Consultation outcome

Consultation on modifications to the Code of Practice for Schedule 7 to the Terrorism Act 2000

Updated 11 May 2022

This was published under the 2019 to 2022 Johnson Conservative government

Ministerial Foreword

Schedule 7 of the Terrorism Act 2000 is a port and border power which enables a counter-terrorism police officer, to stop, question and when necessary, detain and search a person travelling through a UK port to determine whether that person is or has been involved in the commission, preparation or instigation of acts of terrorism. Parliament enacted Schedule 7 on the basis that its exercise is necessary and proportionate to secure the legitimate end of ensuring public safety and national security, and Schedule 7 examinations have been instrumental in securing evidence to convict terrorists, yielding intelligence to detect terrorist threats and supporting the disruption or deterrence of terrorist activity.

The exercise of Schedule 7 is subject to important safeguards, set out in detail in the statutory Code of Practice. The Code of Practice governs the exercise of powers under Schedule 7, and is periodically updated to ensure that Schedule 7 continues to play an effective role in ensuring public safety and national security.

The Code of Practice was most recently updated in August 2020. The draft code on which we are consulting has been revised and updated to take account of expected changes to Schedule 7 made by the Nationality and Borders Bill which is currently going through Parliament. We have also taken this opportunity to add a limited number of other updates and clarifications, all of which are designed to make the code more clear and accessible to those who use it.

All responses will be welcomed and carefully considered.

The Rt Hon Damian Hinds MP

Minister of State for Security  

Executive Summary

Schedule 7 to the Terrorism Act 2000 allows Counter Terrorism Police to stop, question, search and if necessary detain an individual for the purpose of determining their involvement in terrorism. Schedule 7 powers can only be exercised within a port or border areas as defined in the Act.

In his Report on the Terrorism Acts in 2019, the Independent Reviewer of Terrorism Legislation, Jonathan Hall Q.C., said:

The current high rate of small boat landings on the shoreline of the United Kingdom raises a… problem: that of ensuring that the desirably quick processing and dispersal of recent arrivals is consistent with CT Borders Police having an opportunity to consider the exercise of their Schedule 7 powers. ^{[footnote 1]}

Since the date of that report, the number of migrants arriving irregularly in the UK by sea – predominantly in channel crossings – has increased dramatically. In 2021, 28,526 people were detected arriving on small boats compared with 8,466 in 2020 ^{[footnote 2]}. The Nationality and Borders Bill will therefore amend Schedule 7 to the Terrorism Act by allowing accredited Counter-Terrorism Police Officers to examine those who have arrived in the UK irregularly by sea, provided certain criteria are met. This amendment must now be reflected in the Schedule 7 Code of Practice to allow for proper exercise of the amended Schedule 7 powers. Other changes to the code are aimed at clarifying existing provisions of Schedule 7 to make them more clear and accessible and to reflect within the code other relevant enactments of the Nationality and Borders Bill.

It is therefore intended for a revised Schedule 7 Code of Practice to be issued to officers who are empowered to exercise the powers in Schedule 7, as amended by the 2022 bill.

The Terrorism Act 2000 requires that a draft version of the revised code be put out for consultation. The Government welcomes comments on this document and will consider any representations before a final draft version of the revised code is laid before Parliament for approval.

Background information

What is the Schedule 7 Code of Practice?

The Schedule 7 Code of Practice sets out the processes and safeguards governing the exercise of counter-terrorism ports powers by ports and border officers under Schedule 7. This includes the exercise of functions under Schedule 7; the exercise of functions under Schedule 8 to the Act relating to detentions under Schedule 7; and the training and accreditation process, which officers must pass before being able to use the powers without supervision. 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.

The code is primarily intended to guide those public authorities able to exercise powers under Schedule 7. Once issued, the revised code will have statutory force, and individuals exercising Schedule 7 functions must perform them in accordance with the code. The code is admissible as evidence in criminal and civil proceedings, and may be taken into account by any court, tribunal or supervisory authority when determining a question arising in connection with those functions (although the failure by an officer to observe a provision of a code shall not of itself make him liable to criminal or civil proceedings).

What changes are being proposed to the Schedule 7 Code of Practice?

The existing Schedule 7 Code of Practice is to be revised in order to reflect the amendments that will be made to Schedule 7 by the Nationality and Borders Bill when this comes into force. These include:

• expanding the scope of Schedule 7 so that examining officers will be able to examine and if necessary detain individuals under Schedule 7 away from port and border areas, as defined under Schedule 7, subject to certain conditions being satisfied
• in light of other provisions in the Nationality and Borders Bill extending criminal prosecution to those who arrive illegally in the UK, ensuring that Schedule 7 examination of those individuals is subject to appropriate safeguards to ensure protection of the individual’s rights under Article 6 of the European Convention on Human Rights.

Further changes to the code are designed to clarify existing safeguards prohibiting questioning of an examinee which could lead to the disclosure of protected material (for example, material subject to legal professional privilege or which could be used to identity of a source of journalistic information).

Why are we consulting on a revised Schedule 7 Code of Practice?

Under paragraph 7 of Schedule 14 to the Terrorism Act 2000, before laying a draft Schedule 7 Code of Practice (including a revised version of the code) before Parliament, the Secretary of State must publish a draft of the code, consider any representations made about the draft, and where appropriate, modify the draft in light of any such representations. This consultation is intended to fulfil those requirements.

Next steps

Following the consultation, the Secretary of State will carefully consider any representations made about the draft revised code, and what, if any, changes may be required. The draft revised code will then be laid in Parliament for approval by both Houses before it can come into effect.

Consultation

As part of this consultation, the government welcomes comments on whether the revised Schedule 7 Code of Practice is sufficiently clear to ensure the effective, fair and proportionate use of the powers. In particular, please tell us how well, in your view, the:

• revised code clarifies the circumstances in which Schedule 7 powers can be exercised away from port or border areas
• revised code clarifies the types of questions which officers are prevented from asking individuals who have arrived irregularly by sea in the UK
• other changes to the revised code make the document clearer and more accessible for those following the code in the exercise of their powers.

The government will consider any representations, including more general suggestions on the Schedule 7 powers. It must be noted, however, that this is not a consultation in relation to the underlying primary legislative framework which has been scrutinised by both Houses of Parliament (at the time of publishing the primary legislation is subject to third reading in the House of Lords) and cannot be altered through amendment to the code.

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

• UK Police Forces
• Organisations working with refugees and asylum seekers
• The general public

Your feedback will be essential in shaping the future operation of Schedule 7 powers. All those who have an interest in how Schedule 7 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.

Contact details and how to respond

Please send your response by 23.59 on 12 April to:

Email: Schedule3and7codes@homeoffice.gov.uk

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 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.  

1. The Terrorism Acts in 2019, Report of the Independent Reviewer of Terrorism Legislation on the operation of the Terrorism Acts 2000 and 2006, para 6.6. ↩

2. Irregular migration to the UK, year ending December 2021 https://www.gov.uk/government/statistics/irregular-migration-to-the-uk-year-ending-december-2021/irregular-migration-to-the-uk-year-ending-december-2021 ↩