ASSISTING ILLEGAL ENTRY, AND HARBOURING (Hansard, 19 October 1971)

§ Mr. Carlisle
I beg to move, That this House doth agree with the Lords in the said Amendment.
It might be convenient to discuss at the same time the following:
Amendment No. 41, page 25, line 23, after "subsection" insert: (but not in subsection (6A) below)". Amendment No. 42, page 25, line 26, at end insert: (6A) A court shall not order a ship or aircraft to be forfeited under subsection (6) above on a person's conviction unless—

(a) in the case of a ship it is of less than 500 tons gross tonnage or in the case of an aircraft (not being a hovercraft) it is of less than 5,700 kilogrammes operating weight; or

(b) the person convicted is at the time of the offence the owner or one of the owners or a director or manager of a company which is the owner or one of the owners of the ship or aircraft; or

(c) the ship or aircraft under the arrangements in respect of which the offence is committed has been used for bringing more than 20 persons at one time to the United Kingdom as illegal entrants and the intention to use the ship or aircraft in bringing persons to the United Kingdom as illegal entrants was known to or could by the exercise of reasonable diligence have been discovered by some person on whose conviction the ship or aircraft would have been liable to forfeiture in accordance with paragraph (b) above.
In this subsection "operating weight" means in relation to an aircraft the maximum total weight of the aircraft and its contents at which the aircraft may take off anywhere in the world in the most favourable circumstances in accordance with the certificate of airworthiness in force in respect of the aircraft.

§ Mr. Speaker
So be it.

§ Mr. Carlisle
Clause 25 deals with the question of illegal entry. Subsection (6) provides that when the owner or charterer of a ship, aircraft or vehicle, or the captain of an aircraft, is convicted on indictment of assisting illegal entry the court has power to order the forfeiture of the ship, aircraft or vehicle provided—and the provision is in subsection (7)—but 628 the court shall not make an order against the person claiming to be the owner, if he applies to be heard by the court, until it has heard anything he wishes to say.
However, it was accepted that in its original form the provision for forfeiture was extremely wide. It gave rise to a certain degree of criticism on the basis that under the Clause a large, substantial ship would be liable to forfeiture merely because the captain had been engaged in bringing in perhaps small numbers of illegal immigrants without the owner having any knowledge of it. Similar views were expressed about large aircraft. This point was raised in Committee by my hon. Friend the Member for Totnes (Mr. Mawby) and in another place. As a result, the Government undertook to study the position further.
There were consultations with the Chamber of Shipping and accordingly these Amendments were brought forward in another place. They mean that a ship or aircraft cannot be forfeited unless the ship is less than 500 tons or the aircraft is less than 5,700 kilogrammes—otherwise it is a small plane or ship—or it is the owner who has been convicted of assisting in the illegal entry or that the ship or aircraft, although bigger than the size and weights I have mentioned, has been used for bringing in more than 20 illegal entrants at any one time and the intention to bring them in is known to the owner or could have been discovered by him by the exercise of reasonable diligence.
In other words, we are here concerned with the man who knows or deliberately chooses to turn a blind eye to that which he undoubtedly should know. Under the Amendment, a large ship or aicraft can be forfeited only if it has been engaged substantially in the carriage of illegal entrants and the prosecution shows that the owner must have known, or was closing his eyes to, what was going on.

§ Mr. Merlyn Rees
The Under-Secretary of State has explained that there have been discussions with the Chamber of Shipping. We have no reason to disagree with the Amendment. This seems a reasonable change for the Government to make.
I have no doubt that there is sense in providing for a gross tonnage of 500; 629 I am sure that the hon. and learned Gentleman and his Department have given thought to the matter. I have no reason to believe that there is anything fundamentally wrong with the operating weight of 5,700 kilogrammes for aircraft. I hope that the Government have got the "norm" weight of 5,700 kilogrammes right. There has been an increase in recent years in immigrants being brought illegally into this country by air. Given the present-day thrust of aircraft engines and the changes in metals used in aircraft and engines, it is surprising how many people can be carried in aircraft.
I would have thought it much easier to have a rogue owning this type of aeroplane than a ship, given what has happened in shipping over the years, with the size of companies, the necessity for docking, and so on. I just hope that an eye will be kept on this figure of 5,700 kilogrammes. I cannot pretend that my request is based on any detailed knowledge, except my time as a Service Minister with the Royal Air Force, when I learned that a great deal of change has taken place in these respects, and so I hope the Government will keep an eye on that figure.

§ Mr. Robert Hughes
It may seem rather odd that we should want to discuss at some length this Lords Amendment. On the face of it, it seems perfectly reasonable and full of common sense, but I should like to ask the Under-Secretary of State why it is that it took such a long time for the Government to be seized of the reasonableness of the Amendment. As he said, the question was raised here on Report and in Committee in another place, where, again, it was resisted, the Home Office Minister in charge of the Bill there saying that the Amendment was unacceptable.
However, there was considerable discussion and negotiation with the Chamber of Shipping during the Summer Recess, and the Chamber apparently persuaded the Government that they ought to change their mind. It simply is not good enough now to say, "Well, we had those consultations and we changed our mind". We need to know more about it, and why it was thought necessary that the Government should change their mind, because in two other aspects of the law, as I understand it, lack of knowledge by the owner does not absolve the owner from the 630 possibility of being charged with an offence.
Two cases come to mind immediately. If the tenant of a flat is charged with the possession of cannabis, or the smoking of cannabis, or the use of other drugs, in the flat, the owner can be taken to court, even though he denies all knowledge of the drugs being in the flat; because it is the responsibility of the owner to make absolutely certain that his premises are run in the proper manner. Similarly, if a house is used for immoral purposes—as a brothel, for instance—though the owner may know nothing at all about it it is not a defence for the owner to say he knew nothing of it. Why is it that shipowners are apparently given this concession in respect of the work and duties of their servants?
We might try to probe the mind of Government officers and Ministers when they consider whom they will consult and whom they will not consult. I am delighted that the Government took the opportunity of the long Summer Recess to have discussions in accordance with pledges which they gave their noble Friends who support the Government party in another place. I am glad that they took the opportunity to have those discussions with the shipping people. In Committee on the Bill in this House we spent hour upon hour asking the Government to consult immigrants' organisations, to consult not just the Race Relations Council, as a corporate body, but all the individual community relations councils in the boroughs. That was thought to be impracticable. We were told that it was not necessary to discuss these things with the people on the ground because the Government knew best. All I can say is that it appears to me that if one belongs to a large shipping company and has a great deal of money at stake one is listened to, but the ordinary people and voluntary organisations are not treated in the same way.
Why is it that a ship of 500 tons gross is chosen as being subject to forfeiture? It seems an arbitrary figure. There is no distinction between a passenger ship and a cargo ship. It is easy for illegal immigrants to be brought in in cargo ships of greater capacity than 500 tons, a blind eye being cast by the owner, but nothing can be done about it because of this arbitrary figure of 500 tons. One 631 may expect passenger ship companies to exert great control on the number of passengers their ships carry, and to see that their captains, and the people in charge, are particularly careful, but I see no reason why the arbitrary figure of 500 tons should be adopted. We need further explanation beyond what we have already had, and I hope that we shall get it, because it may save a lot of time in the long run and when we consider other matters.

§ Mr. Carlisle
If I may, by leave of the House, I will reply to some of the points raised.
Some of the comments made by the hon. Member for Aberdeen, North (Mr. Robert Hughes) I find somewhat surprising and churlish. It is clearly a substantial power to take—the power to order forfeiture of a ship or aircraft where an order may be made against the owner when the offence, as such, has been committed by his agent but without the owner's knowledge. Although I was not directly concerned with the earlier stages of the Bill I know that an issue of that kind is discussed in the Home Office where obviously, one looks to see that the powers are of the nature which is necessary, and to see that they are suitable for carrying out the purpose for which they are needed, without their being excessively wide. That is why, after consultation—this point having been raised in both Houses—a restriction on the power has been found acceptable to the Government. The hon. Gentleman says, "Why consult the Chamber of Shipping?". It was because it raised this matter as one about which it was concerned.
The hon. Member for Leeds, South (Mr. Merlyn Rees) and the hon. Member for Aberdeen, North asked me about the figure of 5,700 kilogrammes. I am told that that figure was taken because it is the dividing line used for other purposes. For instance, if an aircraft is over that weight it has to have two qualified pilots. It provides for passenger aircraft—not only light pleasure aircraft but also aeroplanes of the executive jet type of 5,700 kilogrammes. I am told that the figure of 500 tons gross was taken because it 632 was considered, after consultation, to be the appropriate figure as the dividing line.
On the other point made by the hon. Member for Aberdeen, North I speak subject to correction, because I speak only from my own recollection, without any advice. With respect to him, I think that he was quite wrong to make the distinction which he did, that the Government took note of the Chamber of Shipping and that the requirement of knowledge on the part of a shipping company did not apply to the owner of a house where cannabis is smoked without his knowledge. There was a case which went to the House of Lords, and I am almost sure I am right in saying that under the Misuse of Drugs Act, which went through Parliament last year, provision was made that knowledge is a necessary requirement for an offence to have been committed. So, with respect to the hon. Gentleman, I would say that he was not quoting a good example when he said that the Government would listen to one group of people but not to another.