Examination of Witnesses (Questions 1-19)
Ms Meg Hillier, Mr Tom Dodd and Mr Kevan Norris
19 MARCH 2008
Q1Chairman: Minister, welcome. Thank you very much for finding the time to come. You have brought Mr Dodd and Mr Norris with you and I am sure that if you want them to supplement any of your answers, the Committee will be very happy to hear from them. We will do our best to release you for Prime Minister's Questions at noon. All I will say to you is that in the days when I was the Government Chief Whip down the other end, I never held it against any Minister who was unable to attend Prime Minister's Questions because of attendance at a Select Committee. Minister, you will realise that this is a short inquiry which the Committee have embarked on prior to a much longer inquiry into EUROPOL. What we are looking at is a follow-up, which I know is a rather tangential follow-up to our earlier report on PNR, but this is a short inquiry into those aspects of the Framework Decision where it appears that Government policy is to treat it as a permissive measure on which the United Kingdom can build a stricter regime. Would you like to make an opening statement or shall we go straight into questions?
Meg Hillier: My Lord Chairman, I would like to introduce Tom Dodd, who is the Director of Border and Visa Policy at the Home Office, and an expert on PNR, and Kevin Norris from the Legal Adviser's team at the Home Office, who is an expert on wider EU law. So, as you indicated, if there are any questions I am unable to answer—or indeed, can answer better than I, although I hope I am able to answer all questions—then they will be able to help. All of this fits in very much with the reforms of our immigration system overall and the introduction of the points-based system that is underway at the moment. My colleague, the honourable Member for Birmingham, Hodge Hill, Mr Liam Byrne, who is the Immigration Minister, has unveiled ten steps towards change over the next 18 months, which is radically reforming our immigration system. Our priority is very much protecting the public and maintaining our borders, so we use our opt-in in Europe appropriately to make sure that we strengthen those aims. But, saying that, we still want to work very closely with colleagues in the European Union and I am making a great effort to talk to colleague ministers from our European partners, as well as European Parliament members. In fact, three or four weeks ago in Brussels I met a number of European Parliament members, including the Baroness Ludford, to talk about this very issue and have invited the LIBE Committee over. We are very keen to keep up that very direct engagement with Europe because we feel strongly that this issue is one that will help to protect the public and, of course, data protection plays an important role for us in what we are doing both within the UK and with plans in Europe, and it has been the subject of a number of my discussions with ministers. Under the proposals that we have in the UK, we think that by 2010 we can monitor 95% of all passenger movements. We have the technical capability; the legislation has been passed domestically, and we are keen to make sure that we continue to argue the UK's interests within Europe.
Q2 Chairman: That is very helpful, thank you. You will recall that Article 1 of the Draft Framework Decision gives its purpose as preventing and combating terrorist offences and organised crime, yet Article 11 limits the processing of data for these purposes. You say you want to negotiate a wider scope to include broader law enforcement purposes. Would using PNR data on this scale still strike the right balance between security and privacy?
Meg Hillier: My Lord Chairman, I believe it would. From our own experience of Project Semaphore, which is our pilot, we can demonstrate, and I have been trying to explain this to colleagues in Europe. By using Passenger Name Records and Advanced Passenger Information, we can screen out people who are ordinary, happy, everyday travellers who are not meeting the profile of people who might be a risk to the United Kingdom. That means that we can focus far more closely on the passengers who may be a risk. It is worth emphasising that when we do this screening, it starts when someone becomes a passenger, so it is not data that is held on people and can be used willy-nilly. It can only be used because someone is a traveller and even if a flag comes up that somebody, for instance, has perhaps travelled a certain route and that route historically has been one used by drug traffickers, there would be a manual check by officials from the relevant organisations to make sure that the information then warranted an intervention. So far, our use of PNR data has contributed to interventions and often arrests on a range of activities, including rape, murder and other violent crimes, as well as abuse of immigration law—something that is not within the EU parameters, and PNR has been a major help in that area. One of the other issues, My Lord Chairman, implicit in your question, is about profiling. It is categorically not racial profiling, in fact, from our experience in the UK, fewer people have been stopped because of what they look like because we are using the movements of passengers rather than other data about them. It is based on that movement activity rather than what people might look like, and the inevitable personalisation by immigration officers who have to make an assessment quickly at the border—even with all the training, people are still only human. So, it is blind to what people look like and that has helped in that respect, which certainly European ministers were very interested to learn.
Q3 Chairman: If I may say so, the controversies over profiling, of which you will be well aware, go much wider than racial profiling, of course.
Ms Hillier: Yes, certainly. You are perhaps talking about religious profiling?
Q4 Chairman: Well, no, it goes much wider even than that does it not?
Meg Hillier: The information that is used is about passenger activity: everything from buying a ticket at a particular travel agent, maybe in cash, to a particular route travelled, to perhaps a pattern of behaviour so that someone has travelled a particular route very frequently over a period of time. If that threw up a match with some recognised criminal activity from the various intelligence agencies and police who are involved, then that would mean that the group or individual would be looked at more closely, and that manual check would allow any intervention necessary.
Q5 Lord Hodgson of Astley Abbotts: May I start with a question of clarifying your letter, which probably reveals my ignorance of the way EU law operates. On the second page, in the second paragraph—this is My Lord Chairman's question of building on a framework—you wish "to legislate domestically to process passenger data on journeys by sea and rail". And in the third paragraph begins, "By contrast, an attempt to rely on domestic legislation to broaden the purposes for which PNR data may be processed . . . could be perceived as undermining the terms of the EU legislation". As I understand, in the second paragraph, you are proposing to use domestic legislation; in the third paragraph, as it is currently drafted, it appears to be undermining EU legislation. What have I misunderstood there?
Meg Hillier: We have introduced it domestically; in fact, I put it through the House in a statutory instrument just prior to 1 March, when it came into play. What we are saying is that within Europe, the proposals are not as strong as we would like, but we have had some comfort from the Commission in the discussions that are underway at the moment, in which it has been made very clear that we can use some of the data to tackle criminal issues. We want to see the text tightened to allow us to continue, in domestic law, what we are doing and we are also continually negotiating with colleagues in Europe about the scope. It is interesting that when speaking to other ministers in Europe about data protection, I have provided them with information about our strong data protection measures. Much of what we are doing is quite popular, but we are ahead of the game with other European colleagues, and to a degree this Framework reflects that.
Q6 Lord Hodgson of Astley Abbotts: So this third paragraph, in terms, does not state the case; we are able to rely on domestic legislation, because we already are.
Meg Hillier: Yes.
Q7 Lord Mawson: Would you give us a thumbnail sketch of how it works in practice; the mechanisms of when a person enters the system and how it applies to them, and what they understand is happening to them; do they know what is happening?
Meg Hillier: That is a very good question. What we believe is that this makes it much easier for people who are just travelling normally to travel and not be stopped unnecessarily. So, what happens, for example, Lord Mawson, if you were travelling, at the point at which you buy your ticket and register with the airline, that is Advanced Passenger Information that the airline would have. Then, assuming you are flying, the airline would also collect information at the point of check-in. That information would be passed to the UK prior to arrival, so it could be that you are a dangerous individual and then there would be a match on a watch list against your name. If it was not that, it could be, for example, that you may be travelling a particular route well-known by human traffickers, and that there was a certain method of buying tickets that indicated that route was being taken. That would flag up that there was a match, and there would be a manual check to see if Lord Mawson might be somebody worth stopping and questioning. There may be innocent reasons for that journey, in which case, you would not be stopped. Sometimes people are stopped who may need to be questioned and then released, but most people would be screened out at that point if they were innocent travellers. They key thing is that the legislation is only triggered at the point at which you travel. There are then data protection issues around how the information is used and stored and accesses to different agencies—the police, the Border and Immigration Agency and HMRC in the UK, as well as the intelligence agencies—which have to abide by any data protection if they have made a hit against the system and requested further information. They have to prove they need that information for it to be released to them and they would then hold any information that they had taken out of the system under their own data protection rules within their organisations. I can leave you details on that, if you wish.
Q8 Lord Mawson: Yes, please. As a passenger, is there any clue given to me that any of that is happening with all my information? I suspect people nowadays are pretty suspicious of any information about them that goes into these databases and generally what they assume is that it is free to anyone and you cannot control it.
Meg Hillier: But it would not be looked up under anyone's name unless there was a reason for that name to be flagged. In most cases, it would be one of the various criminal watch lists that exist.
Mr Dodd: It is information which passengers are giving to carriers anyway, so the PNR is booking data which the carriers have in their systems. When you check in, they have got that API information also, so we are not requiring all the passenger's additional information on their movements, it is existing information which the carriers are then giving to the Government to put into its database, which we then act on only in certain circumstances.
Q9 Lord Mawson: And the passenger knows that you are doing that?
Mr Dodd: It would be incumbent on the carriers to inform the passengers that as part of the booking process this information may be shared with law enforcement authorities.
Q10 Chairman: Can I clarify this, because I am still not quite clear. The Explanatory Memorandum says that PNR data should be allowed for "crime-fighting purposes such as immigration and customs purposes". Are you saying that PNR data can be used at border controls when there is no suggestion of a criminal offence?
Meg Hillier: Under UK legislation, we use it for immigration purposes; under the EU proposals, that is not proposed. The EU proposal is simply for terrorism and organised crime. We are arguing that if a murderer is caught through the system, this should be allowed. Sometimes an immigration offence can be part of a bigger picture of criminality. We do not think it is quite as clear cut, but we recognise that within the European model, we need to amend the EU text for purpose and scope—that is what we believe—so that we can rely on our domestic legislation to continue what we are doing within the UK.
Q11 Chairman: But, are you not faced with a difficult negotiation with the Council, Commission or Parliament if this proposal goes through and you have not been able to amend it? Does that mean it will negative the existing powers you have to use PNR data in the way that the UK can? Are you not in danger of the European Union overruling our present powers?
Mr Dodd: That is clearly why we are seeking to negotiate to provide for what we would wish in this Framework Decision to prevent that from happening. Clearly, there is a risk that the legislation will come out in such a way that we would then be required to change our domestic law, but we want to avoid that happening.
Q12 Chairman: This is under QMV presumably?
Mr Dodd: No, at the moment it is under unanimity. The instrument could change to co-decision and QMV, depending on the timeline of the introduction of the new treaty provisions.
Q13 Chairman: But, is there not a danger that because we have opted out of Schengen—and there is a certain amount of ill feeling, as you know, in the European Union about this and this Committee has seen this with regard to Frontex, where we have been told we cannot take part in Frontex because we are outside Schengen—you are likely, if it comes to QMV, to get overruled on this?
Mr Dodd: At the moment, this instrument is subject to unanimity so, in terms of negotiations on it, at some point, should we wish to, we would have the opportunity to veto this. If we climb out under the current arrangements and move into a new treaty and be subject to QMV and co-decision with the Parliament. Obviously, then our opt-in would apply, so we would have the opportunity to opt in, should we want to, or not, into this proposal. Either way, we have a degree of lock on how it would apply to the UK.
Q14 Lord Marlesford: Minister, in your helpful letter of 18 March, you say, "The e-Borders legislation which came into force earlier this month provides the relevant UK authorities with the powers to capture passenger data from all carriers entering and leaving the UK on all routes." PNR was introduced by the United States initially and they have a very sophisticated form of e-border control, which we do not. My understanding is that it is not expected that we will have proper e-border controls before 2013, or indeed, even later. Am I right, therefore, in saying that it will not be possible to use PNR at British borders before that system is in full force? As I understand it, at the moment, when people come into the United Kingdom and have their passports swiped—as they do now—all that happens is a match against a watch list; there is no record of their arrival kept. Are you telling us that with all the PNR data, if it were to produce a signal of interest, you would have time, between the time of the collection of that data and the arrival or departure—of which at the moment there is no record at all, no swiping, even, of people departing the UK—to put on to the watch list anyone who might be of interest?
Meg Hillier: We already have had this successfully working under our pilot, Project Semaphore. Basically, at the point at which somebody boards an aircraft—some people do not even get on to the aircraft because the check is done at the embarkation point—but the benefit of the system is that the check can be done on that advanced information so that while someone is in the air, on their way to the UK, information can be held. Maybe part of it is the route they are flying, maybe other information about their ticket purchase, as I was explaining to Lord Mawson. When that flights lands, rather than checking an entire flight from a particular destination, which would be a nuisance to other passengers, there can be some identification of people who would then need to be stopped at the border in order to have further questioning.
Q15 Lord Marlesford: Are you saying, therefore, that as soon as this comes in, even though you will not have e-Borders, you will be able, in every instance you wish to, to add to the watch list anyone who is of interest, in practical terms?
Meg Hillier: Not everyone of interest would be added to the watch list.
Mr Dodd: Firstly, the system we are developing is as sophisticated as the US system. In many ways, I think it is even more sophisticated, because their system focuses very much on terrorism whereas ours focuses on a broader range of crime, terrorism and immigration. In terms of e-borders itself, by 2010, we aim to capture 95% of journeys, both PNR and API data on those journeys.
Q16 Lord Marlesford: Both entering and exiting?
Mr Dodd: Both entry and exit, yes. The PNR data is captured up to 48 hours in advance of travel, which means that we can run a watch-list or other database checks against that data before the person has even travelled to the UK, so it has utility; it is an add-on to the swiping process at the border; they are two distinct transactions. We are already getting benefit from PNR collection and as e-borders expand, we will get more and more benefit from PNR collection up to 2010. The 2013-14 date is when we will have 100% collection of PNR, which is when the additional 5% will involve small aircraft and people in pleasure cruisers, etc., who are mainly quite low risk.
Q17 Lord Marlesford: That is very helpful. How many people in total, roughly, are there currently on the watch list?
Mr Dodd: There are about one million entries on the watch list. Just to clarify that, the issue is that when we are doing a watch-list check, which is a one-to-one check, but also through e-borders we have profiles of a suspected drug trafficker who would display certain traits of behaviour. That individual might not be on the watch list but, for example, we have arrested and prosecuted drug traffickers on the basis of their travel patterns and travel history, not on the fact that their name has appeared on our watch list; the two things are complementary.
Q18 Lord Dear: Just to clear up a point, I thought watch lists were for named individuals. Am I getting the picture that it is not only named individuals but also it has very strong profiles of unnamed people?
Meg Hillier: Yes, I think so.
Mr Dodd: The Warnings Index has named individuals on it.
Q19 Lord Dear: Just named individuals?
Mr Dodd: Yes, but we also have profiles that we can run through the JBOC against types of individuals.
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