§ Earl Ferrers rose to move, That the draft order laid before the House on 24th May be approved [33rd Report from the Joint Committee].
§ The noble Earl said: My Lords, this may seem to your Lordships a somewhat formidable document to digest. So it is, in terms of sheer volume of paper, and in that respect it is larger than the normal statutory instrument which is customarily presented to your Lordships. But what the statutory instrument does is relatively straightforward. It applies frontier controls—such as immigration, customs and prevention of terrorism—which are already in existence for airports and seaports, to this new mode of travel which has never existed before, which brings people and goods into this country by train, via the Channel Tunnel.
§ The second unique feature is that it extends our British frontier controls into a part of France and French frontier controls into a part of England. It also enables both France and the United Kingdom to co-operate together in dealing with crime and criminals in this new system of transport. The fixed link—or the tunnel system as it is also known—consists principally of three parts: the terminals which are at Cheriton, near Folkestone, and at Coquelles; two running tunnels through which the trains will pass; and a service tunnel.
France and the United Kingdom will each be responsible for policing the system on their own side, up to the frontier which is marked halfway across the Channel. Frontier controls in the tunnel system will be carried out near to the tunnel portals. That was one of the requirements of the Treaty of Canterbury, which provided for a protocol to be made,
to enable public authorities to exercise their functions in an area of the territory of the other state".
A protocol was signed at Sangatte in November 1991 by the then Home Secretary and his French counterpart. This order gives effect in English law to that protocol.
§ French and United Kingdom frontier control officers will be empowered to work in specified parts of one another's territory. Those particular areas will be known as "control zones" and they have been agreed by the two states. They are located at Cheriton and Coquelles, on board through trains, and at international railway stations, which are referred to in the order as "terminal control points".
§ The frontier control laws and regulations of one state will apply and may be enforced in the other. For example, United Kingdom immigration officers will be able to check passports at Coquelles and their French counterparts will be able to do so at Cheriton. Within the tunnel system, entry controls on passengers will be completed before they board the shuttle trains. The physical layout of the controls will be similar to those which are found at ferry ports. The controls on passengers who travel on through trains between Paris and London will operate in a different way, but they will be based on the same principles.
§ The through trains themselves will be the control zone. Immigration checks will usually take place on the train during the journey. If that is not practicable, immigration checks will take place at the point of arrival. That will, for example, be the case in respect of night sleeper services from Paris, which will terminate at Waterloo, when alternative arrangements might unnecessarily disturb sleeping passengers.
§ It is the Government's view that it is right to retain the ability to carry out immigration checks at our internal frontiers. The completion of the European single market does not, in our view, require the abolition of immigration controls on non-European Community nationals. Passport checks on all non-European Community nationals are, therefore, being maintained, together with unobtrusive checks on European Community nationals—checks which will be sufficiently simple to identify the people as being European Community nationals.
§ The order does not modify the Immigration (Carriers Liability) Act 1987. The reasons for not doing so are essentially practical ones. The Government considered carefully whether the carriers liability Act should be extended to cover traffic through the Channel Tunnel. We decided against it because the circumstances are different from those at airports and seaports. There will be British immigration officers at Coquelles on French soil before people get on to the shuttle train, and we are planning for British immigration officers normally to be present on the through trains. Checks may, therefore, be made before entry into the United Kingdom.
§ The controls on goods which cross the frontier through the Channel Tunnel will be the same as those which are exercised at other places of entry. These days customs checks are now based mainly on advance intelligence and they are carefully targeted to 1127 prevent the smuggling of drugs and other illicit materials. Customs controls at the tunnel will be conducted on the same basis as those which are undertaken at ports.
§ Many people have been concerned about the possibility of rabies reaching the country through the Channel Tunnel. Schedule 3 of the order sets out the measures which will have to be taken on the United Kingdom side of the tunnel system in order to prevent rabies-susceptible animals from getting into the area around the tunnels and to stop them from straying into the tunnels. These measures include the fencing of the terminal areas, as well as electrified grids in the tunnel portals, poisonous bait to control rodents and the regular cleaning of the tunnel system in order to prevent the build-up of organic matter. They are all designed to keep the tunnel free of rabies. There will he other, similar responsibilities at the French end of the tunnel.
§ The greater threat of rabies comes perhaps not from animals straying into the fixed link but from people who are irresponsible enough to attempt to smuggle animals into the country. The response to this at the tunnel end will be as stringent as it is at other places of entry. All the authorities will keep a sharp look-out for any breaking of the law.
§ The design of the tunnel system and the dividing of it by a frontier which is under the sea create a need to establish special arrangements for the jurisdiction of the courts. The jurisdiction of our courts is normally territorially based—in other words, the action which constituted a crime must have occurred within the United Kingdom. Under Article 3 of the order this jurisdiction is extended so as to give the courts full legal authority to try and to sentence defendants who are brought before them for certain offences which have been committed within the tunnel system or the control zones.
§ Articles 38 to 41 of the Sangatte protocol set out the procedures by which their jurisdiction may be determined. They provide, for example, that where it cannot be ascertained with certainty where in the tunnel system an offence has been committed, the state which receives a suspect shall have priority in exercising jurisdiction. Without these ground rules offenders could escape justice if the location of the offence was not clear.
§ The police have two main functions in the Channel Tunnel. The first is as frontier controllers in exercising the powers which they have under the Prevention of Terrorism Act 1989. Those powers will be exercisable in the United Kingdom and in a control zone in France which is either at Coquelles or on the through-train.
§ The second function is to carry out law and order duties in the United Kingdom end of the tunnel system. In the control zone in France the maintenance of law and order will be the responsibility of the French authorities. But the order introduces some novel measures to make sense of the practicalities of policing the tunnel: for example, to preserve the legality of arrests which are made in England and 1128 which unavoidably continue into France and to enable the police to arrest offenders who are caught in the act in the French half of the tunnels themselves.
§ One particular consequence of French officials carrying out their functions on United Kingdom soil is that a small number of uniformed French officers may be armed in the control zone at Cheriton. Article 7 of the order enables those officers to possess firearms without a firearms certificate. The conditions which are attached to the carriage of firearms will he set out in administrative arrangements which have been agreed with the French authorities. On through-trains, French officers will lock their guns away when the train crosses the frontier into the United Kingdom.
§ The procedures which are required by French law for implementing the Sangatte protocol have already been completed. If your Lordships approve this order, the way will then be clear for the two governments to bring the protocol into force. In due course, we shall be bringing before your Lordships similar arrangements in respect of controls in relation to through-trains to Belgium.
§ I commend this order to your Lordships. I beg to move.
§ Moved, That the draft order laid before the House on 24th May be approved [33rd Report from the Joint Committee].—(Earl Ferrers.)
§ 7.15 p.m.
§ Lord McIntosh of Haringey
My Lords, we are grateful to the Minister for the way in which he has introduced these regulations. As he says., they are exceedingly complex and it is still a matter for regret that the negotiations were not completed in time to be included in the Channel 'Tunnel Act of 1987. It would have been far better if the consideration of these matters had been subject to more detailed parliamentary procedure. They could have been included in a schedule to that Act, and could then have been debated and been open to amendment. These matters are of very considerable importance, not just because they are new and not merely for those who will use the Channel Tunnel, but because of the civil liberties aspects which they bring forward.
I say at the outset that we are not proposing to oppose these amendments. We think that, on the whole, the arrangements that have been made are, given the circumstances, about as simple as they could be. I always remember the first time I crossed the Oakland Bay Bridge and discovered that the tolls were only in one direction. I thought what a good example that was and how it could well, with advantage, be adopted in other places, for example across the Severn. Clearly having the French and UK controls together at one end of the tunnel is the right way to do it rather than stopping people twice.
It is also very welcome to learn that as far as possible, certainly between London and Paris, controls will take place on trains rather than with the necessity of additional controls at the origin and the destination. I appreciate the reasons which lead the Government to think that there may be exceptional circumstances when there would have to be controls 1129 initially at Waterloo. Nevertheless, the principle of having the trains at the control zone and not delaying passengers is clearly welcome.
I know that the noble Lord, Lord Mountevans, will want to come in on the carriers' liability Act, and he knows that this is not a matter which has been treated particularly as an issue of party policy on these Benches. Speaking personally, I am convinced by the argument which the Government have advanced; namely, that it would be impracticable, and therefore undesirable, to extend the carriers' liability Act to the Channel Tunnel.
I am less concerned, I am bound to say, with the issue of animals and rabies. I think that these issues are very substantially overblown if one considers the number of cases occurring. There was indeed a case of a British subject dying of rabies only last week—he was an ex-member of the SAS—but he turned out to have a phobia against the injection which could have saved him. I believe that a great deal too much fuss is made.
I am much more concerned with the issue of French police powers. It is not just that, as the Minister said, the French police are permitted to carry hand guns and that they will in the control zone at Cheriton be exempt from our normal regulations and hand gun licensing. They have always had, and continue to have, stop-and-search powers which are substantially in excess even of those which existed in this country before the "sus" laws were abolished.
It is also true that the French police, I am sorry to say, do not have a particularly good reputation in terms of the way in which they deal with ethnic minorities. I know that that can be said of some people in this country. I came through the green channel at Heathrow only three weeks ago to find that every single traveller who was being stopped and having his baggage examined was black. When one considers the statistical probability of that occurring by chance, one must be driven to think that there are elements of racial discrimination in our Customs and Excise controls and probably in our policing as well.
I do not wish to cast aspersions on the French police or customs officers which I would not equally cast upon our own, but it is a fact that the French police have more extensive powers than our police have. They have powers which we have positively and deliberately abandoned. It is a matter for concern that there will be, so far as I can see, no obligation on them to comply with the more restrictive legislation which exists in this country. I wonder whether the Minister would care to consider whether anything can be done to ensure that civil liberties, which we value very highly, are maintained on British soil.
There is also an issue about police complaints. We have a police complaints procedure, although it is perhaps not adequate. How will that apply to French police operating in control zones on British soil?
These are complex matters which ought not to be dealt with in the consideration of an order, particularly at relatively short notice. Clearly the intention behind the order is sound and this is not an issue which we would plan to hold up. But I must ask 1130 the Government whether there are more regulations to come. The Minister referred to further regulations by the Secretary of State for Transport. Can we expect further regulations from the Home Office side? If that is the case, what assurance can be given that the Home Office issues, and in particular the civil liberty issues, will be available for debate in a meaningful sense in this House?
§ Lord Renton
My Lords, the noble Lord, Lord McIntosh, made a most interesting series of comments which it is right that the Government should take on board. But his attitude and mine differ fundamentally. He is anxious lest people should be kept out of this country. I am anxious lest people who have no right to come in should be let in. Inevitably we find a most unusual and indeed an entirely new situation. It is a situation which inevitably produces anomalies. My noble friend Lord Ferrers has already mentioned one; namely, the anomaly (to those who are accustomed to the work of our courts) that British judges will have power to try offences committed in France—at the other end of the Channel Tunnel.
With regard to immigration control as it will be affected by people coming in through the tunnel, and dealing first with those who come to our country from France, as I understand it there will be passport control at the French end of the tunnel. That will be carried out in the usual way by immigration officers, who are wonderfully skilled people with a great grasp of various languages and immense experience gained after an initial period of training. They will allow through, with or without conditions, people who seem to them to be entitled to enter this country. However, they will find that occasionally there will be people attempting to enter illegally. Such people may already have been illegal immigrants in the past.
If those people landed at London airport there would be custodial arrangements to enable them to be brought eventually before the courts. But what will happen when their offence is discovered at the French end of the tunnel? Will there be custodial arrangements there? Will there be a building to hold them in custody? Or will those people be put on a train and brought through the tunnel to this country? If so, will there be security arrangements on each train? We need to know, so that we can be quite sure that illegal immigrants who attempt to come here in that way are caught. It is well understood that, although the offence of trying to enter this country illegally will have been committed in France, nevertheless they will be triable by our courts.
If I understood my noble friend correctly but—I shall have to study his speech with great care because he covered a great deal of detail—the arrangements for people leaving this country will be somewhat different. Occasionally criminals try to leave this country when they have no right to do so. They may have escaped from custody or they may have been obliged by the courts, for one reason or another, not to leave this country. It would help if we could be told how those people will be prevented from leaving, where they will be told and by whom, and where they will be put into a state of arrest.
§ Lord Sefton of Garston
My Lords, as my noble friend Lord McIntosh said, it would perhaps have been better when we first discussed the Channel Tunnel Bill to have had some of those questions answered then. During the Committee stage I tabled an amendment dealing with the safety of passengers and possible compensation for accidents caused in the tunnel. I sought to persuade the Government that there should be a requirement on operators of the tunnel to carry insurance in the same way as a driver of a motor car in this country has to carry third party insurance to cover him in the event of an accident.
I was assured by the Government that I had no cause for concern. If I remember rightly, they said that the likelihood was that an accident would not occur and they could see problems in establishing a requirement to have third party insurance. The Act enabled a private company to carry out that exercise. However, as in the Railways Bill, there is no guarantee al all that the franchisees, owners, lessees or whatever they are called in terms of that Act, will not go bankrupt.
The simple question that I asked then I ask now: what is the fallback if a compensation claim is made against the operators of the tunnel either in France or in England? Will the Government pick up the bill for any large-scale compensation? The probability is that Lloyd's, in the state that it is in now, would not be able to meet it.
§ Lord Mountevans
My Lords, the noble Lord, Lord Sefton of Garston, raises an interesting point. I have to admit that it had not occurred to me. I hope he will forgive me if I do not follow him down that avenue.
I welcome Her Majesty's Government's acceptance that the Treaty of Canterbury, allied with reality, will make it impractical to apply the carriers' liability Act to the Channel Tunnel shuttles or to the Channel Tunnel inter-capital services.
With regard to the tunnel through-trains, I am slightly concerned by something said by my noble friend when he introduced the draft order. He said that British immigration officers would "normally" —that is his word—be on the through-trains. What if, for whatever reason or circumstance, they are not? Does the exemption from the carriers' liability Act still apply?
Having given that welcome on behalf of my friends in what one might call the tunnel field of transport, it will come as no surprise to my noble friend when I say that I wonder whether the order that we are discussing tonight and its implications give Her Majesty's Government a golden opportunity to reconsider the carriers' liability Act and its application to maritime and air carriers. It is just as difficult for a ferry operator to board 2,000 passengers in 40 minutes in Calais as it is for SNCF in France or, eventually, SNCB—the Belgian railways in Belgium—to board a similar number of passengers in Brussels. Airlines have similar problems and I will not rehearse all the arguments and discussions that my noble friend and I have had on the matter over the years. However, I remind him that airlines are frequently not the employers of their check-in staff.
1132 If the reports in the media are to be believed, and they are not simply corning from the carriers, the whole issue is galloping towards the courts. I would prefer the matter to be resolved by rational discussion rather than by the judiciary. In replying to the debate this evening, I wonder whether my noble friend can say anything to the air and sea carriers.
§ 7.30 p.m.
My Lords, I am grateful for what your Lordships have said in regard to the order which, as the noble Lord, Lord McIntosh of Haringey. said, is so much more complicated than is normally the case. He asked, as did the noble Lord, Lord Sefton of Garston, why it was not possible to conduct the negotiations earlier and have them included in the original Act.
Both noble Lords will realise that it is a completely new system being undertaken and a great many discussions had to take place. The principles were decided in the Act. It was considered appropriate to leave the details to be negotiated between the French and British authorities and for such measures as were decided upon to be put before the House in the form of a statutory instrument. I believe that to be reasonable. I understand that had it been possible to include the result of the negotiations into the Act in the first instance it would have been easier. However, a great number of discussions had to take place for the orders to be in the position in which they now are. It is reasonable, therefore, that they should be tabled in the form of a statutory instrument.
The noble Lord, Lord McIntosh, slightly poohpoohed—if that is not the wrong word—the arrangements for rabies; I believe he said that they were overblown.
§ Lord McIntosh of Haringey
My Lords, I did not say that the arrangements for rabies were overblown. I said that some of the public reaction to the dangers were overblown. I am fully in support of the arrangements.
My Lords, I am glad about that. I always remember his noble friend Lord Shepherd making a speech on rabies which was extremely forceful. It left a strong imprint on my mind. He said that if anyone had seen a person suffering from rabies, as he had done, he would never want to see a relaxation of the controls. We happen to be lucky in this country in not having rabies present and it is therefore in our interests to ensure that we do not import it.
The noble Lord, Lord McIntosh, referred to the French carrying guns. He said that their "stop and search" laws are more rigorous than ours and wondered what the outcome of such a situation would be. In the control zone in the United Kingdom the French police will only be carrying out frontier controls; law and order will be for the British police.
The noble Lord was concerned about what would happen if one wanted to make a complaint against a French policeman. Complaints against the French police will fall to be investigated by the French authorities. If one happened to be roughed up by a 1133 French policeman in the United Kingdom—that is extremely unlikely, but if that were to arise in one's wildest imagination—the complaint of assault would be made to the British authorities; if it happened in France, the complaint would be made to the French authorities. If the police were to go beyond the exercise of their functions, that would be a matter for our courts.
The noble Lord, Lord McIntosh, asked whether there would be any further regulations. The present order provides for the existing frontier controls to be applied to the tunnel. There will not be any new regulations as such in this context, apart from those applying to Belgian trains which these regulations do not cover.
My noble friend, Lord Renton, was concerned about how we would cope with illegal immigrants. He asked whether there would be custodial arrangements provided in England. The position is that at Coquelles, if illegal immigrants were detected they would not be allowed through the tunnel. There would not be any detention because they would not be in Britain. In Britain one deals with an illegal immigrant by detaining him. In France, with the shuttle service, the illegal immigrants will be prevented from entering the train which would bring them to England and therefore they would not be detained.
§ Lord Renton
My Lords, I am grateful to my noble friend. I referred to those illegal immigrants who had already committed offences in this country for which they were wanted. Not only should the immigration officer have power to have them immediately arrested, but also there should be people available to carry out the arrest and somewhere to detain them on the French side.
My Lords, my noble friend quite rightly draws attention to a fairly technical point. I will give him an off-the-cuff answer and if I am wrong, I will write to him.
If a person presented himself to the British authorities and they found that that person was someone who had been in Great Britain as an illegal immigrant, the duty of the immigration officer would be to prevent that person from boarding the train. In fact, because he would be on French soil, my guess is that the immigration officer would contact the French authorities to find out whether there were any means by which the person could be detained in France. I will confirm whether or not my reaction is correct. If I am wrong, I will write to my noble friend.
My noble friend asked also about the arrangements that apply to criminals leaving the United Kingdom. The United Kingdom police will have power to arrest fleeing criminals on board through trains. They can be taken into the control zone and be brought straight back to this country.
The noble Lord, Lord Sefton of Garston, asked some questions in regard to claims for compensation. He asked whether the Government would pick them up. I am bound to say that that would not be so. It is a commercial undertaking and if there were a claim 1134 against any specific part of the system the person receiving the claim would be the person responsible for dealing with it—either rejecting it or meeting it.
§ Lord Sefton of Garston
My Lords, that was not the fundamental part of my question. I attempted to have embedded in the Act the principle of insurance. My question was that, in view of the fact that the Government had some responsibility in regard to the Channel Tunnel Act, if the company went bankrupt would they pick up the bill for compensation? Or are the travellers to understand that if a claim arose that was so big that it meant the company had to declare itself bankrupt, there would in fact be no compensation?
My Lords, that is a commercial judgment which meets people frequently. The order merely puts into place the regulations and principles by which a commercial undertaking can be operated. If that commercial undertaking has a claim against it, then it must deal with it as best it can. There are risks with all commercial undertakings.
My noble friend Lord Mountevans referred to carriers' liability. There may be occasions when it is not possible to clear a train before arrival, perhaps because of a public order problem or because a large number of passengers need to be interviewed more fully. In those circumstances a static control will operate at Waterloo using 10 mobile desks which can be wheeled into position as necessary. Individual passengers who are selected on the train for further examination will be taken to a secondary examination area at Waterloo which will have the same facilities as those at ports and airports. The carriers' liability will not act in these circumstances.
My noble friend has always been worried about the carriers' liability aspect. I know that the Immigration (Carriers' Liability) Act is unpopular with those people who are caught by it. That is so with any Act. But what we do with the Immigration (Carriers' Liability) Act is to say that it should be the responsibility of those who carry people who board aeroplanes or ships in another country to ensure that they carry the proper documents. When those people are carried into this country, they are then dealt with by the immigration authorities in this country. Under the Channel Tunnel system this is different because the immigration authorities of Great Britain will be on French soil. Therefore, these people, when they go onto the shuttle service, will go first to the Eurotunnel kiosk, where they deal with their tickets, then to the French authorities and then to the British authorities. The British immigration authorities will be there to be able to check that anyone who gets on to that shuttle train is justified in doing so. Therefore, the circumstances are different.
The reason why there has to be this difference and why we have not applied the carriers' liability over the shuttle service is that the facilities are totally different. The people who board the shuttle service will have had their documents checked by our immigration authorities in the country of origin, whereas that is not 1135 the case with sea and air transport. I hope that, with that explanation, your Lordships will be good enough to approve the order.
On Question, Motion agreed to.