Passenger Name Records

Damian Green Excerpts

Tuesday 10th May 2011 Commons Chamber

[The Minister for Immigration (Damian Green)]

With permission, Mr Speaker, I would like to make a statement on the draft EU directive on passenger name records—PNRs—and the Government’s decision to opt into it. My appearance today fulfils a commitment that I made to the European Scrutiny Committee.

Global travel brings with it countless benefits—economic, cultural and social—and there is no doubt that our more interconnected world is a better world, but greater freedom of movement also provides opportunities for those who wish to do us harm. We know that terrorists have long had an interest in aviation-related attacks. We know, too, that serious criminals, people traffickers and drug smugglers have exploited easy international forms of travel to carry out their crimes. They often plan and execute their crimes in meticulous detail, using intricate ruses to escape detection and capture. In response, Governments around the world are increasingly exercising greater vigilance to keep their citizens safe. Passenger name records—passenger data collected by air carriers as part of the operation of their business—are a vital and proven tool in the fight against terrorism and other serious crimes.

Passenger name records help our law enforcement agencies to prevent, detect, investigate and prosecute terrorists and other serious criminals. Their power lies in the fact that, by using an automated system and interrogating it intelligently, we are able to sift data quickly and in such a way that they reveal patterns and make links that would otherwise not be readily apparent. For example, the case of David Headley, the terrorist facilitator convicted in the US of involvement in the Mumbai attacks, shows the benefits of PNRs. All that was available to US investigators initially was the first name, “David”, a vague travel window of “the next few weeks” and the partial travel itinerary of a flight from the United States to Germany. The US used these PNR data in association with other known flight information to identify the suspect before he could travel. Headley was later arrested and pleaded guilty to terrorism-related crimes.

PNR data therefore have a proven capability to protect our citizens from harm. Along with advance passenger information—API—PNRs are a crucial element of the UK’s own e-Borders system. Since 2005, e-Borders has led to more than 1,500 people being refused entry and to more than 8,700 arrests, including 57 for murder, 175 for rape or sexual assault, 25 for kidnapping, 441 for fraud, 397 for drugs offences and 920 for violence. That is why we committed to supporting e-Borders in our coalition agreement.

Critical to our decision of opting into the directive was the aim of securing an ability to mandate the collection of PNR data on flights between two EU member states, for the full usefulness of the system to be realised. I am pleased to say that the coalition Government made significant progress on this, ahead of the opt-in deadline, and that the European Council has given a clear political signal that it favours collection of data on intra-EU flights, following a UK amendment to that effect. The Home Secretary pressed the argument for it at the April Justice and Home Affairs Council meeting, which has been reported to the House via letters to the Chairs of both scrutiny Committees. At the Council, 15 member states supported the UK’s position to include intra-EU data collection. So, although we have reservations about some aspects of the directive that will need to be resolved in due course, we can enter into negotiations from a position of strength, knowing that we have the support of a majority of other member states on this key issue for the UK. Indeed, the official outcome of proceedings of the 11 April JHA Council states that

“the preparatory work on the draft PNR Directive will continue...on the basis of the indication by the Council that the Directive should allow individual Member States the option to mandate the collection of PNR data with regard to targeted intra-EU flights”.

The draft directive as it stands is not perfect, but it is right that we work with our European partners to get a directive that best serves Britain’s interests. Initial parliamentary scrutiny of the directive has already taken place, but it will continue as the negotiations progress. Debates have been held in both Houses. The Lords strongly recommended that we opt into the directive and the Commons supported the Government’s negotiating position. We already have domestic legislation to underpin the collection of PNR data, but the directive will provide an unequivocal legal framework at EU level for the collection and sharing of such data. I know, however, that some hon. Members have concerns about the PNR directive, which I want to address directly today.

Let me address the two basic issues of why using PNRs is both necessary and proportionate. I set out earlier how PNR data have been used to target suspected terrorists. The application of this data also has wider benefits in tackling serious organised crime. For example, in 2009, working with our Italian colleagues, we used PNR data to identify Chinese passengers attempting to travel to London from Italy in a human trafficking operation. This led to the conviction in the Italian courts of several traffickers in January 2010. Modern criminality requires modern methods to seek out and shut down criminal activity. We cannot just focus on solving crimes after they have happened; instead, we must use the tools available to prevent them from happening in the first place.

Our commitment to a proportionate approach is made clear by our proposal to collect data only on routes of high risk, whether these are between a third country and a member state or between member states. Our starting position is thus about reducing the amount of data collected rather than imposing blanket coverage on all routes from outside the EU as the directive currently proposes. A further benefit of our approach is that it should help make costs manageable, in terms of both data transmission by carriers, and management and maintenance of the system by the member state. We will want to see stringent data protection requirements, overseen by independent information commissioners, so that people’s rights over their personal data are protected. We will also work to ensure that the directive allows data to be retained only for as long as is necessary and proportionate to the task in hand.

Thirdly, some hon. Members will have concerns about sovereignty. Let me be clear: this directive is not about handing over responsibility to a European institution. Rather, it is about member states collecting and processing PNR data on travel under an agreed legal framework to help protect citizens from harm. The draft proposals are based on each member state collecting and analysing the data, and we will vigorously stand by that way of operating. Indeed, the current directive would not allow for the creation of an EU-wide database. We must recognise that criminals are no respecters of national boundaries—they will exploit any perceived gaps or weaknesses within the EU—so it is our collective responsibility to ensure that we close loopholes, wherever and whenever we can.

Finally, carriers will not be required to collect any more data than they already collect as part of an ordinary business transaction. Transmission costs will be borne by the carrier, and have been estimated by the Commission at less than 8p per passenger per flight—a small price to pay for increased safety and security.

Opting in to this directive is good for our safety, good for our security and good for our citizens. It is necessary and right. Opting in to this directive will make Britain a safer place. I commend this statement to the House.

[Shabana Mahmood (Birmingham, Ladywood) (Lab)]

I thank the Minister for advance sight of his statement. The current UK regime that allows for the collection of PNR data and their use for both immigration control and combating terrorism was brought in by the previous Labour Government through their creation and roll-out of the e-Borders programme. We therefore recognise the vital importance of the role played by PNR data to achieve both those policy objectives.

Given that PNRs are a proven tool for the prevention and detection of serious crime and terrorism, we believe that it is sensible to have a Europe-wide regime to ensure similarity of methodology and approach to PNR rather than have member states going their own way and making individual agreements. We are thus supportive of the UK decision to opt in to the directive.

We note the different approach taken by the Conservatives, now that they sit on the Government Front Bench, to EU co-operation on home affairs and justice matters. That was not something they championed in opposition, but, as we have seen with their change of heart on the extension of the European arrest warrant and their position on PNR data today, that is what happens when rhetoric confronts reality. It is a shame that the Minister took such a long time to sign the directive on human trafficking, where the reality is so shocking.

As the Minister has already told us, the biggest change between the first draft directive and the new draft directive is the inclusion of intra-EU flights within its scope. That is a positive step. As the Minister and I discussed in European Committee B, the inclusion of intra-EU flights is necessary to prevent a security gap from emerging. Will the Minister tell us whether negotiations are continuing with the member states that have not yet expressed support for the proposal—in particular, Germany—and give us his assessment of the effectiveness of the directive without universal support for the inclusion of intra-EU flights?

I note from the new draft directive that the new article 1(a) leaves open the ability of member states to decide which intra-EU routes they wish to include in their PNR data collection coverage, and I note from the Minister’s statement that, in the UK at least, that will focus data collection on routes that are considered to be high risk. However, there is a danger that that will displace the problem rather than deal with it. If potential criminals and terrorists know that certain routes are being targeted, they are likely to move to other routes. Is the Minister confident that we have the necessary flexibility and resources to pre-empt that, and to ensure that we keep pace with what is a constantly changing and developing security picture?

One of the questions I raised with the Minister when this matter was last debated in the House was whether all terrorism offences under the Terrorism Acts 2000 and 2006 would be within the scope of the directive allowing PNR data to be collected and shared. The Minister has written to me. I note that he does not yet know whether all those offences will be covered, and that

“complex legal analysis”

will be required

“during the negotiations to determine the overlap between definitions in the Directive and those in our domestic legislation”.

The UK regime for counter-terrorism reflects the UK’s national experience, and is therefore more extensive in some ways than the regimes of other European Union states. Legislative parity, given the extensive provisions of the Terrorism Acts, will therefore be vital. May I impress on the Minister the importance of keeping that point under review, and will he assure the House that it will be a priority as negotiations continue?

One of the important features of the UK’s internal arrangements is that through the e-Borders programme we can use API and PNR data together, and can use both types of data set for crime fighting and immigration control purposes. I know that the Minister agrees that the full benefits of e-Borders are realised when API and PNR data are collected and used together.

I have asked the Minister before whether he thinks that the current directive is sufficiently clear to enable the UK to continue to use PNR data for immigration control purposes, but I note that the potentially relevant paragraphs of the draft directive remain unchanged. Will the Minister assure the House that signing up to the draft directive will not diminish or weaken the UK’s e-Borders programme in any way, and that he will continue to press for clarity in the directive in order to leave no doubt that member states can collect and use PNR data not just in respect of terrorism and serious crime, but for immigration control? There should be no unintended consequences that would prevent the UK from maintaining effective control of its border.

The draft directive currently states that PNR data will be collected and retained for a period of 30 days, after which it will be anonymised and held for a further five years. The UK Government have been pressing for the data to be held for much longer than that. First, will the Minister tell the House where the negotiations stand in relation to that important part of the proposal? Secondly, will he explain how this conforms with the coalition Government’s emphasis on the removal of data held for the purposes of fighting serious crime? That is what they are doing by weakening the DNA database under the Protection of Freedoms Bill, but they do not seem to be particularly concerned about it in the context of the directive. Does the Minister believe that the Government are adopting a consistent approach, or will they continue to be—as they are at present—all over the place?

Using appropriate information in the fight against serious crime and terrorism is, of course, entirely necessary. We welcome this European initiative, which may make the Government think again about the fight against other serious crime.

[Damian Green]

I am grateful for the hon. Lady’s support for the Government’s decision, although I am slightly puzzled by her suggestion that there has been some enormous change since my party was in opposition, given that from 2005 onwards the Opposition spokesman on this subject was me. There has been no change at all, either in the person of the spokesman or in the attitude I have taken to PNR and the collection of data. What we are doing is putting into practice what we said in opposition.

The hon. Lady asked a number of specific questions. Negotiations are continuing now that we have decided to opt into the directive. She asked whether the directive will be useful if it ends up not containing the intra-EU provisions that we regard as so important. First, I should emphasise that we have already ensured that a majority of member states are now in favour, so we are extremely hopeful of getting this in place. Secondly, it will be useful, but not as useful as it will be if the intra-EU travel provisions are allowed.

The hon. Lady asked about targeting and whether we can keep pace. It is an important point that some routes are much more high risk than others, so concentrating our resources on them is likely to make us more effective than just having a blanket collection. We and other countries will need to flex to meet the circumstances. The hon. Lady is right that criminals and terrorists will change their patterns of activity. One of the advantages of collecting PNR is that it enables us to see patterns emerging and changing, and to meet that by being fleeter of foot in changing the routes we cover.

The hon. Lady mentioned our exchange in Committee on terrorism offences. She read out part of my letter to her, but neglected to continue. The answer to her question is in the next couple of lines:

“As the negotiations progress…we will need to keep this point under review and, if necessary, seek any changes during the passage of the Directive.”

That is, of course, what we are going to do.

I am happy to be able to assure the hon. Lady that this will not diminish our e-Borders programme. I should point out to her that the most effective immigration part of the e-Borders programme is the API collection, not the PNR collection. I am sorry to be talking in jargon to the House. The API data are essentially the basic information that comes off the passport of any traveller. The collection of that is what will enable us, under e-Borders, to count people out as well as in, and that is what is crucial for immigration.

The hon. Lady talked about the period of time for which data will be held. That will be at the core of the negotiations, and it is extremely important. Under the current British e-Borders system, we hold the data for, essentially, 10 years, and we think that is too long. The Commission is proposing 30 days, and for it then to be anonymised for a few years. The Canadians have a different system again, under which it is held for three and a half years. This issue will be at the heart of the negotiations.

As for the hon. Lady’s idea that there is any inconsistency between our approach on this and our approach on domestic data collection, that is absolutely dead wrong. As I emphasised in my statement, we believe in the necessary and proportionate use of data to combat crime and terrorism, while preserving the civil liberties of the British people. That is what we apply in our domestic field, and that is what we will apply in the international field as well.

[Mr William Cash (Stone) (Con)]

rose—

[Mr Cash]

I am extremely grateful to you, Mr Speaker; thank you very much for that.

As the Minister knows, the European Scrutiny Committee is somewhat concerned, to say the least, about the blizzard of opt-ins and the fact that the negotiations on a number of very important matters are still going on. There is therefore some concern about the possibility of our opting in on the hoof, and we will keep these negotiations under close scrutiny, in particular the negotiation on the length of time for the retention of data, but also that on the definition of a serious crime and the question of proportionality in using these data for offences such as racism, xenophobia and sabotage. There is also the whole issue of sensitive personal data in itself. I know the Minister is apprised of these issues, but will he understand that we are extremely concerned and that as there are these important continuing negotiations it is not good enough simply to say, “We will accept it in principle and then discuss it all afterwards”?

[Damian Green]

First, may I add my good wishes to my hon. Friend on reaching his 39th birthday? I assure him that the Government are keenly aware not only of the key issues he has raised but that he and his Committee will be scrutinising what the Government do. Indeed, as the negotiations are likely to go on for at least a year, if not longer, there will undoubtedly be opportunities for the Committee to return to its perfectly proper scrutiny arrangements during that time.

[Keith Vaz (Leicester East) (Lab)]

May I also support the Government’s decision to opt in to this directive? The Minister has dealt adequately with the two issues raised by the Home Affairs Committee when it considered the matter—privacy and cost—but will he confirm that the information being collected will not be shared outside the EU? It had been suggested that it might be given to other countries, such as the United States. Secondly, will he also assure us that now that the contracts have been issued under the e-Borders programme, which of course suffered an unfortunate delay under the previous Government, it will be fully operational by 2014, when he may still be the Immigration Minister?

[Damian Green]

The right hon. Gentleman always paints a happy prospect of life ahead. I am grateful for his support and on the data protection issues I can say that the British information will be dealt with by the British Government, so we will not see the random international sharing of information that he suggests—I agree that that would be bad for data protection issues. On the e-Borders system, we are indeed proceeding with letting the new contracts. We already have more than 90% of routes outside the EU covered by e-Borders and we hope that within the next 12 months that coverage will be more or less complete, so that will proceed quickly. Clearly the biggest single gap in the e-Borders coverage is within the EU, which is what this directive is very precisely going to help us with.

[Tom Brake (Carshalton and Wallington) (LD)]

The Minister rightly says that the directive will make Britain safer, but will he say a little more about the safeguards? Specifically, will he confirm that the data will not be used for profiling and that the UK’s data protection standards will apply?

[Damian Green]

I am very happy to give my hon. Friend that specific assurance that the data will not be used for profiling. Indeed, the amount of sensitive personal data that will be put on the system is one of the liveliest matters for negotiation. I entirely share his instincts, which I know to be that although data need to be collected and stored for the protection of our citizens, that must done proportionately. In many ways, the ideal situation is that we collect and store the exact minimum of data that we need to enhance the security of the people and do not drift into the situation that the previous Government fell into. They believed that they made us safer by collecting and storing more and more data and keeping them for longer. That did not make any British citizen safer but it did amount to an assault on our civil liberties.

[Kate Hoey (Vauxhall) (Lab)]

The Minister has said on a number of occasions that opting into this directive will make Britain safer. I presume that he meant to say the United Kingdom of Great Britain and Northern Ireland, although I frequently hear Ministers refer to “Britain”. He said that this approach would be used “only on routes of high risk, whether these are between a third country and a member state or between member states.” Does he envisage it ever being used for journeys between Belfast and London?

[Damian Green]

I am perhaps careless in saying “Britain” when I mean the United Kingdom, and I am happy to assure the hon. Lady that I mean the United Kingdom on this occasion. Like her, I regard flights between Belfast and London as being entirely British domestic flights and therefore certainly not included in the terms of an international agreement between EU member states.

[Mr Rob Wilson (Reading East) (Con)]

I congratulate my hon. Friend on what seems to be a very pragmatic anti-terrorism measure, but will he tell the House how the implementation of this directive fits into the Government’s very positive record of balancing civil liberties, on the one hand, and anti-terrorism work, on the other?

[Damian Green]

It will fit in during the course of the negotiations, and I hope that my hon. Friend will observe that we want to reach a position in which the amount of information collected, as well as the length of time for which we keep it, are proportionate, and the number of offences for which it is used is both sensible and proportionate. I take the point raised by my hon. Friend the Member for Stone (Mr Cash), which must be considered, too. We will be concentrating hard on those details of the negotiations, always with the view that we want to ensure that this measure is entirely consistent with our stance of enhancing both security and civil liberties.

[Emma Reynolds (Wolverhampton North East) (Lab)]

I congratulate the Minister and the Government on opting in to this important directive. I also welcome the eventual, although late, decision to opt in to the human trafficking directive at the end of the negotiations. Contrary to the advice that he has received from the hon. Member for Stone (Mr Cash), does the Minister agree that it is important for the UK to opt into such directives at the start of the process, so that we can be at the forefront of negotiating the finer detail of the proposals? We did not have the chance to do that with the European human trafficking directive.

[Damian Green]

I am grateful to the hon. Lady for her support, but I do not agree that we should take a blanket decision always to opt in at the beginning. With some directives, of which this is one, we are clearly leading a majority of European countries towards a position that would be extremely desirable, and without which the directive would be much less powerful. As for the human trafficking directive that we agreed to opt in to last night, in that case there was more of a threat than a promise during the negotiation procedure, and we needed to know that when we reached the end of the procedure the directive would still be entirely safe for Britain. As the hon. Lady will know, one difficulty is that if we opt in at the beginning there is no chance of opting out at the end if we discover that the negotiations have gone wrong. This is a question of taking every case on its merits, and that is what we seek to do.

Oddly enough, what has happened in the past 24 hours illustrates the virtues of such pragmatism. For the trafficking directive it was sensible to opt in at the end of the process, and for this directive it was sensible to do so at the beginning. With other directives it will be sensible for us not to opt in at all, because they might be harmful. I can assure the hon. Lady that the Government will continue to operate a pragmatic case-by-case approach to such directives.

[Mr Peter Bone (Wellingborough) (Con)]

My view is completely the reverse of what the hon. Member for Wolverhampton North East (Emma Reynolds) has just said. It was absolutely right to opt in to the human trafficking directive yesterday after it was finalised. I am a bit worried that we are now opting in to a directive that we cannot opt out of before we see the final version, although the Minister already has concerns about it. Why does he think that we should opt in now, rather than waiting until the end, as we did with the human trafficking directive?

[Damian Green]

Because one of the crucial elements of this directive concerns travel between EU states. That, more than anything else, is what will help make British citizens safer, as 72% of the flights in and out of this country are flights between EU member states. Although the directive would still be useful if it did not cover such flights, it would be significantly less useful. We have devoted our negotiating efforts, successfully so far, towards building a coalition in the EU to promote that policy. So far, that is going well. This is a prime example of where opting in at the beginning and leading the discussions will be to the advantage of this country and its citizens.