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Policing and Crime Bill

Volume 713: debated on Tuesday 20 October 2009

Committee (5th Day)

Amendment 152ZA

Moved by

152ZA: After Clause 48, insert the following new Clause—

“PART 4APolice bailPolice bail before charge

(1) The following provisions are repealed—

(a) section 10 of the Police and Justice Act 2006 (c. 48) (police bail); and(b) Schedule 6 to that Act.(2) Article 3(i) of the Police and Justice Act 2006 (Commencement No. 2 Transitional and Saving Provisions) Order 2007 (No. 709 (c. 30)) (S.I. 2007/709) is revoked.”

My Lords, last time we were in Committee on this Bill, we were discussing injunctions and the effect that they could have on the liberty of innocent people. We debated the issue at length. These amendments relate to a different interference with people who have faced no charge and no trial process. The amendments are to enable discussion of those issues and to suggest two particular amendments that the Government might feel inclined to take up.

These amendments were provoked by events in April, when two protestors from Climate Rush, the climate change organisation, glued themselves around a statue in Parliament. In fact it was a statue of an ancestor of my noble friend Lord Falkland. They glued themselves to each other; there was no damage to the statue and no other damage. They were arrested under the Serious Organised Crime and Police Act 2005 and were given pre-charge bail conditions which stipulated that they may not talk with one another, even though they were clearly friends, and may not come within l kilometre of Parliament. The difficulty with that is that they were treated as guilty of something before that had even been established.

These amendments deal with three kinds of bail: first, pre-charge bail at a police station, when there is enough evidence to charge under Section 37(7) (a) or (b) of the Police and Criminal Evidence Act 1984; secondly, pre-charge bail at a police station when there is not enough evidence to charge; and, thirdly, “street bail”—pre-charge bail given by a constable away from the police station under Sections 30 to 30D of PACE. I am particularly concerned about the power to apply conditions to pre-charge bail, because pre-charge bail conditions are control orders by another name.

The power to impose bail conditions has grown steadily over recent years. They were introduced under the Criminal Justice and Public Order Act 1994. I would not dispute the fact that bail conditions for serious crimes are necessary. However, these powers were extended to pre-charge bail under the Criminal Justice Act 2003—but only in cases where there is sufficient evidence to charge an individual, so that was still probably within the bounds of reasonableness. Finally, the Police and Justice Act 2006 extended it to all cases where a person is bailed before charges are brought, even when there may not be sufficient evidence to charge them, including street bail.

The Minister will remember that, in June, I tabled a series of Written PQs to ask how often pre-charge bail conditions are used and how often successful applications are made to vary conditions. He may remember his reply, that:

“The information requested is not collected centrally”.—[Official Report, 23/6/09; Col. WA265.]

However, I did some research and it seems that the police are using these powers more, because at Westminster magistrates’ court there have seen an increasing number of applications to vary pre-charge bail conditions in the past six months. That suggests either that more conditions are being imposed or that more unreasonable conditions are being imposed, as in the example I gave of the two friends who were not even able to talk to each other after being arrested.

The Westminster magistrates’ court also explained that no legal aid is available for applications to vary pre-charge bail conditions, so it is very expensive—indeed, it is impossible for people of limited means—to try to change the restrictions. Neither is there a statutory time limit on how long such conditions will last, nor any explicit restrictions on the sort of offences that they can apply to. The minimum restrictions that the Committee should expect the Government to put into statute are the length of time the conditions would last, and explicitly on applicable offences. A date must be given for a return to the police station, with conditions applying until that date. However, if the subject returns at the appointed date and the police have not completed their investigations, the conditions can be extended.

I turn to street bail, which is a particularly worrying aspect of this. When bail is granted at the police station, the custody sergeant takes on a semi-judicial role in approving bail conditions. A custody sergeant has much more expertise and has had specific training, but an officer on the street is in the thick of it. He may not have had that training, and at that moment he may, indeed, not be able to make an objective judgment about the situation. It appears that some police forces agree with this assessment. Hampshire constabulary, for example, states in its procedural guidelines that,

“Whilst the legislation has been amended to allow for conditions to be imposed upon ‘street bail’ this facility is not available within the Hampshire Constabulary area and officers may not impose conditions on such bail”.

Hampshire police say that they made a strategic decision not to use the powers to attach conditions to street bail because, without extensive training, officers would not be able to use the power proportionately—a very telling statement, and one that I hope the Minister will weigh. The officer also thought that a number of other forces have made the same decision not to allow officers to apply conditions to street bail. Thus, by using these powers to curtail peaceful protest—an issue we shall come back to in discussing some of the amendments on protest—the Met are completely out of step with how other forces are acting.

My amendments put forward three different ways to deal with what is at present an unacceptable power. The common intention behind the three is to prevent the conditions from being used as a kind of improvised punishment or deterrence for people that the police simply feel are doing something wrong, instead of making them face a criminal charge and prosecution. Amendment 152ZB would limit the use of pre-charge bail condition to cases where an officer has reason to believe that a serious offence has taken place or is likely to do so.

These are important amendments. During the passage of the Bill that relaxed these provisions, my noble friend Lord Dholakia said:

“The conditions themselves could have a more severe impact on the suspect than any sentence imposed for the minor offence … there is a risk that these conditions could be used in lieu of a criminal charge and prosecution. If reasonable time limits were imposed, it would remove that risk, requiring the police to investigate the case as quickly as possible and to decide whether to charge the suspect”.—[Official Report, 4/7/06; col. 192.]

My noble friend was absolutely right. It is a pity that we did not manage to persuade the House of the validity of his argument. However, on the basis of the further examples that I have given, I hope that the Committee will now rethink the issue. I beg to move.

My Lords, the noble Baroness, Lady Miller, has set out her stall in her usual early afternoon extensive fashion. Therefore, I do not intend to speak beyond asking the Minister what I regard as a key question: have the Government any evidence of any inappropriate or disproportionate behaviour by the police in this regard? If he can answer that, I suggest that it would help the Committee no end.

My Lords, the noble Baroness and the Committee may be aware that the recent public consultation on the review of the Police and Criminal Evidence Act, known as PACE, recognised that bail at the police station was an area which would benefit from clarity of powers and the application of those powers. Therefore, I acknowledge that there is an issue here which needs examination, but I am unable to agree the proposed changes set out in these amendments. It is important that that examination is ongoing in discussions between the Home Office and the Ministry of Justice.

I recognise that some noble Lords, and people in the wider community, view the application of conditions to bail before charge as a restriction on the liberty of the individual. Moreover, those concerns are compounded by the fact that such restrictions are placed on the individual not by a court but at the discretion of a custody officer or, in the case of street bail, the arresting officer. However, we need to look at the benefits of going down this route. The purpose of bail pre-charge is twofold. First, it is to ensure that a detainee spends as little time as necessary in police custody; for example, while other avenues of the investigation are pursued. It also frees up police time. Secondly, it is to ensure that, so far as possible, a released person remains available to assist with the investigation and does not interfere with the investigation or otherwise break the law.

It is a matter for the custody officer to determine whether there is a case to answer and whether the suspect should be detained. That is determined on a case-by-case basis. Similarly, where a decision has been taken to detain a person, the custody officer and detention review officers will consider at regular intervals, as required by PACE, whether the grounds for detention remain.

Similarly, on the use of street bail, it is for the arresting officer to determine whether the person should be brought before the custody officer for a decision on whether he or she be held in police detention, or whether the person can be issued with bail on the street. The latter benefits the individual, as I have said. It also helps free up officer time in travelling to and from the station and keeps them on the beat—we have been pushing across the board to keep policemen on the beat for longer—rather than in the police station.

The noble Lord, Lord Skelmersdale, asked whether we had any evidence of inappropriate or disproportionate behaviour. We do not have any evidence of that at the moment although I note with interest the point raised by the noble Baroness on an incident around the Palace of Westminster, which I find surprising but I do not know the circumstances of the case.

Consideration of bail does not mean that the investigative process has been completed, but that other elements of the investigation can proceed without the need for the suspect to remain in detention. That has to be good for the person involved. The application of discretion by the custody officer or, for street bail, the arresting officer, is an important element of this process. We have no evidence of inappropriate use of this power. What the noble Baroness said about Hampshire police was interesting, but the input that I have received is that, overall, the police are keen on this process. There must be training for the police to be aware of how to deal with this. I am a great believer in allowing discretion to people such as custody officers and police on the beat. I look on the issue in military terms as mission command—allowing people to get on with the job. Generally, one achieves a good result when one provides overall guidance, monitors it, but lets people get on with it.

The custody officer has to consider on a case-by-case basis whether the person should be released on bail with or without conditions. The officer should consider whether it is necessary to attach conditions for the purposes of preventing that person from failing to surrender to custody; preventing that person from committing an offence while on bail; preventing that person from interfering with witnesses or otherwise obstructing the course of justice, whether in relation to himself or any other person; for that person’s own protection; or for his welfare or his own interests, if he is a child or young person.

Attaching conditions to pre-charge bail provides an additional opportunity for the person to be granted bail in situations where the custody officer may have some concerns. Removing the ability, as Amendment 152 Zulu Bravo proposes, to attach conditions to pre-charge bail, other than in relation to serious offences, may result in fewer detainees being released on bail. That would be an unfortunate by-product. That may well be an unintended consequence of the noble Baroness’s amendment, but it is likely to be the actual outcome. I hope that noble Lords will agree that release on bail with conditions is more preferable to that person remaining in the confines of a police cell.

If a person is not satisfied with the conditions attached to pre-charge bail, he or she may appeal in the first instance to the custody officer. They also have the option of applying to a magistrates’ court to ask for conditions to be removed or varied. I was not aware of the legal aid issue, which I should like to take away to think about, because I am not sure of the exact situation. Perhaps we may need to look at that. The current system, therefore, enables an officer to deal with the individual and their particular circumstances. That has to be a good thing. This amendment would remove that ability and use of discretion.

The timeframe of 72 hours proposed by Amendment 152 Zulu Charlie is highly unlikely to be operationally realistic. Bail can last for weeks, and sometimes months, depending on the nature of the investigation. The idea of a person going to and from the custody suite every three days for, say, two months, would not only involve significant police bureaucracy and resources but cause significant disruption and no doubt some antagonism for the individual.

Guidance on street bail, which the noble Baroness asked about, is available for officers when they are away from the police station. As a result of the PACE review, guidance will specifically cover conditions of street bail and pre-charge bail. Instructions are given on those aspects.

The noble Baroness asked a question which I could not answer because the information was not collected centrally. I, too, did a little digging around on this. As a rough estimate, between 20 per cent and 30 per cent of people arrested are released on pre-charge bail, but we do not have precise figures.

For those reasons, I ask the noble Baroness to withdraw her amendments.

My Lords, I thank the Minister for the fullness of his answer, which contained many useful nuggets. I was particularly happy when he said that the importance of training was evident. I should like to pursue that further at some stage and ask whether all police who use street-bail powers should be trained. The Minister was going in that direction and perhaps he could feed that into the ongoing discussions between the Home Office and the Ministry of Justice.

I understand the timeframe issues that the Minister mentioned. There is a great balance to be struck between freeing up the police to do their job and be on the beat—I accept that that is very important; certainly we on these Benches are big advocates of the police spending as much time as possible on the beat—and ensuring that the rights of the individual are respected, a matter that still concerns me. I think that in the example I gave, when the seriousness of the crime is weighed against the onerousness of the bail conditions, the balance has failed. I may give some further examples when we discuss this matter again, but I do not want to take up the Committee’s time further at this moment.

I am very grateful to the Minister for saying that he will look into the legal aid issue, because it is very serious when an individual suffers onerous conditions. However, I am grateful for the issues that he said he will take up and I beg leave to withdraw the amendment.

Amendment 152ZA withdrawn.

Amendments 152ZB and 152ZC not moved.

Clause 49 : Recovery of expenses etc

Amendment 152A

Moved by

152A: Clause 49, page 33, leave out line 23

My Lords, the amendments in this group are probing and relate to the powers of confiscation, and the power to retain seized property that will become available to accredited financial investigators and to,

“a member of staff of the relevant director”.

In another place similar amendments were tabled and the Government provided assurances about the training and monitoring of accredited financial investigators. However, there still remains the question of how appropriate it is to grant such significant powers to people who are not warranted police officers, officers of the Serious Organised Crime Agency or from Her Majesty’s Revenue and Customs, and accredited financial investigators are simply defined by order of the Secretary of State. It would be very helpful if the Minister would confirm who is considered to be an accredited financial investigator and what plans, if any, the Government have to extend that definition. It is very important that we know the type of individual who is going to be doing this kind of job.

There is also the question of how these investigators are to work alongside law enforcement officers. In their 2006 consultation document, New Powers against Organised and Financial Crime, the Government said:

“Financial investigators are becoming more independent from police in their work and therefore to give them the full range of powers would be beneficial”.

My question to the Minister is: how can support staff be independent from the investigations and the law enforcement officers that they should be assisting?

Finally, can the Minister confirm who is classed as,

“a member of staff of the relevant director”?

I am unclear about that. I beg to move.

My Lords, these amendments address the new provisions being added to the Proceeds of Crime Act 2002 and seek to prevent accredited financial investigators having access to the powers conferred upon them.

I know that this is a probing amendment and it may help if I first provide some background. Accredited financial investigators are investigators who have been trained and accredited under Section 3 of the Proceeds of Crime Act by the National Policing Improvement Agency. They are not a new phenomenon. They were established under the 2002 Act and have been carrying out a very important role for more than six years. As new powers are introduced, so they are made available to accredited financial investigators where appropriate; that is all we are doing in the Bill.

Accredited financial investigators were a very important policy leap forward under the 2002 Act. Previously, public authorities which wanted to undertake financial investigations—for example, the Serious Fraud Office and the Department for Work and Pensions—had to rely on warranted constables and Customs officers to conduct their investigations. That is not always the most efficient way to operate. The introduction of accredited financial investigators has allowed these public authorities to conduct their own investigations, making better use of the time and expertise of their staff and freeing up fully warranted police and Customs officers for all the many duties that they have to carry out.

Investigators operating specifically under the Proceeds of Crime Act within SOCA and the Serious Fraud Office are all accredited financial investigators. These amendments would restrict the ability of those front-line important law enforcement organisations to play an effective role in ensuring that criminals do not profit from their crimes.

It is important to note that the police have many financial investigators who are not warranted officers because that frees up warranted officers to do all the other things that the police need to do. Of the 1,011 accredited financial investigators, 53 per cent are non-warranted members of staff of the police. Anyone, whether warranted or not, must receive full training by the NPIA on the use of these powers before they are allowed to use them. Even if someone has been trained by the NPIA, an accredited financial investigator only has access to the powers in the Act if they are a member of staff of a body listed under an order made by the Secretary of State. That order lists approximately 20 public bodies. I could send the noble Baroness a list of those if that would help.

The continued use of these powers is monitored strictly in accordance with the statutory authority vested in the NPIA. This monitoring takes the form of monthly activities and work-based evidence submissions via the NPIA’s financial investigation professional register. Any incorrect use will result in the withdrawal of accredited status. We believe that it is entirely right that as accredited financial investigators who are trained and closely monitored, as I have just explained, they should also have access to the new powers, as they do to the current ones. For their organisations to have to rely on constables and officers of HM Revenue and Customs would be a retrograde step in financial investigation and asset recovery.

That would introduce a differential and I repeat that these officers are not second-class investigators. The NPIA assures us that their professionalism in financial investigation at least matches if not betters that of the warranted police and HM Revenue and Customs officers involved. We are determined to stop criminals profiting from crimes and to reduce harm by maximising the effectiveness of asset recovery for the benefit of the community. It is important that these financial investigators have access to the full array of powers.

Amendments 152A, 152B, 152C and 152D seek to prevent accredited financial investigators who act as receivers from deducting their expenses from recovered sums. An accredited financial investigator, as indeed anyone appointed by the court, can already act as a receiver. The amendments would therefore simply deprive these investigators of the ability to claim their expenses from the amounts that they recover, in contrast to the ability of all the other public officials listed in the new Section 55(8) to do so now. I do not believe there is justification for that. The rationale behind this provision is to encourage the use of in-house receivers. This applies equally to accredited financial investigators as it does to others.

Amendment 152G seeks to remove,

“a member of staff of the relevant director”,

from the definition of appropriate officer for the purposes of new Section 41A of the Proceeds of Crime Act 2002. New Section 41A as a whole provides for the Crown Court to authorise the retention under the terms of a restraint order when that property has been seized by an appropriate officer. The reason that,

“a member of staff of the relevant director”,

is included is that, although such a person is not involved in confiscation investigations, they perform civil recovery investigations under the 2002 Act. They may therefore have had property produced to them while conducting a civil recovery investigation but that has been superseded by a criminal and confiscation investigation.

If a restraint order has been made at the start of the later criminal confiscation investigation, property held as a result of the now defunct civil recovery investigation can continue to be retained so that it can be used ultimately to satisfy any confiscation order that is made. In the light of this explanation, I hope that the amendment will be withdrawn.

I thank the Minister for that full reply. My interest centres on the nature of the individuals to whom these quite extensive powers are being given and their relationship with warranted officers. My two points were: who are these people and, in the light of the language about independence, what is their relationship with the police?

In talking about the training that these people get, could the Minister say what kind of people are employed to do this? Can he give the House some idea of the sort of individuals who are being given this considerable responsibility? What qualifications do they have in their background beyond the training that they receive?

The best that I can do is to say that these are people such as prosecutors, officers or members of staff of SOCA who have been designated by the DG of SOCA. I do not know off the top of my head what exact qualifications or what level of passes in certain things they have to have before they can be designated. I will get back to the noble Baroness in writing on that.

I thank the Minister. It would certainly be helpful to have in writing some clarification on that point. I will trust what he will tell me, and I beg leave to withdraw the amendment.

Amendment 152A withdrawn.

Amendments 152B to 152D not moved.

Clause 49 agreed.

Amendment 152E

Moved by

152E: After Clause 49, insert the following new Clause—

“Confiscation orders by magistrates’ courts

The Secretary of State shall, within 12 months of this Act being passed, lay an order before Parliament to bring section 97 of the Serious Organised Crime and Police Act 2005 (c. 15) (confiscation orders by magistrates’ courts) into effect.”

My Lords, first, I have connections with a number of police forces. They are not professional connections, and I am not advocating anything on their behalf.

In preparation for discussion of the then Serious Organised Crime and Police Bill, I took advice from a number of people, including an accredited financial investigator who is working for a police force and is head of that department and who appears to be a well qualified financier. I also took advice from an assistant chief constable. I asked them how the new legislation was working. They said, “Reasonably well, but it could be improved”. I asked them how it could be improved, and they said that the real problem was that a lot of small criminals who are stealing things and the like come before the magistrates’ court and either plead guilty or are found guilty, but the magistrates are not in a position to make a confiscation order if one is asked for either by the police, who may not be there, or by a representative of the Crown Prosecution Service, who may be there. They went on to say that in order to get a confiscation order it is necessary to proceed to a higher court. They then said that the judges and other people who make the lists in the higher court do not like dealing with confiscation orders for what they regard as trivial amounts of less than £10,000.

I raised this matter with the Minister and the noble Lord, Lord Brett, when we had an opportunity for pre-legislative scrutiny, and I must say that there was a lot of shaking of heads on the other side of the table and what I would regard as squirming about by officials. I got no answer, and I was somewhat surprised the next day to find a message saying that the amendment is unnecessary because the powers already exist. I said, “Could you please show me, because I am assured by the police that they do not have the powers?”. They said that the problem was that they were in a schedule. When I asked where the schedule was, they said, “It has not been published”. When I asked why it had not been published they said, “Because of the need for training”. Honestly, you do not need much training if you are an advocate in a magistrates’ court to be able to make a simple order for confiscation.

This is a serious matter because, first, it calls into question whether the Home Office is doing its job properly in publishing schedules in a timely manner. Secondly, what is the purpose of pre-legislative scrutiny if we do not get answers? If I am wrong, please tell me, because I will point out to the police officers where these powers are and where they have been hidden. In the mean time, I hope that the Minister has some authoritative answer for me. I beg to move.

I recognise that the power to lay an order under Section 97 of the Serious Organised Crime and Police Act 2005 has been in force for four years, but that no order has been laid. There is a little mea culpa here. The noble Lord, Lord Bradshaw, is absolutely right: this has been difficult for a number of reasons. The order would make provision to allow magistrates' courts to make confiscation orders under the Proceeds of Crime Act 2002. Currently, only the Crown Court has the power to make confiscation orders and it will continue to have this power. Magistrates’ courts would be dealing only with low value cases of less than £10,000, as the noble Lord said.

I realise that having order-making powers that remain unused appears to have wasted this House’s time. That is not very clever, but there are reasons. The House scrutinised them in debate. However, that is not the case in relation to Section 97. It is government policy that asset recovery should be an integral part of criminal justice and we are constantly considering options to achieve this.

Work has started on drafting an order under Section 97. Separately and importantly, we developed the Asset Recovery Action Plana consultation document launched in May 2007, which set out a range of new powers and proposals to ensure that criminals would not profit from crime. Many of these proposals are now included in this Bill.

Also contained in that plan was a proposal to create a new, so-called, criminal benefits order, partly because of the problem we were having in getting the order used in magistrates’ courts. We envisaged it as being limited to the benefit from the criminality for which the defendant had been convicted, and it would therefore not require a full financial investigation. It was contemplated that such an order may be made by a magistrate up to a value of £10,000—which made it similar to the last order we were discussing. However, the viability of this possible alternative option to the Section 97 order has not been settled.

In the mean time, I can confirm that the option of an order under Section 97 is being progressed—we are now able to move this forward—and that necessary action is being taken. We will aim to ensure, if possible, that the deadline for laying any order is within the spirit of this amendment. Unfortunately, however, I am not in a position at this stage to make that firm commitment although that is what we are moving towards. I cannot make that commitment within these timescales, but with the undertaking that we are moving towards that, I hope that the noble Lord feels that he can withdraw his amendment.

I thank the Minister for his reply and for his honesty and frankness in giving it. I will study very carefully what he said and will consult again with the people who advised me. In the mean time, I beg leave to withdraw the amendment.

Amendment 152E withdrawn.

Clause 50 : Power to retain seized property: England and Wales

Amendments 152F and 152G not moved.

Amendments 152H to 152HB had been withdrawn from the Marshalled List.

Clause 50 agreed.

Clause 51 agreed.

Clause 52 : Power to retain seized property: Northern Ireland

Amendments 152J and 152K not moved.

Clause 52 agreed.

Clause 53 : Search and seizure of property: England and Wales

Amendment 152M not moved.

Amendment 152N

Moved by

152N: Clause 53, page 38, line 3, at end insert “and that use of such power is proportionate”

My Lords, the amendment concerns the use of search and seizure powers in circumstances where potentially no one has been charged with any offence. It would ensure that the power was used only in circumstances where it was appropriate to do so. In the other place, the then Minister of State for Security, Counter-Terrorism, Crime and Policing, accepted that,

“the powers are potentially invasive and intrusive and that the police and others must exercise restraint and caution when using them”.—[Official Report, Commons, Policing and Crime Committee, 12/2/09; col. 453.]

However, at the same time, he expressed a doubt about needing to include a requirement in statute for law enforcement agencies to act in a way compatible with the European Convention on Human Rights on the grounds that they are automatically required to do so and that including such a provision would risk casting doubt on other pieces of legislation where such a requirement was not expressly included.

At the same time, the Minister undertook to review the proportionality test and that is the subject of my question. What is the Government's position on this proportionality issue? I beg to move.

My Lords, this amendment provides that an officer’s power to seize property under the new Proceeds of Crime Act must be exercised proportionately. I absolutely understand the reasoning behind the amendment and fully support the spirit of it. However, I suggest that it is unnecessary. With regard to the powers of the appropriate officer, police officers, for example, have a duty to act with appropriate discretion. The police are a public authority for the purposes of the Human Rights Act and so must act compatibly with individuals’ human rights. Their powers must be used proportionately; they can be judged on that basis; they are trained to act on that basis.

In addition, the powers of seizure must be exercised with prior judicial or senior officer authority unless that is not reasonably practicable. That is another level of oversight to ensure proportionality.  We are also introducing a detailed code of practice and other safeguards to ensure that the powers are exercised proportionately in compliance with the ECHR. That code of practice will give guidance on proportionality in relation to the exercise of the powers. 

In conclusion, with those caveats—I think that this was a probing amendment—the amendment is important, but I have covered the points raised. I hope that I have been able to demonstrate that we are already covering those real issues of proportionality. On that basis, I hope that the amendment will be withdrawn.

Amendment 152N withdrawn.

Amendment 152P had been withdrawn from the Marshalled List.

Amendment 152Q

Moved by

152Q: Clause 53, page 38, line 34, leave out from “concluded” to “, and” in line 35

My Lords, I shall speak also to Amendments 152R and 152S. These are probing amendments which address what seems to us to be a pre-emptive power currently in the Bill. The conditions for the exercise of powers to seize property under Section 47C are various, and include the fact that an application by the prosecutor has been made and not concluded. However, they also allow an appropriate officer to exercise the powers if he “believes” that such an application should be made. That is my difficulty. Can the Minister tell us why that is—why he has to have a ground only of “belief”? What would constitute such a belief when such an application was made? What if the officer is wrong and an application is not actually made? We on these Benches consider that those powers must be exercised only when an application by a prosecutor has been made. I beg to move.

My Lords, as the noble Baroness said, the amendments would remove the proviso,

“or the officer believes that such an application is to be made”,

from the conditions for exercising the new Act.

Under the provisions of the Proceeds of Crime Act, if fresh information comes to light, it is possible to return to the making or varying of a confiscation order. That is entirely right. For instance, if a drug trafficker had successfully hidden assets at the time a confiscation order is made, if the assets are subsequently discovered, they should, in the appropriate circumstances, be available for confiscation. The provisions also cover absconded criminals, as they, too, should not escape the reach of confiscation. In cases which are returned to, and likewise with absconders, there is the potential for the assets to be dissipated. Indeed, this is historically what has happened, which is why the police have been so much behind the various measures. As assets may have already been hidden for many years, the risk is real.

Accordingly, under the existing restraint order provisions in POCA, property can be frozen by court order. If an application is made for reconsideration, this could put a defendant on notice that his assets are in danger of confiscation proceedings, and so he could hide them again. This would defeat the purpose of reopening a case. Accordingly, the restraint provisions allow for assets to be restrained in advance of an application for reconsideration. This occurs only when the court believes that application is to be made. These restraint provisions have been in force and operating successfully for more than six years.

The same considerations read across to the new provisions to search for and seize property. If an officer believes that an application for reconsideration is to be made, then the powers should be available to him to prevent the possible dissipation of illegally obtained assets, which is what happened in the past. In the light of this explanation, I hope that the amendment will be withdrawn.

Will the Minister explain why, if the officer believes that an application is to be made, he cannot find out? I am unhappy about him acting on the basis of a belief rather than on a fact that he ought to be able to establish.

My Lords, he needs to take action at that time, rather than going back and discovering what is going on, because there is the problem that the property will be dissipated.

If the officer suspects that the assets may be dissipated but has no idea whether a prosecutor is going to make an application, is he entitled under this section to seize the assets?

I shall take note of that and get more detailed advice. I could talk through what I think is the case, but I would like to be absolutely sure of the situation.

My Lords, it would be helpful to have clarification on this point because, on the face of it, the circumstances that my noble and learned friend alluded to could arise. For the time being, I beg leave to withdraw the amendment.

Amendment 152Q withdrawn.

Amendments 152R and 152S not moved.

Amendment 152SA had been withdrawn from the Marshalled List.

Amendment 152SB

Moved by

152SB: Clause 53, page 39, line 36, at end insert “provided the defendant’s employment, business or vocation is not a criminal activity or related to criminal activity”

My Lords, this is another probing amendment. The powers to seize property under Section 47C are limited and exclude cash or exempt property. Exempt property is defined as,

“such tools, books, vehicles and other items of equipment as are necessary to the defendant for use personally in the defendant’s employment, business or vocation”.

Exempt property also includes items such as clothing, bedding, and other items to satisfy basic domestic needs. If the individual’s employment, business or vocation is a criminal activity, and that criminal activity is dependent on that equipment, is it exempt? I beg to move.

Under the Proceeds of Crime Act, there are currently no provisions allowing the seizure of property of a suspect to prevent its dissipation or devaluation in advance of the confiscation order. Clause 53 creates such powers. This was debated extensively in the other place and is now in a much improved state with further safeguards. I am not going to pretend these powers are minor or technical, and they need to be used in a proportionate, effective and focused manner. Section 47C introduces the term “exempt property”. Under this section, property exempt from seizure includes property necessary for the defendant’s personal use in his employment, business or a vocation. Amendment 152SB adds a further clarification that exempt property does not include property needed for employment, business or a vocation that is a criminal activity or related to criminal activity. While I fully agree with the spirit of the amendment, I suggest that it is unnecessary. The definition of “exempt property” is not new, and the one used in the Bill is an exact copy of the one used in insolvency and bailiff legislation: for example, in Section 283(2) of the Insolvency Act 1986. The same issues arise in that legislation as in the Proceeds of Crime Act: namely, that the seizure of property is necessary, but not to the extent that it prevents the individual making a living. It is implicit that the references to employment, business and vocation relate only to what is lawful. To introduce further criteria here would cast doubt elsewhere in the statute book.

We also expect seizing officers and the courts to take the common-sense view that only lawful businesses should continue to operate. Indeed, this could be included in the code of practice, which sets out how these powers are to be exercised. Also, if the defendant has a complaint, he can seek redress through applying for a variation of the detention, whether this is authorised by a restraint order or a new magistrates’ detention order.

I hope that I have explained the issue in more detail and, in the light of that, I ask the noble Baroness to withdraw her amendment.

No doubt the guidance which the Minister has mentioned will also be published, and, on that basis, I beg leave to withdraw the amendment.

Amendment 152SB withdrawn.

Amendment 152T

Moved by

152T: Clause 53, page 40, line 2, leave out from “47G” to “, and” in line 3

My Lords, in moving Amendment 152T, I will also speak to Amendments 152U and 152X. Again, these are probing amendments, and they relate to seizure. The exercise of property seizure powers under Section 47C is allowed only where there is “appropriate approval”, which is defined in Section 47G as,

“the approval of a justice of the peace or (if that is not practicable … ) … a senior officer”.

I will come back to the level of judicial approval that should be required in our debates on later amendments. My concern here is that the Government’s legislation will permit these powers to be exercised when,

“in the circumstances, it is not practicable to obtain that approval before exercising the power”.

What circumstances are the Government referring to, or envisaging, in which approval would not be sought from a judicial figure?

I am also not clear whether, if judicial approval is not sought, the appropriate officer is none the less always required to seek the approval of someone who is called, and defined as, a “senior officer”. Will the Minister confirm that? If there are also circumstances in which it would not be practicable to obtain approval even from a senior officer—I have to say that I find that hard to believe—will the Minister give your Lordships’ House examples of the sorts of circumstances in which that could arise?

Although amendments have not been tabled to Sections 195C to F, which can be found on page 60 of the Bill and which include such powers to search a property, the same considerations certainly apply here. I beg to move.

My Lords, these amendments would require an officer to obtain appropriate approval in all circumstances before they could use the new powers to search for and seize property.

These powers are modelled on the existing search powers under the recovery of cash in summary proceedings provisions in Chapter 3 of Part 5 of the Proceeds of Crime Act. These have been in successful operation since the end of 2002. Under those provisions, as well as under the provisions in this Bill, an officer should obtain the approval of a justice of the peace before conducting a search. If that is not practicable, he must obtain the approval of a senior officer—that is, an inspector or above. If that is not practicable, he can use the powers without such prior approval.

A situation might arise in which an officer needs to act immediately to be able to search for and seize property. He might, for example, be searching premises for some other purpose and need to exercise these powers. In these circumstances it may be possible to get senior officer approval, say, by phone, but he cannot practically go off to court. The moment would have passed and the property may have gone. However, there is an expectation that appropriate approval should be obtained in cases.

In addition, significant safeguards are attached to the operation of the search and seizure powers. If property is seized, court authority is required for its continued detention beyond 48 hours. If property is not seized following the exercise of the new search powers, or if seized property is not detained for more than 48 hours and judicial approval was not obtained, the officer will be required to report to the appointed person why he believes that the powers were exercisable and why it was not practical to obtain judicial approval. The appointed person is an independent ombudsman appointed under the Act to oversee the operation of the powers in the circumstances that I have outlined. There will therefore be independent oversight of the operation of these powers in all cases.

A code of practice will provide guidance on the exercising of these powers. This is yet to be drafted, but it will be subject to a public consultation and will be debated in this House and the other place before it or these powers come into force. The draft skeleton of the code is set out in Annexe B of the Government’s reply to the 10th and 15th reports from the Joint Committee on Human Rights. I hope that that explanation answers the probing points and, in the light of that, I hope that the amendment will be withdrawn.

Perhaps I may press the Minister a little further on seeking approval from the senior officer. Did the Minister say that, irrespective of whether he was able to obtain the approval of a judicial officer—a justice of the peace—an officer who was going to conduct such a search and investigation would be required and expected to get the agreement of a senior officer?

He will be expected, either by phone or something like that, to get an approval from an inspector. However, if he absolutely cannot get it, he can exercise his discretion, but he has a code of practice that will guide how he should behave in those circumstances.

It is hard to believe that in a telephonic age it is not possible to ring up and get agreement from a senior officer. It is very important that these powers do not appear to be exercised erroneously or arbitrarily. I appreciate the fact that there will be a code of practice, but some safeguards in law would be extremely helpful. I shall read this debate again in Hansard and I should like to consider what view to take. In the mean time, I beg leave to withdraw the amendment.

Amendment 152T withdrawn.

Amendment 152U not moved.

Amendments 152V and 152W had been withdrawn from the Marshalled List.

Amendment 152X not moved.

Amendment 152Y

Moved by

152Y: Clause 53, page 41, line 34, leave out from first “of” to end of line 35 and insert “the Crown Court”

The Minister may have got on to the issue that I wish to raise now in his previous answer. The amendments in this group would require judicial authorisation for the use of powers in this part of the Bill to be provided by a Crown Court rather than a JP or a magistrates’ court. Similar amendments were considered in the other place. These powers are sufficiently serious and the legal issues sufficiently complex that in our view the level of judicial oversight should be higher.

In response to similar amendments in the other place, the then Minister of State for Security, Counter-Terrorism, Crime and Policing emphasised the procedural safeguards that would be set out in the codes of practice, but at that time those codes were not available. Can the Minister now confirm the position, because it is very hard to assess the validity of these assurances without seeing them?

If, when we have seen the draft codes of practice, we accept that they provide for sufficient procedural safeguards, will the Minister confirm how the JPs will become familiar with these complex provisions? It has been suggested that a single justice of the peace would, and could, be properly equipped to hear detention order applications. Are the Government still considering that option? I beg to move.

These amendments relate to the new powers of seizure and detention that we are seeking to introduce into the Proceeds of Crime Act 2002. The powers will prevent the dissipation of or reduction in the value of property that may then be used in settling a future confiscation order. These are important additions, as they will add to the effective enforcement of confiscation orders once they are made. This is an important point: orders must be not only made but enforced. I do not pretend that they are minor powers, as the noble Baroness said, and in recognition of this, your Lordships will note that many safeguards are attached to them to ensure their proportionate and focused use.

One of the safeguards is that of various stages of judicial oversight. These amendments address that issue. They are concerned with the appropriate courts for authorising use of the search and seizure powers, making an order for further detention of the seized property and dealing with appeals. The new provisions in the Bill are modelled on the cash search, seizure, detention and forfeiture provisions in POCA. We are not therefore breaking new ground here by giving the magistrates’ court jurisdiction to provide authorisation for the use of search powers or to conduct detention order hearings.

Similar issues that occur in the cash proceedings are likely to be raised under these new powers. It is also relevant that the magistrates’ court is the enforcement authority for the purposes of confiscation orders under Section 35 of POCA. Issues relating to property and other matters that arise from confiscation orders have been before the magistrates’ court since the enforcement powers under Section 35 were commenced in 2003. We believe that magistrates’ courts are properly equipped to deal with the search and seizure powers and detention order cases.

Under Section 290 of POCA, a JP provides prior approval for the use of the powers to search for cash. In circumstances where it is not practicable to obtain this, a senior officer can provide the prior approval. We base the appropriate approval provision in these new powers on that established and successful precedent. It is also of note that, if no judicial approval was obtained for the use of the powers and if no property is seized or any seized property is not detained for more than 48 hours, an officer must send a report to the independent person I talked about in my previous response. The report to the appointed person must detail why the officer believed that the powers were exercisable and why it was not practicable to obtain the approval of a JP. In cases where property is retained for more than 48 hours, it will be subject to judicial oversight by way of an application to a court for its continued detention.

Due to the immediacy of some situations where an officer wants to use the powers to search for and seize property, it may be that a senior officer is available at the scene or is easily contactable. It would be fatal to the use of the powers if during an actual operation an officer had to obtain JP approval for their use. The immediacy of the moment would be lost and the property possibly dissipated. The alternative of a senior officer providing approval still provides for oversight. It is important to note that, if senior officer prior approval has been obtained but property is not seized or not detained for more than 48 hours, a report has to be made, as I have outlined.

As regards detention hearings in those cases where property is subject to a restraint order, the further detention of that property after its initial seizure has to be authorised by the Crown Court. Cases that involve property of higher value or are complex are more likely to be subject to a restraint order. The use of restraint orders is increasing; their number has risen from 1,356 in 2007-08 to an estimated 1,664 in 2008-09. It is unlikely that a Crown Court restraint order would be sought in lower-value and simpler cases where smaller items of personal property may have been seized. In those cases, the application to further detain the property is made to the magistrates’ court. We do not consider that it would be an appropriate use of the Crown Court’s time to deal with such lower-order cases given the other business pressures that it continually faces. There is, however, an express right of appeal to the Crown Court against a decision of the magistrates’ court not to grant an application to vary or discharge a detention order.

I remain convinced that the Government’s proposals in this respect are reasonable and proportionate and ask that the amendment be withdrawn.

When the officer decides to seize something and says, “I am taking this”, what does he do? Does he write down on a document that he has taken something and give that document to the person from whom he has taken it? How does it work in practice? One is a little worried because, while I well understand that this could be a useful power, it could also be an oppressive power. Whatever the hurry, a practical way of indicating the formality of the proceedings is probably necessary. Could the Minister say a word about that?

My Lords, the noble and learned Lord asks a good question. I do not know the precise detail or exactly what form is filled out. According to the code of practice, we have to provide the defendant with a listed description of the seized property, set out the conditions for retention and provide forms for applying for a retention order. Other matters, such as letting the person know where the property is stored, have to be taken into account when filling out the form. There is a whole raft of requirements laid out in the procedure. I am afraid that I do not know them off the top of my head, but they are all laid out there.

My Lords, I mentioned in my first intervention that at the time of the discussion in the other place the draft of the code was not available, but the Minister now has it in front of him. Is this now available to be seen by the House? It would be very helpful to see it before I take a final view on the amendment.

Amendment 152Y withdrawn.

Amendments 152Z to 152AC not moved.

Amendment 152ACA had been withdrawn from the Marshalled List.

Amendment 152ACB

Moved by

152ACB: Clause 53, page 42, line 22, at end insert—

“( ) The Secretary of State must produce guidance on the qualifications required by a person appointed under subsection (4).”

My Lords, this is a probing amendment. When an appropriate officer exercises powers to seize or search property without judicial approval, that officer is required to provide a written report to an “appointed person”. This written report must detail the particulars of the circumstances that led the officer to believe that the powers were exercisable and it was not practical to obtain judicial approval. We have already spoken about some of the sensitive issues involved. Having received these reports, the appointed person is required to provide the Secretary of State with an annual report on the exercise of the powers, including recommendations on how the system operates. What kind of individual would the Government expect to be appointed to this role? What would his or her qualifications and experience have to be? This individual will clearly emerge as an important person in the system, both helping to ensure that it operates properly and guiding its operations.

I am unhappy that the Bill sets up a relatively lax regime for approving the use of search and seizure powers and then puts in place, in order to make it look good, an initial layer of bureaucracy to assess its functioning, but ex post facto. In many respects we would be much better off if we had a watertight regime in the first place. I beg to move.

My Lords, the Home Office makes appointments in line with the Office of the Commissioner for Public Appointments regulations, which are followed as best practice in all appointments. These regulations are publicly available. The selection process will therefore be an open and fair competition. The appointed person at the moment is Mr Andrew Clarke, who, to give an example of his background, has been specialising in criminal law since 1972; he was chief Crown prosecutor for the Crown Prosecution Service from 1986 to 1996 and is now a barrister in private practice. In the light of that, I hope that the noble Baroness will withdraw the amendment, unless she wishes me to go into more detail.

Given the regime that we have, a so-called appointed person is necessary. On the face of it, that sounds like an appropriate individual. I beg leave to withdraw the amendment.

Amendment 152ACB withdrawn.

Amendment 152ACC had been withdrawn from the Marshalled List.

Amendment 152AD not moved.

Amendment 152AE had been withdrawn from the Marshalled List.

Amendment 152AF

Moved by

152AF: Clause 53, page 44, line 44, at end insert—

“47MA Right of third parties to make representations

(1) The Crown Court must, on an application by a person, give the person an opportunity to make representations in proceedings before making an order under section 47M if it considers that the making of the order would be likely to have a significant adverse effect on that person.

(2) The Crown Court must, on an application by a person, give the person an opportunity to make representations in proceedings before it about the variation of an order under section 47M if it considers that—

(a) the variation of the order; or(b) a decision not to vary it;would be likely to have a significant adverse effect on that person.

(3) The Crown Court must, on an application by a person, give the person an opportunity to make representations in proceedings before it about the discharge of an order under section 47M if it considers that—

(a) the discharge of the order; or(b) a decision not to discharge it;would be likely to have a significant adverse effect on that person.

(4) The Court of Appeal when considering an appeal in relation to an order under section 47M must, on an application by a person, give the person an opportunity to make representations in the proceedings if that person were given an opportunity to make representations in the proceedings which are the subject of the appeal.”

My Lords, the Bill already provides that a person affected by a detention order can apply for the discharge or variation of that order, or appeal against any decision made on the order. The amendment would also give third parties with an interest in the seized assets the right to make representations to the court in respect of hearings or to authorise further detention. In the other place the Government agreed to consider the scope for allowing third parties the opportunity to make representations, and I would be grateful if the Minister would update your Lordships’ House on where the Government have got to on that point. I beg to move.

My Lords, the amendment relates to the ability of third parties to be heard at an application, variation or discharge of a detention order or an appeal. This is a detention order made by a magistrates’ court following the seizure and initial administrative detention of property under the new powers that we are seeking to introduce in relation to the Proceeds of Crime Act 2002.

In the other place, the then Home Office Minister Vernon Coaker made it clear that we need to take account of third-party interests in detained property. We have looked again at this issue in consultation with the Ministry of Justice and I assure the House that our commitment to the interests of third parties can be met without the need for provision in the Bill.

We can meet the commitment by amendments to the criminal procedure rules. The rules already provide for giving notice to third parties in other proceedings under the Proceeds of Crime Act 2002, so that those third parties can take part if they wish. The Criminal Procedure Rules Committee will be asked to amend the criminal procedure rules to give such third-party rights under these new powers, and we are confident that the committee will do so willingly. That will enable a third party to turn up in court and argue his case.

With regard to the second and third limbs of the amendments, which look at third-party interests in applications to vary or discharge a detention order, there is already specific provision in the Bill on these matters. I refer in particular to new Section 47N(2)(b) of the Proceeds of Crime Act 2002, as set out in Clause 53. Equally, new Section 47O provides a right of appeal to any person affected by an order against a decision of a magistrates’ court on an application to vary or discharge an order.

I know that this was a probing amendment, and I hope that that explanation will allow the noble Baroness to withdraw her amendment.

Amendment 152AF withdrawn.

Amendments 152AG to 152AK not moved.

Amendment 152AKZA had been withdrawn from the Marshalled List.

Amendment 152AKZB

Moved by

152AKZB: Clause 53, page 46, leave out lines 22 and 23 and insert—

“( ) An appropriate officer must keep under constant review the detention condition and release the property if that condition is no longer met.”

My Lords, this is a probing amendment. It would replace the existing requirement that sees property being released if at any time the appropriate officer “decides” that the detention condition is no longer met. It would instead require that the officer kept under constant review whether the detention condition was no longer met and release the property if it was not. In effect, I am saying that it would be good to have a procedure, not simply a requirement that could be exercised on no particular basis by the existing officer. I beg to move.

My Lords, Amendment 152 Alpha Kiwi Zulu Bravo—these amendments are getting rather long, aren’t they?—essentially introduces an explicit provision that the detention of property must be constantly reviewed and that the property must be released if the detention provision is no longer met.

Your Lordships will note that there are already a number of safeguards that accompany these new powers in recognition of the need to ensure their focused and proportionate use. The conditions for exercising the seizure power are set out in new Sections 47 Bravo and 47 Charlie(1). These require that an individual has been arrested, or proceedings have begun against him, and there is reasonable cause to believe that he has benefited from the offence. The officer must also have reasonable grounds to suspect that the property may be made unavailable for satisfying a confiscation order or that the value of that property may be diminished.

In the other place, in recognition of the constructive debates on the powers, we introduced an amendment to place an explicit duty on an appropriate officer to release detained property if the conditions and reasons for its initial seizure no longer existed. This duty is set out in new Section 47R(2). I am satisfied that an explicit power to release property if it no longer meets the detention condition provides an implicit duty that the position must be reviewed regularly.

In addition, we will ensure that a duty to review detention is included in the code of practice that has to be introduced under new Section 47S. We have already made such a commitment in the government reply to the 10th and 15th reports from the Joint Committee on Human Rights of Session 2008-09.

Annexe B of that document sets out a draft skeleton for the code of practice. Significantly, a passage in it addresses the point, stating:

“Ongoing consideration of the validity of the detention and duty to release if detention conditions no longer met. A senior officer undertaking a formal review of continued detention every three months”.

Your Lordships will note that the quote I have just given is not in full, grammatical English. That was not because I read it incorrectly, but because the skeleton code was drafted with bullet points rather than with full sentences. Your Lordships will have the opportunity to scrutinise the code of practice before the powers come into force. The order bringing the code into force is subject to an affirmative resolution of both Houses.

In conclusion, I suggest that the provision that we have introduced, together with the requirement in the code of practice for a senior officer to conduct a review of the detention condition every three months, amounts to a strong and sufficient safeguard and certainly meets the spirit of the amendment.

I fully appreciate the concerns expressed about controlling the new power of search, seizure and detention—indeed, I share them—but I am satisfied that there are sufficient safeguards and that the points raised by the noble Baroness are already addressed. In the light of my explanation, I hope that she can withdraw her amendment.

My Lords, in light of the assurance that the codes contain an explicit process and provision for regular review, I beg leave to withdraw the amendment.

Amendment 152AKZB withdrawn.

Amendment 152AKZC had been withdrawn from the Marshalled List.

Clause 53 agreed.

Clauses 54 to 61 agreed.

Clause 62 : Detention of seized cash

Amendment 152AKZD

Moved by

152AKZD: Clause 62, page 75, line 9, leave out subsection (1)

My Lords, this is a very short, probing amendment. The Government have not explained in any of their notes why the period for which a court may authorise the further detention of seized cash is being increased from three to six months. It would be very helpful if the Minister could give an explanation. I beg to move.

My Lords, under the Proceeds of Crime Act 2002, the police, Revenue and Customs officers and accredited financial investigators have the powers to seize, detain and apply for the forfeiture of cash suspected of being the proceeds of, or funds intended for use in, crime. Forfeiture is subject to an order by a magistrates’ court in England, Wales and Northern Ireland, or by the sheriff in Scotland.

These powers have been hugely successful, with the forfeiture of more than £100 million of seized cash in England, Wales and Northern Ireland in the past three years. I am sure that what we are hoping to enact now will make it even more successful. The number of cash forfeiture orders made by the magistrates’ courts has increased significantly during recent years, from 765 orders in 2005-06 to 3,223 in 2008-09.

At present, when cash is seized, the seizing authority needs to get a magistrates’ court or a sheriff to make a detention order, which then needs to be renewed every three months until, following the completion of the necessary investigations, an application is made for the cash to be forfeited. This process of renewing the detention order can be time-consuming for both law enforcement and the courts. Clause 62 extends the interim period during which cash can be detained from three to six months, which would result in fewer applications to the courts for continued detention, although parties will still have the right to apply at any time for the release of the detained cash. The maximum period of the detention of the cash, with recurring judicial detention orders, will remain at two years. The Government’s proposals represent a fairly modest change to the existing procedures. They have the support of the police and the other law enforcement agencies. The amendment would leave the police and other agencies in the position they are now, which would be unsatisfactory, for the reasons I have given.

After my explanation for the reasoning, I hope that the noble Baroness feels able to withdraw her amendment. After completing this debate, I apologise that I shall have to leave the Chamber because of other commitments, but people who are even better than me will be here to argue through the remainder of this Bill.

Amendment 152AKZD withdrawn.

Clause 62 agreed.

Clauses 63 and 64 agreed.

Amendment 152AKA not moved.

Clause 65 agreed.

Amendments 152AKAA and 152AKAB not moved.

Amendment 152AKAC

Moved by

152AKAC: After Clause 65, insert the following new Clause—

“Definition of European Framework List

The Secretary of State shall produce guidance on the definition of those offences listed in Schedule 2 to the Extradition Act 2003 (c. 41) (European framework list).”

Under the European arrest warrant, British citizens can be extradited for ill defined offences that might not even constitute a crime in the UK or in many other European countries. This has been a concern since 2002, when the Home Affairs Select Committee considered this issue. The Committee said:

“We have grave concerns about the abolition of the dual criminality safeguard. The variety of criminal justice systems and of legislative provisions within the member states of the EU makes it difficult for us to be … confident … that it will be acceptable in all circumstances for a person to be extradited from the UK to face proceedings for conduct that does not constitute a criminal offence in the UK … Our sense of unease is heightened when we look at the list of 32 offences specified by article 2.2 of the framework decision ... It is apparent that these offences are defined in generic terms and are probably better described as ‘categories of offence’. As noted above, the UK Parliament has no power to amend them … We asked the Home Office what information it has about how these offences are defined in other countries. The Home Office responded that it ‘does not have detailed definitions of offences in the criminal justice systems of other EU member states’”.

Amendment 152AKAC would require the Secretary of State to produce guidance on the definition of those offences listed in Schedule 2 to the Extradition Act 2003. I beg to move.

My Lords, I hear what the noble Baroness says on Amendment 152AKAC, but that was listed together with Amendments 152AKAA and 152AKAB, and all of those issues require the judge to consider both the evidential standards and the EAW list of offences when considering forum. I am not sure what the noble Baroness feels that those amendments will do in relation to Amendment 152AKAC, because—if I may respectfully say so—both amendments conflate conceptually two separate issues. For example, conflating the dual criminality and the forum presupposes that an offence is punishable in the United Kingdom, which it may not be.

We do not believe that this amendment is necessary, and invite the noble Baroness not to continue with it. As she will know, the evidential requirements on our extradition partners vary, and to penalise our most trusted partners for meeting evidential requirements seems unhelpful at best and, some might say, even bizarre. I am not aware of judges seeking guidance on interpretation of the list offences, and we feel that the current system is more than adequate.

My Lords, these are complex issues and the noble and learned Baroness the Attorney-General has written to Members of your Lordships’ House addressing some of them, including this one. The issue that lies between us is whether there is imbalance in the evidentiary standards and how that jurisdiction is decided in cross-border cases. At this stage, we will consider her letter carefully, but I think we shall return to this issue on Report. In the meantime, I beg leave to withdraw the amendment.

The noble Baroness has not moved Amendment 152AKAA, and I give notice that I may well return to that myself on Report.

I was not quite sure which amendment we were on. However, if we are on what has been called the forum amendment, at this stage I certainly found the arguments that the noble and learned Baroness the Attorney-General advanced in the memorandum completely convincing—particularly, the arguments on the second bullet point on its last page and the example that she gave in paragraph 21. In short, it seems to me that the question of whether to prosecute must be for the prosecuting authorities, and it follows that the question of where to prosecute must also be for them. Where there are two competing jurisdictions, it can only be resolved by agreement between the prosecuting authorities in the two different countries. I cannot see how it could conceivably be resolved by a judge in this country.

Amendment 152AKAC withdrawn.

Clause 66 agreed.

Clause 67 : Extradition to category 1 territory

Amendment 152AKAD

Moved by

152AKAD: Clause 67, page 81, line 33, at end insert—

“(4) When proceeding under this section the judge must consider whether the extradition is barred under section 11, 21 or 25.””

My Lords, this amendment and the ones grouped with it, which I put forward, are suggested to us by Justice. The proposed amendments to Clauses 67 to 69 deal with a gap in the application of the Extradition Act to circumstances where it is discovered that a person arrested has charges pending or is serving a sentence in the United Kingdom. The current power to defer exists only at the time of the extradition hearing, not before. We welcome the identification of this omission. However, we feel that bars to extradition should be addressed at the point when the request is made, not once the domestic matter has been resolved at some date in the future.

There are, of course, a number of bars to extradition: the requesting country may retain the death penalty or may be guilty of torture; there is a passage of time bar; the crime has already been tried in another country; the defendant suffers from a physical or mental condition through which it would be oppressive or unjust to extradite that person. Those issues should be determined at the time of the request and not left until the defendant is released from whatever period of custody or imprisonment he may be undergoing in this country, because for the whole of his time in prison he will wonder whether the bars that he wishes to put forward will be accepted by the court. If the requesting state wants to pursue the warrant when he is released, it should do so at that point when it can reissue its request to this country, and bars to extradition could be considered at that point.

Our amendment would obligate the judge or the Minister to consider bars or human rights implications at the requesting stage where the current and proposed legislation does not allow them to do so. I beg to move.

My Lords, I think I understand the basis on which the noble Lord makes his contention in relation to submissions, but I am afraid that I do not agree with him. In cases where a person who is the subject of an extradition request is serving a sentence in the United Kingdom, the Extradition Act allows a decision to be made about whether extradition should be deferred until the end of that domestic sentence.

These amendments would require that, prior to extradition being deferred, the judge or the Secretary of State must consider whether any of the statutory bars to extradition apply. The thinking behind the amendments appears to be, as I understand it, that if on the facts of the case there is an obvious bar to extradition, this matter should be considered prior to deferral so that the criminal in question does not have the extradition proceedings hanging over his head while serving his United Kingdom sentence. While I can see the thinking behind this amendment, I resist it on three grounds: first, the terms of the Act make it unnecessary; secondly, the mischief the amendment is targeted at does not on closer scrutiny exist; and, thirdly, it would result in an unnecessary burden being placed on the extradition system.

I shall deal first with necessity. It is important to note that if a person is serving a sentence of imprisonment in the United Kingdom, the Extradition Act makes it clear that whether or not extradition proceedings will be deferred is a matter for the discretion of the decision-maker. This means that the judge or the Secretary of State can look at all the facts of the case and decide whether in fact the proceedings should be deferred. This means in practice that in the rare case where an obvious bar to extradition is engaged, the subject of the extradition request would be able to trumpet this fact in arguing that the proceedings ought to be determined right away rather than deferred. There is, accordingly, scope within the legislative framework on deferral for the issues raised by these amendments to be fully and, I respectfully suggest, appropriately considered. That is why we do not believe that the amendments are necessary.

As to the mischief at which the amendments seem to be targeted, I contest the notion that it is really that much of a hardship for someone serving a criminal sentence properly imposed by a United Kingdom court to know that at the end of a sentence they will be required to face extradition proceedings. The Extradition Act contains a wide range of safeguards which ensure that no one will be extradited from the United Kingdom without due process being observed and guarantees in particular that extradition will never take place where it would give rise to a breach of the European Convention on Human Rights. Your Lordships know that our courts are very jealous about their observance of those provisions. This is an important point to make, as it means that no one serving a domestic sentence and who is the subject of adjourned extradition proceedings need have any concern that they have the prospect of treatment contrary to the Human Rights Act 1998 hanging over them once the proceedings restart.

My final observation on the amendments is that they would in most cases require the statutory bars to extradition to be considered twice—once prior to deferral of the proceedings and once again when those proceedings eventually resume. Given that the resources of our extradition system are already stretched, this, with the greatest respect to the noble Lord, Lord Thomas of Gresford, is unjustifiable. It simply does not, in our view, make sense for issues to be determined on a provisional basis well in advance of the potential date for extradition and then be considered for a second time at the point of extradition, by when those factors may well have changed.

I understand why the noble Lord raises this issue, but I hope that he will say that his amendment was probing, he has had satisfaction and that we can happily put the issue to one side.

Has a judge ever considered bars to extradition on an application by a defendant prior to adjourning the warrant? Are there any examples of that? That was the noble and learned Baroness’s first reason. Her second was that it cannot really worry someone who is properly sent to prison that he might be extradited at the end of his sentence. That comment does not touch common humanity. Thirdly, she said that there would be a double hearing on the bars to extradition. Our proposals are that they should be dealt with once and for all at the time that the request is made, whereby, instead of adjourning the request, the judge would say, “There’s an obvious bar to extradition here and I am putting an end to it”. As I said in my opening remarks, there is no reason whatever why the requesting country in the years that pass—say, two or three years later at the end of the sentence—should not renew the request if it wishes to. The bars to extradition can be examined at that time.

My Lords, on the noble Lord’s first question, the issue is whether the court has capacity to make those considerations, which it does. I have made it plain that the current structure enables the judge to look at that issue right at the beginning, that the ECHR is there to cover the middle and the end, and that the process which has worked well is that final consideration of extradition should be made once the United Kingdom’s jurisdiction has been exercised. I still say that the noble Lord’s amendments are unnecessary and, therefore, invite him to withdraw or not move them.

My Lords, I shall certainly do that in a moment and consider what the noble and learned Baroness said about them. One thing that has emerged is that she has pointed the way for a defendant who is the subject of an extradition request to make his application to put the bars before the court at the beginning, rather than the end, of his sentence. I hope that practitioners will take note of that and use it. I beg leave to withdraw the amendment.

Amendment 152AKAD withdrawn.

Clause 67 agreed.

Clause 68 : Extradition to category 2 territory

Amendment 152AKAE not moved.

Clause 68 agreed.

Clause 69 : Person charged with offence or serving sentence of imprisonment

Amendments 152AKAF to 152AKAP not moved.

Clause 69 agreed.

Clauses 70 and 71 agreed.

Clause 72 : Return to extraditing territory etc

Amendment 152AKB

Moved by

152AKB: Clause 72, page 90, line 3, leave out from first “the” to “with” in line 4 and insert “return is not compatible”

My Lords, this amendment arises from the Joint Committee on Human Rights. The Bill states:

“Nothing in section 153A or 153C requires the return of a person to a territory in a case in which the Secretary of State is not satisfied that the return is compatible with the Convention rights within the meaning of the Human Rights Act 1998”.

We have suggested that the sentence should simply state that,

“the return is not compatible”.

In other words, it is not a question of the Secretary of State being satisfied, just that the return itself is not satisfactory. This is simpler, better and less open to discretion and doubt. I beg to move.

My Lords, while I understand the aspiration behind the amendment of the noble Earl, Lord Onslow, and what he is trying to achieve, I will resist it on the basis that the provisions of Clause 72 already provide sufficient safeguards to ensure that the return of an individual pursuant to an undertaking is compatible with the person’s fundamental rights. I heard the noble Earl say that there may be some lack of clarity on this issue. I assure him that it does not appear to have caused any difficulty to date and is working relatively clearly and very well.

As the clause is drafted, the Home Secretary must refuse to return someone pursuant to an undertaking if their surrender would be incompatible with a person’s human rights or their rights under the refugee convention. The European Convention on Human Rights reflects a clear duty imposed on all public authorities by Section 6 of the Human Rights Act 1998. The purpose of new Section 153D, to be inserted by Clause 72, is to make it absolutely plain that where the Secretary of State reaches the conclusion that to return someone pursuant to an undertaking would be in breach of his duty under the Human Rights Act or the refugee convention, nothing in the preceding provisions of Clause 72 requires him to act in breach of that duty. If the Secretary of State decided to return someone, but as a matter of law that decision would breach the ECHR or the refugee convention, his decision would be unlawful and could successfully be challenged by way of judicial review.

I can categorically assure the noble Earl that nothing in new Section 153D seeks to suggest that the decision as to whether return would breach a person’s human rights is a matter for the Minister’s discretion. Whether or not return would breach the ECHR is a question of law and would be reviewed by the courts on that basis. I understand the anxiety of noble Earl, Lord Onslow, but I hope that I have been able to assure him that his concern about the discretion is not well-founded. We were alive to the problem and have sought to apply the salve before it was requested—confident, as we always are, that he would notice if we had failed in our duty.

I love being flattered by the noble and learned Baroness—it is very egoistic. I am grateful for what she said and of course I accept it absolutely. I still think that the matter would possibly have been slightly clearer and more concise with our suggested wording but, having listened to what she said, I beg leave to withdraw the amendment.

Amendment 152AKB withdrawn.

Amendment 152AKC

Tabled by

152AKC: Clause 72, page 90, line 4, after “with” insert “human rights, including”

My Lords, due to what the noble and learned Baroness said on the previous amendment, I do not think that there is any great point in my moving this group of amendments.

Amendment 152AKC not moved.

Amendments 152AKD and 152AKE not moved.

Clause 72 agreed.

Clauses 73 and 74 agreed.

Amendment 152AKF

Moved by

152AKF: Before Clause 75, insert the following new Clause—

“Unlawful rendition and searching of aircraft

After section 24B of the Aviation Security Act 1982 (c. 36) insert—

“24C Police powers to search aeroplanes

(1) If the Secretary of State has reason to believe that an aircraft that is in flight over the United Kingdom is or has recently been or may be involved in an act of unlawful rendition then he or she may require the aircraft to land at a suitable aerodrome.

(2) If an aircraft is required to land in accordance with subsection (1), a responsible person must, as soon as practicable after the aircraft has landed, enter and search the aircraft.

(3) The Secretary of State or a responsible person must enter and search an aircraft if he or she has reason to believe that—

(a) an aircraft in an aerodrome is or has recently been or may be involved in an act of unlawful rendition; or(b) in respect of an aircraft in an aerodrome, incomplete or incorrect information under sections 32 and 33 of the Immigration, Asylum and Nationality Act 2006 has been supplied.(4) For the purposes of subsections (2) and (3), a search of an aircraft is to be carried out to determine if—

(a) the aircraft has recently been, or may be, involved in an act of unlawful rendition;(b) a criminal offence has been committed; or(c) allowing the aircraft to continue on its journey could place the United Kingdom in breach of its obligations under the European Convention on Human Rights,but these powers may only be exercised when it is not reasonably practicable to apply for a warrant of entry in accordance with section 8 of the Police and Criminal Evidence Act 1984.

(5) A person who carries out a search under this section may remove any items from the aircraft if it may be evidence of any of the matters set out in subsection (4).

(6) In this section—

“an act of unlawful rendition” means an act, not being in accordance with formal lawful extradition or deportation procedures, involving the forcible transportation of a person to a territory where he or she may be subjected to torture and inhuman and degrading treatment;

“a responsible person” means—

(a) the chief officer of police of a police force maintained for a police area in England and Wales;(b) the chief constable of a police force maintained under the Police (Scotland) Act 1967;(c) Chief Constable of the Police Service of Northern Ireland;(d) one of the Commissioners for HM Revenue and Customs;(e) a constable designated by any of the persons specified in paragraphs (a) to (c).””

My Lords, this amendment is proposed by Liberty and its purpose is to introduce a new clause into the Bill to amend the Aviation Security Act 1982 that would bring new powers to direct a plane to land and to search that plane and any other plane already in the United Kingdom if there was reason to believe that the aircraft had been, or might have been, involved in unlawful rendition.

Amendments similar to this proposal were tabled to the Civil Aviation Bill and the Police and Justice Bill in 2006 but, since then, things have changed. There is now an acknowledgement by the Government that planes transporting prisoners to countries where they face torture and inhuman and degrading treatment have come within the United Kingdom’s jurisdiction.

Therefore, the amendment creates a power to allow the Secretary of State to require any plane using United Kingdom airspace to land if he has information leading him to believe that the plane is being used for the purpose of unlawful rendition. It also creates a specific duty requiring that, if such planes are forced to land, they must be searched and if the Secretary of State, senior police officers or customs officers believe that a plane using United Kingdom airport facilities may be involved in unlawful rendition, there is a power to search that plane. That is not as draconian as it may seem because there are powers under other legislation to search planes but they do not cover all the circumstances involved in unlawful or extraordinary rendition. The amendment also gives a power to search an aircraft if there is reason to believe that incorrect or misleading information on the passengers, crew and flight path has been supplied.

I do not propose to go into the admissions that have been made about the use of extraordinary rendition through United Kingdom airspace and property. The purpose of this amendment is not to consider what has happened but to look to the future so that concerns may be properly investigated. As I have already said, there are powers under customs legislation to search planes for smuggled goods, and the Terrorism Act 2000 (Information) Order 2002 gives police, immigration and HM Revenue and Customs the power to serve on the owner or agents of an aircraft in the United Kingdom a notice requiring details of the crew and passengers, but that is limited to cases involving terrorism. Therefore, there is a gap and that gap justifies the creation of additional powers such as we propose in this amendment. I hope that the noble and learned Baroness will see fit to accept it. I beg to move.

My Lords, I support the amendment and do so knowing that I speak for many people who have been horrified to learn of the procedure of rendition and the great taint that it places on legal systems throughout the world. To find that a country such as the United States of America has been involved in moving prisoners to places where they can be tortured with greater impunity seems to be one of the scandals of modern times.

Also scandalous is the idea that other countries have in any way made that process possible. We know that allegations have been made that the United Kingdom is one such country. While that matter is no doubt a subject of debate and denial in certain quarters, I should have thought that the amendment would seek to allay any fears or concerns that such a process might be conducted in any way using British airspace or airfields in the manner that has been described. I hope that this Government will make it very clear not only that they oppose torture but that they do not in any way make it possible and that in fact they will introduce any steps that can prevent our nation being lent to this disgraceful practice.

My Lords, I apologise to my noble friend for rising too quickly. I say both to my noble friend and to the noble Lord, Lord Thomas of Gresford, that the amendment is unnecessary, but I join with them very strongly in their condemnation of torture and unlawful rendition.

As the noble Lord, Lord Thomas of Gresford, has made clear, this issue has been debated extensively in your Lordships’ House on a number of previous occasions, particularly, as was mentioned, during the passage of the Civil Aviation Bill and the Police and Justice Bill in 2006. A similar amendment was also tabled at the Committee stage of this Bill in another place.

The main thrust of the proposed new clause is to amend the Aviation Security Act 1982 to provide the Secretary of State with a specific power to direct an aircraft overflying the United Kingdom to land and be searched if it is believed to be involved in an act of unlawful rendition. However, Article 3bis of the Convention on International Civil Aviation—the Chicago convention—already allows a state to require a civil aircraft to land if there are reasonable grounds to conclude that it is being used for any purpose inconsistent with the aims of that convention, and on that basis we say that the amendment is unnecessary.

Further, the amendment throws up a number of practical difficulties. First, it would require an aircraft that had been directed to land, or any other aircraft already in the United Kingdom, to be searched if the Secretary of State had reason to believe that it was, had recently been or might in future be, involved in an act or acts of unlawful rendition. However, the degree of suspicion required to trigger this power is unclear and, at its lowest, could include any allegation whether supported by credible evidence or not. Although the amendment seeks to address what I believe to be a very serious issue—and I recognise that it will not always be easy to establish clear evidence that an act of unlawful rendition is in the process of taking place in sufficient time to act upon it—directing an aircraft to land is a significant step and any such direction should, in propriety, be based at the very least on a reasonable suspicion of current involvement in wrongdoing.

A further problem is that the entry and search of an aircraft could be based on a suspicion of past, albeit recent past, or future use of that aircraft for extraordinary rendition purposes. Allegations of past misdeeds, whether proven or not, are no evidence that acts of rendition are taking place on the current flight. Further, all aircraft could potentially be used for such purposes and, taken literally, the proposed new clause might place every aircraft landing in the UK at risk of being entered and searched. I know that is not what the noble Lord would wish; neither do I think it is the intention of my noble friend.

Of additional concern is the fact that the proposed new clause provides no discretion when it comes to the entry and search of an aircraft if reason to suspect recent past, present or future involvement in unlawful rendition is established. Even if evidence were subsequently discovered on board the aircraft, that would not of itself mean that the crew or individuals on board at the time of the search were necessarily culpable of an offence or indeed that an offence had actually taken place on that flight. If evidence were found that the aircraft had recently been involved in an act of unlawful rendition, it is not clear how this evidence would be used. I know that both my noble friend and the noble Lord are vociferous and rightful campaigners on individuals’ rights. I can just hear what they would say if that were the purpose.

The police already have the power to search premises, including aircraft, under warrant. Indeed the proposed new clause clearly envisages a responsible person, in the normal course of events, applying to the court for a search warrant. Applications for search warrants are made under Section 8 of the Police and Criminal Evidence Act 1984 and a warrant will be granted where a justice of the peace is satisfied that there are reasonable grounds for believing that an indictable offence has been committed, that there is relevant, admissible evidence on the premises and that one of the conditions in Section 8(3) is satisfied. However, it is not clear from the amendment what a responsible person would be expected to do if a warrant of entry was applied for but refused by the court on the basis of insufficient grounds. Nevertheless, we believe that where a search warrant has been successfully obtained, this could be used in the case of an aircraft that had been required to land under the provisions of the Chicago convention.

I hope I have explained, as I believe others have before me on a number of occasions, that the Government have made it clear that we do not and will not grant permission for UK airspace or territory to be used for any unlawful rendition. If the United Kingdom's security and law enforcement agencies received intelligence that could give rise to the types of action envisaged by the proposed new clause, on a timescale that would permit such action, the aircraft would either be refused permission to enter United Kingdom airspace or be directed to land in accordance with the existing provisions of the Chicago convention. Although we shall continue to keep these powers under review, we respectfully suggest that the proposed amendment is simply unnecessary.

I understand my noble friend’s anxiety about this and her determination for our country not to be misused and, I would say, abused in this way. I absolutely understand the desire of the noble Lord, Lord Thomas of Gresford, to ensure that that commitment is not only maintained but holds true. It is a proper matter for us to debate and I am more than happy to give the assurance that this Government’s position has not changed in relation to it.

I am most grateful to the noble and learned Baroness for her reply. I had hoped to spend much of this afternoon debating the probable cause in the fourth amendment of the United States constitution and Section 8 of the Police and Criminal Evidence Act and how the two vary and differ. Unfortunately, we have been spared that debate and I hear her criticism that this amendment does not set out a standard by which a magistrate or a judge could issue a warrant for the searching of an aircraft in the circumstances that we have discussed. I accept that criticism and I shall look at the amendment. I do not know whether I shall bring it back again but I am grateful to the noble and learned Baroness for her response. I beg leave to withdraw the amendment.

Amendment 152AKF withdrawn.

Clause 75 : Provisional arrest

Debate on whether Clause 75 should stand part of the Bill.

We have given notice that we oppose the question that Clause 75 stand part of the Bill. In so doing, we are supported by Liberty. Currently, a person may be arrested under the Extradition Act 2003 if a constable, a Customs officer or a service policeman has reasonable grounds to believe that an arrest warrant for that person's extradition has been or will be issued. Once a person has been arrested under this power, he or she must be brought before a judge within 48 hours and documents setting out the legality of the arrest must be provided to the judge; that is to say the extradition request and the documents which have to accompany it.

Clause 75 permits the requesting state to apply to a judge to extend the period of 48 hours within which it must produce the documents. Our view is that, if a request is made for the extradition of someone from this country, everything should be in order before the person concerned is arrested. According to Clause 75, a judge can grant the extension if he or she decides that the documents could not reasonably be produced within the initial 48 hours. In calculating the period of 48 hours, no account is to be taken of weekends or public holidays. The requesting country now has 48 hours, plus 48 hours, plus a weekend or a public holiday. That means that someone could be arrested and held for a very long period without knowing why.

The government amendment would allow for a person to be detained without charge for upwards of six days. It is a clear interference with the right to liberty and it must be demonstrated to be necessary and proportionate. The Government have not given us a reason why it is necessary to give a requesting country more time to produce the documents. It may just be a matter of administrative convenience but some of us will know that a High Court judge is available at any time of day or night in extremis. There is no need for people to be held in custody just for the purposes of administrative convenience. That is why we oppose Clause 75 and I look forward to hearing the reply of the noble and learned Baroness.

We share the view that it should not be necessary to extend the period in this way. There is an obligation on the requesting country to meet the requirements of the extradition procedure as soon as possible. It seems to be a case of administrative convenience rather than fairness to the individual concerned.

I understand the way in which the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Neville-Jones, put their points but there are a number of practical issues which we need to bear in mind. The first, as the noble Lord will know, is that the designated judge for extradition cases is a district judge and not a High Court judge. The reason, as the noble Lord will be aware, is that for a long time in central London the principal district judge has developed a real expertise in this area and there are a number of other designated specialist district judges who cover this. This jurisdiction is not a jurisdiction which is exercised by a High Court judge. I am very familiar with the 24-hour duty judge system which is available in the High Court but we are dealing with the position which pertains in the district court, which has the role of discharging this function.

The European arrest warrant system provides a very effective and efficient means by which extradition can be conducted between member states of the European Union. As my honourable friend Vernon Coaker made clear in the other place when this matter was debated, such urgent and complex cases requiring member states to ask one another to arrest someone before a full European arrest warrant has been issued are rare. Where the United Kingdom receives such a request and there are reasonable grounds for believing that the full European arrest warrant has been or will be issued, it is open to UK law enforcement officials to arrest the person in question. Sometimes there is information that the person is coming through our country, is at an airport or somewhere where it is possible to arrest them and time may be of the essence.

Where someone is arrested somewhat unusually under the provisional arrest powers found in Section 5 of the Extradition Act 2003, Section 6 requires that the person be brought before a court and the full European arrest warrant provided to the judge within 48 hours of arrest.

In most cases, that mechanism will work effectively and without difficulty. However, there are very rare occasions when that rigid time limit causes operational difficulties. The first such instance is where the 48-hour period falls over a weekend or public holiday. Where that is the case there will often not be a court sitting to deal with the person provisionally arrested within 48 hours, which under the terms of the Act would enable a potentially serious criminal to apply to be discharged.

The second situation is where the seriousness and complexity of the case means that the authorities in the other member state are simply unable to provide the relevant information within the 48-hour period. In such cases, it should be possible to apply to a judge for a further 48 hours within which to produce a full European arrest warrant and to bring the person in question before the court. Such an application would be made on notice to the person affected and an extension would be granted only where the judge was satisfied that the conditions in Section 6 could not reasonably have been complied with within 48 hours. There would also be an opportunity for the person arrested to apply for bail.

It is also important to consider the context of the time limits in the legislation of our EU partners. For instance, Italian domestic law provides for a person to be held for up to 10 days subject to a provisional arrest request. In France a person may be detained for six days before the full European arrest warrant must be produced. Both those countries have of course incorporated the requirements of the European Convention on Human Rights into their domestic law.

In conclusion, this provision will not only contribute to greater public safety on British streets, but ensure that we co-operate effectively with our EU colleagues in tackling serious and organised crime. The European arrest warrant is working well in the United Kingdom, but this clause will ensure that it is even more effective in bringing serious criminals to justice. I beg leave that this clause stands part of the Bill.

My Lords, I am familiar with the fact that the jurisdiction of the chief magistrate in Bow Street, like Bow Street magistrates’ court, has gone, and that the jurisdiction has been spread among the district judges and one particular district judge who heads the team. However, the fact that the court is not sitting is not a good reason for someone to sit in prison without any knowledge of why they are there—without the documents having been served on them. I am sure that the district judges could have a system akin to the High Court system whereby a district judge is available on duty all the time. I am surprised to hear that that is not the case. The fact that the court does not sit at weekends is not a good enough reason. I will consider what the noble and learned Baroness has said and I thank her for her reply.

Clause 75 agreed.

Clause 76 : Use of live link in extradition proceedings.

Amendment 152AKG

Moved by

152AKG: Clause 76, page 92, leave out lines 37 and 38 and insert—

“(i) an initial hearing;(ii) an extradition hearing within the meaning of that Part;(iii) an appeal under section 26 or 32;(iv) a hearing under section 54 or 56,”

This deals with live links in criminal proceedings. Live links can be very useful, but they have their limitations. The main limitation is quite practical: there are not enough live-link studios in courts or prisons to enable there to be suitable conference facilities for lawyers representing an accused person. Although it may be efficient for a prisoner not to be brought to court, it causes considerable difficulties.

I have no objection to live links being used on the renewal of applications to hold a person in custody or matters of that sort, but for someone who has been subjected to a request for extradition and arrested under a European arrest warrant or by reasonable warrant from another country such as a part 2 country, it is important for there to be proper opportunities for their lawyers to consult them and for the court to have before it the body of the person who has been arrested. We suggest that at an initial hearing there should be no live links, and nor should there be at the actual extradition hearing or appeal—except with the consent of the person concerned.

Quite recently, I represented somebody from Belgium who was held in one of Her Majesty's prisons in London. He did not come to court for the whole of the proceedings—not even to plead or be sentenced—because he was suffering from sciatica. Those who have suffered from sciatica will know that you would not wish to be carried in a prison van across London under any circumstances. Accordingly, he consented to the use of a live link. The difficulties that I have expressed to your Lordships were then apparent to me but, nevertheless, because the client consented, that was sufficient. But what is proposed here is that the initial hearing and the extradition hearing could be held without the consent of the person concerned. That is going too far.

One of the purposes of a judicial hearing should be to monitor the manner in which the detained person is being held to see if there are any complaints. Another difficulty arises with translation. If the person who has been arrested cannot speak English, it is extremely difficult to communicate over a live link with an interpreter present. It is quite different when the interpreter is present with the particular person in court. Any difficulties can then be ironed out, but with a live link it is very difficult indeed. In fairness to those who are simply unconvicted and arrested under these provisions—they are not to be regarded as criminals—I suggest that live links without their consent is a step too far. I beg to move.

My Lords, in order to understand the context of the noble Lord's amendment, we should look at how this matter is dealt with in practice. The first point to make about Clause 76 is that there is currently only one court in England and Wales that hears European arrest warrant and extradition cases. If a person is arrested in Durham, for example, that person is currently required to travel to London for both the initial hearing and any subsequent remand hearings that there may be.

In the vast majority of cases, the initial hearing is very short and looks only at whether the person is in fact the person sought by the request, and whether the offence for which the person is sought is an extradition offence. Those are the two matters addressed at the initial hearing. It is also important to note that Clause 76 will not apply to the substantive hearing, where the subject of the request will be able to make detailed representations in relation to the extradition request in person.

The second point to make is that a live-link direction will be made only where the judge decides that it is in the interests of justice, and that there is a specific power in the Bill pursuant to which a judge may rescind a live-link direction before or during a hearing. Although I understand the noble Lord’s concern that there could, in a given case, be a problem with interpretation via a live link, in the unlikely event that that occurs, the judge would have the power to rescind the live-link direction where it would not be in the interests of justice to continue. The hearing would then be adjourned to take place at a later date in person, and the person would be driven from wherever they happened to be in the country to London to be heard.

It is important to understand that the noble Lord’s amendments would have two principal effects. First, they would further limit the kinds of hearings that can take place via a live link by excluding initial extradition hearings from the scope of the provisions. I hope that he will accept that live-link connections are advantageous and that good evidence is heard through that medium. Furthermore, the amendments would mean that live links could take place in any case where an interpreter is required. Therefore, the effect of his amendments would be to drastically limit the use of Clause 76.

We are satisfied that there are sufficient safeguards to ensure that the provision works fairly and in the interests of justice. Most importantly, the provision will remove the need for lengthy and unnecessary journeys frequently made to the City of Westminster magistrates’ court in London and ensure that the public’s money is not wasted in paying for those journeys, especially when the two issues that we want to understand are, first, whether the person arrested is the right person and, secondly, whether the offence for which the EAW was issued is an extraditable offence. Those are the only two matters decided in the initial hearing, and we think that the judiciary can be trusted to identify any injustice in the matter continuing by live link. If the judge is alerted to that being unfair, he or she can stop it and the matter can proceed on an adjourned basis.

The suggestion that Clause 76 would allow the main extradition hearing to be by live link is simply not correct. I invite noble Lords to read new Section 206A(1)(a)(i). Your Lordships will see that we anticipated that that might be a concern. We have restricted the provision narrowly to focus on the initial hearing because we absolutely accept that the initial hearing can properly be done by live link. The substantive hearing could be by live link, as the noble Lord said, if the individual consented and thought that it was more convenient, but Clause 76 does not apply to the substantive hearing. It only lets us get the case in order in a way that is cost-effective, as opposed to just cost-efficient. I know that noble Lords will think that Her Majesty's Treasury right now needs to be appropriately jealous about how it spends money, especially on travel.

My Lords, I am not so much concerned about the Treasury's expenditure; I am much more concerned with the justice and liberty case. The noble and learned Baroness says that the initial hearing is often very short. It may be short in court, but there is frequently a period when advice has to be given, instructions have to be taken, and it is important that the person be there for those purposes. However, I am heartened by her emphasis that it is always for the judge to determine whether it is in the interests of justice, and to note something that I had obviously overlooked—that the hearing itself cannot take place by live link unless the defendant consents. Those are very important reassurances, which I hope will be carried up and down the breadth of the judiciary who may have to deal with these cases. On that basis, I beg leave to withdraw the amendment.

Amendment 152AKG withdrawn.

Amendments 152AKH and 152AKJ not moved.

Clause 76 agreed.

Clause 77 : Security planning for airports

Amendment 152AL

Moved by

152AL: Clause 77, page 95, line 24, at end insert—

“( ) The Serious Organised Crime Agency may at any time nominate one individual to be a member of the group.

( ) The Secretary of State may at any time nominate as a member of the group an official of the Secretary of State who exercises functions relating to immigration.

( ) The Secretary of State may at any time nominate as a member of the group an official of the security services.

( ) The group must permit a representative of the police authority for the relevant police area to attend meetings of the group as an observer.

( ) The group must permit an individual who appears to the manager of the aerodrome to represent the interests of the operators of aircraft who take off from, or land, at the aerodrome to attend meetings of the group.”

My Lords, Amendments 152AL, 152AM, 152AS and 152AT are probing. They relate to the membership of risk advisory groups and security executive groups. Amendments 152AL and 152AM probe why the membership of the risk advisory groups—that is, the bodies charged with determining the risk profiles at airports—is different from the membership of the security executive groups. In particular, the UK Border Agency and SOCA are not included. Does that suggest that illegal immigration and organised crime are not threats that affect or make use of airports and air transport? That seems on the face of it rather odd.

Amendment 152AM follows from those amendments. Does the Bill provide for the Secretary of State to appoint individuals from those organisations to attend meetings of the group? How will the group operate? Will it be flexible? The question remains: why are those organisations not members of the risk advisory group? Why is there a discrepancy between that group and the security executive group? Is that just an oversight, or is there a deliberate difference and, if so, why?

Amendments 152AN and 152AM concern what is called level 2/3 policing. In the other place, the Government rejected an amendment that would have required the chief officer of police in that airport area or a chief officer of police of another force with a lead for level 2/3 policing to be a member of those groups. That was on the following grounds: first, that the force in the area where the airport is located should have responsibility, because the chief constable of that force is ultimately responsible for the police services agreement and has to sign it off; secondly, that it would cut off links with the local community or hamper community intelligence; and, thirdly, that the Minister was sure that, where there were collaborative arrangements because of the location of airports, the chief constable of the local police force would in any event consult other forces, even if he was not in the lead. In effect, this is a compromise amendment to allow both for the local chief constable to be a member and the lead chief constable for any collaboration agreement to attend as an observer. It is important to try to bring those two together.

Finally, Amendments 152AL and 152AS would allow the Secretary of State to nominate as a member of those groups an official of the Security Service. That seems entirely appropriate. I am surprised that a similar nomination is not made in relation to the Centre for the Protection of National Infrastructure. The question is: should not the CPNI also be formally represented on those groups, given that airports are a part of the country’s critical infrastructure?

The final amendment in the group, Amendment 152AU, is a probing amendment to determine why it is necessary for separate groups to exist if an individual may be a member of both groups. That seems a bit bureaucratic.

The amendments tabled by the noble Lord, Lord Bradshaw, would allow an aerodrome manager to procure the services of another police force from another relevant police area or from alternative police providers approved by the Secretary of State. These proposals pose some difficulties of jurisdiction, but I agree with the amendment that requires that, in determining disputes about the cost of policing, the Secretary of State should have regard to whether an alternative police provider would make a different resource judgment based on identified risks. I beg to move.

I have tabled a number of amendments in this group on the policing of aerodromes. The representations that have been made to me are that the chief constable of an area is in a monopoly position in selling his services to the airport operator and, what is worse, the airport operator has no option but to accept the bill that the chief constable sends him. This is foreign to much of the way in which commerce is conducted. While policing services are not commerce in the ordinary way, they are services. I am talking not about allowing anybody who puts himself up as a security agent to provide airport security services but about using properly warranted police officers. In most of my amendments in this group and the next, I am arguing that the airport operator should have a choice. If he receives a policing plan that he regards as extravagant, he should have the option of going to another warranted police force or, at least, of appealing to the Secretary of State if he is being, in his view, put upon.

I cite a totally anonymous example of an airport where the chief constable is, shall we say, a little afraid of his shadow; he opts for providing an armed police service at the airport, which is left with no alternative, as the Bill stands, but to pay up. I can assure noble Lords that a number of airports are not in a position to pay for expensive services.

I suggest that there are several possible alternatives. If you were the airport manager at, say, East Midlands Airport, the Leicestershire, Derbyshire and Nottinghamshire police forces are in close proximity and a competitive tender for the provision of policing services could be sought from each chief constable. If you were at Gatwick, you might choose to go to the Sussex Police or the British Transport Police, which is already on the premises, to provide policing services. I know that one of the objections voiced by officials is that the British Transport Police does not have armed officers, but it guards probably the most iconic target for terrorists in this country—the London Underground. It can call on armed officers if they are required, although one wonders what, in the close confines of the Underground or certain airport terminals, armed officers would actually do because of the problem of collateral damage.

I have described my amendments and shall be interested to hear what the Minister has to say in reply, because it is typical business practice these days that wherever possible people should have an alternative if someone is seeking to provide a service from a monopoly position.

My Lords, I support the amendments tabled by the noble Lord, Lord Bradshaw. We are talking about a situation where the users are paying for the specific work of policing at airports, which is not normal. To some extent, the police authority has the airport over a barrel. It will decide and say how much it is going to cost.

I had this experience 20 years ago when I was working on the Channel Tunnel. All the frontier control authorities made bids to have the maximum facilities and maximum number of people there—of course, it was all very necessary in their books—and Eurotunnel had to provide a police station at Folkestone for 80 officers. It was complete with everything that they could possibly want, including darkened windows so that nobody could look in. It was for everything apart from law and order, which was still going to be done by Kent Police. The cost to the company was enormous. One day, I asked the head of the police what they would have done if they had had to fund it themselves. The answer was that they would have had two policemen visiting part-time from Ashford. I was shocked by that. They were being greedy. I know that they needed money and wanted to have all the lovely equipment but, in terms of a judgment about what is required, the difference between two part-timers and 80 takes some beating.

I fear that we have the same situation today. Of course, the police will say that everything is necessary and that they have to have the most wonderful equipment. As the noble Lord, Lord Bradshaw, said, the British Transport Police could do an extremely good job. With the Metropolitan Police’s record on using firearms in the Underground, it is probably better that there are no firearms around. More seriously, as the operator has to pay, it is entirely reasonable that he should be able to get more than one quote, including one from the British Transport Police, because at somewhere like Birmingham International Airport the BTP will be on the railway but will not be allowed to take one step into the airport. That is crazy; it will come up in a later amendment. I hope that my noble friend will have something positive to say about this and, most important, will explain how the airport operator can be protected from the monopolistic and sometimes grabbing attitudes of the police, who know that they have the operator over a barrel.

The 10 amendments in this group deal with a variety of issues. I sense that the issues that the noble Baroness, Lady Neville-Jones, is dealing with are slightly different from those to which the noble Lord, Lord Bradshaw, and my noble friend Lord Berkeley have just referred. I shall attempt to answer all the points in my response.

The first set of amendments proposes various changes to the membership of risk advisory and security executive groups. I shall deal first with the make-up of risk advisory groups. Amendment 152AL, moved by the noble Baroness, proposes that the Serious Organised Crime Agency, officials dealing with immigration and the security services should all be granted an automatic right to representation on the risk advisory group.

Let me explain how membership arrangements for this group will work. Those persons who must, as a minimum, attend the group are those who represent the airport operator and the police. This is because, at the very smallest of the qualifying airports, this would represent the minimum level of membership at which basic risk assessment could be conducted. In practice, however, we expect that, in the very large majority of cases, additional security partners from a range of entities will need to attend in order for a full assessment of risk to be undertaken. However, different airports will need different risk advisory group members, which is why the airport operator has been provided with a wide-ranging power of nomination. This is there to ensure that those persons who need to attend the group in order for it to function effectively can do so.

National guidance will provide further information about risk advisory group membership. This will include, for example, reference to the appointment of airline and UKBA representatives. At some airports, it will be appropriate for the Serious Organised Crime Agency to attend risk advisory group meetings. Where this is the case, we expect the aerodrome manager to use his power of nomination to appoint them.

We do not believe that the police authority should attend meetings of the risk advisory group, as the function of this group is to allow for the expert consideration of threat and risk. The police authority will, however, have a role to play in the resourcing decisions taken by the security executive group; the Bill’s existing powers of nomination will permit this.

On the appointment of security services representatives to the risk advisory group and the security executive group, which Amendments 152AL and 152AS propose, we agree that there is a role for the security services to play in contributing to the information considered by the groups. This information is presently provided to existing risk advisory groups by means of a threat assessment that is issued regularly by TRANSEC. In some cases, where necessary, information is also delivered directly to risk advisory groups by a security services official. This will remain the case under these new provisions. Representatives of the security services will not normally need to attend security executive group meetings, as these discussions will relate primarily to the resourcing of measures.

Amendments 152ANA and 152BFA, to which the noble Lord, Lord Bradshaw, spoke, seek to make it possible for a range of “alternative policing providers” to police an airport, the intention being to allow an airport operator effectively to put airport policing out to competitive tender. Other Home Office forces, the British Transport Police and private forces could all bid for the contract. It will not come as a surprise to the noble Lord when I say that I am afraid that we cannot accept these amendments. We consider it an important principle for airport security that the responsibility for policing decisions at an airport should reside with the local Home Office force, a view that is supported by the Association of Chief Police Officers.

Whether you are dealing with terrorism, serious and organised crime or simply petty crime, local intelligence has been shown to be essential in the delivery of effective policing. Creating a situation in which one force polices the airport while another polices the community outside makes little sense. The two policing roles are interlinked and it would be complex and impractical for force activities to be split in this way. In the event of a serious incident, the local force would inevitably have to supplement the airport police, complicating investigations and causing complex command and control arrangements.

I am grateful to my noble friend. Can he explain the boundary between the BTP’s policing of Birmingham International station and the policing of Birmingham International Airport? There are just as many problems there. If the BTP, with its expertise, is capable of policing the whole railway network, why cannot it police an airport? If it did, there would be no conflict at the boundary between the two.

I am grateful to my noble friend for that intervention. We will discuss the jurisdiction of the BTP when we consider Amendment 159EA in the name of the noble Lord, Lord Bradshaw, a little later. My noble friend said a moment ago that the work of the BTP had to stop at the railway station and could not go on to the airport if a crime was being committed that had started at the station and went on to the airport. That situation would not apply, because the BTP has full jurisdiction to continue an investigation, and possibly a chase, if a crime started at the station and went to the airport. As I say, however, we will come back to this when we consider the amendment in the name of the noble Lord, Lord Bradshaw.

I recognise the importance of ensuring that policing services are cost-effective—a point made by the noble Lord, Lord Bradshaw. I assure the Committee that, under the new framework, we expect discussions to explore alternatives to policing and to consider policing within the context of all security measures that are in place. Indeed, chief officers will not want to deploy more resources than are required when they could be better used elsewhere.

I am sorry to interrupt the noble Lord, but chief officers would have no such inhibitions if the bill were being paid by someone else.

If the noble Lord will contain his impatience for just a second, he will find that I answer exactly that point in a moment.

Where specific police activity cannot be justified, parties may well agree not to include this in the plan or they may wish to gather further evidence before making a decision. Ultimately, if agreement cannot be reached, any determination provided by the Secretary of State will not impose a policing measure without regard to all relevant and reasonable evidence to demonstrate that this is necessary. I hope that the noble Lord will feel that that statement answers the point that he has just made.

The noble Lord’s amendments would, as we have heard, enable the British Transport Police to police airports. He made this point at Second Reading, as indeed I did from the Back Bench on this side of the House.

I am speaking for the Government from the Dispatch Box and I have been thoroughly convinced by the case that has been put in front of me.

My admiration for the fine job that the BTP does in policing our railways is well known in this House and, I know, is shared by both the noble Lord, Lord Bradshaw, and my noble friend Lord Berkeley. It delivers a highly effective policing service that helps to ensure that our railways are kept safe and secure and there is clearly merit in learning from the knowledge and experience that it has acquired through operating in a commercial environment. We shall, as I said, come back to the role of the BTP and its jurisdiction when we consider Amendment 159EA in the name of the noble Lord, Lord Bradshaw.

The Government do not feel that the railway-based policing model would work at airports. There are significant issues here, including the lack of an armed capability, the challenges of providing flexible resources across a disparate and disconnected geographical area, the need fundamentally to change the existing structures to extend competence to airports and the fact that the BTP does not have a long-established Special Branch role. We believe that there is no justification for the cost and disruption that allowing the BTP to police airports would cause when we have a perfectly good solution already in place.

On Amendments 152AM, 152AN and 152AT, I am grateful to the noble Baroness, Lady Neville-Jones, for asking how police collaboration agreements will work in the context of these provisions. The provisions do not preclude a collaboration agreement between forces, as that would preserve the local chief constable’s position as the principal decision-maker. Collaboration agreements will continue to be an option where chief constables consider them to be more effective or efficient ways of delivering policing measures. However, for the reasons that I have already mentioned, we consider it important to retain the Bill’s current requirement that the local force, and not another force, should take the responsibility for policing its airports and therefore be represented on both the security executive group and the risk advisory group.

That is not to say, however, that the chief officer of the local force could not work with colleagues from neighbouring forces in the delivery of policing services that he or she decided should be in place at the airport, either with the agreement of the airport operator under the terms of a police services agreement or in some other capacity. Where a chief officer felt that airport policing could be delivered effectively and efficiently through co-operation with another force, it would be open to that chief officer to enter into a collaboration agreement setting out the terms of this co-operation. It would also be possible for a representative of a force participating in a collaboration agreement to attend both risk advisory group and security executive group meetings in the capacity of an observer.

Amendment 152AM would remove the Secretary of State’s ability to appoint observers to the risk advisory group. One of the reasons it is important for the Secretary of State to have this power is that, in the event of any doubt about the effectiveness of a group's operation, the Secretary of State will be able to appoint officials to witness the group’s proceedings. Officials will then be in a position to support the work of the group concerned and to advise the Secretary of State as may be necessary.

Amendment 152AU proposes the removal of the provision providing specific authority for individuals to act as members of the risk advisory group and security executive group at a qualifying aerodrome. I should like to explain the rationale for the inclusion of this provision. United Kingdom airports vary considerably in size and in nature. We recognise that these provisions must work effectively at all sites. At some of the very smallest airports, the staff with responsibility for day-to-day risk assessment may also have responsibility for taking resourcing decisions and will therefore need to sit on risk advisory and security executive groups. The Bill provides for that and national guidance will contain governance advice regarding use of this provision.

Amendments 152BGA and 152BGB, in the name of the noble Lord, Lord Bradshaw, would require the Secretary of State to consider transparency and accountability when determining a dispute. These principles run through the entirety of the new process, so it would be impossible for the Secretary of State to overlook them. Producing a risk report and an airport security plan to support decisions is a wholly transparent process and provides a clear set of accountabilities which feed into the development of the police services agreement. These will be material considerations for the Secretary of State when making a determination, so the two principles do not need to be referenced explicitly in the Bill. The amendments would also require the Secretary of State to consider whether other police providers would have made different decisions or provided policing at lower cost and how policing services are provided at airports with a similar risk profile.

The fundamental principle underpinning the security planning framework is that decisions about security planning should be based on relevant local circumstances and intelligence. Airports are very diverse and the risk profile at each will vary in accordance with the precise nature of each operation. The mix of security measures will also vary, with policing only one possible option. That is why the new planning process does not allow this to be prejudged as mitigating measures will be based on identified threats to each individual airport. It would be inappropriate explicitly to require the Secretary of State to consider how policing might be considered at another airport when it is unlikely to be a material factor.

The amendments also assume that costs might somehow be inflated. The national guidance will make it quite clear that police forces and authorities will be expected to set out clearly what they charge airport operators so that all parties can understand how the costs are made up. The guidance will also be clear that costs may be recovered only for those aspects of policing that should be paid for by the airport operator, as opposed to the state.

Finally—I apologise for the length of my response, but we have had 10 amendments to consider—with regard to Amendment 152BGB, I can reassure your Lordships that the Secretary of State, acting reasonably in the execution of his duties, would certainly seek the information described in the amendment before making a determination if the nature of the dispute necessitated this, and already has the powers to do so. He can instruct parties to share that information before determination is reached.

We have considered a series of complex but related issues in these amendments and I hope that what I have said will collectively encourage the noble Baroness and the noble Lord, Lord Bradshaw, not to press their amendments.

I thank the Minister for what he has had to say, but I fundamentally disagree with him. I believe that the presence of competition is almost as important as competition taking place. The fact that someone knows that the price he is paying for something might be subject to challenge by someone else often causes the price or the efficiency to improve immeasurably. I am sorry, but I do not take from him the points about local knowledge. I am sure that the BT police, or any other police force for that matter, gain such local knowledge as is important. That is part of their job. The BT police want to know who is stealing cable in an area or who is obstructing the track. That is based on local knowledge and they are as capable of getting local knowledge as the warranted force who often regard the railways as a nuisance anyway.

I will study carefully what he has said, but I am not very sympathetic. Perhaps I might put it that he is maintaining the point of view of people who are not in the House, but are perhaps sitting over there to my right, rather than the rational view of a rational Government.

I thank the Minister for his reply and he is right to say that it was long. We seem to have two sets of discrete issues in one bunch of amendments, which I shall take in order. I listened careful to what the Minister said about the membership of these groups. I still find his reasons for discrepancy not entirely convincing, although I accept that there is diversity in the security conditions at different airports, which will require different patterns. It seems to me that, given that this new regime is coming into effect, it would be helpful if the Government would undertake to monitor carefully whether the provisions put in place by statute are working, and show willingness to amend if it turns out that there is a real problem.

I am grateful for what the Minister said about collaborative agreements between the police, which is an important part of getting the regime to work. As things stand, it seems entirely at the discretion of the police force which is policing the airport, rather than there being any ability on the part of the police force in the area to take any initiative. I would hope that those policemen could talk to each other sufficiently frequently so that if there is a need for a collaborative agreement or active help from the police force in the area, it will be forthcoming. This is a case of ensuring that the letter of the law translates into a sensible and practical regime, which really secures the airport and is done on a basis which pays attention to local security considerations and observes certain national norms.

I have an amendment coming up on cost. It might have been better if these amendments had been grouped, but that is as it is. There is plenty of practical evidence that the costs of policing airports have varied considerably. Not only do they vary from airport to airport, as does the rate at which certain services provided by the police are charged to the airport operator, but they change when a new police chief constable comes along and sets them again. There is no consistency in practice and there is not yet confidence in the basis on which the police charge. I do not see in the present arrangements any incentive to the police to keep their costs down. They are being paid for by someone else. I have great sympathy with the amendments put forward by the noble Lord, Lord Bradshaw. The Government should have a strong eye to the reasonableness of these charges. In the next amendment, I have a thought to put to the House, which may help.

In relation to the amendments standing in my name, I would like to hear what the Minister has to say about my suggestion and, on that basis, I hope that I will be able to withdraw my amendment.

My Lords, I can respond to the two points made by the noble Baroness. Continuous monitoring is an undertaking which we are happy to give. We will see how those arrangements work out and will keep them under review. On the issue of what one could loosely call gold-plating, the Association of Chief Police Officers and the Government have made it clear to everyone concerned with these arrangements that the proposals do not provide an opportunity to gold-plate policing services. We do not expect any more police to be deployed at airports than those the airport operator and the police agree are sufficient to mitigate the identified threats, and it could well be that the number of police should fall rather than increase as a result of these arrangements. If there is a dispute, as I indicated in my earlier speech, there is a dispute mechanism to sort it out. However, it is very much the Government’s intention that this will lead to more cost-effective rather than more expensive policing.

Obviously, the noble Lord, Lord Bradshaw, will speak for himself. On the basis of the assurances given by the Minister, I shall withdraw the amendment.

Amendment 152AL withdrawn.

Amendments 152AM to 152ANA not moved.

Amendment 152AP

Moved by

152AP: Clause 77, page 97, line 28, at end insert—

“( ) In relation to security measures to be taken by a person within subsection (4)(b)(“C”), the plan may also specify—

(a) that any other relevant person is to make payments in respect of the costs reasonably incurred by C in connection with the security measures, and(b) the amount of those payments or the manner in which that amount is to be assessed, and(c) where such payments are to be made by the manager of the aerodrome, the manner in which such payments may be reimbursed to the manager of the aerodrome by any persons within subsection (4)(c) to (e).”

My Lords, one of the objectives of the Bill is to introduce a level playing field for the payment of airport policing. Currently, nine United Kingdom airports—the larger ones—pay for airport policing twice, first through a direct contribution and then through business rates, while the smaller airports contribute through business rates and the provision of onsite facilities. The effect of the Bill is to put the smaller airports in the same position as the larger ones as regards payment for policing. At present, the smaller airports make no direct contribution to their local police force for policing at the airport in question, and the local police force bears the cost itself.

During the passage of this Bill through the other place, assurances were given that the police would not be able to specify the levels of airport policing they considered appropriate without fully explaining and justifying to the airport authorities the costs involved. That assurance was certainly needed since the costs of airport policing are not insignificant. For example, at Manchester airport they run to some £9 million a year. Since policing costs are part and parcel of the costs of running an airport, it does not seem unreasonable that an airport authority should be able to recoup the costs of airport policing from airport users or that those other airport users should be required to make payments direct to the police. However, the wording of the Bill does not even give airports the backing to seek to pass on policing costs to airlines and others who benefit from the policing provision despite the Explanatory Notes to the Bill rather suggesting that airport security plans could provide for other stakeholders to make payments in respect of delivery by the police of a security measure. If there is no wording in the Bill to acknowledge that airports can seek to pass on such additional costs, many smaller airports will almost certainly struggle both to pay and to pass on the costs. This is the issue that my amendments seek to address.

Figures with which I have been provided show that, based on policing costs of 80p per departing passenger, the impact on the airport’s bottom line at a time when the industry is already under pressure is likely to be 15 per cent, 72 per cent and 29 per cent of existing profit for 2007-08 for East Midlands, Bournemouth and Humberside airports respectively unless the policing charges they will now have to pay directly to their local police forces are passed on to airport users. The Government’s own impact assessment acknowledged that some airports could become loss-making as a result of the proposed change in arrangements for the payment for airport policing by the smaller airports. It would be helpful if my noble friend could confirm that the Government recognise the serious impact that the proposed changes to airport policing payments could have on the financial position of smaller, non-designated airports that currently do not make a direct payment to their local police force for airport policing.

While there will be a dispute resolution mechanism that ultimately ends up with the Secretary of State, to which my noble friend has already referred, this may well not lead to satisfactory solutions since the policing of an airport will be based on decisions related to assessments of threats and the resources needed to deal with them, and be unrelated to the commercial viability of the airport, which is a key issue for the airport operator. That is why I do not share the Minister’s confidence in the dispute resolution procedure, which he expressed during our debate on the previous group of amendments.

A further concern of airport operators is that the levels of policing at the smaller, currently non-designated airports, will subtly but steadily increase following the passage of the Bill and the transfer of policing costs from the local police to the airport operator. Such concerns from the point of view of the airport operators would be diminished if they had some backing in the wording of the Bill for seeking to pass on costs to users, and there is already a precedent for giving airports such powers in the European directive on passengers with reduced mobility, as additional costs can be passed on to the airlines.

I have already referred to the concerns of airport operators that the levels of policing at the smaller, non-designated airports will steadily increase following the passage of the Bill, an issue raised a few minutes ago by my noble friend Lord Berkeley. Indeed, there are concerns that it is already happening. Since the beginning of the year, two officers have been positioned at one of the smaller airports affected by the Bill whereas previously the only presence was the Special Branch and an armed response vehicle during increased security threat levels. There is now involvement by the police in traffic management on the terminal frontage roadway, car park patrols and increased access airside to investigate alleged thefts from airport shops.

It is clear that local police forces regard themselves as providing services around airports that meet more than the needs of the airport operator. Last July, a circular from Leicestershire constabulary invited people to meet the East Midlands airport neighbourhood team for a consultation event comprising three one-hour meetings at different locations in the airport. The meetings were open to everyone and were billed as a chance to tell your neighbourhood team about the issues that might be of concern and to have your say about policing in the area. A further letter from that police force referred to addressing matters of concern to all sections of our “community” and said that an issue the airport police intended to address was careless and inconsiderate driving and in that regard the need to ensure the safety of all who use the airport. That may all be fine, but it is not related to airport security in the accepted sense, and there must be a suspicion that a desire to expand the service by the police to include community policing may not be unrelated to the provisions of this Bill, which will result in the costs being borne by the airport operator rather than by, in this case, the Leicestershire force.

There is a feeling, despite what the Minister has said, that if the police can pass on the costs to airport operators, they will simply gold-plate their provision. That appears to be starting to happen already and we ought to face up to the issue. The Special Branch, the UK Border Agency and customs are funded centrally, so to that extent airport operators are already paying for airport security. Some of the smaller airport operators are querying exactly why a permanent police presence is necessary since the Special Branch and the UK Border Agency are available, and the police could be called as and when necessary, as is the norm outside the airport.

This is an important issue for smaller airports. Times are already difficult and additional costs for smaller airports will simply make it harder for them to compete with the larger ones. In reality, they cannot pass the costs on since airport operators have existing contracts in place with airport users that do not provide for such costs to be paid, because the airport operator currently does not have to pay the costs of policing directly. If there is to be a police presence at an airport from the local force—it is a monopoly supplier and the Government have again said no to tendering—then every other company on the airport site will benefit from the police presence, but the contracts with them cannot be renegotiated unless those other companies on the airport voluntarily agree to do so. My amendment would not compel other companies to renegotiate with airport operators, of course, but they would strengthen the stance of operators in seeking to get agreement on renegotiation if they wanted to go down that road, and also in seeking to recoup such costs when it comes to the renewal of the contracts or the negotiation of new contracts.

I hope that my noble friend will feel able to accept my amendment. The changes this Bill makes to paying for airport policing have serious implications for the viability of our smaller, non-designated airports. There needs to be a clear acknowledgement in the wording of the Bill that these additional costs can be shared by all airport users and not be left to be borne by the airport operator. More than soothing words claiming that everything will be all right on the night are needed in response. I hope that the Minister can address the concerns I have raised in a meaningful way. I beg to move.

I support the noble Lord, Lord Rosser, because he has approached the issue from the other end. Many airports cannot stand these charges— Ryanair has just given notice that it is leaving Manchester—and they and the people who use them operate on very narrow margins; there is not a thick crust that people can take a slice of without killing the business. I urge the Minister, in spite of his words to me, to take this matter away, give it a radical review and try to bring out something more sensible.

My Lords, we agree with the sentiments that have just been expressed. There are four amendments standing in my name in this group. Amendments 152APA and 152BEA would allow the airport operator to share the policing costs with airport users, including aircraft operators and anyone who carries out business in the aerodrome. Some airports will have very few such people and I am as concerned as other noble Lords about the ability of smaller airports, which will now be in a different regime, to bear the costs that are likely to be imposed upon them.

My first question is: will airports be obliged to bear all the costs? Would it not be fair and right, where there are other users of the airport who benefit from the policing, to permit them to pass on some of those costs? Obviously that would have to be done in a regulated manner. The second question is: are the charges necessary and reasonable and how will they be controlled? We are in a situation where the regime which is about to be put in place does not provide internal control mechanisms of the kind we ought to have and in which we could have confidence. The airport operators who have made representations are concerned that, despite the existence of the risk advisory group and the security executive group, in practice the level of policing is likely to be dictated by the relevant chief officer of police. The Minister has given assurances, to which I attach great importance, that that will not in practice be the case and that this will be a truly regulated system.

One of the important things the police should do in putting together their charges is to provide to the operators—and, indeed, publicly—a detailed breakdown of the resources and the costs to them of the agreement that is going to be put in place, which will have been drafted in response to the airport security plan. If there was such a breakdown, it would serve the purposes of transparency—people could see what the costs were—and enable a standardisation of costs to take place. Then it would be possible to compare what one police force in one airport was charging as compared with another police force in another airport. Although there would be diversity in the security conditions of those airports, it would enable some judgment to be made about the reasonableness and necessity of the costs, and help to create a climate in which policing costs were kept down and the police had an incentive so to do. It will be helpful to hear from the Minister what he thinks of that suggestion as a basis for moving forward. The mood of the Committee is that it is not an entirely satisfactory situation at the moment for providing a framework in which the costs of policing for the security of airports are transparent and reasonable.

My Lords, the three noble Lords who have spoken on this group have made some strong points, but what is missing from the debate is an independent balance between security, the economic case and safety. Of course, safety and security are paramount but no one in the appeal mechanism—which ends up with the Secretary of State—represents the economic side; only the security side is represented. I am not expecting my noble friend to answer now—it is a wacky idea I had when I was listening to the other contributions—but I wonder whether the CAA has a role to play in this. It is independent and has an economic regulation role—it happens in other industries—and it could well, in addition to the ideas put forward by my noble friend Lord Rosser, which I fully support, give comfort to the operators if someone was looking at the independent economic regulation along with other matters. I look forward to my noble friend’s response.

My Lords, I hope when my noble friend responds to this short debate that he will give a categorical assurance that he will not allow the security of airline passengers and those working at airports to be compromised because of what the airport operators say is their financial situation. I trust that we will be given an assurance that, as my noble friend Lord Berkeley said, security and safety will remain paramount.

My Lords, it would be a little churlish of me not to start by thanking my noble friend Lord Harris of Haringey for his extremely helpful and supportive comment at the end of the debate. I congratulate my noble friend Lord Rosser on the eloquence with which he moved Amendment 152AP, and other noble Lords who contributed to the debate.

That amendment and the other amendments collectively seek to enable airport operators to recover the costs of agreed policing services and ensure that others contribute to them. We recognise that the exceptional economic circumstances affecting the global economy have an impact on everyone. However, we also have a system of funding airport policing that is both unfair and out of date. The designation of only nine airports so that they alone pay for their dedicated policing costs is a system that needs to change, and both the industry and the police agree with us. Frankly, it is not right that the taxpayer should fund airport policing costs when the airport operator, as the owner of the property on which a business is run for profit, benefits from the policing services provided there.

The amendments would enable airport operators to recover policing costs from other parties—some airports consider that this would allow them to revisit their existing contracts—but it is an entirely commercial decision for the airport operator as to whether and how they wish to pass the costs of airport policing through to their users. Ministers have carefully considered whether the Government should intervene in commercial relations between airport operators and their customers and have not seen sufficient evidence that such a measure in the Bill is necessary. Indeed, some of these amendments restrict the relevant parties who can reimburse the airport operator to those who operate commercial enterprises at the airport, and exclude other relevant persons with statutory functions at the airport. That, in itself, is recognition of the fact that this is a commercial matter.

This is not a decision that the Government have taken lightly. We have satisfied ourselves that airport operators are able to recover their costs as they renegotiate contracts, as they would do for any other operating costs. We appreciate that this is not always straightforward. Airport operators have known that these changes have been coming for three years, though, and the requirement to pay for dedicated policing will not arise until 2011 for the non-designated airports, so there is time for them to make arrangements.

The amendments would also result in confusion over the distinct purpose and functions of airport security plans and police services agreements. The airport security plan may include details of any payments to be made by one relevant person to another, to allow the wider range of security partners to contribute to the cost of a security measure or project from which they benefit. However, this clause deliberately exempts detail about payments to be made by the airport to the police from the plan. This is because these payments should be specified in a police services agreement, as provided for in Schedule 6. The signatories to the agreement will be only the airport operator, the police and the police authority. It would not be appropriate to have an agreement that covered payments to be made by organisations that were not party to that agreement. It would also result in duplication if details for policing services were included in both the plan and the police services agreement. Extensive details about levels of policing services and corresponding airport payments are for the police services agreement, not the airport security plan.

The amendments would also allow payments to be made by relevant persons—including those with statutory functions, not just commercial organisations at the airport—directly to the police authority. There is a risk that the commercial organisations would be required not only to make payments to reimburse the airport operator but to make payments to the police authority. It would be ill advised to create an extraordinarily complex process that presupposed that the benefit of dedicated policing could somehow be identified and divided between the parties.

It is a legitimate part of running an airport that there will be associated costs. It remains a commercial decision for airport operators, as it is now for the nine designated airports, how they recover those costs. In turn, it remains open to airlines and others to decide whether and how they recover costs from their users. This is a fair and well established basis for conducting such arrangements. The economic situation is clearly affecting the industry, but it is time to move away from designation towards a fairer system for all in the industry.

Amendment 152AUA, in the name of the noble Lord, Lord Bradshaw, would allow the cost of policing to be raised as a matter of dispute before dedicated policing had even been agreed to be necessary. I can offer reassurance that there is a more appropriate provision in Schedule 6 to raise the cost of policing as a matter of dispute, once the requirement to draw up a police services agreement has been established.

Amendments 152AR and 152BF, in the name of the noble Baroness, seek to ensure that greater transparency is introduced into relations between airport operators and police forces by requiring a breakdown of those costs that make up the elements of a police services agreement. The detail provided to airport operators in the past has not always been adequate. Like the noble Baroness, the Government want to ensure that airport operators are clear about what police services they are being charged for. That is exactly what the provisions as drafted already provide for. We have been working with national police representatives, as well as industry, to develop guidance that sets out a clear expectation that costs should be fully explained in billing information. The Bill requires that, when producing police services agreements, our security partners must pay due regard to this guidance.

The Bill itself already ensures that a police services agreement must contain a description of the level of policing to be provided and a description of any corresponding payments. However, if an airport operator is unhappy about the level of cost breakdown detail that the police propose to provide when agreeing a police services agreement, it is open to the operator to require more information from the police, as it would with any other commercial transaction. If that detail is not forthcoming, the operator may ultimately take the issue to dispute. As part of any determination, the Secretary of State would require clarity on precisely what policing services the airport operator had a right to expect in exchange for the payments made.

More than one noble Lord has suggested that the proposals would affect the financial viability of airports—indeed, that we run the risk of putting airlines out of business. The Government do not take that view because the costs of policing at airports generally represent a relatively small fraction of overall operating costs. The evidence provided by the industry suggests an impact of only around 8 per cent, and businesses are free to decide to pass these costs on to customers—through airport charges, for example—if they wish to do so.

Airports operate in a competitive market. The current system of designation places some at unfair disadvantage, and that must be addressed. That is the reason behind this section of the Bill.

My noble friend Lord Harris of Haringey sought an assurance about security remaining paramount; we are, of course, able to give that unreservedly.

My Lords, having listened to that reply, I do not think that the Government are looking at this issue at all from the point of view of the consumer of the policing services for which they are now going to have to pay, probably handsomely—that is, the smaller airports. No one would argue about the importance of safety but, frankly, it should not be used to do more than is necessary. As I said in my contribution, there is evidence that the police are already expanding their role with the number of personnel at some of the smaller airports, no doubt taking into account the change that will come with the Bill and the transfer of the costs of policing.

The objective may be a fairer system for policing but I doubt that the Bill achieves that. The airport operator is being left to bear the brunt without even an acknowledgement in the Bill, which is what my amendment was seeking, that it could seek to pass costs on. I will reflect on what the Minister has said and read the various contributions in Hansard. In the mean time, I beg leave to withdraw Amendment 152AP.

We on these Benches support the points that the noble Lord has been making. I do not think that anyone in this House disputes that we need a new system—that we need to revise the old system of a minority of airports being designated. There is no difference between us there. Nor is there any difference on the question of the importance of security. That is not inconsistent with trying to devise a regime that ensures that the costs that come with it are necessary and reasonable.

I am reassured by what the Minister says about the work that is being done about the police services agreements, and I hope that those agreements will lead to a situation in which serious internal work is done to ensure that, when the different agreements are forthcoming, they are looked at and compared, and apparent discrepancies are properly examined and ironed out. No one in this House will want to see the new regime coming into being characterised by a series of disputes between operators and the police about the costs that they are having to bear. It would be unfortunate if the transition from one regime to another were not smooth. The issue of the level and fairness of costs is important. On the basis of what the Minister said, I am happy not to press the amendments standing in my name.

Amendment 152AP withdrawn.

Amendment 152APA not moved.

Amendment 152AQ had been withdrawn from the Marshalled List.

Amendments 152AR to 152AUA not moved.

Amendment 152AV

Moved by

152AV: Clause 77, page 102, line 25, leave out “Secretary of State” and insert “Home Secretary”

My Lords, I shall speak also to Amendments 152AW and 152AZ. I begin by repeating the declaration that I made at Second Reading, of being a vice-president of the Association of Police Authorities and a member of the Metropolitan Police Authority. In that latter capacity, I have been involved in the oversight of the discussions about policing with Heathrow Airport as well as with the non-designated London City Airport, which have been protracted and so far unsatisfactory in their outcome.

The amendments deal essentially with two issues; first, to establish which Secretary of State will arbitrate disputes about airport security plans. I acknowledge at once that it is of course the convention that Secretaries of State are indivisible and that the Government are absolutely seamless and work wonderfully together, but the purpose of the amendment is to clarify who will have the lead on these matters. I also want to establish what time limits should apply to settling arbitration disputes.

The first issue is who will arbitrate in practice. This section of the Bill comprises amendments to the Aviation Security Act 1982, which is obviously a Department for Transport Act, and would imply that the Secretary of State for Transport is the relevant Secretary of State. However, the Bill is also a Home Office Bill, dealing with matters of security and policing at airports, which would imply that the Home Secretary is intended. This is made worse by Schedule 6, which deals specifically with policing plans at airports. It contains similar provisions about arbitrating disputes where policing plans are not agreed. Again, the same doubts apply in relation to which Secretary of State is intended to be the arbiter.

Aside from these technical points, there may be a difference in the way in which the two Secretaries of State might view disputes. The Home Secretary, being familiar with national security threats, might place more emphasis on that side of the equation, whereas the Department for Transport, being more familiar with the concerns of airport operators, might place more emphasis on commercial considerations, which is precisely the issue that we have been discussing in the past couple of groups of amendments.

This has raised some concern that profitability might be put before security—I note the assurance that my noble friend has already given on that point. When it comes to arbitrating disagreements about airport security plans and airport policing plans, I trust that what we will see is the very closest working together between the two government departments. It is in no one’s interest to drive airports into bankruptcy, but it is particularly important to ensure that security is not compromised or suffers in difficult financial times. That means that there should be clarity about what airport operators are paying for, and that should relate to those national security matters.

I hope that my noble friend will offer some reassurance that the statutory guidance to be issued following Royal Assent will include clear mention of the Secretary of State for Home Affairs being involved. I would also hope for my noble friend’s confirmation that such reassurance will be within the guidance issued, that, if the Secretary of State for Transport has the lead, they should be obliged to act in accordance with it in all applicable cases, and that the paramount importance of security in such cases will be uppermost in their mind.

The second issue in this group of amendments is whether time limits should apply in relation to determining arbitration decisions. We heard much in the Committee’s debates on earlier groupings about who has an incentive to put costs up and who has an incentive to reduce them. Equally, there is an incentive for some to allow these decisions to spin out for as long as possible. If you are currently not paying something, then not doing so until 2011, 2012, 2013 or 2014 seems much better than having to pay it now. So the issue of time limits is critical. The concern here is that a decision could, as the Bill’s wording stands, be allowed to drift indefinitely. That would mean that police authorities and forces could effectively be out of pocket for some months or even years before being reimbursed for delivery of policing services. Although this would be alleviated by interim payments where agreements already exist, it could prove problematic where they do not. In difficult economic times, this might in extreme situations threaten the policing presence at airports, if money cannot be found elsewhere in the police budget to tide them over until agreement is reached.

Perhaps more serious, because it is probably more likely, is a situation where the dispute is about who should contribute which services to the security plan. This could lead to prolonged uncertainty and incomplete security cover in some respects. It is clear that a prolonged arbitration process in these circumstances would add to an already significant risk. Any absence of clarity in these matters could lead to confusion and potentially very serious consequences. It also makes forward planning and budgeting resources almost impossible if a dispute continues indefinitely.

I appreciate the difficulty in setting a single timescale for all possible disputes and I am not sure that three months is necessarily the right length of time—I am willing to be persuaded that it might be, let us say, four months as opposed to three—but I have included it for the sake of debate. I should be interested in my noble friend’s views on what would be an acceptable length of time and how decision-making within a sensible time limit can be guaranteed. I beg to move.

Amendment 152AX is probing. It seeks to clarify the meaning and practical effect of the powers of the Secretary of State in relation to disputes. If the Secretary of State decides not to exercise his power, or exercises that power but the dispute is not resolved, the amendment would allow him to determine the dispute; in other words, if the consultation mechanism does not work properly between the parties, the Secretary of State may step in and take a decision. Under what circumstances is it envisaged that the Secretary of State would not exercise his power to require relevant persons to take steps to resolve a dispute? Can the Minister assure the Committee that it does not affect the obligation of the Secretary of State—a point which arises later in the Bill—to consult those who have an interest in the dispute? In what circumstances would the Secretary of State simply decide that he was going to decide, rather than trying to resolve a dispute with the parties?

The noble Lord, Lord Harris of Haringey, made reference to security as if it were some curtain to be drawn so that nobody could probe the situation once security was mentioned. One has to be very careful: there are plenty of people who will raise various obstacles to the proper appraisal of things that are put forward. Security can be one; safety can be one; and we all know how many of these things can be exaggerated.

My Lords, Amendments 152AV, 152AW, 152AX and 152BG seek to ensure that disputes about airport security plans and police services agreements are referred specifically to the Home Secretary for resolution.

Given the legislative convention, to which my noble friend Lord Harris in anger referred, of referring to a Secretary of State generically rather than specifically, I assume the amendments seek reassurance that disputes will be referred to the most appropriate Secretary of State, who will make a fair and proportionate determination. This indeed is how we want the dispute mechanism to work.

The provisions amend the Aviation Security Act 1982. Disputes are likely to cover a whole range of matters, of which policing is only one element. All airports within the national aviation security programme will be subject to these provisions, but not all will have a dedicated policing presence. As the regulator for airport security, the Secretary of State for Transport has contact with the full range of security stakeholders operating at the airport, including the police. The Secretary of State for Transport’s remit for aviation security extends to the United Kingdom as a whole, mirroring the application of these provisions. The Home Secretary’s remit for general policing does not extend to Scotland or Northern Ireland. Given these factors, we believe the Secretary of State with responsibility for aviation security as a whole is the most appropriate person to refer disputes to, rather than a Secretary of State who has a more narrow focus in this context.

However, it is important to clarify—I am happy to answer the noble Baroness’s point—that the Home Secretary may well have significant interests in security at the airport, particularly with regards to policing or the functions, for example, of the UK Border Agency. When this is the case, we fully expect that the Home Secretary would be consulted. The dispute resolution provisions already enable this by providing broad powers for the Secretary of State to decide procedures based on the nature and complexity of the matter. Similarly, if it were ever the case that the dispute was to be determined by the Home Secretary, we would expect the Secretary of State responsible for aviation security to be consulted, when appropriate. We have considered this dispute process in consultation with others, and both the Association of Chief Police Officers and industry support the approach taken in the Bill. I hope this provides the Committee with some reassurance.

Amendment 152AX would require disputes about the content of a police services agreement or the costs of policing to be referred to the Home Secretary before the requirement to produce a police services agreement had been established. Clause 77 prescribes the requirement for an airport security plan, containing a holistic range of security measures. If dedicated policing services are identified in an airport security plan, only then is there a requirement to draw up a police services agreement as set out in Schedule 6. The amendment pre-empts disputes over policing and police services agreements in a clause which is essentially about the preceding stages of the security planning process.

Amendments 152AZ and 152BA raise the importance of ensuring that disputes, whether about the contents of an airport security plan or a police services agreement, do not drag on unnecessarily. We agree that there is very little to be gained from allowing such a situation to develop. Disputes need to be handled in a timely and effective manner. What we would question, however, is the inclusion of a mandatory cut-off period for the handling of disputes, which are likely to vary considerably in length, depending on the nature of the issue itself and the complexity of operations at the airport concerned. On the one hand, it may be that a determination need only resolve a dispute about a single security measure. At the other end of the scale, although it is unlikely, a determination could, require a full consideration of final policing levels at an airport, needing a complete reassessment of the airport security plan and police services agreement. This process could also involve, for example, an inspection carried out by an external party, such as Her Majesty's Inspectorate of Constabulary. At one end of the scale, three months might actually represent too long a period to determine a dispute, while, at the other, it could well be insufficient.

It is precisely because of the fact that disputes are likely to be very different that the Bill provides the Secretary of State with broad powers to determine a dispute in a manner he considers to be most suitable. Although the Secretary of State's primary concern will be to ensure that an effective and fair determination is provided, the importance of ensuring that a determination is provided within a reasonable timeframe is also something of which he may be mindful. The Secretary of State may be able to provide an indicative timetable to parties at the start of a dispute once an assessment of the complexity of the dispute is made, to provide the parties with some level of certainty so as to assist budgetary considerations, for example. However, I caution that this will be dependent on the individual facts of each dispute.

It is worth noting that, when parties have been unable to agree a police services agreement and may be in breach of a requirement to have one in place, the airport operator will still be required to make payments in respect of the interim policing services being provided at the airport. The Secretary of State's determination, once made, can require repayment to the airport operator by the police if that is judged to be fair in light of payments made to the police during this interim period. Thus the Bill ensures that there is no financial incentive for an operator to seek to prolong disputes indefinitely.

In light of the assurances I have offered I hope that my noble friend will feel able to withdraw his amendment.

My Lords, I am grateful to my noble friend for those responses. I was less clear at the end of the first part of his response than I was at the beginning as to how exactly he envisaged the arrangements working between the various Secretaries of State. What I hope is that, in whatever guidance emerges, there can be clarity about the important nature of security within all this. I would not want to see a position in which commercial issues overrode the situation. However, I understand what the noble Lord, Lord Bradshaw, and others highlighted about the importance of clarity on what security means and enabling that to be assessed independently by those able to take a step back from it. That is what I envisage the Secretary of State’s role will be. I am grateful that we may be able to look at these matters. Any indication that my noble friend can give before Report as to the nature of the guidance to be issued would be extremely welcome.

As for time limits, I understand that there will be different sorts of circumstances and welcome the fact that there will be circumstances in which an airport operator may be required to pay money from the period from which arbitration takes place. However, I was slightly confused by the language that my noble friend used. He said that the Secretary of State may consider whether the time limit would be reasonable. I may have misheard what he said, but the implication was that it would be up to the Secretary of State to decide whether to operate within a reasonable timescale. I am sure that that is not what he intended, but could there be clarity in the guidance to make it explicit that the Secretary of State is required to act in a timely manner and that, potentially, if it were felt that he was operating too slowly, it would be a matter subject to judicial review. On the basis that that is what my noble friend meant, I beg leave to withdraw the amendment.

Amendment 152AV withdrawn.

Amendments 152AW and 152AX not moved.

House resumed. Committee to begin again not before 8.36 pm.