Counter-Terrorism and Security Act 2015 (Authority to Carry Scheme) Regulations 2015

Baroness Hamwee Excerpts

Monday 23rd March 2015 Lords Chamber

[Baroness Humphreys (LD)]

My Lords, I merely seek clarification on one aspect of the 2015 Counter-Terrorism and Security Act’s code of practice for officers exercising functions under Schedule 1 of the Act, which accompanies these instruments. This code of practice is referred to in the 28th report of the Secondary Legislation Scrutiny Committee. The final sentence of the information paragraph reads:

“In its consideration of the Code the Committee was concerned that directions about when officers may search a member of the opposite sex, particularly a child, were not as clear and consistent as they need to be”.

I am most grateful to my noble friend the Minister for his reply to my written query regarding this matter, but I remain concerned that the clarification I sought has not quite been met.

The committee and I still have concerns relating to the powers that the code of practice confers on officers who need to search a child—defined as anybody under 18—in order to seize or retain their travel documents. The code is exemplary in its guidance to police constables and designated border control officers, highlighting the care which must be taken when exercising their powers and the need to be aware of the necessity of safeguarding a child’s safety and welfare, as well as urging officers to be sensitive to the intimidation that children travelling alone can feel and the possibility that they may be vulnerable to exploitation by an adult with whom they are travelling.

I draw the attention of the House to paragraph 31, which outlines the scope of the power as it relates to the searching of children who have been removed from an adult. In particular, it gives guidance that two officers of the same sex as the child should, where reasonably practicable, be present during the search. It was the insertion of the three words, “where reasonably practicable”, which most concerned the committee and which led to its call for clarity. It seemed to the committee that the words,

“two officers of the same sex … where reasonably practicable”,

could give rise to any number of permissible permutations. I would be grateful if the Minister would clarify which of these would be justifiable and acceptable.

If two officers of the same sex as the child are not available, would two officers, one of the same sex and one of the opposite sex, be acceptable? If they are not available, would two officers of the opposite sex to the child be acceptable? If two officers are not available, would just one officer of the same sex as the child be acceptable? If they are not available, would just one officer of the opposite sex to the child be acceptable? At this stage, I am at a loss to understand why the last alternative is included. Are we to take from this that our ports are so understaffed that there are likely to be times when only one officer of the opposite sex will be available to search a child?

The code has already referred to the intimidation that a child travelling alone can experience. Does the Minister believe that a child, removed from an adult, would experience a similar feeling if searched by one or two officers of the opposite sex because they were the only reasonably practicable alternatives?

I would also be grateful if the Minister would add some detail on the advice given to officers governing the circumstances in which a child may be searched in the absence of the responsible adult with whom they are travelling, and explain how the child is to be removed from the adult and where the search will take place. If the child is travelling with an adult who is deemed to be exerting influence or pressure, how is an officer to defend him or herself against accusations of inappropriate behaviour if the child is influenced to make accusations against the officer and there are no witnesses to the search?

However, these children are unlikely to make a complaint about the manner in which they are searched, by whom they are searched and where they are searched. They are intent on leaving this country and, to all intents and purposes, this renders them powerless to control their situation. I would want firm guidelines to govern the way in which my grandchildren could be removed from my presence and searched at a UK port. Those firm, unambiguous guidelines should be applicable to all children.

The Secondary Legislation Scrutiny Committee called for clarity in this aspect of the code of practice. I hope that the Minister will be able to provide the House with that clarity and describe, definitively, the circumstances under which children will be searched.

[Baroness Hamwee (LD)]

My Lords, I am grateful to the Minister for explaining this raft of instruments. I have a few comments and queries.

As my first query is on an order which is not before us but which is relevant, I do not expect an answer, but I want to use this opportunity to explain a point which I raised with the Secondary Legislation Scrutiny Committee, of which I am a member. The authority to carry scheme sets out to whom it applies. As one would expect, it applies to those who are subject to a temporary exclusion order. Statutory instrument 438—I apologise to the House that I did not make a note of its name—provides that, for the purposes of the service of the order, it can be served on an individual’s representative. I queried who a representative might be for this purpose. The advisers to the Secondary Legislation Scrutiny Committee took this up with the Home Office. I was concerned that, in the normal run of things, one might think that a representative was, for instance, a solicitor, but a solicitor who was not able to pass on the information to his client that an order had been served would find himself in a very difficult state and would probably disclaim the client.

An answer has come back and I want to get it on the record. It states:

“The Home Office agrees that … For adults … a representative must be a legal representative such as a solicitor or legal executive who acts on behalf of the person. The Home Office agrees that the Secretary of State cannot deem someone to be a representative in the absence of a clear relationship such as a … contractual relationship”.

As I have said, any lawyer thinking ahead a bit in that situation would disclaim that relationship. The Home Office also agreed that,

“for someone under 18 the term would cover the person’s parent or guardian”,

and that they could be a representative for this purpose. As I said, I am not expecting the Minister to comment on that.

Paragraph 22 of the scheme states that a person who,

“is refused authority to carry will be informed of that”,

in a notice by the carrier. It occurred to me to ask whether there is any penalty on the carrier who fails to pass on information—not information that they have been denied boarding, because they will have worked that out, but information of the contact telephone and email address that the individual needs to make further inquiries—and whether there should be any liability for compensation on a carrier who fails to pass on that information.

The Explanatory Memorandum to the authority to carry scheme regulations refers to,

“the need for an effective redress process in the case of mistaken identity. Administrative arrangements are in place to ensure that an individual is not mistakenly identified again”.

The second occasion would be pretty awful, but the first occasion of mistaken identity is pretty bad, too. I do not know whether the Minister has any comment on that.

With regard to the penalties for breach of the scheme, again I quote from the relevant Explanatory Memorandum. The consultees felt that the maximum £50,000 fine,

“was excessive and disproportionate, especially when compared to the possible fines imposed by other countries”.

Does the Minister have any information as to that comparison? There is also a feeling that the maximum penalty is unreasonably high, and I understand that there will be guidance on how the penalties will be applied. As this goes to the amount that will actually be levied in different circumstances, can the Minister tell the House when that guidance will be issued?

More generally, there has been a good deal of comment that the current authority to carry scheme is actually quite effective. What extensions from the current scheme will these various regulations and orders bring in?