Immigration (Carriers' Liability) Bill

HL Deb 07 March 1987 vol 487 cc247-91

3.30 p.m.

The Minister of State, Home Office (The Earl of Caithness)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(The Earl of Caithness.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clause 1 [Liability of carriers for passengers without proper documents]:

Lord Mottistone moved Amendment No. 1: Page 1, line 6, leave out ("by ship or aircraft"). The noble Lord said: I have been advised on the amendments that I have put down by the General Council of British Shipping. It is the shipping interest—in particular the interest of the roll-on roll-off ferries—to which I shall speak. Amendment No. 1 is a paving amendment. It is one of several consequential on the subsequent amendment, Amendment No. 8. The others are Amendments Nos. 2, 5 and 13. I shall be speaking to all those amendments.

The object of this amendment is in no way to spoil, let alone wreck, the Bill, the principle of which is thoroughly accepted. I agree entirely that there should be no real extra difficulty for the airlines, which are the main routes that perhaps need to be controlled. They have the machinery which can fairly satisfactorily deal with the implications of this Bill. However, on ships and in particular on roll-on roll-off ferries with large numbers of people coming on board at ports it will impose an extra burden which my noble friend Lord Beaverbrook appreciated in his opening remarks at Second Reading.

The object of this amendment is really to share the load. Amendment No. 8 seeks to include the operators of passenger coaches. I ask the Committee to imagine the situation. When a roll-on roll-off ferry is embarking its passengers the people in coaches will be motored on board in a composite package of people who can adequately be controlled by the agent of the operator; to wit, the driver of the coach. It is simple for him at some stage of the journey, probably even before he reaches the ship, to do the minor checking that is necessary. It was pointed out by my noble friend Lord Beaverbrook that only 20 per cent. of the passengers are expected to be in the category covered by the Bill and the driver needs to check over and do the work that the Bill calls for. That will relieve the load on the shipping company, which will then have to deal only with the ordinary passengers.

This series of amendments attempts to modify the Bill slightly to allow that sort of shared load to take effect. I agree fully that the wording of my amendments may not be satisfactory. I also agree that it may be necessary, as I thought afterwards, to define "carrier". In his speech my noble friend Lord Beaverbrook repeatedly referred to carriers, and that may be an understood phrase which does not have to be specifically defined.

It is not my intention to press these amendments, but I hope that my noble friend the Minister will feel that the principle of what I am trying to put across in these amendments is one that he can readily accept; and perhaps he may even agree to come forward with modifications to these amendments himself at the next stage of the Bill. I beg to move.

Lord Campbell of Alloway

I oppose this series of grouped amendments. The crux of this series appears to be the deeming provisions in Amendment No. 8. As my noble friend has explained, these amendments provide in effect that when a passenger coach is transported by ship, say a roll-on roll-off ferry, the operator of the coach shall be deemed to be the carrier. I agree with my noble friend that the drafting raises problems because of the exclusion of the words "ship or aircraft" by the amendment and the substitution of the word "carrier" in Amendment No. 2. This may need looking at, but I am not concerned with the drafting.

This qualification on the liability of a carrier by ship under Clause 1 surely is not broadly acceptable. The identifiable agents of abuse have been the ship and the aircraft, and the carriers who transport by sea surely cannot disclaim responsibility for compliance with Clause 1, because that is what it comes to, by shifting the whole burden to the operator of the coach transported by them. As the Bill stands, it is the owners or the agents of the ship or aircraft who are liable for contravention of Clause 1, not the coach operator. So it should remain.

The fact that passengers come on board the ship in a coach instead of in motor cars or on foot, if one looks at the matter objectively, in no way inhibits a routine check of documents such as is envisaged to ensure compliance with Clause 1(1)(a) and (b), subject to the safeguards of Clause 2(1), (2) and (4).

This series of amendments to Clause 1 constitutes a substantial departure from the broad intendment of the Bill. As to Amendment No. 13, to Clause 2, I think this stands or falls with Amendment No. 8 and is designed to accommodate the deeming provisions under that amendment as regards the coach operator. The crux of this series is the deeming provisions of Amendment No. 8. The question is whether it is right that in the circumstances the carrier by ship should be permitted to shift the burden. In principle I cannot see that that is right or reasonable.

Lord Denning

I hope the Committee will not accept this amendment. It seems to me that the shipowner can be identified. He has a ship and people coming on to it, but where will the operator of a coach start from? Will he start from India or from some other country? When he reaches a port, such as Calais, how are we to know whether he has done his job, who he is and whether he can be reached so that he can be made to pay his 1, 000 or whatever it may be, if he has not properly investigated his passengers? The only person upon whom the responsibility can be put is the shipowner who is transporting not only the passengers on his ship but the passengers on the coach. I hope that the Committee will not accept the amendments.

Lord McNair

These amendments have the general support of the main agencies caring for refugees whose interests I shall chiefly be defending in my interventions at this Committee stage. Therefore they have our support. The noble Lord, Lord Mottistone, has correctly identified the quite impossible problems which will be caused for the operators of ferries crossing either the Channel or the North or Irish seas. I should perhaps add that I would be more devious than I should wish to be if I did not admit that I also like these amendments because they tend to show what an appallingly hurried, muddled and ill-considered Bill this is. But those are by no means my only reasons for supporting them.

Lord Teviot

Like my noble friend Lord Campbell of Alloway, I am afraid I cannot support my noble friend Lord Mottistone in his amendment. Unlike my noble friend Lord Campbell, I cannot deal with the legal difficulties in the wording but I can merely describe the impracticability of my noble friend's amendment and the situation in the bus industry as it is now.

There are three basic categories of people travelling to and from this country by bus. One is the operation that takes day trippers shopping to the Continent. I cannot see any problem there as the driver who is acting as the operator's agent only brings back the passengers whom he takes out. It is the same for the next category, which is the coach driver who is returning people who have been on a tour of a few days or more, or even a fortnight. Those categories account for the great bulk of people travelling here by coach. The third category is slightly different: that is, the international express where there are a great number of routes stretching throughout the Continent and people can buy a ticket on a route or receive tickets purchased for them by someone in this country.

These groups are operated by Continental travel and a consortium of many other companies, and they are very responsible. In their conditions of travel issued to agents they state the following: Please ensure before booking that passengers have the correct documentation to travel in the various countries they may pass through or visit to avoid cancellation charges. Advise passengers that it is their responsibility to have in their possession a valid passport, together with such visas as may be necessary". In order to comply with my noble friend's Amendment No. 8 a driver would have to check any passenger's travel documents on the point of boarding. He could not just pick up somebody in the middle of nowhere and bring him all the way to Calais and then say, "Now I want your passport. You haven't got it; go away". He would have to do it at this point, which could be a capital city, a metropolis or a bus stop in the high street of a small town. Even if it were reasonable for an English national driver to deal with this, I doubt whether he would be expected to know all the visa requirements. It would be totally unreasonable to expect a Spanish, Italian, Greek, Yugoslav or even a Polish driver—there are international express routes even to Poland—to be aware of such requirements. On that point the amendment is impracticable.

Again, I have made inquiries to see whether there is a problem now and to find out how many people who seek asylum travel to this country by bus or coach. I am told on very good authority that it is rare. I then questioned my contact about where he got his information and how he would know if this happened. He said he would know because the coach would be somewhat delayed. Occasionally at Dover a coach is delayed. No specific reason is given because the driver cannot drive off from the port without his complement of passengers unless advised by the authorities. A person may have sought asylum and not been granted it or had it withheld, or he may have been stopped on a customs matter. Such occasions are extremely rare. I even inquired about people coming from the Republic of Ireland and was told that it was even rarer from there. In fact, my contact could not recall a single instance.

Some EC countries do not inspect people's passports before they leave their ports to come to this country. I do not blame only France and Belgium. I am told that it is quite possible to travel from Spain or Italy and not be asked to show documents until one arrives here. I am told that it is slightly more difficult when coming from Greece. It is possible, although one might be checked and one probably would not risk it. This is not so much a problem. I am sorry that I have painted a different picture but I am afraid that my noble friend's amendment is not practicable.

3.45 p.m.

The Earl of Caithness

My noble friend asked me to give serious and careful consideration to these amendments. Indeed, it would have been wrong for me not to do so considering that not so long ago I had a much greater involvement with the shipping world than I do at the moment; and so I took particular interest in amendments which might affect the lives of ferry operators.

This group of amendments would create confusion and uncertainty in the operation of the Bill and they would put a 'wholly new and unreasonable obligation on coach companies. Nor do I think they are workable. There are a number of reasons for this. First, I do not see how in all cases the immigration officer could identify who was a coach passenger and who arrived by other means. As my noble friend said, most will be in the coach, but I have to say to him that there will be those who will not be in the coach. What is to stop someone from leaving his coach group during the ferry crossing and arriving as a foot passenger? How would liability be established in that instance? The scope for confusion and dispute would be legion.

Secondly, it would be unreasonable to expect coach companies throughout the world to have an understanding of their obligations under this legislation, a point raised by my noble friend Lord Teviot. They simply cannot be expected to find out about the proposed obligations which as far as we know do not apply to coach companies in any other country in the world. If they were to do so, they could no doubt easily arrange to transfer responsibility back to the ferry company by arranging for their passengers to travel as foot passengers and pick up another coach on the other side of the Channel. That hardly seems to be fair to the ferry companies.

Thirdly, it would in practice be very difficult to identify who was the operator of a passenger coach, the point raised by the noble and learned Lord, Lord Denning. There may well be no representative of the company in the United Kingdom who can be held responsible for paying the charge. The owner of a coach could have chartered it to a club or organisation. He could not reasonably be expected to be responsible for checking the documents of whoever may be travelling on it when it reaches the United Kingdom.

I agree again with the noble and learned Lord, Lord Denning, and with my noble friend Lord Teviot, and I have to say to my noble friend that it is just too woolly to say that the point of liability should be where the passenger is—I quote from Amendment No. 5— setting out on passage to the United Kingdom. Is that to be when he leaves his front door? If it is when he leaves the coach station in Turkey, I am afraid too much can happen between there and the Channel port for there to be any certainty about the documents the coach operator may have seen when the passenger started his journey.

On the legal point, I agree with my noble friend Lord Campbell of Alloway that it is unreasonable to extend this Bill to a whole new category of operators who are not in any way covered by the Immigration Act 1971. That Act clearly establishes the liability of carriers by ship or aircraft, and this Bill builds on that. It would be breaking wholly new and uncertain ground to include coach companies and I do not believe it can be justified. I am sorry to have given my noble friend such a disappointing reply, but I find the arguments against his amendment quite conclusive.

Lord Somers

Has the noble Earl considered the fact that when and if the Channel Tunnel is completed, people will be able to come by train? If he does not like the noble Lord's amendments, could he not include "by any other method" or words of that kind in the Bill?

The Earl of Caithness

There is a provision for the Bill to be included within the Channel Tunnel Bill. I believe that when we look at the amendments before us there are considerable difficulties in regard to their inclusion in the Bill.

Lord Mottistone

I am sorry that I did not have more support from other parts of the Committee. I rather felt that in leaping immediately to his feet my noble friend Lord Campbell of Alloway had not actually listened to what I had been saying and went ahead with what he intended to say anyhow.

I see the difficulties emphasised by my noble friend the Minister, but, on the other hand, the principle of what I am trying to achieve would be a better way of sharing this responsibility. I know that my noble friend does not want to share it, particularly with people whose operators are based outside this country. The best I can do at the moment is to read with care what everybody has said, see if I can contrive something for Report stage which will meet the points made and try to achieve what I want to achieve. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Lord Mishcon moved Amendment No. 3: Page 1, line 16, at end insert— ("() Any owner or agent who has paid the prescribed amount shall have the sum refunded if the passenger is subsequently granted refugee status under the 1951 United Nations Convention on Refugees and 1967 Protocol.").

The noble Lord said: At the very outset of the debate on the amendments which I hope to move and where I am supported also by members of the Alliance and by those on the Cross-Benches, may I make completely clear the position of my own party in regard to this Bill? During the Second Reading debate in another place the Minister of State said, at col. 779 of the Official Report: We owe it to genuine refugees to ensure, that while their interests are secured, those who try to abuse the system do not get away with it.

That is where we stand in regard to all the amendments with which my party is associated. We are here to secure the interests of genuine refugees. We are not here to defend those who quite wrongly abuse the system and who are not genuine refugees.

I want to make that position abundantly clear because of what was published by the political editor of the Independent newspaper on 4th May. I told the noble Earl the Minister, as he would expect me to do, that I intended to quote what that article says under the following heading: Conservatives will attack opposition parties over risk of 'flood' of refugees. Immigration row to be key Tory platform".

I read from the beginning of the article: The Tories are planning to use a race gambit against Labour and the Alliance, with an election campaign claim that their opposition to the Immigration (Carriers' Liability) Bill risks 'flooding' the country with refugees. Conservative election planning has reached such a pitch that senior ministers are making detailed dispositions for legislation which has not passed through Parliament. Party managers are paying particular attention to the Carriers' Bill, brought forward in response to the arrival of Tamil refugees from Sri Lanka. The Bill proposes fines for airlines and other carriers of up to 1, 000 for each passenger brought into the country without proper passports or entry permits and papers. Labour—the main Tory target—has opposed the legislation and will refuse to reach any deal under which the Bill, now in the Lords, might be accelerated through to the Statute Book. If, as the politicians predict, the election is called for 11 June, Mrs. Thatcher would make her announcement next Monday and Parliament would have a week in which to tidy up remaining legislation. Without Opposition agreement, there is no possibility of finalising the Carriers' Bill. Senior ministers have said privately that they are prepared to use that pretext to attack Labour and the Alliance.".

I finish the quotation there.

I merely ask the noble Earl the Minister, when he replies to this amendment, to dissociate himself and his colleagues completely from this article. I recognise at once that he and his colleagues cannot be responsible for what people write in newspapers and what political editors publish. However, when such an article appears, and it is seen by the public, I am sure that the Government will welcome the opportunity of saying that no such smear will take place during the election campaign, and that the allegations made here in regard to the tactics of senior Ministers of the Government will be disclaimed.

I finish on this note in regard to the introduction to what I have to say on this particular amendment. I believe that your Lordships in all parts of the Committee would regard tactics of that kind as sordid, and would regard—as I believe would most decent, thinking people—any conceivable vote obtained by those tactics as being dishonourably obtained.

I now turn to the amendment. An amendment was sought in the other place to exonerate the carrier from all liability concerning someone who entered these shores with defective papers and was found to be a refugee, and a genuine one. The answer that was given by the Government—and it was an understandable one—was that if one did not impose the liability until the whole case had been examined, the carrier would not know where he stood for a considerable period of time, and it would be administratively most untidy to try to exact a penalty at a later stage.

We have recognised in this amendment the validity of an argument of that kind. Therefore what we have said is that the penalty may well have to be exacted in a certain case within the principles of this Bill, which principles have now to be accepted in view of the fact that the Second Reading has taken place. What therefore we are saying is this. The penalty having been exacted, if it be found that the refugee has had to present defective papers and the fine has been imposed and paid, and subsequently the Home Office itself finds that that person is a genuine refugee within the meaning of the definition of the convention and, therefore is accepted as such, the carrier will have his penalty repaid.

I cannot think, if I may say so without exaggerating my case, of a more genuine amendment to a Bill which seeks, as the Minister said in another place, to secure the rights of the genuine refugee. Nor can I think of a more genuine amendment in the interests of carriers who find that they have carried a genuine refugee, that they thought they were carrying such a genuine refugee even though his papers were defective, and that thought has been confirmed by the finding of the Government thereafter. I beg to move an amendment which I hope will have the support of all Members of the Committee in whatever places they sit.

Lord McNair

In rising to support the amendment moved by the noble Lord, Lord Mishcon, perhaps I may first associate myself and my noble friends with his opening remarks. I think I made clear at Second Reading my loathing for the racketeers who exploit human misery and who should be the true target of this Bill. I yield to no one in my loathing of such people. As the noble Lord, Lord Mishcon, said, it is the genuine refugee we are seeking to defend. When I read that article in the Independent my own feeling was that it was just too silly to take seriously.

No Bill—not this Bill or any other conceivable Bill—will ever totally prevent people arriving in this country with defective documents. It is bound to happen. Such people may claim refugee status. Some such claims will fail. So be it. But surely nobody can assert that there will never be an occasion on which some poor devil will somehow manage to get here in spite of his dodgy papers, will claim convention refugee status, and will then be found after the most exhaustive investigation to be entitled to that claim.

What ought to happen if the fine has already been levied, if the poll tax has been exacted? This amendment, with almost unimaginable moderation, suggests that the fine should be repaid. This amendment, with one possible exception which comes later, is the minimum concession that the Government should make in order to render this Bill unobjectionable in every quarter of the Committee. I find it impossible to understand how any person with a grain of justice in his heart can possibly oppose the amendment.

4 p.m.

Lord Denning

I associate myself with all that the noble Lord, Lord Mishcon, said about the newspaper. I am not sure that your Lordships should accept this amendment. It must be remembered that the policy of this statute is to put an end to people flooding into England, maybe supported by racketeers, without documents—or with forged documents—and then claiming that they are refugees. In a sense it may be a legitimate claim but it has no legal basis because they are entering without documents or with forged documents. Therefore there is a breach of the Immigration Act. They are guilty, prima facie, of entering the country without leave. The racketeers who encourage them are aiding and abetting them and in a sense, so are the carriers.

Now there is a demand for the sum of £ 1, 000 to be paid. That is a very effective sanction but it must be remembered that the words in the Bill are: be liable to pay to the Secretary of State on demand the sum of £1, 000". Is it not a case where the Secretary of State should consider the matter and in his discretion should not make the demand? Therefore they would not have to pay or the demand would be relaxed. In other words, claims for a refund should not be left to the law. It should be left to the Secretary of State to say, "In this particular case, I do not think it would be fair to charge you £1, 000 so I shall not demand it". I think that this matter should be left to the discretion of the Secretary of State and should not be made a legal point. I do not support the amendment.

The Lord Bishop of Manchester

I hope that the Minister will listen carefully to the arguments behind this amendment and others to come. Unfortunately, I was not able to be present at the debate on Second Reading, so I had to refer to Hansard, as doubtless did some other noble Lords. I was struck by certain points that arose during the debate and which I think are relevant to the questions that we are now discussing.

In the speech introducing the Second Reading of this Bill the noble Lord, Lord Beaverbrook, pointed out that the Bill: is emphatically not aimed at reducing the Government's commitment to the United Nations Convention on Refugees. Our commitment remains as firm as ever".—[Official Report, 6/4/87; col. 857]. The noble Lord also pointed out that the needs of genuine refugees will continue to be protected; that discretion will be used reasonably and with good judgment. It seems to me that this particular amendment, together with others which follow, are designed to make sure that the Bill will not be unduly hard on the genuine refugee. The Minister must accept that in many circles in this country there is widespread concern about this Bill, and I believe that that concern should be listened to with great care. In his speech on Second Reading the noble Lord, Lord Avebury, used striking words when he said, at col. 870 of Hansard: we are entering into a game of pass the parcel with people's lives". This amendment appears to be especially concerned with the rights of carriers and how the carriers will regard the legislation which is to be passed and their own future commitments. I think that it also deals with the rights of genuine refugees. I support this amendment and others which follow because I believe that there is a grave danger that a long, honourable and humane tradition which this country has had in the past is about to be transgressed.

Lord Campbell of Alloway

I rise to oppose this amendment because I have some rough notes in my hand. I am sure that the noble Lords, Lord Mishcon and Lord McNair, and the right reverend Prelate will not be so uncharitable as to suggest that, because I oppose the amendment, I have not listened to what they have had to say; or that on any occasion I do not listen to what any noble Lords have to say. Indeed, I have often changed my views on account of it.

My opposition is the other side of the argument. It is based on what I hope is a reasonable reputation of the suggestion made by the right reverend Prelate that underlies the principle of the argument in support of the amendment: that the Bill works hardship on the genuine refugee. Any person who in good faith seeks entry into the United Kingdom, either for the purpose of seeking asylum under this amendment or for any other purpose under Amendment No. 4, must have some means of establishing his identity. He must have some document establishing nationality or citizenship under Clause 1(1)(a) and, if appropriate, a valid visa.

By reason of Clause 1(2) the prescribed amount is not payable if such a document is produced to the owners or agents, or any employee, unless the falsity of the document is reasonably apparent. The regime therefore proposed under Clause 1 is, on the face of it, reasonable. It is not only reasonable; it is requisite to curb the abuse which, on common consensus of all noble Lords who spoke at Second Reading, was a serious abuse and one that had to be curbed.

Why should any subsequent ground of asylum or exceptional leave to remain under Amendment No. 4, no doubt on humanitarian or compassionate grounds applicable to the personal circumstances of the passenger, carried by the carrier in contravention of Clause 1, entitle the carrier who breached the law to claim a refund? The logic is not understood.

Furthermore, as regards the question of whether it is an unreasonable hardship for the carrier, the exercise of the discretion of the Secretary of State, subsequent to breach of statute by the carrier, is for the benefit of the passenger—the person seeking asylum—and not for the benefit of the carrier. It is not at all desirable that that subsequent exercise of compassionate discretion should give rise to some automatic refund from the Consolidated Fund; because that is where it comes from As regards Amendment No. 3, the word used is "subsequently". Is that the subsequent granting of refugee status at any time, in any country? It is so indefinite. As regards Amendment No. 4, the words used are "if the passenger". If it is requisite, the passenger will simply not have had the valid entry visa. I should have thought that it was quite the other way: that broadly it is contrary to humanitarian considerations that there should be any association between a payment of money and the exercise of an administrative discretion.

The Bill as it stands is fair and reasonable, and there is no logical basis for a refund to a carrier who has breached the statute merely because the Secretary of State, as an act of compassion, or maybe on humanitarian grounds, grants refugee status or the right to enter. I oppose the amendment for those reasons. That is the other side of the argument.

Lord Chitnis

I support the amendment. My support for it was increased when, yesterday, by chance and on a wholly different matter, I met an old friend of mine, Mr. Donald Woods. I can perhaps retell his tale with which some of your Lordships may be familiar.

Mr. Woods, a white English-speaking South African citizen, was the editor of the Daily Despatch, a South African newspaper. As a result of things he printed, he was made subject to a banning order by the South African Government—effectively, house arrest. Indeed, during that time, an attempt was made to murder one of his children.

Mr. Woods decided he might be better off out of South Africa than in it. Disguised as a Catholic priest and carrying a fake Irish passport he managed to evade the control associated with house arrest and was flown by British Caledonian to London. He applied for refugee status which was given to him. After a number of years he applied for British citizenship which was granted. He is now a happy and useful member of society here.

The only reason I tell this tale is that there are people in a situation similar to that of Donald Woods in South Africa at present. It is perfectly possible to envisage that they, too, might have to leave that country disguised as priests and carrying fake passports. They may find their way to Britain where they are discovered to be genuine refugees. Any reasonable person would, I believe, admit that Britain is probably the most suitable country in which they should find refuge.

I think that even the noble and learned Lord, Lord Denning, would agree that Mr. Woods blends well into the English countryside. If so and if there are other genuine refugees whom we want and ought to have in this country, I fail to see why, at the end of the process, British Caledonian should be £1, 000 the lighter. I hope that the noble Earl can deal with this kind of case.

The Australian Act was used by the Minister as an example which the Government have tried to follow. In Australia, carriers are exempt from payment if they bring in people who are subsequently referred to the refugee determination procedure irrespective of the result of that procedure. If that is not possible here, then, surely, the fine should be refunded where the person is seen to be a genuine refugee.

Lord Walston

I have the greatest respect, as, I am sure, all members of the Committee have, for the noble and learned Lord, Lord Denning. I have great respect also for the noble Lord, Lord Campbell of Alloway. But I cannot follow their arguments. Both seem to base their case on the fact that if this amendment were adopted it would encourage a flood of refugees of one kind or another into this country. The amendment does nothing of the sort. It seems to me a very simple amendment based on natural justice. If we can bring somebody into this country, possibly in the case which the noble Lord, Lord Chitnis, has mentioned, or any other cases less dramatic than that, when there is reason to believe that he or she is a refugee or that the documents are in order whereas they are subsequently found to be forgeries, then the carriers are liable. If it is decided by the immigration officer that the documents are forgeries or that the person involved is not a refugee, the carriers are liable to a fine of £1, 000.

We are not suggesting that they should not pay that. They should pay it; but if it is subsequently shown on appeal to the appropriate tribunals that the person in question is a refugee and is rightfully admitted into this country, surely it cannot be considered just, fair or equitable that the carrier should still have to pay the fine. He has paid it already, but he must have the right to reclaim it because it has been levied on him before the circumstances have been fully established.

It could be said that the fine should not be paid until all the paraphernalia of appeals for refugee status have been gone through. That is one way of doing it. But it can take a long time, so possibly this amendment is rather harsh on the carrier in that it says he should pay the fine immediately. However, all it does is to say that if subsequently it is found that that person is entitled to refugee status then the £1, 000 which has been extracted from the carrier shall be returned to him. I canot for the life of me see how the noble and learned Lord, Lord Denning, or the noble Lord, Lord Campbell of Alloway, can say that that is an encouragement to bring in floods of would-be refugees and illegal immigrants. Surely it is simply a way of ensuring that natural justice prevails in this country.

4.15 p.m.

Lord Mottistone

The noble Lord, Lord Chitnis, told us that interesting story about Mr. Woods, which I now remember. If Mr. Woods were to do now what he did then, he would not be subject to this Bill. I think the noble Lord said that he was dressed up as an Irish priest and used a false Irish passport. So far as concerns the ordinary person, in the case of a shipping line—I know in the case it was an aeroplane but I am concerned with the shipping line—when the carrier looks at the false Irish passport he will not know that it is false. Therefore he, or his company, would not be subject to this Bill under those circumstances.

Lord Mishcon

Perhaps I may ask the noble Lord, Lord Mottistone, whether his contribution to this debate is that we should encourage people to dress up as Catholic priests and come over with really well-forged passports and that that is the way to come into this country. Is that his argument?

Lord Mottistone

The noble Lord, Lord Mishcon, is far too serious about that. I was merely interested in the speech of the noble Lord, Lord Chitnis, much of which dealt with the case. It seems to me that the case he quoted would not be relevant to this Bill.

Lord Donaldson of Kingsbridge

Some of my best friends are lawyers but I can assure Members of the Committee that they should never trust lawyers on questions of this kind. There is only one issue of the faintest interest with which anybody in this Committee ought to be concerned. That is, that if a genuine refugee comes to this country we shall stand by our word and look after him. I think everybody wants that, our lawyer friends want it, but they are unable to distinguish fact from fiction. That is one of their great difficulties.

There is only one point which needs to be established, and it is something which we must wait for. It is to see whether or not the alleged refugee is genuine. That may take time. When it is decided that he is genuine, then we can treat everybody as if he always had been genuine. Anybody but a lawyer can see that this is the only fair thing to do. The position seems so crystal clear that it should not take further argument. We want to receive genuine refugees here; we want to exclude non-genuine refugees. We bring in a law by which the carrier must make a superficial examination. If he does that badly, he pays £1, 000 until we find that his estimate was right. Please support this amendment.

Lord Monson

In order to help those members of the Committee who find the arguments advanced by both sides equally compelling, when the noble Earl comes to reply, can he say whether the words "on demand" (in line 15, page 1 of the Bill) have the meaning which my noble and learned friend Lord Denning attributed to them? In other words, does the Bill, as drafted, permit the Secretary of State discretion as to whether or not to impose the £1, 000 penalty?

The Earl of Caithness

Before dealing with the amendment, perhaps I may take up two points. The first is the article in the paper which the noble Lord, Lord Mishcon, was kind enough to warn me that he would mention. He knows better than I that even if you tell the press the truth sometimes it does not get printed; sometimes it is taken out of context; and sometimes when you do not tell them anything they may invent a story in order to keep a good headline in front of the Government.

The public has never disguised the priority it attaches to a firm as well as a fair immigration control, and we have consistently shown ourselves ready to take action as may be necessary to achieve such control. This Bill, which is being fully discussed at Committee stage is one part of that policy. I am not going to speculate on what may happen in the future or indeed what may happen in an election campaign. I totally agree with the noble Lord, Lord Mishcon, that we must protect the genuine refugee, as has been our great tradition in the past. We do not wish to disturb that, and my noble friend Lord Beaverbrook made that point on Second Reading when unfortunately I was not able to be here. Certainly I echo that today.

The second point I should like to raise is that when the noble Lord, Lord Donaldson of Kingsbridge, said "Never trust a lawyer" presumably he was also referring to the noble Lord, Lord Mishcon, who supported his arguments. While I understand the thinking behind this amendment, I believe it is based on a fundamental misunderstanding of the purpose and nature of this Bill and the reality of the position of most refugees today who come to this country. It quite wrongly assumes that there is a necessary and inevitable connection between people granted refugee status and their arrival in this country without the proper documentation. This, sadly, is a common misapprehension.

This Bill is intended to ensure that people coming to this country fulfil the basic documentary requirements which Parliament has approved. It is not intended to change those requirements or to introduce exemptions in particular cases. These requirements are that passengers should have a valid passport or some other document satisfactorily establishing identity and nationality or citizenship (for example, a travel document) and, for the nationals of those countries specified in the immigration rules, a valid visa. Parliament has rightly accepted that these requirements should not be waived for those who wish to come here to seek asylum.

We cannot therefore accept the implication of this amendment that asylum seekers who subsequently are granted refugee status here should be encouraged or assisted to come to this country without the necessary documents. It is simply not the case that the great majority of refugees need to do so. The vast majority of those granted refugee status are already properly in this country. Much has been made in recent weeks of the situation of people who have arrived at United Kingdom ports without documents who are subsequently granted refugee status. This was taken up by the noble Lords, Lord Mishcon, Lord McNair, Lord Chitnis and Lord Walston, and also by the right reverend Prelate. We have made a check of applications granted from the ports last year to see if the facts bear out the concerns expressed. They do not. There were 27 such applications granted in 1986. Of those 15 did not have the right documents when they arrived here, but every single one of those people had come to the United Kingdom from a third country; not one of those 15 had come directly from the country from which they sought refuge. It would have been entirely open to them, therefore, to make proper and orderly arrangements for their future from that third country, either in the United Kingdom or elsewhere.

It is just not true, therefore, that genuine refugees need to flee to the United Kingdom directly from their home country without documentation. I cannot therefore recommend that the Committee supports an amendment which could encourage carriers in making that false assumption. There is no necessary link between passengers arriving without documents (which is the purpose of this Bill) and the grant of refugee status, which is an entirely separate matter.

Nor do I think this amendment is fair on the carriers. It is right that carriers should be held responsible for making sure that a passenger they carry has the documents which they know are required of people coming to this country. It is wrong that they should be encouraged, with the prospects of refunds, to try to form a judgment on whether a passenger without documents, who seeks passage on the grounds that he is an asylum seeker, is or is not a genuine refugee under the terms of the United Nations Convention. In such cases such a decision requires the most careful, delicate and well-informed judgments which no carrier can be expected to make. In practice what would happen is that either the carrier would ignore the saving since he could not hope to make the necessary judgment at the check-in counter—in which case this amendment is a dead letter—or he would accept all asylum seekers, whatever their circumstances, thus putting us right back where we started.

We are therefore dealing with only a very small number of people who are granted refugee status, having applied at the ports. It is by no means certain that on the merits a carrier should have carried even these passengers from their safe third country to this country without the proper documents. A judgment would need to be made on these cases and it is not something that can be dealt with by an amendment of this sort. It is far better dealt with by the sensible use of the Home Secretary's discretion. Here I would confirm to the noble Lord, Lord Monson, that the wording of the Bill provides discretion to my right honourable friend the Home Secretary. He has already told the carriers that he will exercise that discretion in some of the cases that have already come to our ports. It is that very discretion that would take care of the exceptional circumstance raised by the noble Lord, Lord Chitnis.

There may be a few very exceptional cases where someone had to flee their home country under the sort of circumstances envisaged in the 1951 convention; where they were in imminent and self-evident danger of their life; where they had no reasonable means of getting the required documents; where the United Kingdom was in the circumstances the only or clearly the most appropriate destination; and where the carrier could not reasonably make any checks with the United Kingdom authorities. Such circumstances are of course very rare, but the noble Lord, Lord Chitnis, mentioned one of them. If they were to happen, and a carrier were to make a compassionate response and accept the person for travel to the United Kingdom, I can assure the Committee that we would be ready to consider not making a charge on the carrier; and the Bill provides for that.

We are dealing therefore with a very small number of cases where we are right to give no blanket guarantees and where we must consider all the circumstances to see if, whatever the final decision about a person's refugee status, we can accept that the carrier was right to take the passenger. This amendment is not required to deal with such unusual cases; they are much better dealt with by the use of the Home Secretary's discretion not to make a charge. This amendment would only risk carriers and their passengers being wrongly- and unnecessarily encouraged to think that there was some necessary and accepted link between the genuine refugee and the absence of documentation. That is not the case, and I invite the Committee to agree with me that it would be wrong to accept this amendment.

Lord Walston

Before the noble Earl sits down, when the noble Lord, Lord Chitnis, referred to the case to which the noble Earl has himself referred, he said that if the carrier had been prepared to take a risk in a good cause the Secretary of State in all likelihood would look on it with leniency. May I ask the noble Earl personally and as the Minister responsible whether, if British Caledonian had not been prepared to take that risk and Mr. Donald Woods had been left behind in the country from which he was trying to escape, the noble Earl would feel happy about that?

The Earl of Caithness

I do not think, on the hypothetical question put to me by the noble Lord, Lord Walston, that the amendment would have any bearing on the matter. In my view, the amendment would not affect the decision of the carrier. I think the amendment would affect the decision of the carrier in encouraging people to come to this country without the relevant documentation and I am sure the noble Lord would agree with me that that is not what we want to encourage.

4.30 p.m.

Lord Mishcon

I am perfectly sure that the noble Lord, Lord Donaldson, would agree with me that there are exceptions which prove the rule; and when he generalised in regard to lawyers in this Chamber he was looking with some degree of affection, I hope, at the exception which proved the rule.

I turn immediately to the Minister, who answered this debate with his usual courtesy and clarity. I have interpreted his answer to my request, which arose out of the article in the Independent of 4th May by the political editor, that the Government wish to dissociate themselves from any slur contained in the article and that it is not the thought of any senior Ministers of his Government to cast any such slur in any election. I know perfectly well that he will pass on my observations and any of his own to the proper quarters. I leave the matter there.

In the course of this debate we have heard reference made by the Minister and other Members of the Committee to the fact that the vast majority of refugees wising to come to these shores would not genuinely be without papers; such refugees would be very few. I echo the words of the right reverend Prelate about the great tradition that this country has always had in these matters and it is on behalf of those very few that I plead this afternoon with the Committee.

With the greatest respect that I and all Members of this Chamber always give to the noble and learned Lord, Lord Denning, perhaps I may say to him how fortunate he is, and indeed we all are, to have been born in this country and to be its citizens and how fortunate it is for him to be a judge of such repute in this country. He cannot possibly imagine, as I can, the situation of refugees fleeing from persecution who find it impossible to obtain adequate papers. It is on behalf of those people that this amendment is moved.

I agree with the noble Lord, Lord Campbell of Alloway, when he says, with the sturdy eloquence that he uses in speaking in favour of the Government, as he so often does, that he is arguing the other side of the coin and that in his view this measure is completely unnecessary because we are rewarding the carrier whereas the person who ought to have our sympathy is the refugee.

In safeguarding the refugee perhaps he will imagine the case of a genuine refugee who for very good reason does not have adequate papers and who pleads with the carrier to save him. The carrier replies that he has been told that according to the Act which Parliament in its wisdom has passed there can be no exception made even though he is a genuine refugee. The carrier says, "I shall have to pay out £1, 000 for you and for every single refugee. I can rely on the discretion of the Home Office if you prove to be a genuine refugee but I do not know if I shall receive it. There is nothing in the Act to say that even if you are a genuine case I shall get back the money.

The noble and learned Lord, Lord Denning, speaks of the discretion of the Home Secretary and asks whether we do not have enough faith in the Home Secretaries of this country. I have abundant faith in them. However, it would be fiction (would it not?) if I were to imagine that the Home Secretary of whatever party would consider with the greatest of care the papers leading to a £1, 000 fine on carriers. They will be on his table. He will look at them and ask questions such as, "Has this matter been investigated? Is this man a genuine refugee? Are we going to have an administrative Act whatever government may be in power?"; and he will say, "The papers are out of order. We have to discourage this sort of thing". Then some official, perfectly properly in the course of his duty, will say, "There is a £1, 000 fine to be paid".

How will the carrier even know whether refugee status has been granted so that he can ask for the discretion of the Secretary of State in order to get back his £1, 000? How is he to know that? He cannot be expected to be waiting on the refugee's doorstep to find out whether it is true. He will not even know where the refugee goes to. The only person who will know will be the Home Secretary, and under this provision, where genuine refugee status has been proved, the Home Secretary is put under an obligation to return the £1, 000.

One may go through all sorts of tortuous arguments in order to try to prove the point. Usually what we have is a gut reaction, if I may use that expression, as to whether or not justice is being done. If the Committee will not think me rude in saying it, I believe that the gut reaction of every Member of this Chamber ought to be to pass this amendment, which will give justice to the true and genuine refugee and to the decent carrier who tries to help him where that is proved justifiable. I ask for the Committee's support for this amendment.

4.35 p.m.

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 97; Not-Contents, 126.

DIVISION NO. 1
CONTENTS
Airedale, L.	Jenkins of Putney, L.
Amherst, E	John-Mackie, L.
Ardwick, L	Kilbracken, L.
Attlee, E.	Kilmarnock, L.
Aylestone, L.	Listowel, E.
Birk, B.	Llewelyn-Davies of Hastoe, B.
Blease, L.	Lloyd of Hampstead, L.
Blackstone, B.	Lloyd of Kilgerran, L.
Bonham-Carter, L.	Longford, E.
Boston of Faversham, L.	Mackie of Benshie, L.
Bottomley, L.	McNair, L. [Teller.]
Bruce of Donington, L.	Manchester, Bp.
Bruce of Donington	Mayhew, L.
Buckmaster, V.	Meston, L.
Burton of Coventry, B.	Mishcon, L.
Caradon. L.	Molloy, L.
Carmichael of Kelvingrove, L.	Morris, L.
Carter, L.	Morton of Shuna, L.
Chitnis, L.	Nicol, B.
Cledwyn of Penrhos, L.	Oram, L.
David, B.	Pitt of Hampstead, L.
Davies, L.	Ponsonby of Shulbrede, L. [Teller.]
Dean of Beswick, L.
Diamond, L.	Prys-Davies, L.
Donaldson of Kingsbridge, L.	Rathcreedan, L.
Elwyn-Jones. L.	Reilly, L.
Ewart-Biggs, B.	Ritchie of Dundee, L.
Ezra, L.	Robson of Kiddington, B.
Falkland, V.	Rochester, L.
Fisher of Rednal, B.	Ross of Marnock, L.
Flowers, L.	Sainsbury, L.
Foot, L.	Seear, B.
Gallacher, L.	Serota, B.
Galpern, L.	Simon, V.
Gladwyn, L.	Somers, L.
Graham of Edmonton, L.	Stallard, L.
Grey, E.	Stedman, B.
Hampton, L.	Stewart of Fulham, L.
Hanworth, V.	Stoddart of Swindon, L.
Harris of Greenwich, L.	Strabolgi, L.
Hatch of Lusby, L.	Taylor of Blackburn, L.
Hirshfield, L.	Tonypandy, V.
Hooson, L.	Tordoff, L.
Howie of Troon, L.	Underhill, L.
Hunt, L.	Wallace of Coslany, L.
Hylton, L.	Walston, L.
Irvine of Lairg, L.	Wells-Pestell, L.
Jacques, L.	Willis, L.
Jeger. B.	Wilson of Rievaulx, L.
NOT-CONTENTS
Abinger, L.	Cox, B.
Alport, L.	Cullen of Ashbourne, L.
Ampthill, L.	Davidson, V. [Teller.]
Auckland, L.	De Freyne, L.
Bauer, L.	Denham, L. [Teller.]
Beaverbrook, L.	Denning, L.
Beloff, L.	Duncan-Sandys, L.
Belstead, L.	Dundee, E.
Bessborough, E.	Ebbisham, L.
Blyth, L.	Eden of Winton, L.
Brabazon of Tara, L.	Elibank, L.
Braye, B.	Elliot of Harwood, B.
Brougham and Vaux, L.	Elliott of Morpeth, L.
Broxbourne, L.	Elton, L.
Bruce-Gardyne, L.	Erroll of Hale, L.
Buckinghamshire, E.	Faithfull, B.
Butterworth, L.	Ferrers, E.
Caithness, E.	Ferrier, L.
Cameron of Lochbroom, L.	Fortescue, E.
Campbell of Alloway, L.	Fraser of Kilmorack, L.
Campbell of Croy, L.	Gainford, L.
Carnegy of Lour, B.	Glanusk, L.
Carnock, L.	Glenarthur, L.
Cathcart, E.	Goold, L.
Coleraine, L.	Gray of Contin, L.
Cottesloe, L.	Greenway, L.
Cowley, E.	Gridley, L.

Hailsham of Saint Marylebone, L.	Plummer of St Marylebone, L.
Harlech, L.	Portland, D.
Harmar-Nicholls, L.	Quinton, L.
Hesketh, L.	Rankeillour, L.
Holderness, L.	Reigate, L.
Hood, V.	Renwick, L.
Hooper, B.	Rugby, L.
Hylton-Foster, B.	St. Aldwyn, E.
Johnston of Rockport, L.	St. Davids, V.
Kimball, L.	Saltoun of Abernethy, Ly.
Kinnaird, L.	Sandys, L.
Kitchener, E.	Sempill, Ly.
Lane-Fox, B.	Shannon, E.
Lawrence, L.	Skelmersdale, L.
Layton, L.	Slim, V.
Long, V.	Strange, B.
Lucas of Chilworth, L.	Strathcarron, L.
Lyell, L.	Strathspey, L.
Macleod of Borve, B.	Sudeley, L.
Manchester, D.	Swinfen, L.
Marley, L.	Terrington, L.
Maude of Stratford-upon-Avon, L.	Teviot, L.
	Thomas of Swynnerton, L.
Merrivale, L.	Trafford, L.
Mersey, V.	Tranmire, L.
Milverton, L.	Trumpington, B.
Molson, L.	Tryon, L.
Monk Bretton, L.	Vaux of Harrowden, L.
Mottistone, L.	Vickers, B.
Munster, E.	Westbury, L.
Murton of Lindisfarne, L.	Whitelaw, V.
Napier and Ettrick, L.	Windlesham, L.
Newall, L.	Wise, L.
Nugent of Guildford, L.	Wolfson, L.
Onslow, E.	Wynford, L.
Orr-Ewing, L.	Zouche of Haryngworth, L.
Pender, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.44 p.m.

[Amendments Nos. 4 and 5 not moved.]

Lord Mishcon moved Amendment No. 6: Page 1, line 21, at end insert— ("() No liability shall be incurred under subsection (1) above in respect of any person whom the owners or agents are obliged to carry as a result of an order from a foreign Government.").

The noble Lord said: The amendment is intended to cover such a case as noble Lords will be familiar with; namely, where a deportation order is made and, this being a genuine government order, the carrier is required to convey the person who is subject to that deportation order. His papers may not be in order. Can it possibly be suggested that it is proper that the carrier should be fined the sum of £1, 000?

It is no good—I say this with the deepest respect to the Committee—saying that this is one of the cases where the Secretary of State will exercise his discretion. It is surely not for us, when passing an Act of Parliament with some precision, to rely upon a discretion which can be exercised in any number of ways and which one knows perfectly well will be exercised in most cases through an official, as I have said before. It must be obvious that, where a carrier is conveying under an order from a foreign government to carry, it must be an exemption properly in the Act.

Lord Mottistone

It may be helpful to the Committee, to the noble Lord, Lord Mishcon, and to my noble friend the Minister if I say that I suspect that my Amendment No. 10 is very similar to this amendment. Perhaps I may speak to it under this heading to save time. The principle is as the noble Lord, Lord Mishcon, has described it. However, I suggest with great humility that my wording is a little wider and may therefore cover rather greater ground than his does, and would encompass his, if the Committee were so disposed to like it.

There must be moments when the carrier is put in this kind of impossible position, and it would not be appropriate for him to be charged. Surely it is not entirely right to include it within the discretion of the Secretary of State. I therefore hope that my noble friend the Minister may find that one or other of the amendments is one to which he could give great favour.

Lord Mishcon

I should always be happy to have the noble Lord associated with any amendment of mine. It is a strange experience, which I enjoy when it happens.

I wonder whether the noble Lord would consider this—and I am not making an argument by way of a reduction to an absurdity. If his wording prevailed, would it not be correct that were someone, for example, to be pushed on board ship, he would not be carried voluntarily? The carrier would be carrying him without proper papers, even though he might not be responsible for pushing him on the ship. Because according to this amendment such a person would not be carried voluntarily, there would be no liability on the carrier. The wording in my amendment seems to be more precise.

The Lord Bishop of Manchester

There seems to be one good reason why the Government should accept the amendment or why the Minister should give it careful consideration. There are surely cases under present regulations where the British Government themselves require the co-operation of carriers where people are being deported against their will. In such a case surely we would not welcome the kind of legislation from a foreign government that put penalties on the carrier for doing precisely that.

Lord Campbell of Alloway

It would be convenient not to deal with the amendments together as they raise rather divergent principles. It would be confusing to try to deal with Amendments Nos. 6 and 10 at the same time, although to some degree they overlap in one sense. That sense is the matter of international comity, which in this regard means that a government of one sovereign state is not obliged to recognise the order of another sovereign state save as bound by convention or treaty to which both states are parties. I touched on this at Second Reading.

In the absence of acceptance of the principle on a reciprocal basis by some further protocol to the convention on refugees by the signatory states, we could very soon, at the behest or order of a foreign government, become the dumping depot of deportees; and deportees not only from the signatory states, who are all member states of the Council of Europe, which is pretty wide, but states anywhere in the world. Speaking only to Amendment No. 6 at this stage, I respectfully suggest that this proviso or "savings clause" is wholly unacceptable. It is wholly unacceptable that we should be bound in that way by the order of some foreign power. We have never, at any time, accepted, notwithstanding international conventions and protocols, any such erosion of sovereignty. The amendment assumes contravention by the carrier of Clause 1.

Surely, if the carrier breaches Clause 1, he should be liable to pay the prescribed penalty subject to the discretion of the Secretary of State. For those reasons I oppose that amendment. There are other reasons why I wish to oppose Amendment No. 10.

Lord Denning

I should like to say a few words. What foreign government are we considering here? It may be a highly civilised one or it might be General Amin in East Africa. Is a shipping or airline company entitled to obey General Amin and carry someone to this country? No, I do not accept that. Let it be on a discretionary basis.

Lord Hylton

I may be able to help the noble and learned Lord. As I understand it, Amendment No. 6 raises the question of those countries which have not ratified the UN convention on the status of refugees. They include Malaysia and Bangladesh. For that reason, I hope that the Government will look sympathetically at the amendment.

The Earl of Caithness

The amendment before us offers a general exception when the right course is to exercise discretion in the light of the circumstances of each case. The noble Lord, Lord Mishcon suggested that I might reply to him in such terms. While I can assure the Committee that the Government will exercise discretion sensibly when the carrier, through no fault of his own, really has no option but to comply with the orders of a foreign government, there may well be circumstances where it would be right to consider the carrier's liability. For example, the carrier might have been compelled to carry someone to this country because he had carried him without documents in the first place either from here or from another country.

He might have been directed to effect removal here only because he had not complied with other directions—for example, to take the passenger to another country. It is for that reason that the amendment lacks precision. I venture to suggest that it is quite unusual to find an amendment from the noble Lord, Lord Mishcon, that lacks precison. This one, however, lacks his usual clarity.

It would be possible for an unscrupulous carrier to argue that he had been compelled to carry someone when that was not really so. Given the many different systems of immigration control operating throughout the world, it would be quite impossible for the immigration service to check out such claims. I am sure the Committee will agree that one can envisage circumstances in which arrangements could be made between such unscrupulous operators and dishonest officials overseas in which it would be represented that the carrier had no alternative but to carry the passenger.

Should that come within the ambit of the amendment? It illustrates how widely the amendment is drafted. Therefore, it is not an amendment that I can recommend the Committee to accept. But that is not to say that discretion could not, or would not be exercised in appropriate cases. I can only confirm what I said on the previous amendment; namely that such discretion has already been exercised. There will be, and already have been, cases in which the carrier can show that without any fault on his part he was compelled to carry someone, for example, as a deportee from another country. In such cases discretion has been, and will continue to be, exercised. I hope that that solves the concern of the noble Lord, Lord Mishcon, and that he will be able to agree with me that discretion is the right way forward.

Lord Mishcon

It is very difficult to answer a charming speech of that kind with anything other than charm. However, I am not so capable in that respect as the noble Earl. I wish that I could catch his charm, from across the Front Benches.

I feel that I owe it to the Committee to answer a few of the arguments that have been advanced. I shall do so very briefly. As I understood it, the noble Lord, Lord Campbell of Alloway, warned us when he spoke on a previous amendment that one should not confuse the case of the carrier and the person conveyed. However with great respect, I rather felt that in his contribution on this amendment, that was exactly what he was doing.

No one is saying, as regards this amendment, that a person who is carried in that way and who arrives on these shores shall be admitted to these shores. We are not saying that at all. Indeed that is the answer to the noble and learned Lord, Lord Denning. We are not saying that a host of deportees arriving here should be allowed in because they are deportees under the order of General Amin—not a lamented memory—or anybody else.

If there is an order—I concede that maybe the words "valid order" should be inserted—from a foreign government, what is the carrier to do? If it looks like a perfectly genuine order, should he still be liable for the penalty? The only answer seems to be the old one that the Secretary of State, in his all-pervading wisdom, mercy, righteousness and so on, will obviously not levy a penalty in that case. Parliament is not doing its duty by giving such a wide answer.

As the noble Earl was courteous enough to point out the imprecision of the amendment in many respects, I shall study what he has said to see whether I should bring the matter forward on Report. Alternatively, I may be so convinced by what he has said that there will be no necessity to do so. In those circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McNair moved Amendment No. 7: Page 1, line 21, at end insert— ("() No liability shall be incurred under subsection (1) above where a carrier has reason to assume that to refuse to carry would thereby place the intended passenger in grave or immediate danger.").

The noble Lord said: This is the amendment to which I referred obliquely when we were discussing Amendment No. 3. Like Amendment No. 3, it is the sort of utterly minimal concession that the Government could make in order to render the Bill less objectionable in its incidental effects while keeping its intended purposes intact.

We failed to persuade the Committee to approve Amendment No. 3; so we shall try again with this one. I must ask Members of the Committee in Hamlet's words to, look here upon this picture and on that and to keep in mind the stark contrast between the kind of life we are lucky enough to be able to live in this country and the lethally turbulent conditions in which all too many people cling to life in some less fortunate places. That applies to places where a Pinochet, a Pol Pot or an Idi Amin may come to power at any moment and face their opponents with an immediate and simple choice: escape or die.

I understand that we may shortly be enjoying a general election in this happy land. Some of us will get very excited. Blood pressures will rise and adrenalin will flow. If someone or other is unlucky enough to get in the way of a well-aimed tomato we shall see banner headlines in the tabloids.

It would take a little more than that to wake up a news editor in, for example, Beirut where tomatoes are for eating and where Kalashnikov rifles are about as easy to get one's hands on as are ball-point pens in this country. I do not wish to labour the point. I merely wish to remind the Committee that those situations of grave and immediate danger have arisen in the past, exist at this moment and that, in unforeseeable places and at quite unpredictable times, they are all too certain to occur again in the future. It is with such circumstances that this amendment is concerned.

When one of these crises suddenly occurs, what is our attitude to be? There may be panic and there will be deadly fear. Some noble Lords may have seen the fear of death in someone else's eyes. It is not a sight that you forget. If a girl somewhere on a check-in desk at an airport is so moved by that sight that she sells a ticket to someone who has been quite unable to obtain a passport and manages to reach this country, what should we do?

The Home Office by, I think, not giving itself enough time to think has put itself in the ridiculous position of saying that our response to the arrival of that wretched person should be to ask to see his papers and, finding them defective, to fine the carrier who brought him here £1, 000. I know that the Home Secretary does not have to impose the fine, and I am sure I am right in assuming that no conceivable Home Secretary would impose the fine. But how is that girl on the check-in desk at God knows where to know that? She may be supporting a large family by working for the airline. She may not dare to risk her job by disobeying the order she will have received from her employers: "No passport, no ticket". She may send the man away to his death.

This amendment seeks to build into the rules a very small safety valve for these occasions of appalling danger, and with this minimal change in the Bill my imagined check-in girl will, with luck, have had a telephone call from her employer saying, "The no-passport, no-ticket rule is suspended during the present emergency". She will sell the threatened passenger a ticket, and a life which would otherwise have been casually, meaninglessly, rubbed out will be saved I beg to move.

5 p.m.

Viscount Tonypandy

I rise to speak in support of the amendment that has been proposed. I wish to bring to the attention of the Committee an experience that I had when I was responsible as Parliamentary Under-Secretary in the Home Office for dealing with questions of immigration. At a time when there was a great deal of immigration into our country—I am talking of 1964—very little came to the Ministers, compared with the number of cases that were dealt with by officials. But we are, I believe, in grave danger of imposing on a carrier a sense of dreadful responsibility if he knows that a person is in grave danger.

I recall in my time in office my private secretary coming in to me when I was in the room of the Home Secretary, the late Lord Stow-Hill, to tell me that a man who had been sent back that day had cut his throat in the aeroplane. Apart from the horror of fearing that it was somebody whom I had rejected—I soon found out that it was not—and the horror of the tragedy for the man concerned, I thought of the poor immigration officer who, having looked at the papers and not being satisfied, said, "No, back you go." If we know that people are in danger, are we to say "No, you may not bring them"?

We are proud of the heritage of this land and the whole world looks on us as a country where true refugees can look to a land of liberty, a land where, above all, we have prided ourselves through the years that our shores will protect from tyranny people who are seeking to escape.

Amendment No. 7 is to my mind an improvement on Amendment No. 3, which I supported in the Lobby. But I hope and pray that Her Majesty's Government will realise that they are touching a tender nerve with the British people on this matter. People who have a great sense of of responsibility and who are accustomed to public service fear this effort to make sure that we are protected from too much immigration—which I think is the wish of our people. I believe that they want to be protected against great crowds coming in again, because we cannot absorb them. But our people have a sense of decency and their instinct tells them that, when we know that people are in danger, it is not in line with our tradition to slam the door in their faces and behave as though we do not care.

Viscount Buckmaster

I also strongly support this amendment and I want to deal particularly with Ugandans. Various noble Lords have mentioned Idi Amin as though he was still in power, so let me remind the Committee that he was overthrown in 1980. I know of several Ugandans now living in Britain who were suffering severe persecution in the Amin reign. This was in the mid-1970s when I was working in the Foreign and Commonwealth Office after a spell in Uganda.

Those people were suffering in an appalling way. I shall not go into details, but those noble Lords who have had experience of countries like that where such persecution is rife can appreciate the mental and physical torment that they were in. They were, in the words of the amendment, "in grave or immediate danger" and I would add the words "of their lives". I want to mention particularly that those were ordinary decent, upright, law-abiding citizens. But unfortunately they happened to belong to tribes opposed to Amin.

In four cases with which I was personally associated, they had managed to get to Britain on a Ugandan Airways flight without proper travel documents. Ultimately, after protracted intervention on my part, they were granted exceptional leave to remain and two of them were finally granted asylum. Of those four, two have now established themselves in businesses in the United Kingdom and one is working for the British Refugee Council.

The point I want to make is that had those people remained in Uganda, I have no doubt that they would have been either killed, as many of their close relations were, or imprisoned in such ghastly conditions that death would probably be preferable to such a fate. So I feel, as my noble friend Lord Tonypandy said, that we must draw on our reputation as a humanitarian country. We must give all the consideration we can to such cases, even though we have not been familiar with the backgrounds. I very much hope that the Minister will give due consideration to my remarks.

Lord Campbell of Alloway

I have been greatly moved by the speeches that have been made. Like all Members of the Committee, I wish to extend the traditional hospitality of our shores to those who may be in grave danger. However, on a realistic plane, how can that be done? How can we accommodate all those unfortunate people who may be in grave danger in all parts of the world? Is it really suggested that the amendment as it stands can be operative from a practical point of view? Presumably, in some cases—perhaps in all cases—it will be the carrier who has to assume a grave and immediate danger from what he is told by a passenger. I assume that the carrier would then have to consider that there is no other place in the world where the intending passenger will be safe.

It is with the utmost regret that I speak as I do. I should wish to accommodate in this country everybody who is in grave danger. But I do not regard this as a minimal concession; I think it is a most important concession. The amendment, if carried, will drive the proverbial coach and four through the intendment of the Bill.

Lord Hylton

I do not think that the noble Lord, Lord Campbell of Alloway, does the Committee a service by suggesting that all the refugees of the world are going to come to this country. Past records and statistics show clearly that a very small minority of refugees have done so. It is also relevant to the amendment that the Medical Foundation for the Care of Victims of Torture is one of the numerous organisations that are highly concerned about the Bill.

Our doctors and experts on rehabilitation have established a considerable expertise in the very difficult field of victims of torture. In the post-war period, we have seen torture exercised on quite a large scale, even in Europe (in such countries as Greece), in countries which wish to become members of the EC (such as Turkey), and in the psychiatric hospitals of Russia. Those are the kinds of cases to which the amendment will apply. I hope that the Government will be able to look at it more sympathetically than they did previous amendments.

Lord Denning

I can well appreciate the telling cases which my noble friend Lord Tonypandy and others have mentioned. However, those are individual cases, and this amendment goes much further. It goes so far that it opens the way to abuse. The words, carrier has reason to assume mean that a receptionist in a far country who checks in the passenger must assume that a refusal to carry the passenger will place the intended passenger in grave or immediate danger. What evidence will the receptionist have of the grave or immediate danger except the word of the passenger? It is too big a responsibility for the receptionist to judge grave and immediate danger. Surely the sensible thing is to allow the passenger to go on and then to fine the aircraft company within discretion. I should have thought that, however well intentioned, the amendment goes too far.

The Lord Bishop of Manchester

I should like to support this amendment as strongly as I can. I was moved by the opening speech of the noble Lord, Lord McNair. It set the arguments before us very powerfully. I must confess that I do not understand the argument of the noble Lord, Lord Campbell of Alloway. He says, "How can we accommodate all the unfortunate people from other parts of the world?" I thought that the object of the Bill, as explained by the Minister and others, was not to keep out genuine refugees and those who are in grave or immediate danger. Am I wrong on that point?

I should like an assurance from the Minister as to the purpose of the Bill. If we are concerned, on the one hand, with the potential numbers of those who might be considered to be in grave or immediate danger, or if we are concerned, on the other hand, with abuse, those matters put a different complexion on the Bill. I thought that the Bill was designed to correct abuse but not to keep out genuine refugees. In that case I think it has been admitted on all sides of the Committee that we will be going against a long, honourable and humane tradition in this country.

As to the remarks of the noble and learned Lord, Lord Denning, about opening the way to abuse, there is always the possibility of abuse in all legislation. We are always dealing with problems of abuse; I have no doubt that that will continue to be so in the future whatever the form in which the Bill finally goes through. However, the great point is where one puts the emphasis. Is the emphasis simply on guarding against abuse, or is it also on allowing for those who are in grave or immediate danger to be protected in some way in this country?

I know that this is not the place for anecdotal evidence on this grave matter. However, Uganda was mentioned, and I could not help remembering that some years ago I spent a study leave in East Africa. It was at the height of the Amin régime. I was staying at a small college in Nairobi. The only other occupants were refugees from Uganda. I was standing next to a young man making a cup of tea one afternoon. He had reasonable English and in passing conversation with him I asked about his family. I elicited the information that every single one of them had been killed; he was the only one who had escaped.

It is people such as those that one has in mind when one thinks of grave or immediate danger. I found very puzzling the words of the Minister when he gave the numbers of persons who had been granted asylum in this country and said that they had all come from a safe third country and not from countries where such problems are taking place. That indicated to me how very difficult it is for anybody from those countries to get directly to Britain in any case. Do we wish to shut those possible loopholes to people who are in danger of their lives?

I found the argument of the noble Lord, Lord McNair, entirely convincing as to what the effect might be on airline operators in other countries who come across circumstances of that kind. I should not wish to be a party this afternoon to anything which closed a vital loophole to people who are in grave or immediate danger.

Lord Monson

I should like to support the amendment. In doing so, may I reply to a point made by my noble and learned friend Lord Denning. As regards the Vietnamese boat people, they would be adrift on the ocean. There would be no question of anyone checking them in at a desk. If the captain of a British ship is hesitant about picking them up in consequence of the Bill, as seems likely, what will happen to them? If they head back to Communist Vietnam, it is all too likely that they will be thrown into a concentration camp or worse. On the other hand, if they sail on, they will probably, as is statistically true, be drowned in a typhoon, eaten by sharks or robbed, raped and murdered by pirates.

Of all the amendments on the Marshalled List today I think this is the most essential. I hope that even noble Lords who support the Bill in general—as I do and as I am sure most of the British public do—will agree to this small but important modification. I say that not least because it is the one amendment which I believe has majority support among members of the public.

Lord Bonham-Carter

I do not want to intervene at any length but I am prompted to do so by the words spoken by the noble Viscount, Lord Tonypandy, in regard to the tradition of this country in welcoming refugees and providing asylum. I briefly remind the Minister that in the last century there was a famous diplomatic incident when a bomb was thrown at Napoleon III. It was found that it had "Made in Birmingham" on it. It was believed to have been thrown by a follower of Mazzini. A grave diplomatic incident arose. Lord Palmerston, who was not easily frightened, decided to introduce legislation which limited to a very slight degree the right of asylum in this country. His government fell on that principle. It was replaced by the government of Lord Derby, and that, for the time being, was the end of that. We have a tradition of which we should be extremely proud. I do not want to add to the eloquent words of my noble friend Lord McNair and the right reverend Prelate the Bishop of Manchester, or to the telling point just made by the noble Lord, Lord Monson, about the boat people, but I remind noble Lords opposite, who should not need to be reminded, of the traditions of this country which their party always claimed to preserve.

The Earl of Caithness

Like my noble friend Lord Campbell of Alloway and many others, I too was moved by the speeches which have been made, and particularly that of the noble Lord, Lord McNair, in moving the amendment. However, I believe that we must look at this matter with a very close eye. This amendment would create a wholly unreasonable expectation on the carrier—an expectation which is ultimately untestable. Indeed, it was the noble and learned Lord, Lord Denning, who said that carriers cannot be expected to make careful judgments on whether an individual passenger is or is not in grave or immediate danger. I have to agree with the noble and learned Lord.

It would be quite unreasonable to ask people at the check-in desk to try to do that. Further, how could that judgment be tested? It would mean that carriers would have to accept any passenger who claimed to be in danger simply to cover themselves. The carrier would simply have to say that he thought it was a reasonable assumption in order to relieve himself of any liability, and that would be very difficult to test after the event.

The nub of the problem is that we have become confused by what is meant by the term "grave and immediate danger". Those are the words which make this amendment so much wider in scope than Amendment No. 3, which the Committee has already rejected. Grave and immediate danger is not the criterion for refugee status which some Members of the Committee have indicated that it means. It is worth while reminding ourselves of the 1951 United Nations Convention, which states: A refugee is a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. The words "grave and immediate danger" and the cases that some Members of the Committee have given this afternoon are so much wider than that definition. Indeed, some of the cases mentioned this afternoon might have fallen within that definition; but that is something we have already decided in Committee. For this amendment to be accepted the words "grave and immediate danger" take the whole ambit of what we are considering much wider than the United Nations Convention on Refugees. It affects everyone who thinks they might be in grave danger or at risk. One can think of a number of countries—

The Lord Bishop of Manchester

I am grateful to the noble Earl for giving way. I cannot follow his argument. A well-founded fear of persecution would include "grave or immediate danger". I would regard that as being wider than "grave or immediate danger". Perhaps the noble Earl can explain how these two are related, because "grave or immediate danger" is certainly comprehended in the words he quoted from the United Nations Convention on Refugees.

The Earl of Caithness

This is where I beg to differ with the right reverend Prelate, if I may be permitted to do so. The words "grave and immediate danger" are not the criteria for refugee status that I read out. Although one has deep sadness and regret that many countries are involved in civil wars or, in some instances, have been invaded by opposing forces, people in such countries might consider themselves to be in grave or immediate danger; for example, in Afghanistan, certain areas of the Far East or, indeed, in Beirut. They do not necessarily constitute being potential refugees within the definition of the United Nations Convention. That is the important point that I believe has become confused this afternoon.

Lord McNair

I do not think I used the word "refugee" in my speech. I am speaking about people who are in grave or immediate danger.

The Earl of Caithness

What I am saying is that that is much wider than the United Nations Convention. We have already decided on that. The amendment is wider and I cannot recommend the Committee to accept it. It would create an expectation that carriers could make judgments or assumptions that they are clearly not in a position to make. Furthermore, that decision having been made it would be extremely hard for it to be properly tested. Consequently this amendment gives enormous scope for abuse and I am sure that is something the Committee do not want.

Lord Monson

The noble Earl has not answered the point I made about the Vietnamese boat people. If the master of a vessel comes across a boat with 40 refugees in it who are still alive, is he to risk a fine of £40, 000 or is he to sail on? I suspect he would probably do the latter.

The Earl of Caithness

In such a case there is the law of the sea and there is also the discretion of my right honourable friend the Home Secretary which is built into the Bill. The noble Lord, Lord Monson, referred to the Vietnamese boat people, and the Government can be justifiably proud of their record in that respect. Indeed, I hope that in the not too distant future there will be another announcement which will please the noble Lord, Lord Monson. Therefore I do not believe that the amendment affects the position outlined by the noble Lord. As I said, the amendment widens the scope for abuse.

Lord Donaldson of Kingsbridge

I must take up the Minister on that. It is a question of the meaning of words. There is no ill-intention involved. To say that someone is in immediate danger is a narrower provision than to say that he is in danger of persecution if he goes home. It is a narrower definition. Many refugees who, if they went home, would be in danger are not in danger now. Therefore to my mind the argument put forward by the noble Earl is entirely wrong.

The Earl of Caithness

I regret to say that to my mind the argument is entirely right. I disagree with the noble Lord. This is where we must both agree, as non-lawyers, that we need a lawyer to be present.

5.30 p.m.

Lord Mishcon

He appears! A great many speeches have been made on this amendment, of which if I may humbly say this as an ordinary Member of this Chamber, I shall always be proud when I remember this Bill. If I may say so it was the House of Parliament at its best, because it was realistically expressing our people's great traditions. I entirely agree with the noble Viscount, Lord Tonypandy, that our people feel that enough is enough with regard to immigration. I do not know that that is a happy situation for any civilised country to put up with, remembering the old wish of Ernest Bevin: that he would live to see the day when passports were unnecessary and people could go where they wanted. We all know that that is a Utopia still far removed from our vision.

Our people in saying, "Enough is enough" will never turn their backs on those who are in genuine fear of their lives and of danger. The noble Earl said that we had to keep a close eye on this amendment. I know that he will forgive my saying that he appears to have kept a closed eye on this amendment, because he has not seen the wood for the trees.

To advance on behalf of the Government an answer to this plea on behalf of those who are in immediate and real danger of their lives, "Oh well, that is a very much wider concept", as has already been pointed out, "than 'the genuine fear of persecution' ", is to turn logic and words on their heads.

I can walk abroad and say that I am in fear of persecution. Many people have a persecution complex. They feel that they do not obtain positions that they should because of persecution. They think that they do not receive rewards that they should because of persecution. There is no doubt that when someone is convinced, as the carrier will have to be, that there is a genuine fear of danger to life or immediate danger, that imposes a much narrower concept than the definition at which we have been looking in the convention. I was surprised that the noble Earl quoted it, because I thought that it was something that he would leave out of his argument upon the basis that we have to admit many refugees, who are not genuinely in immediate fear of danger or death, by virtue of the fact that we are bound by the convention, which has a much wider definition than the proposal we are considering.

I hope that we shall be realistic about this. When such words are used, everyone knows that in most cases it will not be an individual case; it will arise because officials of the carrier company are well aware that a dangerous crisis has arisen with regard to a section of people. If we do not pass this amendment, there may be an official, very likely a junior official, who is convinced of the truth of the case of those who are banging at the door—one can well imagine it at a ticket office—and begging to be allowed in in order that they and their families may be saved. Some of them may push their families in front of them and say, "Don't take me, but take my children". That official will have to take the responsibility if this amendment is not carried. He will not be able to get hold of the chairman or the managing director of the company. He will have to say, "Am I going to get the sack if I admit these 20 people? I do not have £20, 000. My company will be landed with a £20, 000 penalty. I do not have the money. I would willingly give it if I had it. Will my company sack me? They will point out that this was not an exception in a Bill when it went through the English Parliament—the British Parliament." I looked at the noble Viscount, Lord Tonypandy, who was angry with me for a moment, but ultimately I said "the British Parliament".

Unless we pass this amendment, that would be a responsibility that could not be taken on by an official. The door will be barred. The noble Lord, Lord Campbell, then came back once more with the illogicality, with which he is not usually associated, of mixing up carrier and passenger.

The Bill does not say that everyone carried whom the carrier believes to be in fear of grave or immediate danger shall be admitted by the United Kingdom. It merely prevents a carrier being fined if he carries such a person in that genuine belief.

I have an idea that this is an amendment that appeals to the mind, and rather more particularly to the heart, of everyone in the Committee. I am sure that it is with that feeling of conscience that we shall face the Division.

The Earl of Caithness

May I—

Lord Mishcon

If the noble Earl is stopping me to say that there is no need for a Division, I am delighted to give way.

The Earl of Caithness

No. I do not go that far. The noble Lord would not expect me to withdraw what I firmly believe and what I have said to him. Does he agree that the case he advanced, of a sudden crisis blowing up and people coming to the airport, is a matter on which the Government, rather than the carrier, should take the initiative and say, "Yes, we agree that there is a crisis: we will use the discretion that is provided for the Home Secretary"? The onus is on the Government, not on the carrier.

Lord Mishcon

I wish crises took place in the world in a way which gave the ambassador to the country concerned (on the basis that we had an ambassador there, and had not withdrawn him because of what was happening in that country) time to communicate with the Foreign Office; that the Foreign Office had time to communicate with the Home Office; that the Home Office had time to communicate with all the carriers in that country and that those carriers had time to communicate with their junior officials and say, "We have heard from the United Kingdom Government. You can now let these people go". Crises do not occur in that way. I wish to Heaven that they did!

Lord Campbell of Alloway

Before the noble Lord sits down, does he accept that by this amendment, whether it be right or wrong, he is extending the convention commitments of Her Majesty's Government beyond that convention? Does he appreciate that my noble friend the Minister was totally right when he said that, under our international obligations through that convention, which are accepted reciprocally by the other signatory states, it is for the Secretary of State and not for the carrier to exercise his discretion? What the noble Lord is doing by this amendment is pre-empting the whole situation. Although there is a sound humanitarian background and a good case has been made, does he accept that as a matter of reality he is vastly extending Her Majesty's Government's obligations under public international law?

Lord Mishcon

The noble Lord is, most unusually, mentally confused. If it be as a result of my having talked to your Lordships for too long, I humbly apologise to him. His mental confusion is in the following direction: first, as the noble Lord, Lord McNair, said in a clear intervention, he was not necessarily talking about refugees as described in the convention; he was talking about people who stand in grave or immediate danger, as mentioned in the amendment.

Secondly, the confusion which the noble Lord insists upon injecting into this place (I do not think that the Committee will accept it) is that he is talking about the duty of countries which have signed the convention to admit people as refugees. That is not this Bill. If this Bill dealt with refugees, the Committee would have many amendments before it which I believe the Committee would want to have before it. They are not before it because the Bill does not deal with the admission of refugees; it deals with the penalties upon carriers. That is the complete answer to the noble Lord. I hope he will accept it as such.

Lord Campbell of Alloway

I accept that as no answer at all. It misses the whole point.

Lord Mishcon

If I have missed the point, in spite of the fact that I may be imposing upon the patience of the Committee as the noble Lord will do, I invite him kindly to make the point that I have not answered.

Lord Campbell of Alloway

It is precisely the same point in the same form that was made already. In the circumstances of the debate, the noble Lord has not appreciated it.

Lord Mishcon

Those vague words are not worthy of the noble Lord.

5.40 p.m.

On Question, Whether the said amendment (No. 7) shall be agreed to?

Their Lordships divided: Contents, 83; Not-Contents, 117.

DIVISION NO. 2
CONTENTS
Airedale, L	Birk, B.
Amherst, E.	Bonham-Carter, L.
Ardwick, L.	Bottomley, L.
Attlee, E.	Broadbridge, L.
Aylestone, L	Brockway, L.
Banks, L.	Bruce of Donington, L.

Buckmaster, V.	Lloyd of Kilgerran, L.
Burton of Coventry, B.	Lockwood, B.
Caradon, L.	McNair, L. [Teller.]
Carmichael of Kelvingrove, L.	Manchester, Bp.
Carter, L.	Mayhew, L.
Chitnis, L.	Meston, L.
Cledwyn of Penrhos, L.	Mishcon, L.
David, B.	Molloy, L.
Davies, L.	Monson, L.
Dean of Beswick, L.	Morton of Shuna, L.
Diamond, L.	Nicol, B.
Donaldson of Kingsbridge, L.	Oram, L.
Ewart-Biggs, B.	Peston, L.
Ezra, L.	Pitt of Hampstead, L.
Falkland, V.	Ponsonby of Shulbrede, L.
Foot, L.	Prys-Davies, L.
Galpern, L.	Rea, L.
Graham of Edmonton, L. [Teller. ]	Ritchie of Dundee, L.
	Robson of Kiddington, B.
Greenway, L.	Rochester, L.
Grey, E.	Ross of Marnock, L.
Hampton, L.	Seear, B.
Hanworth, V.	Silkin of Dulwich, L.
Harris of Greenwich, L.	Simon, V.
Hatch of Lusby, L.	Stedman, B.
Hooson, L.	Stewart of Fulham, L.
Houghton of Sowerby, L.	Stoddart of Swindon, L.
Howie of Troon, L.	Tonypandy, V.
Hunt, L.	Tordoff, L.
Hylton, L.	Underhill, L.
Irvine of Lairg, L.	Wallace of Coslany, L.
Jacques, L.	Walson, L.
Jeger, B.	Wells-Pestell, L.
John-Mackie, L.	Willis, L.
Kilbracken, L.	Winterbottom, L.
Kilmarnock, L.	Ypres, E.
NOT-CONTENTS
Abinger, L.	Fortescue, E.
Alport, L.	Fraser of Kilmorack, L.
Ampthill, L.	Gainford, L.
Bauer, L.	Glanusk, L.
Beaverbrook, L.	Glenarthur, L.
Beloff, L.	Goold, L.
Belstead, L.	Gray of Contin, L.
Bessborough, E.	Gridley, L.
Blyth, L.	Hailsham of Saint Marylebone, L.
Brabazon of Tara, L.
Brougham and Vaux, L.	Harlech, L.
Broxbourne, L.	Harmar-Nicholls, L.
Bruce-Gardyne, L.	Hesketh, L.
Buckinghamshire, E.	Holderness, L.
Butterworth, L.	Hood, V.
Caithness, E.	Hooper, B.
Cameron of Lochbroom, L.	Hylton-Foster, B.
Campbell of Alloway, L.	Johnston of Rockport, L.
Campbell of Croy, L.	Kimball, L.
Carnegy of Lour, B.	Kinnaird, L.
Carnock, L.	Lane-Fox, B.
Cathcart, E.	Layton, L.
Coleraine, L.	Long, V.
Colville of Culross, V.	Lucas of Chilworth, L.
Cottesloe, L.	Lyell, L.
Cowley, E.	Macleod of Borve, B.
Cox, B.	Marley, L.
Davidson, V. [Teller. ]	Marsh, L.
De L'Isle, V.	Massereene and Ferrard, V.
Denham, L. [Teller. ]	Maude of Stratford-upon-Avon, L.
Denning, L.
Dilhorne, V.	Merrivale, L.
Dundee, E.	Mersey, V.
Ebbisham, L.	Milverton, L.
Eden of Winton, L.	Monk Bretton, L.
Elibank, L.	Mottistone, L.
Elliot of Harwood, B.	Mountgarret, V.
Elliott of Morpeth, L.	Munster, E.
Elton, L.	Murton of Lindisfarne, L.
Erroll of Hale, L.	Newall, L.
Faithfull, B.	Nugent of Guildford, L.
Ferrers, E.	Orr-Ewing, L.
Ferrier, L.	Pender, L.

Plummer of St Marylebone, L	Sudeley, L
	Swinfen, L.
Portland, D.	Terrington, L.
Rankeillour, L.	Teviot, L.
Reigate, L	Teynham, L.
Renwick, L.	Thomas of Swynnerton, L.
Rugby, L.	Trafford, L.
St. Aldwyn, E.	Tranmire, L.
St. Davids, V.	Trumpington, B.
Saltoun of Abernethy, Ly.	Vaux of Harrowden, L.
Sandford, L.	Vickers, B.
Sempill, Ly.	Whitelaw, V.
Shannon, E.	Windlesham, L.
Skelmersdale, L.	Wise, L.
Strange, B.	Wyatt of Weeford, L.
Strathcarron, L	Wynford, L.
Strathspey, L.	Zouche of Haryngworth, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.48 p.m.

[Amendments Nos. 8 and 9 not moved.]

Lord Mottistone moved Amendment No. 10: Page 1, line 24, at end insert— ("() No liability shall be incurred under subsection (1) in respect of any person not carried voluntarily.").

The noble Lord said: I attempted to expedite the work of the Committee by moving Amendment No. 10 with Amendment No. 6. However, the noble Lord, Lord Mishcon, did not like it; and the Minister did not reply. I shall therefore very briefly present the amendment to the Committee again.

The function of Amendment No. 10 is to deal with the point raised in Amendment No. 6. However, it also covers the situation which might arise when there are stowaways or people smuggled on board ferries without the knowledge of the carrier in the backs of cars or lorries. It does not seem reasonable that there should be an automatic liability on the carrier that he may be fined for carrying such people when he has had absolutely no control over their entry into his ship or aircraft. Therefore this amendment, simple as it is, is worthy of inclusion in the Bill. I beg to move.

Lord Campbell of Alloway

I oppose this amendment because if a carrier has a person on board not carried voluntarily in the sense that he is a stowaway who has paid no fare, I do not understand why his presence should not be discovered on arrival in the United Kingdom by the ship or by aircraft before he disembarks by the very type of routine check of tickets issued which any passenger has to produce before he is allowed to leave the ship or aircraft or indeed to leave the office accommodation of the carrier in the United Kingdom. I do not understand why there should be no obligation upon the carrier to carry out the form of routine checks which should be done with the safeguards to ensure compliance with Clause 1.

But there is an injustice. I ask my noble friend the Minister whether this can be considered, although I oppose the amendment as such. The injustice is that if the carrier has used all reasonable diligence (and can satisfy the Secretary of State that he has done so) to conduct that sort of check as is envisaged to ensure compliance with Clause 1, and the wily stowaway has evaded the checks and has evaded detection then (speaking personally only for myself) it seems that the carrier ought to be excused and there ought to be no liability. But that is not what this amendment proposes. That is one thing. But it is quite another to suggest, as the amendment proposes, that because a person is not carried voluntarily, the carrier should be able to land him without liability in the UK under Clause 1.

We have touched upon the deportee situation before to some degree. Is a deportee a person not carried voluntarily? It is thought not, except where the carrier is subject to an order from a foreign court where the carrier, for example, in some of the Iron Curtain countries is a state carrier which is obliged to follow the orders it is given. This has been raised in another amendment which the Committee has already considered.

Where the carrier is subject to an order from a foreign government—again, because such a person is not carried voluntarily—there is, nonetheless, no reason why he should be landed in the United Kingdom without liability under Clause 1—having regard to the matter on which the noble Lord, Lord Mishcon, and I had a somewhat inconclusive discussion a moment ago that save by convention or treaty the government of one sovereign state is not, according to the comity of nations, obliged to recognise the order of another foreign state.

The amendment was first circulated by the General Council of British Shipping on 3rd March 1987. If accepted by the Committee, it would permit stowaways and deportees to be landed in the United Kingdom by carriers. It would or could in effect work much mischief. Therefore I respectfully suggest that it is not acceptable.

Lord Denning

Is not the short answer to this amendment that the Minister can deal with it at his discretion and would remit any fine?

The Earl of Caithness

As my noble friend who moved this amendment has said we have already discussed a somewhat similar amendment to remove responsibility from carriers who were obliged to carry a passenger as a result of the order of a foreign government and some of the arguments are the same. The noble Lord, Lord Mishcon, added one of his own when we discussed it earlier when he said he did not like Amendment No. 10. It would be unsatisfactory to leave such a saving in this legislation. It would not be right for a carrier to be able to claim that he was required to carry a passenger when it might be very difficult indeed to substantiate such a claim. How would it be possible to know after the event the basis of the requirement, who issued the instruction, whether it had or could have been challenged, or what the alternatives were? It would be a recipe for dissension and dispute as it would require a very difficult subjective judgment to be made; namely, was the carriage voluntary? It appears to be enough under the terms of the amendment for the carrier to do no more than state that the passenger was not carried voluntarily for responsibility to be removed. Indeed, it might be enough for the carrier to argue that if he had known the true status of the passenger he would not have carried him so that the carriage was indeed not voluntary. A blanket provision like this creates too dangerous a loophole since it can take no account of individual circumstances.

Nor do I think that we should be accepting that the carrier can do nothing to deter stowaways. Certainly it would be very hard always to distinguish at the immigration desk the difference between a passenger who may have destroyed his ticket and a stowaway, particularly when ferry companies find it difficult to produce passenger lists.

These are matters which need to be considered in the light of the particular circumstances of the case. There may of course be circumstances when a carrier is obliged to carry a passenger by another government's authorised agencies and we accept that the carrier had no reasonable option but to comply. There may also be circumstances where it would be unreasonable to charge a carrier for a stowaway because, for example, we are satisfied the carrier had done everything reasonable to ensure he only brought in people authorised to use his service. If so, I assure the Committee, particularly my noble friend Lord Campbell of Alloway who raised this matter, that my right honourable friend the Home Secretary would use the discretion available and would consider not imposing a charge. This is a matter, as the noble and learned Lord, Lord Denning, so succinctly put it, where discretion rather than legislation is the best course because the circumstances are central to the decision.

While I cannot recommend these amendments, I assure the Committee that the Government fully recognise the concerns of the shipping companies. We have had a number of meetings with their representatives to go through the detail with them. My right honourable friend the Minister of State has seen them and senior members of the immigration service have had a number of meetings with them and offered written advice and guidance. Such guidance is readily available to the airline companies and we are ready to use discretion sensibly when it would be clearly right not to charge a carrier and to take careful account of any representations they may make.

At this stage I divert from the amendment to pay tribute to the immigration service. Whether or not one agrees with the principles of the Bill, the immigration service has gone out of its way to be as helpful and co-operative to the carriers, to give them as much advice by means of video recordings, letters and other methods to make sure that when the Bill becomes an Act, as I hope it will shortly, it will operate as smoothly as possible. I believe the whole Committee would like to join me in paying tribute and giving thanks to the immigration service for the job that it has undertaken recently.

In the circumstances I have described and with the example given by the noble Lord, Lord Mishcon, I fear that I cannot recommend acceptance of the amendment. I know that it will be a disappointment to my noble friend, but I really cannot accept it.

Lord Mottistone

I am most grateful to my noble friend the Minister for giving such a full reply on this amendment and for covering all the ground and the points raised by my noble friend Lord Campbell of Alloway, whose support on a particular point I much appreciated even if he disagreed with practically everything else.

It is reassuring to hear not only that the Secretary of State will use his discretion in appropriate cases such as stowaways and presumably people who are smuggled in the backs of cars but also that the immigration service is now taking such trouble to help the carriers. It is probably fairly easy for the airlines in the broad sense but it will be an enormous load for the ro-ro ferries which unfortunately will have to adjust to this. However, having said that, my noble friend's answer is satisfactory and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6 p.m.

Lord Mishcon moved Amendment No. 11: Page 1, line 26, at end insert— ("() The Secretary of State shall by Order in Council establish an appeal tribunal to which carriers found liable to a penalty under this Act may appeal.").

The noble Lord said: On so many occasions this afternoon mention has been made by the Minister and others—

certainly the noble and learned Lord, Lord Denning, has mentioned it—that one has to leave to the discretion of the Secretary of State whether or not a penalty is to be exacted. Instances have been given where it is thought that the Secretary of State would exercise his discretion in a proper manner.

When we have considered the question of a penalty being imposed we have always taken the view that there should be a right for the person against whom the penalty is charged to appeal. When I put down this amendment, I wondered what would be the appropriate place to address such an appeal. I flirted with the idea, which I believe was raised in another place, of a county court being the appropriate place. It seemed to me that once one puts a civil court in charge of an appeal of this kind the limitations would normally be that the Secretary of State had not exercised his discretion in a proper manner or that he had not gone through the proper procedural steps. Judges do not like—and there is a whole line of precedents in regard to this—to substitute themselves for the user of the discretion vested in Parliament so far as concerns a Minister.

I therefore moved away from the idea of the civil court and putting the judge as a substitute for the Minister to exercise his discretion and I felt that there ought to be a tribunal. Then I said to myself that it is not very sensible to set up a special tribunal to deal with a few appeals—one hopes there would have to be only a few appeals—that might take place in the course of a year. So my final decision was this, and I hope the Committee will think it to be a sensible and reasonable one: there ought to be a right of appeal.

The Government most likely have thought about this and may well decide to put forward, if there is to be an appeal, an appropriate tribunal, an appropriate couple of people whoever they may be who would have independent minds on this matter. I thought that the sensible thing to do would be to put down this amendment at Committee stage as a probing amendment, leaving the Minister of State to reply by telling us why he thought, if that was his view—I hope it is not—there should not be any appeal at all; or constructively to tell us that if there is to be an appeal then a certain body may be an appropriate one in which this appeal right should be invested.

Before I sit down I should like from these Benches to join in the tribute the Minister paid to the immigration service. Many—indeed most—of the officials of the immigration service are kindly and courteous. I know that the Minister will agree with me that the minority against whom from time to time complaints are made are very much a minority. One wants to see that minority become smaller still as the years go by.

If this Bill finds its place in the statute book—and the Minister will have a chance to deal with this point, if not at this stage then at another stage if such a stage is reached—I hope that the Secretary of State himself will see that, in regard to all the matters that have been mentioned where sympathetic consideration has been given by the Government because they see that there can be hard cases, guidelines will be given to the immigration service so that when officials have to come to a decision with regard to a carrier or indeed make a recommendation, this will be done upon lines that at least would meet with the approval of the Committee, having regard to the various matters we have raised this afternoon.

Lord Campbell of Alloway

With respect to the noble Lord, Lord Mishcon, who puts this forward as a probing amendment, perhaps I may briefly suggest to him that no appeal to a tribunal is necessary, and for this simple reason. Here you have the Secretary of State. It is true that he must exercise his discretion but it is also true that he must exercise it in accordance with the principles and the basic concept of natural justice. If he does not do that then the Divisional Court will set aside the exercise of the discretion.

This amendment reflects, I think, an amendment proposed by the General Council of Shipping on 23rd March 1987. At that time it was suggested that it would be an appeal to a court. It is now proposed that there should be an appeal to a tribunal. With the greatest respect, is it not very much to be doubted whether an appeal is necessary?

Lord Walston

I should like briefly to support this amendment and to express my hope that the noble Earl will at least say that he will consider it sympathetically and carefully.

We all know that the Secretary of State has discretion. We also know that the present Secretary of State is a man of the highest integrity and intelligence, as his predecessors have been and as undoubtedly his successors will be. But we also know as realists that in a minor matter of this kind—and in a great department of state like the Home Office this is a minor matter—when we say it is the Secretary of State who has the discretion it is not the Secretary of State who studies the papers, who looks at the passport to see if a reasonable man might have detected it as a forgery. It is not even a permanent secretary, a deputy secretary or probably not even an assistant secretary. It is done on the word of the immigration officer, the officer on the spot. I have no personal experience but I am sure that the noble Earl and my noble friend Lord Mishcon are right in paying tribute to the efficiency and integrity of immigration officers. However, they are not necessarily the wisest or the most balanced people to decide matters of this kind.

I believe that the Home Secretary has said that an aggrieved carrier would always have the right of appeal to the courts. I am sure that that is correct. But for a carrier to appeal is cumbersome and time-consuming, even to a court of a fairly low level. The chances are that in many instances a carrier who thinks he has been aggrieved and wrongfully fined his £1, 000 will say, "Well, it is gone now. It is not worth going to the expense, possibly losing, possibly winning; it takes a long time", and so on.

A tribunal seems a much better way. It is simpler; it is more informal; it is less costly. It enables the carrier who feels aggrieved to know that he is not being fined simply on the say-so of some relatively junior official, to which the imprimatur of the Minister of State or Secretary of State is then attached but that there is an entirely independent and unbiased tribunal to which he can go. I hope that the noble Earl will at least say that he feels there is something worth considering here.

Lord Denning

I hope that this amendment will not be accepted. Although, in most cases that are justiciable, I would be in favour of an appeal, this is a special jurisdiction. This has been emphasised by the number of times today that we have said that it is at the discretion of the Minister whether to enforce the fine or not.

All these matters are discretionary in so far as they deal with immigration. I should like to recite part of a judgment of the noble and learned Lord, Lord Templeman, only this year in an asylum case. The noble and learned Lord said: Applications for leave to enter and remain do not in general raise justiciable issues. Decisions under the Act are administrative and discretionary rather than judicial and imperative. Such decisions may involve the immigration authorities in pursuing inquiries abroad, on consulting official and unofficial organisations and in making value judgments". That is just the case that we are considering—whether to enforce the £1, 000, or, discretionarily, to disallow it.

It may involve inquiries abroad from our consular officers and the like whether it should be enforced or remitted. It is really not a justiciable issue which should go before any appellate tribunal, whether it is the county court or any other tribunal.

The reserve power of judicial review in the High Court is available in case of unfairness, procedural irregularity or otherwise unlawful action. There is that reserve power. It is hardly every brought into play but it is there.

Apart from that—I think it has been mentioned before—there is the reference on occasion to the United Kingdom Immigration Advisory Service. That may do away with the necessity for any appeal at all. On the whole I hope that the Committee will not accept the amendment and that the matter be dealt with in the manner I have suggested.

Lord Walston

Surely the appeal would not relate to whether an immigrant should be allowed in or not, or whether he is a refugee or not. The appeal would relate simply to whether the carrier was reasonable or not in thinking that the passenger had a valid document. with great respect, I should have thought that that was a justiciable matter, and certainly one that a tribunal could decide upon rather than having a fiat from the bureaucracy at a fairly low level.

6.15 p.m.

The Earl of Caithness

May I first be permitted to answer one point of the noble Lord, Lord Mishcon, and confirm to him that guidelines will be issued to the immigration service. I am grateful for his kind words, and I shall make sure that they are passed on to the immigration service who equally will be very grateful for his support.

This amendment would in effect remove an important element of the Secretary of State's discretion from where it rightly resides with him to another body. It would allow an appeal tribunal to substitute its own judgment on the use of the Secretary of State's discretion for that of the Home Secretary. The amendment is unnecessary if its purpose is to ensure that questions of fact arising under the Bill may be determined by an independent body. This is because if liability is identified and the Secretary of State decides to make a charge, the carrier can decide not to pay because he believes that no liability arose under the legislation: for example, the passenger in question was a British Citizen, or the falsity of a document was not reasonably apparent.

If the Secretary of State still wishes to recover the debt he would have to take action through the county court, who would be able to decide whether or not a liability existed under the legislation. The carrier therefore has an opportunity to make a case to the court if he considers he is not, in fact, liable to a charge. Although the noble Lord, Lord Walston, said that this is cumbersome and time-consuming for the carrier, so, too, is it cumbersome—on the noble Lord's basis—and time-consuming for the Secretary of State is he wishes to go there. But, surely, the county court is the right place to go.

The amendment is also unacceptable since, as drafted, and perhaps as intended, it would substitute a tribunal's judgment on matters of discretion for that of the Secretary of State. We believe that it would be quite wrong for a tribunal to try to replace its own judgments for those of the Home Secretary on whether discretion should be exercised in any particular case notwithstanding that a clear liability existed.

The noble Lord, Lord Mishcon, took the Committee through his thought process of where was the appropriate place for such an appeal. Surely the right place to challenge the Home Secretary on the exercise not only of his judgment but of his compassion is, if thought necessary, this House.

Lord Mishcon

I am wondering upon which side of the House the noble Earl will be answering such a question in the future. I would assure him that this Front Bench is a very comfortable one, and he would occupy any position on it with distinction and grace.

I turn immediately to the noble Earl's answer and to the other contributions made in the debate. I tried to make it clear—I hoped that I had done so—that many instances have been raised this afternoon in various amendments where a carrier might feel aggrieved. He light feel aggrieved because of the grave circumstances in which the passenger approached him. He might feel aggrieved because his official, while being as efficient as one would reasonably expect, genuinely thought that documents that were shown to him were in order. He might feel aggrieved at the penalty being exacted because the situation of the person concerned made him feel that he was a genuine refugee. That may turn out to be wrong, or, indeed, it may turn out to be right. But still, as the Bill now stands, the Secretary of State in his discretion might exact the penalty.

We are thinking not only of one passenger. It could be a group of passengers, and so the penalties might be heavy although the facts were the same. There might be a group of 20 passengers with penalties exacted of £20, 000. In Parliament we are in the habit, as I understand it, where any administrative act occurs and penalties are exacted, of being able to appeal against them.

I am answered by the statement of the noble and learned Lord, Lord Denning, that the courts have the power of a judicial review. I tried—I apologise if I did not make this clear—to say that the answer to that, as the noble and learned Lord so rightly said, was that on an application for judicial review one has to show, by and large, that the discretion has been wrongly exercised or that the Secretary of State did not go through the motions that he should have done. I am trying to cover the point where one would not be able to show to the satisfaction of the court that the discretion was wrongly exercised so that nobody could reasonably come to that decision.

In most cases the Secretary of State would have gone through the right motions. I merely tried to find a place where a perfectly respectable carrier, facing what may be a heavy penalty—it may be 20 passengers; £20, 000—wants to say that the Secretary of State has in this case unjustly imposed a penalty. He will not be able to obtain that remedy from the High Court on a judicial review for the reasons that I have just stated. All he asks to be able to do is to go to some independent body. If it says, "No, you are wrong; on the facts we feel that the decision was right", he must pay a penalty.

In his reply the Minister also said that if the carrier thinks it is unjust he can say that he will not pay and leave it for the Secretary of State to sue him. It is my reading—and if I am wrong I apologise to the Committee and stand to be corrected—that the Secretary of State under the provisions of this Bill will say that he has exercised his discretion and that under Clause 1 or 2 of this Bill, whichever it may be, he is entitled to exercise his right to impose a penalty; and he will sue, as a civil debt, for the sum of £ 1, 000. I do not think that a defendant would be heard in the court, if the Secretary of State sues in that way, as he will, to say, "Please, judge, I want you to try this case again. I now rely upon your discretion and not that of the Secretary of State".

Lord Campbell of Alloway

With respect, I think that the noble Lord has it slightly wrong. The carrier can simply not pay. Leaving aside the question of discretion as to whether the prescribed sum is imposed, the carrier can say to the court, "Look at Clause 1(2); look at Clause 1(4); by virtue of those, look at the evidence. The Secretary of State should not have imposed anything at all". Therefore there is a safeguard, quite apart from the exercise of the discretion of the Secretary of State. The sum would, by judicial interpretation of the statute, be rendered irrecoverable.

Lord Mishcon

I am grateful to the noble Lord, who obviously intended to assist both me and the Committee by his observations. I respectfully differ where it is purely a case of discretion—I notice that the noble and learned Lord, Lord Denning, is nodding his head and I take that to be a mark of approval of my submission. I think that it would be a matter of the carrier being unable to question whether the Secretary of State had exercised his discretion in the way that the carrier thought he ought. If the Secretary of State had exercised that discretion in an honest way (if I may put it in that way) there would be no answer to a county court or High Court action for the penalty. Again, I am encouraged by the fact that the noble and learned Lord has nodded his head. It is something that I used to look for in the Court of Appeal but found all too infrequently when I was the appellant.

Obviously there are matters which must be considered in the light of what the noble Earl has said. I am hoping that between now and Report stage he will give further consideration to the points that have been made. If he does that, we might be able to agree upon a sensible tribunal. I must reconsider this matter and in those circumstances I ask leave to withdraw the amendment at this stage.

Lord Airedale

Before the noble Lord withdraws the amendment, is it not a curiosity of this Bill that the penalty is so absolutely rigid? It must be £1, 000 or such other sum as the Secretary of State states by statutory instrument. He is not allowed to say that there are some mitigating circumstances and that he will not exact £1, 000 but will make it £500. I am surprised at the absolute rigidity of the penalty in this Bill.

Lord Mishcon

I have a doubt in my mind as to whether it would not be within the power of the Secretary of State, where in an Act of Parliament he has a penalty of £1, 000, to say that he will not exact the whole amount but will ask for only £500. I think that if he has the power to exact a penalty of £1, 000 it would be perfectly proper for him to exact a lesser sum. However, I am most grateful to the noble Lord for pointing out something which deserves consideration between now and Report stage.

Amendment, by leave, withdrawn. Clause 1 agreed to.

Clause 2 [Short title, interpretation, extent and commencement]:

Lord McNair moved Amendment No. 12:

Page 2, line 11, leave out ("4th March 1987") and insert ("the passing of this Act").

The noble Lord said: This is another probing amendment. One does not like Bills becoming effective before they have been through Parliament. However, one knows that that happens; for example, when the tax on alcohol and petrol was increased. I tabled this amendment in order to enable me to ask the noble Earl how many carriers, if any, have since 4th March been informed that they will be fined when the Bill becomes law? On how many such occasions has he exercised his descretion and refrained my doing so?

I should have given the noble Earl notice of this question and I shall fully understand if he does not have the answer on the spot. It will be quite sufficient if he prefers to write to me.

The Earl of Caithness

I am grateful to the noble Lord, Lord McNair, for moving this amendment. Unfortunately I could not find the paper but I now have it to hand. The date in question is 5th March and not 4th March. Since then there have been over 600 notifications. If the Bill receives Royal Assent we shall follow up the notifications with request for payment. However, it will then be open to carrying companies, as it is now, to make representations that the charges should not be levied in individual cases.

Once again, I can assure the Committee that each case will be carefully considered in the light of such representations. I can tell the noble Lord, Lord McNair, that in 100 other cases we have decided that, in all the circumstances, it would not be sensible to make a charge. In most of those cases, covering letters have not yet been sent. I believe that that shows how careful the Home Secretary is to exercise the discretion and that he has already done so.

6.30 p.m.

Lord Mishcon

I add a protest, which is a common one in your Lordships' House, against any retrospective legislation. I ask the Minister to consider between now and Report stage not only whether the notifications should be followed up by exacting a penalty, but whether, in view of the discussions that have taken place both in another place and in your Lordships' House, it would not be just to say before this legislation reaches the Statute Book—if it ever does—that it will take effect as from the Royal Assent and certainly not from the date which is anticipated: namely, 4th March 1987?

We do not like retrospective legislation. In spite of any announcements which may be made at the time, such an announcement has to be made in vague circumstances where one does not know how the legislation will eventually turn out. Again, I invite the noble Earl to consider this point between now and the next stage of the Bill. I assume that I have the right to say that we shall study what has been said in the meantime and we ask leave to withdraw this amendment.

Lord Campbell of Alloway

For the sake of the record, perhaps I may say merely that the Bill as it stands appears to me to be wholly appropriate. There is every justification in this case for the retroactive effect since the carriers have been put on notice at all material times. I cannot understand the merit of giving carriers acting in contravention of Clause 1 a free ride for any period of time, however short.

The matter is covered where appropriate by the exercise of the discretion of the Secretary of State, as we have heard. Therefore I would respectfully suggest that the Bill as drafted and the way in which the system has been operated are entirely satisfactory.

Amendment, by leave, withdrawn.

[Amendment No. 13 not moved.]

Lord Walston moved Amendment No. 14: Page 2, line 14, at end insert— ("(5) This Act shall cease to have effect on 4th March 1988 unless the Secretary of State by order made by statutory instrument extends the effect of this Act for a period which shall not exceed 12 months.") (6) No instrument shall be made under subsection (5) above unless a draft of it has been laid before and approved by a resolution of each House of Parliament.").

The noble Lord said: The principle of this Bill has of course been accepted both by another place and by this Committee, but I think all noble Lords and most people in this country regard it as a regrettable necessity. It is a necessity according to the Secretary of State and government spokesmen, because of the exceptional circumstances which arose fairly recently and which necessitated some speedy legislation. I do not quarrel with that at all. It would not be right for me to do so at this stage at any rate.

I think most of us have expressed the hope that those circumstances will not by any means be permanent, that they will soon or in due course disappear and that therefore the provisions of this Bill will no longer be necessary. When that will be, none of us can tell, but again we all agree that we look forward to the day when we can return to our traditional role of having if not an open door at least a door whichis not firmly closed or as firmly closed as has been made necessary by this temporary situation.

For that reason, I suggest that rather than having this Bill in an absolutely permanent form which would have to be repealed eventually when times improve, it would be far better for it to run, as this amendment suggests, so that it shall cease to have effect on 4th March 1988, with full discretion to the Secretary of State: unless the Secretary of State by order made by statutory instrument extends the effect of this Act for a period which shall not exceed 12 months.

So it will always be open to the Secretary of State to come back to both Houses of Parliament to say, "The situation has not got any better; we still need the provisions of this Bill." Without any doubt, both Houses will listen to him and will accede to his request. But when the time comes, which we all hope will be soon, when this is no longer necessary the simplest thing in the world would be for the Secretary of State not to come back to the Chamber and to another place. The Bill would then automatically lapse.

I hope therefore that at least the principle of this amendment will meet with the approval of the noble Earl. We have not had much success with him so far, but now that we are reaching the end of the Committee stage I have hopes that in spite of his expression he may say there is something here which is worth considering.

Lord Campbell of Alloway

Unfortunately it is the very principle of the amendment which causes me to wish to oppose it, because this adopts the precedent from emergency legislation for ordinary legislation so as to treat this Bill, when it becomes an Act, as a temporary measure unless renewed. This pre-empts the traditional process by which any Act may be placed upon or removed from the statute book by the will of Parliament. I cannot see any justification for the departure from that basic principle.

Lord Hylton

Is it not the case that there is some degree or there was thought to be some degree of emergency because several hundred people managed to reach these shores from Ethiopia and Sri Lanka between December and February?

Baroness Seear

If there is no emergency, what justification is there for retrospective legislation?

The Earl of Caithness

The amendment as drafted would limit the life of the Bill to a maximum of two years, the second of which would be subject to further parliamentary approval. I cannot accept that this would be right or sensible. The Bill is neither novel nor experimental. There is no point at all in leaving carrying companies and indeed passengers in a state of uncertainty about Parliament's intentions next year.

The Bill is intended to form a permanent part of our immigration control, just like our carriers' existing liabilities for detention and removal costs. We are not unique in the world; there are other countries which have already got this legislation in place. At the end of last month my right honourable friend the Home Secretary had a very useful meeting in Europe when considerable interest was shown in what we were doing. It is likely that the same lines as ours will be followed if possible. So I see this very much as a longterm rather than a short-term measure.

Secondly, the Bill raises no issues of fundamental personal liberties or rights which would justify its being subject to parliamentary scrutiny after 12 months. The Bill is simply designed to help ensure that the requirements of the immigration rules, which Parliament has approved, are met. It does so by deterring carriers from bringing to our shores people who do not meet these requirements. There is nothing to be gained by looking at the whole matter again in a year's time.

I do not think it would be right, therefore, to put this Bill on a one-year basis, renewable for one further year only. I do not believe it contains anything that requires the continual parliamentary scrutiny and short life which this amendment proposes.

Lord Mishcon

I wonder whether the Committee remembers having read, if noble Lords read it, the speech with which the Secretary of State introduced this Bill at Second Reading in another place. I intend to read only the first two sentences of his speech which appears at col. 705 of the Official Report for 16th March 1987: The immediate spur to this proposal has been the arrival of over 800 people claiming asylum in the three months up to the end of February. So this is not a Bill about Tamils alone, or about Sri Lanka alone. It goes wider than that. Its aim is to make sure that our immigration control remains effective in the face of rapidly changing international pressures.". That presupposes not only that there is an immediate spur but that international pressures change. They change obviously in various ways. This amendment asks merely that year by year the question of how international pressures make such an enactment necessary should come before Parliament and that Parliament would decide whether or not this should be renewed.

Again, that is something which I should have hoped the Secretary of State would consider favourably, especially after the moving speech of my noble friend Lord Walston. Possibly we ought to hope that after reconsideration of the speech which the noble Lord, Lord Walston, made and the interventions which. have occurred since, he would have second thoughts. It is on that optimistic hope that I ask for leave to withdraw the amendment.

The Earl of Caithness

Before the noble Lord does that—I apologise for delaying the Committee—there is one point on which we should be clear. The noble Lord, Lord Mishcon, said that it gives us the opportunity to review this legislation year by year. It gives us the opportunity to review this legislation once, and extends it for a further 12 months.

Lord Mishcon

I am most grateful to the noble Earl because I think he has suggested a most sensible amendment that might be put down at Report stage. I am grateful to him for it and I in no way interpret his words as being a commitment to accept such an amendment. But as it so wisely came from his mouth I know that at least it will have his wise consideration.

I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Remaining clause agreed to.

House resumed: Bill reported without amendment.