Date laid: 13 March 2023
Parliamentary procedure: affirmative
This instrument is a draft Code of Practice intended to assist the police in deciding whether a non-crime hate incident (NCHI) record needs to be made, and, if so, how the personal data of the person being complained about should be processed. NCHIs are ‘hate incidents’ linked to a victim’s “particular characteristic” (race, religion, sexual orientation, disability or transgender identity) that are not criminal offences but could lead to more serious harm in the future. The Code’s aims—to better protect freedom of speech, give Parliament oversight of the NCHI process and increase public confidence in the police’s handling of NCHIs—are commendable. However, the consultation on the Code’s contents was deficient in excluding interest groups from outside government. This means the Home Office may have missed opportunities to improve the Code. A wider consultation, with published feedback, would also have contributed to the Code’s aim of increasing public confidence in the NCHI process. We encourage departments to consult widely when formulating policy to ensure that the detail of secondary legislation takes into account a range of views at an early stage.
These Regulations are drawn to the special attention of the House on the grounds that there appear to be inadequacies in the consultation process which relates to the instrument.
1.This instrument is a draft statutory Code of Practice intended to assist the police in deciding whether a non-crime hate incident (NCHI) record needs to be made, and, if so, how the personal data of the person being complained about should be processed. NCHIs are ‘hate incidents’ linked to a victim’s “particular characteristic” (race, religion, sexual orientation, disability or transgender identity) that are not criminal offences but could lead to more serious harm in the future. The Code was legislated for in the Police, Crime, Sentencing and Courts Act 2022 (“the Act”).
2.The Explanatory Memorandum (EM) to the Code says that the police regard NCHI recording as “essential” to identifying patterns of individual behaviour or local incident ‘hotspots’.
3.The Act provided the Government with the power to produce, in the form of a statutory instrument,1 a new Code relating to the recording and retention of personal details in NCHIs. The EM states that its aims include:
4.The Code is intended to improve on the current oversight system, which is non-statutory guidance published by the College of Policing.2
5.The Code also responds to a Court of Appeal judgment in December 2021 that the recording of NCHIs is legal provided there are robust safeguards in place so that the interference with freedom of expression is proportionate.3 The Court found that the College of Policing’s guidance at the time did not offer sufficient safeguards. The EM states that in response the College produced further interim guidance, which will be updated again to align with the Code once it has been approved by Parliament.
6.We welcome the introduction of a code with statutory status. The House may, however, wish to seek clarification on how the statutory code and the non-statutory guidance interrelate.
7.The EM states that the Code “introduces new safeguards and provides additional clarification for police officers and staff in order better to protect personal data and the fundamental right to freedom of expression”.
8.In particular, the Code introduces a new ‘Additional Threshold Test’, under which personal data may only be retained if the NCHI presents a “real risk” of significant harm or a future criminal offence.
9.According to an Economic Note accompanying the draft Code, the police has suggested that the Code could result in fewer NCHIs being recorded. The Home Office did not quantify this effect and, indeed, told us that data on NCHIs is not collected centrally as it is “collated locally” by police forces to inform local policing decisions.
10.In general, a key part of the policy development process should be consulting with interested parties on the intended policy. This can have many benefits, including ensuring that appropriate safeguards are maintained for all interest groups and allowing input from those with experience and expertise in the field, helping to improve the legislation. The Government’s own Consultation Principles state that departments should “consider the full range of people, business and voluntary bodies affected by the policy, and whether representative groups exist. Consider targeting specific groups if appropriate.”4
11.On the draft Code, the EM states that the Home Office had not carried out a “formal consultation” but that it had engaged with “key policing stakeholders”, including the College of Policing, the National Police Chiefs’ Council, the Metropolitan Police Service Commissioner and the Chief Constables for Greater Manchester and Lancashire. The Home Office did not publish any feedback from this process.
12.We asked the Home Office whether it had consulted with other interested parties—for example, free speech advocates, those representing victims or data protection interest groups—and, if not, why was this not considered appropriate. The Home Office replied:
“The draft code will be subject to the affirmative procedure which will provide democratic scrutiny. The debates on the draft code will provide an opportunity for all Parliamentarians to provide their views on the code.
The Government engaged with data protection experts in Government - including the Information Commissioner’s Office - to ensure the code will protect personal data.
The Government worked closely with the National Police Chiefs’ Council, the College of Policing and senior police officers to ensure the code can be operationalised. This operational input has ensured that the code will balance the need to protect vulnerable individuals and communities with the need to better protect free speech.
Given the democratic scrutiny that the code will be subject to and the comprehensive policing input received, the Government did not consult more widely.”
13.While it is welcome that the draft Code will be debated by Parliament, this is not a substitute for in-depth consideration by a range of interested parties and those with expert knowledge at the policy formation stage. In particular, while Parliament can debate the Code and can (in theory) reject it, neither House can amend a statutory instrument if it identifies a possible improvement. This means that the only way the Code could be changed at this stage is by the Home Office laying a further statutory instrument.
14.The Code will be of interest to many groups external to government and the police; for example, advocates for freedom of speech, the interests of those with protected characteristics and those concerned with data protection. Such bodies will have hands-on experience of dealing with issues relating to NCHIs. These groups may have been able to contribute to improving the Code.
15.Further, one of the Code’s aims is to increase public confidence in the police’s handling of NCHIs. The interest groups described above are likely to be key to achieving this aim, but satisfying them would have been more straightforward had they been involved in the consultation process. The lack of a wider consultation may, therefore, undermine the Code’s expressed aim of increasing public confidence in the system. Publishing the results of a consultation may also increase public confidence in a policy by demonstrating that stakeholders’ views were taken into account. This might have been particularly helpful in the current climate of criticism of the police.
16.This draft Code of Practice on dealing with NCHIs has commendable aims and was presented with a clear EM and a helpful Economic Note.
17.We are not in a position to comment on the detail of the draft Code. We would, however, have taken reassurance if a wide range of interest groups had been consulted during the policymaking process. That has not been the case. The Home Office told us that parliamentary oversight meant that wider consultation was not necessary. However, Parliament is not able to amend the Code and therefore the opportunity to improve the detail has passed. Further, one of the stated aims of the Code is to increase public confidence in NCHI handling. This is less likely to be achieved if those who are most interested feel excluded from the process and if the feedback from any consultation is not published.
18.We encourage departments to consult widely when formulating policy to ensure that the detail of secondary legislation takes into account a range of views at an early stage.
Date laid: 9 March 2023
Parliamentary procedure: negative
These Regulations reduce the maximum custodial sentence that a magistrate can impose from 12 months to six months. It is intended primarily to reduce short-term pressure on the prison system by slowing down the flow of people being sentenced. The reduction reverses an increase to the maximum sentence just ten months ago. Both changes appear driven not by evidence and analysis on what the optimum level is, but by the desire to counteract pressures elsewhere in the criminal justice system. While understandable when faced with such “acute” pressures, this is not an optimum way of making policy and fails to consider other potentially important factors. The Ministry of Justice should have completed a review of the May 2022 increase before changing the maximum sentence again. Such a review should take place as soon as possible and before considering any further changes to the maximum sentence.
These Regulations are drawn to the special attention of the House on the grounds that they are politically or legally important or give rise to issues of public policy likely to be of interest to the House.
19.These Regulations reduce the maximum custodial sentence that a magistrate can impose in ‘triable each-way offences’ from 12 months to six months. It is primarily intended to reduce pressure on places in the prison system by slowing down the flow of people being sentenced.
20.All criminal cases are initially heard in a magistrates’ court. The magistrate will decide, based on the seriousness of the offence, whether the case then continues in the magistrates’ court (for the least serious) or is referred to the Crown Court (the most serious). For a middle category of ‘triable either-way’ (TEW) offences, the magistrate may decide either to refer the case to the Crown Court or to retain it in the magistrates’ court, although if the magistrate decides to retain the case the defendant can choose to be tried in the Crown Court instead. The Explanatory Memorandum (EM) for the Regulations states that the vast majority of criminal cases (over 95% in 2021) are completed in the magistrates’ court.
21.The maximum custodial sentence that a magistrates’ court can impose in a case with a single TEW offence is currently 12 months. This was increased from 6 months in May 2022, thereby allowing more cases to be heard in magistrates’ courts by bringing cases with a maximum sentence of between six and 12 months into the scope of those courts. The stated reason for this change was to reduce pressures on the Crown Court, which, at the time, was suffering from an extensive backlog of cases following the COVID-19 pandemic (and, subsequently, also because of the strike by the Criminal Bar Association).
22.The May 2022 change did not alter the maximum sentence for any given offence. It simply changed which court might try cases expected to have a maximum sentence of between six and 12 months.
23.We wrote to Mike Freer MP, Parliamentary Under Secretary of State at the Ministry of Justice (MoJ), to ask for further information relating to the instrument. The full correspondence is enclosed at Appendix 1.
24.The instrument changes magistrates’ powers back to the pre-May 2022 position of being able to hand down a maximum custodial sentence of six months. The EM provides three reasons:
25.We asked MoJ to expand on the second point, which as it stands contains little substance. MoJ said that “downstream pressures” refers to an increase in demand for prison places resulting from factors such as: the recruitment of an additional 20,000 police officers; tougher sentences; more recalls for serious offenders; an increased flow of cases through the courts as they work through the COVID-19 backlog; and the Criminal Bar Association strike, which led to growth in the remand (pre-trial custody) population.
26.MoJ said it had responded to these pressures in a number of ways. These include ‘doubling up’ cells where it is safe to do so, delaying non-essential maintenance work and installing ‘rapid deployment’ cells. In addition, MoJ has activated ‘Operation Safeguard’, an agreement with the National Police Chiefs Council that police cells can be temporarily used to hold prisoners.
27.Nevertheless, the latest figures suggest that the prison population is at 99% of usable operational capacity, despite the addition of nearly 3,600 places over the last year.5 MoJ told us the situation was “acute”.
28.The EM states that cases move through the magistrates’ court system faster than through the Crown Court. MoJ told us that, as a result, the effect of the instrument will be to reduce the overall number of people in custody in the short-term. This is because, for those cases moved to the Crown Court, it will take longer for convicted criminals to enter post-trial custody. Mr Freer’s letter estimated the effect would be 500 fewer adult prisoners by March 2025. We calculate that this represents around 0.6% of the overall prison population.6
29.Some of those waiting longer for trial will spend the time in pre-trial custody (remand), therefore not reducing the overall prison population. Those not on remand, however, will spend longer on bail. We asked the Minister whether there was a risk of increased reoffending if people were spending longer on bail. Mr Freer said that there was “no available data to assess the impact of this measure on reoffending for those waiting longer for their trial”. We believe that the impact of the Regulations on reoffending while on bail is a relevant factor that should have been assessed as part of the policymaking process.
30.In the long run, the change in the Regulations is not expected to affect numbers in custody because it does not affect the number of cases entering the system or the sentences handed down.
31.The EM did not contain any information on possible financial costs and benefits of the measure. These might include costs arising from the additional time and expense of processing cases in the Crown Court rather than magistrates’ courts, and any ‘wasted’ costs of training magistrates in relation to longer maximum sentences that they cannot now impose. We asked the Minister for further information on these points.
32.On the costs of the two court systems, Mr Freer said that the change does not give rise to any “direct financial pressure”, because it “does not introduce new demand to the system, but simply transfers some cases to the Crown Court”. We find this unconvincing: Crown Court trials involve a jury, and MoJ acknowledges that trials at Crown Court take longer to process, so it seems likely that they will cost more.
33.In relation to magistrates’ training, Mr Freer said that MoJ’s “intention, subject the findings of the planned review, is to reinstate the [12 month sentencing] powers in due course as long as this is supported by evidence. This would mean that the investment in training Magistrates will not have been wasted”. This information reinforces our view that this change is not justified on its own merits. Whether the costs of training are wasted depends in part on the length of time before the 12 month limit is reinstated.
34.We conclude that MoJ has not fully considered the possible financial costs of the change, reinforcing the view that the policy is being driven by other imperatives.
35.The May 2022 increase in the maximum sentence was brought in using powers introduced by the Judicial Review and Courts Act 2022. At Report stage of this Bill, Lord Ponsonby of Shulbrede (Labour) tabled an amendment that would have required regular reporting on the effects of the change. In response, the then Minister, Lord Wolfson of Tredegar, committed to considering what data could be published on the effect of extending magistrates’ sentencing powers.7 We are not aware that any such data has been published.
36.As part of our consideration of these Regulations, we asked MoJ whether it had analysed the effect of the May 2022 increase. MoJ said it has been “monitoring internal court and prison data, but there has not yet been an analysis of the wider impact”. MoJ suggested that the change put forward in these Regulations was a “pause” that represented an opportunity for a review. We are surprised that the May 2022 increase is being reversed so quickly and before an analysis of its effects (including those set out in the previous section), rather than after. The House may wish to enquire why this approach has been taken and why no useful data has been published since Report stage of the Judicial Review and Courts Act 2022.
37.The EM states that the power being used in this instrument can be used again to extend sentencing powers back to 12 months in the future “should circumstances allow”, and, as described above, Mr Freer’s letter said that this was MoJ’s “intention”. We call on MoJ to complete and publish its review of the effect of changing the maximum sentence before it exercises its powers again.
38.We asked the Minister whether the Government had considered the impact of the move on victims; for example, because of the slower processing of cases in the Crown Court. Mr Freer said that while the change will “introduce some delay to trials in the Crown Court”, the Government have “invested a significant amount of extra money in the Criminal Justice System to help improve waiting times for victims of crime and reduce the Crown Court backlog”. Mr Freer also said that “the budget for victim and witness support services has increased”. While investment in the criminal justice system and victim support is welcome, this was presumably introduced for separate reasons. MoJ has not analysed whether the additional funds are adequate to address the impact of these Regulations on victims.
39.We asked the Minister whether MoJ had compared the average sentences awarded by magistrates and by the Crown Court in the types of cases being removed from magistrates’ jurisdiction by this instrument. Mr Freer said that: “Our monitoring has so far not identified that Magistrates are giving sentences that are different to those that would have been handed down by the Crown Court for equivalent cases, though [ … ] it is not possible to make like for like comparisons”. Mr Freer said this was because “every case is different”.
40.A comparison of average sentence length might be relevant to the choice of policy. Over a large number of cases, when case-specific factors should even out, it should be possible to conduct an analysis. The House may wish to enquire on whether more research can be done in this area.
41.These Regulations alter, for the second time in less than a year, the maximum sentence that can be imposed by a magistrates’ court. Both changes appear to have been driven not by what the appropriate maximum should be, based on evidence and analysis, but by the desire to counteract pressures elsewhere in the criminal justice system. While understandable in times of “acute” pressure, using the maximum sentence available to magistrates as a ‘valve’ that can be opened and closed in response to wider developments is not an optimum way of making policy as it fails to consider other potentially important factors.
42.It is a notable feature of these Regulations that the policy is being introduced specifically to make the system in question (processing criminal cases) less efficient. The maximum sentence should be determined by the overall outcomes for society and should be evidence-based.
43.MoJ should have conducted and published an analysis of the May 2022 change before reversing the policy. Such a review should now be completed as soon as possible, and no further changes to the maximum sentence should be implemented in the meantime.
Date laid: 14 March 2023
Parliamentary procedure: negative
Under normal circumstances the rules on funding for Mandatory Travel Concessions (free bus passes) require Travel Concession Authorities (TCAs) to ensure that bus operators are “no better and no worse off” as a result of the reimbursement arrangements. That provision was suspended during the COVID-19 pandemic to allow payments above the actual usage level. This instrument further extends the waiver until the end of the 2023–24 financial year because, the Department for Transport (DfT) states, that if TCAs were to pay out in line with actual levels of concessionary travel, there would potentially be a substantial gap in bus funding within 2023–24. The Department adds that, during this extra extension of more favourable rates, a review of the concessionary reimbursement methodology is being conducted in light of the impact of COVID-19 on travel patterns.
We suggest that the review of the methodology is timely but should not be limited to the effect of pandemic on concessionary travel but also consider more widely the other factors that are discouraging travellers from using their concessionary passes. We are concerned that no Impact Assessment is available. Large subsidies are being paid to bus operators, and there needs to be greater transparency and accountability about the degree to which they still relate to temporary factors or to broader sectoral support.
The Regulations are drawn to the special attention of the House on the ground that they are politically or legally important and give rise to issues of public policy likely to be of interest to the House.
44.Under normal circumstances the rules on funding Mandatory Travel Concessions (free bus passes for the elderly or people with a disability) in England require Travel Concession Authorities (TCAs8) to ensure that bus operators are “no better and no worse off” as a result of the reimbursement arrangements. That provision was suspended during the COVID-19 pandemic to allow payments above the actual usage level to keep services running. Last year the pandemic subsidy was due to be reduced by 5% every two months to ease bus companies back into the normal arrangements9 with the intention of returning to the normal “no better, no worse” compensation levels on 5 April 2023. This instrument extends the TCAs’ permission to make higher level payments, if they wish, for a further 12 months.
45.The Explanatory Memorandum (EM) provided gives very little information about the degree to which the extra scheme flexibility has been used, or about how much money above standard reimbursement costs has been paid out to bus operators under the previous statutory instruments. There is no Impact Assessment or any projection given of how many TCAs might continue to use this capacity.
46.In additional information set out in Appendix 2, the Department for Transport (DfT) states that this instrument further extends the waiver until the end of the 2023–24 financial year because, if TCAs were to pay out in line with actual levels of concessionary travel, there would potentially be a substantial gap in bus funding, as concessionary patronage provides around 20-25% of bus operator revenues. In the EM, the Department states that during this extra extension of more favourable rates a review of the concessionary reimbursement methodology is being conducted in light of the impact of COVID-19 on travel patterns.
47.The health and social benefits to the elderly and people with a disability from having free access to travel are well known. The research already available, described in DfT’s response, indicates that it is unclear whether concessionary patronage being only around 60% of pre-pandemic levels is due to post-pandemic concerns or due to other factors such as bus services’ unreliability and strike action. Various measures are proposed to improve take up.
48.The section on impact in the EM states that there “will not necessarily be any direct impact on public finances. This removes a legislative barrier to reimbursing operators at a rate greater than patronage, rather than requiring them to do so.” While the instrument is permissive, we were disappointed that the House was given no indicative figures in the EM to assess the scale of the scheme or the potential effect of the extension. The additional information indicated that the net reimbursement paid in 2021–22 by English local authorities was £915 million, when a similar instrument was in place. The funds for that payment are provided by the Department of Levelling Up, Housing and Communities’ Settlement Funding Assessment, and are therefore funded by taxation.
49.DfT has also told us that the 2021–22 reimbursement was around 95% of pre-pandemic levels in cash terms (2019–20), despite concessionary patronage being only around 60% of pre-pandemic levels. In the EM the Department comments that “TCAs complying with DfT’s ask to pay out at a rate higher than due, arguably leaves operators financially better off as a result of providing the concession.” In which case we are surprised that no formal Impact Assessment is provided, since this appears to represent a benefit to private bus companies.
50.Although DfT’s proposed review of the methodology is timely, it should not, in our view, be limited to the effect of the pandemic on concessionary travel but also consider more widely the other factors that are discouraging travellers from using their concessionary passes.
51.This instrument continues the suspension of the normal rule that operators should be “financially no better and no worse off as a result of providing a concession”, but we are concerned that the subsidy may currently be going beyond that rule: the Department has provided no financial information to explain the position. The House may wish to press the Minister to provide an Impact Assessment that sets out both the amount above reimbursement for actual concessionary usage that has been paid out in the pandemic period and also estimates the anticipated expenditure for the next 12 months above the “no better, no worse off“ position.
52.The EM states that the continued payments are needed at pre-COVID-19 levels to support the bus sector–“if all TCAs paid out in line with actual levels, this would likely result in service cuts in 2023–24 which goes against the ambitions set out in the National Bus Strategy”. We note from the supplementary information in Appendix 2 that other funds are also being used to support bus companies and we are unclear how the funds are allocated.10 Large subsidies are being paid to bus operators and there needs to be greater transparency and accountability about the degree to which they still relate to temporary factors or to broader sectoral support.
Dates laid: 9 and 10 March 2023 respectively
Parliamentary procedure: negative
These instruments introduce the Electronic Travel Authorisation (ETA) scheme, under which all non-British or Irish passengers visiting or transiting through the UK who do not currently need a visa will be required to obtain permission in advance and submit biometric information. The instruments were submitted without an Impact Assessment (IA) or an explanation for its absence. While the Home Office subsequently provided reasons, that should not have prevented publication of at least some impact information, which would have been helpful in scrutinising the instrument.
Those who would be subject to an ETA for visiting the UK will need one for a journey from Ireland to Northern Ireland; however, there will be no border checks. This gives rise to questions about the impact of the ETA scheme on travel from Ireland to Northern Ireland via the land border, and potentially about onward travel from Northern Ireland to the rest of the UK.
These Regulations are drawn to the special attention of the House on the grounds that they are politically or legally important or give rise to issues of public policy likely to be of interest to the House, and that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation.
53.Amongst the policies in the Statement of Changes to the Immigration Rules (“the Statement”) are measures to introduce the Electronic Travel Authorisation (ETA) scheme, as legislated for in the Nationality and Borders Act 2022. Under ETA, all passengers visiting or transiting through the UK who do not currently need a visa, except British and Irish citizens, will be required to obtain permission in advance. The Government state that ETA will close a current “gap” in advance permissions and “enhance the Government’s ability to screen arrivals and prevent the travel of those who pose a threat to the UK”. ETA has similarities to the EU’s European Travel Information and Authorization System.11
54.ETA will be introduced on a phased basis, initially applying to visitors from Qatar travelling to the UK on or after 15 November 2023 and subsequently being expanded to further countries. The Statement sets out details such as: who is required to obtain an ETA; the conditions for an ETA to be granted, refused or cancelled; how long an ETA will be valid for; and the process for making an application.
55.SI 2023/305 deals with a particular aspect of ETA: making it a legal requirement for applicants to submit biometric information (initially a facial photograph and, in the future, fingerprints) as part of their application. The Explanatory Memorandum (EM) states that having biometric information within ETA will ensure “appropriate levels of identity assurance on foreign nationals who are subject to immigration control”.
56.In the EM for the two instruments, the Home Office states that a full Impact Assessment (IA) had been produced but was not being published. The Committee believes it is a fundamental principle of transparency and accountability that any information, including any IA, that was relied upon to formulate policy should be published alongside the instrument. We have set out our thoughts on this subject in more detail in a recent report on IAs.12
57.Our initial questions to the Home Office did not elicit any further information on the IA or the reasons for its non-publication. We therefore wrote to the Rt Hon. Robert Jenrick MP, Minister of State for Immigration at the Home Office, requesting that Home Office either publish the IA or provide reasons for not doing so. We received a reply from the Lords Minister at the Home Office, Lord Murray of Blidworth. The full correspondence is enclosed at Appendix 3.
58.Lord Murray’s reply stated:
“I can confirm that the Home Office will publish the ETA IA in due course, once the exact fee for an ETA has been agreed. The Home Office is in the midst of agreeing the final fee with HM Treasury and other government departments. I am sure that you will agree it would be far more beneficial to publish an IA which reflects the final policy and its impacts.”
59.It would have been helpful if the original EM had provided this rationale. We agree that the level of the fees will be an important factor in determining the impact of the ETA; for example, on the number of people choosing to travel to the UK.
60.However, it would also have been possible to publish the IA as it exists in its current form. This is likely to inform the discussion of fees. In any case, the IA is likely to contain wider information not just relevant to, or affected by, fees. Such information is important for assessing the effect of the instrument and no rationale has been given for not publishing it. The EM could and should have provided, at the very least, summary impact information to inform the scrutiny process.
61.We have asked the responsible Minister, Rt Hon Robert Jenrick MP, to provide further evidence on the Home Office’s approach to this instrument, and its wider processes in relation to statutory instruments.
62.We also asked the Home Office about whether the ETA will act as a deterrent to travel and tourism from Ireland to Northern Ireland via the land border, for those subject to ETA (for example, tourists initially arriving in Ireland). The Home Office stated that:
“The UK will not operate routine immigration controls on journeys from within the Common Travel Area (CTA), with no immigration controls whatsoever on the Ireland-Northern Ireland land border. However, individuals arriving in the UK must continue to enter in line with the UK’s immigration framework, which will include the requirement to obtain an ETA when it is introduced, which includes tourists visiting Northern Ireland via Ireland.”
63.The CTA allows British and Irish citizens to move freely between and reside in either jurisdiction.
64.We question the usefulness of a requirement to have an ETA for a journey that will be subject to no checks. We are also unclear about whether ETAs will be routinely checked when travelling from Northern Ireland to mainland UK. Potentially, these arrangements could undermine the policy intention of preventing the travel of those who pose a threat to the UK. The House may wish to enquire about the likelihood and implications of a foreign national who is subject to the requirement to have an ETA being able to enter Northern Ireland, and subsequently mainland UK, without undergoing any immigration checks.
65.We asked the Home Office about the costs and the timetable for the introduction of the technology to implement fingerprint identification. Lord Murray’s letter stated:
“The provision of fingerprints will not be required initially until a suitable solution is found for them to be self-up-loaded by applicants. [The Impact Assessment] therefore does not provide specific information on the timetable and costs associated with introduction of the technology to implement fingerprint verification.”
66.We question whether it is appropriate to introduce legislation enabling the use of fingerprint information before the relevant technology has been developed and before costs are known. We trust that further information on the costs and benefits of introducing fingerprint biometric requirements will be published in due course.
67.These instruments introduce the ETA scheme, under which all non-British or Irish passengers visiting or transiting through the UK who do not currently need a visa, will be required to obtain permission in advance and submit biometric information. The instruments were submitted without an IA or an explanation for its absence. While the Home Office subsequently provided reasons, these should not have prevented publication of at least some impact information. Any information, including any IA, that was relied upon to formulate policy should be published alongside the instrument to help in assessing its effect.
68.Questions also remain about the impact of the ETA scheme on travel from Ireland to Northern Ireland via the land border, and potentially about onward travel from Northern Ireland to the rest of the UK.
1 The first iteration of the Code is an affirmative instrument; any subsequent versions would be subject to the negative procedure.
2 College of Policing, ‘Protecting freedom of expression – updated guidance’ (21 July 2022): https://www.college.police.uk/article/protecting-freedom-expression-updated-guidance [accessed 20 March 2023].
3 Court of Appeal, Miller v. College of Policing, EWCA Civ 1926, 20 December 2021.
4 Cabinet Office, ‘Consultation Principles: Guidance’: https://www.gov.uk/government/publications/consultation-principles-guidance [accessed 21 March 2023].
5 Ministry of Justice, ‘Prison population figures: 2023’ (data for 10 March 2023): https://www.gov.uk/government/publications/prison-population-figures-2023 [accessed 16 March 2023].
6 Ibid.
7 HL Deb, 31 March 2022, cols 1747 and 1751–2 [Lords Chamber]. The amendment was not moved.
8 TCAs: County Councils, Unitary Authorities, Passenger Transport Executives and London Boroughs, Mayoral Combined Authorities.
9 Explanatory Memorandum to the Mandatory Travel Concession (England) (Amendment) Regulations 2022 (SI 2022/284).
10 See also House of Lords Library note: House of Lords Library, ‘Transport investment: Bus and rail’: https://lordslibrary.parliament.uk/transport-investment-bus-and-rail/ [accessed 29 March 2023].
11 European Union, ‘New requirements to travel to Europe’: https://travel-europe.europa.eu/etias_en [accessed 28 March 2023].
12 Secondary Legislation Scrutiny Committee, Losing Impact: why the Government’s impact assessment system is failing Parliament and the public (12th Session 2022–23, HL Paper 62).