sou · H5B358 · 2017-06-22 00:00:00 — väljer att utnyttja möj- ligheten till vidare fördelning av kostnaderna för den särskilda säker- hetskontrollen, kommer bolaget inte att ha några merkostnader för denna säkerhetskontroll. De övriga skyldigheter som har enligt avtalen, så- som att tillhandahålla lokaler för den amerikanska inresekontrollen och att i rätt tid betala kostnader för denna kon- troll, ska regleras genom ägaranvisning. Dessa arbetsuppgifter kom- mer att kräva resurser hos bolaget. De merkostnader som kan uppstå till följd av detta får anses var en del av kostnadssidan i den kommer- siella kostnads-intäktskalkylen för att erbjuda amerikansk inresekon- troll vid utresa från . Resenärer och andra personer Det finns ett behov av att informera resenärer, liksom allmänheten i övrigt, om syftet bl.a. med att det finns med uniformerad personal från en annan stat på . En sådan informationsinsats torde kunna samordnas mellan , och Transportstyrelsen. När det gäller resenärer, men även de som av andra skäl behöver tillträde till kontrollområdet, finns det anledning att upplysa också om inresekontrollanternas befogenheter och de rättigheter man har på svenskt territorium som enskild. gäller anställda och annan personal som anlitas av har bolaget ett särskilt ansvar för detta. har möjlighet att ta ut hela eller delar av kostnaden för den särskilda säkerhetskontrollen, 61–per resenär, av de flygbolag som väljer att utnyttja möjligheten till amerikansk inrese- kontroll på . Konskevensen av detta förslag för det enskilda flygbolaget är beroende av dels om väljer att utnyttja denna möjlighet, dels om flygbolaget väljer att föra kost- naden vidare på resenären helt eller delvis genom att höja biljett- priset. Om detta kan utredningen inte göra några säkra antaganden. Grundat på tidigare erfarenheter kan det antas att flygbolagen kommer att ta ut hela eller delar av kostnaden för den särskilda säkerhetskontrollen, 61–per resenär, av resenärerna. Det är inte möjligt för utredningen att bedöma hur en sådan merkostnad påverkar resandet. Ikraftträdande- och övergångsbestämmelser (kap. 20) De författningsändringar som behövs för att genomföra avtalen ska träda i kraft den dag som regeringen bestämmer. Det finns inte behov av några övergångsbestämmelser vare sig i de nya eller i de ändrade författningar som utredningen föreslår. Proposed legislation (Chapter 1) In order to implement the Agreement and the Memorandum of Co- operation with the on air transport preclearance at Airport, proposes that two new statutes be drawn up and that amendments be made to nine pieces of legislation. The new pieces of legislation are firstly an Act, the Swedish Preclearance Act, and secondly an ordinance of the same name. Furthermore, the Committee proposes amendments to the Social Insurance Code, Act (SFS 1976:661) on Immunity and Privileges in Certain Cases, and the Customs Exemption Act (SFS 1994:1547) to implement the provisions of the Agreement and the Memorandum of Cooperation regarding immunity and privileges for the employees of the Government of the who will be working in . In order to implement the provisions of the Agreement and the Memorandum of Cooperation on separate security screening, the Committee proposes that an informative provision be added to the (SFS 2004:1100). Finally, the Committee proposes amendments to five pieces of legislation in order to implement the provisions of the Agreement and the Memorandum of Cooperation on preclearance officers’ access to firearms and other devices when using force. Remit (Chapter 2) The Inquiry on Preclearance at Airport (the Preclearance Inquiry) was charged with proposing how the Swedish bilateral Agreement and the Memorandum of Cooperation with the of on air transport preclearance at Airport are to be implemented in Swedish law and submit the neces- sary legislative proposals. The remit also included exhaustively ana- lysing all the questions relevant to ensuring that preclearance is able to be carried out at Airport in accordance with the Agree- ment and the Memorandum of Cooperation. ’s remit encompassed issues including exercising of public authority by the on Swedish territory, the rule of law as applied to individuals, confidentiality, data protection, immunity and privileges, and the financing of certain measures. Preclearance in and in other countries (Chapter 3) Preclearance means that employees of US Customs and Border Pro- tection, which is part of , car- ry out border, customs and agricultural inspections in line with US law in conjunction with departure from another country instead of on arrival in the . At airports, preclearance is preceded by separate security scree- ning conducted in line with standards but performed by staff employed by the operator of the airport. Once these inspec- tions have been carried out, flights can in principle be treated as domestic flights once they arrive in the . For flights or passengers that were not subjected to preclearance at the place of departure, inspection required for entry takes place in the . Cooperation on preclearance began in 1952 between the and . An additional five countries have been added since: , the , , the and the Republic of . As far as is concerned, the agreement with the comprises two documents. The main Agreement contains the fundamental provisions on preclearance. This regulates issues such as how preclearance is to be conducted and how responsibility for costs is to be allocated between the countries. The Memorandum of Co- operation contains more detailed provisions on the separate security The Agreement and the Memorandum of Cooperation were signed in and 2017 respectively. ’s remit did not cover providing proposals on the practical implementation of the Agreement and the Memorandum of Cooperation at a detailed level. However, the following account of how the procedure is applied at airport in provides an idea of how preclearance at Airport could work in practice. At airport, travellers are asked to arrive for preclearance no later than 45 minutes before departure. The traveller first checks in and passes the first security screening, which is carried out by the airport operator’s personnel. The traveller then enters the preclear- ance area. Here, there is an opportunity to leave behind agricultural products that are not permitted to be imported into the . The traveller has to fill in a CBP Customs Declaration. Here, travellers can state whether they are carrying goods and cash. A new separate security screening is carried out in line with standards as part of the preclearance facility. This screening is also carried out by staff employed by the airport ope- rator. After this, preclearance takes over. The traveller shows their passport, a visa if required, and their boarding card to the preclearance officer, who may ask questions about the trip. The traveller is asked to identify their photographed, checked-in baggage. Travellers who are not citizens are photographed and have to provide their fingerprints. If the traveller successfully completes preclearance, the screening process ends and the traveller can continue to their flight. If any questions have arisen or if customs duty or other char- ges must be paid for goods that are to be imported into the , the traveller is referred to another part of the preclearance facility, known as a secondary inspection area. Some starting points (Chapter 4) How are the Agreement and the Memorandum of Cooperation to be incorporated into Swedish law? should predominantly incorporate the Agreement and the Memorandum of Cooperation on air transport preclearance through transformation. The provisions of the Agreement and the Memoran- dum of Cooperation on immunity and privileges should be incorpo- rated into Swedish law as they stand. Transformation means that the provisions in the international agreement are given an appropriate equivalent in internal law, i.e. transformed into national law through legislative measures. This is also the main rule when transposing international agreements into Swedish law. Incorporation means that the text of the agreement is introduced into the national legal system unchanged. In cases of incorporation, it is ultimately the task of the courts to interpret the original text of the convention on the basis of sources and rules of interpretation in international law. How are the Agreement and the Memorandum of Cooperation to be interpreted? The Agreement and the Memorandum of Cooperation on air trans- port preclearance do not have preparatory work that can be referred to for additional guidance in interpretation. , as far as the Com- mittee is aware, are there any agreements or other documents jointly drawn up by the parties regarding the interpretation or the appli- cation of the Agreement and the Memorandum of Cooperation. The wording of the provisions of the Agreement and the Memo- randum of Cooperation viewed in context and in the light of their object and purpose was therefore a self-evident starting point for the Committee in its work to attain functioning Swedish legal provisions that also reflect the joint intentions of the parties in drawing up the Agreement and the Memorandum of Cooperation. This starting point is in line with international guidelines on the interpretation of agreements between nation states. Certain provisions in the agreement are worded ambiguously. In these cases, where neither the wording nor the purpose of the agree- ment or the provision provided unequivocal guidance in its inter- prettation, the Committee consulted the officers of the Ministry who negotiated on ’s behalf and sought to ascertain the joint intentions of the parties. Translation of the agreements It was not the intention of the parties that the Agreement and the Memorandum of Cooperation were to be drafted in a language other than US English. An international agreement that lacks a Swedish original text applies in the foreign language or languages in which it is drafted. The Agreement and the Memorandum of Cooperation must be approved by the Swedish Riksdag in order to be implemented. In such cases, in accordance with Swedish guidelines, the Ministry re- sponsible should ensure that the text is translated into Swedish. did not have the opportunity to wait for the ’s decision regarding translation. therefore had translations of the Agreement and the Memorandum of Coope- ration produced which were used as a tool in reaching decisions and proposals on nomenclature. It was not unusual for the Committee to deviate from the translation, partly regarding conceptualisation. When drafting the proposed legislation, the Committee used the only versions of the Agreement and the Memorandum of Coopera- tion that are legally valid, i.e. the English versions. Treatment of the Agreement and the Memorandum of Cooperation in the Riksdag (Chapter 5) Implementing the Agreement and the Memorandum of Cooperation requires the passing of a new act and amendments to existing legi- slation. Regarding the Agreement, this involves legislating on the conditions under which employees of the Government of the exercise public authority and the cooperation between them and Swedish government agencies and local government bodies. Regarding the Memorandum of Cooperation, this involves legislating on the separate security screening. Because implemen- tation of the Agreement and the Memorandum of Cooperation must in part be regulated by law, it is required under Chapter 10, section 3 of the Instrument of Government, that the Riksdag approve them. The Government should propose that the Riksdag approve the Agreement and the Memorandum of Cooperation. Under Chapter 10, section 8 of the Instrument of Government, the new act required to implement the Agreement and the Memo- randum of Cooperation must be decided in line with a separate ord- er, as it involves transferring the exercising of public authority. Under section 3 of the same chapter, the same decision-making order must be followed when the Riksdag reaches a decision on approving the Agreement and the Memorandum of Cooperation. The Agreement and the Memorandum of Cooperation on air transport preclearance should be implemented by means of a separate Act (Chapter 6) The fundamental provisions on preclearance should be decided by the Riksdag and thus issued in the form of an Act. A new Swedish Preclearance Act will therefore be introduced. The Act is to contain the provisions required to implement the Agreement and the Memo- randum of Cooperation. Detailed provisions on enforcement will be regulated in a separate ordinance. The ordinance will also contain more detailed provisions on the procedure and on cooperation be- tween competent authorities. A provision should be introduced in the Act stating that the Act contains provisions to implement the Agreement of between the Government of and the Government of the of on and the associated Memorandum of Cooperation at Airport. The provision should also state that the Act is not applicable to commer- cial goods transported by a traveller or a transport company. A provision should also be introduced into the new Act defining certain key terms used in the Act and the new ordinance. Provisions on immunity and privileges will mainly be implemen- ted by means of amendments to Act (SFS 1976:661) on Immunity and Privileges in Certain Cases. Exercising of public authority by the in Swedish territory (Chapter 7) According to the Committee’s terms of reference, the Committee is to analyse in detail to what extent the Agreement and the Memo- randum of Cooperation between and the in- volve the transfer of administrative duties to the in the sense referred to in Chapter 10, section 8 of the Instrument of Government and whether these administrative duties involve the exercising of public authority. Where exercising of public authority is concerned, the proposals of the Committee are to clarify which such duties employees of the Government of the are to carry out in . As a result of this analysis, the Committee proposes that the fol- lowing provisions be introduced in the new Act. •A provision regulating the general conditions for the exercising of public authority by the on Swedish territory stating that –all operations as a result of the Agreement and the Memorandum of Cooperation must be conducted in ac- cordance with the law, –proportionality must be observed in all exercising of force, –measures that restrict freedoms and rights other than those expressly stated in the Act must not be taken, and –preclearance officers intervening with force under the Act must be able to use devices when exercising force, and fire- arms may only be used to ward off a commenced or impend- ing criminal attack on people in the preclearance area. •A provision stating that measures within the remit of preclear- ance screening are to be taken applying legislation on customs duty, immigration, agriculture, national security and public health. •Provisions regulating the authority of the or a pre- clearance officer, in conjunction with preclearance screening, to –inspect travellers and goods, –take measures in the event of illegal possession of property, –refuse screening and entry respectively, and –levy fines and charges. •Provisions that, in order to safeguard public order and security in the preclearance area, give the or a preclearance officer authority to –obtain information from those seeking access to the preclear- ance area, –investigate such persons, –grant or refuse access to the preclearance area respectively, and –intervene against crime and disruptions of public order. A preclearance officer may conduct patdowns and partial body searches under the conditions set out in the Act. Cer- tain more invasive personal searches must, however, be decided on by a Swedish agency, applying Swedish law. A preclearance officer may not use forcible means directed against a person other than these. The rule of law as applied to individuals (Chapter 8) According to the Agreement on air transport preclearance, indivi- duals are to be afforded the same rights that otherwise apply in . Furthermore, in accordance with the Agreement, Swedish law, including Convention on Human Rights, is also to apply in the preclearance area at Airport. According to the Committee’s terms of reference, the Committee is to analyse the need for regulation and submit any proposals in this regard that en- sure that individuals are able to exercise the rights available to them under Convention on Human Rights and other appli- cable Swedish law. The analysis has led to the following conclusions. •Under certain conditions, bears the ultimate response- bility for any breach of Convention on Human Rights committed by employees of the Government of the on Swedish territory with the support of and in line with the transfer of competence. may, partly by having worked to ensure that the Agreement and the Memorandum of Cooperation contain an explicit provision on the protection of freedoms and rights, be considered to have taken steps to ensure that the Convention is complied with when public authority is exercised by the under the Agreement and the Memorandum of Cooperation. It must additionally be considered incumbent upon to ensure that protection of freedoms and rights is complied with and to take action in the event of abuses on an ongoing basis while the Agreement is in force. •Completion on territory of an intervention carried out at Airport is not covered by ’s responsibility under Convention on Human Rights. •The Swedish legislation that implements the Agreement must not involve more far-reaching limitations to freedoms and rights than follows from Convention on Human Rights. •The provision in Article II.5 of the Agreement provides reassu- ring that national provisions in the Instrument of Government, the Fundamental on Freedom of Expression, and the Freedom of the Press Act will be observed in applying the Agreement on . •The question of whether there is an opportunity to demand review and damages in a Swedish court for infringement of con- stitutional rights and freedoms in transferring authority under the Agreement and the Memorandum of Cooperation must be left to be decided by the application of the law. •No provisions should be introduced on supervision by the Office of the Parliamentary Ombudsmen (JO) or the Chancellor of (JK) of employees of the Government of the exercising public authority in under the Agree- ment on air transport preclearance. The reason for this is prima- rily that these officials are exercising the authority of their own country here and are under the supervision of the authorities of their own country. Firearms and other equipment (Chapter 9) The new Swedish Preclearance Act must state the devices with which employees of the Government of the officers may be equipped when exercising force. The Swedish Government or the agency appointed by the Government may decide that officers may also be equipped with other devices. The new Act must also state that employees of the Government of the officers may wear uniforms. Employees of the Government of the serving at Airport are not to be covered by the provisions on permits for possession of firearms, ammunition or pepper spray devices. is the equipment that employees of the Government of the are to use when serving at Airport be covered by the provisions, e.g. on permits for importing firearms and ammunition under the Firearms Act. Provisions on storage, transport and sale of the officers’ firearms and ammunition must be included in the new Preclearance Ordinance. Cooperation with Swedish crime prevention agencies (Chapter 10) A provision on cooperation between Customs and Border Protection and in the first instance the Swedish Authority and Swedish Customs will be incorporated in the new Preclearance Ordinance. Other agencies must be given an opportunity to participate in this cooperation to the extent that they are affected. Provisions on operational cooperation between Customs and Border Protection and the Swedish Authority and Swedish Customs will be incorporated in the new Swedish Preclearance Act. Civil security and security screening (Chapter 11) In the view of the Committee, the EU’s provisions on civil security do not cover the Agreement and the Memorandum of Co- operation on air transport preclearance. The provisions on civil avia- tion security that are a consequence of the Agreement and Memo- randum of Cooperation on air transport preclearance must therefore be incorporated in the new Swedish Preclearance Act and Ordi- nance. is the competent authority in applying the Memorandum of Cooperation and is to perform the duties incumbent upon it under the Agreement in line with its in- structions as an authority. is also to be the supervisory authority for the separate security screening. The provision in the Memorandum of Cooperation on the re- sponsibility of the airport operator for security screening must be implemented by means of a provision in the Swedish Preclearance Act. The separate security screening must only be carried out by screening officers who have been approved by the Swedish Tran- sport Agency. Those who are to carry out the separate security screening must be appointed by the Swedish Authority. Pro- visions on this are to be incorporated in the Swedish Preclearance Act as proposed by the Committee. The separate security screening, unlike the general security scree- ning that covers all air passengers, need not be carried out under the leadership of a officer. For screening officers to be able to carry out patdowns as part of the separate security screening in line with the Memorandum of Co- operation, the measure needs to be regulated by law. Provisions on such patdown searches will be included in the Swedish Preclearance Act. Confidentiality issues (Chapter 12) According to its terms of reference, the Committee is to analyse whether the content in the Memorandum of Cooperation and its annexes requires amendments to the current legislation on public access and confidentiality. The main provisions of interest are the provision on confidentiality for information on civil security in Chapter 18, section 8, item 5 of the Public Access to Information and Secrecy Act (SFS 2009:400) and the provision in Chapter 15, section 1 a of the Act on confidentiality in international cooperation. According to the terms of reference, the should also be addressed. The analysis has led to the following con- clusions. •The provisions of the Memorandum of Cooperation on the right of veto of the original owner of the information (originator con- trol) and on restrictions on its use are compatible with the provi- sions of the Public Access to Information and Secrecy Act. •The provision in Chapter 15, section 1 a, first paragraph of the Public Access to Information and Secrecy Act is applicable to data that the has received from the . It will be possible for the to pass on such in- formation, provided that this does not impede cooperation with the . The provision should be sufficient to ensure the handing over of information presumed by the Agreement and the Memorandum of Cooperation. •The provisions in Chapter 15, section 1 a, second paragraph and Chapter 8, section 3, item 2 of the Public Access to Information and Secrecy Act are applicable to information that the is to hand over to the Transpor- tation . The provisions should be suffi- cient to ensure the handing over of data presumed by the Agree- ment and the Memorandum of Cooperation. •A provision on confidentiality for those involved in operations regarding the separate security screening set out in the Memoran- dum of Cooperation is to be included in the Swedish Preclearance Act. •There may be a need for a general provision on confidentiality regarding information on civil security.