My Lords, this has been a substantial debate, which is not surprising because there are 24 amendments in the group. I will run through a full response and then address in particular the key concerns and comments which were made. They have been particularly helpful because they provide an opportunity to flesh out the workability of the options before us.
This debate is about judicial oversight of the temporary passport seizure power. I am grateful to noble Lords whose amendments we are considering and all those
who contributed their expertise—very deep expertise in the case of the noble and learned Lord, Lord Hope, who has experience of the judgments in which he has taken part and has written.
These amendments cover a number of areas including: requiring the police to inform a person of the reasons his or her travel documents are being seized; allowing an individual to make representations at the point of seizure; creating a statutory right for the person whose travel documents have been seized to appeal the police officer’s decision to a court; and reducing the initial period of retention from 14 days to seven days. I reassure noble Lords that the power is already subject to considerable safeguards proportionate to the level of interference. Safeguards already in place will ensure that, as the noble Lord, Lord Rosser, sought, this power will be exercised in a fair, reasonable and lawful manner and in a responsible and proportionate way. Crucially, individuals can already challenge the exercise of this power, if they choose to do so, by seeking a judicial review. Given the safeguards and constraints on the use of the power, we believe it is the appropriate form of court scrutiny to which the exercise of the power should be subject.
Let me briefly summarise for the Committee the safeguards that we already envisage. The decision to exercise this power will be made by a trained police officer and subject to authorisation by a senior police officer of at least the rank of superintendent who must be satisfied that the test for exercise of the power was met. If the travel documents are still being retained 72 hours after they were seized, a police officer of at least the rank of chief superintendent must carry out a review of that decision and communicate his findings to the relevant chief constable, who must consider and take appropriate action.
Unless a court agrees to extend the retention period, the police may retain the travel documents for a maximum of 14 days from the day after the documents were seized. This timescale has been set deliberately. The investigation should have progressed to the extent that a court can meaningfully consider whether the investigation into whether there are grounds for further action to be taken is being conducted diligently and expeditiously, and the evidence heard should be tailored to the case being considered. A statutory code of practice for police and Border Force officers, which is currently open for consultation, will make provision for how officers are to exercise the powers and guard against any risk of improper use.
I have listened to today’s debate and noted the implication that taking a passport for up to a maximum of 30 days is an infringement of liberty equivalent to detaining an individual in a police cell. Indeed, the amendment tabled by the noble Baroness, Lady Kennedy, to name an extension of the seizure period a “warrant of further retention” seeks to draw that exact analogy. Even if we were not facing the threat that we are from foreign fighters, I hope that noble Lords will agree that this is not an appropriate analogy. Individuals subject to this power will remain at liberty. During the period that the police hold that person’s passport, the police and others would work diligently to investigate the situation further.
As the Bill stands, there is a clear threshold that must be met to justify the exercise of the power, and it can be used at only at a port or border. The police are not empowered to detain the individual or remove his or her passport privileges permanently under this power. The legislation places a statutory duty on the police to return the travel documents as soon as possible if their investigations do not substantiate grounds to support further action being taken in respect of the person. In the light of the extensive nature of those safeguards, the Government believe that the changes proposed in these amendments are not necessary given the relatively limited impact of the power, and the amendments could have the unintended consequence of inhibiting its use. In other circumstances where a police officer forms a reasonable suspicion about an individual’s activities, there is no automatic court hearing to challenge his or her decision.
I hope that noble Lords will see that while a number of these amendments are helpful on the face of things, they could be damaging to national security if the police are required to justify their reasons for reasonable suspicion. To consider what information can be disclosed without prejudicing national security can take time and cannot be rushed. The use of reasonable suspicion as an evidential standard is used in relation to many other police powers, as the noble and learned Lord, Lord Hope, said. What constitutes reasonable suspicion will depend on the circumstances in each individual case. There must be an objective basis for the constable’s state of mind based on the facts, and it must be specific to the personal conduct of the person.
While of course we cannot deal with hypothetical cases such as the one I was invited to comment on by my noble friends Lord Thomas and Lady Warsi, of course evidence will come to the police officer from many different sources. The point is that he must have reasonable suspicion and reasonable grounds for his suspicion that something is wrong. I know that in many cases the people most concerned to ensure that the individual does not travel abroad are the individual’s family and friends, who care for them, so information may come from that source. In some circumstances it may come from other sources, which we would want to take great care to protect. That is why we have this test in place at present; I will come to some of the specifics in a minute.
Under Schedule 7 to the Terrorism Act 2000, to which my noble friend Lady Ludford referred, people may be questioned by the authorities for the purpose of determining whether they appear to be persons who are or have been concerned in terrorism without any prior suspicion, and anything found on them, including their passports, can be retained for up to seven days for examination purposes. Under Schedule 7 there is neither a statutory right of appeal nor an automatic court review of passports permanently cancelled under the royal prerogative. If the police apply to the court to extend the retention period of the passport, they will issue a notice to the individual informing him or her of the reasons for the seizure and retention of the travel documents, provided that that information did not prejudice national security. The information provided will enable a person to understand why they are under investigation and will help the court—if the
police apply to extend the retention period—to consider whether the case is being considered diligently and expeditiously. Your Lordships should also be aware that a person subject to this power is not prevented from making representations at any time, including at the point of seizure.
Due to the nature of the appeal or review envisaged in a number of these amendments, the court would need to provide for closed material proceedings with the appointment of special advocates. As the House will know, closed material proceedings are resource intensive and it would be challenging for such a hearing to take place within that initial seizure period. Indeed, by the time it is heard the travel documents might already have been returned or alternative disruption action have been taken.
A number of the amendments sought to reduce the initial seizure period to seven days. The 14-day period was set following consultation with the police; by that point the investigation should have progressed to the extent that a court can meaningfully consider whether the investigation into whether there are grounds for further action to be taken is being conducted diligently and expeditiously, and the evidence heard should be tailored to the case being considered.
As I previously outlined, the Government have established rigorous and stringent measures to ensure that this power will be used in a fair, reasonable and lawful manner, that the 14-day retention period is proportionate to the level of interference, and that safeguards are already in place to ensure that travel documents are not retained any longer than absolutely necessary.
Let me just deal with some specific points raised in the debate. First of all, the noble Lord, Lord Rosser, raised the issue of judicial oversight and review. In a judicial review, the court will consider whether the police officer’s decision was reasonable and in compliance with the public law and human rights principles. It will not substitute its own view on whether the test was met. However, the level of scrutiny is a high one and appropriate to this power. When we are dealing with closed material procedures, special advocates and gisting, on the point that the noble Baroness, Lady Kennedy, raised, the Justice and Security Act provides the basis by which closed material procedures could be used in such a judicial review challenge. The police may apply to the judge for an order to exclude an individual or representatives from the court hearing. The Bill sets out the circumstances in which this may happen—for example, if evidence of an offence under the Terrorism Act would be interfered with or harmed. The court is not examining the police officer’s decision to seize the travel documents; there is no explicit provision for special advocates to be appointed. However, case law suggests that magistrates would have jurisdiction to appoint special advocates if considered appropriate or necessary.
The noble Baroness, Lady Ludford, raised a couple of questions at Second Reading, and I am sorry that I did not get around to responding to them then, but I shall try to do so now. She asked, quite reasonably, why we could not use Schedule 7 to the Terrorism Act 2000. That schedule and this power have different
tests and focus on different things. Schedule 7 is a no-suspicion test that focuses on the commission, preparation and instigation of terrorist offences. Any documents can be retained for seven days for the purposes of examination only. This new power has a reasonable suspicion test, and only travel documents can be retained for up to 14 days in the first instance. That is because the purpose, as we have set out, is that this is disruptive; it seeks to disrupt the travel plans of somebody who is reasonably suspected of travelling abroad for the purposes of terrorism-related activity.
The noble Baroness also asked about the rolling renewal of an extension. The power is exercised for 14 days initially and can be extended—so documents may be retained for up to 30 days with the permission of a court. The power cannot be renewed beyond 30 days because, at the end of that time, some alternative course of action might be taken. It might be a TPIM or a prosecution of some type, but the travel documents cannot be retained for longer than 30 days.
I have tried to address most of the issues raised. I shall deal with the particular, formal response about reasonable grounds, on the point raised by my noble friends Lord Thomas and Lady Warsi. It is for the police officer to decide whether he or she has a reasonable suspicion on which to exercise the power. Police officers are familiar with making decisions to this threshold. A request from another state would not be sufficient for a police officer to form a reasonable suspicion for him or herself—but, of course, we have intelligence-sharing arrangements with other states, and they may provide information to a level that would be sufficient for a UK police officer to form a reasonable suspicion about the individual’s travel intentions. In the consultation document that has been referred to, on page 8, there is a very detailed setting out, as noble Lords would expect, of what constitutes reasonable suspicion. Of course, extensive training would be given to those who would exercise that very serious power—I accept that is the point being made—before it is actually used.
With those assurances and explanations, I ask the noble Lord to consider withdrawing his amendment.
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