Supplementary memorandum submitted by
the Ministry of Justice
Thank you for your letter of 17 June 2009,
in which you raise a number of questions about the role played
by the Ministry of Justice in representing the Crown Dependencies'
interests in the Common Travel Area (CTA) provisions of the Borders,
Citizenship and Immigration Bill.
The proposed clause 50 (previously Clause
48) of the Bill would provide the unequivocal legal basis to control,
for immigration purposes, intra-CTA routes.
However, I would explain at the outset that
we—and the governments of the Crown Dependencies—have
repeatedly been assured by the Home Office and by the UK Border
Agency (UKBA) that traditional fixed controls will not be introduced
on any CTA route. Instead the power will be used flexibly to control
entry proportionate to the level of risk.
The UKBA propose very modest use of this power
on routes between the Crown dependencies and the UK because the
risk here is much lower. There will be no requirement to carry
a passport or national identity card and e-Borders data will not
be collected on these routes for immigration purposes.
The background to this issue lies in the Home
Office's and UKBA's consideration as to how the CTA might be reformed
so as better to protect the UK border and national interests.
Officials from the governments of the Crown Dependencies were
involved in the resulting discussions, as were officials of this
Department. The Home Office had made it clear that such potential
problems as existed within the CTA related largely to Republic
of Ireland rather than Crown Dependency routes, there were no
plans at any stage to impose fixed controls on routes between
the Crown Dependencies and the UK and the Home Office did not
propose any significant change in practice on these routes. In
his foreword to the consultation paper Strengthening the Common
Travel Area, published in July 2008, Liam Byrne MP stated
that "We are clear that we will not introduce fixed immigration
controls … on traffic from the Crown dependencies
to the UK".
When we received the Bill on 17 December
last year for onward transmission to the Crown Dependencies it
was clear that the clause as drafted provided the power to impose
controls on any CTA routes. In respect of the CTA clause the covering
e-mail from the Home Office said that "The amendments to
section 1(3) of the Immigration Act 1971—clarifying powers
to conduct immigration controls on CTA routes to the UK—apply
to both the Republic of Ireland and CD routes automatically. However,
the policy intention is only to have fixed/more regular controls
on passengers travelling by air and sea between the UK and Ireland
and to conduct solely ad hoc intelligence-led operations to check
those crossing the land border in Northern Ireland and those arriving
from the Crown dependencies. The policy leads have already discussed
the implications of the amendment with the CDs and we understand
they are content".
The Crown Dependencies were very concerned at
the drafting of the clause, and each of them wrote to us to express
their concerns. Their respective arguments are summarised below,
which I hope will meet your request for a memorandum of the representations
received by us from the Crown Dependencies. (Each of the Crown
Dependencies also provided some more general comments on other,
less controversial, aspects of the Bill, either in the same letter
or separately.) The Home Office has made it clear that it is not
possible to legislate in a way that provides the power to achieve
the policy aim but at the same time limits or restricts the frequency
with which it will be used.
The Chief Secretary to the Isle of Man, Mrs
Mary Williams, was the first to write, on 9 January. She
said that the Isle of Man had responded positively to the Home
Office's previous proposals to strengthen the CTA, including an
undertaking to mirror checks on passengers travelling between
the Republic of Ireland and the Isle of Man, precisely to avoid
the need for controls to be established between the Isle of Man
and the UK. While the Isle of Man had always understood that changes
to the legislation would be required to clarify powers to introduce
controls on journeys between the UK and the Republic of Ireland,
they were unclear as to why and for what purpose it was felt that
such clarification was required between the Islands and the UK.
She referred to the assurances previously given that there was
no intention to introduce permanent immigration controls between
the Island and the UK and said that this now seemed contrary to
what was now in the Bill. The Isle of Man was not opposed to the
principle of clarifying the power to undertake ad hoc intelligence-led
operations if that was deemed necessary; however, they believed
that this should be specified within the legislation rather than
dealt with as a matter of policy, given the speed with which policies
can and do change.
Mrs Williams added that there was nothing within
the proposed legislative amendments to the CTA as drafted which
recognised that in respect of the UK the position of the Republic
of Ireland was very different from that of the Isle of Man, or
that the immigration legislation of the Isle of Man was UK legislation
extended by Order in Council, establishing a general principle
of integration. Given the proximity of the Isle of Man to the
UK, the long-standing constitutional relationship and predominantly
British population, this was a highly sensitive matter. She also
commented that the requirement for an intelligence-led physical
immigration control was unclear, given the fact that the UK's
invitation to the Isle of Man to participate in the e-Borders
programme. She asked that we advise the Home Office of the Isle
of Man's reservations about the CTA clause and explain the Island's
concerns.
Guernsey replied by means of a letter from the
Chief Minister, Deputy Lyndon Trott, to the Bailiff of Guernsey
dated 14 January, which was forwarded to us through the official
channel of communication. The Chief Minister said that the Bailiwick
recognised the benefits derived from the CTA, which operated on
the basis of very close harmony between the immigration laws of
the UK and Islands. The CTA had always been based on the principle
that, subject to certain exceptions, travel to and from the UK,
the Crown Dependencies and Ireland did not require going through
a physical immigration control point. Guernsey was aware of UKBA's
review aimed at strengthening border security, and in discussions
with UKBA it had been made clear by those representing the Crown
Dependencies that movement without immigration controls for all
nationals of the CTA was an important component of the special
relationship that existed between the peoples of the islands of
the CTA and provided long established political, economic and
social benefits.
In respect of the CTA clause itself, the Chief
Minister referred to the assurances that irrespective of what
was in the Bill the policy intention was only to have fixed, or
more regular, controls on passengers travelling by air or sea
between the UK and the Republic of Ireland and to conduct solely
intelligence-led operations to check those crossing the land border
with Northern Ireland and those arriving from the Crown Dependencies.
He questioned why, in that event, it was considered necessary
to enact primary legislation that potentially permitted the same
treatment to all routes.
The Chief Minister made clear that in raising
that question, Guernsey recognised and supported the UK's objective
to strengthen its borders and, by association, the Bailiwick's
borders. There remained a concern, however, that the inclusion
of the relevant provisions contained in the Bill failed to recognise
the close integration of the laws of the Bailiwick (and the other
Crown Dependencies) with those of the UK. If the Home Office accepted
that there was a distinction in this respect between the Crown
Dependencies and the Republic of Ireland, it would be preferable
for it to be reflected on the face of the Bill. He asked that
HM Government address the questions he had raised as soon as possible.
Jersey replied by means of a letter from the
Bailiff to the Lieutenant Governor of Jersey on 28 January.
In respect of the Common Travel Area clause, the letter said that
"It is considered that people in British territory ought
to have free movement around the British Isles without any form
of passport control, and the erection of a potential passport
control between Jersey and the United Kingdom introduces discrimination
that cannot be justified. Following careful consideration of this
matter, the Government of Jersey is opposed to the proposed amendments
to the Immigration Act 1971 that could lead to a significant
change in the status of Jersey within the Common Travel Area and
in respect of movement of people between Jersey and the UK".
The letter added that the Government of Jersey would respond further
on the specific matter of the CTA.
All three letters were passed to the Bill team
as the Islands had requested.
The Chief Minister of Jersey, Senator Le Sueur,
followed up Jersey's first reply with a letter to me dated 24 February,
by which time the Bill was progressing through the House of Lords.
He made the point that there was no speech representing the concerns
of the Crown Dependencies through the Ministry of Justice. (Your
Committee will, I am sure, understand why a Ministry of Justice
Minister could not have spoken against a Government Bill in the
House.) Senator Le Sueur did however refer to a speech by Lord
Glentoran in which he remarked that "It seems to me that
those Crown dependencies are being smashed by the same sledgehammer
being used to crack the nut of the UK-Ireland border".
Senator Le Sueur continued: "My concern
is that, whilst Lord West has stated that there is no intention
currently to introduce fixed border controls between the
UK and the Crown Dependencies, the fact is that the Bill as presently
drafted does enable such controls to be introduced in future
at will, merely as a matter of policy. There are absolutely no
safeguards to prevent such controls being implemented or to protect
the longstanding rights of Channel Islanders to travel freely
to the United Kingdom, in accordance with their constitutional
relationship". He also took issue with the lack of formal
consultation with the government of Jersey prior to the Bill being
referred to the Island in December, continuing: "The argument
of the UK officials appears to be that no consultation was necessary
since there would be no significant change. But if no significant
change is intended, why are British nationals resident in the
Crown Dependencies to be included in the same statutory regime
that would apply to Irish citizens? As far as I can see, there
has been no attempt to draft legislation which would appropriately
differentiate between the Crown Dependencies and the Republic
of Ireland." He asked me to consider giving my support by
expressing to Home Office Ministers the concerns of the Jersey
Government on the CTA provisions of the Bill.
Consequently—and with reference now to
the third paragraph of your letter—I wrote to Lord West
on 11 March, explaining Jersey's concerns and adding that
I knew the other Crown Dependencies to share the tenor of the
views expressed by Senator Le Sueur. (This reflected the fact
in particular that my Department had received a second letter
from Mrs Williams of 4 February in which she said that while
Home Office officials had undertaken to consider the clause again,
they had indicated that reflecting the UK policy in relation to
the Isle of Man within the legislation would be difficult. She
had asked, similarly to Senator Le Sueur, that we "ensure
that their Lordships are immediately and fully appraised"
of the Island's reservations.) I added that I had considerable
sympathy with the Crown Dependencies' point of view on the issue,
but that I also recognised the difficulties and limitations of
legislative drafting. I said that if there was still any possibility
of reconsidering the clause so that as to go at least some way
towards addressing and alleviating the Islands' concerns, I was
sure that would be warmly welcomed.
By this time Lord West had offered to meet representatives
of the Crown Dependencies on 16 March. I understand that
at the meeting there was complete agreement on the commitment
to maintain the CTA and preserve the benefits it provides. It
was also agreed that the security of the border was paramount.
Lord West understood the Crown Dependencies' concerns about the
wording of the CTA clause and its failure appropriately to differentiate
between the Crown Dependencies and the Republic of Ireland. Nevertheless,
he said that the Home Office did not believe it possible to legislate
in a way that provided the power to achieve the policy aim but
at the same time limit or restrict the frequency with which it
was used. Similarly, the Home Office wanted to maintain the CTA
as a single entity and did not consider it possible readily to
differentiate provision for the Crown Dependencies without prejudicing
the Government's aim of maintaining a secure platform for the
range of intelligence-led activities which will be necessary,
at different times and on different routes, across the CTA.
At the meeting it was suggested that the Crown
Dependencies might support clause 48 if they were to receive
public reassurance of the policy intention regarding immigration
controls on routes between the Crown Dependencies and the UK and
formal recognition of the constitutional relationship that exists
between the Crown Dependencies and the UK. It was proposed that
a Memorandum of Understanding be developed between each of the
Crown Dependencies and the UK, in partnership with the Crown Dependency
governments to affirm the policy intention. Guernsey and the Isle
of Man have agreed to this, and a Memorandum of Understanding
with each is currently being developed. Jersey is however not
content with this approach. UKBA and my department continue to
work with all of the Crown Dependencies to seek the best possible
solution to these difficult issues. We have recently received
a further letter from Mrs Williams in which she reiterates the
support of the Government of the Isle of Man for the UK's policy
aims but considers that the clause as drafted does not reflect
that policy intention and should not be reinserted in the Bill
following its removal by the House of Lords. She goes on to say
however that, anticipating that the clause may be supported in
the Commons, the Isle of Man will continue to work with the UK
in respect of the Memorandum of Understanding.
In the third paragraph of your letter you refer
to "proposed requirements for notice of travel in advance".
It may be that this, and perhaps also the reference to data protection,
relates to aspects of the e-Borders programme rather than to what
is now clause 50 of the Bill. All of the Crown Dependencies
have expressed their willingness to participate in e-Borders;
the Home Office has confirmed that journeys between the Crown
Dependencies and the UK will be regarded as domestic for e-Borders
purposes. Data will instead be collected and shared on passengers
entering the Crown dependencies from outside of the UK so that
the Islands are included within the e-Borders ring of security.
We are aware of concerns expressed by owners of private pleasure
craft about the requirement under e-Borders to provide passenger
and crew information in advance for travel outside the external
border (for example, in the case of the Channel Islands, to locations
on the French coast). We are assured however that this requirement
will apply to journeys to and from locations outside of the CTA,
not journeys within the CTA, and that it will apply also to UK
craft and is not in any way unique to the Crown Dependencies.
UKBA makes it clear on its website that it is continuing to liaise
with the Royal Yachting Association to ensure that the general
boating community is represented in the e-Borders process.
I trust this letter provides the information
required by the Committee.
Lord Bach
Parliamentary Under-Secretary of State
16 July 2009
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