Government response to the consultation on the introduction of a new code of practice under Schedule 6 to the National Security Act 2023 and updates to the Code of Practice for Schedule 3 to the Counter-Terrorism and Border Security Act 2019
Updated 3 November 2023
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Government Response to the consultation on the introduction of a new Code of Practice under Schedule 6 to the National Security Act 2023 and updates to the Code of Practice for Schedule 3 to the Counter-Terrorism and Border Security Act 2019
1. Introduction
1.1. The National Security Act 2023 (‘the NS Act’) received Royal Assent on 11 July 2023. It contains a suite of new measures to protect the UK from threats from foreign powers.
1.2. As part of a group of enhanced investigative tools, the Act creates new powers 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’).
1.3. The Act also makes changes to the state threats port stop examination power in Schedule 3 to the Counter-Terrorism and Border Security Act (CTBSA) 2019. Revisions to the Code of Practice under that Act (‘the Schedule 3 Code’) are necessary to reflect these changes.
1.4. In accordance with section 4 of Schedule 6 to the Act and section 57 of Schedule 3 to the CTBSA 2019, drafts of these Codes were published online and comments were invited. This public consultation ran from 16 July 2023 to 31 August 2023.
1.5. Consultation is a critical element in the development of Codes of Practice. It helps to ensure that police continue to be able to exercise their powers effectively whilst at the same time ensuring that appropriate safeguards for individuals are in place. We are grateful to those who took the time to consider the proposals and to respond to the consultation.
1.6. This Government response to the consultation sets out the rationale for making the revisions to the Codes, provides a summary overview of the responses and outlines the Government’s proposed next steps.
2. Codes
2.1 Rationale
2.1.1 Creation of 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 Video Recording Code includes guidance on:
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How interviews should be recorded
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The conduct of the interview – conducting interviews with those who may need assistance (for example, an interpreter), taking breaks and remote monitoring
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Media security – guidelines for securely storing recordings and breaking their seal when the recordings are required for criminal proceedings or other purposes
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The process for recording interviews by secure digital network
2.1.2 Changes to the Schedule 3 Code
The revisions to this code reflect the amendments made to Schedule 3 through the NS Act in relation to the person who can authorise retention of copies of confidential business material. The key differences between the updated Code and the previous version are:
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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.
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Inclusion of a new section on the authorisation of copies of retention of confidential business material which must be by a Counter-Terrorism Police officer of at least the rank of superintendent.
2.2 Responses – summary
2.2.1 The consultation sought responses on:
Whether the Video Recording Code:
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sets out the requirements for officers when conducting video recordings
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is appropriate for investigations into foreign power threat activity
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is clear and accessible to those who will need to use it
Whether the Schedule 3 Code:
- is clear about the new authorisation process for copies of confidential business material.
2.2.2 We received written responses from 5 separate individuals and organisations. The majority of responses acknowledged that the creation of the Video Recording Code and the amendments to the Schedule 3 Code were key to ensuring police officers have clear guidance on the powers and ensuring that the powers are used in a way that is fair and proportionate.
3. Outcome
3.1.1 The outcome of the consultation prompted some revisions to the initial proposals for the Video Recording Code. In particular:
3.1.2 Police Scotland highlighted two inconsistencies with practice and procedure in Scotland. These are:
1. Paragraph 4.20 of the Video Recording Code sets out that a ‘suspect shall be handed a notice which explains’:
(a) How the video recording will be used;
(b) The arrangements for access to it;
(c) That if they are charged, or informed they will be prosecuted, a copy of the video recording will be supplied as soon as practicable or as otherwise agreed between the suspect and police, or on the order of a court.
Provision of such a notice, as referred to in paragraph 4.20, does not occur in Scotland. In Scotland, the procedure is such that the Crown would provide a copy of an interview to the Defence. The police officer would not provide a copy of the interview directly to the accused individual.
The Government has responded by amending the Video Recording Code to clarify that paragraph 4.20 does not apply in Scotland, but only England and Wales and Northern Ireland.
2. Paragraph 4.24 of the Video Recording code sets out that if the interview room is equipped with facilities that enable video recorded interviews to be remotely monitored as they take place, the interviewer must ensure that certain actions take place. For example, that the interview room contains a notice which refers to the capacity for remote monitoring and to the fact that the warning light will illuminate whenever monitoring is taking place, and that the contents of this notice are explained to the person being interviewed, their legal representative and any other appropriate adult.
In Scotland, the procedure is such that any recorded interview of a suspect would include intimation to the suspect, and their legal counsel if present, that the interview is, or could be, remotely monitored if the technology in that police station allows it. This procedure would take place whether nor not it is intended to use such remote monitoring facility. Furthermore, at present, there is no technical facility throughout the Police Scotland estate for a light to indicate when an interview is being remotely monitored.
The Government has responded by amending the Video Recording Code to clarify that paragraph 4.24 does not apply to Scotland. Paragraph 4.22 has been added to clarify that the existing procedure of any recorded interview of a suspect in Scotland will continue to apply for video recording under the NS Act.
3.1.3 There were no revisions made to the Schedule 3 Code following the public consultation.
3.1.4 The revised Codes of Practice will be laid before Parliament together with a draft statutory instrument which, subject to approval from both Houses of Parliament, would bring the Code into operation. Information for police, practitioners and the public about the Parliamentary process and copies of the revised codes and this response will be available online at: https://www.gov.uk/police-and-criminal-evidence- act-1984-pace-codes-of-practice.