Passenger, Crew and Service Information (Civil Penalties) (Amendment) Regulations 2022

Baroness Williams of Trafford Excerpts

Wednesday 23rd February 2022 Lords Chamber

Moved by

[Baroness Williams of Trafford]

That the draft Regulations laid before the House on 6 January be approved.

Relevant document: 26th Report from the Secondary Legislation Scrutiny Committee

[The Minister of State, Home Office (Baroness Williams of Trafford) (Con)]

My Lords, the purpose of these regulations is to make two amendments to the Passenger, Crew and Service Information (Civil Penalties) Regulations 2015. First, they delete a sunset clause which would otherwise mean that the 2015 regulations would cease to have effect from 31 March. Secondly, they extend the scope of the 2015 regulations to include Channel Tunnel rail operators, to bring parity in the application of the civil penalty regime to all carriers operating scheduled international routes whether by air, by sea or by rail through the Channel Tunnel.

All carriers operating scheduled services to and from the UK are required to provide complete, accurate and timely passenger, crew and service information to the Home Office. These requirements are made in accordance with paragraphs 27 and 27B of Schedule 2 to the Immigration Act 1971. The same requirements may be made by a constable under Section 32 of the Immigration, Asylum and Nationality Act 2006. This information, known as advance passenger information and passenger name record data, is a key component of the United Kingdom’s border security arrangements.

Processing of this information enables Border Force and police to carry out border control checks before individuals depart from the UK, before individuals are able to depart to the UK and before they arrive in the UK. This means that people wanted by police can be apprehended before leaving the UK, while individuals who pose a security or other threat to the UK may be prevented from travelling here, through the authority to carry or “no fly” scheme, or can be detected on arrival in the UK. The same capability enables the effective targeting of individuals carrying illegal drugs and criminal cash and the disruption of organised immigration crime using scheduled flights.

The effectiveness with which these activities can be undertaken relies on carriers, whether airlines, ferry operators or train operators, complying with requirements to provide passenger, crew and service information. Incomplete, inaccurate or late information can undermine the effectiveness of our border arrangements. The 2015 regulations introduced a civil penalty regime whereby the Secretary of State may require a carrier to pay a penalty if the carrier fails to comply with these requirements. The maximum penalty is £10,000 for each breach.

Before the introduction of the civil penalty regime in 2015 there was only a criminal offence, under Section 27 of the Immigration Act 1971, with a maximum penalty of six months’ imprisonment. That criminal penalty remains in place, as it should for the most serious cases of non-compliance. The civil penalty regime was introduced due to the challenge of successfully prosecuting overseas operators, particularly for failing to comply with a requirement to provide passenger, crew or service information where that information was being provided from the operators’ systems overseas. In practice, the approach to civil penalties has been, and continues to be, one of collaborative engagement with carriers to address any non-compliance issues and to achieve and maintain their compliance. This has proven extremely successful.

To date, no carrier has needed to be given a penalty notice under the 2015 regulations. There have been several instances where the civil penalty regime has been invoked, formal enforcement action for non-compliance has been initiated and formal notices of potential liability to substantial financial penalties have been given but, so far, in all cases, this has been sufficient to secure carriers’ compliance, meaning penalties have not been required.

Removing the sunset clause will also preserve the deterrent effect of the civil penalty regime which, alongside the passenger, crew and service information requirements, is an important and permanent element of the UK’s border security arrangements. Requirements relating to passenger, crew and service information have been in place since the 1970s, but what began as a paper-based process to help with the examination of arriving passengers is now a real-time data-driven process resulting in immediate decisions to refuse airlines authority to carry certain individuals to the UK or to identify individuals of interest, including those bringing in illegal drugs or taking out criminal cash.

I anticipate that some noble Lords may question the removal of the sunset clause and ask why it could not be extended for another seven years. Equally, some may question the need for a civil penalty regime at all. To both, I say that, to the extent that the sunset clause placed the regulations on probation, they have actually passed. They have demonstrated their deterrent effect and are now an established part of our border security arrangements.

I turn briefly to the other amendment that the Government seek to make through these regulations. Passenger, crew and service information requirements are now imposed on Channel Tunnel rail operators. This was not the case in 2015 and, for that reason, they were not included in the scope of the 2015 regulations. Extending the civil penalty regime to Channel Tunnel rail operators ensures parity in the application of both criminal and civil penalties to all carriers operating scheduled international routes that are required to provide passenger, crew and service information. It is essential that we maintain the civil penalty regime, and these regulations do that for the long term. They maintain the necessary deterrent to help ensure that operators continue to meet their obligations to provide complete, accurate and timely information about individuals intending to travel to and from the UK, the processing of which is a key component of our border security arrangements. I beg to move.

Amendment to the Motion

Moved by

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the Labour Party supported the original regulations, which introduced the civil penalty. They are proportionate, reasonable and in the national interest. We support those existing regulations remaining in place and we will not be opposing them this evening. We welcome that the penalty has not been enforced in any case so far, which the Minister confirmed in her introduction. But I repeat the question asked by the noble Baroness, Lady Randerson: it would be interesting to know how many warning notices had been issued, although the Minister made it clear that there was 100% compliance once companies had received the warning notice.

The Minister in the House of Commons said:

“In practice, the approach to civil penalties has been, and continues to be, one of collaborative engagement.”—[Official Report, Commons, Delegated Legislation Committee, 2/2/22; col. 4.]


I would be interested to hear from our Minister what that means in practice and whether that collaborative engagement is ongoing.

The Minister has already answered my next question, in a sense. I was going to ask whether the Government had considered extending the sunset clause for another seven years. She used the expression that the sunset clause had placed the regulations “on probation” and that they seemed to have passed that probation period. I think that is a reasonable answer to the question that I was going to ask.

How do the Government propose the ongoing review of these measures to make sure that they stay relevant? Will there be regular reviews, for example?

A further question partly arises out of my noble friend’s amendment. He outlined the concerns from the EU that he has come across and raised a number of questions, which I wrote down and I am sure the Minister did as well. I will be interested in her response to those. The main thrust of them was wondering whether there would be a commonality of policy between the EU and the UK Government so that there is not double punishment for potential corporate transgressors, and a commonality of approach would surely be beneficial for the operators themselves.

A further question, which again the noble Baroness, Lady Randerson, has raised, was a concern that any extra checks that may be put in place should not lead to greater delays. We heard about the noble Baroness’s experience last week. I do not know whether they were seen as a temporary measure because of the current situation, and those delays should be expected to disappear in the coming months.

In conclusion, as I have said, we welcome the removal of this sunset clause. We think the measures have passed their probation period. I think my noble friend has raised some interesting questions with his amendment, and I look forward to the noble Baroness’s response.

[Baroness Williams of Trafford (Con)]

I thank noble Lords for their questions. I have written them down and will try to answer them in no particular order. I start mainly by addressing the question from the noble Lord, Lord Berkeley, about immigration officers being immigration officers and transport operators being transport operators. No operator is required to take any immigration decisions. The information is to enable Border Force to take better immigration decisions. On the European Commission proposal, these are not passengers that the carrier would actually know about, so the regulations have no bearing on that issue. In terms of Ireland, there is no application to land transport by road or rail. In terms of what we mean by schedule, schedule is the service that the truck travels on and not the truck itself.

Getting on to questions from other noble Lords. First, I was asked why the sunset clause is being removed. It was standard practice at the time that a sunset clause was added to the Passenger, Crew and Service Information (Civil Penalties) Regulations 2015. That sunset is on 31 March, and needs to be addressed to ensure that regulations do not cease to have effect. Noble Lords will remember that that was the sort of bonfire of regulations time. I think now is the time when we can say that this system is working, and I will go through why. The approach has been taken to remove the sunset clause. It will preserve that deterrent effect that I talked about earlier of the civil penalty regime which, alongside the passenger, crew and service information requirements, is now a permanent and ongoing element of the UK’s border security arrangements and has been for a considerable time.

The noble Baroness, Lady Randerson, and the noble Lord, Lord Ponsonby, asked about the legislation and its effectiveness. It will be subject to ongoing review to ensure its continued utility. The noble Baroness, Lady Randerson, and, I think, the noble Lord, Lord Ponsonby, as well, asked why the Channel Tunnel was not included back in 2015. I think that was because the emphasis was on the operation of juxtaposed controls. Those controls are maintained, but advanced information enables better targeting of those individuals requiring close examination.

On delays, the noble Baroness, Lady Randerson, talked about how in practice this is preparing the way to progress towards the operation of more effective controls, on the basis of knowing in advance who is travelling. It will support the operation of the Government’s future border and universal permission to travel plan.

The noble Lord, Lord Ponsonby, asked about the civil penalty regime. Border Force takes a collaborative approach to engagement with carriers to secure their compliance with requirements to supply passenger, crew and service information. To address non-compliance, the imposition of civil penalties is very much a last resort. The threat of financial penalties through the service of notice of potential liability has had the quite dramatic effect of addressing and resolving instances and issues of non-compliance.

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[Lord Berkeley (Lab)]

I am grateful to the Minister for her comprehensive response, but I did not quite understand what she said about the European Union and not applying to people. From my reading of the regulation—it is definitely a draft regulation— it does apply when carriers take people across frontiers. My worry is that, rather than carriers being subjected to the civil penalty regime as we have been discussing to and from the UK, they could have something that is more draconian, such as the removal of their licence to operate at all. If the Minister has not had discussions with the European Commission already, could she and her officials do so and try to make sure that we will not suffer unduly from what it might propose?

[Baroness Williams of Trafford (Con)]

I was under the impression that the noble Lord was talking about clandestine arrivals. They would not be classified as passengers. That is why I said that, if they are clandestine, the carrier would not know about them. I am thinking of the people who have clandestinely arrived through the Channel Tunnel and by other methods.

[Lord Berkeley (Lab)]

The definition that the Commission puts in its regulation will need studying. Those arrivals may be clandestine, or they may be something else. It may be just its attempt to deal with what it sees as a clandestine invasion from outside Europe —I do not know—but I am worried that if there are people who are seen to be illegally in one country for whatever reason and trying to get into another, the carriers will get caught by it.

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[Baroness Williams of Trafford (Con)]

I do not think they will be, because these are not passengers; they are people who have clandestinely arrived and therefore are under the radar. However, I will study carefully what the noble Lord has said, particularly in regard to the regulation.

[Lord Berkeley (Lab)]

I beg leave to withdraw the amendment.