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Baroness Scotland of Asthal: My Lords, I thank the noble Baronesses, Lady Anelay of St Johns and Lady Walmsley, for the constructive comments they have made on this order. I will try and respond to the questions in order.

The noble Baroness, Lady Anelay of St Johns, asked first about the numbers. About 150 young people sentenced under Section 91 are released as juveniles each year. How many are released on HDC will depend on how many fit the criteria for eligibility but our estimate is that in practice it will be about half.

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The HDC scheme will not affect the overall period of time the offender spends on supervision and therefore this provision will have no resource implications for the supervising services. It just shifts when the supervision takes place; it does not mean the quantum is changed in any significant amount.

The noble Baroness, Lady Walmsley, asked why prison in the first place. We have to distinguish those offences for which prison is the appropriate sentence, because of their gravity and nature. The purpose of the home detention curfew scheme is not to be an alternative to the prison sentence, but, after the offender has served that penalty, to be a way to reintroduce and rehabilitate the offender—successfully, we hope—into the community, having identified their needs in order to maximise the possibility of ceasing offending and restabilising them when they come out of prison.

I have touched on breaches already. Any offender who breaches the curfew is liable to be recalled to custody. A breach of curfew will include being absent in the curfew period, damaging the monitoring equipment or threatening or assaulting a monitoring officer. A breach report is sent to the Prison Service to consider and if they are satisfied there has been a breach the offender's licence will be revoked. All breach reports are considered within 24 hours of receipt.

The plans will be as carefully crafted as possible to limit the risks of reoffending and maximise compliance. We have had some quite positive results so far, which are encouraging. We think this will work very well with Custody Plus. The Government recognise the benefits of home detention curfew schemes and they will continue to apply to prisoners sentenced to Custody Plus. An offender will be serving a custodial sentence of at least eight weeks to be eligible for home detention curfew; this compares with three months under existing provisions. The maximum period they can spend on the scheme is a quarter of the custodial part of their sentence. We agree with the noble Baroness, Lady Walmsley, that there has to be confidence in these sentences and greater knowledge of how they will operate among the public. I assure the noble Baroness that the Government are doing everything they can to make sure there is a better understanding of how sentences actually work. There is quite often a difference between what happens and what people believe happens. We would like the two to be the same thing.

On Question, Motion agreed to.

Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order 2003

8.6 p.m.

Baroness Scotland of Asthal rose to move, That the draft order laid before the House on 5th June be approved [22nd Report from the Joint Committee].

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The noble Baroness said: My Lords, I thank the noble Baroness, Lady Anelay of St Johns, for indicating that she would appreciate it if I opened this matter slightly more fully than I would normally. I hope I will be able to deal with many of the issues that concern her, which she has been kind enough to indicate to me.

The purpose of this draft Nationality, Immigration and Asylum Act 2002 (Juxtaposed Controls) Order is to give effect to the treaty between the Government of the United Kingdom and the Government of the French Republic concerning the implementation of frontier controls at sea ports of both countries on the Channel and North Sea. The treaty was signed at Le Touquet on 4th February and a copy was laid before Parliament on 3rd June.

The treaty is one element of an overall strategy agreed with the French Government to assist in reducing cross-channel illegal immigration, and to tackle the wider problems of illegal immigration flows across Europe. This strategy included the closure last December of the Red Cross centre at Sangatte.

The draft order is made in exercise of the powers conferred by Section 141 of the Nationality, Immigration and Asylum Act 2002. That section enables the Secretary of State, by order, to give effect to an international agreement which concerns immigration control at an EEA port. The ports which are to be designated initially for that purpose are Dover, Calais, Dunkirk and Boulogne.

Establishing juxtaposed immigration controls at those ports will mean that French officers will exercise immigration control at Dover, and that UK immigration officers will exercise immigration control in Calais, Dunkirk and Boulogne. The draft order provides the necessary powers for the French and UK officers in question to operate in the territory of the other.

At present the UK already operates juxtaposed frontier controls at four locations in France—the Eurotunnel site at Coquelles, and the three main Eurostar stations, Paris Gare du Nord, Lille Europe and Calais Frethun. The French authorities operate reciprocal controls at Cheriton and Waterloo and will soon commence operations at Ashford International. The controls are provided for under the Channel Tunnel Act 1987 and associated subordinate legislation.

On 12th July 2002, my right honourable friend the Home Secretary agreed with the French Interior Minister to establish juxtaposed controls at Calais and Dover to assist in reducing cross-Channel illegal immigration. It was subsequently agreed to include Dunkirk and Boulogne, as ferry services also arrive in Dover from those ports. Unlike the juxtaposed controls on the shuttle trains between Cheriton and Coquelles, which apply to Customs and police checks as well as immigration control, the proposed arrangements for Dover and Calais apply only to immigration control. That is similar to the position on Eurostar trains between Waterloo and Paris.

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The existing juxtaposed controls have proved successful in helping to reduce illegal immigration to the United Kingdom. For example, the introduction of juxtaposed controls on Eurostar services has reduced by approximately 90 per cent the large number of inadequately documented passengers arriving at Waterloo. Establishing juxtaposed immigration control will reduce the numbers of inadequately documented passengers arriving at Dover. That should result in a significant reduction in public spending.

Section 141(5) of the NIA Act requires us to consult before making an order, and we have done so. A phased consultation process began on 16th August 2002, when an informal consultation letter was sent to a wide range of parties seeking their views on the Government's proposals. That was followed by a formal consultation paper in November 2002. The responses were brought together in a report issued in March this year. That was followed by further consultations with affected parties on the Government's approach on how the French authorities—the Police aux Frontières (PAF)—will be provided with essential facilities in Dover. The views of all the consultees have been examined and taken into account in the draft of the order now before your Lordships.

Part 1 of the draft order concerns definitions and commencement. With the exception of Article 10, the order comes into force on the date when the treaty enters into force. That will be after the completion of ratification procedures by both states. Article 10, which allows the Secretary of State to require a manager of a designated port in the United Kingdom to provide accommodation and other facilities for the use of French officers, comes into force on the day after the order is made. That is so that we can ensure that the facilities required by the French authorities are available as soon as the treaty enters into force.

A regulatory impact assessment setting out the costs of establishing a juxtaposed control at Dover, which would fall to Dover Harbour Board under the arrangements, has been prepared and lodged in the Library. We firmly believe that direct costs associated with the introduction of juxtaposed controls and provision of facilities for the PAF do not exceed 260,000.

Part 2 of the draft order relates to what will happen in Dover, in that it is about the exercise of immigration control by French officers in a control zone in the United Kingdom. Such officers are permitted to carry out their functions in such a control zone, including arresting and detaining those who are being examined for the purposes of immigration control. It will be an offence to obstruct, without reasonable excuse, such an officer when carrying out his functions. A French officer will not be liable to prosecution in the United Kingdom for an offence committed in the exercise of his functions in a control zone. A claim for compensation by, or against, such an officer will be subject to French law.

A French officer is permitted to carry a firearm while exercising his functions in a control zone. The carriage of firearms is to be regulated by a separate

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firearms agreement which is presently being negotiated with the French authorities. Certain provisions of UK law will no longer apply in the French control zone at Dover.

Part 3 of the draft order relates to what will happen in Calais and the other French ports, in that it is about the exercise of immigration control by UK immigration officers in a control zone in France. The draft order applies the usual immigration controls to the control zone. Part 3 also allows UK police to operate in support of immigration officers in the control zone. The enactments extended by Article 11 to such a control zone include the Immigration Act 1971, and Schedules 7, 8 and 14 to the Terrorism Act 2000, which relate to port controls, with the modifications set out in Schedule 2. It is essential that immigration officers have all their usual powers under the provisions of the Terrorism Act 2000 because a significant part of immigration control relates to preventing persons who may be a risk to national security entering the UK.

A number of criminal offences, principally under the Immigration Act 1971, are extended to a control zone in France under Part 3. In addition, the criminal law is extended to such a control zone in relation to things done by an immigration officer or a constable in the exercise of his functions and in relation to the protection of such officers and their property. An immigration officer may exercise his usual powers of arrest, search and seizure in a control zone in France and may request the assistance of a constable when so doing. A constable may also exercise a power of arrest under the Police and Criminal Evidence Act 1984 in respect of any offence extended by the order to such a control zone. All that is provided for in the treaty to which this draft order gives effect.

Juxtaposed controls are an essential element in our overall strategy for tackling illegal immigration, and I commend the order to the House.

Moved, That the draft order laid before the House on 5th June be approved [22nd Report from the Joint Committee].—(Baroness Scotland of Asthal.)

8.15 p.m.

Baroness Anelay of St Johns: My Lords, again, I thank the Minister for giving a full and helpful description of the order, which, in many respects, is significant. During our debates when the Nationality, Immigration and Asylum Act went through this House last year, we made it clear that we strongly support the principle of co-operation over border controls in trying to tackle the problems of illegal immigration. We recognise that juxtaposed controls are an important weapon in the Government's armoury against such illegal immigration.

As ever, the devil is in the detail in relation to how co-operation can be achieved. Therefore, as the Minister has already said, I gave her advance notice of most of the questions that I shall ask. One or two further questions arose subsequently as a result of the fact that the Printed Paper Office was able to find some

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of the papers that were hidden away in the cellars here rather than on display. Therefore, I was able to mention those questions to the noble Baroness informally a little in advance of tonight's debate.

The schedule to the order lists Dover as the only UK port and the French ports as Calais, Boulogne and Dunkirk. If the number of ports to be covered is extended at a later date, can the Minister tell us whether we shall have another order seeking permission to make that extension, or does this order give the Government the power to go ahead and extend it to other ports or areas at will in the future?

The Explanatory Memorandum explains that the area comprising the control zone has been confirmed through the exchange of diplomatic notes between the two countries and that a copy can be obtained by writing to the address at the end of the notes. I must admit that I did not settle down with great enjoyment, as one does, to look through all the papers on this order until Saturday morning as part of my usual weekend work on orders. Therefore, it was a trifle late for me to write to the address at the bottom of the order. Today, I immediately contacted both the Printed Paper Office and the Library, but neither has been able to track down a copy of the boundaries.

Of course, the answer may be very simple. In respect of Dover, can the Minister tell us whether the control zone covers simply the area of the port delineated by the barbed wire security fences or is a larger area covered? It is very important for the public to know that because, as the noble Baroness has explained, French police are to be given the power to carry guns in that area, arrest people, question them and, indeed, then to be free from prosecution for any offence they commit in the pursuit of their functions. Anyone who suffers damage will have to sue for compensation in France.

Under the existing juxtaposed controls at Cheriton and Waterloo, do the French police there already have the right to carry guns and presumably use them if they are carrying them? During the passage of the Crime (International Co-operation) Bill in this House, the Minister the noble Lord, Lord Filkin, was resolute in saying that that Bill—I appreciate that it is a different Bill from the Nationality, Immigration and Asylum Bill—would not in any circumstances permit foreign police officers to carry guns within the United Kingdom. On Report, we tabled a completely probing amendment in order genuinely to try to assist the Government on that occasion because we could see some circumstances in which the safety of foreign officers might indeed be compromised if they were not able to carry guns, which they normally did in the course of their duties. However, we stuck to our overall view that, if at all possible, we did not want foreign officers to carry guns in this country.

On 29th January—I had given this quotation to the noble Baroness's office—the Minister said:

    "I shall labour the next point because it is germane. Foreign officers may not carry their firearms. They will be prohibited from bringing their guns into the United Kingdom".—[Official Report, 29/3/03; col. 199.]

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On Report, he amplified that a little by stating at col. 658:

    "The law at present makes it illegal for anyone to bring a firearm into the UK without the authority of the Home Secretary and an import licence from the DTI".—[Official Report, 3/3/03; col. 658.]

I understood from the noble Baroness's explanation that that is now a case for negotiation between the two governments and that there will be an agreement with the French authorities that would appear to overturn existing British law. I believe that that explanation will be the response to the question that I put to the noble Baroness's office. It has rather thrown me because I am afraid that I now have to ask a further question. Does an agreement with a foreign government automatically overturn British law in this respect or do we have to change existing law on the carriage of firearms in this country?

The Minister referred to the fact that there is immunity from prosecution. Paragraph 6 states:

    "An officer belonging to the French Republic shall not be prosecuted for any offence committed in the exercise of his functions in a Control Zone in the United Kingdom".

It goes on to say that if you suffer damage, you must go to the French courts to get compensation. I was intrigued by that because it is a different approach from that which the Government adopted in the Crime (International Co-operation) Bill, which is now being considered in another place. In that Bill, very sensibly, the Government differentiated between lawful and unlawful acts committed by an officer in the course of duty. However, this order refers to all acts—presumably unlawful or lawful.

In my view, the proper approach was adopted in Clauses 82 and 84 of the Crime (International Co-operation) Bill. Under Clause 84, if the foreign officer committed an unlawful act in the pursuit of his duties, the person who suffered damage here could seek compensation in the United Kingdom court system. On the other hand, if—and only if—the foreign officer committed a lawful act that caused damage in the pursuit of his duties, the UK citizen would have to seek compensation in France.

This order pursues a different approach, saying that no matter what the basis on which the act was committed, if someone suffered damage, that person would have to go to France to seek compensation. That seems a harsh way in which to deal with it. What were the Government's reasons for adopting these different approaches in legislation in the same year?

The noble Baroness referred to provisions of the Police and Criminal Evidence Act with regard to taking persons into custody at Boulogne and Calais. I am curious about the procedure that would be followed when a French officer here detains someone. While detained in the UK control zone in Dover, will that person have the same access to the safeguards of PACE as they would if they had been arrested outside the control zone in the United Kingdom? Will they have an automatic right to legal advice under PACE? Will its provisions regarding bail apply to them?

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The Printed Paper Office managed to find me the supplementary consultation document of March 2003. Given its length, I have only managed to skim read it. With regard to matters of detention, it states at page 5 that:

    "it is anticipated that police au frontière requirements at Dover will not be extensive. They will not for example require a holding room or any detention facilities".

I am confused by that, because the order specifically refers to detention. The consultation document goes on to say that,

    "the UK immigration service believes that the site of a former check-in area will be suitable".

I wonder whether the Government have thought again, in the light of responses to the consultation document, and whether proper detention facilities are being made available.

To return to the case of the arrest of a French officer, Article 7.2 of the treaty states that,

    "when the French officer is taken to a police station after committing the offence, it is the custody officer who takes the decision as to whether the offence has been committed whilst in the exercise of his functions".

I wonder why the Government have decided that a custody officer would be of a suitable grade. I mean no insult to custody officers, but this is a very sensitive decision. If ever such an event happened—and we hope it never would—it could be a diplomatic matter. I am a little concerned about a custody officer being involved, and I wonder whether an officer of higher rank ought not to be called in.

Finally, I turn to something totally different, of which I have given advance notice. I want to ask a question and hope that the Minister will simply say, "No, it will not happen. Don't worry. Go home quietly and peacefully.". I want to refer to paragraph 4 relating to the powers of arrest and detention by French officers. It states that they,

    "may arrest and hold for questioning in a Control Zone in the United Kingdom a person who is being examined for the purposes of immigration control".

Once that person is being held for that purpose, will the French officer be able to serve a European arrest warrant on him if one has been issued and if the police officer is aware of that?

The Minister will be aware to her cost that a promotion to Minister of State has brought upon her heavy responsibilities because from tomorrow she is taking through the Extradition Bill in addition to everything else. She will understand that it is on my mind as to whether the power we are giving in this order to a French officer in relation to immigration matters might, by "ambition creep" be used for something else. I hope that the Minister will be able to say that in no circumstances will the French officer be able to serve the European arrest warrant on the person he is detaining on immigration matters.

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