HL Deb 18 July 2002 vol 637 cc1480-8

8.22 p.m.

Lord Filkin

rose to move, That the draft order laid before the House on 3rd July be approved [35th Report from the Joint Committee].

The noble Lord said: My Lords, the events of September 11th clarified for everyone the danger faced from terrorists and the importance of utilising all possible proportionate means to counter it. Information collected by the enforcement agencies on passengers and goods carried into and out of the United Kingdom is regarded by the police as crucially important in that respect. The powers complement and will, over time, incrementally build on the security measures already in place at ports, such as powers to stop, question, search and detain individuals as well as physical preventive security measures such as body scanners.

The powers will allow the police to build an intelligence map to target and track terrorists to disrupt and prevent their activities in the UK and elsewhere. In a meeting with representatives from the air and sea carrier industry on 11th July, my right honourable friend the Home Secretary stated his belief in this power as an essential counter-terrorism tool and his commitment to it and to making it work in an agreed and proportionate manner.

At the time he made clear that we are aware of the pressures faced by the industry and stressed the importance of further consultation. We will ensure that the powers are introduced in an incremental way reflecting local circumstances. We have agreed that it would be useful for Ministers to meet the carriers again to discuss progress on the process of consultation and implementation.

Paragraph 17 of Schedule 7 to the Terrorism Act 2000 as amended by Section 119 of the Anti-terrorism, Crime and Security Act 2001 gives the power to an examining officer to make a written request to an air or sea carrier for information. Information requested could relate to passengers, crew, their vehicles and goods on all journeys to, from and within the United Kingdom. The request may relate to a particular ship or aircraft, or to all ships or aircraft of the carrier. It may relate to a single journey or span a period of time.

The key to this is targeted requests, not blanket "all passengers on all flights" demands for information. It is in the interests of the police to target requests around current intelligence patterns for maximum effect. Therefore, use of the powers must be proportionate and local circumstances must always be taken into consideration by the police.

Initial consultation took place between March and June 2002 when officials met a wide range of industry bodies including representatives of the air and sea passenger and freight carriers, freight forwarders, and maritime container companies. Additionally, officials visited ports and individual companies to observe the industry in operation and to obtain advice on possible business impact.

The range of meetings and visits coupled with the regular meetings with key representatives of the border agencies—containing a range of expertise in ports policing, immigration and Customs and Excise matters—resulted in better understanding on both sides of the needs and capacity of each side and ultimately led to a substantial revision of the original list of information requirements.

A number of concerns were raised during the consultation process and these were brought to our direct attention at an important and useful meeting on 11th July. We recognise and acknowledge that they are matters of genuine concern to the industry. We made clear then and I wish to make clear now that the order is an enabler; how, and the extent to which, the power is applied will have some flexibility. Putting the flexibility in the order itself was explored but counsel advised against it. Nevertheless, the department is committed to making the consultation process have meaning and life and to work closely with industry.

The national security need was to have the enabler in place before the recess and to allow for consultation to continue over the summer and subsequently until we have a workable outcome. What is important is that the principle behind the power is recognised by both sides who have undertaken to continue the consultation process on implementation.

Therefore, although the power will come into force 30 days after the order is made, I assure the House that the legislation will not be implemented until the most thorough consultation has been carried out and agreement so far as possible on the best way forward has been reached with the carriers. In the interim we hope that both sides are able to think creatively about how best to approach the issue. Additionally, the police have made it clear that there will be no requirement on domestic carriers to undertake routine collection of the information requirements specified in the order.

In all cases, even when the power is in place, there will be a need to take local circumstances into account. The powers fall under the Terrorism Act 2000 and, as such, will be scrutinised by the independent reviewer of the Act, the noble Lord, Lord Carlile of Berriew. Officials are grateful for the continued active involvement and contribution of all sides. We wish to make the implementation proportionate.

To summarise, the Home Secretary has heard the concerns raised and intends that the consultation and the incremental phasing should be carried out in an intelligent and sensitive fashion. I commend the order to the House.

Moved, That the draft order laid before the House on 3rd July be approved [35th Report from the Joint Committee].—(Lord Filkin.)

Baroness Seccombe

My Lords, I thank the Minister for his explanation of the order. When we agreed to take it along with other orders tonight in the dinner break we were not aware of the concerns of the aviation industry. We shall not oppose the making of the order and we would not wish to oppose something that the Government, on advice, believe may help to combat terrorism, but we would like to place on the record that the aviation and tourism industries have concerns about the operability of the order. In addition, I understand that my noble friend Lord Skelmersdale has carried out some detailed research and has some searching questions to put to the Minister.

The problem seems to be that the Government have handled the consultative process on the order badly. I have read the proceedings of 15th July in Standing Committee of another place. I accept that the order is only an enabling measure and that the Government have now given a commitment to continue consultation with the industry at a meeting in September. Will the Minister confirm that the meeting will definitely go ahead?

Will the Minister give a commitment that in addition to continuing to consult the airlines, the Government will consult with tourism: for example, the British Incoming Tour Operators Association, the Tourism Alliance and the British Tourist Authority? The BTA of course needs to be in a position to fulfil its statutory role as adviser to the Government on tourism. Will the Minister assure the House that no requirements will be imposed under Schedule 7 that will impact on the international competitiveness of the UK transport sector? Will he assure the House that requirements will not be imposed under the schedule without compelling evidence that the most proportionate means of implementation has been selected, following on from consultation?

As I said at the beginning, we shall not oppose the order, as we share the Government's desire to combat terrorism.

8.30 p.m.

Lord Skelmersdale

My Lords, the fact that we are discussing the serious threat of terrorism does not mean that we have to take everything that is put in front of us as carte blanche. The only thing blanche that I can find about the order is the large amount of salt that will be required for its digestion.

Every now and then, we find some information or proposed legislation that, in the words of my noble friend Lord Peyton, makes our nerve ends twitch. That happened to me when I first saw the order, which the noble Lord, Lord Filkin, has so thoroughly explained to us. When I received not one but two letters of complaint about the order, my twitching got considerably worse.

My original concern was the normal one for a Member of your Lordships' House: will the information on the schedule, to be demanded from the ports and airlines, actually work? I noted that the Minister was under a misapprehension. The police requests that may or may not follow from the order are not the problem. The problem is the need for the airlines and the port authorities to gather that information. The police requests, if they are made, will come after that.

In the words of the noble Lord, Lord McNally, on the first order that the House discussed a few moments ago: is it a case of wanting to know rather than needing to know? Clearly, the provision cannot stop terrorism dead in its tracks. It could be useful only after a terrorist event. I am not knocking the need for the police and security forces to gain background information on the carrying out of a suspected crime. For obvious reasons, that is a vital part of their work.

However, many is the time that I and members of my family have travelled under an assumed name. Were I a terrorist, that could not help the police one jot. Nor would the false address, car number and other details that I would give to the airline. If I would deceive on that, how much more likely would it be for me to invent a fictitious cargo, for example?

I understand that the police tried to collect similar information in July 1999. Within a month the operation was discontinued. Yet here it is again in an even more comprehensive guise. Whether it was dropped for the obvious reason that I have just given or because the airlines made a stink I do not know, but what I do know is that the airlines and ferry companies are making a fuss now, of which the Home Office is well aware and on which the Minister, in his inimitable fashion, has just remarked.

Home Office officials sent a letter to all the potentially affected firms, which were to be adjured to collect even more than the information currently on the schedule to this order, on 1st March this year. As the Minister has said, that resulted in a meeting, which was held on 12th April. I understand that it was attended by all the industry bodies. It is a curious example of the Government's much flaunted concept of joined-up government that the Department for Transport was not involved or, as far as can ascertain, even informed that the proposals were about to be, or had been, issued.

Home Office officials were certainly unaware that the subject was under discussion internationally and that a meeting with United States officials was due soon. I understand that it is fixed for tomorrow, when the Department for Transport will complain to the United States authorities about their much milder plans than are to be found in the schedule to this order.

Were the Foreign Office or the Department of Trade and Industry informed? I have tabled a couple of Questions for Written Answer, which the Minister can now answer verbally. To be fair, there has been no time for written responses.

All that is bad enough, but the plot thickens. At the 12th April meeting, the airlines naturally supported the Government's intentions to prevent terrorism. However, there was and remains a mega problem. The data expected of them are not currently available. Much of the information can be neither scanned electronically nor verified by the airline. Under these proposals, operators—presumably check-in staff—will have to input it manually. It does not take much imagination to realise what that will do to check-in times, eventually leading to a loss of capability at a time when airlines are fighting to remain competitive gateways in the air industry. At worst, I am told, check-in times may have to be extended to up to four hours.

It also does not take much imagination to realise that airlines' costs will increase significantly. Has any cost/benefit analysis been done? I was intrigued to see, rather late in the day, a Home Office memorandum in the Printed Paper Office accompanying the order, but I do not call that a regulatory impact assessment and I certainly do not call it a cost/benefit analysis.

I shall not weary the House by going through the airlines' concerns one by one. I am sure that other noble Lords have points of concern. Suffice it to say that the Minister's officials were more than a little surprised at what they had been told and that the industry representatives left with the strong impression—I am being kind to the officials; my airline correspondents called it a promise—that a further meeting would be held before the order was laid. There was no such meeting. It was not until later that Ministers took a grip on the situation and the Home Secretary and the junior Minister responsible held such a meeting. I do not know whether it was then or originally that the police representatives said that the information would hardly ever be used. However, what we all know is that the Minister handling the order in another place said that it would not be used on the first day permitted. The noble Lord has repeated that this evening. The order does not say so, but the Minister did, at col. 4 of the Official Report of the Third Standing Committee on Delegated Legislation on 15th July. She went on: further discussions will be held to consider whether or not collection of all items of data listed in the schedule was feasible or whether the data will be as useful as the police and other border agencies think that they might".—[Official Report, Commons Third Standing Committee on Delegated Legislation, 15/7/02; col. 5.] Again, the noble Lord said much the same just now.

Putting the cart before the horse is not the way to legislate on any matter, let alone one as serious as this. The Minister should withdraw the order and come back to us with a properly thought-out proposal that is workable, has a cost/benefit analysis attached and will be useful and used.

Lord McNally

My Lords, one of the great values of this House is when a Member such as the noble Lord, Lord Skelmersdale, gets his teeth into a subject and will not let go. I pay tribute to the way in which he has championed the cause in the House. I shall not delay the House long with my comments.

When I was a lad and we used to play football and cricket in the street, if we broke a window we used to send the most innocent, mild-mannered and angelic of our number to get the ball back. I suspect that the noble Lord, Lord Filkin, fulfils that role among Home Office Ministers.

Not for the first time, the Home Office has overextended itself, rushed its fences, under-consulted and then found itself in a mess. It is interesting that these powers were first contained in a 1989 Act, but prudent government and experience showed that they were not to be used.

Airlines with experience of these matters such as Britannia and Virgin have expressed great concern at the consequences if the measures were rushed through and have expressed doubt as to whether the powers requested will have real effect in the war against terrorism. Virgin Atlantic provided an excellent brief containing 10 specific objections. The most striking was that the order is out of kilter with measures in the United States and elsewhere in Europe. It seems odd that international consultation has not taken place.

After Virgin, Britannia and the noble Lord, Lord Skelmersdale, started mobilising, all of a sudden the Home Office clanked into action, a meeting was held and various assurance were given. If anyone doubts that the department is in retreat, I can only quote The Guardian report on the Home Office briefing after the 11th July meeting, which quoted a Home Office spokesman: This is a victory for common sense". We all recognise that comment as code for "We are fast in retreat and will try to sort this matter out". I welcome the Home Secretary's belated promises on 11th July of further consultations, of staging if the measure is introduced and acceptable trigger mechanisms.

There is a temptation for Ministers to say, "If only you knew what we knew" or, even worse, "So you are in favour of terrorism, are you?", whatever the nature of the measure. There is an onus on Ministers and on the rest of us to test the powers that the security services require. The security services have a voracious appetite for more information and power. Within a democratic and free society, Ministers must, as part of their responsibilities, serve as a check and balance on the security services when they go too far.

I am not sure even now that the powers being requested will be practicable in any meaningful war against terrorism. But because a fuss has been created and the absurdities of the original proposals have been revealed, there is time for the Home Office to consult properly and to examine the impracticalities that have been exposed.

We will not divide the House, but if the 11th July meeting had not taken place and the Home Secretary had failed to give assurances on that occasion, we would have done so and sought support. Not for the first time, the Home Office has not listened carefully enough but rushed its fences. The Minister has promised a period of further consultation. I can promise the Minister a further period of close monitoring of that consultation in making a judgment on whether the Government listened and got it right.

8.45 p.m.

Lord Filkin

My Lords, utility was one of the challenges mentioned by the noble Lord, Lord Skelmersdale. One must to some extent listen to the police and security services when they make a request. The processes or measures in question are not a result of civil servants saying, "We think this would be a jolly good idea", but are the consequence of requests from the police or security services.

The facilities sought will provide the police with accurate information that they will be able to check against a database of known or suspected terrorists and to build profiles of suspects—thus leading to effective intelligence-led policing operations. To some extent, we are talking about the development of new surveillance systems that do not currently exist fully developed anywhere but which are being incrementally developed by a number of countries. All countries who are concerned about the security of their subjects are gradually experimenting and feeling their way.

The implementation timetable could be two or three years—in some cases, even longer—because of the need to develop a proportionate and targeted approach. The Government could say, "We will not take any powers but let the discussion process move on. When we think things are right, we will put those powers in place". Or the Government can do as we have done—give the powers, recognise that there will be a complicated process of progressive implementation and development with the industries involved, reinforced by the authority that the order gives. We are right to have chosen the latter course because it signals to everyone that progress must be made, albeit in a proportionate way.

To answer the noble Baroness, the 13th September meeting will be going ahead. We will consult with the tourism industry and any others that think they are affected. Competitiveness between industry sectors is clearly an issue of which we are aware—BA raised that point with the Home Secretary at the 11th July meeting. I totally agree with the noble Baroness about listening to what the police and security services have to say and deciding the most important information for them to have early—and the most proportionate means of providing it. There must be a partnership between the Government, security services and industry. No one knows exactly the right answers. There must be a continuing dialogue to test which information is crucial, whether it can be obtained in a different way and whether it can be put in a different timeframe to make industry compliance much less expensive and difficult.

The situation is not that the Government are saying "Do that" and waiting for industry to complain. Instead, there will be constant dialogue between various sectors about utility, proportionality and best means.

To answer the noble Lord, Lord Skelmersdale, carriers will need the capacity to collect information but not to gather all the information until there is a request—albeit that requests can be made in respect of future journeys. For example, carriers might be requested to collect information on flights to destination X over the next three months.

Lord Skelmersdale

My Lords, could the noble Lord explain that more fully? As I understood it, the information has to be available to be collected. If it is available to be collected and is not collected, when the police ask for the information it will not be there. Therefore, surely everyone will be in contravention of the order.

Lord Filkin

My Lords, essentially, there will be a request to a carrier to provide information between certain points and certain flights over certain periods of time. If the carrier has not been asked about such information previously, he cannot be expected to have it in his possession.

If I have not engaged with the noble Lord, Lord Skelmersdale, perhaps we can enjoy one of our correspondences. I shall be pleased to do so if that will help. I shall consider what he said and see whether I can give a better answer in writing.

As I signaled, we hope that the information will assist in targeting and profiling terrorists. With regard to the impact on international commercial issues, the point is well made about the importance of trying to move progressively towards some harmonisation of such data systems across the world. However, again, one cannot do nothing while that process takes perhaps five or 10 years; we must move in parallel by starting our systems and pressing for some convergence internationally.

I am aware of the time and aware of the pressure from other business. I conclude by stressing what I said about the importance of taking forward the consultation with a variety of industries. The meeting on 11th July made clear that we were talking not only about airline industries but about airport, travel and other industries. One could not even talk about one industry as a homogeneous group. There were significant differences in impact between, for example, low-cost and higher-cost scheduled flights and between charters. Therefore, those issues must be understood and taken into account by government and by the police in terms of developing the systems. The industry itself must also recognise its responsibilities, as it did at the meeting, by working with government to ensure that we obtain relevant information to reduce our security threats.

Lord Skelmersdale

My Lords, before the Minister finally concludes this business, does he accept from me that he has answered with a very straight bat but that, unless the bat is held in the right place, the ball still hits the wicket?

Lord Filkin

My Lords, I agree with the noble Lord, Lord Skelmersdale, that the fundamental issue is about the utility to reduce terrorism. Clearly government will not be passive on these issues. They will need to hold discussions with the police and security services progressively to ensure that the utility being obtained is proportionate to the burdens and pressures that result from the processes.

To an extent, one has to start on that venture rather than assume that it is impossible. That is why we believe it is right to make this order and to begin the process of progressive, thoughtful implementation.

Lord McNally

My Lords, before the Minister sits down, does he agree that, in a proper and orderly fashion, we would not consider passing the order until we had seen the outcome of the meeting on 13th September? As I said, we shall not divide on the issue tonight, but I hope that the noble Lord, Lord Skelmersdale, will put on his pads again when we return on 7th October. If we are to approve the order tonight, the House is entitled to know the outcome of that 13th September meeting, either by a ministerial Statement or by the activities of the noble Lord.

Lord Filkin

My Lords, of course, in a proper and ordered world, we would not have experienced the events of 11th September and we would not have had the sense of pressure that faces all civilised governments in the world. That is the tension that we face at present. I commend the order to the House.

On Question, Motion agreed to.