Clause 18: Authority-to-carry schemes
Moved by Lord Rosser
100: Clause 18, page 11, line 26, at end insert—
“(1A) An “authority-to-carry scheme” made by the Secretary of State shall be set out in regulations.
(1B) Regulations under this section are to be made by statutory instrument, and shall be subject to annulment in pursuance of a resolution of either House of Parliament.”
My Lords, Clause 18 enables the Secretary of State to make schemes requiring a carrier to seek authority from the Secretary of State to carry persons on aircraft, ships or trains that are arriving or expected to arrive in the United Kingdom or leaving or expected to leave the UK. The purpose of the amendment is to provide for an authority-to-carry scheme made by the Secretary of State to be set out in regulations, subject to annulment in pursuance of a resolution of either House of Parliament.
The Delegated Powers and Regulatory Reform Committee considered that Clause 18 constituted,
“a significant delegation of powers to the Secretary of State, since authority-to-carry schemes will have the effect of regulating the persons who may lawfully be transported by a carrier to and from the UK”.
The Home Office has stated that authority-to-carry schemes are not subject to parliamentary scrutiny because,
“there will be provision on the face of the Bill providing guidance as to the circumstances in which a class of passenger may be specified for the purpose of the scheme”.
No doubt the Minister will indicate in his response where this guidance appears on the face of the Bill and whether the Government feel that this represents sufficient guidance on how and in what circumstances the powers should be used. The Delegated Powers and Regulatory Reform Committee said that, unless the Home Office provided more compelling evidence on why the power to make schemes should not be scrutinised by Parliament, the Bill should be amended so that the powers are exercisable by statutory instrument.
This amendment gives the Government the opportunity to say rather more about the need for these powers and why they consider that they should not be scrutinised by Parliament. There are already similar statutory provisions in existence that apply only inbound to the United Kingdom, as I understand it. Will the Minister provide some information on how these existing powers have been used, how frequently they have been deployed, in respect of how many people, what nationalities and classes or categories have been affected and from which locations they have been travelling to the United Kingdom? Will the Minister also set out the extent to which the provisions in Clause 18 are an extension of the existing arrangements—in other words, exactly what are the additions in Clause 18 to what we have already?
I am sure that the Government will be more than aware of concerns that have been expressed that the provisions in the Bill could be used to exclude passengers or crew of particular nationalities or particular classes or categories, and that if these powers are not used in a sensible and proportionate manner they could enhance the likelihood of radicalisation, particularly among nationalities or classes or categories affected, who might come to the conclusion that they were being picked on and singled out, with a resultant potential increase in feelings of alienation and a potential decrease in the desire to provide crucial co-operation.
It would be helpful if the Minister could respond to that point and the others that I have made. This probing amendment gives the Government the opportunity to place on record how and when, and in respect of whom, they intend the powers in Clause 18 to be used and why they consider them necessary, as well as the opportunity to respond to the point on parliamentary scrutiny made by the Delegated Powers and Regulatory Reform Committee. I beg to move.
My Lords, to pick up the noble Lord’s penultimate point, Clause 18 says in terms that the scheme must specify various classes in subsection (2).
I have tabled Amendments 101 and 102 in this group. The first is narrower than the amendment tabled by the noble Lord, but would require regulations to encompass the requirements of a scheme whose breach may attract the imposition of a penalty. We are told that there will be regulations imposing penalties. It seems to me that the regulations for the underlying requirement, at the very least, ought to be within the regulations before one and that it is not appropriate for there to be regulations imposing penalties if the requirements themselves are not subject to the same sort of parliamentary process.
My second amendment would provide, not in detail, a more structured procedure than is suggested by subsection (4): the opportunity to object to a proposed penalty. It suggests that a reference to an appeal would be more appropriate. If there are to be penalties there should be arrangements for challenging them and possibly even for third party or perhaps judicial determination—but whatever there is, the rather loose terminology of “object to” is inadequate.
My Lords, I apologise to the House that I was unable to speak at Second Reading. I have a couple of points on Amendments 100, 101 and the rest of the group. Under the Nationality, Immigration and Asylum Act 2002 (Authority to Carry) Regulations 2012, the Government have the powers to refuse entry to an individual. It is not clear why classes of passengers are targeted in this Bill. Will a whole group of people be covered under the new legislation? I say that because I have some experience. When I was travelling from Birmingham Airport last year, the immigration officers were stopping, under the Immigration Rules, the entire PIA flight to Islamabad—including myself. I was questioned about where I was going and whether I was carrying any money while I was going to Pakistan.
I fear that, without scrutiny by Parliament, these extra powers could be used against a group of people of a certain ethnicity. I fear that the perception of the British Pakistani community, Pakistan International Airlines and other airline carriers which occasionally carry people who could be suspected under the Terrorism Act will mean that entire families travelling on these airlines could be affected. Will the powers be used proportionately and will they be targeted? The Government already have powers to impose penalties on airlines for carrying certain passengers or to stop passengers getting on to flights. Therefore, I support the amendment and seek more clarification.
My Lords, I am grateful for the opportunity to address the points raised in relation to Part 4 of the Bill, including the amendments in the names of my noble friends and that tabled by Her Majesty’s Opposition. Perhaps I may start with the questions asked by the noble Lord, Lord Rosser.
The noble Lord asked what new power this provision has that the current legislation does not. The Bill will make provision for a new authority-to-carry scheme or schemes for passengers arriving or expected to arrive in the UK or departing or expected to depart from the UK. The current statutory arrangements apply inbound to the UK only. The Bill will also extend the operation of authority-to-carry schemes to a broader range of individuals, including British nationals, who pose a terrorist or terrorism-related threat to the UK.
The noble Lord also asked how many people will be affected by this. We do not comment on specific numbers. However, since the introduction of the security and travel bans authority-to-carry scheme 2012, we have stopped the travel of a small number of people whom we have judged may pose a terrorist or terrorism-related threat to the UK.
I take the point made by the noble Lord, Lord Ahmed, about perception and the fact that these authority-to-carry schemes have to be used sensitively. I hope that it helps that so far they have been used only in relation to a small number of people, but I take his point. I hope that my answer later will go some way to reassure him.
The noble Lords, Lord Rosser and Lord Ahmed, asked about the classes of individuals whom carriers are liable to be refused authority to carry. I will take individuals travelling to the UK under the new scheme. They include individuals who are assessed by the Secretary of State as posing a direct threat to the security of aircraft; individuals who are subject to a temporary exclusion order, which we have talked about previously in our debates on the Bill; EEA nationals and accompanying/joining third-country national family members of EEA nationals who are the subject of an exclusion or deportation order under the immigration regulations; third-country nationals who have been, or are in the process of being, excluded from the UK under the Immigration Rules; nationals who are the subject of a deportation order; nationals who have been or would be refused a visa; and individuals otherwise inadmissible to the UK, including those seeking to travel using invalid travel documents. I hope that that goes some way to show that the powers are targeted specifically and that they are not intended to cover huge swathes of people.
Amendment 100 tabled by the noble Baroness, Lady Smith, and the noble Lord, Lord Rosser, and Amendment 101 tabled by my noble friends both seek to achieve the same effect: more direct parliamentary scrutiny of an authority-to-carry scheme made under Clause 18. Amendment 100 would require a scheme to be set out in regulations and approved by Parliament subject to a negative resolution but would make the scheme and the regulations to enforce it subject to a separate and different parliamentary process. Amendment 101 would require that draft affirmative regulations, laid before Parliament to impose penalties for breaching a scheme made under Clause 18, should include the requirements of that scheme.
The approach taken in the Bill mirrors that in Section 124 of the Nationality, Immigration and Asylum Act 2002 under which the current scheme and its regulations were made in 2012. The Government’s policy intention is that any new authority-to-carry scheme, or any amendment to an existing scheme, will be laid in Parliament with draft affirmative regulations which refer to the new or amended scheme. I recognise the concern noble Lords might have that, as drafted, there is only indirect scrutiny of an authority-to-carry scheme itself. The Delegated Powers and Regulatory Reform Committee expressed a similar concern in its report, as the noble Lord, Lord Rosser, mentioned. The Government are at present considering the report of the committee and we would like to reflect on the concerns of noble Lords so that we can return to this issue at Report. On that basis, I hope that the noble Lord will feel able to withdraw Amendment 100 and that my noble friend will not press Amendment 101.
Amendment 102, tabled by my noble friends, would require that regulations imposing penalties for breaching an authority-to-carry scheme must provide for a carrier to be able to appeal a penalty. The legislation already provides that the regulations may allow for an appeal, but the amendment would leave out the provision that the regulations must provide for a carrier first to be given an opportunity to object to the penalty. The approach we are proposing in the Bill mirrors that taken in the Nationality, Immigration and Asylum Act 2002 (Authority to Carry) Regulations 2012, under which any breach of the current authority-to-carry scheme would be penalised. Where a penalty is imposed, the carrier must have the opportunity to appeal. If the penalty is reduced, remains unaltered or is increased, the carrier has the right to proceed to appeal. However, our intention is that the carrier must object before they can appeal. There is no question that a carrier that objects to a proposed penalty for breaching an authority-to-carry scheme will have the right to a judicial appeal. That will be set out in the regulations, subject to affirmative resolution. In the light of those assurances, I invite my noble friend not to press the amendment.
Royal Assent rather than at a later date by commencement order. Those powers in paragraphs 9 to 11 of Schedule 2 strengthen and enhance the ability of the Secretary of State to issue security directions to airlines flying into the UK and to create, through regulations, a related civil penalty regime for airlines that fail to comply. In doing so, this amendment brings the implementation of these powers into line with those in Part 1 of Schedule 2, covering passenger, crew and service information, which would already come into force on Royal Assent. The threat to aviation from certain terrorist groups is well documented and continues to evolve. We already work closely with foreign Governments and airlines, as well as UK operators, to make sure that the necessary security measures are in place and are being effectively implemented, but these measures will enhance our ability to do that.
I hope your Lordships will therefore agree that it is right and sensible to have these strengthened and clarified powers available at the earliest opportunity. Accordingly, I invite your Lordships to support these amendments.
I am left a little puzzled as to why there should be an opportunity to object before an appeal. I can see that that would be to the benefit of the Secretary of State—the benefit of the authority implementing the scheme—but the way in which it is worded suggests that it is intended as some sort of benefit for the carrier. My noble friend may not have the information to explain that further at this stage, but he will understand why I went down that route. The presentation of the provision fits with the explanation, but it seems as though it is for the benefit of the carrier, yet the carrier has the right to appeal. I would be glad to have that confirmed.
I may be able to help. It is right that Clause 19(4) says that procedures for imposing a penalty,
“must provide for a carrier to be given an opportunity to object”.
We are keen that the carrier should be able to object first and, if necessary, move on to an appeal later. It is in the Bill because, I am told, this is the way that it is normally provided for. It may, in particular, make provision for allowing an appeal. We prefer that they object first and then are able to appeal. As I said, I can give an assurance that the method for appealing will be in the regulations.
I thank the Minister for his response. Given that he indicated that the Government would consider the views expressed by the Delegated Powers and Regulatory Reform Committee to which I referred, I will not seek to pursue Amendment 100.
I will make one point about why I hope the Government will consider carefully what the committee said, which I am sure they will. The Minister said that the existing powers had not been used to affect large numbers of people. I think he used the expression “huge swathes of people”. That is one of the concerns that needs to be properly allayed, and it was a concern referred to by the noble Lord, Lord Ahmed. Clause 18(2)(b) says,
“the classes of passengers or crew in respect of whom authority to carry must be sought (which may be all of them or may be defined by reference to nationality, the possession of specified documents or otherwise)”.
In noting that the categories are “by reference to nationality”, that gives the prospect of the “huge swathes of people” to which the Minister has referred. It is important that in looking at this matter in the light of the Delegated Powers and Regulatory Reform Committee’s views—as the Minister has said the Government will—the Government’s response firmly nails down that the reference in Clause 18(2)(b) should not be interpreted as meaning “huge swathes of people”. I beg leave to withdraw the amendment.
Amendment 100 withdrawn.
Clause 18 agreed.
Clause 19: Penalty for breach of authority-to-carry scheme
Amendments 101 and 102 not moved.
Clause 19 agreed.
Clause 20 agreed.
Moved by Lord West of Spithead
103: After Clause 20, insert the following new Clause—
“Unmanned aerial vehicles
(1) A person commits an offence if that person without lawful authority or reasonable excuse (the proof of which shall lie with him) operates or controls an unmanned aerial vehicle, and—
(a) for the purposes of terrorism, the vehicle is fitted with—
(i) any firearm,
(ii) any explosive (whether in the form of a bomb, grenade or otherwise, and whether a manufactured or adapted device),
(iii) any article (not falling within either of the preceding paragraphs) made or adapted for use for causing injury to or incapacitating a person or for destroying; or
(b) he operates the vehicle within an area which the Secretary of State designates as restricted under this section.
(2) The Secretary of State may by regulations designate areas in which the operation of unmanned aerial vehicles may be restricted or prohibited in order to reduce the risk of terrorism-related activities within the United Kingdom.
(3) Regulations under this section shall be made by statutory instrument; and any such statutory instrument may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(4) The Secretary of State must review the operation of this section and lay a report before each House of Parliament at least annually after the section comes into force, which must include a review of the use of unmanned aerial vehicles—
(a) in connection with terrorism-related activities, and
(b) by any public body or agent in connection with countering terrorism-related activities.
(5) In this section—
“unmanned aerial vehicle” means any unmanned aerial vehicle controlled or overseen by a human operator, and
I disclose an interest as a member of the All-Party Parliamentary Group on Drones. A number of factors made me feel it was necessary to introduce the amendment. The first is that there is no definition of unmanned aerial vehicles. They are commonly known as drones although it tends to upset people in the military if you call them that. I have found it difficult to consider anything of 20 grams or less carrying a man. That is so inconceivable that I think the term “drones” can be used. There is no definition in existing primary or secondary legislation. The closest to a definition is “small, unmanned aircraft”, which is in Article 253 of the Air Navigation Order 2009.
The second thing that made me feel that we need to start moving down this route is the huge and rapid march in technology. We discussed earlier the whole issue of communications data and how quickly that is changing. The same is true in this area. In 2009, when we were setting up the whole package for Olympic security, we were worried about hang-gliders and unmanned aerial vehicles, but we were talking about quite big unmanned aerial vehicles, which were not necessarily that reliable. Now we have very small, highly reliable and very complex little aerial vehicles which you can buy for as little as £300 to £500. People with access to money—for example, terrorists—can buy lots of them. That is really quite important. Being able to get them so cheaply is apparently known as the Maplin’s factor, which I understand is some sort of store. I was not aware of that; I thought it was something to do with a seaside resort in Wales.
Thirdly, the Civil Aviation Authority has always had rather a light touch on regulation of these things, partly because in the past they were not really such an issue. It stresses that small drones,
“with an operating mass of 20 kg or less are … exempt from the majority of the regulations”,
which is quite worrying.
There is also an increased public interest and concern in the potential for misuse of small drones. That was shown very well in the Independent on Saturday, which gave a lot of examples that have also come out in the media elsewhere. There was a small quad copter flying within 25 metres of a passenger aircraft at Southend and the co-pilot assessed that its conduct was deliberate. The drone was flying at it and there was a very high risk of collision. At Heathrow, an Airbus A320 suddenly realised that it had a UAV very close to it when it was at 700 feet. The drone had not shown up on air traffic control, not surprisingly, because it is so small. That was reported with an incident rating risk of category A, which is the most serious risk of a major accident. There are numerous examples, in France particularly, of these things flying over nuclear power stations and the like. There is a worry.
My reason for tabling the amendment is that there is no specific criminal terrorism offence regarding unmanned aerial vehicles as there is for aircraft, outside of very general Civil Aviation Authority restrictions under ANO 2009. In particular, drones are not covered by Section 4 of the Aviation Security Act 1982, entitled “Offences in relation to certain dangerous articles”,
which has been used as a precedent. That is a worry. We are not grasping this and including it in our legislation. I am not a great one for legislation—I hate legislation—but we need to look at this.
Similarly, while there are some no-fly zones around the UK, we need to identify, consider and regulate them in the sense of being aware of these very capable small drones and their use, particularly in the context of counterterrorism. I have given a lot of examples already, but someone in the aviation field got in contact with me today and said that they were worried that if a number of drones—something like 10 or so—were flown at the ILS system at an airport when the weather was not good, it would shut down the ILS system. Noble Lords can imagine the impact that that would have on an aircraft that was landing.
When the Birmingham Policy Commission conducted a study on the security impact of drones, which was chaired by Professor Sir David Omand, it examined specific risks that he felt needed to be addressed by legislators such as the use of drones carrying improvised explosive devices. They would be easy to make because you need only a very small amount of explosive or a chemical or biological agent. These are things that we have not had to focus on much recently and we hope that we never have to, but they are a real danger. Certainly, for part of my time as a Minister, I was constantly looking at concern about the use of these. Indeed, going back into the late 1990s, we stopped an attack on the north London water supply with ricin, so these are very real dangers that we need to think about.
The public are now becoming aware of drones. A drone strike would probably have more symbolic influence and effect on the public’s morale than the impact of what it did. Bringing down an airliner would be bad, but any incident would have quite an impact on the public.
There is a need for much more informed and open debate—outside the cross-government RPAS working group—on the risks and the response. I am not impressed, I say to the Minister, that the result of our bids for FOIs and information from that group has been very poor. There needs to be more open debate and transparency.
We have been in touch with the CAA. We know that it has very well known difficulties enforcing even the current light-touch regulation to do with drones, but it said that it would quite welcome specific criminal offences because this could supplement its work on reproducing its controls on aircraft. We think that it would acknowledge that its regime was designed before what I call the Maplin factor, and that therefore it does not really address counterterrorism. For those reasons, my amendments are necessary: we need to do this. I beg to move.
My Lords, I saw that report in the Independent, and, living quite near to Heathrow as I do, I felt it particularly vividly.
The noble Lord’s concerns are well founded. I wonder, however, whether it is not simply a matter of designating areas where the flight of drones is restricted, period, rather than dealing with the burden of proof—whoever carries it—regarding whether a drone is being flown for the purposes of terrorism. I suspect that the answer will be: “Thank you for raising it and a lot of people are looking at it”. I hope that that last bit is true. My comment is that it might be better to deal with it over the wider point and not to get into the confusion of whether it is terrorism related. The outcome could be pretty similar whatever the purpose.
My Lords, unmanned aerial vehicles, as has been said, are used in a military context and by public bodies in the UK, and for surveillance, among other uses. Surveillance UAVs are regulated, although, as my noble friend Lord West of Spithead has said, some people question how effective this regulation is.
I will comment in particular on the use of small non-surveillance unmanned aerial vehicles. UAVs weighing under 22 kilograms are entirely unregulated. They can be bought and sold freely. There is no tracking mechanism. Perhaps most importantly, they can easily be purchased for self-assembly, which makes them easy to modify, perhaps for the kind of purposes set out in my noble friend’s amendment. There is a big concern around airports. As has been said, a UAV got within a few feet of an Airbus jet leaving Heathrow. Even a small UAV could cause engine failure in a jet, in the same way as a bird strike, even if not being used for obviously hostile purposes. While airports have extensive protection from lasers, and even from surface-to-air missiles, there is no specific provision, as I understand it, for UAVs. Apparently, this is a concern of the British Airline Pilots Association and air traffic controllers, and suggestions have been made for UAV no-fly zones around airports.
I hope that, in their reply, the Government will be able to show that they have assessed the risks and are taking appropriate action because, subject to what the Minister says in response, it is not obvious that there is a coherent direction of policy, at least on smaller UAVs if not larger ones, with the light-touch regulation to which my noble friend Lord West has referred.
My Lords, I am grateful to the noble Lord, Lord West, for bringing his particular experience to bear on this important issue, which I certainly agree is a matter of growing public concern. The noble Lord particularly mentioned the effect on the public of something going wrong, and it is clear that people are taking an interest.
The growing use of unmanned aerial vehicles is being driven by their increasing versatility and affordability, as the noble Lord mentioned. Their use raises a number of issues, including those of safety, privacy and the potential security threat which they could pose. A good deal of work is going on with the Government at the moment. As I think the noble Lord mentioned, the Government have established a cross-Whitehall group co-chaired by the Department for Transport and the Ministry of Defence, and including the Civil Aviation Authority, which has responsibility for the regulation of UAVs, to look at the safety, privacy and security implications. If the group identifies any issues where new legislative powers are necessary, they will be addressed. However, I have noted the noble Lord’s comments about information being made available and I will take those back.
I can reassure the Committee that, from a legal standpoint, there are already air navigation rules in place to regulate the use of unmanned aerial vehicles. Existing restrictions include, for example, that an unmanned aircraft fitted with a camera must be flown at least 50 metres away from a person, vehicle, building or structure. It must not be flown without permission within 150 metres of congested areas or any large group of people, such as a sporting event or concert. Unmanned aerial vehicles are not permitted to fly in areas where they may cause danger to manned aircraft and it is prohibited to drop an article from a UAV so as to endanger persons or property.
My noble friend Lady Hamwee mentioned blanket bans on certain areas rather than making this specifically terrorist related. I agree with her. There are specific powers under the Air Navigation Order 2009 which enable the Secretary of State to impose restrictions on flying in particular areas, including for safety or reasons in the public interest, which could include security. That will take into account the example mentioned by the noble Lord, Lord West, of areas close to an ILS system at an airport. Crucially, the 2009 order makes it an offence to contravene any of the air navigation articles. A number of additional offences would currently apply to the arming of an unmanned aerial vehicle for the purposes of terrorism. These include offences related to the use and possession of firearms, weapons or explosives, or the preparation of terrorist attacks.
All that being said, the use and potential misuse of unmanned aerial vehicles is an area that the Government are monitoring closely. We will continue to consider whether it is necessary to introduce new offences related to the use of UAVs. I thank the noble Lord once again for raising the issue and thus allowing me to provide these reassurances. On the basis that the existing legislation is sufficient and that any potential gaps are being considered by the cross-government group, which I am sure will take account of this short debate, I hope that he will feel able to withdraw his amendment.
I thank the Minister for his response. Before I come to that—because I was a little disappointed—I will say that the noble Baroness, Lady Hamwee, is absolutely right. We have to be quite careful about how we go about this. Indeed, I have got no praise for the way I have put my amendments, but I believe that this needs to be looked at. The Minister makes the assumption that we are happy with current legislation, but current legislation is not adequate. Certainly the Civil Aviation Authority and the Airline Pilots Association do not think it is. We need to think hard about this. Overall, the noble Lord was on side with my worries, but—
Again, I am sure that the cross-government group that is considering gaps in legislation will take account of this debate, including the noble Lord’s comments.
I thank the noble Lord for that. At the moment, some of these things are slightly opaque. That is the problem. It is very difficult to find out what is going on. It would be much better if we had a clearer view with a more open debate about it. It is interesting, for example, that the Military Aviation Authority has just published RA 1600, which is a reclassification of some drones and it is paving the way for much greater use of military drones in UK airspace. So when we have a lot of military drones operating there, again, the risk of these other drones becomes even greater. This is something we have to get our mind around.
Interestingly—I had not thought about this before—the noble Lord, Lord Rosser, mentioned tracking mechanisms, which of course are making huge leaps and bounds in technology. You can get ones that are really tiny. Maybe that would be a way, if the drones showed up on secondary radar, for example. I do not know whether that has been looked at—and the reason that I do not know whether it has been looked is that there is no openness in terms of discussion, which worries me.
Amendment 103 withdrawn.
Schedule 2 agreed.