Counter-Terrorism and Security Bill

Debate between Lord Hope of Craighead and Lord Rosser

Tuesday 20th January 2015 Lords Chamber

[Lord Rosser]

My Lords, my amendments in this group are Amendments 8, 14 and 15. Amendment 8 provides that, for the powers relating to search and seizure in respect of travel documents in paragraph 2 of Schedule 1 to be exercised, a constable must have “evidence or intelligence” to suspect that the person in question is there with the intention of leaving this country for the purpose of involvement in terrorism-related activity rather than “reasonable grounds” as provided for in the Bill.

This power of seizure of travel documents in this way is a new one and is presumably expected to be exercised only where the relevant authorities have either some hard evidence in respect of the individual whose travel documents they intend to retain or intelligence of a nature which they believe, bearing in mind its nature and source, may well prove accurate.

The Bill does not make provision for the person whose passport is seized to be informed, even in outline, of the reasons for the authorities suspecting that they may wish to travel abroad for purposes associated with terrorism and neither does the draft code of practice require a person who is subject to the exercise of the power to search for and seize travel documents to be told anything about the reasons underlying the suspicion that the person is intending to leave the country for the purpose of involvement in terrorism-related activity.

It is important that this new power should be exercised, as I have no doubt whatever is the intention, in a responsible and proportionate manner. The question is this: what do the Government intend the phrase “reasonable grounds” to mean if it does not mean suspicions based on evidence or intelligence? If it does mean that, why not say so in the Bill? No doubt the Minister will address that point in his reply.

Amendments 14 and 15 provide that an individual whose travel document has been removed may appeal against this decision in the courts over the evidence on the basis of which the conditions in paragraph 2(1)(a) and (b) of Schedule 1 were met. Those conditions relate to suspicions that the person is leaving the country for the purpose of involvement in terrorism-related activity or has arrived in this country with the intention of leaving it soon for that purpose. The use of these new powers of seizure of travel documents, including passports, will no doubt be undertaken in an appropriate, reasonable and proportionate manner. But since the tests as set out in the Bill are to be ones of “reasonable suspicion”, there is inevitably scope for genuine mistakes to be made on occasion. Our amendments provide for a right of appeal in court following the temporary seizure of a passport, initially for up to 14 days, over the reasons which led to that administrative decision under the terms of the Bill, a decision which, if wrong, could have significant implications for a person who found themselves, because of that decision, unable to travel outside the country for a period that could be up to 30 days. No doubt if further information had come to light in the mean time prior to the appeal which either strengthened or weakened the case for the original decision to seize the travel documents, that would also be placed before the court. Judicial review alone would not achieve this objective since it would not enable the person whose passport had been seized to challenge directly the basis on which the power had been exercised; namely, whether there were reasonable grounds to suspect that they intended to leave the country to become involved in terrorism-related activity.

It is of course the case that under the Bill the police have to apply to a court for an extension of time up to a maximum of 30 days if they wish to retain the seized travel documents beyond the maximum of 14 days laid down in the Bill. However, the court making that decision is not reviewing the reasons that led to the decision being made to seize the travel documents, but simply whether the authorities considering whether further disruptive action should be taken against the individual concerned had been acting diligently and expeditiously. An authorisation process of the decision to seize travel documents will exist up to the level of chief constable, but there is no provision within that process for the senior officers involved to consider representations from the person from whom the travel documents have been taken or from a representative of that person. That authorisation process surely cannot be regarded as an alternative to a right on application to have the decision to seize travel documents reviewed by a court. I hope that the Minister will be prepared to consider carefully the points I have made in support of my three amendments. I beg to move.

[Lord Hope of Craighead]

My Lords, I should like to say a word about Amendment 8. With great respect to the noble Lord, Lord Rosser, I think that the phrase used in the Bill, if it is properly understood, accommodates the point he is seeking to raise. I speak about this with a certain amount of background because the very first judgment I was asked to write when I began my career as a Lord of Appeal in Ordinary in this House was in a case called O’Hara against the Chief Constable of the Royal Ulster Constabulary, reported in 1997 as Appeal Case 286. What we had to do in that case was consider the meaning of the phrase. A bit of research revealed that it has actually been with us for something like 100 years and has been used repeatedly in measures such as the Public Order Act 1936 and other measures where a constable is being asked to take a decision as to whether to exercise a power of search, entry or something of that kind. That situation is analogous to the one we are contemplating in regard to the position of the constable under this schedule.

What, then, do the words mean? As we said in the judgment, they concentrate on what was in the mind of the constable at the time that he exercised the power. But it is important to appreciate that there are two aspects to what was in his mind. One is what we described as the subjective aspect, which is whether he formed a reasonable suspicion. However, the important point, which is a reply to the noble Lord, Lord Rosser, is that there is also an objective element, because he has to be able to say what the objective element was. There must have been reasonable grounds for the suspicion that he formed. They are the grounds that were in his mind at the time when he was judging whether they were reasonable. That is directed to the information that he had when he decided to do what he did. That raises certain questions. What was his information? Where did it come from? What was its content? How could one say whether it was reliable? In particular, who imparted the information to him?

These are the kind of questions that anyone examining the issue would wish to have answers to. The point is not so much whether the information was true or not, because that is not something that the constable can judge at the time. The point is what information did he have and did it include information that purported to be intelligence, which is the kind of point that the noble Lord was raising.

Properly understood, this phrase, which every constable is trained to understand, and the courts are well used to, is really able to accommodate the point quite adequately, and I suggest that the safest course is to stick to the familiar phrase, given the import of the phrase as understood and as explained in the case of O’Hara.

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Hope of Craighead and Lord Rosser

Wednesday 8th January 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I add just a word based on my experience of how these things are dealt with in the courts. The advantage of the present rule is that a uniform rule applies throughout the country and avoids the problem, which is commonplace in the courts, of different practices in different areas and different judges taking different views. The uniformity of the rule is one advantage.

The second point, which the noble Baroness just mentioned, is that it is essential, if a reporting restriction is to be effective, that it be asked for at the beginning. There is always a risk that somebody nips out of the court before the order is made and the damage is then done but the individual can say, “I wasn’t there when the order was made”. To be effective, it has to be made at the start.

The third point is representation. I do not want to go into the issues about legal aid, which are not a matter for this debate, but there would be concern that people who are not very experienced and not attuned to all the matters raised by the right reverend Prelate fail to take the point. My impression is that if the point is taken as eloquently as the right reverend Prelate made it, the court would be very slow not to make an order unless there were compelling reasons for refusing the application, but it requires an application to be made, because I suspect that a court will not take the initiative without that.

Those are advantages of the present rule which would be lost. Obviously there is a balance to be struck, but I would be interested to know to what extent study has been made of the effect of losing those advantages, if the Bill is to remain in its present form.

[Lord Rosser]

My Lords, I will be brief. The Minister has been asked a number of relevant questions and I am sure that noble Lords will be waiting to hear the responses. In particular, do the Government anticipate that their proposal, with provision for suspending Section 49 of the 1933 Act, is likely to lead to a significant increase in the number of children being named as a result of that suspension of Section 49? Or do they take the view that it will lead to very little increase at all because they think that courts will regularly make decisions—an active choice—not to name the child in question? The question has already been asked about the Government’s intentions, not in respect of numbers or an exact figure, but whether they are looking for a significant increase in the number of children named. Is that the purpose of this? Or is their view that even though they are making the change, it may not make a great deal of difference because the courts are more likely to look at this matter and make the active choice not to name the child in question?

The answer may be that it is already covered in the draft guidance. I have not looked at the guidance to see if it is. However, if it is not already in the guidance, is it the intention that the guidance which will be issued to professionals will say anything about making applications to courts for children not to be named where professionals are directly involved? If it is not in the guidance is it the intention that it should be put in that guidance, and what in fact would it say?

I will leave it at that; the concerns have been expressed about this. Obviously there are already circumstances where children can be named as far as legislation is concerned, and I do not want to pretend that that is not the case. Clearly the Government were expecting that numbers of IPNAs would be issued and, therefore, that that might have an effect on the numbers of children being named. Whether that would still be the case in light of the amendment that has now been carried will remain to be seen. Nevertheless IPNAs will still be around, and that may lead to an increase in the numbers of children being named. It would be helpful to know the Government’s stance. Is that what they are looking for—or do they not see it making a great deal of difference? Will they be giving advice to anybody? I know that they cannot give advice to the courts, but will they give advice to professionals who might be appearing in court in order to make sure that courts are reminded at the very least that they do have this power to make the decision that children should not be named?

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Hope of Craighead and Lord Rosser

Wednesday 4th December 2013 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, perhaps it might help if I could balance out the contributions from the Cross Benches by speaking as someone who has never been a police officer or had any responsibility for policing in this country. I approach this amendment by looking at it on its own terms as something which is directed to Clause 126, on the assumption that the clause remains part of the Bill. I make no comment on Clause 126 itself, but I see merit in the amendment for one particular reason.

I have no reason to doubt the proposition that the Government care deeply about considerations of national security and intelligence. Approaching this matter from the sidelines, I would be very surprised if considerations of that kind did not cross the mind of those who were considering making these appointments; let us assume that as a given, in favour of the Government. The value of the amendment is that it counters the suspicion that some may have that these considerations are not in the mind of the Government. It also has a disciplinary effect, because the exercise that is being proposed here will, of course, be carried out in advance of any of these appointments being made. It will help to focus the mind and lay on the table the considerations which one would assume the Government will take into account in making these appointments.

If one thinks of the acceptability of the appointment through the entire police force, the fact that these considerations were on the table and so can be assumed to have been taken into account would add considerable weight to the appointment and the respect in which the appointment-holder would be entitled to be held. Purely from that standpoint, as a former judge and not as somebody who has any experience in the detail of the matter, I respectfully see value in the amendment.

[Lord Rosser]

My Lords, I will resist the temptation to go beyond the amendment that we are principally discussing, Amendment 105. We acknowledge that the Government appear to have a strong wish to bring personnel into the police from overseas, but there is an obvious concern that has been powerfully expressed tonight over the implications for the security responsibilities of the posts mentioned in Amendment 105 and their access to the highest classification of intelligence. The question has been powerfully raised of whether it is appropriate that the positions indicated in Amendment 105 should be held by a non-UK national on national security grounds. The strength of the amendment, as the noble Lord, Lord Hope, has indicated, is that it does not say no, but it requires that written advice be sought from the Intelligence and Security Committee as to whether there are any considerations of national security and intelligence that would need to be examined in relation to the appointment of a non-UK national to the posts mentioned in the amendment. Obviously, there is also the requirement that Section 126 would not come into force until the views of the Intelligence and Security Committee had been obtained and given to the Secretary of State and,

“a copy of those findings has been laid before both Houses of Parliament”.

I always say, “subject to what the Minister has to say, since he might persuade me otherwise”, but it seems to me that, in view of the concerns that have been raised— which seem legitimate—Amendment 105 is eminently reasonable. It is not giving an answer to the question, but it is saying that surely the issue is of sufficient importance that advice should be sought from the Intelligence and Security Committee. We will await the Minister’s response with interest, particularly on whether they have already assessed the security implications of a non-UK national filling one or more of the positions listed in Amendment 105 and have come to the conclusion that there are no national security considerations.