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A number of impositions have been put on the Crown dependencies by this Government in recent years, so much so that they are seriously taking legal advice on how they can cease to be Crown dependencies

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and get their independence. I cannot believe that that would be a good thing for this nation. It is very important that we maintain the relationship, and I seriously advise your Lordships that to allow this clause to stay in the Bill would be something we would seriously regret. If we go further on policing, my argument is that of the large number of people who travel—and I am sorry that I do not have the numbers handy—including all our football fans, business people who come in and out and everybody else, the number of criminals who travel is very small.

During the Troubles, if I can call them that, we had special service people and intelligence people at the airports. We were always met at the gates by Special Branch, and we understood why. Nobody ever objected. We were occasionally stopped, if they did not know who we were or there was somebody whom they were not happy about. I assume, from knowing a little about that business, that they had seen photographs of people they were looking for; it was a guided and precise operation that they were carrying out. To leave behind that precise and extremely efficient operation and turn it into a mass-scale operation, as this Bill will do, is nuts, because that will be far less effective than having focused, specialist people looking for the drug dealers and illegal immigrants, who are a small number, although they are very dangerous, and for al-Qaeda or whatever form of terrorists.

I leave the matter with your Lordships but, as far as I am concerned, this clause should be removed from the Bill. I beg to move.

Lord Smith of Clifton: My Lords, I support Amendment 54 and will speak to my two amendments after Clause 48 in the group.

The House had an extensive debate on the common travel area in Committee. We now support the noble Lord, Lord Glentoran, in all the concerns he has raised under Amendment 54. The reforms proposed in Clause 48 could end the CTA as a passport-free zone, as the noble Lord said, with the Government including full routine passport controls on all air and sea routes between the Republic of Ireland and the UK, including Northern Ireland.

The Government have said very little about the costs and practicalities of this scheme during previous debates on the subject, but I thank them for their letter of 19 March, which goes into more detail. The Government's plans are costed at between £67 million and £76 million over 10 years. Does that really provide good value for money? Is there currently the physical space for full immigration checks in some of the smaller ports and airports within the UK? It is perhaps surprising that nowhere in the impact assessments prepared for the Bill or the consultation entitled Strengthening the Common Travel Area is it explained why resources should be directed at this internal border rather than the external borders of the common travel area where people subject to immigration control are first controlled. The impact assessment described the intended benefits of the proposals as,

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As the impact assessment is candid enough to state, none of those proposed benefits has been quantified. Whether resources are to be diverted from the external borders of the common travel area, or given to this new measure rather than to the external border is not clear. A “border”, in true Humpty-Dumpty fashion, appears to mean what we want it to mean in a particular bullet point.

The most dramatic effect of the reimposition of controls will be on those not subject to immigration control. There will clearly be a considerable socioeconomic impact on CTA nationals who travel between the UK and Ireland, as the noble Lord, Lord Glentoran, pointed out, and who do not have either passports or UK identity cards, but will now have to purchase them. As the Minister himself admits in his letter of 19 March:

“There may be more significant impacts on leisure travel as all passengers will require passports in order to travel to the UK”.

Given the current economic climate, it is unfortunate that the Government are introducing a measure which will result in an estimated £43.5 million lossto the tourism industry. Tourism is one of the most important sectors of the Northern Irish economy and to introduce a measure which could damage that industry during these current economic difficulties is, quite frankly, bordering on the irresponsible.

Amendments 55A and 55B deal specifically with the question of the land border. They are alternatives, dependent on the decision of the House on leaving out Clause 48. Despite the Government stating their intention for CTA passport control to only be introduced on air and sea routes, that is not, as the noble Lord, Lord Glentoran, said, explicit in the Bill. At present, Section 1(3) of the 1971 Act prevents all CTA journeys being subjected to control under the same Act. Clause 48 removes all reference to not subjecting CTA/UK journeys to control. The Bill therefore actually has the effect of removing in its entirety the law that prevents CTA routes being subject to control. While the control arrangements detailed in Schedule 2 to the 1971 Act refer to and are understood as usually applying to air and sea routes, the Government can, through an Order in Council, determine otherwise. Amendment 55B would prevent such an order placing immigration controls on the land border.

In Committee, the House considered an amendment similar to Amendment 55A. I do not intend to repeat all the arguments made at that stage. The Minister gave the clearest details to date on how the mobile checkpoints proposed by the Government will operate. Arguing that passengers will be selected on the basis of “intelligence and risk”, he outlined that on the busy main Belfast-Dublin route the UKBA would,

Regardless of whether a Government decide to bring in an actual duty to carry a document when crossing the land border, clearly all those stopped under enforcement operations will be expected to satisfy Border Agency officers that they are British or Irish citizens

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through producing passports, other ID documents or otherwise establishing their bona fides. Non-CTA nationals will also be expected to fulfil this requirement. Even if there is no actual document requirement, there would be a de facto document requirement. The Government have not yet addressed how a person is expected to satisfy a UKBA official that they are either British or Irish citizens.

We hear the reassuring words of the Minister that the Government,

However, as was said in Committee, the clear question in the context of ethnic diversity is how those policing the land border will be able to tell who is a British or Irish citizen and who is not. Who, on indicating that they are not carrying any documents, which the Government say they have no obligation to do, will be allowed to proceed and who will be subject to further examination and even arrest and detention until identity is verified? If non-CTA nationals are expected to carry passports or ID cards and British and Irish citizens are expected to carry a document, how will UKBA patrols know who is compelled to carry a passport and who is not? The Government have still not provided an answer on whether a Northern Ireland driving licence would be acceptable as proof of CTA nationality.

Despite the Government stating the intention for CTA passport control to be introduced only on air and sea routes, this is not explicit in the Bill, as the noble Lord, Lord Glentoran, said. Amendments 55A and 55B are needed to avoid the sort of confusion that I have spoken of this afternoon.

Lord Goodlad: My Lords, I support Amendment 54. In its report on Part 3 of the Bill, published on 12 March, your Lordships’ Select Committee on the Constitution examined the effect of the Bill’s proposals to introduce changes to the common travel area, which, as the noble Lord, Lord Smith of Clifton, has told us, has existed since the 1920s, enabling people to move freely between the United Kingdom, the Republic of Ireland and the Crown dependencies—Guernsey, Jersey and the Isle of Man—without being subject to immigration control, as set out in Section 1(3) of the Immigration Act 1971. The citizens of the Crown dependencies are of course not represented here at Westminster.

That Select Committee sought to draw the attention of the House to our view that there does not appear to have been open, effective and meaningful intergovernmental consultation by the United Kingdom Government with the insular authorities in advance of the introduction of the Bill. We found that such consultation as did take place gave the impression of being muddled and tardy, showing little appreciation of the constitutional relationship between the United Kingdom and the Crown dependencies. The Chief Minister of Jersey told your Lordships’ Select Committee that there is a mismatch between the policy intent and the possible effects of the legislative change. This, he said,

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5.15 pm

The Chief Minister added:

“There are absolutely no safeguards to prevent such controls being implemented or to protect the long-standing rights of Channel Islanders to travel freely to the United Kingdom, in accordance with their constitutional relationship as set out in numerous Royal Charters”.

The Chief Minister agreed,

Your Lordships’ Select Committee found that it was,

Your Lordships’ committee concluded that,

I am extremely grateful to the noble Lords, Lord West and Lord Brett, for discussing these matters with me yesterday. I understand that they were at that time unsighted, through no fault of their own, as to the attitude of all the insular authorities following the belated consultation on the proposal of a Memorandum of Understanding, to which the Isle of Man and the Guernsey authorities are agreeable but Jersey is not.

Senator Le Sueur, the Chief Minister of the States of Jersey, wrote to the noble Lord, Lord West, on 27 March. They are not represented at Westminster so I crave your Lordships’ indulgence in quoting one or two paragraphs from it. The letter states:

“In principle, we ... support the need for increased supervision of the routes within the British Islands and the need for authorised persons to act on specific intelligence. Our Customs and Immigration service and Police actively cooperate with UK officers to share information for this purpose and to take action when appropriate. We welcome further initiatives, such as e-borders, which will strengthen our mutual cooperation.

However, the government of Jersey cannot accede to a position in which British citizens resident in one part of the British islands could be treated as if they were nationals of a foreign state such as the Republic of Ireland. If the text of the proposed Bill is adopted, it sets out such a distinction in substantive legislation to which we are strongly opposed.

You maintain the UK government has no intention of changing the constitutional relationship with the Crown Dependencies but clause 48 does precisely that. The unwritten constitutional relationship is founded upon Charters which have been renewed on many occasions by successive sovereigns until 1688 when they (and many other charter rights of English citizens) were definitively affirmed. I cannot imagine that the UK government would ever contemplate peremptorily withdrawing the constitutional rights of citizens of the United Kingdom. ... It is also unclear to me how the proposed legislative change is consistent with the United Kingdom’s obligations under Article 13 of the Universal Declaration of Human Rights, Article 12 of the International Covenant on Civil and Political Rights and, although the Protocol is only signed and not yet ratified, Articles 2 and 3 of Protocol 4 of the European Convention on Human Rights. I would value your response on those points.

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Whilst the government of Jersey fully understands the current policy intention not to introduce fixed or routine border controls, the substance of the legislation would provide for such controls”.

He continues that he would respectfully suggest that,

Hear, hear, to that. He concludes:

“We understand the need to ensure that the UK’s security is protected and are pleased that you are equally willing to protect Jersey’s rights. However I am not convinced that the proposal to develop a Memorandum of Understanding which ‘affirms [the UK] policy intentions in this area and sets out how [the UK] will manage the necessary processes’ will meet all of our needs. While we are naturally comforted by the policy intention upon which the proposal for an MoU is based, the essential problem with an MoU is that such a document in itself confirms by necessary implication that the existing Charters and constitutional relationship will have been overridden as the MoU only comes into existence at all because the Bill contains a clause which is inconsistent with them. It is also not clear how much comfort could be derived from a Memorandum of Understanding, which may be withdrawn unilaterally at any future date”.

Ipsissima verba.

Parliament does not like memoranda of understanding, which can be ignored or repudiated by Governments, present or future, at any time of their choosing and, in the present case, will not have been subject to any parliamentary scrutiny of any sort whatever. It must surely be right for the Government to come forward with amendments in place of Clause 48 that give effect to its policies, with parliamentary approval.

Lord Pannick: My Lords, I, too, support Amendment 54. The 1969 Royal Commission on the Constitution—the Kilbrandon commission—explained at paragraph 1360 that the constitutional position of the Channel Islands and the Isle of Man is “unique”; but unique as the status of the islands undoubtedly is, general constitutional principles must apply to legislation which relates to them. It is, in my view, wrong in principle for the Government to invite this House to approve a clause that confers powers that are far wider than the Government wish to exercise, when the width of the powers that would be conferred affect fundamental and historic rights to freedom of movement. That is undoubtedly the position in relation to Clause 48.

The Government should ensure and can easily ensure with the aid of expert parliamentary draftsmen that Clause 48 expressly specifies what the Minister himself has stated unequivocally to be the intention. The intention is that the controls introduced in relation to travel to and from the Channel Islands and the Isle of Man will not require passengers to carry a passport or an identity document, and that the power to impose controls may be exercised only for the purpose of implementing risk-based intelligence. That is what the Minister told the Chief Minister of Jersey in his letter of 19 March. The Minister suggested in that same letter that it would not be possible for the clause to limit or restrict the frequency with which the powers are used, and I respectfully agree. However, it is surely possible and necessary to limit, in the words of the clause, the purposes for which the powers may be used and the nature of the powers that may be used.

The Minister’s letter then suggests—the noble Lord, Lord Goodlad, has dealt with this already—that the breadth of the powers to be conferred by Clause 48

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need not cause concern because the Minister will work with the Crown dependencies to produce a memorandum of understanding. With respect, that is not an adequate answer. In principle, this House should not approve excessive powers for Ministers because they agree to limit their powers through a document which has no legal force, which in any event cannot bind either them or their successors, and which is not subject to any parliamentary control.

Furthermore, I hope the Minister will understand that the House may have little confidence in the value of his assurances, however well intended they are—and I am sure that they are—about discussions with Crown dependencies, in the light of the history of Clause 48. As he knows, his predecessors gave assurances to the Crown dependencies that there would be proper consultation on matters affecting their interests. His letter of 19 March recognised and accepted that those assurances, sadly, were not met. As the letter acknowledged, with a large dose of Civil Service understatement,

The Minister then suggested in answers to questions from your Lordships’ Constitution Committee that it would not be possible to differentiate in the Bill between the provision made in relation to Jersey, Guernsey and the Isle of Man, and the provision made in relation to the Republic of Ireland, where Ministers see a need for far more extensive powers. I do not understand why the drafting of Clause 48 cannot differentiate in that respect. There are significant distinctions. Ministers regard the concerns in relation to travel to the Republic of Ireland as far more extensive than in relation to Jersey, Guernsey and the Isle of Man. Of course our constitutional relationship with the islands is very different to our relationship with the Republic of Ireland, which is a foreign state. As the noble Lord, Lord Goodlad, pointed out, your Lordships’ Constitution Committee issued a report making many of these points and concluded that it would be constitutionally inappropriate for Parliament to grant to the Government wide legal powers in excess of those properly needed to implement the Government’s stated policy.

I ask the Minister to give the House an assurance that he will instruct parliamentary draftsmen now to produce a new version of Clause 48 that more specifically reflects his own, entirely valid, policy intentions to enable border controls to act on intelligence which identifies a security risk to a particular arrival or a particular passenger. If the Minister declines to give that assurance, I hope that the House will reject this clause.

Lord Hylton: My Lords, one group of people have not been mentioned so far in this discussion. I refer to the very large number of people resident in England, and sometimes in Wales and Scotland, many of whom are British citizens but of Irish descent. They therefore frequently wish to visit the Republic of Ireland to have a holiday or to maintain their family links and connections. It seems that the Government are imposing obligations on this group, and indeed on other groups, far in excess of any possible security, intelligence or immigration control that could be expected to arise. I urge the Government to withdraw this clause and to come back

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with something far better drafted when we eventually get the so-called simplification Bill.

5.30 pm

Lord Cope of Berkeley: My Lords, first, I apologise for intervening for the first time in this Bill at Report stage. With respect, I found the Minister’s arguments in Committee less than satisfactory. However, I am probably one of those Members of this House who, as a rule, are most inclined to support the authorities in their efforts to fight terrorism, crime and so on. I do so both by temperament and from my experience in government.

I also have the honour to represent your Lordships’ House, among others, on the British-Irish Parliamentary Assembly. As my noble friend Lord Glentoran mentioned, I was there earlier this week. I found a good deal of, first, confusion and, secondly, concern among the parliamentary representatives of both the Republic of Ireland—and, for that matter, Northern Ireland—and the Crown dependencies who were present. They were nearly all Back-Bench representatives of their various Parliaments and Assemblies.

With regard to the confusion of the meaning, to which my noble friend Lord Glentoran referred, it seems to me, although I am not a lawyer, absolutely clear that the effect of this clause is to subject to control under the immigration Acts those arriving in the UK from any of the islands or the Republic of Ireland. That is clearly what it does. It takes out the words which stop them being under the control of the Immigration Act 1971 and all that has flowed from it since. At the same time, it also says that they shall not require leave to enter the United Kingdom on so arriving, and it refers to that as the “common travel area”. That is the source of the confusion: the immigration Acts apply but, on the other hand, people are free to come and go. That, I think, is the first difficulty in all this.

So far as concerns my journey to Northern Ireland and onwards to Donegal, my noble friend Lord Glentoran said that I was seized upon at Belfast City Airport. If I may say so respectfully to my noble friend, that is a bit of an exaggeration, although a gentleman in a nice suit asked me for my passport or some identification. Although it was not at all obvious from any uniform or anything else, I believe that he belonged to the UK Border Agency. I produced a House of Lords pass.

Lord Lyell: Hear, hear!

Lord Cope of Berkeley: My Lords, I do not suppose that he had seen one before but he accepted it immediately as sufficient to allow me to proceed. However, in a way, that is the smallest of the matters that we are concerned about.

The Minister said in Committee that it is very difficult, or effectively impossible, to impose on the land border controls of the sort that can be imposed on sea and air journeys. All of us who know the land border know that that is obvious. Anyone can wander backwards and forwards across the land border extremely freely in many, many places, and they do so all the

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time for every possible daily purpose. The only people who are not allowed to cross the land border are policemen on duty in either jurisdiction. They are forbidden to do so and do not do it, but everybody else wanders freely backwards and forwards for every possible purpose. When petrol is cheaper on one side or the other they buy it on the appropriate side. So, that is agreed to be an impossibility.

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