Gordon Brown has set himself on a collision course with the legal establishment over plans to give civil servants and government agencies the power to remove people’s passports without going through the courts.
Senior legal figures, including two former attorney-generals and a lord chief justice, have expressed deep concern about preparations to adopt new powers to confiscate passports. They warn the government not to use reform of prerogative powers as an excuse to force through a “serious” curtailment of long-standing freedoms.
They have attacked proposals in the child maintenance bill, now going through Parliament, to allow civil servants to prevent errant fathers who refuse to support their children from travelling abroad.
They warn that it could set a dangerous precedent, and say in a House of Lords report: “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 . . . ”
Lord Woolf, the former lord chief justice, and former attorney-generals Lord Morris of Aberavon and Lord Lyell of Markyate criticised the move to bypass the courts in a report.
They not only say the proposal is “undesirable” but have questioned whether it is “constitutionally appropriate”.
The Lords constitution committee, of which they are members, warns that it is “undesirable to extend the circumstances in which passports may be withdrawn administratively”.
Their concerns have been supported by other senior members of the judiciary, including Lord Carlile QC, a deputy high court judge, who warned against passing court powers to civil servants.
“Revoking passports is a judicial function and not an administrative function. There are judges sitting every single day, and that is the right place to deal with this,” he said. “The right to travel is a fundamental right.”
Although football hooligans and drug dealers can be forced to forfeit their passports, the decision would follow court orders.
In other cases, such as in child protection cases and cases involving serious crime, people can be forced to surrender their passports only after a court decision or as part of a police investigation.
The Lords report, published this month, says officials at the Child Maintenance and Enforcement Commission (CMEC), the body that will replace the Child Support Agency, should go through the magistrates’ courts. “We can see no justification for granting the CMEC the right to remove a person’s passport and identity card without reference to the courts,” it says.
Lord Morris, a member of the committee, who was attorney-general under Tony Blair, said: “The general view was that there was a lurch towards controls by administrators rather than the courts and that this should be looked at extremely carefully.”
The Governance of Britain reforms, announced by Brown soon after taking office, suggest putting royal prerogative powers – in practice executive powers exercised by ministers – back under parliamentary control.
The prerogative currently includes the right of the prime minister to deploy the armed forces overseas, send ambassadors, ratify treaties, acquire territory and revoke passports.
Lord Oakeshott of Seagrove Bay, the Liberal Democrat work and pensions spokesman, said: “We can’t have civil servants taking people’s passports away. That’s the way to an Asbo state.”