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However, the UK, in the face of great criticism of the legislation in this country, is taking an excessive time to amend its legislation to conform to a judgment of the European court. The difficulty which we now face is that even if the Government produce legislation in the next Parliament, we may find that we cannot get it through so there will be further delay, which in our view is not acceptable. That is why we wish to speed up the process and try to bring forward legislation which has been well proved in another part of the United Kingdom-in Scotland-and which we believe would work well in England, Wales and Northern Ireland. Obviously, we cannot proceed this evening with the Government's legislation, so for the time being, I beg leave to withdraw the amendment.

Amendment 152BL withdrawn.

Amendment 152BM not moved.

Clause 96 disagreed.

Clauses 97 and 98 disagreed.

Clause 99 : General information powers in relation to persons entering or leaving the UK

Amendment 152C

Moved by Baroness Harris of Richmond

152C: Clause 99, page 123, line 34, at end insert-

"( ) The requirement to produce a passport under subsection (1)(a) does not extend to a person on a local journey as defined under section 1(3) of the Immigration Act 1971."

Baroness Harris of Richmond: In the Borders, Citizenship and Immigration Bill, which was considered earlier this year and which has now received Royal Assent, the Government introduced reforms to the common travel area which would have ended the CTA as a passport-free zone, introduced passport control on air and sea routes and raised the prospect of mobile immigration controls and actual, or de facto, document requirements on the border between Northern Ireland and the Republic of Ireland. The reforms would have had serious significant consequences for

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the people of Northern Ireland and the Republic of Ireland. I do not intend to repeat those concerns at this stage, except to say that one concern was the risk of racial discrimination emanating from the land border checks.

In the Report stage of that Bill, this House voted by a majority of almost two to one to remove the common travel area reform from the Bill entirely. When the Bill returned to this House for further consideration the Government withdrew the offending clauses from the Bill, for which we are extremely grateful. However, Clause 99 of this Bill could have consequences for the CTA as well. It contains a new power for customs officers to require,

(a) to produce the person's passport or travel documents for examination".

There is at present no reference to CTA routes being exempted.

The CTA-common travel area-is an immigration arrangement, and customs powers are exercised between the UK and Ireland including on the land border. UKBA officials have outlined that the new power is designed to provide explicit legal cover for long-standing customs practices, carries no penalty for non-compliance and argue that it is a power to see whatever travel documents a person is carrying and will not require the carrying of a passport on routes where no passport is otherwise required.

However, exercising a power requiring the production of a passport without any explicit safeguards could lead to an effective document requirement for targeted groups. Notably, the power is a customs power; hence it would not presently carry the same high level of risk of targeting by racial profiling that the proposed immigration practices could entail. However, customs and immigration functions are presently being merged following the Borders, Citizenship and Immigration Act 2009. Both are envisaged as being concurrently exercised by UKBA officers.

The Lords Select Committee on the Constitution wrote to the Minister in relation to how this would impact on CTA routes. He replied:

"By virtue of the provisions of Part 1 of the Borders, Citizenship and Immigration Bill officers of the UKBA will in future conduct both customs and immigration work at the border. UKBA officers will therefore be able to exercise the powers in clause 99 along with other customs powers. Despite the fact that UKBA officers may be exercising both customs and immigration functions, customs powers may not be used for immigration purposes or immigration powers for customs purposes. The powers available under clause 99 would not therefore be available to officers for the purpose of checking the immigration status of persons travelling within the CTA. However, having properly exercised a power for a customs purpose a UKBA officer will be able to use the information gained for immigration purposes and vice versa".

There must a risk of abuse whereby a UKBA officer could stop and require a passport, stating the exercise of broad customs powers, when the real purpose of the stop was targeting an individual for immigration purposes. Having ostensibly exercised the customs power, the UKBA officer could then share that information with himself or herself and exercise immigration powers. You could not really make this up. Effectively this power, without CTA safeguards, could lead to a legally

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dubious but nevertheless effective passport requirement on the land border which in part could facilitate the ad hoc checks about which we are concerned.

I have recently returned from the British-Irish Parliamentary Assembly, and a number of noble Lords sitting in their places tonight will concur with what that body decided unanimously yesterday. It approved a motion from Mr Stephen Rodan, the Speaker in the Tynwald, which is in the Isle of Man. The motion was:

"That the British-Irish Parliamentary Assembly notes the UK Government's policy on e-Borders; further notes the commercial and cultural advantages of the Common Travel Area to the different jurisdictions within it; and is of the opinion that no legislative changes to the current arrangements should be made without a full consultation by the UK Government of all the jurisdictions within the Common Travel Area; and refers the matter of the e-Borders policy of the UK and its impact on the Common Travel Area to Committee A for it to inquire into this matter and to report to the Assembly".

If we do not take note of this tonight, it will be too late and there would be very little point in the whole thing being referred to committee A, as I told the assembly yesterday.

The parliamentarians who make up the assembly are from England, Wales, Northern Ireland, Scotland and the Republic of Ireland, as well as our Crown Dependencies of Jersey, Guernsey and the Isle of Man. It is extremely important that we listen to their concerns. We are asking the Government to do what they did last time and withdraw this particular part of the Bill until a full consultation has taken place with all the members of the constituent assembly body. I beg to move.

9.45 pm

Lord Cope of Berkeley: My Lords, I, too, am a member of the British-Irish Parliamentary Assembly and a member of the committee to which the noble Baroness referred. It is in the middle of a study of border controls within the common travel area, with particular reference to e-border controls, which are now coming in. The assembly is keen to preserve the common travel area in the way that it has existed up to now.

Since it was raised in the assembly yesterday, I have been in touch with the Isle of Man Government and it is clear that there has been some consultation between the UK Government and the Isle of Man Government. They have been reassured that Clause 99 does not apply to the Isle of Man. Nevertheless, I have a number of questions. The power is to require a passport or travel document from someone entering or leaving the United Kingdom, including travelling within the common travel area to the Republic, the Channel Islands or the Isle of Man. Will the Minister confirm that this power does not apply to anyone travelling to Northern Ireland from Great Britain? That, after all, is not leaving the UK-it is travel within the UK. Am I correct in saying that nobody who is concerned about the position of Northern Ireland need be concerned about this clause? That is how it appears to me.

Secondly, what is a travel document? I thought at first that a travel document-you have to produce a passport or a travel document-might be, for instance,

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a document that a refugee or stateless person might have, but that is actually defined as a passport for this purpose. In subsection (2)(c) of proposed new Section 157A, "passport" means,

so refugee papers and so forth would be defined as a passport, but travel documents are also included. What are travel documents if they are not such documents?

As the noble Baroness pointed out, the clause does not specifically require anyone who is travelling anywhere to have a passport, but a customs officer can require them to produce one, which is a rather backwards way of compelling people to have a passport. That is presumably the purpose of it. What happens if someone travelling within the common travel area to Dublin or one of the Crown Dependencies does not have a passport with them when the customs officer requires them to produce it? I am not sure what the sanction is, and it would be helpful to know.

From the answer that I had from the Isle of Man Government this afternoon, it seems that travel within a customs union, such as exists with the Isle of Man and the other Crown Dependencies, is not covered, because they are customs powers. Is that correct? If so, the Crown Dependencies, at any rate, need not bother about it, although that is of course not the case for the Republic of Ireland, which is within the CTA, but the customs arrangements are different.

The last point that concerns me is the question of the amalgamation of customs and immigration. The noble Baroness made the point, so I shall not dwell on it, but it appears that if a border agency official at a particular point has his customs hat on, he can require a passport, but if he takes his customs hat off to put his immigration hat on, he cannot. If he happens to see a passport when he is wearing his customs hat, he is not allowed to swap his hat over and take notice of it the other way round. That seems a very peculiar arrangement. As a former customs Minister, I have always been hesitant about the amalgamation of those two services. I am not necessarily against it-it may prove effective and it has a certain simple appeal-but I have always thought that there would be complications in it, and perhaps that is one which should be considered.

We all want to try to preserve the common travel area. We do not want it to be nibbled away at by various side means. I seek some reassurance on my questions.

Baroness Neville-Jones: My Lords, I just add that it is evident from what has been said so far that we on these Benches support the amendment. To provide reassurance, would the Government be willing to put in place an explicit safeguard for the common travel area? That would greatly help to alleviate the evident anxieties.

Lord Brett: First, I promise that I will write to noble Lords not, on this occasion, because I am in any doubt about the answers that I should give, but because it is a complicated issue. No one has greater regard for the British-Irish Parliamentary Association than I do and I am sure that its concerns and views will be taken on board in the appropriate quarters. I was very much

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with the noble Baroness in her moving of the amendment, when she rightly harped back to the provision rejected by your Lordships' House of a change to the common travel area. I was going to start by saying that I can assure her that such concerns are misplaced. I believe that they still are, but I am sure that we will benefit from correspondence setting out in some detail the answers to the points made by the noble Lord, Lord Cope.

The first thing to say is that we are not making any changes to the common travel area. This is not about changing legislation relating to the CTA. The CTA is an immigration concept. Common checks already apply in the area known as the CTA, except for the Isle of Man. It is probably helpful if I explain, although at this late hour it will take a few minutes, how the customs controls within the CTA operate.

As I said, the CTA is an immigration concept and deals not only with customs and revenue matters. Immigration controls are not applied within the area, with the exception of journeys to and from the Isle of Man. Customs checks already apply in the CTA, so we are not putting in place something that does not already exist.

To turn to the question of the travel document, every airline that I have been on for several years has demanded some form of photo identity before it will let me on the plane, or at least it will want that identity to verify that I am the person named on the ticket and travelling. Therefore, it is not a question of a travel document as highfalutin as a passport or a refugee travel document; it will be the document that was required to journey by sea or air. Some sort of photo ID is required; I cannot think of any exceptions. For the purpose of anti-terrorist checks, travellers within the CTA can already be asked for a passport or another form of ID. This clause will make it clear that the officers carrying out customs checks can also seek such travel documents.

The noble Baroness's concern is about the two-hats approach of the UKBA. Police officers have various powers under various acts of Parliament, yet we do not believe that they will easily confuse them if they are dealing with parking offences rather than social disorder on a council estate. The customs officer knows when he is operating as a customs officer. He will be instructed and given guidance that he is not allowed from that to seek access to passports or to use that information for immigration.

Customs is now an intelligence-led operation looking at people who are bringing in drugs, contraband, weapons or whatever. If we are looking for Mr Smith, we have to identify the right Mr Smith. We do not want to round up five Mr Smiths to find that four of them are indignant because they have been stopped and questioned. We also have to find where the Mr Smiths have come from. We have intelligence and are looking at where they started and where they are when we ask the questions, "Can we see your travel document?" and "Where are you going and where have you been?".

This is not something that we need to be fearful of. I can appreciate the concern now that the UKBA can exercise both powers, but I can give an absolute assurance that customs powers cannot be used for immigration

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purposes. The powers available in Clause 99 could not be deployed to check the immigration status of persons travelling in the CTA. This is not an attempt to reinstate the proposed CTA measures in the Borders, Citizenship and Immigration Bill. The BCI Bill would have introduced immigration checks on CTA movements and required a passport. This clause is not a requirement to carry any document other than that currently required for travel via air or sea.

I hope that it may further reassure noble Lords if I point out that the Constitution Committee also raised concerns about the application of Clause 99 to the CTA but that, with the further explanation that I gave, it concluded in its report that the clause does not infringe constitutional principles. The Crown dependencies do not take issue with its application. I will provide more detailed responses to the questions not only for noble Lords participating in this debate but, by putting a copy in the Library, for those who would be unnecessarily and unreasonably alarmed by reading Hansard. This is a customs requirement; it is not an attempt to achieve something on the common travel area that your Lordships rejected some months ago.

Baroness Harris of Richmond: My Lords, I am very grateful to the Minister for responding. Some of his responses have made me even more concerned, so I look forward to hearing what he has to say. I hope that it will be a full account.

The noble Lord, Lord Cope, talked about nibbling away at the CTA. That is exactly what we think will happen. I do not think that this is just me being paranoid. The Northern Ireland Human Rights Commission has written an extremely good briefing paper on the proposed common travel area reforms from August 2009. It is a pretty thick document. The commission has serious concerns about this clause. Saying that the Crown dependencies are not concerned about this any more is entirely wrong. Yesterday, they were very concerned and it is miraculous to me that overnight their concerns can have been calmed. They talked about the Memorandums of Understanding between the Crown dependencies that were promised. They were hardly consulted on this proposal, but that is what they want. They really ought to be given the proposals and the consultation that they ask for and which they required yesterday. I hope that the Minister will not fob them off with some of the stories that they talk about, because these roles can be interchangeable; there is no question about that. You cannot ask someone to say one thing one minute and then say, "Oh well, actually, I did not see that but now I am exercising my powers in this way". It is quite ridiculous.

I have listened to what the Minister has said. I will withdraw the amendment at this stage, but we will definitely come back to this on Report to see what more the Government have to say. I hope that he will consult widely and thoroughly.

10 pm

Lord Cope of Berkeley: May I intervene before the noble Baroness completes what she has to say, as we are in Committee? Will the Minister respond to one of the questions that I asked him? It is an easy one and we may be able to dispose of it immediately. Will he

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confirm that these powers do not apply to travel between Northern Ireland and Great Britain? Secondly, the Minister spoke of air and sea travel, but will he confirm that these powers apply to crossing the land border as well as to air and sea travel?

Lord Brett: It is difficult to look at the concept of travelling across a land boundary between Northern Ireland and the United Kingdom without travelling aboard a car ferry. I can give the first assurance that the noble Lord wants about Northern Ireland, but, on the questions asked by the noble Lord and the noble Baroness about consulting the dependencies, in order to reassure your Lordships I will come back to this issue on Report, when we will discuss it further and I can give the noble Baroness an update from our side.

Baroness Harris of Richmond: That is, unless the Minister decides that he will withdraw this part of the Bill altogether. I beg leave to withdraw the amendment.

Amendment 152C withdrawn.

Clause 99 agreed.

Clauses 100 to 108 agreed.

Amendment 153

Moved by Baroness Miller of Chilthorne Domer

153: After Clause 108, insert the following new Clause-

"Interpretation of disorder

(1) The Public Order Act 1986 (c. 64) is amended as follows.

(2) In section 2 (violent disorder), after subsection (5) insert-

"(6) The presence of 3 or more people together as part of a peaceful demonstration will not, in itself, be taken as conduct that threatens unlawful violence.

(7) An act of non-violent civil disobedience will not be taken as conduct that threatens or constitutes unlawful violence."

(3) In section 12 (imposing conditions on public processions), after subsection (1) insert-

"(1A) The presence of 3 or more people together as part of a peaceful demonstration will not, in itself, be taken as public disorder.

(1B) An act of non-violent civil obedience will not be taken as serious public disorder.""

Baroness Miller of Chilthorne Domer: My Lords, it is unfortunate that, in a year in which we have had so many issues about the policing of protests, we have a policing Bill that makes no attempt to reform some of the worst laws on protesting.

The first group of amendments that deal with this issue-Amendments 153 to 155 and Amendment 159A-suggests two approaches, the first of which is that we repeal legislation that has been used incorrectly to prevent protest. The second group of amendments in this grouping-Amendments 156 and 159-defines orderly protest and aims to protect the right to peaceful protest.

The Minister may say that it is too early to discuss these amendments in the light of the G20 protests, which resulted in five independent investigations by the IPCC-it received 276 complaints about them-and, before those protests, the difficulties of the Kingsnorth protest, which resulted in an important strategic-level review by the National Policing Improvement Agency. Despite freedom of information requests and a commitment by Vernon Coaker in the other place to

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share the results, that review has not been disclosed. Is the Minister able to let us see it and will he place a copy in the Library? The policing of the Heathrow third runway protests also provoked issues but, at this time of night, I shall not go into the individual difficulties that arose. However, it would be reasonable to make the point that the police are there to facilitate peaceful protest.

Since the introduction of the relevant legislation, one problem that has arisen is that the definition of "disorder" has gradually become subverted until it is taken to be referring to any form of protest. One minor triumph is that, under the Constitutional Renewal Bill, the clauses in the Serious Organised Crime and Police Act 2005-my Amendment 155 refers to these clauses-that forbid demonstrations in the vicinity of Parliament unless they have prior permission from the police are finally repealed. We have been pressing for that from these Benches for a long time. I introduced a Private Member's Bill to try to do that. I welcome that commitment in the Constitutional Renewal Bill, which I hope will finally see the light of day in this House, too.


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