Moved by Lord Campbell-Savours
25: Schedule 8, page 64, line 12, at end insert—“( ) In requiring a person to ground an aircraft under this paragraph, a constable may also exercise the power to confiscate the unmanned vehicle.( ) A person whose unmanned aircraft is confiscated under this paragraph may apply to the magistrates court for an order for its return.”
My Lords, this too is a probing amendment, as it does not fully capture the intention behind the issue that I raised during Second Reading on confiscation of equipment. The Minister at the time led me to believe that she would seek to answer in correspondence the issue that I raised, but the letter that Members have received does not refer to it. I do not blame her; perhaps she might deal with it today.
I have carefully read the Explanatory Memorandum and the Bill, and the only reference to confiscation is paragraph 2(6) of Schedule 8, which states:
“A constable may seize anything that the constable discovers in the course of a search under this paragraph if the constable has reasonable grounds for believing that it is evidence in relation to a relevant ANO offence or a relevant prison offence.”
That part of the Bill seems to relate only to condition C under paragraph 2(5) of Schedule 8; in other words, it relates only to prison intervention by drone-related offences. My Amendment 25 would add only a right of appeal for restoration of property. I am worried that I see no reference to confiscation under any other schedules to the Bill. I will concentrate my remarks on the links between Schedules 8 and 10, which is the subject of a later reference in this group—or it was until this morning, when I came here and found that there had been a regrouping.
Before doing so, I will make a few general comments. First, have we any estimate of the numbers of drones available for use in the United Kingdom, of all types, commercial and recreational? We have an estimate of 530,000 drone sales in 2014—that came out of one of these documents; I found it very hard to believe—and a further estimate of 1.5 million to be sold in subsequent years. Again, I do not know where this information comes from, but it is in one of the publications. Do the Government have any real stats on the availability of this equipment?
Secondly, I am not too worried about commercial operators. They will, generally speaking, keep within the rules and the law—although there is some evidence of the need for some commercial operators to be more knowledgeable, and for some airport operators to be more flexible and understanding about charging and issues of access, in particular regarding the size of restriction zones. My primary concern is the rogue operator, using sub-250-gram UAVs, and large equipment used privately by individuals, whether they are plain stupid in the way they use this equipment, or are drug dealers arranging for the carrying of drugs, crime gangs involved in illicit surveillance, potential terrorists who may wish to deploy weapons even in very small quantities or using small drones, or those who breach personal security where privacy is involved. Mr Geoffrey Hirst, a drone user, told a Commons committee recently that even a proportion of the recreational drone community are reckless, whether intentionally or not. We know that these small, sub-250-gram drones can be dangerous. When a joint test between the Military Aviation Authority and BALPA was recently undertaken, it was concluded that in a mid-air collision significant damage could be caused to a helicopter or aircraft.
I return to Schedule 10—subject to what has happened, but that was beyond my control. Under “Fixed penalties for certain offences relating to unmanned aircraft”, it states:
Condition A states that that includes: endangering another aircraft; causing any harm, harassment or alarm or distress; causing nuisance or annoyance; disturbing public order; or damaging property, all of which the accused could very easily deny. The only one that may be provable could be the undermining of good order in a prison, which is why we have the paragraph 2(6) of Schedule 8 confiscation provisions which I have already referred to. Nearly all the others can be denied by the accused, and it will be very hard for anyone to prove otherwise. If the police officer gives the offender within the zone the benefit of the doubt, the offender will receive only a fixed penalty notice. Furthermore, if the person is under 18, they will not even receive a fixed penalty notice—effectively, an open invitation for the adult offender to lay responsibility on minors to hide their guilt and penalty. In other words, “Not me guv, it was the kids that did it”. They will effectively run rings round the drone code, with its hyped registration, responsibility and distance control requirements.
What is meant by the fixed penalty notice? Under paragraph 3 of Schedule 10, a fixed penalty notice is
“a notice offering the opportunity of the discharge of any liability to conviction of the offence to which the notice relates by payment of a fixed penalty in accordance with” the schedule. That is not good enough. Offenders will run rings round the law, particularly the kind of offenders that we are talking about.
For a start, we need to ask ourselves: will they actually pay the fines? Let us examine the stats on the payment of fines. I take my source from the quarterly returns of criminal court statistics from England and Wales. In the first quarter of 2018—the last stats period available—47% of fines were not paid within 18 months. In other words, nearly half of those fines were not paid in 18 months. For many, fines are completely irrelevant.
Are we to further clog up our courts with defaulters? In my experience, after 40 years in this institution, Parliament only too often legislates without any reference to what is going on in the real world. This is a particular example. If we really want to put a block on illegal drone flying, confiscate the equipment—just as we do with other potentially dangerous items, such as knives, guns, illegal drugs and stolen goods. That will concentrate the minds of potential offenders.
Then we have the cost of the items—that will be an important consideration in the mind of offenders—which have the potential to be used for recreational and even commercial purposes. The cost can be anything between £100 and £15,000. I went on the internet today to look at the prices of these drones. They are pretty expensive. Many of the more effective ones cost at least £500.
As I said, confiscation will concentrate the mind. Just ask police officers who know the impact of confiscation. We need to be firm and uncompromising with those who wish to play fast and loose with the law and who are prepared to endanger life by acting in such a way as threatens to bring down an aircraft, intentionally or not.
I will speak to my probing Amendment 27 and to Amendment 30. I follow the strong words that we have just heard from the noble Lord.
As I and many others stressed on Second Reading, the risk of a mid-air collision involving unmanned aircraft being operated illegally is very serious and even catastrophic. It would be remiss not to reflect the seriousness of that danger in the punishment awarded. Indeed, it might also be worth considering whether some form of third-party compulsory insurance should be acquired by all operators of unmanned aircraft.
The misuse of an unarmed aircraft should be liable not only to a fine, or imprisonment if the misuse were to be catastrophic, but should invariably include the forfeiture of the unmanned aircraft and its associated kit for any misuse that falls outside a single instance of the fixed penalty range of misbehaviour. A deterrent to misuse before flight is of potentially greater value than just a monetary punishment as the result of an airborne offence. Even in the fixed penalty range of misuses, a persistent offender should face the risk of forfeiture, or at least confiscation for a period of time.
It is too early to delve deeply into the secondary legislation that will introduce the fixed penalty arrangements. However, as with fixed penalty notices for car drivers, is it intended that a points system will be set up, so that an individual who repeatedly offends and amasses a number of penalty points within a set time will then face the confiscation of their unmanned aircraft and associated kit, either completely or at least for a period of time as the consequence of their repeated misbehaviour? The deterrent value of such a scheme is well worth considering, although I recognise that the administrative details for it will need careful thought and could even be deemed excessive.
My Lords, I would like to speak in support of Amendment 25, and again, I had hoped to see my name attached to it. I am not sure whether the Committee fully appreciates the sheer scale and numbers that we are dealing with. My judgment, as someone who has been keeping some track of what is happening, is that probably 2 million drones have now been sold and presumably are being flown. I have had the privilege of serving on the Public Accounts Committee with the noble Lord opposite, and on a number of occasions he and I would probe into issues in depth. I therefore say to my noble friend on the Front Bench that the probing which the noble Lord has done should be listened to and assessed very carefully.
Yesterday I went to a briefing on the importation of illegal tobacco. I have never smoked so I have no real personal interest other than ensuring that the revenue that should legitimately go to Her Majesty’s Government does so. There is little doubt that the people behind the illegal importation of tobacco are incredibly creative and show enormous genius, with the result that huge quantities are coming into this country. Allied to that is illegal drug importation, to which the same applies. I have just renewed my shotgun licence. The police are exceedingly careful about the renewal of such licences, not least by those of the older generation, in which I put myself. I am not surprised about that. The police checked thoroughly into where the guns are kept and whether they are properly locked away, and that we had security arrangements to ensure that if someone did break in, alarms would be set off.
We are absolute beginners in this field of activity and its implications. My friend the noble Lord on the Benches opposite is right to say that we are dealing with the rogue element but—as I have demonstrated by giving just two examples in drugs and illegal tobacco importation, and there are others—the rogue element is there in great profusion. Moreover, drones themselves provide a wonderful facility for illegal importation activities. Even if my noble friend on the Front Bench is not able to accept the wording of the amendment, I hope that she will think about it seriously and possibly come back at Report either to accept it or to table it with some minor modifications.
I will say to noble Lords that if we do not take action at this point in time, we will rue the day.
The noble Lord, Lord Naseby, has made an interesting comparison between drug and tobacco smuggling and the action of a drone. The difference is that a drone can do monumental damage, if a rogue operator gets in the way and starts doing things that they should not be doing. I saw an instance of drug smuggling in the Isles of Scilly a few years ago; not only was the boat being used to smuggle confiscated, but the man who was single-handedly bringing these drugs into the country was so frightened of being caught that, when the yacht was tied up in St Mary’s harbour, he decided that the best way to get away was to climb the mast. He fell to his death on the quay, which was very sad. He was desperate not to get caught, but the boat would have been confiscated, and I cannot see why a drone cannot be confiscated.
My noble friend Lord Campbell-Savours gave some wonderful examples of the numbers involved. The drones should obviously be confiscated, and anyone who wants to get their equipment back should have to apply to a magistrate. The amendment seems very reasonable to me.
Is there any requirement for those who operate drones to ensure that they are fitted with transponders, which can be interrogated by other types of aircraft conducting their operations perfectly legally within the same airspace? Might some mechanism be found to ensure that those who operate drones without transponders are breaching the rules, to which the noble and gallant Lord and the noble Lord, Lord Berkeley, have referred?
This, again, is an aspect of the Bill where there is unanimity across all sides of the House—we are all trying to achieve the same purpose. The question is how best to do so, especially in an environment where technology is moving extremely fast. I am certainly sympathetic to the sentiments expressed by the noble Lord, Lord Campbell-Savours, and other Members of the Committee.
When the Minister comes to reply to this very interesting debate, perhaps she might describe the other sanctions that a rogue operator may be subject to in addition to the fixed penalties outlined in Schedule 10. We are talking about a broad variety of potential consequences, from annoying the neighbours on a sunny summer’s afternoon to deliberately trying to destroy an aircraft containing hundreds of passengers over central London. What sanctions could have faced the operator or the person in control—to use the phraseology of the noble and gallant Lord—who caused the disruption to Gatwick only a short while ago whose extremely irresponsible actions could have resulted in a high degree of disruption to the whole travel system of the United Kingdom?
It may be more convenient to discuss my second point in a later group of amendments, but there is a real issue around promulgation of the law. Because these devices can be bought over the internet and from shops by people who I suggest may not be familiar with the Air Navigation Order, they are probably not aware of the rules and how dangerous this activity can be and its consequences. I look forward to my noble friend’s response.
My Lords, I am eternally grateful for this thought-provoking debate on confiscation and forfeiture. A number of issues have been raised. I will endeavour to cover as many as I possibly can, but I am aware that a number of noble Lords have made some very thoughtful points, so I will go away and read Hansard to make sure I have covered everything. At times, some very good points that I think we can address were made. At other times, there may have been some slight misconceptions as to the different types of offences and penalties being placed on people.
To start with, the noble Lord, Lord Campbell-Savours, mentioned the number of drones out there. He will possibly agree with me that a fair few of them are under people’s beds, never to see the light of day again. It is rather like me with a jet ski; it gets a bit boring after a while—too much information. At the moment, the CAA registration scheme, which went live in November last year, has 80,000 people registered on it. That is higher than we had anticipated. We have no further information than that, but that is where we are at the moment. That number is probably a couple of weeks old. It could well be that there are a lot under people’s beds.
Yes, it includes all unmanned aircraft. Various bulk uploads will come from model aircraft clubs, so we expect that number to climb. Over the course of this Bill, perhaps when we get to Report, I am happy to look for an update on that and to give some indication of where we think more people registering their drones will come from.
Setting out the background to this, the noble Lord, Lord Campbell-Savours, mentioned a number of offences to which he assumed a fixed penalty notice could be attached. I believe they may not be given for those more serious offences to which he referred. Subsequent to this, I hope to be able to set out precisely what will be given to each level of offence, because there is perhaps a little confusion. I will go through my explanation, because there are opportunities for confiscation and forfeiture, which I hope will mean that the noble Lords are content to withdraw their amendments. Let us just see how we go.
Amendment 25 would give the police the power to confiscate an unmanned aircraft if a constable has required it to be grounded. Amendments 27 and 30 would require somebody to forfeit the unmanned aircraft as the penalty for unlawful use. I reiterate that my department has worked closely with the Home Office to ensure that the powers in this Bill are proportionate—that is an important word here—because we do not want to stifle a nascent, growing and potentially very useful drone industry. We do not want to discourage or alienate those who seek to use the unmanned aircraft sector lawfully, because it should be very useful as we go forward. We have also worked with the police, who are confident that they have the powers in this Bill to provide effective enforcement.
The amendment on confiscation, Amendment 25, would provide a potentially disproportionate power to the police, in addition to the existing powers in the Bill for them to require an unmanned aircraft, rather than an unmanned vehicle, to be grounded.
If the noble Lord will bear with me, that drone would probably be confiscated by a constable for a different reason.
In our opinion, the amendment on forfeiture would also provide a potentially disproportionate penalty for those who commit most likely very minor offences of failing to ground an unmanned aircraft when asked to do so by police, or failing to comply with a constable’s request to inspect that small unmanned aircraft. While we feel that it would be disproportionate to insert these powers of confiscation and forfeiture regarding these two offences, it should be noted that the police have powers of confiscation elsewhere in the Bill and already in law.
Under the Bill, the police will have the power to stop and search a person or vehicle where they have reasonable grounds to suspect they will find an unmanned aircraft that is or has been involved in the commission of one of the offences specified in paragraph 2 of Schedule 8. This is for more serious offences, such as interfering with aircraft. This stop and search power gives the police constable the power to seize anything they discover in the course of a search if they have reasonable grounds to believe it is evidence relating to one of those offences.
The summary of all the stop and search offences was given out at the all-Peers meeting and I am very happy to send round this ready reckoner, which shows which offences fall under stop and search if there is suspicion of them. They are, for example, flying above 400 feet or within an exclusion zone of an airport. If there was a stop and search in that case, that item could be seized as evidence. Similarly, when entering and searching a premises under warrant using the powers in the Bill, a constable might seize an unmanned aircraft or any article associated with it if they have reason to believe it has been involved in the commission of one of the offences set out in paragraph 7 of Schedule 8.
The noble Baroness said the constable has the power to seize, but has he powers to retain and make forfeit, or would it be just a temporary seizure until such time as the courts had dealt with the circumstances? The point of my amendment, and I believe that of the noble Lord, Lord Campbell-Savours, is that of a deterrent for illegal use. Seizure or forfeiture would be a very good deterrent. As we mentioned earlier, we are dealing not with people who are behaving and who we are trying to encourage to grow their legal use of drones, but with people who might be or are operating them illegally. Those are the people I want to deter.
The noble and gallant Lord makes a very interesting and valid point about deterrence, which is probably quite separate from the line I sought to convince him of. Noble Lords have mentioned that a very good drone might cost, say, £500, but the penalties we are talking about for some of the offences that could have been committed are fines up to a maximum of £2,500.
If, indeed, they are paid, which I will come on to—perhaps in the letter—because there are some very significant deterrents. If we are after a deterrent, we have those deterrents. Do we feel it is proportionate for property to be forfeited for fairly minor contraventions? We do not.
I am sorry to interrupt again, but on a minor thing, as I said in my opening remarks a single misbehaviour under what would be a fixed penalty notice would not be a cause for forfeiture, but repeated misbehaviour that might individually be at the level of the fixed penalty notice should be taken into account. That is why I suggest that, under those circumstances, forfeiture, at least for a period if not completely, should be part of that penalty.
The noble Lord makes an interesting point. I suspect that in those circumstances, the person would just go out and buy another drone. We are between a rock and a hard place: drones are not so expensive that forfeiture is a huge issue, versus a fixed penalty notice, which may also be significant. We do not feel that forfeiture would make a significant difference to the deterrents. The penalties already in place are good ones. However, for the sake of completeness, I will mention that under current law, if a person has refused to ground their unmanned aircraft and has been arrested for an offence, the police officer has the power, under Section 32 of the Police and Criminal Evidence Act 1984, to search the arrested person and to seize anything that is evidence.
I understand where my noble friend is coming from, but what she perhaps does not fully comprehend is that to those of us who have been involved in this industry for years, this is a highly dangerous area—far worse than motorbikes. The Government have the opportunity to lay down clearly that anybody who transgresses will be hit hard. This does not affect the genuine operators, who will take great care. However, quite frankly, listening to my noble friend, I can see this being abused. I see drones every weekend where I live. Half of them, perhaps, are being flown correctly, but a significant proportion are not, hence the two in my shed that crashed in the last six months.
My noble friend makes a very interesting statement. This Government recognise that in certain circumstances, when drones are not being flown correctly, it is literally a life and death situation. This is why the penalty for the most significant offences—recklessly or negligently acting in a manner likely to endanger an aircraft or any person in an aircraft—is an unlimited fine or up to five years in prison.
My noble friend suggested that only half of those drones are flying within the rules. That is why we have introduced the competency and registration system. People are taking the competency test. If the Bill is passed and the police have the powers, they will be able to stand in my noble friend’s garden, identify those who may not be operating within the law and do something about it. Without the Bill, they could not.
I am aware that my noble friend supports the Bill, and I appreciate his support. The Government are just saying “proportionality”. The Government’s role is not to come down hard across the entire sector, but to be proportionate. Those guilty of a minor contravention will get a fixed penalty notice; for something more serious, it is up to five years’ imprisonment and an unlimited fine.
Turning to a couple of points I have not covered, my noble friend Lord Glenarthur made an important point about electronic conspicuity, or remote ID. This is being introduced into drones. Although it is not ubiquitous at the moment, electronic conspicuity for all aircraft was consulted on in the Aviation 2050 consultation. We will be looking at how we take that forward but, as part of EU retained law, the EU-delegated Act is already within domestic law. It contains remote identification requirements. This delegated Act came into force on
The Minister referred to consultation. Could she refresh my memory as to when that consultation took place, when it was completed and when the results were published?
I am afraid I do not have that information to hand. I would be remiss if I tried to remember, so I will write to the noble Baroness. I think that was a consultation for all aircraft. She will be aware that the Government are looking at general aviation and, as we move forward, the interplay between unmanned and manned aircraft in a unified traffic management system. That is some way off but we have to start thinking about it now. The electronic conspicuity of drones comes from EU regulation and is now in domestic law. We are in the three-year period during which all drones will have to have conspicuity.
My noble friend Lord Goschen mentioned other penalties and I hope I have given him some idea of their level. I will send this note around because it is useful in setting out exactly what happens if you contravene certain of the regulations.
As for getting people to understand what is required of them, we work with the retailers and the manufacturers—the CAA has the drone code—to make sure that we get the message out as much as possible. This is particularly important around Christmas, when there is a great deal of activity, so that when people get a drone—are given one or buy one—they know that it is not a responsibility-free activity and exactly what their rights and responsibilities are.
I feel a letter coming on on this one. There is quite a bit to cover about proportionality, deterrence and the different levels of penalty for different offences.
I am pleased that the noble Baroness will write a letter. It might be a long one, but that is good. In this debate we have swung between saying, “Most people are just doing it in the garden. They might have the drone under their bed. If they go up, they do not fly hard, it is not going high and it won’t hurt anyone much,” to the other extreme when it could bring down an aeroplane or worse. My noble friend and others commented on the number of drones that may be flying and wondered how many will be flying illegally—in other words, without notification, without a licence or whatever. The question of proportionality is therefore quite serious; for some offences confiscation may be too strong a penalty and for others nothing like enough. In her letter, will the Minister give us some idea of how many constables or whatever we are to call them—the enforcement agency—will be trained to do this work and how many offences might they have to follow up each year? I have not a clue. You can think of every policeman in the country being able to do this—which is stupid—or of it all being done centrally. However, it would be good to have some idea of how enforcement might take place so that people like me, who have no great experience of this, can compare it to what happens on the roads or anywhere else. I will be glad to hear the Minister’s comments.
I thank the noble Lord for that intervention. I hope he will be able to stick around until we get on to later amendments dealing with police resourcing and how the training will work.
Let me go back to first principles. The Bill is about giving the police the powers they need to put in place the penalties that already exist. It is very much about filling in that gap. We are working closely with the police and this is what they have asked us to do to give them the powers to clamp down on illegal drone use. The situation is in flux as people register but, for people who have not registered and are flying illegally, the police now have these powers. Without the Bill, they would not have the powers. With that, I hope the noble Lord will feel able to withdraw his amendment.
I shall say just one or two words. The Minister has offered to write us a letter. It is not a letter we want. We want it in the law. The letter will interpret the law in a way that she believes will satisfy the concerns we have expressed. I am worried about the guy out there with a drone. He is not going to read the law. He wants very simple principles established that he can understand. In the light of the interpretation that the Minister has put on the law during the interventions, I do not understand the law, and the other day I spent more than an hour going through these clauses to try to work out what was applicable in what circumstances. I put it to the Minister that the law is badly drafted. I have never said that in this House before. It is badly drafted, and we need far greater clarity in the clauses that Parliament is required to clear.
I predict that in the Commons, when MPs with airports in their constituency get their hands on the Bill, they will rubbish this clause because they will be dissatisfied with the provisions as explained to us. I say to the civil servants now that they should think in advance, before the Bill gets to the Commons, about how they will deal with the objections that will inevitably arise.
The Minister says that the role of government is to be proportionate. I agree. However, a small drone of 250 grams within a restricted zone can bring down a jumbo jet, with hundreds of lives lost. I think I am being proportionate and the Government are not in not understanding that that is the danger we are considering. The Minister has laid words on the record today that, in the event of a disaster, people will pore over and wonder what the hell she was talking about. I shall no doubt come back to this on Report, but I beg leave to withdraw the amendment.
Amendment 25 withdrawn.
Amendments 26 and 27 not moved.