Issuing and Withdrawing Passports
5. British passports may be withdrawn in a variety
of contexts, for example to prevent potential wrongdoing. Thus,
under the Football (Disorder) Act 2000, magistrates' courts may
issue "international football banning orders" which
may lead to a requirement that people subject to such orders "surrender
their passports in connection with certain association football
matches played outside the United Kingdom". Under the Serious
Crime Act 2007, the High Court of England and Wales and the Crown
Court may make "serious crime prevention orders", which
may "include prohibitions or restrictions on, or requirements
in relation to … an individual's travel (whether within the
United Kingdom, between the United Kingdom and other places or
otherwise)". Passports may also be ordered to be withdrawn
by the Crown Court as part of a sentence for drug trafficking
offences under the Criminal Justice and Police Act 2001. In all
these cases, the restrictions on having a passport are a result
of judicial determination.
6. Where the Identity and Passport Service (an
executive agency of the Home Office) takes administrative action
to withdraw a passport, this appears usually to be in support
of a court order or police investigations. On 30 July 1998, Lord
Williams of Mostyn (the then Minister of State for the Home Office)
said in a written answer:
The circumstances in which a British passport would
be withdrawn have been reported to Parliament on a number of occasions,
the last being 7 February 1995, and have not changed. Withdrawal
of a passport would be considered: (a) if it came to the Passport
Agency's attention[4] on
replacement that it had been issued incorrectly; and (b) on the
same basis as the refusal of an application. That is in the case
of: (i) a minor whose journey was known to be contrary to a court
order, to the wishes of a parent or other person or authority
in whose favour a residence or care order had been made or who
had been awarded custody; or care and control, or to the provisions
of Section 25(1) of the Children and Young Persons Act 1933 as
amended by Section 42 of the Children and Young Persons Act 1963,
or Section 56 of the Adoption Act 1976, as amended by the Children
Act 1989; (ii) a person for whose arrest a warrant had been issued
in the United Kingdom, or a person who was wanted by the United
Kingdom police on suspicion of a serious crime; (iii) in very
rare cases, a person whose past or proposed activities were so
demonstrably undesirable that the grant or continued enjoyment
of passport facilities would be contrary to the public interest;
(iv) a person repatriated from abroad at public expense until
the debt has been repaid.[5]
The Need for Judicial Control
7. The freedom to leave and return to one's country
is recognised as a fundamental right in international law, including
Article 13(2) of the Universal Declaration of Human Rights and
Article 2 of the Fourth Protocol of the European Convention on
Human Rights. Free movement of persons is also a key right within
the European Union. It is not for our Committee to consider in
detail the human rights implications of what is proposed in the
bill, nor do we express a view on whether it is constitutionally
appropriate to use travel restrictions as a sanction for non-payment
of liability in this context. We are, however, clear that it is
wrong to trivialise access to a passport as being only for the
purpose of going on holiday.
8. Furthermore, we are unconvinced that these
provisions will meet the Government's aim of avoiding a lengthy
decision-making process. The bill provides a person made subject
to an order disqualifying him from holding or obtaining travel
authorisation with 28 days to appeal against the order to a magistrates'
court. If such an appeal is made, the order is suspended until
such time as the appeal is determined. Therefore, it is not immediately
obvious to us that the scheme of the bill to have an administrative
decision followed by a right of appeal (with suspensory effect)
will meet the Government's policy goal of avoiding "an inevitably
drawn out court process" any better than a straightforward
power for CMEC to seek an order from the magistrates' court.
9. Finally, we note that the Government intends
to place the prerogative power to issue and withdraw passports
on a statutory footing as part of the Governance of Britain reforms.[6]
Pending the review of existing powers it is in our view undesirable
to extend the circumstances in which passports may be withdrawn
administratively.
10. The freedom to travel to and from one's
country is a right of great significance and should only be curtailed
after a rigorous decision process. We can therefore see no justification
for granting CMEC the right to remove a person's passport and
identity card without reference to the courts; as with the other
sanctions in this bill, CMEC should be required to obtain an order
from the magistrates' courts.
1 Public Bill Committee on the Child Maintenance and
Other Payments Bill, 11 October 2007 (Afternoon), col 346. Back
2
Ibid. Back
3
HC Deb 4 July 2007 col 1037. Back
4
Now the Identity and Passport Service. Back
5
WA 238. Back
6
Ministry of Justice, The Governance of Britain (Cm 7170),
July 2007, paragraph 50. Back
