My Lords, I am grateful to the noble Baroness for again moving the amendment. At the outset, I should say that I recognise absolutely that we are talking about a serious matter here and that there should be safeguards. The issue between us—and the Joint Committee, for that matter—is on whether we believe that the safeguards are indeed adequate.
The noble Baroness is suggesting that taking a passport for up to 30 days is an infringement of liberty, and we accept that. However, for reasons that she pre-empted, we do not accept that that is equivalent to the pre-charge detention arrangements under Schedule 8 to the 2000 Act. This is very much a disruption technique. Of course we recognise that this is an infringement and it needs to be carefully monitored. Her amendment would name an extension of the seizure period a “warrant of further retention”, and seeks to draw an analogy with the Act to which I have just referred. I hope that noble Lords will agree that this is not an appropriate analogy, for the following reasons.
Individuals subject to this power will remain at liberty. Their passport privileges are not removed permanently. During the period that the police hold that person’s passport, the police and others need to work diligently and expeditiously to investigate further the nature of the information. Due to the nature of the hearing envisaged in a number of the amendments in this group, 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; it would be challenging, if not impossible, for such a hearing to take place within that initial seizure period. Indeed, by the time that it is heard, the travel documents might already have been returned, or alternative disruption action might have been taken. This power is already subject to considerable safeguards, which are proportionate to the level of interference.
Let me briefly reiterate the measures in place to ensure that this power will be used in a fair, reasonable and lawful manner. First, the reasonable suspicion test must be met. I will summarise the points because they also relate to the previous group. This is a clear threshold that is well understood by the police to justify the exercise of the power. At the point of seizure, the individual will be informed that his or her travel documents are to be seized because there are reasonable grounds to suspect that he or she is intending to travel overseas for the purpose of involvement in terrorism-related activity outside the UK. The disclosure of any further information would require careful consideration on a case-by-case basis.
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Secondly, the police are under a statutory duty to return the travel documents as soon as possible if the reasonable suspicion test is no longer met and investigations do not substantiate grounds to support further action being taken. Thirdly, a senior police officer of at least superintendent level must authorise the decision to exercise the power. Fourthly, this senior police officer’s authorisation will be further reviewed by a police officer of at least the rank of chief superintendent. This must take place at 72 hours after seizure.
Fifthly, the reviewer’s findings must be reported to the chief constable of the force that exercised the power and he or she must consider those findings and take appropriate action. Sixthly, unless a court agrees to extend the retention period, the police must return the travel documents after seizure. I should just clarify
that the court can extend retention only up to 30 days in total: if the hearing is at day 14, the maximum number of days by which the retention period can be extended is 16. The information provided will enable a person to understand why they are under investigation and help the court to consider whether the case is being considered diligently and expeditiously. The 14-day period has been set deliberately, following consultation with the police. By this point, the investigation should have progressed to the extent that a court can meaningfully consider whether it is being conducted diligently and expeditiously, and the evidence heard should be tailored to the case being considered.
The whole process is further governed by a statutory code of practice that makes provision for how officers are to exercise the power and ensures the proper use of this power. The code will be laid before Parliament following Royal Assent for consideration under the made affirmative procedure. The code provides that a person who has had their passport seized may write to the police requesting the reasons provided for the exercise of the power, and the police must respond, following detailed consideration of any sensitive information. An individual can therefore receive more detailed reasons as to why the power was utilised in their case, even in a case where the passport is returned promptly.
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. Crucially, individuals can already challenge the exercise of this power, if they choose to do so, by seeking judicial review or taking other civil action.
The Government are absolutely committed to the appropriate and proportionate use of the power to seize travel documents, but these amendments would reduce the effectiveness of the power and the speed at which it could be used. In the light of this, and the extensive and robust safeguards already in place to govern the exercise of this power, the Government believe that the changes proposed in these amendments are not necessary and would inhibit the power. Accordingly, I hope that having provided this additional layer of reassurance to your Lordships, the noble Baroness may feel able to withdraw her amendment at this stage.