On 23 February 2022, the House of Lords is due to consider the draft Passenger, Crew and Service Information (Civil Penalties) (Amendment) Regulations 2022. The regulations were laid before Parliament on 6 January 2022 under the draft affirmative procedure. They must be approved by both Houses before they can come into force. Lord Berkeley (Labour) has laid a regret motion relating to the regulations:

That this House regrets that they remove the sunset clause from the 2015 regulations, and therefore make permanent the civil penalties of £10,000 per offence for rail, air and ferry companies that fail to send accurate and timely information on passengers, crew and services to the Home Office before their arrival or departure from the United Kingdom; and believes that compliance can be achieved without the need for this penalty.

If agreed, Lord Berkeley’s regret motion would formally signal that the House has reservations about the instrument for the reasons stated. However, it would not stop the regulations from having legal effect.

What would the regulations do?

The regulations have been made under paragraph 27BB(6) of schedule 2 to the Immigration Act 1971 and section 32B(6) of the Immigration, Asylum and Nationality Act 2006. They would amend the Passenger, Crew and Service Information (Civil Penalties) Regulations 2015 (2015/961).

The 2015 regulations relate to duties on operators of scheduled ship or aircraft services to provide information on the passengers and crew on board those services to an immigration officer or a police officer. The regulations established a civil penalty regime, whereby the secretary of state could require an operator in breach of the regulations to pay a penalty not exceeding £10,000. The regulations contained a seven-year sunset clause, which expires on 31 March 2022.

The Home Office has published an explanatory memorandum (EM) for the 2022 regulations. The regulations would:

  • Repeal the sunset clause in the 2015 regulations.
  • Extend the scope of the 2015 regulations to cover Channel Tunnel rail operators.

The EM states that a range of criminal penalties currently apply to all operators of air, maritime and Channel Tunnel rail services to and from the UK, which must provide “complete, accurate and timely passenger, crew and service information to the Home Office”. The 2015 regulations established a civil penalty regime to impose a financial penalty on operators “when criminal action was not appropriate”. When the 2015 regulations were introduced Channel Tunnel rail operators were not included in the scope of the legislation.

The EM states that, although warning notices have been issued to some operators in breach of the 2015 regulations, to date “no [financial] penalties have needed to be enforced”. The EM states the purpose of the current regulations is to:

Remove the sunset clause and preserve the important deterrent effect of the civil penalty regime which, alongside the passenger, crew and service information requirements, is now a permanent element of the UK’s border security arrangements.

The Home Office has not prepared an impact assessment for the regulations, as it claimed there is “no, or no significant, impact on business, charities or voluntary bodies”.

What parliamentary scrutiny have the regulations received?

On 18 January 2022, the regulations were considered by the House of Lords Secondary Legislation Scrutiny Committee. The committee noted them as an instrument of interest. The committee concluded:

While we welcome the [2015] legislation’s success [ie no penalties being enforced], we disagree with the Home Office’s assumption that the sunset clause was only there to see if the policy operated as intended initially. Sunset clauses are also intended as a mechanism for ensuring regular reviews of a piece of legislation to assess whether it remains effective as circumstances and technology change over time.

On 23 January 2022, the regulations were considered by the Joint Committee on Statutory Instruments, but they were not reported to both Houses.

A House of Commons Delegated Legislation Committee considered the regulations during a short debate on 2 February 2022. Moving the motion to consider the regulations, the Home Office minister for security and borders, Damian Hinds, reiterated the Government’s view that the civil penalties were a “necessary deterrent” which formed a “key component of our border security arrangements”. The Labour shadow Home Office minister, Holly Lynch, said the Opposition agreed that the regulations were “proportionate, reasonable and in the national interest”.

The House of Commons approved the regulations on 7 February 2022.

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Cover image by Erik Odiin on Unsplash.