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Viscount Astor moved Amendment No. 150E:
- Page 43, line 35, leave out X(which may include provision for appeal)" and insert Xwhich shall include provision for appeal"
On Question, amendment agreed to.
[Amendments Nos. 150F and 150G not moved.]
Clause 86, as amended, agreed to.
Clause 87 [Detention of aircraft]:
Viscount Astor moved Amendment No. 151:
- Page 44, line 30, leave out Xis of the opinion" and insert Xhas reasonable grounds to believe"
The noble Viscount said: Detention of an aircraft is a fairly drastic action, as it could cause considerable financial loss to the airline involved. The power to do so is clearly necessary in the light of recent events, but in view of the serious impact that its exercise can have,
the power should be used only when there are reasonable grounds to believe that there is a threat to safety. Mere opinion is not enough.Amendments Nos. 151A and 151B are also in this group. They go back to the Aviation Security Act 1982, into which the clause will add a new Section 20B. Clause 20(4) of that Act says:
- XThe powers conferred by subsection (3) above shall not include a power for an authorised person to use force for the purpose of entering an aircraft, building or works or entering upon any land".
- Xarrange for another person to enter the aircraft"
- Xauthorise the use of reasonable force by another person".
What is the Government's intention? I have no problem with giving an authorised person the power to use force, which they have not had before, but the Government have gone a long step further than that. That power must be defined or limited to a group of people who are authorised by the authorised person on a temporary basis. The idea that you could have another person enter and authorise reasonable force after that arrangement does seem to have the danger of giving considerable powers without any checks and balances.
This is largely a probing amendment and I shall listen carefully to the noble and learned Lord's response. I beg to move.
Lord Falconer of Thoroton: I am grateful to the noble Lord for providing an opportunity to explain this important provision in the Bill.
The authorised persons referred to in the clause are highly trained and competent aviation security inspectors employed by the department. The power to give a detention direction would be exercised only in extreme circumstances, for example, where, in the professional judgment of an inspector, security had been so seriously compromised or a threat had been received of a sufficiently serious nature that detention of an aircraft or a class of aircraft was the only practicable option in order to prevent a potential terrorist attack.
The first amendment, which the noble Viscount acknowledged was probing, seeks to change the Xopinion" provision to a Xreasonable grounds" provision. An opinion involves making a judgment; it allows an individual to form a view on such reasons and grounds as seem appropriate. It is an estimation. This involves situations such as those where a threat has been made but cannot be substantiated as a fact; for example, whether a bomb really is on board an aircraft at a specific airport. It may be possible to determine this only after the aircraft has been detained for a thorough search.
The need for reasonable grounds involves actual knowledge of relevant facts which provide grounds for a relevant belief established by evidence. The amendment would seem to be based on the premise that opinion gives the inspector too wide a margin of discretion and that there is no need for his decision to be reasonable. However, the aircraft operator is protected by the available appeal mechanism and by judicial review. We believe that the safeguards within the clause and in public law therefore make the amendment unnecessary.
Furthermore, Section 18 of the Aviation Security Act 1982 deals with the service of enforcement notices when an inspector is of the opinion that there has been a failure to comply with the relevant direction. The new proposed power for detention of aircraft via direction mirrors this provision. Consistency would demand that similar wording is used unless a contrary argument exists.
As to the second series of points about arranging for other people to do particular things, I am sure that the noble Viscount will agree that, having taken the difficult decision to detain an aircraft, an authorised person needs to be able to call upon any help he may need, either to satisfy himself about the security of the aircraft or to remove any unauthorised person from it. Such an authorised person, as I have said, will be a well-trained professional aviation security inspector, but he will not be trained in the detention of suspects or in the use of reasonable force. Nor is he likely to be in a position to conduct a full search of the aircraft on his own. I should also remind Members of the Committee that this may be happening at an airport where there is no permanent police presence, nor any other authorised person. It is therefore clear that an authorised person, in order to carry out his duties effectively, may well need to summon assistance. To render him unable to do so—which, in effect, is what the proposed second series of amendments in this group would do—would be indefensible.
I hope that in the light of what I have said, the noble Viscount will withdraw his first amendment and not move his subsequent amendments.
Viscount Astor: Perhaps I may deal first with the second part of the noble and learned Lord's reply. What he has said, in effect, is that an authorised person at an airport can co-opt any fellow worker, or indeed anybody he finds available at an airport, if he thinks that he needs them to come and help enter an aircraft and use reasonable force. I believe that is what the noble and learned Lord is saying. It is not a question of a particular group of people being involved; it is a general power of co-option by an authorised person. I believe that I have the matter right. I am sure that the noble and learned Lord will correct me if I do not.
This is a wide power. I apologise to the noble and learned Lord as I see in the groupings list that the intention to oppose Clause 87 is grouped with the amendment we are discussing. I ask one question on that matter which the noble and learned Lord touched on when responding to Amendment No. 151. I hope that it will be convenient for him to refer to it again
now. I refer to the matter of appeals. I could not find easily a reference to an appeals process if an aircraft is detained. The stock answer is, of course, judicial review. However, we all know how long that takes and how expensive it is.New Section 20B(5) contains a power for the Secretary of State to consider an objection. However, I cannot find reference to an appeals process should the owner or operator of an aircraft consider that the Secretary of State has for some reason detained his aircraft unnecessarily or wrongly. I should be grateful if the noble and learned Lord could tell me where I can find such a reference.
Lord McNally: Before the noble Viscount sits down, I should tell him that he has slightly worried me by his probing. I had been reassured that the Xauthorised person", when arranging for another person to enter an aircraft, or when arranging for reasonable force to be used by another person, would summon the police, the Army or someone to help. However, the noble Viscount seems to suggest that the authorised person could act like a sheriff organising a posse and could authorise almost anyone to act. The authorisation of the use of reasonable force by another person is rather worrying in its breadth of power. I hope that the Minister intends that that specialist and authorised person at the airport will call in only, as it were, equally specialised people to tackle these tasks.
Lord Falconer of Thoroton: On the first point that was raised, I refer to subsections (4) and (5) of new Section 20B, which is headed, Detention direction. Subsection (4) states:
- XThe operator of an aircraft in respect of which a detention direction is given may object to the direction in writing to the Secretary of State".
- XOn receipt of an objection to a detention direction under subsection (4) the Secretary of State shall"
Viscount Astor: I am grateful to the noble and learned Lord for those comments. I was aware of that provision. My point, which I perhaps did not make clear enough, was that should the Secretary of State not agree with the person who makes an objection, what happens then? Will the matter go straight to judicial review or can the relevant person apply to the courts either to try to overturn the Secretary of State's ruling or to force him to reconsider the matter?
Lord Falconer of Thoroton: There is no procedure beyond the detention direction by the person referred to in new Section 20B(1), then the appeal to the Secretary of State. That process can be challenged by judicial review. As far as I am aware, there is no appeal beyond the Secretary of State. I am comforted by the fact that the officials in the Box nod. As regards the
point made by the noble Viscount, Lord Astor, which was picked up by the noble Lord, Lord McNally, in theory there is no limit to the person who can be authorised by the authorised person to enter the aircraft or to be Xanother person" within the meaning of subsection (3)(e), but in practice the authorised person would be most likely to call on airport or airline security staff, who would be the most appropriate people in the circumstances.
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