Air Passengers (Us Immigration Requirements)

– in the House of Commons at 6:57 pm on 25th May 2004.

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Motion made, and Question proposed, That this House do now adjourn.—[Margaret Moran.]

Photo of Gwyneth Dunwoody Gwyneth Dunwoody Labour, Crewe and Nantwich 7:12 pm, 25th May 2004

It is modish in this day and age to speak frequently of rights, which are bandied about in the Chamber of the House of Commons with a felicity and occasional fluency that must be defended. It is not new for the Chamber of the House of Commons to re-echo the call for extra rights to be granted to whichever group feels itself to be disadvantaged, and more frequently than ever before, rights are defined in exceedingly narrow and sometimes strangely unimaginative ways. It is therefore even more frightening when we appear almost without thought to abandon some of those rights—the right to privacy and the right to defend our interests—without so much as a backward glance.

I rise tonight to raise an extraordinarily important question concerning a basic right, which we are in danger of treating with astonishing levity, as though it were not important. I refer to the right of one country, in pursuit of its own legitimate interests, to access detailed and important information about the lives of passengers from another country without so much as discussing the basis of that decision. I have been waiting for some months for the question of what is happening in our relationship with the United States as regards the exchange of information to be raised in this House.

Let me begin by saying that no one can seriously underestimate the enormous trauma of what happened in New York and the great shock and agony that it inflicted on the American people. However, the reality is that we, too, have faced some appalling traumas in the past, and have had to strike a balance between the liberties and rights of a democratic people and the need to defend ourselves and our society from those who seek to undermine it. In relation to what is happening in America, somewhere along the line we have got things rather disastrously wrong. I want to ask the Government a series of questions that are in need of an urgent answer.

Since September 11, travellers have accepted that a few more checks and questions are the price that they have to pay for safety. However, Michael Kerr of The Daily Telegraph questions whether that security is turning into surveillance. He points out that when one books to go to America on an airline these days, one is required by new laws introduced in the United States to give border control agencies access to passenger data. He says:

"Among that information is your passenger name record, or PNR, which includes . . . the date and time of your flights, the flight numbers, the destination and any stopovers. Depending on how you booked . . . the PNR . . . can also include your date of birth, address, credit card numbers, emergency contacts and frequent-flier details."

It can also include information about one's state of health and, indirectly, one's religion, which can be mentioned in relation to choice of menu.

Airlines have been notified that from the end of this year they will be expected, either before take-off or immediately afterwards, to provide information about the passenger that includes not only the items I listed, but foreign registration numbers, if applicable; country of residence; address in the United States during the stay; contact telephone number; and, more importantly, any other data deemed necessary to identify the person travelling.

Frankly, we in this House would be extremely leery of accepting legislation that was framed in those terms. What is more, what undertakings have we received from the United States Government about the use to which that enormous amount of information is to be put? For how long is it to be held? How many agencies are to have access to it? I would not gladly hand over my credit card details to any agency in this country without questioning the checks and balances to which it was subject. Why, then, am I required to do so to a foreign Government without a squeak from the United Kingdom Government?

Much of that information is supposed to be safeguarded by data protection law, which means that having been collected for one purpose, it may not be used for another without the subject's approval. Yet it is clear from the statement that I have from the Association of British Travel Agents that in relation to much of the information that is handed over, we have very little idea of what is included and to what use it is to be put. When United Airlines was asked by The Daily Telegraph whether it provided US Customs with passenger data, it said:

"In line with all carriers, we provide whatever information is required. We abide by the rules that govern the aviation industry."

Correction. It abides by the rules that have been unilaterally imposed by one Government, who, although acting in the genuine interests of security, make no attempt to discuss with any of the people concerned the nature of their rights or protection.

The deputy commissioner of US Bureau of Customs and Border Protection said that since 1995, more than 200 airlines, including EU carriers, had "voluntarily provided . . . data" to his agency. Was that made clear? Did the British Government know that? What attempt did they make to discuss with the American Government whether that was the right way in which to treat citizens of another country other than in circumstances of immediate and absolutely urgent needs?

Cedric Laurant of the Washington-based Electronic Privacy Information Centre said that seeking such information was part of a much bigger intelligence-gathering operation that would entail "data mining" and profiling all passengers. Furthermore, there was nothing to prevent such data from being fed

"into a huge . . . database for purposes . . . unrelated to the combat of terrorism or the protection of airline security".

It is perfectly possible, as in the case of some other countries, that routine income tax investigations could be included in the data made available to the Americans. That could also apply to individuals, who had been suspected of, for example, paedophilia, on the basis of repeated travel to countries that have a flourishing sex trade.I am indebted to The Daily Telegraph for a quote from Benjamin Franklin:

"They that give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

We ought to take that message to heart.

When we examine statistics and the number of people who travel backwards and forwards, we begin to understand that we who have always been an island nation are happy and ready to cross the seas and visit not only for business purposes but for holidays. However, many British visitors will find themselves faced willy-nilly with many extraordinary extra barriers.

People in my constituency who want to take their holidays in America will find that they must come to London to apply for a visa—a journey that not only costs them a great deal of extra money but entails displacement for them and their families. If they want access to visa information, they will discover that the American embassy visa information lines in London charge £1.30 and 60p a minute. They will not find it easy to get rapid responses.

In a series of articles, The Daily Telegraph raised individual cases of people who had faced considerable hostility and inconvenience. In one case, an individual was apparently shackled. When I took the Select Committee on Transport across America a few months ago, I was struck by the fact that members of that Committee, who had been identified as Members of Parliament and carried information to which we had made privy the United States Government were asked to step out of the line for special searching every time we changed planes. I got quite good at removing various items of my clothing. Luckily, they happened mostly to be boots, but they could have been almost anything.

Without being in the least offensive, I must say that the searching was carried out extraordinarily ineptly by people who had not been properly trained and obviously did not know what they were searching for, but who were happy to seek out those of non-American origin. Indeed, I heard that a seven-year-old boy who had the misfortune to be the right number in the line of people was called out and subjected to a full body search, despite his father's protestations that that was not the way in which to proceed.

So I say to the American Government that we have to quite honest about this. There has been an enormous growth in traffic between the United States and Britain. Indeed, many thousands of Americans come into this country every day. Lord forbid that we should start to play silly persons and seek tit-for-tat arrangements, but we have to ask ourselves whether it is really in the interest of the British public that they should be treated automatically as though they are all felons seeking to enter the United States to pursue some nefarious activity! The director general of the International Air Transport Association, speaking at the annual aviation security—AVSEC—meeting, said:

"Security is an issue that goes far beyond aviation. It is a government responsibility, just like war and peace, and the costs must be assumed by society at large, not just by one industry."

We are talking about very large numbers of people. Tourists go across the Atlantic all the time to take part in the many brilliant activities that the United States offers to its visitors. But those people also have a few basic human rights, and it is about time we asked a few questions. If the only way for the aviation industry to proceed is by producing a great deal of security data, let the two nations agree a basic set of systems with which both of us have to comply. Let us not simply accept that the data on non-US citizens retained by the United States Government can be held for up to 50 years. Let us make it clear that the sheer volume of data being required by the Americans will not only slow up all the traffic in British airports but make it increasingly difficult for people to run commercial flights effectively and sensibly.

Why should there be constant discrimination against non-US citizens without the agreement of the passengers that their data may be retained in a responsible manner by agencies that are subject to proper controls? We hear a great deal about American legislation, but where is the evidence that the agencies concerned think that individual privacy is important enough? That legislation includes the Enhanced Border Security and Visa Entry Reform Act of 2002, which obliges airlines arriving in and departing from the US to transmit certain personal data. It has been used in such a way that British planes have—unreasonably, in my view—been detained for many hours while the various agencies decided among themselves which was going to do what with which bit of information. Airlines that fail to comply with that legislation could be subject to a host of penalties, including fines or the loss of their landing rights in the United States. These are draconian penalties, yet where is the evidence that the British Government have said, "Hang on a minute. There's a limit to the way in which you can treat British citizens unless you want us to enter into similar arrangements at Heathrow and other major UK airports."?

What is going to happen? Will there be any way of knowing what is being done by the various American agencies that are garnering all this information? Heaven forfend that we should suggest that computers are not the be all and end all so far as machinery is concerned, but it has been known for them to record information that is not 100 per cent. accurate. Indeed, it has been known for citizens dealing with Government agencies in this country to find it difficult to get information held on them corrected. How much worse will it be with a foreign Government that appears to have lost all sense of proportion?

One suggestion is that if the Americans continue to demand a raft of information as extensive as is expected, we could have five-hour check-ins. What is the sense of that? I know that people who are under pressure have a tendency to lose all sense of proportion. In a democracy, those of us who are at risk must make the necessary assessment and decide whether our jobs require us to take some kind of risk. We must then put that into proper proportion and deal with it accordingly. The lesson that we in the House should learn is that we have certain duties to fulfil, and certain responsibilities to the general public.

We should not stand idly by and allow the constant intrusion that I have described without asking why it is happening, how long it will go on and whether it can be justified. If it is not justified, let us ask for some change in the situation, or let us point out that we can all play undignified games. There is no evidence that what is asked for in any way improves the security or the protection of the US citizen.

It is not easy to say these things and it makes one unpopular, because in these days it is almost a religion to believe that in our support for the Americans we should accept almost unquestioningly the things they do that under other circumstances we would not find acceptable. The House allows these changes to take place at its peril. What is happening is unacceptable. The travel industry is expected to add considerable delays. It is reported that in Miami passengers frequently queue for one and a half to two hours. From 26 October passengers must have individual machine-readable passports, and new passports must be biometric, even though, as far as I can see, they are not being issued by the states concerned and we will not be capable of doing that for some time.

We should resist any attempt to insist that the home addresses and telephone numbers of all passengers should be given 72 hours in advance of departure. Let us work out what we are doing. Are we suggesting that passengers travelling to the US in increasing numbers every year, who want to enjoy the civilisation, the intelligence and the stimulus of American society, are little better than felons and are not entitled to have their interests protected?

I have always admired the Americans and enjoyed my contacts with them. I work closely with the American Department of Transportation. I have been honoured by a visit from the Secretary of Transportation and I have been very impressed with the work that that Department does. But there comes a moment when it might be sensible to say, "Enough!" A very large, powerful and politically important state has a special responsibility to others not to use its muscle unreasonably to impose a set of conditions on those who are in no position to hit back—because that is what is happening.

America, for whatever reason, seems to have lost its sense of balance. Perhaps occasionally, we should say to it, "Democratic states do take risks." Those who are focused on destruction, who are intolerant, who are savagely uninterested in the important institutions of a democratic state will always have an advantage over those of us who believe there should be free access for people and institutions. That is why we have a House of Commons, and why we defend the rights of the people of the United Kingdom. That is why, this year, I shall not be taking a holiday in the United States of America.

There comes a time when small nations must say to large nations, "Co-operation and friendship are one thing. Subservience and intolerance are something else." Unless the Minister can assure me that the Government are pointing out in no uncertain terms to the United States Government that their behaviour has overstepped the bounds of reasonableness and is no longer accepted in a tolerant and balanced relationship, the House must individually and collectively pursue the rights of United Kingdom citizens to travel in a sensible but protected way, without the imposition of other people's suspicions when there is no defence and no interest.

Photo of Tony McNulty Tony McNulty Parliamentary Under-Secretary, Department for Transport 7:35 pm, 25th May 2004

I congratulate my hon. Friend on securing this timely and important debate.

I simply cannot accept the phrases bandied around at the start of my hon. Friend's speech—that all this has been done almost without thought, with astonishing levity and without so much as a discussion or a squeak being raised. Much of the current position has been the result of a good deal of discussion and negotiation between the European Union and the USA. She will understand, too, that while I have responsibility for civil aviation in the UK, the provision of personal data to third parties is regulated in Europe by the data protection directive, which is implemented in the UK by the Data Protection Act 1998. Policy on that matter is the responsibility of my right hon. and learned Friend the Lord Chancellor. If there are matters that she feels that I have not covered, and that need to be pursued in that direction, I am therefore more than happy to follow them up.

As my hon. Friend said, following the terrorist attacks on the US in September 2001, the US passed legislation that required airlines flying to or from its territory to provide the US Bureau of Customs and Border Protection, which is now part of the Department of Homeland Security, with information about the passengers whom they carry. This information is contained in the airline's reservations and departures database and is known as the passenger name record or PNR. Each passenger has their own PNR.

The amount of PNR data collected about passengers varies from airline to airline but it can be up to 60 individual pieces of data. The data generally include the passenger's name and address and data such as method of payment, details of special requirements and details of the passenger's travel history—all the data used by the airline to provide a full service to the passenger.

Following the 2001 terrorist attacks, the US authorities require airlines to provide these data to help them screen people planning to enter their country. The data are required for the purpose of combating terrorism and other serious international organised crime. PNR data enable the US authorities to identify and focus their resources on possible high-risk individuals and so facilitate and safeguard the passage of the bona fide traveller.

Most of the data elements contained in PNR could in fact be obtained from passengers on arrival by examining travel documents and conducting interviews. Clearly, that would result in significant delays for passengers at US airports. In one real sense, it is for the US Administration to justify their legislation. The simple fact, however, is that the legislation is in place, and any airline wishing to operate to the US must abide by its national law—as it would operating in any other country—or risk facing sanctions. Those sanctions include stiff fines or could even result in the withdrawal of operating permits.

My hon. Friend will appreciate that EU airlines were left in an impossible position following the introduction by the US of the PNR requirement. They were caught between a rock and a hard place—they faced US sanctions for non-compliance, or litigation in Europe under the data protection directive if they did provide the data.

Rightly, my hon. Friend is particularly concerned about UK citizens travelling on British planes, but both are subject to the national laws of the country to which they travel. The absolute right of the US to determine within its own jurisdiction the measures that it believes that it needs to take to protect its borders and the people who live on its territory, including many people from the UK and other EU member states, cannot be questioned.

The European Commission and US customs negotiated for much of 2003 to find ways of reconciling the US's legitimate need to collect such data to fight terrorism with the EU's equally legitimate concern to safeguard the information that passengers provide. My hon. Friend expressed those concerns eloquently to the House this evening. The negotiations resulted in the US authorities giving a number of undertakings about the way in which they will handle the data that they receive from EU airlines.

The Commission takes the view—and the Government agree—that those undertakings provide good safeguards for the PNR data. The Commission has now made a formal decision, under the data protection directive, that US customs provides adequate protection for the PNR data transferred from the EU, and the Council of Ministers has adopted a bilateral agreement with the US providing the necessary legal underpinning.

The US undertakings provide important data protection safeguards. For example, they set out the security arrangements that will apply to the data and restrict the number of people who may have access to it. They limit the time for which the US authorities may hold PNR data to three and a half years rather than the 50-year period that, as my hon. Friend pointed out, was originally required. They limit the amount of PNR data required to 34 specific elements; the US wanted far more. US customs has undertaken to filter out and delete the most sensitive data, such as that which might reveal racial or ethnic origin or particular opinions or beliefs. That includes the dietary requirements mentioned by my hon. Friend. Most important, the undertakings restrict the use of the data to use for the purpose for which it was originally sought by the US authorities. They also provide a complaints procedure for passengers who believe that that the data held by US customs might be wrong or might have been misused and establish a chief privacy officer in the Department of Homeland Security to expedite the handling of complaints.

My hon. Friend particularly mentioned financial details. The payment information and billing address are two of the 34 elements that the US requires, but the US authorities have undertaken to use only lawful processes, such as subpoena or court order, if they believe that they need to see transaction information linked to a particular account number.

The provisions of the agreement are acceptable to the Government. Indeed, I believe that they are essential to protect the interests of UK airlines. I need not remind my hon. Friend—she certainly reminded the House—of the importance of transatlantic traffic. Without the agreement, data transfers would be exposed to challenge at this end under the data protection directive.

We believe that the undertakings provide a pragmatic solution and that the agreement is proportionate and practical. It provides the necessary legal—

The motion having been made after Seven o'clock, and the debate having continued for half an hour, Mr. Deputy Speaker adjourned the House without Question put, pursuant to the Standing Order.

Adjourned at eighteen minutes to Eight o'clock.