Authority to Carry Scheme and Civil Penalties Regulations 2023

Lord Ponsonby of Shulbrede Excerpts

Tuesday 21st February 2023 Grand Committee

[Baroness Hamwee (LD)]

I thank the Minister for explaining the regulations and the scheme in such detail. I am afraid I have some questions—even though I know he takes the view that debates are opportunities for debate rather than asking questions.

I appreciate and understand that the scheme is to align with the electronic travel authorisation system. The regulations and therefore the scheme come into effect when the instrument is made, as I understand it. I spoke to the Public Bill Office about this this morning, because I wanted to be clear about it. The Minister has just said that when the new scheme comes into effect, the 2021 scheme will be revoked. That seems to suggest that there has to be some very careful timing. As the regulations are not replacing earlier regulations, if there is a problem under the earlier scheme, the new regulations can cope with it smoothly. That is how the PBO explained it. Is that actually the case? Does the timing have to align with the EU’s new border arrangements? Most particularly, when will the ETA come into effect? I know we still await details of it: how it will be implemented, its cost and how its application will be approved. There is obviously a lot of concern about practical aspects for both carriers and travellers.

Paragraph 14(d) of the scheme provides that authority to carry may be refused for individuals

“in relation to whom the Secretary of State is in the process of making a decision that the individual be made subject of an exclusion order”.

In other words, it can bite before an order is made. Do I have that right? If so, can that be right? The Secretary of State surely needs to make an order; it is not automatic.

It is similar for individuals who—the Minister has used this terminology already—

“would be refused entry clearance or a visa”

under the new rules and for individuals who

“would be refused an ETA”,

entry clearance or a visa under the rules. That is even further away from the decision. Perhaps the Minister can tell the Committee—because I assume that quite a lot of this replicates the earlier schemes, so they are not just hypotheticals—how this is proper. Immigration Rules are subject to change without parliamentary involvement. What right of appeal is there, particularly if there is a refusal before the Secretary of State has reached a decision? It does not feel comfortable to me.

We are told in the Explanatory Memorandum that an ETA may be cancelled when that is in the public interest, and that, under the earlier schemes, authority has been refused in respect of—it has now gone up to—11,200 individuals. That is a lot of individuals, each one of whom, and their family in many cases, is no less affected. As the Explanatory Memorandum points out, as a percentage of all arrivals it is quite small—but it is a lot of individual people. Does the Minister know how many of the 11,200 were UK residents? How will the Government ensure that certain nationalities or ethnicities will not be disproportionately affected by the scheme? The Minister also mentioned revocation of leave. If or when that happens, will the individual be notified? Will he be aware of that revocation?

There has been praise for the bespoke schemes for Ukrainians fleeing the war. How will the travel authorisation schemes operate to ensure that the UK’s response to other humanitarian crises is not hindered? Sadly, there are many other conflict areas and an awful lot of people affected by the earthquake in Turkey and Syria.

I am sure the Minister is not thrown by having a number of questions raised without notice; I looked at this only over the weekend. The questions I raise may sound like matters of detail, but I think that in fact they are all matters of principle.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the Minister for introducing this statutory instrument. The SI replaces the 2021 no-fly scheme that prevents terrorists, serious criminals and others travelling into the UK via aircraft, ships or trains. The scheme was introduced in 2012 and was updated by statutory instrument in 2015 and 2021.

The 2023 scheme extends the range of people who carriers can be refused authority to carry to those refused an ETA or those travelling without a valid document or travelling on the document of another person. Penalties of up to £50,000 were put in place on carriers that breached the terms of the scheme. The maximum penalty has not increased since the original scheme in 2015. Is there any scope for increasing this maximum, along the lines of inflation or something like that? This question was asked in 2021, but I am not sure that my noble friend who asked it got a reply.

The ETA scheme has not been introduced, nor have details been released on how it would work, who would need to apply for it, how much it would cost or on what grounds it would be revoked. As we have heard, the Government have stated that it will be in place by the end of 2024. Can the Minister confirm that that is still the case for when it will be introduced?

The noble Baroness, Lady Hamwee, asked a number of pertinent questions about the alignment of the ETA with EU regulations and how it will work with the wider carrier network, if I can put it like that.

In response to questions raised in the Commons this month, the Minister stated that 23 penalties have been imposed over the seven years of the scheme and that the number of people prevented from travelling has stayed consistent over this time. The figures given were that 1,702 people were prevented from boarding in 2016-17 and 1,700 in 2022-23. In the 2021 Lords debate, the Minister did not respond to questions about whether some carriers had been repeat offenders. I do not know whether the Minister has any information on whether particular carriers are repeat offenders when fines are given to them.

The Explanatory Memorandum states:

“Updated guidance will be provided to industry”,


but no detail has been provided on when that will take place. Can the Minister tell us when that updated guidance may be available?

Finally, there is the status of transit passengers. How are they brought into the scope of these regulations and will they be affected? Having said that, we support the statutory instrument.

[Lord Murray of Blidworth (Con)]

I thank noble Lords for their contributions and questions. I think I have answers to them all, and I will take them in turn.

I turn first to matters raised by the noble Baroness, Lady Hamwee, who asked when the 2023 scheme will come into effect. Regulation 2 of the draft instrument provides that:

“The Authority to Carry Scheme … comes into force on the day on which these Regulations come into force.”


That is mirrored in paragraph 28 of the scheme, which observes that it will come into force on the day the authority to carry scheme regulations come into force. Obviously, that is the date on which the new scheme will be in force. I can put the noble Baroness’s mind at rest. If she were to compare the 2021 scheme and the 2023 scheme, a lot of the text is the same. The changes introduced by the new scheme are simply to effect the changes that I outlined in my earlier remarks. There will not be any gap that will affect the implementation of the scheme or proceedings brought under the earlier scheme, because they will then simply be under the new scheme that is in force.

The noble Baroness asked whether the scheme has to align with broader issues. I hope I have already addressed that; it is making only minor changes, so it should align and there should not be any difficulties. The provisions about ETAs are there in readiness for the implementation of ETAs along the lines of the timetable suggested by the noble Lord, Lord Ponsonby.