Hypothetical case study

• Police suspect Person X is involved in foreign power threat activity, likely foreign interference. The intelligence picture is not yet clear but information illustrates the activity is to be committed imminently and requires disruption.
• The police arrest Person X under the new arrest power, as opposed to under PACE for foreign interference, and are able to continue their investigation into Person X whilst they are detained for 48 hours. Police have seized a number of encrypted devices, suspected of containing tasking from a known foreign agent, which requires complex and time consuming decryption from forensic teams. Intelligence suggests Person X is not a tourist as they claim, but is a trained agent of a foreign intelligence service using a false identity. Police apply to a judge for a warrant of extended detention for 7 days to facilitate evidence and intelligence collection through the seized encrypted devices. Police also require time to conduct interviews with Person X, who is likely to be trained in answering police questions, in order to probe their suspected false identity whilst using relevant evidence to illustrate holes in their cover story and uncover further investigative leads.
• The extended detention allows police to examine Person X’s phone and computer data and convert this (along with other intelligence and information gathered via interviews) into evidence, reaching the evidential threshold leading to a charge of Foreign Interference being made against Person X.

What are the included safeguards?

• These powers are exceptional powers that are only available for investigating those suspected of being involved in hostile activity linked to foreign states.
• Detention without charge beyond 48 hours may only be authorised by a judge, who must be satisfied that there are reasonable grounds to believe further detention is necessary on certain specified grounds. The police must satisfy the judge by setting out the reasons for the request and illustrating that the investigation is being conducted diligently and expeditiously. The arrested person must be given an opportunity to make representations to the judge and be legally represented at the hearing.
• In exceptional circumstances an extension to the maximum detention period might be needed. Normally, this would be done through emergency primary legislation, but if Parliament is unavailable, the Secretary of State can temporarily extend the detention period via regulations. The Bill provides for this to be done through a ‘made affirmative’ resolution which much be debated and approved on Parliament’s return, else it ceases to have effect.
• Biometric data can be retained upon arrest, in line with other serious criminal offences including murder, kidnap, and terrorism. Police can also apply for data to be retained for national security reasons via a national security determination. The Biometrics Commissioner in England & Wales currently keeps under review the retention and use by the police of biometrics for national security-related purposes. He is also responsible for overseeing national security casework on biometrics for all UK police forces. The National Security Bill will ensure that these powers will be subject to the same independent oversight, including the review of national security determinations.

Case study – The Salisbury Incident, 2018

• In the Salisbury Incident of 2018, if police had intelligence of a plot for state-sponsored actors to commit hostile activity in the UK (but not specific intelligence as to the intent or methods to be used in that activity), under the current legislative framework, police would have needed reasonable grounds to suspect involvement in a specific criminal offence, such as murder or use of a chemical weapon, in order to arrest the suspects under PACE.
• The creation of these enhanced police powers will allow early intervention and disruption of such cases by the police, whereby an arrest can be made based on suspicion of a person’s involvement in state threats activity, which crucially could result in preventing serious damange and/or loss of life in the UK.
• The enhanced custody time limits under the new powers allow police to fully investigate the activity without having to release the suspect on bail after limited investigation time, increasing the opportunity to disrupt the suspect from engaging in any further criminal activity.