Counter-Terrorism and Security Act 2015 (Authority to Carry Scheme) Regulations 2015 — House of Lords, 2015-03-23
Topic: Law and Crime
Angela Smith (Labour, Centre-left): 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