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Lord Dixon-Smith: My Lords, the Minister will hardly be surprised that I find his response unsatisfactory. It appears to imply that what we put in the Bill cannot affect previous legislation, but that cannot be so. The Government themselves have tabled Amendment No. 26, which deliberately sets out to amend previous legislation. At a quick scan of the Bill, there are 31 clauses that amend previous legislation. This is an instance of doing it through inadvertence.

I am sorry that I have to take the time of the House on this, but we should not permit the extension of the devolutionary settlement through inadvertence. I am not entirely satisfied with the legal advice that the Minister has received. My view of legal advice when matters become technical is that one can get the opinion that one wants. I am not in the least surprised that the department's legal advisers have given the Minister the advice that they have; in a way, I should have been very surprised and disappointed if they had not. But that is the position that we are in: we have to secure the future.

If we put the amendment into the Bill tonight, it will not be the end of the matter. The Bill has to go to the Commons and be considered there, and the matter will undoubtedly be further debated. The fact that something has not been done in other legislation

20 Apr 2004 : Column 217

because an assumption has been made does not mean that it should not be done when the matter has been pointed out, as it now has. On those grounds, I wish to test the opinion of the House.

7.23 p.m.

On Question, Whether the said amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 90; Not-Contents, 99.

Division No. 4


Addington, L.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Bridgeman, V.
Buscombe, B.
Byford, B.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Cope of Berkeley, L.
Craigavon, V.
Crathorne, L.
Dean of Harptree, L.
Denham, L.
Dixon-Smith, L. [Teller]
Elton, L.
Ezra, L.
Fookes, B.
Goodhart, L.
Gray of Contin, L.
Greenway, L.
Harris of Richmond, B.
Higgins, L.
Hooson, L.
Howe, E.
Howell of Guildford, L.
Jopling, L.
Kimball, L.
Kingsland, L.
Knight of Collingtree, B.
Laird, L.
Lester of Herne Hill, L.
Lindsay, E.
Liverpool, E.
Livsey of Talgarth, L.
Luke, L.
MacGregor of Pulham Market, L.
Mackie of Benshie, L.
Maddock, B.
Mancroft, L.
Mar and Kellie, E.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Methuen, L.
Miller of Hendon, B.
Monson, L.
Montrose, D.
Newby, L.
Newton of Braintree, L.
Northbrook, L.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Onslow, E.
Palmer, L.
Park of Monmouth, B.
Peel, E.
Perry of Southwark, B.
Peyton of Yeovil, L.
Rawlings, B.
Reay, L.
Rees, L.
Renton, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Roper, L.
Rotherwick, L.
Russell, E.
Russell-Johnston, L.
Seccombe, B.
Selsdon, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Shutt of Greetland, L.
Skelmersdale, L. [Teller]
Steel of Aikwood, L.
Strathclyde, L.
Thomas of Gresford, L.
Thomas of Gwydir, L.
Thomson of Monifieth, L.
Tordoff, L.
Vinson, L.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Wigoder, L.
Williams of Crosby, B.


Acton, L.
Alli, L.
Amos, B. (The Lord President of the Council.)
Andrews, B.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Blackstone, B.
Blood, B.
Borrie, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Carter, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Crawley, B.
Currie of Marylebone, L.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donoughue, L.
Eatwell, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Gilbert, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grenfell, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Jones, L.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
McCarthy, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Massey of Darwen, B.
Merlyn-Rees, L.
Mitchell, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Puttnam, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rea, L.
Rooker, L.
Sainsbury of Turville, L.
Scotland of Asthal, B.
Sheppard of Liverpool, L.
Simon, V.
Smith of Leigh, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Tomlinson, L.
Triesman, L.
Turnberg, L.
Walpole, L.
Warner, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williamson of Horton, L.
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

20 Apr 2004 : Column 218

7.34 p.m.

Lord Jopling moved Amendment No. 6:

    Page 11, line 27, at end insert—

"( ) In determining whether to make a grant to the NDA under section 24, and the amount of any such grant, the Secretary of State shall have regard to the extent to which in his opinion the NDA should make grants and loans under subsection (2)(c) for the purposes of mitigating any adverse effect of the decommissioning of designated facilities on the social and economic life of communities living near installations."

On Question, amendment agreed to.

Lord Triesman: My Lords, I beg to move that the proceedings on Third Reading be now adjourned until 8.35 p.m.

Moved accordingly, and, on Question, Motion agreed to.

20 Apr 2004 : Column 219

Illegal Immigration

7.35 p.m.

Baroness Harris of Richmond rose to ask Her Majesty's Government, further to the report from the Select Committee on the European Union, Fighting illegal immigration: should carriers carry the burden? (5th Report, HL Paper 29), whether the draft directive requiring air and sea carriers to transmit data on all their passengers to border control authorities in advance of travel will contribute effectively to curbing illegal immigration without resulting in disproportionate costs for carriers and disruption for passengers.

The noble Baroness said: My Lords, I am very glad to have the opportunity to debate this report, even though it comes at the 11th hour. At its meeting on 30 March, the Justice and Home Affairs Council agreed a general approach to the draft directive. Indeed, the Home Office issued a press release immediately after the meeting, announcing that the measures had been agreed there. The pressure to reach an agreement has been intensified by the fact that the directive will fall unless it is approved by the end of this month. Nevertheless, the directive raises important issues on which the House should have an opportunity to register its views.

The objective of the directive in its present form can be simply stated: it is to require airlines to transmit details of all their passengers to border control authorities in advance of travel. The version of the proposal that we considered in our inquiry was more extensive: it would have applied to sea as well as air carriers and would also have created a potential obligation on carriers to notify border control authorities of the non-use of return tickets. Although the scope of the proposal has been limited, its central element is essentially unchanged and so are the committee's objections to it.

The proposal is not objectionable in principle. However, we need to be clear precisely what benefits the proposal might deliver and what it could not. Given the time constraints associated with check-in procedures, all that would be possible would be a computerised check against a database of names of people who are to be refused admission or who are "of interest" to the immigration or security authorities. I do not deny that it might be of value to be able to identify such passengers before they actually present themselves at immigration control, but the proposal's value in combating illegal immigration would be strictly limited. Such people, if not identified before boarding, should normally be picked up on arrival at immigration control. What the proposal would not do, contrary to the impression that the Home Office has given, is identify people with false documents, still less those who are likely to destroy their documents en route. If a person presents apparently satisfactory documents at check-in, he or she is unlikely to be identified as a potential immigration threat by a check against a nominal index.

20 Apr 2004 : Column 220

It is particularly important to understand that the proposal would be of only limited security value. In announcing that this measure had been agreed, the Minister prayed in aid

    "the heightened terrorist threat following the recent tragic event in Madrid, and the international nature of organised crime".

The committee found no evidence of its effectiveness to combat organised crime or security threats. The requirement to transmit passenger data will not identify people who are threats to our security, unless their names are already on a warnings list and they are travelling on documents that identify them as such.

What is needed is a careful calculation of the potential benefits of the scheme against all the costs. As I have indicated, while not negligible, the benefits are strictly limited and what of the costs? Here we have been kept almost totally in the dark, since no impact assessment has been undertaken for the proposal as a whole and the Government have only produced a regulatory impact assessment with their response to our report. I have to say that it is a very poor piece of work indeed and it throws very little light on the cost/benefit equation.

What is needed is accurate quantification of the main cost components. First, there is the cost to the carriers. It would be impracticable to implement the scheme other than by means of a computerised check against a centralised warnings index. This means that every check-in desk in the world that processes flights to the EU will need the facility to scan the relevant data into the system, and transmit it for checking against the relevant database. I do not know how many check-in desks there are in the world, and I have no idea how much such a system would cost, but I hazard a guess that it would not be peanuts. This cost would fall on the airlines with no compensating benefits for them.

Secondly, there is the cost and disruption to passengers. As your Lordships will all know from personal experience, the check-in procedure has to be conducted against very tight and inflexible deadlines. Even a small addition to the procedure is likely to have a significant cumulative effect. The Minister told us when she gave evidence—and this is repeated in the Government's response—that the Home Office was looking for a response time of six seconds per passenger; the airlines estimated that data collection would increase each check-in transaction time by between 40 and 60 seconds. I leave it to your Lordships to decide whose estimate you prefer. For large flights the effect of the procedure is likely to extend overall check-in times by a substantial amount, possibly hours rather than minutes. It is not difficult to envisage the additional delays to passengers and the consequent pressure on the check-in areas of airports, and the increased risk of missing flights and of flight delays.

Thirdly, what happens if the check throws up a match with the database? The directive now provides for the check to take place,

    "by the end of check-in".

Before it was "in advance of boarding". The Government want the procedure to operate so that someone who is identified as likely to be inadmissible in

20 Apr 2004 : Column 221

the destination country can be denied boarding. That would certainly make it a more powerful instrument, but is likely to give rise to additional difficulties. One can imagine the scene when someone is told, with no reason given other than that they have fallen foul of a remote computer, that they will not be allowed to board the flight; and the effect on the queue behind them. The one certainty in all this is that mistakes will be made, but there is no provision in the directive for any redress or compensation for passengers wrongly refused boarding. The Minister told us that the United Kingdom would provide a 24-hour helpline, but it seems unlikely that the person at the end of the phone will be in a position to give reasons for the denial of boarding. Perhaps the Minister can enlarge on this in her reply. I would add only that we are not alone in our reservations about this proposal. The European Parliament, when consulted about it, rejected it decisively.

Finally, I must protest about the handling of this dossier. The regulatory impact assessment that has now been produced is a most unsatisfactory document, but even if it had been a much better product, what is the point of an assessment produced days before the directive is due to be adopted? Surely the whole purpose of this process is to inform the debate on whether the proposal should be adopted.

When our report was published, I described the proposal as "half-baked". I wish that, in the light of the changes that have been made since then, I could withdraw that description, but I am afraid I cannot. Although some improvements have been made, the fundamental flaws that the committee identified in its report remain, and our concerns have not been allayed by the Government's response.

This debate has the effect of clearing from scrutiny the document which is the subject of the report. Normally we would have associated with that document the later texts that have been submitted for scrutiny. On this occasion, however, we do not believe that we would be justified in clearing the latest version of the directive from scrutiny today. I believe that the Government have shown scant regard for the scrutiny process by signing up to a general approach, which they themselves describe as an "agreement", before that process has been completed. I see that the Minister's press release referred to the fact that the directive would be subject to parliamentary approval only in the notes for editors. The European Union Committee has not yet had an opportunity to consider the regulatory impact assessment or the latest draft of the directive, which was submitted only yesterday. We will examine this text in more detail at our meeting tomorrow, but I hope that the House will agree that, if the proposal is still subject to the objections that we have identified in previous versions, we should not clear it from scrutiny against our considered judgment simply on account of the deadline of the end of the month.

I look forward to hearing the Minister's response and through her would urge the Government, even at this late stage, to reconsider their support for this measure. In our view it should be withdrawn and reintroduced by the Commission only after a full assessment of the implications for passengers and carriers.

20 Apr 2004 : Column 222

Finally, I understand that the Commission is planning to bring forward a draft directive in June on passenger data. That should be the vehicle for a measure of this kind and would allow proper scrutiny.

7.46 p.m.

Baroness O'Cathain: My Lords, I welcome the opportunity given to the House to debate a very important issue and, in doing so, congratulate wholeheartedly the committee on a most interesting report.

Before going any further I have to declare an interest as a director of British Airways but I have received no briefing from it other than a copy of the evidence that it submitted to the committee which is printed in the report. Today I received an update of developments since the directive was first published, which we have heard from the noble Baroness, Lady Harris. I am, of course, drawing on my experience with the airline but there is no special pleading from it in this case.

I am not being in the slightest bit patronising but I wish to say that this report is a very good, informative and well researched document. As a short report it is a great deal more comprehensive than its size would seem to imply. I have experience of being on Select Committees where short reports are undertaken as "fillers" in between major inquiries. They are quite often rushed and thin on evidence. This is certainly not the case with this report, even though there was only one session of oral evidence.

The written evidence is of a high standard and the conclusions drawn by the committee from the written evidence show a significant depth of understanding of the fundamental issues, and they are not easy. No wonder that the reports of the European Union Committee of the House of Lords are so highly regarded elsewhere, not least in Brussels.

The most startling feature of the directive is the fact that it is limited to requiring carriers to co-operate with member states' border controls to assist national authorities to combat illegal immigration but nowhere is there any mention in the directive of the necessity to combat international crime nor to deal with threats to national security.

However, in the evidence from the Minister, equal emphasis was placed on these last two issues as on the illegal immigration issue. This is yet another case of the UK Government not only apparently accepting the directive—which, as the noble Baroness pointed out, was issued by Brussels without any explanatory memorandum and completely without any, even tentative, analysis of probable cost—but also gold plating it to an extent which would engender massive costs and huge disruption to the flow of travellers, whether for business or leisure, between this country and the rest of the world. Is this sensible, just or even-handed? What about the competitive position of the United Kingdom?

Why do we so often see the publication of a draft directive from the EU as an opportunity to preen ourselves as the "best boy on the block" and out-do the

20 Apr 2004 : Column 223

original perpetrators of the directives? In this particular example the committee pointed out rather trenchantly in paragraph 9:

    "The effectiveness of the proposal as a tool to combat organised crime or threats to national security has not been substantiated".

Having just made that point about the committee's view, I think it quite remarkable that all 14 of the conclusions and recommendations contained in chapter 3 of the report are in effect negative. That surely must be a record for a report from the European Union Committee. I congratulate the committee on being so forceful in its analysis and conclusions, but is it not dreadful that a draft directive such as this should be so transparently lacking in any sense? It would be unworkable, discriminatory and disproportionate. It would impose huge costs on only one sector of the travelling public; namely, air passengers. Everything else is in the "all too difficult" basket. Would it have any chance of curbing illegal immigration? I fear not. I equally fear that the people who drew up the directive have no conception of how travellers behave; air rage would be the order of the day, every day.

The noble Baroness described the check-in situation and the time that it would take to process the additional information. One little situation described in the evidence of Britannia Airways illustrates the unworkable nature of the proposals. Every individual on every intra-EU and in-bound flight from a non-EU destination will have to have their details taken at check-in to identify any third-country nationals on board. That would of course involve passport machine readers. Checking those documents on the readers could take up to a minute per passport, as we have been told. A Boeing 747–400 has a capacity of 359 passengers. I have been on four in the past five weeks that were full—good for the airline, but not great for the passengers who have to check in. To comply with the directive alone, not to mention the rest of checking in baggage, checking tickets and so on, would require six additional hours' check-in per flight. Need I say more? Please note that that is not BA evidence, but that of Britannia Airways.

The most fascinating and worrying section of the report is the examination of the government witnesses, the Parliamentary Under-Secretary of State and the two officials of the Home Office. The responses to the questions show a poor understanding of the reality of 21st-century travel. Do they not realise that Heathrow alone handles nearly 50 million passengers a year? The Minister said that it was important to,

    "have access to passenger information . . . at check-in",

relying on electronic response. In answer to question 37, the Minister was not exactly reassuring about the ability of the Government to commission a foolproof system—and can we truly have any confidence in any IT project handled by the Government now? Government involvement in complex IT systems has been a catalogue of disasters. Being told by the Minister in the same answer that,

    "we are all on a learning curve",

does not fill me with confidence. How long and steep is the curve?

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The admission of gold-plating comes in answer to the noble Lord, Lord Avebury. The answer was:

    "We are increasingly looking at it"—

the directive—

    "in terms of border control, as being about immigration, Customs issues and policing issues".

That involves other government departments as well as the Home Office. It is a nightmare scenario. Let us not forget that the hijackers of the four aircraft involved in the dreadful disaster and tragedy of 9/11 all had valid passports and visas.

As the noble Baroness pointed out, no regulatory impact had been produced when the report was published. She tells us that one has just been produced, but unfortunately I have not seen it. That brings me to my real search for information on what has happened and is likely to happen with the directive. Doubtless we shall hear from the Minister about that. However, in advance of that, I inquired what BA's interpretation of the current situation was. Hot off the press today, it said:

    "At the time BA submitted evidence . . . to the House of Lords . . . the draft EU Council Directive on the obligation of carriers to communicate passenger information included some onerous and difficult requirements. For example, passenger information included data that was not found in the machine-readable zone of the passport (place of birth); and data was required on passengers not departing the EU as ticketed.

    "Since then, the Council Directive has been modified and some requirements have been deleted. What remains is a requirement to collect and transmit passport information . . . which can be collected by passport reader, and fines of up to 5000 Euros for non-compliance.

    "The UK already has legislation in place that requires carriers to collect and transmit this data (UK Immigration (Passenger Information) Order 2000). To date, BA and few other carriers have been required to collect data specified in the Order. This is in part due to the assurances given by Home Office Minister Barbara Roche . . . in written answers on 6 April 2000",

that showed some flexibility on the part of the Government. In the interests of time, I shall not read the whole Answers. BA continued:

    "Since then, BA has been working with the Immigration Service in support of their E-Borders initiative which includes a scheme to collect and transmit passenger information on flights to and from the UK called an Authority to Carry scheme. Permission to carry the passenger will be sought electronically from the Immigration Service whilst the passenger is at check-in".

There are some benefits for the airlines in that, and BA will support its operation, but only,

    "on a limited number of routes.

    "The scheme envisaged in the EU Directive is different from the Authority to Carry scheme in that it requires the transmission of bulk passenger manifests upon flight departure with no benefit to the carrier".

However, it is of huge cost to the carrier. BA said that it and other airlines had,

    "major objections to such a scheme for operational and cost reasons".

I look forward to hearing the Minister's reply, because I am sure that we all need to know more on the issue.

20 Apr 2004 : Column 225

7.56 p.m.

Lord Clinton-Davis: My Lords, first, I ought to declare an interest as president of the British Airline Pilots Association. Secondly, I think that the sub-committee has done an excellent job. The noble Baroness, Lady Harris of Richmond, who introduced the debate, was extremely generous in the way in which she opened her remarks. Happily, that generosity was not borne out by her speech.

I regret to say that I see little in the Government's concept, in both theory and practice, which would commend the draft proposal to this House. The Minister has specifically stated that the measure as drafted has "serious and fundamental flaws". Despite that, the Government have opted in. They have ignored the sub-committee's views. In the final analysis, this debate is something of a charade in that, in all essential respects, the Government have made up their mind. They propose to bypass the sub-committee altogether.

Illegal immigration is a serious issue, of course, but, at least between the time that the text of the proposal was first considered and 9 October—the date of the Minister's letter—it remained unaltered, with all its faults. That is hardly an indication that the EU at that time moved with lightning speed to address the matter.

I share the apprehension voiced by the noble Baroness, Lady O'Cathain, and by British Airways, Britannia, Virgin, BARUK and the British Air Transport Association about the proposal. Regrettably, their concerns have not been adequately met by the Government. I hasten to add that I am deeply ashamed, as a loyal supporter of the Government, that that has been their response. The reason is that the Government have failed to understand that airlines are in the business of transporting passengers, rather than operating border control issues. That was the criticism voiced by BARUK.

Will there be avoidable delays, so far as departing and arriving passengers are concerned? British Airways has stated that it fears that congestion at airports will inevitably follow. Is that correct? Is it also correct that aviation companies would have to bear extensive costs in installing new computerised passenger tracking systems? The views of both British Airways and Virgin are clear. They could be impolite, if that was the order of the day. They could have gone much further, but that would have been impolite. The proposals—not just this one—are half-baked, to echo the views of the noble Baroness, Lady Harris.

There is no world-wide system that can electronically collect advanced passenger information. Similarly, not all passports are machine-readable. Therefore, if we are to attain 100 per cent accuracy, we shall be dependent on manual checking if we are to do something else. In practical terms, that means making sure that the proposal is considered globally. It is not impossible for global guidelines to be worked out, either by ICAO or IATA, and considered by the airlines and governments. After all, it is an important issue which should not be decided in five minutes, five hours or five days.

20 Apr 2004 : Column 226

The European Union has not shown undue haste regarding the issue. There is plenty of time for the views of the sub-committee to be further considered. Unfortunately, the Government have made up their mind. It is premature to introduce new systems—for example, European border initiatives—until there has been adequate consideration, consultation and implementation on a global basis of any new system.

We should also consider how our existing provisions answer, or fail to answer, the most immediate threats. Is it also correct, as Virgin has alleged, that the cost of implementation of the type of proposals envisaged are to be borne by governments of many of the competitors of British airlines? It is appalling that some governments will support the idea and others will not. Our Government are among the latter.

The Immigration Law Practitioners Association has also raised important questions. In the short time available to me I shall quote some of the matters that concern them. First, they say that the proposal contains,

    "no explanatory memorandum which sets out the background, the history and the justification for the measure".

I would have thought that that was absolutely vital. In my experience, both as a Minister in both Houses, and here, as a Back-Bencher, I cannot recall a situation where such a position has been replicated. It is deplorable.

Secondly, the ILPA says that the scrutiny of the proposal is hampered by the inability of the sub-committee to do anything about the bad drafting of the proposal. And that, it says, is,

    "irrespective of any problems of principle, unworkable"—

I repeat: "unworkable"—

    "in their first drafts".

It ought to know. The ILPA includes the people who, day by day, make sure that our immigration laws are applied. Its criticisms are not to be ignored. The ILPA makes many other critical observations—as do the airlines and my association.

The Government ought to be much more prepared to be decisive regarding these issues, and it should not be too late to say so.

8.6 p.m.

Baroness Park of Monmouth: My Lords, this is an admirable report which I read with great interest and respect. I warmly agree with the committee's view that the UNHCR proposal for the transfer of responsibility for processing asylum claims to the EU is not practical, and I do not have much more faith in the UNHCR itself, judging by its performance in Egypt and elsewhere in Africa.

It is essential to strengthen the support systems in the receiving countries—and that is, unfortunately, true of our country. Many of the law firms who advise asylum seekers in this country are both overworked and incompetent. I understand that the same inadequate resources apply to tribunals. I also feel that neither the UNHCR nor the EU can be expected to understand

20 Apr 2004 : Column 227

the broad range of problems faced by many countries. I support the committee's strong reservations about the proposals for directing asylum seekers to neighbouring countries—so-called regional protected areas or the "regional prong". They are countries which are themselves often poor and under-resourced—and are certainly without the means to care for refugees.

8.7 p.m.

Lord Avebury: My Lords, I congratulate my noble friend most warmly on the magnificent speech with which she introduced this short debate. The criticisms she expressed have been echoed by all noble Lords who have spoken. Strong adjectives such as "unworkable" and "discriminatory" have been used to describe the measure, despite the fact that there has been a last-minute update of the instrument that has removed some of its worst features. Nevertheless, my noble friend identified some of the significant problems which remain and which she called "fundamental flaws". We heard from the noble Baroness, Lady O'Cathain, about the enormous difficulties it will create for airlines and for millions of passengers all over the world.

We have also heard about the desperate haste with which the measure has been shoved through. I want to draw your Lordships' attention to a practical reason why haste may be inadvisable. It is that the Americans are developing their own scheme which requires carriers operating to and from the United States to provide them with electronic access to passenger name records to the extent that they are collected and contained in the air carrier's automated reservation system—in their case within 15 minutes of a flight's departure. They have similar requirements for sea carriers, but they are being removed from this measure.

In the Americans' case, the primary objective is to stop the entry into the US of potential terrorists, whereas we were told that for Europe the purpose is to combat illegal immigration. However, that has now been extended and the Government are talking about its use against potential terrorists, too.

The PNR data elements required by the US customs and border protection comprise 34 different items, while the European directive calls for only nine. But two of the elements in the European set—the number and type of travel document used and the date of birth—are not in the US set because the Americans are dealing in another way with information on the passport. Ultimately, as passports become machine-readable, that will be a different kettle of fish. No doubt every bit of information from the ticket and the passport can be transmitted in one set. That is not what we are looking at here.

The European directive, by combining some information on the passport with other information on the ticket, actually imposes greater burdens on carriers than the US PNR requirement, which deals solely with ticket information. The carriers have made it clear that while they accept the US requirements they are not at

20 Apr 2004 : Column 228

all happy about the directive. That has been evident from the speeches we have heard today, particularly that of the noble Baroness, Lady O'Cathain, who ought to know a great deal about the subject from her professional work.

I also have heard from British Airways and from Virgin which object most strenuously to the proposals as they stand. I believe that following the debate we need extra time to consider how we are to meet the serious objections that they voice.

We also heard that the European Parliament has rejected both sets of proposals and its Legal Affairs Committee has referred the "adequacy" of the EU/US draft agreement on the transfer of passenger data to the European Court of Justice.

If the collection of information by carriers and the transmission of that information to particular authorities in the destination countries is justifiable in order to prevent terrorism and other types of crimes, including illegal migration, it would surely be best, as the noble Lord, Lord Clinton-Davis, said, to arrive at an international agreement on the extent of the information, the data protection standards to be applied to it, and practical questions such as the point at which the information has to be supplied, the liability of carriers and the rights of persons who may be prevented from travelling by incorrect or wrongly interpreted information. The Deputy Information Commissioner makes that point clearly in his letter to the chairman of the EU Select Committee of 12 March, when he writes that,

    "the Working Party believes there is a need for a global solution . . . in order to ensure a uniform approach allied with a harmonised set of suitable safeguards. The Commission strongly supports that view".

Yet, despite that, we are being asked to endorse two different sets of proposals—one for the EU and one for the US—which are entirely incompatible with one another.

As regards the directive, the "adequacy" decision under Article 25 of the Data Protection Directive was not submitted for scrutiny, as we have heard. In his letter to the chairman of the Select Committee dated 26 February, the noble Lord, Lord Filkin, apologised for the Government's failure to identify that decision as being of such importance as to trigger the arrangements for scrutiny of comitology legislation. The Minister then went on to say that the timetable for approving the draft EU/US agreement on the transfer of PNR data was likely to be very tight and that he wanted its consideration by the Select Committee to be expedited. He has already instructed the UK member of the Article 31 Committee to support the draft adequacy decision without giving us the opportunity to scrutinise it.

Of course, we agree with the noble Lord, Lord Filkin, that the UK should not put itself in a position where its commitment to combating terrorism is called into question, and we are not challenging the principle of using PNR data for that purpose. But we should not simply abandon our right and our duty to scrutinise the proposed legislation properly—not only but especially so where data protection is at issue, as it is in both these measures. I

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believe that that would be an extremely dangerous precedent for us to set and one that we would certainly live to regret.

The US has limited data protection laws, which give no rights to non-US citizens and no redress for any damage they may suffer through the use of their personal data, which is to be transferred under the proposed EU/US agreement. This is the first occasion on which operators in the EU are to be made to transfer data—on a massive scale at that—to a public authority in a third country in a way that is not consistent with the Data Protection Directive. It is proposed to regularise this unusual proposal in two ways: first, via the undertakings by US Customs and Border Protection, for example, to disseminate the data only in certain specified circumstances and to certain "designated authorities" but without offering any remedy to a person whose data are used in a way that contravenes those undertakings; and, secondly, by means of the adequacy decision, which I have already mentioned and which allows carriers to transfer personal data and to make their computer systems available to the CBP to "pull" data without technically breaking domestic data protection legislation, whatever use is made of the data in the US.

The worst feature of the rush to comply with both the US demands and those which come from the EU is that if our committee decided to hold the proposals under scrutiny, as we should do, we can be fairly certain that the Government would override the scrutiny reserve. If I am wrong about that, the Minister, in her reply, can correct me. But if she says nothing, this is a case where one of the most far-reaching proposals ever to come before the committee cannot be properly considered because of the exigencies of the timetable.

8.16 p.m.

Viscount Bridgeman: My Lords, I join other noble Lords in congratulating the noble Baroness, Lady Harris, and her committee on their excellent report and, in particular, on the clear way in which their proposals and recommendations are set out in Chapter 3.

It is fortuitous that this debate comes in the middle of the Committee stage of the Asylum and Immigration (Treatment of Claimants, etc.) Bill. On the first day of Committee on 5 April, my noble friend Lady Anelay gave notice that, in the course of this debate, we would be pursuing in further detail the matter of the new clause introduced by Amendment No. A1. The report has rightly highlighted the concerns that carriers have, and I know that the concerns of the Regulatory Best Practice Group have been made known to the Minister. Indeed, those were highlighted by my noble friend Lady Anelay in Committee. What I have to say will therefore come as no surprise to the Minister. However, I hope that her replies to the points that I shall raise will satisfy us to the extent that it will not be necessary to return to this matter in any detail on Report.

On the first day of Committee on 5 April, my noble friend Lady Anelay, as reported at cols. 1596–97 of Hansard, mentioned several points which were giving

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carriers concern. They included the unacceptably short notice given by the Government for consultation on the regulatory impact assessment, as referred to by the noble Baroness, Lady Harris, which fell well outside the Cabinet Office guidelines. The case made by the carriers for favourable treatment on the cost of equipment given to the fishing industry was another point. Admittedly, my noble friend's amendments were probing, but I have to say that the Minister's reply was not wholly encouraging.

Since then, the Government have given a considered reply to points raised by the committee. However, the question of proportionality and associated costs remains uppermost in the minds of the carriers. We from these Benches support the broad concept of API and accept that some cost must fall on the carriers. We are also persuaded that the requirements must apply to both EU and non-EU citizens, but we note that the API requirements are to apply, certainly for the present, on flights originating only outside the EU. There seems to be a certain amount of confusion about this point. I should welcome clarification on it from the Minister because it appears to be specifically set out in the regulatory impact assessment report.

I am not totally reassured by the confidence of the Minister in another place that there will be a minimum increase in delays in checking in. The noble Baroness, Lady Harris, has given telling figures. In addition, we share the concern of carriers that insufficient account has been taken of the huge disparity in the availability of technical facilities which API will demand. The major airports where such facilities exist will be well equipped to cope with these requirements. However, for the ones in less resourced countries from which statistically many of the immigrants can be expected to come, it will be a costly imposition in terms of both finance and good will. The carriers complain that 10 airports have been chosen to implement the first phase of the scheme and that the illegal industry will simply avoid those. I understand that the Government do not regard that as final, and I should welcome the Minister's assurance that this is a matter for further consideration.

We note that Johannesburg has been chosen as the first airport to operate API. It is an airport with a very limited number of daily flights to the United Kingdom. How is API to stand up to airports with heavier traffic on the route to, for example, Bangkok, Lagos or Miami? I think that it is also true to say that the carriers feel the Government are not taking fully into account the commercial implications of the directive's requirements. The last-minute bookings trade, exemplified by for instance, is a huge marginal revenue earner for airlines. The business travel market is a major earner for the airlines and while admittedly alternatives for travel from outside the European Community will be limited, it cannot but have a negative effect on airlines' revenues.

The RIA has been quite frank that it has not made a small business assessment. That is one of the deficiencies of this report, a point to which other noble Lords have drawn attention. It has not carried out this test, but this is another potential cost to industry,

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whether it is the passing on of costs by the airlines to small travel agents or the cost of business travel to small businesses, of which the Government must be aware.

The Government remain vague about the cost implications of various technological alternatives to the photocopying of all identification documents on which there is total agreement that this is not workable. Caroline Flint in another place was optimistic about the solutions here, but the report specifically gives no cost estimate for what is option 3 in its document. I would welcome any flesh that the Minister can put on these good intentions—to mix a metaphor—if necessary by a letter to be placed in the Library.

There are a number of points in Miss Flint's letter which address some of the committee's concerns. We are pleased with her assurance that the Government intend to remain fully involved with negotiations on the final form of the directive. However, I wrote this before the Baroness, Lady Harris, spoke. They have given an assurance that ample time will be given to the committee for final scrutiny. The Minister's letter to the noble Lord, Lord Grenfell, who I am pleased to see in his place, states that the committee has requested that it be provided with ample time to scrutinise fully an EC/EU decision or international agreement in the field of API and that the Government will make every effort to ensure that the committee has adequate time for scrutiny in this area, given the importance of the subject and its implications. I can only refer noble Lords to what the noble Baroness said.

I trust your Lordships will forgive me for taking advantage of this opportunity, which is too good to pass up, effectively to extend the debate on the asylum Bill. However, I cannot too strongly emphasise that, while the necessity for this legislation is appreciated by all parties, we are concerned that the Government are taking the airline industry for granted and are minded to load a disproportionate cost of this operation on to the airlines without making concessions which go some small way to alleviating the burden. If the Minister is able to address our concerns—if necessary by way of letter—we would hope to avoid the necessity of extensive amendments on Report.

Perhaps I may once again thank the noble Baroness, Lady Harris of Richmond, and to congratulate her and her committee on their excellent report. I look forward to the Minister's reply.

8.23 p.m.

Baroness Scotland of Asthal: My Lords, I, too, thank the noble Baroness, Lady Harris, for raising the issue, which has important implications for carriers, passengers and border control authorities. I very much welcome the opportunity to explain the Government's position with regard to the initiative.

Perhaps I may straightaway express my disappointment that the efforts made by the Government to explain why we have taken this course have met with such a poor reception, not least to say to my noble friend Lord Clinton-Davis that

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I am very disappointed indeed that he feels that the Government have failed to understand the business of the airline industry and that it is a participant with us in issues in relation to securing our borders.

I hope that my comments will reassure my noble friend in particular but also the noble Baronesses, Lady Park and Lady O'Cathain, and the noble Lord, Lord Avebury, that the Government have a better understanding than they fear.

Advance passenger information can, we believe, deliver significant benefits, not only in the fight against illegal immigration, particularly in the area of document and identity abuse and improving border controls, but also in the wider areas of law enforcement and countering terrorism.

I certainly hear what was said about the events of 9/11, but those were peculiar offences. I know that noble Lords will agree that there are many cases of identity fraud across international borders that can be stopped by our taking appropriate measures. These measures will assist us greatly in that regard. The border agencies have been aware of those benefits for some time. The Immigration Service, Customs and Excise and the police already have passenger information gathering powers conferred by national legislation.

We are satisfied that the passenger information requirements of the directive are largely consistent with our existing domestic legislation. For example, the information requirements of the directive broadly reflect the provisions of paragraph 27B of Schedule 2 to the Immigration Act 1971 as amended by Section 18 of the Immigration and Asylum Act 1999 and the Immigration (Passenger Information) Order 2000. Although the Government had concerns about some of the elements contained in the original proposal, we considered that the directive provided a realistic and timely opportunity to work with European colleagues to promote the development of a co-ordinated and harmonised approach to advance passenger information.

Pending a determination by the Council Legal Service on the legal basis for the directive, the Government were obliged to decide whether to opt into the measure by 25 June 2003. We elected to do so because we had already been considering how to take forward our own implementation of API, for the reasons that I have already given, and, as a result, had developed a degree of expertise in this area which we believed could usefully be shared with our European partners. It was also on the understanding that we would have an opportunity during the working group discussions to shape the final text to reflect the United Kingdom's concerns. The Council Legal Service subsequently classified the measure as building upon Article 26 of the Schengen acquis, which essentially means that the United Kingdom is deemed to have automatically opted in under Article 5 of the Schengen protocol.

Although we have supported the directive since its inception, we have always made clear that we consider it absolutely crucial that the use of data obtained under the directive should not be restricted to combating

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illegal immigration. The heightened terrorist threat following the tragic event in Madrid and the international nature of organised crime demonstrate how important it is that we get it right. It is vital that we use every resource at our disposal.

We have negotiated hard in an attempt to produce a satisfactory final text to safeguard the United Kingdom's interests and to enhance the effectiveness of the proposal. We believe that the directive now provides the necessary flexibility to support processes that will maximise the benefits of advance passenger information.

The directive provides a framework—I emphasise that it is a framework—to enable member states' authorities to develop obligations for carriers to provide passenger information. The Government recognise that the development costs are critical in establishing the necessary technological infrastructure to bridge the gap that currently exists. In developing advance passenger information processes that build on that framework, the Government will look to work with carriers rather than impose solutions without consultation.

The noble Baroness, Lady O'Cathain, gave a graphic example of where we are already doing that—I believe that we are doing so very sensitively, appropriately and to the satisfaction of all. Working together we have been able to develop very practical, workable solutions that have inured to the benefit of not only the industry but the aims of security and safety that we all wish to advance.

There is significant scope for limiting costs through the development of a co-ordinated and harmonised approach. The UK is not alone in its recognition of the benefits of advance passenger information against a backdrop of rising passenger figures, resource constraints from any border control authorities and an escalating terrorist threat. An increasing number of countries have introduced, or are taking steps to introduce, systems based on advance passenger information. The Government consider that it is crucial that the United Kingdom be at the forefront of this movement, playing an active role in shaping the framework on which many of these systems will be based. This template will be set and, frankly, we would prefer it to be set with us than without us.

We also recognise that there are significant data protection implications associated with this measure. The greatest of care will be taken in the processing of such data, with a view to correct and accurate usage to prevent such infringement. I know that is an issue that the noble Lord, Lord Avebury, has been particularly concerned about. We will also seek to ensure that data is processed securely and protected from inappropriate access. In developing domestic procedures, the Government will seek legal confirmation on compliance with data protection principles.

European Union Sub-Committee F raised a number of issues in its report, which the noble Baroness, Lady Harris, referred to, which was published on 12 February. In our response, the Government provided evidence to substantiate that the directive is

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a proportionate, effective and necessary measure to combat not only legal migration, but terrorism and serious criminal activity. I am sorry that that response does not seem to have reassured the committee in the way that the Government hoped. I assure noble Lords that the Government recognise the implications for carriers and passengers, and we will seek to develop processes in consultation with relevant stakeholders to minimise these wherever possible. Significant amendments to the text have been negotiated, such as the removal of the requirements for carriers to notify authorities when passengers do not use their return tickets. I hope that the committee will join the Government in welcoming these amendments.

The noble Baroness, in her powerful address in opening this debate, spoke about a number of the practical difficulties. I have already said that this is a framework. The directive does not expressly require member states' authorities to operate a board/do not board procedure. However, the Government intend to develop an authority to carry scheme, which will include a facility for passengers to be denied boarding, and we recognise the importance of providing a robust, timely avenue of redress. In view of that, the Government are developing a resolution mechanism, by which passengers may review decisions with the control authorities. It is anticipated that this mechanism would include a round-the-clock telephone inquiry line, which the noble Baroness, Lady O'Cathain, has already mentioned, which would provide the means for immediate resolution wherever possible. Regulations will be laid before Parliament that detail the authority's carry scheme, and Parliament will have the opportunity to debate this in full, because the devil will be in the detail. We would hope to deal with the practical issues that a number of noble Lords have raised.

The sequencing is therefore the framework, the API directive, the process, or processes, followed by implementation. For example, we have the Immigration Passenger Information Order 2000, for which an RIA was produced. We are seeking to introduce a requirement for all, or part, of the travel document to be copied, for which an RIA was produced. Both these processes would need to be compliant with the directive. Further processes will also need to be compliant. I hope that I have said enough to indicate that there is scope for us to address those issues.

This debate will provide an opportunity to demonstrate to the committee, and to other noble Lords gathered this evening, the considerable importance that should be placed on these issues. We are running very fast out of time. The noble Viscount, Lord Bridgeman, raised a number of issues that I would be happy to deal with tonight. I am afraid that we do not have time. I hope that he will accept that I will write to him on all those matters.

This has been a fascinating debate. Issues have been raised as to whether the impact on carriers is effective and fair. We argue that they are, and that they have been, properly dealt with. The costs to carriers will be

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taken into account. The Government hope that in what I have said today and in the details that we shall continue to give, noble Lords will feel, contrary to what has been said, that proportionality has been assured and that we shall be able to reassure the House that the scrutiny provisions are appropriate.

If I had more time, I could explain precisely the process that was adopted in relation to the progress of the directive and why the scrutiny issue has been dealt with as it has. Time does not allow me to do that, but I hope that noble Lords will allow me to write in relation to all those matters.

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