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So what have we done to make redress? The Secretary of State has refunded the money paid by British Waterways in respect of the 2005-06 rate liability as required by the court. Refunds due to the other affected ratepayers on the local lists will be calculated and paid by the relevant billing authority when these amending regulations have been approved and come into effect. We have already alerted local authorities to the impending changes and will let them know when the revised arrangements come into effect so that they can reassess liability for the affected properties and adjust payments accordingly.
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The amending regulations have very limited effect but give effect to the court judgment. I beg to move.
Moved, That the Grand Committee do report to the House that it has considered the Non-Domestic Rating (Chargeable Amounts) (Amendment) (England) Regulations 2006 [35th Report from the Joint Committee].—(Baroness Andrews.)
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Baroness Hanham: I thank the Minister for that very lengthy explanation of this matter, which has arisen because of the British Waterways problem. It is clear that it is a small issue as regards rating, but it is probably a major issue for the properties involved. I have no difficulty in supporting these regulations.
Baroness Scott of Needham Market: It was definitely a hot-towel afternoon as I settled down yesterday to read the regulations and the Explanatory Memorandum. It is a pity that the issue had to go as far as judicial review before it could be resolved. I have a question that the noble Baroness may not be able to answer today, but I would appreciate an answer in writing. Although we believe that only a relatively small number—around 18—of properties are involved, the amounts of money are quite large. The cost was estimated at £3.3 million when there were 13 properties. Where the billing authority is, for example, a small, rural district council, the rebate would represent quite a large sum of money. I understand that in the fullness of time the authorities will get this back through the pooling arrangements of NDR, but I am interested to know, first, how long that might take and, secondly, whether there will be a clear mechanism for identifying that the rebate is exactly what was paid out. Anyone who has experience of local government finance will know that promises are often made that certain costs will be covered. However, when settlements arrive they are so opaque that it is difficult to have a clear audit trail and be able to see whether a local authority has received back what it has paid out. Apart from that, I am happy to support the regulations.
Baroness Andrews: I am very grateful for the support of both noble Baronesses. I am sorry that the Explanatory Memorandum is a rather surreal read. On the question of multiplying zero by zero, after a while one begins to wonder whether one can get something more than zero. On the point that the noble Baroness made about recouping the money from the local rating arrangement, the costs will of course fall on those authorities but they can be recouped from the pool as a whole. In relation to the whole of the distributable amount, which runs to £17.5 billion, we are talking about a small sum, even though it is identified as some £3 million. That in itself is often an unpredictable amount because there are ebbs and flows. I will write about the process that we will follow to ensure that those authorities are not out of pocket. I have a very able team of experts behind me who will help to do that. I should like to thank noble Lords very much.
On Question, Motion agreed to.
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Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) Order 2006
Lord Bassam of Brighton rose to move, That the Grand Committee do report to the House that it has considered the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) Order 2006 [36th Report from the Joint Committee].
The noble Lord said: The primary purpose of this order is to enable two parts of UK immigration legislation to be applied in the juxtaposed control zones at the ports of Calais, Dunkerque and Boulogne. The first purpose of the order is to apply Sections 40 and 41 of the Immigration, Asylum and Nationality Act 2006, which provide a power for the Secretary of State to authorise certain persons other than immigration officers to search ships, aircraft, vehicles or other things to ascertain whether there are individuals whom an immigration officer might wish to examine, to search such persons for specified reasons, to detain such persons for a period as short as reasonably necessary up to a maximum of three hours and to escort them as speedily as reasonably practicable to an immigration officer. The second purpose of the order is to provide for the taking and retention of fingerprints under Sections 141 and 143 of the Immigration and Asylum Act 1999.
This order applies two pieces of English immigration law to the juxtaposed controls in the northern French ports of Calais, Dunkerque and Boulogne. As the Committee will know, the United Kingdom has several international agreements with France to allow UK authorities to carry out immigration and other controls in France, and for French authorities to do the same in the UK. Controls are carried out by UK officers in a defined geographical area and for specified purposes only. These juxtaposed controls, as they are known, provide the United Kingdom with an important opportunity to carry out immigration controls before a person physically enters the UK, and are essential to our ongoing efforts to secure the border.
The juxtaposed controls in Calais, Dunkerque and Boulogne are provided for at an international level by the Le Touquet treaty, which was signed on 4 February 2003 and given domestic effect by the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003—I will refer to it as the 2003 order for convenience—which was made under Section 141 of the Nationality, Immigration and Asylum Act 2002. The order under debate amends the 2003 order to apply, first, the power to authorise persons other than immigration officers in Sections 40 and 41 of the Immigration, Asylum and Nationality Act 2006 and, secondly, the power to take and retain fingerprints of certain persons under Sections 141 and 143 of the Immigration and Asylum Act 1999 to the juxtaposed controls.
I shall deal first with the power to authorise persons other than immigration officers to search ships, aircraft, vehicles and so on. Before Sections 40 and 41 of the Immigration, Asylum and Nationality
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Careful consideration has been given to the powers of search and detention that ASOs will have. Those powers have been limited to the minimum necessary to enable ASOs to fulfil their function properly. The aim is for ASOs to find people who are seeking to enter the UK clandestinely, to detain them for the shortest period necessary—and for not more than three hours—and to take the person as speedily as is reasonably practicable to an immigration officer for examination. We expect delivery to be swift as the contractor will have a cellular vehicle permanently at his disposal. Checks and balances will be in place to ensure that the ASOs deploy their powers appropriately and efficiently. They will be directed and supervised by the UK Immigration Service on site, and a monitor will be appointed by the Secretary of State to oversee the operation of those powers and to investigate any complaints or failings.
On fingerprinting, when the immigration controls at the juxtaposed controls were initially established, no provision was made for the application of Sections 141 and 143 of the Immigration and Asylum Act 1999. At the time, it was felt that it would not be necessary to take and retain fingerprints, as all persons refused entry at a UK control zone are handed over to the French authorities. The management of their movement within the UK was therefore of no significance, because they would not enter the UK. However, it has become apparent that there is a real need for the identification of certain persons and that we should have the same powers as at UK mainland ports to take fingerprints.
The application of this power in the juxtaposed controls would focus on those persons detected concealed in vehicles who seek to enter the UK clandestinely and those trying to use false documentation. Taking their fingerprints will provide a bank of physical data that can be used to identify people who have previously attempted to enter the
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For completeness, I should add that the contracting out of search provisions and taking and retention of fingerprint powers will also be applied when appropriate to the juxtaposed controls in France and Belgium connected with the Channel Tunnel. When secondary legislation is required to do this, it has been done under the Channel Tunnel Act 1987, which provides for a negative procedure. The relevant orders are the Channel Tunnel (International Arrangements) (Amendment) Order 2006 and the Channel Tunnel (Miscellaneous Provisions) (Amendment) Order 2006, which came into effect on 26 October.
The application of these measures—the use of contractors and the power to fingerprint—at juxtaposed controls will increase the security of the border. They will allow warranted immigration staff to concentrate on more complex work and ensure that all those intent on circumventing the controls have physical data recorded for future identification. I commend the order to the Committee. I beg to move.
Moved, That the Grand Committee do report to the House that it has considered the Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) (Amendment) Order 2006 [36th Report from the Joint Committee].—(Lord Bassam of Brighton.)
Baroness Anelay of St Johns: I thank the Minister for explaining the reasons behind this order, and his team for letting me learn a little more every day. When the Minister mentioned the “cellular vehicle”, I wondered whether he was testing our ability to keep awake and follow every word, because it was certainly not something that I had come across before. I wondered whether the cellular telephone had suddenly sprung wings—but we are now informed that it is simply a van that can carry people securely in cells. In this job, I learn something new every day.
The 2003 Le Touquet treaty, to which the Minister referred, allowed French and UK authorities to implement juxtaposed controls at specified ports. It enables UK immigration officials to establish control zones in Calais, Dunkerque and Boulogne. We recognise the value of those zones, because within them the UK immigration authorities have the power to exercise immigration control. Criminal offences and the related powers of arrest are extended to these zones. That has always seemed to us an appropriate measure.
The controls mean that all UK-bound passengers travelling from these ports should be subject to checks by UK immigration officers before they travel, and that passengers should be refused permission to depart for the UK if they do not have proper paperwork. One should remember that the policy of
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In August 2005, the UK Immigration Service implemented a measure whereby private contractors worked alongside and under immigration officers. That was a potentially controversial measure. The Government tell us in the Explanatory Memorandum to this order that this has been “very successful”. I and other Members of the Committee would be grateful if the Minister could expand a little on that to give a flavour of the level to which the situation has improved as a result of that activity.
The broad effect of the order would be to extend the regime of juxtaposed controls. The Minister explained the two ways in which that will happen. The nub of the matter will always be the fact that suitably qualified persons who are not police or customs officers can be given the authority to carry out searches. That was debated earlier this year, in relation to the 2006 Act. We always took the view that we were prepared to accept the proposals because the Government gave assurances—in that case, the Minister dealing with the matter was the noble Baroness, Lady Ashton of Upholland—that the private contractors who carried out the searches would have the appropriate training and be under the appropriate supervision. We note that the regulations are there to put that into effect.
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We have throughout supported the imposition and extension of juxtaposed controls, but our support is not open ended. It continues only on the basis that the training and supervision of the private contractors should be satisfactory. We maintain that, despite the changes introduced by the Government, there are still others that could have a much greater effect on the security of this country. Recently, the noble Lord, Lord Carlile of Berriew, with the independent review of terrorism legislation, produced a report that details the inadequacies of policing at our ports.
My honourable friend Patrick Mercer, who is the shadow Minister for homeland security in another place, has pointed out that we have been calling for the Government to address the problem of policing the ports for many years. There are many practical solutions that the Government could implement to deal with the problem, such as establishing a single, dedicated border police force or a single department for homeland security to co-ordinate our border control efforts. Of course, we wait with patience to see whether at some time the Government might acknowledge the wisdom of our proposals on the
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Lord Avebury: We, too, are grateful to the Minister for the careful and detailed explanation that he gave of the provisions in the order and for giving us the opportunity to continue the discussion that we had during the passage of the 2006 Act, as the noble Baroness said, when these proposals proved to be among the most controversial in the Bill.
If there is a great deal of anxiety about the management of the UK-based detention estate, such as we saw last week, arising from the chief inspector's report on Yarl's Wood, how much greater is the need for concern about what happens at the juxtaposed controls on the other side of the Channel, particularly, as under this order, when private contractors are being employed to arrest, detain, search and fingerprint passengers, without either French or British officials being present? Moreover, as the Independent Race Monitor told the Home Affairs Committee in another place, the likelihood that a person seeking to enter the UK will be refused is greater at these overseas ports than in the UK, which raises questions of the relative fairness of the procedures in the two locations.
We know, for instance, that biometric identification is an imperfect technique, and many asylum seekers are refused on the basis of a match between their fingerprints and ones stored on the Eurodac computer system. It would be interesting to know how many challenges there are on the grounds of false matches at the juxtaposed controls and at UK ports of entry respectively, and, of the challenges, what proportion are successful at each, as an illustration of the fact that greater difficulties are bound to arise at the juxtaposed controls than at UK ports of entry.
We had some assurances from the noble Baroness, Lady Ashton of Upholland, when we discussed these matters on 7 February, as the Explanatory Memorandum recalls, but it was the combination of the employment of private contractors and the fact that they would operate under an overseas jurisdiction that raised our anxieties, not the fact that the contractors themselves would be foreign. We did not say that the French police would not be capable of applying criminal records checks to the staff employed by contractors or that the course material for training staff would be deficient, although we were naturally anxious to ensure that these matters had been covered. The noble Baroness, Lady Anelay, repeated that this afternoon. The noble Baroness, Lady Ashton, undertook to place the training documents in the Library of the House. Will the Minister tell us whether that is being done or whether it has already been done, so that, as the noble Baroness, Lady Anelay, says, we can be satisfied that the training procedures are sufficiently rigorous?
We said that the activities of the contractors who are being given these new powers are intrinsically less liable to come under public scrutiny and are therefore
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Secondly, allegations of the ill treatment of detainees or of failures in the duty of care in the UK can be pursued by the Chief Inspector of Prisons and, where children are involved, by the Children’s Commissioner. Both of them have access to the juxtaposed controls but, given all their other duties, they may not get around very often to visiting Calais, Dunkerque and Boulogne—the three ports to which the order applies—let alone to the Eurostar stations in France and Belgium where the power to take fingerprints already applies under other orders mentioned in the Explanatory Memorandum, although not for private contractors to arrest, detain and search passengers. So far, the chief inspector has inspected these facilities only once—she visited the short-term residential holding facilities at Calais in August 2005. That, of course, was before the authorised search officers mentioned by the Minister appeared on the scene. At that time, the longest period for which anyone was held in the previous year was 17 hours—much longer than the three hours mentioned in the order—and it would be useful to have at regular intervals more up-to-date information on the average and maximum lengths of detention. As the Minister will no doubt acknowledge, under Article 3(2) of the Le Touquet treaty, which has been mentioned, the maximum period for which a person can lawfully be held is 24 hours, unless otherwise authorised by legislation in the state of arrival. Thirdly, will the Minister say what requirements and procedures to govern this practice have been laid down under the article?
Fourthly, as the Minister will recall, particular concern was expressed throughout the proceedings on the Immigration, Asylum and Nationality Bill about the delegation of responsibility to private contractors for the power to arrest, detain and search unaccompanied children. The Children’s Commissioner visited Yarl’s Wood and said that he was shocked and disappointed by the treatment of children there. He and Anne Owers have both called for a complete overhaul of the detention of children. As I have said before, if things can go wrong under our very noses in this country, how much
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In the consultation document issued last April, it was stated that private searching by ASOs independently of immigration officers was to commence at Calais in August, after they had worked alongside each other since August 2005. No mention is made of ASOs at Boulogne and Dunkerque, and ILPA read the document as extending the use of private contractors only to Calais. It said there would be questions of vires if the order was applied more broadly, yet the order seems to relate to any of the control zones. Is that the correct interpretation, and did the Government put that to the consultees at any stage? What have they to say about ILPA's warning on vires?
Finally, ILPA points out that the treaty on which these arrangements are based provides only that responsible officers of the state of arrival have the power of arrest and detention in the control zone—and that means immigration officers. The contracting parties have the power to modify the treaty by exchange of diplomatic notes under Article 23(2), but are expressly forbidden to change provisions that require legislative authority. I am sure that I am not saying anything that will be new to the Minister, because this was all in the ILPA response to the consultation.
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