Borders, Citizenship and Immigration Bill [HL]

My Lords, we are in constant dialogue with the Republic of Ireland authorities about checks and exactly what is required on entering that area. We are satisfied that they are trying their best to match those kinds of levels. The changes to legislation that Clause 48 would bring about will mean that travellers by air and sea to the UK from the Republic of Ireland must carry a passport or national ID card, not least because of the need to capture and analyse passenger, service and crew data within our e-borders programme. These data are provided by the carriers. But there will be no fixed controls and, again, only intelligence-based operations around those data once we have them. As regards the land border, we do not intend to impose controls and there will be no requirement for a passport or identity card. There will be a growth in intelligence-based operations that will be clearly legitimised by the Bill. I state categorically that the Bill will have no impact on journeys from Northern Ireland to the mainland, which are of course domestic journeys within the United Kingdom. The noble Lord, Lord Glentoran, referred to the fight against terrorism in Northern Ireland. I was involved in that and there is absolutely no doubt in my mind, or the Government’s mind, that it is a part of the United Kingdom, and I see it as such. That point was raised by my noble friend Lady Blood and the noble Lord, Lord Cope of Berkeley. I have had quoted to me a number of comments from the meeting that took place last weekend. We have had nothing but supportive comments from the Republic of Ireland about what we are doing and we have been engaged with it very closely. I have in front of me a supportive quote from the Irish Minister of Justice about what we are doing. I am slightly confused sometimes by comments that come from other areas because, as I say, we have been working closely with the Republic of Ireland and it seems happy with what we do. I hope I have managed to clarify the reason why we want to do something—that is, the threat—roughly what we are asking and what exactly we are saying will happen. I believe that explains why we need to change legislation. As regards the concerns of the Crown dependencies, to which the noble Lord, Lord Goodlad, referred—I thank him for the meeting yesterday at which he drew my attention to a letter I had not seen; I am delighted to have now seen it—it might be helpful if I explain briefly our engagement with them during the CTA reform process. As the noble Lords, Lord Pannick and Lord Rowlands, said, it was perhaps not the best dialogue there could be. However, it is unfair to say that we have not had a constant dialogue. Officials from the Crown dependencies and the UK have been closely involved for some time on plans to reform the CTA. Senior officials from the United Kingdom and all of the Crown dependencies met in July 2007 to discuss this issue. Since then, officials have been working together regularly to develop proposals to reform the CTA, including at the Crown dependencies conference in Guernsey at the end of 2007 where these proposals were discussed at length. This was followed up by a UK/Republic of Ireland/Crown dependencies conference in Belfast in April 2008, and there were discussions through last summer. Because of the complications in drafting the legislation and the difficulties in ensuring that we capture what we want to do and yet keep the common travel area in existence—I shall speak more about that later—we did not complete a draft until the beginning of December and I have written and apologised if that seems slightly short notice. But, because of that, I met recently in the House of Lords with senior representatives from all of the Crown dependencies. It was a very cordial and valuable meeting. I am glad to report that, despite a number of initial concerns, our close engagement with the Crown dependencies resulted in an agreement with both the Isle of Man—which has issued a press release today saying how much it supports the legislation, understands what is behind it and is happy with the MoU—and Guernsey to work towards a memorandum of understanding on the CTA reforms. The MoUs will clearly set out the policy intentions of the UK in respect of these routes and will make clear that the status of Crown dependencies residents as British citizens will not be compromised; that no British citizen will be required to carry a passport or identity card on these routes; that we have no intention of introducing fixed controls on these routes; and that free movement for the vast majority of those who use these routes will not alter. For these reasons I am convinced that Clause 48 will not change the constitutional relationship between the Crown dependencies and the United Kingdom. That the Isle of Man and Guernsey have now both confirmed support for Clause 48 and for our proposals to work up these MoUs leads me to conclude that they share the same view. I am grateful to both the Isle of Man and Guernsey for their support. I am disappointed that the bailiwick of Jersey has taken a different view from the United Kingdom, the Isle of Man and the bailiwick of Guernsey. In his letter to me of 27 March, to which the noble Lord, Lord Goodlad, referred, the Chief Minister is unable to support Clause 48 or the option of working towards an MoU because of the belief that British citizens of Jersey would be treated less favourably than British citizens who reside in the United Kingdom. My firm view, for the reasons I have explained, is that they will not be. I am, however, pleased that Jersey fully supports our policy intention in relation to CTA reform and the Chief Minister has stated in his letter to me that he agrees as a matter of principle with the need for increased supervision on these routes. I am confident that we can build on that agreement and work together to find a solution. I want to answer Jersey’s concerns while proceeding with this change to our legislation, which we believe is crucial for the reasons I have given, and we will continue to engage closely on this issue. Why do I say that Clause 48 does not change the constitutional relationship? Prior to the Immigration Act 1971, a third country national coming to the UK from another part of the CTA did not require leave to enter. However, it was possible to alter or abolish this right simply by making a statutory instrument subject to the negative resolution procedure. The 1971 Act provided that, in general, control was not exercisable over the movement within the common travel area, but that Act retained the power to contract or abolish the common travel area by subordinate legislation if that ever became necessary. Under Section 9(5) an island can be excluded from the common travel area if it appears necessary to do so by reason of any difference in the immigration laws of the island and the UK. Therefore, to suggest that the power in Clause 48 to control immigration between the UK and the islands is totally new and a change in the constitutional relationship is incorrect. I asked my officials to look at whether constitutional concerns were raised about Section 9(5) when it was debated. None was, when the question of whether to put it in place was debated under the last Conservative Government. They have not yet found any reference to any such concerns anywhere. We do not believe that the 1971 Act changed the constitutional relationship, and therefore nor does this amendment. The cross-party Constitution Committee said that the clause had not been informed by any real appreciation of the constitutional status of the Crown dependencies or the right of free movement of the islanders. As an aside, I have great respect for that committee, and when I saw what it had said it worried me. I did a lot of digging around about it because the committee is made up of people who have great depth of knowledge about these issues. But both Guernsey and the Isle of Man have indicated that they support the clause; they clearly do not believe that it is incompatible with their constitutional status. Jersey does not agree with them. In its letter it refers to the rights of nationals to travel freely within their own country and states that it does not accept that British citizens in one part of the United Kingdom should be treated as if they are foreign nationals. I can categorically say that nothing in Clause 48 allows UKBA to refuse entry to any British citizen, whether a Channel Islander or otherwise. It simply enables us to control non-British citizens. I am happy to discuss further the constitutional position of the islands and the need to ensure that we do not undermine that position. It is absolutely not the intention of the Government to do that and we do not do so with this clause. I am willing to look more closely at this issue. As I say, I have great respect for the Constitution Committee. On that basis, I should like to get my department, or the constitutional lawyers, to look at it in more detail than we have already, and if I am wrong in my assessment—I do not think I am—then clearly the clause will have to be reconsidered in the other place. Despite what I think are the clear and compelling reasons that I have set out for the Government’s inclusion of the clause, I see from looking at your Lordships’ faces that many are unpersuaded. So, if we are thinking of having a vote, what would actually happen? I believe that there are three options open, and I invite noble Lords to think hard and be clear in their own minds which they are advocating. First, we could abandon our programme to reform the common travel area, accepting not only that we should not increase levels of control activity, when intelligence suggests that that is necessary, but that we should back away from the checks we are already making as there is no proper cover. We are concerned about the latter point, which is why we need the legislation. As I have made clear, I believe that that would be dangerous and irresponsible, and it would make all of us in the common travel area less safe. Is that what critics of the clause would prefer? Secondly, we could produce an alternative legal approach that differentiated between the legal position on routes from Ireland to the United Kingdom and those between the Crown dependencies and the United Kingdom under the respective control measures that could then be used, which has been the difficulty that our drafters have found. We would then, effectively, have dismantled the common travel area as a single entity. The noble Lord, Lord Smith of Clifton, said, ““Haven’t we got rid of that anyway?””, but the answer is no. The common travel area is based on the principle that once a person has been granted leave to enter one part of it, they will not normally require leave to enter the United Kingdom while that leave is extant, provided that they do not leave the common travel area. That will remain the case even when Clause 48 is enacted. I have already talked about the requirements from the Republic of Ireland about certain controls coming into Ireland. The Irish are clear that having to prove nationality does not abolish the common travel area. The implications if the common travel area went would be immense in terms of Schengen and the border between Northern Ireland and the Republic. We would have a two-tier system. I have rebutted criticisms that Clause 48 abolishes the CTA because I do not think it does. Would those who reject Clause 48 prefer an approach that explicitly did so? So, effectively getting rid of the CTA is the second option. The third is to stick with the approach that Clause 48 currently takes, strengthening our security while preserving the common travel area. I fully accept that we can do more to explain our approach, to reassure our partners with Memorandums of Understanding of the sort that we have under discussion and to work through the constitutional questions that have been raised and to which I am confident there are satisfactory answers. For my part, I am not convinced that there will be any real alternative to reintroducing the current provisions in the other place, and I invite your Lordships to think carefully before seeking to remove what I think is a very necessary provision. Consequently, while thanking all noble Lords for their interjections, I ask the noble Lord to withdraw the amendment.