Policing and Crime Bill

Lord Kennedy of Southwark Excerpts

3rd reading (Hansard): House of Lords
Monday 19th December 2016 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, as the noble Baroness, Lady Hamwee, said, these amendments were discussed on Report a few days ago. Amendments 1 and 2 add the world “reasonably” to this section of the Bill requiring someone to confirm their nationality. In that discussion, I made the point that in this section of the Bill the wording “without reasonable excuse” is used in respect of suspects in new Section 43B(1) and again in new Section 46C(1), and on that page there is also “for a reasonable cause”. That is different from the provisions for police and immigration officers. I asked the noble Baroness, Lady Chisholm, to write to me, and I think she was going to, but I have not yet had the letter. It is on its way. That is good to know. When she replies, I hope she will shed some light on why the Government do not need the same provision for both groups in this part of the Bill.

[Baroness Chisholm of Owlpen (Con)]

My Lords, these amendments again seek to provide in the Bill that a police or immigration officer exercising the powers in Clauses 161 and 162 to require a suspected foreign national to state their nationality and provide their nationality documents on request must act reasonably.

I am grateful for the opportunity to clarify the Government’s position. On Report, the noble Lord, Lord Kennedy, suggested that the drafting of these clauses seemed inconsistent, given that, on the one hand, there was no express requirement on an officer to exercise the powers reasonably but, on the other hand, the defence operated only where the accused had a reasonable excuse. There is no inconsistency here. The reasonable excuse defence is a necessary safeguard which allows a suspected foreign national to offer legitimate reasons to an officer and, if necessary, a court, for their non-compliance. This might include, for example, circumstances where a document may have been destroyed with reasonable cause—a scenario which is also catered for elsewhere in immigration legislation. The requirement for officers to act reasonably in the first instance is, in the Government’s view, a quite different point.

I acknowledge that there are some variations in the drafting of the large number of existing Acts which set out UK immigration law. It is also accepted that certain actions in the Immigration Act 2016 explicitly require those exercising coercive powers to act reasonably. However, it is not the case that, in the absence of an explicit reference to that effect, officers are able, through that omission, to act unreasonably. This language is not universally applied, or required, nor is it used elsewhere in legislation which deals with the seizure or retention of nationality documents.

In exercising the powers conferred by Clauses 161 and 162, police and immigration officers must act in accordance with public law principles, which include acting reasonably, or they may be challenged in the courts by means of judicial review. I also note that the wording of these clauses is consistent with that used elsewhere in immigration legislation—for example, Section 17 of the asylum and immigration Act 2004, which uses the same language for similar purposes. Section 17 deals with the retention of documents that come into the possession of the Secretary of State or an immigration officer in the course of exercising an immigration function.

Finally, I should add that operational guidance in respect of these new powers will make it clear to officers the circumstances under which these powers may be exercised. In the light of this further assurance that these powers may be exercised only when an officer has a reasonable suspicion that an arrested person may not be a British citizen, I hope that the noble Baroness will be content to withdraw her amendment.

However, I will just add a couple of things: of course we are very happy to continue to engage with the noble Baroness as our plans for pilots develop; she is also right that Hampshire was one of the places that was suggested for the pilot.

[Lord Kennedy of Southwark]

Before the noble Baroness sits down, did I hear her correctly say that these powers can be exercised only when an officer has a reasonable suspicion? If that is the case, then I do not see why it should not be in the Act and this amendment accepted.

[Baroness Chisholm of Owlpen]

We take the view that the police should always act in a reasonable way.