‘()The Secretary of State may make an order under this paragraph only if satisfied that the nature of the information sought is such that there are likely to be circumstances in which it can be required under subsection (2) without breaching Convention rights (within the meaning of the Human Rights Act 1998 (c. 42)).’.
With this it will be convenient to discuss the following amendments: No. 117, in clause 27, page 13, line 38, leave out
‘there are likely to be circumstances in which’.
No. 131, in clause 31, page 16, line 17, at end insert—
‘()The Secretary of State may make an order under subsection (4) only if satisfied that the nature of the information sought is such that there are likely to be circumstances in which it can be required under subsection (2) without breaching Convention rights (within the meaning of the Human Rights Act 1998 (c. 42)).’.
Thank you, Sir Nicholas. I am working off yesterday’s papers.
Amendments Nos. 115 and 131 are probing amendments that place safeguards on the exercise of powers in clauses 26 and 31. The wording of the proposed subsection is taken from clause 27. If it was thought necessary to include clause 27(7) in a Bill that is already certified as complying with the Human Rights Act 1998, why not do the same in clauses 26 and 31? In what circumstances does the Secretary of State suggest that the provision is necessary in clause 27 but not in clauses 26 or 31?
The purpose of amendment No. 117 is to rewrite clause 27(7). Instead of stating that
“The Secretary of State may make an order specifying a kind of information under subsection (5)(a) only if satisfied that the nature of the information is such that there are likely to be circumstances in which it can be required under subsection (2) without breaching Convention rights”,
subsection (7) would read:
“The Secretary of State may make an order specifying a kind of information under subsection (5)(a) only if satisfied that the nature of the information is such that it can be required under subsection (2) without breaching Convention rights”.
The amendment probes the drafting of the clause. The drafting appears to permit the Secretary of State to make an order if he can envisage circumstances in which requirement of the information detailed in subsection (5)(a) would not breach human rights. Even in this particular case, he knows that that is not so. We should also like the Secretary of State’s assurance that he must be satisfied that requiring information in the cases covered by the order will not breach convention rights.
Clause 26 is one of the first clauses to lay the legal basis for the e-borders scheme, so, in that respect, it is an important clause. As members of the Committee will see, the clause details the type of information that border agencies can request from transport operators. The clause deals specifically with the provision of information to immigration officers, but two of the hon. Gentleman’s amendments cover subsequent clauses, so I shall also talk about the provision of information to police, as well as the clause’s more general powers.
The purpose of amendment No. 115, as the hon. Gentleman said, is to mirror the requirements that are already contained in clauses 27 and 28 in order to make explicit that any request for information under paragraph 27 of schedule 2 to the Immigration Act 1971 must comply with the Human Rights Act.
I assure the hon. Gentleman that there is no need to introduce such a requirement, as all requests from an immigration officer under schedule 2 to the 1971 Act must comply with the Human Rights Act. As he will see, the Bill is structured such that clause 26 amends the 1971 Act, whereas clauses 27 and 28 are new provisions. I can tell the hon. Gentleman that the powers in schedule 2—powers already contained in the 1971Act—must be compliant. For that reason, there is no need to take that requirement from clauses 27 and 28 into clause 26. I assure him that the fact that we have included it in those two further clauses—I hope that he welcomes that—indicates that there is no wish to evade the principles of the Human Rights Act, which this Government passed.
I think that I explained that clause 26 amends the 1971 Act, which is compliant with the Human Rights Act. The way in which immigration service staff operate must be compliant with that Act. That answers the hon. Gentleman’s question, and if he looks at the Bill, he will see that clauses 27 and 28 create new powers for the police in respect of passenger, crew and freight information. I hope that he makes that distinction. As I said, the powers have been included, and I hope that he will take that as a sign of good faith. We want to ensure that there is no doubt that the clauses are compliant, which is why there is no need to replicate in clause 26 the duty that we have placed in clauses 27 and 28.
Amendment No. 117 concerns a slightly different point: compliance with convention rights when specifying information to be set out by order. Clause 27(7) says:
“The Secretary of State may make an order specifying” what passenger, crew or service data may be obtained
“only if he is satisfied that the nature of the information” is such—and this is the key phrase—
“that there are likely to be circumstances in which it can be required ... without breaching Convention rights”.
If I understand the effect of the hon. Gentleman’s amendment correctly, it would raise the bar slightly by deleting the phrase,
“there are likely to be circumstances in which”.
He has raised an interesting point, but I want to explain why we would resist that higher test for the disclosure of information, which is allowed by the order made by the Secretary of State. If we were to agree to the hon. Gentleman’s amendment, the Secretary of State and the Treasury Minister would have to be sure that the information provided under clause 27 would not breach convention rights. They would have to be sure in advance that there would be no breach. We believe that such a test would be unworkable in practice, because the Ministers concerned would have to have absolute certainty that convention rights would not be breached.
It may help if I explain a little about how e-borders will work. They will work sometimes by general and bulk data being made available to the immigration service and the police, which would make it extremely difficult to be able to have absolute certainty that the information provided would be fully compliant, in the way that hon. Gentleman wishes. The test that we have imposed in the clause offers sufficient protection. It means that people have to be mindful of the conditions of section 6 of the Human Rights Act. In addition, section 6 of the Act would allow a challenge where a person considered that their convention rights had been breached. The Act imposes a requirement on the police not to use the powers unless that is necessary and proportionate.
Amendment No. 131 appears to have the same intention as clause 31(5)(b). I refer the hon. Gentleman to that, because it contains the test that he seeks in amendment No. 131. The provision that he wishes to insert at the end of line 17 is already included in clause 31(5)(b) so the amendment would be entirely unnecessary.
We do not necessarily differ with the hon. Gentleman. The Government introduced the Human Rights Act and we intend that these powers should be exercised with due care and regard to the provisions of section 6 of that Act. We have enshrined it on the face of the Bill in respect of the parts where we need to, but in relation to this clause, the existing legislation is already covered by the Human Rights Act. The day-to-day operations of the immigration service are also covered by the provisions of that Act. I hope that the hon. Gentleman will accept my reasoning and withdraw his amendment.
I shall be brief. We have gone over many aspects of the clause. It is probably not understood by everyone that the Secretary of State may make an order requiring captains of arriving ships or aircraft to provide immigration officers with a passenger list showing the names and nationality of those arriving and the particulars of the crew. Now we are dealing with leaving ships too.
The Minister will know that my party’s proposal to reintroduce full embarkation controls is still our policy. Are these new powers a substitute for reintroducing embarkation controls? This passenger information power is not new. There are substantial powers in the Terrorism Act 2000 (Information) Order 2002. They oblige disclosure on a great number of issues, far beyond the names and addresses of passengers, and properly so. It might be helpful if the Minister could let me know, if not today then in a letter, how often those powers have been used and with what results.
I have a few questions about the powers in this clause. Although there is an offence under clauses 27 and 28 of not providing information, there seems to be no provision for a failure under clause 26 to be an offence. If the requirement in clause 26 is not carried out, is it an offence?
There is also a slight difference between clauses 26 and 27 to which I should like to draw the Minister’s attention. The responsible person under clause 26 is the owner or agent of the aircraft or ship, and the captain. Under clause 27 the responsible persons are different. They do not include the captain of the ship. Why is the captain involved in clause 26, but not clause 27? Does the Minister accept that there might be some difficulty for a captain of an aircraft who might be faced with this kind of information very late in the day? How far in advance and how long after the event can it be sought? Could it be sought during the course of the flight? If the information is not provided, could the authorities instruct the carrier not to carry the passenger in question?
Under paragraph (2)(b), further particulars are required because the passenger list must merely show the names and nationality or citizenship of the passengers. In relation to the crew, I assume that the “particulars” of members of the crew are limited to exactly the same requirements—namely, name and nationality. Does that have a cost implication for carriers?
I have spoken in previous debates about the cost implication for carriers of having to provide information about their passenger lists—photocopying burdens and so on. I had a helpful meeting earlier this summer with a company called Clove Business Systems, which supplies the passport-copying technology being trialled by the Home Office. The company had read my remarks about the financial burden on carriers and told me that its systems could be very cost-effective, and effective in every other way, too. Will the Minister confirm to me in writing that his discussions with that company are still continuing as it has an excellent approach to the matter? I look forward to hearing from him in that respect and I hope that he can deal with the questions that I have raised.
I am more than happy to write to the hon. Gentleman. We have had lengthy discussions about generating the information in the first instance and on what sort of laws and powers will subsequently prevail. Many of the points that he raises are entirely fair and I will deal with them.
Clause 26 is about providing information on passenger lists and crew in advance of arrival. On the hon. Gentleman’s more general point, I know from a previous manifestation as a Transport Minister that we were able to stop or turn back flights under security and terrorism legislation. Those powers prevail but, within the context of the Bill, they are not required as they are available elsewhere. The e-borders and border management aim to push back the border to international airports around the world before passengers even get on the plane, which must be right and proper.
The hon. Gentleman is right in broad terms—[Interruption.] There’s that chair again, but nice and quiet this time. The e-borders and border management projects effectively restore embarkation controls and I make no political point in that respect. The last Conservative Government started the removal of embarkation controls and this Government carried it on because, in simple terms, with more than 100 million people coming in and out of the country, a paper provision for embarkation controls was no longer appropriate. In crude terms, there is much more going on than the hon. Gentleman suggests. The proposal utilises technology and resources to restore that facility so that we have a much better picture of who is coming in and out of the country and, in an intelligence-led, proactive way, can start to target our resources.
The hon. Gentleman made a fair point about the captain’s role and I will find out about it. I suspect that it has much to do with the point made by my hon. Friend the Under-Secretary about clause 26 amending the Immigration Act 1971, whereas clauses 27 and 28 introduce new powers. Clause 26 amends paragraph 27 of the Immigration Act 1971 and relates to the passengers or crew on a ship or aircraft. It widens the provision so that it applies to a responsible person—it refers to the captain—who can be required to provide information. In one sense, therefore, clause 26 is outlined in terms of previous Acts, whereas clauses 27 and 28 cover new powers in the current context. I am sorry to dwell on all three clauses, but they are interlocked.
We want to reach a stage at which—to address the wider points that the hon. Gentleman makes—this is not mistakenly called advanced passenger information. The hon. Gentleman made a point about offence. He is quite right that a later clause—clause 29—refers to clauses 27 and 28. That is because the offences are caused under clauses 27 and 28, whereas clause 26 is more about outlining the nature of the information that should be made available to immigration officers. Clause 27 elaborates police powers in relation to passenger and crew information, clause 28 does the same for freight, and clause 29 covers offences in relation to clauses 27 and 28. Clause 26 is simply the definitional building block that bridges the existing law and the new powers outlined in clauses 27 and 28.
Having addressed all the points that I marked down, and having said that I would deal with the others in writing, I commend the clause to the Committee.