Counter-Terrorism and Security Bill

Lord Ashton of Hyde Excerpts

Monday 26th January 2015 Lords Chamber

[Lord Ashton of Hyde (Con)]

My Lords, I am grateful for the opportunity to address the points raised in relation to Part 4 of the Bill, including the amendments in the names of my noble friends and that tabled by Her Majesty’s Opposition. Perhaps I may start with the questions asked by the noble Lord, Lord Rosser.

The noble Lord asked what new power this provision has that the current legislation does not. The Bill will make provision for a new authority-to-carry scheme or schemes for passengers arriving or expected to arrive in the UK or departing or expected to depart from the UK. The current statutory arrangements apply inbound to the UK only. The Bill will also extend the operation of authority-to-carry schemes to a broader range of individuals, including British nationals, who pose a terrorist or terrorism-related threat to the UK.

The noble Lord also asked how many people will be affected by this. We do not comment on specific numbers. However, since the introduction of the security and travel bans authority-to-carry scheme 2012, we have stopped the travel of a small number of people whom we have judged may pose a terrorist or terrorism-related threat to the UK.

I take the point made by the noble Lord, Lord Ahmed, about perception and the fact that these authority-to-carry schemes have to be used sensitively. I hope that it helps that so far they have been used only in relation to a small number of people, but I take his point. I hope that my answer later will go some way to reassure him.

The noble Lords, Lord Rosser and Lord Ahmed, asked about the classes of individuals whom carriers are liable to be refused authority to carry. I will take individuals travelling to the UK under the new scheme. They include individuals who are assessed by the Secretary of State as posing a direct threat to the security of aircraft; individuals who are subject to a temporary exclusion order, which we have talked about previously in our debates on the Bill; EEA nationals and accompanying/joining third-country national family members of EEA nationals who are the subject of an exclusion or deportation order under the immigration regulations; third-country nationals who have been, or are in the process of being, excluded from the UK under the Immigration Rules; nationals who are the subject of a deportation order; nationals who have been or would be refused a visa; and individuals otherwise inadmissible to the UK, including those seeking to travel using invalid travel documents. I hope that that goes some way to show that the powers are targeted specifically and that they are not intended to cover huge swathes of people.

Amendment 100 tabled by the noble Baroness, Lady Smith, and the noble Lord, Lord Rosser, and Amendment 101 tabled by my noble friends both seek to achieve the same effect: more direct parliamentary scrutiny of an authority-to-carry scheme made under Clause 18. Amendment 100 would require a scheme to be set out in regulations and approved by Parliament subject to a negative resolution but would make the scheme and the regulations to enforce it subject to a separate and different parliamentary process. Amendment 101 would require that draft affirmative regulations, laid before Parliament to impose penalties for breaching a scheme made under Clause 18, should include the requirements of that scheme.

The approach taken in the Bill mirrors that in Section 124 of the Nationality, Immigration and Asylum Act 2002 under which the current scheme and its regulations were made in 2012. The Government’s policy intention is that any new authority-to-carry scheme, or any amendment to an existing scheme, will be laid in Parliament with draft affirmative regulations which refer to the new or amended scheme. I recognise the concern noble Lords might have that, as drafted, there is only indirect scrutiny of an authority-to-carry scheme itself. The Delegated Powers and Regulatory Reform Committee expressed a similar concern in its report, as the noble Lord, Lord Rosser, mentioned. The Government are at present considering the report of the committee and we would like to reflect on the concerns of noble Lords so that we can return to this issue at Report. On that basis, I hope that the noble Lord will feel able to withdraw Amendment 100 and that my noble friend will not press Amendment 101.

Amendment 102, tabled by my noble friends, would require that regulations imposing penalties for breaching an authority-to-carry scheme must provide for a carrier to be able to appeal a penalty. The legislation already provides that the regulations may allow for an appeal, but the amendment would leave out the provision that the regulations must provide for a carrier first to be given an opportunity to object to the penalty. The approach we are proposing in the Bill mirrors that taken in the Nationality, Immigration and Asylum Act 2002 (Authority to Carry) Regulations 2012, under which any breach of the current authority-to-carry scheme would be penalised. Where a penalty is imposed, the carrier must have the opportunity to appeal. If the penalty is reduced, remains unaltered or is increased, the carrier has the right to proceed to appeal. However, our intention is that the carrier must object before they can appeal. There is no question that a carrier that objects to a proposed penalty for breaching an authority-to-carry scheme will have the right to a judicial appeal. That will be set out in the regulations, subject to affirmative resolution. In the light of those assurances, I invite my noble friend not to press the amendment.

Finally, government Amendments 120 and 121 amend Clause 42 of the Bill so as to bring the aviation security powers in Part 2 of Schedule 2 into force on Royal Assent rather than at a later date by commencement order. Those powers in paragraphs 9 to 11 of Schedule 2 strengthen and enhance the ability of the Secretary of State to issue security directions to airlines flying into the UK and to create, through regulations, a related civil penalty regime for airlines that fail to comply. In doing so, this amendment brings the implementation of these powers into line with those in Part 1 of Schedule 2, covering passenger, crew and service information, which would already come into force on Royal Assent. The threat to aviation from certain terrorist groups is well documented and continues to evolve. We already work closely with foreign Governments and airlines, as well as UK operators, to make sure that the necessary security measures are in place and are being effectively implemented, but these measures will enhance our ability to do that.

I hope your Lordships will therefore agree that it is right and sensible to have these strengthened and clarified powers available at the earliest opportunity. Accordingly, I invite your Lordships to support these amendments.

[Baroness Hamwee (LD)]

I am left a little puzzled as to why there should be an opportunity to object before an appeal. I can see that that would be to the benefit of the Secretary of State—the benefit of the authority implementing the scheme—but the way in which it is worded suggests that it is intended as some sort of benefit for the carrier. My noble friend may not have the information to explain that further at this stage, but he will understand why I went down that route. The presentation of the provision fits with the explanation, but it seems as though it is for the benefit of the carrier, yet the carrier has the right to appeal. I would be glad to have that confirmed.

[Lord Ashton of Hyde]

I may be able to help. It is right that Clause 19(4) says that procedures for imposing a penalty,

“must provide for a carrier to be given an opportunity to object”.

We are keen that the carrier should be able to object first and, if necessary, move on to an appeal later. It is in the Bill because, I am told, this is the way that it is normally provided for. It may, in particular, make provision for allowing an appeal. We prefer that they object first and then are able to appeal. As I said, I can give an assurance that the method for appealing will be in the regulations.

[Lord Rosser]

I thank the Minister for his response. Given that he indicated that the Government would consider the views expressed by the Delegated Powers and Regulatory Reform Committee to which I referred, I will not seek to pursue Amendment 100.

I will make one point about why I hope the Government will consider carefully what the committee said, which I am sure they will. The Minister said that the existing powers had not been used to affect large numbers of people. I think he used the expression “huge swathes of people”. That is one of the concerns that needs to be properly allayed, and it was a concern referred to by the noble Lord, Lord Ahmed. Clause 18(2)(b) says,

“the classes of passengers or crew in respect of whom authority to carry must be sought (which may be all of them or may be defined by reference to nationality, the possession of specified documents or otherwise)”.

In noting that the categories are “by reference to nationality”, that gives the prospect of the “huge swathes of people” to which the Minister has referred. It is important that in looking at this matter in the light of the Delegated Powers and Regulatory Reform Committee’s views—as the Minister has said the Government will—the Government’s response firmly nails down that the reference in Clause 18(2)(b) should not be interpreted as meaning “huge swathes of people”. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Rosser]

My Lords, unmanned aerial vehicles, as has been said, are used in a military context and by public bodies in the UK, and for surveillance, among other uses. Surveillance UAVs are regulated, although, as my noble friend Lord West of Spithead has said, some people question how effective this regulation is.

I will comment in particular on the use of small non-surveillance unmanned aerial vehicles. UAVs weighing under 22 kilograms are entirely unregulated. They can be bought and sold freely. There is no tracking mechanism. Perhaps most importantly, they can easily be purchased for self-assembly, which makes them easy to modify, perhaps for the kind of purposes set out in my noble friend’s amendment. There is a big concern around airports. As has been said, a UAV got within a few feet of an Airbus jet leaving Heathrow. Even a small UAV could cause engine failure in a jet, in the same way as a bird strike, even if not being used for obviously hostile purposes. While airports have extensive protection from lasers, and even from surface-to-air missiles, there is no specific provision, as I understand it, for UAVs. Apparently, this is a concern of the British Airline Pilots Association and air traffic controllers, and suggestions have been made for UAV no-fly zones around airports.

I hope that, in their reply, the Government will be able to show that they have assessed the risks and are taking appropriate action because, subject to what the Minister says in response, it is not obvious that there is a coherent direction of policy, at least on smaller UAVs if not larger ones, with the light-touch regulation to which my noble friend Lord West has referred.

[Lord Ashton of Hyde]

My Lords, I am grateful to the noble Lord, Lord West, for bringing his particular experience to bear on this important issue, which I certainly agree is a matter of growing public concern. The noble Lord particularly mentioned the effect on the public of something going wrong, and it is clear that people are taking an interest.

The growing use of unmanned aerial vehicles is being driven by their increasing versatility and affordability, as the noble Lord mentioned. Their use raises a number of issues, including those of safety, privacy and the potential security threat which they could pose. A good deal of work is going on with the Government at the moment. As I think the noble Lord mentioned, the Government have established a cross-Whitehall group co-chaired by the Department for Transport and the Ministry of Defence, and including the Civil Aviation Authority, which has responsibility for the regulation of UAVs, to look at the safety, privacy and security implications. If the group identifies any issues where new legislative powers are necessary, they will be addressed. However, I have noted the noble Lord’s comments about information being made available and I will take those back.

I can reassure the Committee that, from a legal standpoint, there are already air navigation rules in place to regulate the use of unmanned aerial vehicles. Existing restrictions include, for example, that an unmanned aircraft fitted with a camera must be flown at least 50 metres away from a person, vehicle, building or structure. It must not be flown without permission within 150 metres of congested areas or any large group of people, such as a sporting event or concert. Unmanned aerial vehicles are not permitted to fly in areas where they may cause danger to manned aircraft and it is prohibited to drop an article from a UAV so as to endanger persons or property.

My noble friend Lady Hamwee mentioned blanket bans on certain areas rather than making this specifically terrorist related. I agree with her. There are specific powers under the Air Navigation Order 2009 which enable the Secretary of State to impose restrictions on flying in particular areas, including for safety or reasons in the public interest, which could include security. That will take into account the example mentioned by the noble Lord, Lord West, of areas close to an ILS system at an airport. Crucially, the 2009 order makes it an offence to contravene any of the air navigation articles. A number of additional offences would currently apply to the arming of an unmanned aerial vehicle for the purposes of terrorism. These include offences related to the use and possession of firearms, weapons or explosives, or the preparation of terrorist attacks.

All that being said, the use and potential misuse of unmanned aerial vehicles is an area that the Government are monitoring closely. We will continue to consider whether it is necessary to introduce new offences related to the use of UAVs. I thank the noble Lord once again for raising the issue and thus allowing me to provide these reassurances. On the basis that the existing legislation is sufficient and that any potential gaps are being considered by the cross-government group, which I am sure will take account of this short debate, I hope that he will feel able to withdraw his amendment.

[Lord West of Spithead]

I thank the Minister for his response. Before I come to that—because I was a little disappointed—I will say that the noble Baroness, Lady Hamwee, is absolutely right. We have to be quite careful about how we go about this. Indeed, I have got no praise for the way I have put my amendments, but I believe that this needs to be looked at. The Minister makes the assumption that we are happy with current legislation, but current legislation is not adequate. Certainly the Civil Aviation Authority and the airline pilots association do not think it is. We need to think hard about this. Overall, the noble Lord was on side with my worries, but—

[Lord Ashton of Hyde]

Again, I am sure that the cross-government group that is considering gaps in legislation will take account of this debate, including the noble Lord’s comments.

[Lord West of Spithead]

I thank the noble Lord for that. At the moment, some of these things are slightly opaque. That is the problem. It is very difficult to find out what is going on. It would be much better if we had a clearer view with a more open debate about it. It is interesting, for example, that the Military Aviation Authority has just published RA 1600, which is a reclassification of some drones and it is paving the way for much greater use of military drones in UK airspace. So when we have a lot of military drones operating there, again, the risk of these other drones becomes even greater. This is something we have to get our mind around.

Interestingly—I had not thought about this before—the noble Lord, Lord Rosser, mentioned tracking mechanisms, which of course are making huge leaps and bounds in technology. You can get ones that are really tiny. Maybe that would be a way, if the drones showed up on secondary radar, for example. I do not know whether that has been looked at—and the reason that I do not know whether it has been looked at is that there is no openness in terms of discussion, which worries me.

I will need to reconsider the Minister’s comments and think about them and look at Hansard. Until I have done that, I beg leave to withdraw the amendment.