9 Carriers' obligation to communicate
passenger information
| (24513)
7161/03
—
| Draft Council Directive on the obligation of carriers to communicate passenger data.
|
| Legal base | Articles 62(2)(a) and 63(3)(b) EC; consultation; unanimity
|
| Department | Home Office |
| Basis of consideration | Minister's letter of 16 October 2003
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| Previous Committee Report | HC 63-xxxi (2002-03), paragraph 7 (10 September 2003)
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| To be discussed in Council | Date not set
|
| Committee's assessment | Politically important
|
| Committee's decision | Not cleared; further information requested
|
The document
9.1 This document aims to combat illegal immigration by requiring
carriers to transmit to the authorities responsible for carrying
out border checks information both on the identity of passengers
at the time of boarding and on the identity of foreign nationals
who have not made their return journey on the date stipulated
on their tickets.
9.2 When we first considered the proposal, in July,
we considered that it was inadequate and imprecise in its present
form, and were pleased to learn that it was likely to be substantially
redrafted. We asked a number of questions, and kept the document
under scrutiny. Among other things, we were concerned that Article
2(1) would impose on carriers a penalty of a criminal nature.
In our view, such a provision should be adopted by a Framework
Decision under the EU Treaty, rather than by a Directive under
the EC Treaty. We also asked whether the Information Commissioner
had been consulted about protection of data on passengers.
9.3 The Parliamentary Under-Secretary of State at
the Home Office (Caroline Flint) replied on 31 July 2003. She
told us that the Government had decided to opt into the measure.
In the Government's view, Article 2(1) did not propose a criminal
sanction and the proposed form of words was similar to that used
in other documents adopted under the EC Treaty. The Information
Commissioner had not yet been consulted.
9.4 We considered the Minister's reply on 10 September.
We reiterated our concerns about the proposal. We also repeated
our view that the provision in Article 2(1) was not appropriate
for adoption under the EC Treaty. We urged the Minister to consult
the Information Commissioner. We decided to keep the document
under scrutiny until we had seen the Regulatory Impact Assessment
and the revised text of the proposal.
The Minister's letter
9.5 The Minister has now replied to our further
comments. She agrees that the proposal in its present form is
unsatisfactory. The Government has made clear to the Presidency
its specific concerns — many of which reflect those raised
by the Committee and others — that it would like to be addressed
in detailed discussions of the text.
9.6 The Government believes that a Member State
could fulfil its obligations under Article 2(1) by imposing civil/administrative
sanctions. Similar provision was made in Council Directive 2001/51/EC,
which relates to carriers' liability and empowers Member States
to levy administrative penalties on carriers which transport into
the EU passengers who have inadequate documents.
9.7 Finally, the Minister says:
"the Immigration Service has already liaised
with the Information Commissioner on similar issues and we are
currently considering what further information we can usefully
provide. We are also examining the question of the Regulatory
Impact Assessment and will respond to the Committee on these points
as soon as possible".
Conclusion
9.8 We are grateful for the Minister's confirmation
that the Government will be pursuing the concerns that we and
others have expressed about this document.
9.9 We are surprised that the Government has not
yet obtained the opinion of the Information Commissioner. We first
raised the point in July. We urge the Minister to ensure that
the Commissioner's opinion is obtained without further delay.
9.10 As the Minister says, the provision in Article
2(1), specifying minimum and maximum fines on carriers which do
not comply with the Directive, appears to be precedented by Council
Directive 2001/51/EC. We do not find that decisive. It remains
our view that the Article proposes the imposition of a criminal
penalty giving the Member States little or no discretion as to
its severity. In our view, this is not appropriate for a Directive
under Title IV of the EC Treaty.
9.11 We shall continue to hold the document under
scrutiny, pending the production of the Regulatory Impact Assessment,
the availability of the opinion of the Information Commissioner
and a revised text of the proposal.
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