My Lords, I am grateful to all noble Lords for their contributions to this debate. My noble friend Lady Buscombe pointed out the need
to trust the authorities within reason. We accept that there should be proportionate oversight and controls. The issue in this area, as in so many areas of the Bill, is drawing the line correctly between civil liberties and the need that the authorities have to deal with the threat.
These amendments cover issues concerning the seizure of travel documents, the process to authorise the retention of travel documents and the code of practice. Amendment 9, in the name of my noble friend Lady Hamwee, seeks to amend the powers and conditions of seizure relating to travel documents, from the documents being in a person’s “possession” to them being,
“under his or her control”,
based on my noble friend’s experience of corporate law. As the Committee knows, this power disrupts an individual’s immediate travel by removing his or her passport while he or she is investigated. The police then have time to investigate the individual’s travel plans and their reasons for travelling, and to consider whether a longer-term disruptive measure is necessary.
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In defining the conditions of seizure in Schedule 1, the current drafting reflects where the power will be exercised and the likely conditions surrounding the travel documents. If a person is at a port and is seeking to travel, they or a travelling companion, as mentioned by my noble friend Lady Hamwee, will be in possession of the necessary travel documents and will need to be able to present them for inspection if asked. My noble friend answered the question herself when she made the point, as I am about to do, that if the travel documents are presented to Border Force officers for inspection at a port by an accompanying passenger, those documents will have legally come into the possession of a Border Force officer and the power may be exercised. Seizing travel documents in a person’s possession, rather than them being under their control, reflects where the power can be used and that the aim is to disrupt immediate travel for the purposes of engaging in terrorism-related activity. Therefore, I hope that the Committee is reassured that this amendment is unnecessary.
Amendment 11, in the name of the noble Lord, Lord Rosser, seeks to impose a time limit of 12 hours from when travel documents first come into the possession of a constable or a Border Force officer at a port to when authorisation from a senior police officer is provided to retain the travel documents under this power. The decision to retain the travel documents for up to 14 days must be authorised by a senior police officer of at least the rank of superintendent. If authorisation is granted, travel documents may be retained for up to 14 days. If authorisation is refused, travel documents must be returned to the individual.
On 18 December we published a draft code of practice for public consultation, which will run until 30 January. Once finalised, officers will be required to follow the code of practice and the courts will take the code into account when determining any question arising out of the exercise of these powers. We have defined in the draft code of practice that the authorisation,
“must be provided in writing or verbally as soon as is reasonably practicable”.
We have used the term “reasonably practicable” as this provides operational flexibility and is well understood by the police. In any event, in the vast majority of cases we expect the authorisation process to have been completed within 12 hours. We will consider further whether a specific time limit could be set when we consider the responses to the code of practice consultation.
The noble Lord, Lord Rosser, asked a number of questions. I may not be able to respond to all of them but I will read the report of this debate and, if necessary, reply to him in writing. One question was: why do we not have a maximum time limit? I agree with my noble friend Lady Hamwee that there is a danger that it could be set as the standard to which police will work rather than providing authorisation as soon as is reasonably practicable. We think that “as soon as is reasonably practicable” will be well within 12 hours. The senior police officer, of chief superintendent level or above, would consider the time taken for the authorisation process in his report to the relevant chief constable at 72 hours. The timeliness of the authorisation —and the reason that we want it to be provided as soon as is reasonably practicable—could of course be affected by the time that the exercise of the power takes place, as ports operate 24/7, or the staffing level at that point. For example, at the point of seizure the superintendent may be based elsewhere or may be otherwise occupied. Therefore, although we consider that it will normally be provided within 12 hours, we would like to retain operational flexibility.
Amendment 22 would require the code of practice to specify potential actions deemed appropriate for a chief constable in receipt of a senior police officer’s review of the decision to seize travel documents. The threshold for exercising the power is a police constable having reasonable grounds to suspect that the person is at the port in connection with travelling for the purpose of involvement in terrorism-related activity.
We have already made it clear in the draft code that, following the completion of the 72-hour review and its findings being communicated to the relevant chief constable, he or she must take whatever action is appropriate. This may include either returning travel documents or upholding the original decision to retain the documents. These are the broad outcomes of the review that we envisage. However, we submit that the differing and often complex circumstances of these cases means that the actions that we specify in the code of practice following the 72-hour review should not be circumscribed. Doing so could weaken police discretion to respond to the particulars of any given case. It is for the chief constable, who is a very senior and experienced officer, to take whatever action she or he deems appropriate.
Amendment 42 refers to a subject that my noble friend Lady Hamwee mentioned in a previous debate concerning equalities. The amendment would require the code of practice referred to in Schedule 1 to specify that equalities training must be undertaken by persons who are to exercise the powers under the schedule. Amendment 43 seeks to require constables, immigration officers or customs officers who perform functions under Schedule 1 to record the performance of these functions. My noble friend acknowledged that there was no easy answer to this problem.
However, I hope to reassure noble Lords, and particularly groups outside this House who are listening to and thinking about this debate and who may be under the impression that this could potentially be discriminatory, that the draft code of practice, currently out for consultation, reminds police officers and Border Force officers exercising functions under Schedule 1 of their existing legal obligations under Section 149 of the Equality Act 2010. This places them under a duty to have due regard to the need to eliminate unlawful discrimination, harassment and victimisation, to advance equality of opportunity between people who share a protected characteristic and people who do not share it, and to take steps to foster good relations between those persons.
The draft code of practice, incorporating the Equality Act duty, already requires the police to monitor the use of this power and to consider in particular whether there is any evidence of it being exercised on the basis of stereotyped images or inappropriate generalisations. We will of course consider noble Lords’ contributions to today’s debate, and at other stages of the Bill’s consideration, as part of the public consultation.
The noble Lord, Lord Harris of Haringey, asked how often it is expected that these powers will be used. I think that he asked what has happened in the past six months. We are reluctant to say how often they will be used. It will not be that often but it is difficult to tell. At the moment we would not like to commit ourselves to a specific number on that, except to say that, particularly when you take into account the number of flights and so on going to and from our airports and ports, it will not be very large.