Counter-Terrorism and Security Act 2015 (Authority to Carry Scheme) Regulations 2015
(9 years, 1 month ago)
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Lord Bates
That the draft Regulations laid before the House on 2 March be approved.
Relevant document: 24th Report from the Joint Committee on Statutory Instruments
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, I shall speak to the Motions to approve the following statutory instruments: the Counter-Terrorism and Security Act 2015 (Authority to Carry Scheme) Regulations 2015; the Authority to Carry Scheme (Civil Penalties) Regulations 2015; the Passenger, Crew and Service Information (Civil Penalties) Regulations 2015; the Aviation Security Act 1982 (Civil Penalties) Regulations 2015; the Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2015; the Counter-Terrorism and Security Act 2015 (Code of Practice for Officers exercising functions under Schedule 1) Regulations 2015; and the Civil Procedure (Amendment) Rules 2015.
This secondary legislation has been brought forward to implement measures in the Counter-Terrorism and Security Act 2015. These measures have been debated in this House very recently, as the primary legislation was enacted only on 12 February. During Parliament’s consideration of that legislation, there was widespread recognition of the threat from terrorism and broad support for the measures that were in the Bill. These instruments bring to life some of those important provisions. In passing that legislation in February, the House accepted the need for these new powers.
I should inform the House that the Joint Committee on Statutory Instruments has considered all seven of the instruments that we are debating today. It has drawn the special attention of both Houses of Parliament to the Authority to Carry Scheme (Civil Penalties) Regulations 2015 and to the Civil Procedure (Amendment) Rules 2015. The committee cleared the other five instruments. The Lords Secondary Legislation Scrutiny Committee has also considered all seven instruments and has cleared them without drawing them to the special attention of the House.
It might help the House in its consideration of these statutory instruments if I briefly outline what the Government seek to achieve by them, and why we have brought them forward at this time.
The Counter-Terrorism and Security Act 2015 (Authority to Carry Scheme) Regulations 2015 bring into force the authority to carry scheme 2015. These regulations are provided for in Section 23 of the Counter-Terrorism and Security Act 2015. The purpose of the scheme is to prevent or disrupt travel to and from the UK by individuals who pose a terrorism-related or other threat to the UK. It also mitigates the threat of terrorist attack against aircraft and, should the threat change, ships and trains expected to arrive in or leave the UK.
International aviation remains a target for terrorists. There have been attempts to launch attacks inside planes using concealed explosive devices and terrorist groups with the intent and capability to undertake such attacks continue to operate. Authority to carry is now an important element of our counterterrorism strategy. The new 2015 authority to carry scheme allows us to respond to the changing threat and prevent individuals who may pose a terrorism-related or other threat from boarding flights from, as well as to, the UK. In order to remain responsive to changes in the threat, it is necessary to include international rail and maritime. The scheme applies to all passengers and crew travelling or expected to travel to or from the UK. If a carrier does not comply with any aspect of the scheme, particularly if a carrier were to carry an individual it had been refused authority to carry, it will be liable to a financial penalty.
The Authority to Carry Scheme (Civil Penalties) Regulations 2015 establish a penalty regime for breach of requirements of the authority to carry scheme 2015. A carrier may be liable to a penalty for breach of a requirement: to seek authority to carry a person; to provide specified information by a specified time; to provide information in a specified manner and form; to be able to receive communications in a specified manner and form; or a requirement not to carry a person when authority to carry has been refused. The scheme specifies that it is the requirements set out in detailed written notices issued to carriers under the Immigration Act 1971 or the Immigration, Asylum and Nationality Act 2006 that must be met under the scheme, rather than those requirements being specified in detail in the scheme itself.
I will now move on to the Passenger, Crew and Service Information (Civil Penalties) Regulations 2015. These establish civil sanctions that may be imposed on carriers who fail to comply with a requirement to provide information under the Immigration Act 1971 or the Immigration, Asylum and Nationality Act 2006. These will complement existing criminal offences. The regulations allow the Secretary of State to impose a civil penalty not exceeding £10,000 for each breach, but a carrier may not be required to pay a penalty if they have a reasonable excuse or have otherwise been penalised for the same breach. The Government’s clear preference is that carriers are able to comply with these requirements. We will continue to work with carriers to ensure that this happens. However, when there is a failure, particularly if it is wilful or negligent, it is important that appropriate sanctions exist to deter repeat behaviour.
The draft Aviation Security Act 1982 (Civil Penalties) Regulations create a civil penalty scheme for addressing non-compliance with certain security directions or information requests made by the Secretary of State under the Aviation and Security Act 1982 in relation to inbound flights. The Secretary of State would have the power to impose a penalty up to a maximum of £50,000. Specifically, penalties could be issued where, in respect of an inbound flight to the UK, a carrier has failed to comply either with a request for information or a direction requiring that certain security measures are applied. The threat to aviation from terrorism remains serious. These regulations help the Government to enforce their powers to specify certain security measures for flights operating to the UK where necessary.
The Terrorism Act 2000 (Code of Practice for Examining Officers and Review Officers) Order 2015 gives effect to a revised code of practice for examining and review officers who exercise powers under Schedule 7 to the Terrorism Act 2000 as amended by the Counter-Terrorism and Security Act 2015.
I now turn to the regulations which bring into operation the code of practice in relation to the exercise of powers under Schedule 1 to the Counter-Terrorism and Security Act 2015—the power to seize travel documents. These powers are exercisable at the Northern Irish border area and at ports throughout the UK. They allow for the seizure and temporary retention of travel documents when there is a reasonable suspicion that the person intends to travel to engage in terrorism-related activity outside the UK. Officers exercising the power are required to follow the code, making the code an important safeguard on the use of this power. The code sets out: the process for the training that must be undertaken by officers exercising the power; the procedure for designating Border Force officers to exercise the power under police direction; how the functions under Schedule 1 must be exercised; the information that must be provided to a person subject to the power, and how and when that information should be provided; and the process of reviewing a decision to retain travel documents.
The last of the seven instruments which your Lordships are considering today is the Civil Procedure (Amendment) Rules 2015. The Counter-Terrorism and Security Act 2015 introduced temporary exclusion orders, which enable the Secretary of State to disrupt and control the return to the UK of British citizens suspected of engaging in terrorism-related activity abroad. The temporary exclusion order also enables the Secretary of State to impose certain requirements on an individual on his or her return to the UK. There are two stages of judicial oversight of this measure: a permission stage and an in-country statutory review. This instrument introduces rules of court to govern these proceedings in the High Court and appeals to the Court of Appeal in England and Wales.
I have already mentioned that the Joint Committee on Statutory Instruments reported on this instrument. The Government have acknowledged the issues raised by the committee and has committed to updating the rules by an amending instrument as soon as practicable. That amending instrument will be made by the Civil Procedure Rule Committee, and the process for doing so is already under way. However, as the Government made clear in their response to the Joint Committee, we do not consider that the drafting errors acknowledged render the rules invalid or inoperable. These court rules are essential to ensure that we can operate appropriate safeguards for the temporary exclusion order powers. Accordingly, I hope that your Lordships will support this instrument.
These instruments are needed to implement measures in, or consequential to, the Counter-Terrorism and Security Act 2015. The four border security instruments are required to prevent or disrupt the entry to, return to or departure from the UK of individuals who pose a terrorism-related threat; to mitigate the threat of an attack on an aircraft operating into the UK; or, in the circumstances of children travelling to Syria, to prevent and disrupt travel by individuals who are putting themselves at risk. The Act made important clarifications to the use of the Schedule 7 power, and the revised code of practice for officers exercising that power reflects these changes. The temporary passport seizure code of practice is an important safeguard on the use of that power. The temporary exclusion order court rules are required to implement the judicial oversight of this power in England and Wales. I commend these instruments to the House. I beg to move.
Lord Marlesford (Con)
My Lords, these instruments form a very important part of the defence of our borders and of the realm. I think I am right in saying that they provide for the reintroduction of the monitoring of the departure of persons from the United Kingdom. I want to ask my noble friend—in as far as the instruments cover the departure of persons from the United Kingdom—about the method of administering the scrutiny of travel documents of persons proposing to or attempting to depart. Is that scrutiny made by the organisation, company or airline by which the persons intends to travel, or by an immigration officer in the same way as is now being done to people arriving? In other words, who will scrutinise passports? Under these instruments, will it be done by the airline or whatever? If it is not being done by an immigration official scrutinising the travel documents using the latest technology, will any warning that an immigration officer would have who scrutinises and examines a passport or other travel document of somebody seeking to arrive in this country—a system that has advanced a great deal in recent years—be available to anyone who is asked to scrutinise the document or passport of someone seeking to depart from the United Kingdom in the same way? In other words, will a non-government official to whom the task is delegated, such as the airline, the railway people or the boat people, have that same information or be able to have it under these instruments?
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?
Baroness Smith of Basildon (Lab)
My Lords, this is a larger number of instruments but a shorter debate than usual. We support the regulations and order, but it would be helpful if the noble Lord were able to answer a few questions. To take the last one first, paragraph 8 of the Explanatory Memorandum for the Civil Procedure (Amendment) Rules, on “Consultation outcome”, says:
“The Lord Chief Justice was consulted … Due to the urgency … there has been no public consultation”.
But that is not the outcome; it just says that he was consulted, without saying what the response was. If there was an outcome to the consultation, it would be helpful to know what it was, otherwise there does not seem much point in calling it an “outcome”.
The points made by the noble Baroness, Lady Humphreys, on the Counter-Terrorism and Security Act regulations are interesting and valid ones to look at. I would also have thought that in many cases the officers concerned would not want, in their own interests, to be searching a child, whether of the same sex or of the opposite sex, on their own. If I was their trade union representative, I would probably advise them not to. There are dangers to the child, but there are also dangers to the officers concerned. That is something that perhaps should be examined and considered. Our staff do a very difficult job in difficult circumstances and we would not want them to be in a position where they could face accusations; nor would we want a child to feel uncomfortable and even more frightened than they would already be in such cases. I hope the noble Lord is able to give some reassurance and clarification on those points.
The other point I would like to make concerns the risks identified in the impact assessment. It says:
“Possible risks will be mitigated by monitoring and reviewing the use of the powers”.
The powers will be used by Border Force officers and the police but they are the very people who will also be monitoring the use of the powers, or they will at least be collecting the data to monitor the use of the powers. This has been quite a sensitive issue and has had a lot of discussion. Clearly, I am confident that the Government do not want mistakes; they want to get this right. Can the Minister say anything about how the powers will be monitored? Data will be provided by the officers implementing this provision but the monitoring of it will be quite important so that we can assess how effective it is and how appropriately it is being used, to ensure that it is not used for anything other than the purposes for which it is intended.
The authority to carry scheme regulations and the explanatory memorandums—I am sure that is not the correct plural—all referred to the fact that 28 people or organisations responded to the consultations. Was there one consultation or will 28 bodies respond? Was there one, overarching consultation or separate ones? I think it will be helpful to look at the ones relating to the authority to carry schemes together. It was quite clear that the majority of carriers welcomed the extension of the scope and that was widely supported, although a majority were also concerned that the maximum fine of £50,000 was excessive. I have seen the Government’s response to that. What is important is when that will be implemented. Looking at the Explanatory Note, I am not 100% clear about “best endeavours”; one of the impact assessments also refers to the Secretary of State taking into account how co-operative someone has been. It would be helpful to have a little more guidance on the circumstances in which the Government would pursue action that could lead to a maximum fine. I know that the maximum fine is used only rarely and is intended to be a deterrent but I would like to know the circumstances that would mistake against prosecution in the first place and, secondly, the level of the fine.
The guidance for these regulations has not been published. A lot will depend on what exactly is in the guidance. Is the Minister able to say when we will see it, what the process will be for scrutinising it, whether there will be consultation with the carriers themselves and when it will be brought to your Lordships’ House?
I also picked up the strange issue about mistaken identity. The Explanatory Memorandum says:
“Administrative arrangements are in place to ensure that an individual is not mistakenly identified again”.
Surely we should have far more robust processes in place if we want to have confidence in the procedure. If mistaken identity occurs once, it surely should not happen to the same individual a second time, or perhaps I am misunderstanding something here. I would like to know what administrative arrangements are in place to ensure that we do not have a second mistaken identity. Really, what are we doing to ensure that we do not have the first mistaken identity? The issue of identification is crucial to providing confidence in this. I am slightly worried.
I understand that there will be some discussions with the industry about the guidance. I would feel happier to see a willingness to make practical changes in how things work. Quite often we can look at something in theory and know where we want to get to, but the industry may have suggestions on how that works practically rather than just in theory. I would like an assurance from the Minister that the Government will consider changes if the industry comes up with ways in which to make this scheme more effective without undermining the basis for it in the first place.
I have similar points to make on the Passenger, Crew and Service Information (Civil Penalties) Regulations, as similar things have arisen. The Explanatory Memorandum states that:
“The Government’s position however remains that carriers must provide accurate, complete and timely information. Not only is this a legal requirement but they also have a responsibility to ensure adequate steps are taken to protect against threats to their assets, passengers and crew”—
and indeed to the country. If a mistake has occurred, what evidence will the Government require from carriers to ensure that they have used best endeavours? Is there some way of monitoring the processes, procedures and protocols that they have in place? That will be absolutely crucial to ensuring that it works in practice.
On the fifth and sixth statutory instruments, the Minister knows that we have supported the power for passport retention and think that it is appropriate. We still take the view that there should be a power of appeal; that is extremely important. Again, the detail of the code of practice will be crucial and we look forward to more information on that. Can the Minister make clear—just to put it on the record—what changes have been made to the code of practice and any guidance as a result of the feedback on the issues? That feedback is mentioned in the Explanatory Memorandum on these regulations and includes,
“specifying the availability of legal aid and clarifying whether family members may access temporary support arrangements”.
Those issues were raised in previous debates that we have had, and by the Joint Committee on Human Rights. If the Minister can give further clarification on that, that would be very helpful.
That is the extent of my questions to the Minister. If he is unable to address those today, he can write to me, which would be extremely helpful.
Lord Bates
My Lords, I am grateful for the contributions that have been made in the debate. I am deeply conscious that there are a large number of orders and regulations before your Lordships this afternoon. The detail of the questioning is very welcome and important—we are talking about very serious issues—and I guess that it will not be possible for me to answer every particular question today. However, I will certainly undertake to write, and copy it to all noble Lords who have been involved in this debate so far.
I will make one general point about the authority to carry scheme and how it operates—this covers the point that was raised about identity and the possibility of mistakes and, in many ways, touches on the point made by my noble friend Lord Marlesford. This is information that the airlines are currently required to send to the National Border Targeting Centre based in Manchester. The information comes in a particular format: it has the passport as one identifier and the date of birth as another identifier, along with the name. It is hoped that through triangulating those three bits of important information the possibility of a mistake can be eliminated.
My noble friend Lady Hamwee asked what changes we are making as a result of this order. Effectively, the changes that we are making in relation to that area are that, in the past, it was for inbound flights. The information on people coming into the UK had to be submitted in advance, cleared and checked against the no-fly list. We are now saying that, where inbound journeys are taking place through certain ports or rail terminals and where UK citizens are travelling abroad for obvious reasons—for instance, if there are flights from London to Istanbul or via Barcelona with an end point in Istanbul—that would raise certain questions. Therefore, we are now asking for that additional information to be provided.
Baroness Smith of Basildon
I asked whether there was one consultation on all the statutory instruments grouped together, or one consultation on each statutory instrument.
Lord Bates
There was one consultation on all the statutory instruments together. If that is not correct in some way, I will set that out in writing.
The intention is to work with carriers, not to fine them £50,000. The UK Border Force already works with carriers, and this will continue. Fifty thousand pounds is for the worst-case breaches. Of course, carrying somebody who we consider to be a sufficient threat to be on a no-fly list is not only a foolish thing to do but a very dangerous thing to do, not only for the airline but for the other passengers and the crew of that airline. Therefore it is right that the penalty is strong, but we hope that it will not be necessary.
I think that I have touched on most of the points raised. The noble Baroness asked about monitoring the use of the power and whether the code explains how to use the power. The code includes a section on monitoring the use of the power, which confirms that the police must consider whether there is any evidence that the power is being used on the basis of stereotyped images or inappropriate generalisations. It must review whether the records reveal any trends or patterns that give cause for concern, and, if they do, take appropriate action to address this. Monitoring records should, where possible, include age, disability, gender, race, religion and beliefs, and sexuality. It also confirms that the power is subject to review by the Independent Reviewer of Terrorism Legislation.
In what circumstances would a maximum fine be given? I have covered that already.
On engagement with NGOs, we undertook a six-week public consultation to raise awareness of the consultation. We notified key stakeholders, including law enforcement, community and regulatory organisations, that consultation had begun, and invited their views. The code focuses on disrupting travel for terrorist-related purposes and on wider safeguarding children issues that are routinely considered by the police.
My noble friend Lady Humphreys asked whether civil liberties organisations in particular had been consulted. I think that the answer is that the stakeholders that we consult include civil liberties organisations; I would expect that to be the case. If that is not the correct answer, of course I will write to her.
With the answers that I have given thus far and the assurances that I have given on continuing the dialogue, particularly in relation to children, I commend the statutory instrument to the House.