New border policing powers proposed Guest post by Brian Gormally, CAJ

A Draft Bill introduced into the House of Commons by the UK Government proposes new powers for police, customs and immigration officers along the Border. In a mile-wide strip along the Border between North and South, people will be liable to stopped, searched and detained in order to check whether they are entering or leaving Northern Ireland. The power will also apply to the first place a train from the Republic stops in Northern Ireland to let passengers off.


These powers are contained in a new Counter-Terrorism and Border Security Bill currently before the Commons and open to consultation (all the documents can be accessed here).  The Bill in general represents a new power grab by government and some provisions come dangerously close to breaching the right to freedom of expression. We will comment on those elsewhere, but the new Border powers are an amendment to the notorious Schedule 7 powers of the Terrorism Act 2000.


These Schedule 7 powers allow police, or designated customs and immigration officers, to stop, question, search and detain people at ports and airports (and along our land border) to see if they are “terrorists.” These powers are controversial in general, not least because they appear to be used in a racially discriminatory way. The latest Report by Max Hill QC, the Independent Reviewer of Terrorism Legislation, reveals that a person of Asian origin is about 18 times more likely to be stopped than a white person and even more likely to be detained (held for more than an hour).


However, the powers seem to be used disproportionately in Northern Ireland. In 2017 we had about 3% of the passenger numbers of the whole of the UK but about 18% of the stops under these powers. As an air or sea passenger entering or leaving Northern Ireland, you were therefore six times as likely to be stopped than if travelling to or from the rest of the UK. Very strangely, none of the people stopped in Northern Ireland were detained for more than an hour whereas in the rest of the UK the figure was 9%. The PSNI has explained that the reason for this apparent lack of further action was that some of those stopped would be “wanted or of interest” to immigration or tax authorities and would be handed over under other legislation. CAJ is therefore concerned that these counter-terrorism powers are being used as a form of immigration control.


The new powers apply in order to check whether people have been involved in “hostile activity.” This new, broad concept is defined as doing a hostile act on behalf of, or in the interests of a foreign government. A hostile act is one that threatens national security or the economic well-being of the UK or is an act of serious crime. “National security” is notoriously undefined and “economic well-being” is such a vague concept that almost any act could “threaten” it. The powers can be used not just at the external borders of the UK but also in relation to domestic air travel and sea travel between Britain and Northern Ireland.


However, there is a special power, in Schedule 3 Paragraph (2), that only applies in the Border strip and Newry or Portadown train stations. This provides that anyone can be stopped, questioned, searched and detained, without any reasonable grounds or suspicion of any offence, simply in order to check if they are entering or leaving Northern Ireland. This is an extraordinary power which, if applied, could make for the hardest of hard borders – for people if not for goods.


This power is explained as “essentially a pre-cursor power” to establish whether the “entering or leaving the UK” condition is met in order to trigger the “hostile activity” power. However, the full range of stop and search powers are built into this “pre-cursor” element and there is no guarantee that the production of a passport or driving licence would be sufficient to satisfy an examining officer. Of course, people might argue that this power would never be routinely used on the border; the counter is that when powers exist they tend to be used. We are already concerned that the Schedule 7 powers are being misused for immigration control – and probably on the basis of racial profiling – these new powers are dangerously vague and could also be misused.


Will we see a kind of militarised zone along the Border, where roving patrols can stop and question any person, resident or traveller, without any kind of justification? We hope not, but in this piece of legislation such a scenario is expressly provided for. Why give such a power to state forces unless they are going to be used? Is this a preparation for a post-Brexit “fortress UK?” We don’t know, but one thing is clear – we don’t want or need this power and the legislation should not be passed.