Clause 99: border controls
17. Clause 99 of the bill proposes to amend the
Customs and Excise Management Act 1979 to give customs officers
power to require any person entering or leaving the United Kingdom
"to produce the person's passport or travel documents for
examination" or "to answer questions ... about the person's
journey". As this provision had not received a great deal
of attention during the bill's passage to date, we wrote to Lord
West of Spithead to seek a more detailed explanation of the policy
reasons for seeking this new power. Our correspondence is reproduced
at Appendix 1.
18. In the light of Lord West's explanation,
we are content that the proposal does not infringe constitutional
principle. That said, we remind the House that the new powers
are part of a package of changes that seek to integrate customs
and immigration functions of government. We have expressed some
concerns about features of this process in an earlier report (Part
1 of the Borders, Citizenship and Immigration Bill, 5th Report
of 2008-09, HL 41). It will be important to monitor these developments
to ensure that they do not impinge, whether inadvertently or otherwise,
on constitutional principles.
19. One particular aspect of our scrutiny was
to inquire into possible constitutional implications of the new
powers in clause 99 on travel to and from the Channel Islands.
In our 7th Report of 2008-9,[6]
we drew to the attention of the House provisions contained in
Part 3 of the Borders, Citizenship and Immigration Bill which
sought to amend the operation of the Common Travel Area (consisting
of the United Kingdom, the Republic of Ireland and the three Crown
Dependencies—the Isle of Man and the Bailiwicks of Jersey
and Guernsey). We highlighted concerns about the impact on the
rights of people to move between the Crown Dependencies (which
are British Islands) and the United Kingdom without being subject
to immigration control; we also relayed disquiet from the governments
of the Crown Dependencies about the lack of adequate consultation
on those provisions. The House voted to remove the provisions
from the bill.
20. We wrote to the chief ministers of the Crown
Dependencies to seek their views on clause 99 of the present bill.
Our correspondence is set out in Appendix 2.
21. The Chief Minister of the Isle of Man confirmed
our view that clause 99 would have no direct effect on the Island,
as it forms part of the same customs territory as the United Kingdom.
22. The Chief Minister of Guernsey told us that
"there does not appear to have been any consultation in relation
to clause 99 of the bill. Senior officials of the [Guernsey Customs
and Immigration] Service have very recently been told by their
UK counterparts that the clause had not been identified as an
issue for the Channel Islands, which explains the absence of consultation,
for which an apology has been given". The Chief Minister
said that, having now considered the clause, the States of Guernsey
"do not have any concerns of a constitutional nature"
about the proposal.
23. The Chief Minister of Jersey told us:
"Consultation on the Bill has been inadequate
and we were not aware of the proposals until your letter of 11
June. Home Office officials have apologised for not informing
us earlier and officials at the Ministry of Justice intend to
remind departments of the need to consult Crown Dependencies at
an early stage."
24. As to the substance of the proposal, the
Chief Minister added that "given the reassurances received,
the Government of Jersey has no concerns regarding clause 99 of
the Bill".
25. In our earlier report on the Borders, Citizenship
and Immigration Bill we drew to the attention of the House that
in relation to Part 3 of that bill, there was an absence of "open,
effective and meaningful inter-governmental consultations by the
United Kingdom Government with the insular authorities in advance
of the introduction of the bill".[7]
The limited and late consultation that did take place in relation
to that bill "demonstrated little appreciation of the constitutional
relationship between the United Kingdom and the Crown dependencies".
26. It is a matter of concern that there does
not appear to be in place a robust system for ensuring that the
Crown Dependencies, which are British Islands, are properly consulted
by departments of the United Kingdom Government in respect of
policy proposals that may have an impact on the rights of British
citizens living in those islands or the constitutional relationship
with the islands. The Ministry of Justice has overarching responsibility
for the Government's relations with the Crown Dependencies. We
recommend that the Ministry of Justice carries out a review of
the processes across Government for ensuring that the views of
the Crown Dependencies are sought during policy-making and legislative
drafting on proposals that may affect them.
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