Counter-Terrorism and Security Bill

Baroness Butler-Sloss Excerpts

Monday 2nd February 2015 Lords Chamber

[Lord Pannick (CB)]

My Lords, this is not gesture politics. There are many areas of the law where an obligation to provide a gist of the reason is imposed precisely in order to try to achieve a compromise between the duty of fairness and the demands of security. In these areas of the law, providing a gist does give individuals the substance of the allegations against them. In this context, the constable can exercise the relevant power only if he or she has reasonable grounds to suspect. In general, the constable must be able to provide at the least a summary of the reasons why they have reasonable grounds.

I understand the point that there may be security reasons why the constable is either unable, or is concerned that he or she may be unable, to provide even a summary. I wonder whether the Minister might consider, prior to Third Reading next week, coming back with a revised amendment that would impose the obligation set out in the amendment moved by the noble Baroness, Lady Hamwee, but subject to an exception—if the constable believes that there are or may be security reasons not to provide the summary. In the context of the exercise of a power as serious in its implications as this—that is, seizing someone’s passport—surely there ought to be an obligation, at the time when the power is exercised, to tell the individual why it is being exercised.

[Baroness Butler-Sloss (CB)]

My Lords, following on from what the noble Lord, Lord Pannick, has just said, it may be possible to add to the amendment the words, “or in the case of emergency”.

[The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)]

My Lords, I am grateful to my noble friend for giving us an opportunity to discuss this issue again. It was part of a very large group of amendments in Committee, so I would like to put on the record some additional remarks which I hope will provide further reassurances about the circumstances in which the power may be exercised.

The Government are absolutely committed to the appropriate and proportionate use of the power to seize travel documents. The impact of this amendment would be to reduce the effectiveness of the power and the speed at which it could be used. We should remember that the context for this is that we have up to 600 people suspected of travelling to Syria and engaging in terrorism-related activities. It is in that context that we are seeking to disrupt, if not stop, such actions. This gets to the heart of the purpose of this power, which is to disrupt immediately the travel of individuals who are reasonably suspected of travelling for terrorism-related activity and to give the police time to investigate them.

It may of course be, as my noble friend Lady Buscombe mentioned, that this happens in the context of a tip-off, which might be from a security source or from a family member who at that point has some fear of the individual. There could be reasons why it is not possible to give more detailed reasons. However, a police officer of superintendent rank would have had to have been satisfied that the reasonable suspicion grounds had been met. It would be inappropriate to reveal the source or content of that information. There would need to be a full consideration of what the individual could be told, and this is likely to involve gisting—which I will come back to in a second.

Given the immediacy of the power, it would be impractical to conduct this consideration at port, and it would potentially damage prosecution prospects to do so at this point. However, if the police apply to extend the retention period, they must give as much information as possible about the reasons the individual’s passport was retained, without prejudicing national security. The Bill contains robust authorisation and review processes to ensure that the power is appropriately and lawfully used.

I did not make the following remarks in Committee—I am trying to add to the reply which I gave then. First, the reasonable suspicion test must be met. The use of reasonable suspicion as an evidential standard is used in relation to many other police powers. What constitutes reasonable suspicion will depend on the circumstances in each individual case, but there must be an objective basis for the constable’s state of mind, based on the facts, and it must be specific to the individual. At the point of seizure, the individual will be informed that their travel documents were seized because there were reasonable grounds to suspect that they were intending to travel overseas for the purpose of involvement in terrorist-related activity outside the UK. The police are not detaining the individual, nor are they permanently removing the individual’s passport privileges.

Secondly, the police are under a statutory duty to return the travel documents as soon as possible if the test is no longer met and investigations do not substantiate grounds to support further action being taken in respect of the person. 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 is further reviewed by a police officer of at least the rank of chief superintendent, and this review must be started within 72 hours of the seizure. Fifthly, the reviewer’s findings must be reported to the chief constable of the force which 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 14 days from the point at which the documents were seized.

The whole process is further governed by a statutory code of practice, which my noble friend Lady Hamwee referred to in her introduction, which makes provision for how officers are to exercise the power and ensures proper use of it. The code also provides that a person who has had their passport seized may write to the police requesting that the reasons are provided for the exercise of the power. The police must respond, following detailed consideration of any sensitive information. Therefore, an individual can receive more detailed reasons as to why the power was used in their case, even when the passport is returned very promptly.

As the Bill stands, there is a clear threshold that must be met to justify the exercise of the power. The disclosure of any information relating to national security requires careful consideration on a case-by-case basis. This amendment would require such considerations to have taken place before the power could be exercised. A police officer at port would not be able to make this judgment. As I said, this would have the effect of preventing the power being used as intended as a disruptive measure. In the light of this and of the extensive and robust safeguards already in place to govern the exercise of this power, the Government believe that the change proposed in this amendment is not necessary and would have the consequence of inhibiting the use of this important power.