Immigration (Carriers' Liability) Bill

HL Deb 12 May 1987 vol 487 cc545-75

3.9 p.m.

Report received.

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

Lord Airedale moved Amendment No. 1:

Page 1, line 15, leave out ("the sum of £1,000 or") and insert ("a sum not exceeding £1,000 or not exceeding")

The noble Lord said: My Lords, the penalty in the Bill is described as being "the sum of £1,000". In Committee your Lordships seemed to be of the opinion that it was £1,000 or nothing in every case. I ventured to suggest that that appeared to be a piece of rigidity and did not enable the Home Secretary to demand a penalty lower than £1,000 if there were extenuating circumstances. The noble Lord, Lord Mishcon, expressed the view that surely it must be open to the Home Secretary to demand a lower penalty in an appropriate case. I take that to be the Government's opinion. If that is so, why not say so in the Bill by using the conventional words?

The conventional method of drafting a maximum penalty is surely to say, "a sum not exceeding so much". Then the matter is perfectly clear. To abandon the convention means that people may be left in doubt as to whether they really are faced here with a maximum penalty or a fixed penalty. The amendment removes any ambiguity, and I beg to move.

Lord Mulley

My Lords, I should like to support the amendment and at the same time apologise to your Lordships for being unable to attend the Committee stage of the Bill. I hope, therefore, that I shall not be too guilty of repeating arguments already adduced. However, I am bound to tell your Lordships that a careful reading of the Committee proceedings proved disappointing. Although many eloquent speeches were made, it seemed that the Bill was being rushed headlong through this House—with all its defects both of principle and of practical working unrepaired—as happened in the other place.

It is unfortunate, although one knows how anxious governments are to complete their business, that this Bill should be one of those to be rushed through. It is wholly wrong that, on the one hand, there is this concept of a fixed penalty, as the noble Lord, Lord Airedale, said. but that later in the Bill the word "prescribed" gives the Secretary of State vast powers by statutory instrument to change the amount to any sum that he cares to think about.

The whole concept is one of placing on carriers an obligation that is properly that of the Government. The question of who shall, and who shall not, come into the country ought to be exercised by servants of the Crown under the jurisdiction of Parliament. It should not be left as the responsibility of individual carriers who may well incur substantial costs. I should have thought that the matter would give rise to considerable international difficulty in the European Community. I wonder whether the International Air Transport Authority has been consulted and what it has said. This is an additional obligation on the air carriers in respect of which substantial costs could be incurred. I wonder how well the exercising of this right on the territory of other sovereign states will go down among the international community. It seems to me that all this should be looked at very much more carefully.

Lord McNair

My Lords, I have a small point on this amendment but before raising it I must say how very sorry I am that the noble Lord, Lord Mulley, was not able to be present with us last Thursday. The point about this amendment concerns multiple landings. It seems to me that a carrier might well feel it right to bring 10, 20 or even 50 people of one category at one time. I cannot believe it is right that the carrier's fine should be multiplied by the number of passengers. This would be punishing him for one miscalculation—or perhaps one act of mercy—in a quite excessive way.

Had we time, I am sure the noble Earl would agree to look sympathetically at this problem. Even in the present somewhat feverish climate, I suggest that if he found it possible to do that it would gain him great credit.

3.15 p.m.

Lord Campbell of Alloway

My Lords, if the noble Lord, Lord McNair, looks at Clause 1, he will agree, I think, that there is no question of multiples because the maximum of £1,000—the liability to pay on demand—is related to a person; so it is as regards each person a maximum of £1,000.

As regards the point made by the noble Lord, Lord Airedale, my noble friend the Minister said rightly on the last occasion that the Secretary of State would have power under this wording (as indeed he has) to make a demand of a sum less than £1,000. That really is the scope of the amendment.

The noble Lord, Lord Mulley, has raised a question which affects the structure of the Bill. That is quite beyond this amendment, but perhaps it ought to be dealt with very shortly. The structure of the Bill affords totally adequate safeguards for the carrier, but not of course if he ignores the legislation. Indeed, on Second Reading, at col. 878, it was apparent from the Sealink document that certain carriers had threatened this.

It does not seem to be appreciated by the noble Lord, Lord Mulley, that under the Bill there is no obligation to pay the fine on demand. There is only the liability to pay which can be challenged, and challenged on judicial review, on the basis that it has not been reasonably demanded because there has been no contravention of Clause 1 (1) or, for example, the Secretary of State, in breach of natural justice, has failed to hear representations that, on embarkation for the United Kingdom, apparently genuine documents were provided.

At the end of the day the liability to pay on demand can never be converted into an obligation because, if the carrier refuses to pay, that lies within the province of the civil court. There, the Secretary of State, in the ordinary way, must make good his case on the evidence. With all these safeguards, surely there is no objection to the structure, as raised by the noble Lord, Lord Mulley, and there is no basis in the substance of the amendment, although I accept that the two are not related.

Lord Denning

My Lords, I hope that your Lordships will not accept this amendment. The Bill is absolutely all right as it stands.

Lord Mishcon

My Lords, what a succinct and learned observation from the noble and learned Lord! It is equivalent to the most lengthy and eloquent speech. I am sure that the noble Lord, Lord Campbell of Alloway, will forgive me if I say that in extending the ambit of this amendment some confusion has possibly been infused into the debate. As I understood it, there was a simple amendment which was answered very clearly—or not so clearly—by the Minister; namely, that the penalty of £1,000 had not to be exacted in every case and that it was within the power of the Secretary of State to exact a penalty of a lesser sum if he so decided.

The noble Earl, has been kind enough on many occasions to give me hints from the Front Bench opposite. And he is giving me such a hint now. I am going to take advantage of it; and I shall ask the House to say this. If there is not a categorical assurance that the Secretary of State has the power to exact a lesser penalty, I believe the House will be in favour of this amendment. There is a clog, if I may put it that way, on the discretion we would want to give to the Secretary of State.

To give an example, would it not be quite absurd, where there was a flagrant case of a carrier making a profit out of some poor individual because he hoped that the man could somehow be smuggled through and he could not care less once he had arrived at our shores or our airports, if all that could be exacted by way of a penalty was £1,000?

Then there is the second case in which there is a little culpability in regard to the carrier who brings the passenger over. He ought to have seen that the passport constituted a forgery but he employed an official who was less intelligent than was required in order to look at the passports and the passport had passed the scrutiny of that individual. Therefore, in order to teach the carrier that in future he ought to take a little more care about the officials whom he appoints to examine the passports, the Secretary of State decides to exact a small penalty. If that was not within his power, one would have the injustice or perhaps the complete nonsense that either the Secretary of State has to exact the same penalty against the most culpable character, as he does against the carrier whose story I have just told or, if he does not do that, then he cannot exact a penalty at all.

That cannot be right. Quite frankly—and if I am in error I am in very good company because the noble and learned Lord assented to my proposition on the last occasion—I assumed that the Secretary of State would have the power to exact a lighter penalty. If the advice given to the Minister is contrary to that assumption, this amendment must be right.

I do not think that this discussion ought to go into the question of the powers of the courts to look into the matter. The noble Lord, Lord Campbell of Alloway—and I say this with deep deference—knows that I hold very different views from his regarding the powers of the courts to look into the evidence that causes the Minister to exact a penalty. I do not wish to debate this matter at this stage because it is irrelevant to this amendment, but I think that the only power of a county court, should a Minister try to sue for his penalty, would be to decide whether the Minister had gone through the right motions; it could not go into the question whether discretion had been correctly exercised.

What I have said in regard to this amendment and this penalty is rather material, if I may put it that way, and I think that the sensible way to proceed now is to listen to the Minister's reply as a result of the advice given to him about the Secretary of State's powers.

Lord Walston

My Lords, I have the disadvantage of not having any legal training and not being a lawyer in any sense. I ask this question purely for my own information and possibly to assist other noble Lords who suffer from the same disadvantage. What does the word "prescribe" mean? Does it mean that at any moment the Secretary of State can write down or promulgate a different fine in a particular case, or does it mean what it seems to mean to one with a very distant classical education, that it must be written down beforehand? In other words, does it mean that if, because of inflation, he wishes to change the sum of £1,000 he can announce that in future the sum will be £2,000 or, if matters go in a different direction, that it will be £500?

If it means that he must announce in advance the amount of the fine, it seems to me that my noble friend Lord Airedale has a very good point. On the other hand, if it means that on a mere motion or whim he can prescribe any level of fine that we wants, whether it be higher or lower, then there is no need for this amendment. Perhaps the Minister can enlighten me on that point.

The Earl of Caithness

My Lords, this amendment would allow a carrier who was liable to a charge under the Bill to be charged a sum of up to £1,000, that sum presumably being decided by my right honourable friend the Secretary of State.

At this point I think it is worth confirming that my noble friend Lord Campbell of Alloway was absolutely right when he said that in theory there was a possibility of collecting only part of a penalty and forgoing the rest. Surely it is unreal to consider whether the facts require a penalty of less than £1,000. Either the facts justify forgoing the whole of the penalty or the penalty provided by Parliament should be collected. In theory, my right honourable friend could collect less than £1,000, but we believe that it would be wrong for carriers to be under the misapprehension that they might not be charged the full amount. In a matter of this kind that surely is the simplest, fairest and most direct procedure.

As at present drafted, the Bill allows liability to be established precisely and clearly. That liability is known and can be well understood both by the carrier and by the Home Secretary.

By making the charge infinitely variable up to £1,000 it would be impossible for the carrier to know his liability. It would require infinitely delicate judgments to be made by the Home Secretary as he tried to compare one circumstance with another and developed a sliding scale of charges. It would be an invitation to dispute and dissatisfaction as the carrier sought to argue that a lesser charge should be imposed.

Nor is it at all clear on what basis the Secretary of State should make those judgments. Should it be on the assumed culpability of the carrier—a matter of no doubt endless dispute—or on some judgment of the nature or undesirability of the passengers which I am not sure would find favour in all parts of this House? Or should it be a reflection of the seriousness of any immigration control issue which might arise?

No, my Lords, the amendment would be of no assistance to the carrier, nor to the passenger, nor indeed to the Home Secretary, and it would mistakenly suggest that the Bill was the place to draw up a league table of unacceptability. That is not the purpose of this Bill. The principle behind the Bill is that if a passenger requires leave to enter, does not have the documents required by the legislation but is nevertheless brought to this country by the carrier, the carrier is liable except for the specific savings in subsections (2) and (4) of Clause 1 of the Bill. Neither the Home Secretary nor the carrier should be encouraged to try to make judgments on whether, in any particular circumstances, a lesser payment would be appropriate.

The noble Lord, Lord Airedale, asked: "What about extenuating circumstances?" At this point I shall draw to his attention the fact that if the Home Secretary thinks that it would not be reasonable to charge a carrier, he should have the courage of his convictions and exercise discretion fully and wholeheartedly. Indeed, I can confirm, as probably the noble Lord heard at the Committee stage, that my right honourable friend has already done so.

Therefore we believe that it is best that the charge under this Bill should be an all or nothing charge, with the proviso, which is already in Clause 1(3) of the Bill, that if the charge needs to be changed up or down, it should be possible to change it by statutory instrument. On that basis I invite your Lordships not to accept this amendment.

Lord Mishcon

My Lords, before the Minister sits down, for my clarification at all events if not to assist other Members of your Lordships' House, I wonder whether he would explain his remark that theoretically the Secretary of State could exact a lesser penalty? I took note of his words. Either he has the power to charge a lesser sum under an Act of Parliament, which is a very pragmatic proceeding, or he has not. I do not understand the use of the word "theoretically". Will he clarify this important matter—and say what will happen in the circumstances that I ventured to outline to your Lordships; namely, the case in which somebody has acted flagrantly in carrying somebody and made a huge profit out of it, and the case where a carrier employs a not too intelligent official who happens to think that a passport is genuine when it is in fact an obvious forgery? Does that mean that the Secretary of State has to exact precisely the same penalty in both cases or that he does not exact a penalty at all? Or is the Minister saying that there is the power to charge less and to exact a lower penalty, and that that is what he terms "theoretically"?

The Earl of Caithness

My Lords, the noble Lord asked me whether the Secretary of State has the power to vary the penalty. Yes, he has. But we believe that it should be an all or nothing charge, because that at least makes it absolutely clear, to solve all the uncertainties—and I highlighted but a few in my response to the amendment of the noble Lord, Lord Airedale. We must make it absolutely clear to the carrier and to the passenger, and for the sake of my right honourable friend the Home Secretary, that this must be a £1,000 fine. If there are mitigating circumstances, then of course my right honourable friend can use the discretion that he has available to him.

Lord Airedale

My Lords, I am extremely unhappy with the argument put forward by the Minister. It seems to go like this. This is a maximum penalty and not a fixed penalty, but we are not going to say so in the Act of Parliament because we want the carriers to suppose that it will be £1,000 every time. I do not believe that that is a strictly honest way to draft an Act of Parliament. If this is a maximum penalty, which we now know it is, the Act of Parliament ought to say so.

It should be open to the carrier to say to himself: "Because of the particular circumstances of this case, even if I am found to be wrong, I shall not be charged the maximum penalty." He ought to be allowed to know that. This furtive idea of concealing in an Act of Parliament that a maximum penalty is a maximum and not a fixed penalty I simply do not think is the right way to proceed in drafting a statute.

If we were not in the feverish circumstances today that were described by my noble friend Lord McNair, I should feel very strongly inclined to take this matter to a Division. I am very unhappy about it—

Lord Mishcon

Why not?

Lord Airedale

My Lords, I am now being encouraged to think the other way. Very well, I cannot prevent noble Lords taking this matter to a Division if they so choose. That being so, I think perhaps we had better test it in a Division.

Lord Trafford

My Lords, before the noble Lord sits down, it seems to me that a very strange argument is being produced here—a fixed penalty for a fixed crime; that is to say, the failure of the carrier to carry out his responsibilities. The suggestion opposite is that if the carrier employs incompetent people in some parts of the world, or has shortsighted or defective officials, this is in some way an excuse. If there is one fixed maximum penalty, everybody knows where he stands. If there is a range of penalties, you could have a variety of semi-intelligent officials or a variety of defective employees who could be blamed.

Lord Mischcon

My Lords, would the noble Lord not think it discourteous of me and forgive me if I intervened only so that the House has in my view—a respectful view, I assure the House—a clear picture? The Minister is saying to the House, as I understand it, that this is not a fixed penalty. The words mean that the Secretary of State could exact a lower penalty if he wanted to. But we want to give the impression to the carriers that if they offend against this Bill they will have a penalty of £1,000. He is conceding that the Secretary of State may in certain circumstances award a lower penalty.

Lord Trafford

My Lords, I understand fully the noble Lord's point, which is that under very special circumstances the discretion of the Secretary of State might apply. I am suggesting that to put in an amendment such as this, which is to give effect to certain types of argument put forward which I was outlining, would be an error. Although I accept that the Secretary of State's discretion is perfectly satisfactory in this field, to suggest to carriers that there are many gradations of competence of their employees, or for any other reason that may explain how they could get away with it, would be an error.

3.35 p.m.

On Question, Whether the said Amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 91; Not-Contents, 139.

DIVISION NO. 1
CONTENTS
Airedale, L. [Teller.]	Chitnis, L.
Amherst, E.	Cledwyn of Penrhos, L.
Ardwick, L.	Cudlipp, L.
Aylestone, L.	Davies of Penrhys, L.
Banks, L.	Dean of Beswick, L.
Birk, B.	Denington, B.
Blackstone, B.	Diamond, L.
Blease, L.	Donaldson of Kingsbridge, L.
Blyton, L.	Ennals, L.
Boston of Faversham, L.	Ewart-Biggs, B.
Broadbridge, L.	Ezra, L.
Bruce of Donington, L.	Falkland, V.
Campbell of Eskan, L.	Fisher of Rednal, B.
Carmichael of Kelvingrove, L.	Fitt, L.
Carter, L.	Foot, L.

Galpern, L.	Peston, L.
Gladwyn, L.	Phillips, B.
Gloucester, Bp.	Pitt of Hampstead, L.
Graham of Edmonton, L.	Ponsonby of Shulbrede, L.
Greenway, L.	Ritchie of Dundee, L.
Grey, E.	Rochester, L.
Hampton, L.	Ross of Marnock, L.
Hanworth, V.	Rugby, L.
Hams of Greenwich, L.	Sainsbury, L.
Hatch of Lusby, L.	Seear, B.
Hayter, L.	Sefton of Garston, L.
Henderson of Brompton, L.	Shackleton, L.
Hirshfield, L.	Somers, L.
Houghton of Sowerby, L.	Stallard, L.
Hunt, L.	Stedman, B.
Hutchinson of Lullington, L.	Stewart of Fulham, L.
Jenkins of Putney, L.	Strabolgi, L.
John-Mackie, L.	Taylor of Blackburn, L.
Kilmarnock, L.	Tordoff, L.
Leatherland, L.	Underhill, L.
Listowel, E.	Wallace of Coslany, L.
Llewelyn-Davies of Hastoe, B.	Walston, L.
Lockwood, B.	Wells-Pestell, L.
Mackie of Benshie, L.	Whaddon, L.
McNair, L.	White, B.
Mayhew, L.	Williams of Elvel, L.
Mishcon, L.	Wilson of Langside, L.
Molloy, L.	Winstanley, L.
Mulley, L. [Teller.]	Winterbottom, L.
Oram, L.	Ypres, E
Parry, L.
NOT-CONTENTS
Aldington, L.	Grey of Naunton, L.
Alexander of Tunis, E.	Gridley, L.
Allerton, L.	Hailsham of Saint Marylebone, L.
Alport, L.
Ampthill, L.	Halsbury, E.
Auckland, L.	Harmar-Nicholls, L.
Bancroft, L.	Harvington, L.
Bauer, L.	Hesketh, L.
Beaverbrook, L.	Hives, L.
Belhaven and Stenton, L.	Hood, V.
Beloff, L.	Hooper, B.
Belstead, L.	Hylton-Foster, B.
Bessborough, E.	Jessel, L.
Blake, L.	Johnston of Rockport, L.
Blyth, L.	Kaberry of Adel, L.
Boyd-Carpenter, L.	Killearn, L.
Brabazon of Tara, L.	Kimball, L.
Brookes, L.	Kimberley, E.
Brougham and Vaux, L.	Kinloss, Ly.
Broxbourne, L.	Kinnaird, L.
Butterworth, L.	Lauderdale, E.
Caithness, E.	Lawrence, L.
Campbell of Alloway, L.	Layton, L.
Carnegy of Lour, B.	Long, V.
Carnock, L.	Lucas of Chilworth, L.
Cathcart, E.	Lurgan, L.
Cayzer, L.	Lyell, L.
Chelwood, L.	McAlpine of Moffat, L.
Coleraine, L.	McFadzean, L.
Constantine of Stanmore, L.	Macleod of Borve, B.
Cottesloe, L.	Manchester, D.
Cox, B.	Mar, C.
Cullen of Ashbourne, L.	Margadale, L.
Davidson, V. [Teller.]	Marley, L.
De Freyne, L.	Marshall of Leeds, L.
Denham, L. [Teller.]	Maude of Stratford-upon Avon, L.
Denning, L.
Dilhorne, V.	Merrivale, L.
Dundee, E.	Mersey, V.
Elliot of Harwood, B.	Middleton, L.
Faithfull, B.	Milverton, L.
Fortescue, E.	Molson, L.
Fraser of Kilmorack, L.	Monk Bretton, L.
Gisborough, L.	Montgomery of Alamein, V.
Glanusk, L.	Mowbray and Stourton, L.
Glenarthur, L.	Munster, E.
Gray, L.	Murton of Lindisfarne, L.
Gray of Contin, L.	Norrie, L.

O'Brien of Lothbury, L.	Strathcarron, L.
Pender, L.	Strathcona and Mount Royal, L.
Portland, D.
Pritchard, L.	Strathspey, L.
Radnor, E.	Sudeley, L.
Rankeillour, L.	Swansea, L.
Reilly, L.	Swinton, E.
Renton, L.	Terrington, L.
Rodney, L.	Teviot, L.
St. Aldwyn, E.	Thorneycroft, L.
St. Davids, V.	Torphichen, L.
Saint Oswald, L.	Trafford, L.
Saltoun of Abernethy, Ly.	Trefgarne, L.
Sanderson of Bowden, L.	Trumpington, B.
Sandford, L.	Ullswater, V.
Sandys, L.	Vaux of Harrowden, L.
Selborne, E.	Vickers, B.
Selkirk, E.	Whitelaw, V.
Sempill, Ly.	Wigram, L.
Sharples, B.	Windlesham, L.
Skelmersdale, L.	Wise, L.
Slim, V.	Wolfson, L.
Stodart of Leaston, L.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

3.45 p.m.

Lord McNair moved Amendment No. 2:

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: My Lords, I beg to move Amendment No. 2. Since Committee stage I have somewhat changed my ground. In my interventions then I was pleading the case of refugees, or people in grave and immediate danger. Today I plead the cause of the carriers. I must admit that the cause of the refugees is a little closer to my heart than that of the carriers, but I insist that there must be justice for the rich as well as for the poor and that it is just as wrong that a Bill which inflicts injustice on airlines and shipping lines should pass unamended through this House as one which inflicts injustice and perhaps danger on individuals.

The amendment suggests that a carrier should not be fined for bringing someone here with imperfect documentation if he does so at the order of a foreign government. It does not mean that we are obliged to accept the passenger. It does not prevent us from ordering a carrier to return the passenger at his, the carrier's, expense after paying the bill for that passenger's board and lodging during his sojourn in this country, both of which powers the Home Secretary already has without the help of this Bill. This only says that he should not be fined for doing something which he was ordered to do by a foreign power.

At Committee stage this amendment was moved by the noble Lord, Lord Mishcon. He withdrew it so that he, I and others could consider the arguments which had been brought against it and decide whether to resubmit it. We came to the conclusion that the arguments were so lacking in logic and even in plausibility that we owed it to the carriers to try again.

In reading the Official Report my attention was first caught by the speech of the noble Lord, Lord Campbell of Alloway, which was not, I must regretfully say, one of his most cogent contributions. He stated in column 265: 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".

As a statement of international law I would not presume to question that opinion. I merely point out that the amendment concerns whether an airline, not a sovereign state, is obliged to recognise that order of a state from which it is operating. We expect airlines operating from this country to do so when we give them orders. But this is a relatively minor point.

Following the passage which I quoted, the noble Lord continued: 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".

If that passage contains any slip of the tongue or lapse of memory—aberrations to which I am more prone than most people—I should not wish to make any capital out of such a human failing, but the passage contains at least one major misconception and at least one most uncharacteristic misstatement of fact.

First, the amendment did not mention refugees or the 1951 convention. Secondly, even if relevant to the amendment the convention had nothing whatever to do with the Council of Europe. I do not think the Council of Europe was even established in 1951. The phrase: and deportees not only from the signatory states, who are all members states of the Council of Europe", must be either a failure of memory or a slip of the tongue. There are 21 member states of the Council of Europe. There are about 100 signatories of the convention.

As the passages I have quoted constituted the main gist or kernel of the speech of the noble and learned Lord, I cannot feel that it provided any very good reason why we should not resubmit the amendment today.

I turn now to the very short intervention from the noble and learned Lord, Lord Denning: 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."—[Official Report,7.5.87; col. 266.]

I re-quote: Is a shipping or airline company entitled to obey General Amin and carry someone to this country?

How lucky we are that the noble and learned Lord was not operating an airline out of Entebbe when General Amin was in power. I fear that if he had been and he had felt entitled to disobey any orders that came his way he would not have lived to enrich this House with the fruits of his limitless experience and wisdom as he so frequently does.

It is surely putting an intolerable burden on carriers to expect them to ask themselves whether or not the government who are giving them orders are civilised and to risk the consequences of disobedience if they decide that they are not. Last, but far from least, I come to the speech of the noble Earl, Lord Caithness, which contained six lines that I should like to read out and on which I should like to ask him a question. I quote: 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."—[Official Report, 7.5.87; col. 266.]

I repeat the quote: impossible for the immigration service to check out such claims.

What is meant here by the immigration service? That is surely an arm of the Home Office The noble Earl could not have been referring to an immigration officer at Heathrow, for example, whose job, as I understand it, is to examine passengers' papers and, if he finds them out of order, to detain the passenger and inform the Home Office. Would it not be the immigration service within the Home Office to which he would report? Yet we have the noble Earl's word for it that it would be quite impossible for the immigration service to check out such claims. I await the noble Earl's comments on that point; but I should be prepared to risk a bet that in his answer and in his reply to the amendment generally he will rely fairly heavily on the famous discretion of the Home Secretary.

In a speech occupying less than one column of Hansard the noble Earl used the word "discretion" no fewer than six times. We have heard it again and again throughout the passage of the Bill and even today. That led me to do a little mental doodling over the week-end about the word "discretion".

It is said that the better part of valour is discretion. I dismiss that and all similar quotations because that would be pure semantic gamesmanship and unworthy of this House as in those famous lines the word "discretion" is being used in a quite different sense to the one in which we are using it.

Then my invaluable dictionary produced a most apt and striking quotation. It comes from a speech in a law court in 1780. The advocate was one Lord Camden who was speaking about the discretion of a judge. However, I do not think that that invalidates the quotation because the Home Secretary, in theory, or his officials in fact, will surely be acting in a quasi-judicial capacity when they make their decisions under the Bill. Lord Camden had this to say: The discretion of a judge is the law of tyrants: it is always unknown. It is different in different men. It is casual, and depends upon constitution; temper, passion. In the best it is oftentimes caprice; in the worst it is every vice, folly and passion to which human nature is liable.

I shall not go quite so far as that—certainly not when discussing the right honourable gentleman, the present Home Secretary. However, do not Lord Camden's words contain a warning which we should heed?

For a very long time we have been piling more and more burdens on the discretion of Secretaries of State. That may be due to the increasing complexity of life; it may be inevitable, but it can sometimes amount to legislative laziness. Instead of getting it right in the Bill we say: "It is too difficult, let us leave it to the discretion of the Secretary of State."

My last point is a question about a lamentable phenomenon of recent years which has come to be known as the "refugee in orbit". That is not a very apt description of what happens because it is really more a grim inter-governmental game of ping-pong with a human ball, two governments who are in dispute and a carrier who carries somebody to and fro. What happens all too often—I admit that this is not strictly relevant to the amendment, though very much so to the Bill—is that the carrier gets fed up and offloads his unwanted passenger at some intermediate refuelling station from which he is all too likely to be sent back to the country from which he is fleeing.

However, in the ordinary case of to and fro, is the carrier liable to be fined every time he tries to get rid of his unwanted passenger? Surely repeated fines for the same passenger are unthinkable.

I hope that I have made out a case for the amendment. The Bill is unfair to carriers. I beg to move.

Lord Boyd-Carpenter

My Lords, there is a certain engaging naivety about the amendment which we saw equally engagingly in the speech to which we have just had the pleasure of listening. It is surely obvious to your Lordships that there are governments in various parts of the world who would be very happy to enter into covert arrangements with carriers to facilitate the transmission of unwanted migrants to this country.

It would be only too easy for the carrier and the government to pre-arrange the whole thing and for the carrier to be furnished with impressive-looking orders, probably with a great seal on them, indicating that he had been ordered by the government of the country from which they came to carry those people.

That is not fantasy because if your Lordships know what is happening at the moment in Europe, they will realise that that is very much part of the general picture. A great many migrants from Asia, some of themTamils, some others, are coming into Europe rather curiously through Soviet Russia and East Germany, and passing through into West Germany which passes them hastily on. I know as a fact that people in Switzerland are deeply disturbed by the number of those unwanted immigrants who come by those routes.

It is quite obvious that those migrants have not arranged their journey themselves by so long and roundabout a route. They could not have paid for the long air passages involved in coming right round by Soviet Russia and through East Germany. It is quite obvious that there is such a trade. An amendment of this kind would leave us wide open to exactly that sort of abuse. It would make fools of the British Government if the steps which, in my view, they have rightly taken to restrict the flow of wholly unwanted immigrants were to be thwarted in this way by unfriendly governments.

The only other point I wish to make concerns an important question of principle. We are dealing with a Bill which will be the law of this country. The amendment would enable the orders of a foreign government to override the law of this country. For centuries we have resisted any such idea. That idea has only to be stated to be seen to be monstrous. I shall not be offensive to any country and name it, because we can all think of governments who are good, bad and indifferent. But it is a monstrous idea that the orders of a foreign government can override the considered law of this country as passed through both Houses of Parliament. It is a monstrous idea and I hope that your Lordships will not waste much time on it.

4 p.m.

Lord Campbell of Alloway

My Lords, this amendment was considered by your Lordships as Amendment No. 6 at Committee stage on the basis of unfairness to the deportee. As the noble Lord, Lord McNair, has said that he did not find my arguments attractive on that occasion, assuredly I shall not repeat them; repetition is idle. However, I am comforted to know that my noble friend Lord Boyd-Carpenter did not find them wholly beside the mark.

The noble Lord, Lord McNair, has changed his ground, as he will always frankly say. I shall change mine only to meet the changed ground that he has taken. I hope that today he will find my arguments on that changed ground a little more persuasive than they were on the original basis. As my noble friend the Minister rightly said (at col. 266 of the Official Report) in the passage quoted by the noble Lord, Lord McNair, and as my friend Lord Boyd-Carpenter rightly observed, this amendment would open the door to abuse between the unscrupulous carrier and the dishonest official.

The new ground on which the amendment is put forward is that the Bill inflicts an injustice upon the carrier and that there must be justice for the carrier—the rich—as there is justice for the deportee. We are concerned with deportees. However, in this Bill—there is no sense in making a mockery of it—there is a reasonable and acceptable safeguard for the carriers who, in the words of the amendment: are obliged to carry as a result of an order from a foreign Government". If there is a carrier who can satisfy the Secretary of State that there was an element of compulsion by which the voluntary exercise of his free will was overborne, it is open to the carrier who is in contravention of Clause 1 to make representations to the Secretary of State as to a benevolent exercise of administrative discretion. The person carried by the order of the foreign state is usually known as a deportee from that state. If this amendment were to be accepted and if that were so, the United Kingdom would—as I have said and reiterate and will not withdraw—become the dumping depot for deportees. Why?—because, as I hope the noble Lord, Lord McNair, and your Lordships will accept, there is no similar escape clause for an unscrupulous carrier in the legislation of other member states.

My noble friend the Minister said at Committee stage that there will be: cases in which the carrier can show that without any fault on his part he was compelled to carry someone", and then discretion will be exercised under the existing regime. This Bill is merely a superimposition upon an existing regime. Your Lordships' House was given an assurance—it is no matter for mockery—of the due exercise of administrative discretion in such circumstances where there was no fault and where there was compulsion. If the amendment is carried, there is no way in which serious abuse and evasion could be avoided. I hope that your Lordships will not accept the amendment.

Lord McNair

My Lords, before the noble Lord sits down, let me explain that I said I had shifted my ground; perhaps I should have said that I was playing a different role. I have not changed my mind at all. On Thursday last it happened that I was speaking on amendments where I was defending refugees. The amendment that we are now considering was always put forward from the point of view of carriers. I did not speak about it on Thursday. That was all I meant by saying that I had shifted my ground.

Lord Campbell of Alloway

My Lords, let me assure the noble Lord that I have not changed my mind either. However, I tried to meet a shifted ground.

Lord Denning

My Lords, I hope that your Lordships will not accept this amendment. There is a simple solution. If the carrier is justified or if there are good grounds for carrying a person without documents, the Secretary of State will not enforce the £1,000 penalty. My noble friend Lord McNair spoke about discretion. Discretion in relation to a judge dealing with a judicial matter is one thing. Here we are dealing with the discretion of the Secretary of State who, in these matters of immigration and the like, is acting in terms of an administrative and executive discretion with which he is entrusted by Parliament and by our statutes. Therefore, we should not challenge his discretion. I am not in favour of the amendment.

Lord Mishcon

My Lords, I believe that the attitude of the House may be very much guided by the response of the Minister. I hope that he will repeat, in even stronger terms so that they are clearly on the record, that if a carrier is carrying a passenger under a genuine government order, be it by way of deportation or whatever—in other words, carrying him is a matter of compulsion—there is no doubt that in a proper case the Secretary of State would exercise discretion. If I may humbly suggest it, if the Secretary of State would give that categorical assurance on the record in even clearer terms than those uttered at Committee stage, many of us may be assisted.

The Earl of Caithness

My Lords, I have listened very carefully to the arguments that the noble Lord, Lord McNair, has put forward in support of the amendment, which is identical to the one put down at Committee stage, as my noble friend Lord Campbell of Alloway said.

The Government remain of the view that this is a matter best dealt with by sensible use of the Secretary of State's discretion rather than by way of a statutory exemption. I readily accept that there will be circumstances when a carrier, through no fault of his own, has no option but to comply with the order of a foreign government to carry a passenger to this country. That is not to say that the United Kingdom is bound to accept that person. My noble friend Lord Campbell of Alloway rightly pointed out during the Committee stage that a sovereign state is not bound to recognise the order of another state except as may be provided by treaty or other agreement. But clearly the carrier may be bound to accept such an order and it is the carrier at whom this amendment is directed.

The difficulty is that it would give a very wide saving for carriers and provide considerable scope for abuse. The foreign government order might be a result of the carrier's own original failure to comply with instructions from the government in question. He might, for example, have carried to that country someone whom he had been ordered not to. He might have failed to comply with earlier directions, for example, to take the passenger to another country. It might in the circumstancees have been possible for a carrier to comply with the orders of a foreign government and ensure that the passenger had the proper documentation.

In such circumstances it might well be right to expect the carrier to accept responsibility for bringing in such a passenger. I cannot agree with the noble Lord, Lord McNair, that that is unfair. As my noble friend Lord Boyd-Carpenter said, the amendment opens up the possibility of an unscrupulous carrier coming to an arrangement with a representative of another government and so claiming that he had been compelled to carry someone here when that was not the case.

The noble and learned Lord, Lord Denning, wisely told the House about the difference in meaning between discretion for a judge and discretion for a Home Secretary. I merely stress the point that the noble and learned Lord made; and of course the Home Secretary is accountable to Parliament while the judge is not in the same sense.

The Government do not believe that it would be right to give carriers a statutory exemption from liability in every case. Carriers should accept responsibility for passengers they are ordered to bring here if it is through their own fault or their own failure.

The noble Lord, Lord Mishcon, asked me to repeat what I said in Committee, that the Home Secretary will be ready to consider exercising discretion sensibly and reasonably where a carrier through no fault of his own has no alternative but to comply with the orders for a foreign government. Not only do I without reservation give that assurance again; I go further and say that it has already been exercised by my right honourable friend the Home Secretary.

In that event I am sure that the House will not want to accept the amendment.

Lord McNair

My Lords, I cannot pretend to be altogether happy with the answer that we have had. I am particularly unhappy that the noble Earl has said nothing about the case of the refugee in orbit.

However, in the circumstances I bow to force majeure, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.15 p.m.

Lord Mishcon moved Amendment No. 3:

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: My Lords, I hope to deal with the amendment shortly because the point is a very clear one. Indeed, I ventured to argue it in Committee and withdrew it in the light of the reply of the Minister, which I want in sheer courtesy to consider.

If I made a moderate case and not a strong case in Committee, I hope that I can make it a strong case on Report for the following reason. In the course of the discussion on Amendment No. 1, the Secretary of State said repeatedly that he wanted all carriers to know that the penalty that would be exacted, almost regardless of circumstances, if there was a breach of the provision of this Bill was the same penalty. If ever there was a case for some tribunal to listen to the carrier's plea—one would have thought very often a reasoned plea—that the penalty should not apply in his case either at all or in the flat sum of £1,000, the Secretary of State has made that case for me.

I think that if I went on arguing for a very long time, I should only be repeating the simple principle, that we have a reputation in our legislation that where people are ordered to pay some sort of penalty there ought in appropriate cases to be a right of appeal. This is new legislation and these are new powers, new penalties and new duties of carriers. In those circumstances, I hope that your Lordships will think that an appeal procedure is necessary and appropriate.

There is one weakness in the amendment, to which I want in honesty to admit. I have not said of what personnel the appeal tribunal should consist. I have left it with the bare words "an appeal tribunal". There will be no difficulty in that matter being considered in due course and an appropriate appeal tribunal being set up.

I hesitated, as I said in Committee, to try to designate an appeal tribunal because I did not want to waste the country's money by asking Parliament to approve a new tribunal to deal specifically with the matter. It seemed to me that the number of appeals that would come before it would not justify that.

I therefore hope that in the administrative bodies in the country we can find some tribunal able to deal with these matters, quite apart from its other work, whether a county court or whatever else it might be. I am hoping that it might not be a county court for reasons that I gave in Committee and do not want to repeat.

I trust that the amendment will be approved by the House.

Lord Campbell of Alloway

My Lords, I agree with the noble Lord, Lord Mishcon, that where there is a penalty there should be a right of appeal. That is common ground between us. However, the amendment, I fear, is based on a genuine misconception on the part of the noble Lord, Lord Mishcon. This is perhaps why the noble Lord and I had a disagreement in Committee on the last occasion.

The origin of the misconception is the General Council of Shipping draft of 23rd March 1987. I am not taking against the noble Lord a drafting point on failure to designate the appeal tribunal. However, the amendment raises some serious problems, because there is a right of appeal under the regime as it stands in the Bill. The carrier cannot be—using the words of the amendment—"found liable" to a penalty other than by a civil court if he refuses to pay and if, in the civil court, the Secretary of State establishes contravention on the evidence to the satisfaction of the judge. If it is the county court, there is an appeal to the High Court. If it is the High Court, there is an appeal to the Court of Appeal. There is no way in which any appeal tribunal could fit into this procedure.

If—and it is not quite clear—"found liable" in the amendment means that the Secretary of State considers that in view of apparent contravention there is a liability to pay and so makes a demand, the decision to make that demand, if such view could not have been reasonably entertained by the Secretary of State—and I am much relieved to see the noble and learned Lord, Lord Denning, in his place—or if, for example, the Secretary of State were to refuse to entertain representations that apparently genuine documents had been produced on embarkation, that would be contrary to natural justice. Then on judicial review that decision to make the demand would be quashed.

Lord Mishcon

My Lords, if I am interrupting the noble Lord's train of thought, which is always a very interesting one, I shall sit down and ask for his leave to interrupt him at another stage. Is he really saying to the House—and if so, will the Minister kindly deal with the matter—that, where submissions have been made in mitigation by a carrier, and the Secretary of State sends a short reply to the effect that they have been considered but the penalty is being exacted, a county court judge can then go into the matter all over again, even though correspondence had been shown to the judge to the effect that submissions had been made to the Secretary of State who had considered them and then decided against them? Is the noble Lord seriously saying to the House as a matter of law that, when the Secretary of State then sues for the penalty, the county court judge, the High Court judge on appeal or the Court of Appeal can look again at the matters in respect of which he had properly exercised his discretion but exercised it against the carrier?

Lord Campbell of Alloway

My Lords, I am grateful to the noble Lord. This situation stems from the fundamental disagreement, confusion, or misapprehension, as I seek to say today, on the part of the noble Lord, Lord Mishcon. The words "found liable" mean what they say. In the Bill it is stated perfectly plainly: liable to pay the Secretary of State on demand". The liability to pay does not become an obligation to pay if the carrier refuses to pay. I am seriously suggesting to the noble Lord who asked me a question, but at the moment is otherwise engaged—

Lord Elwyn-Jones

My Lords, the fault is entirely mine.

Lord Mishcon

My Lords, I apologise to the noble Lord.

Lord Campbell of Alloway

My Lords, as I said on the last occasion, if a carrier refuses to pay, the only way he can be made to pay is if the Secretary of State established contravention on the evidence in the county court. From that judgment there is an appeal. As regards that aspect there is no question of discretion at all. It would result in total confusion to import the exercise of a discretion to proceed.

Either the Secretary of State is entitled to proceed and make his demand because there has been a contravention or he is not, and that is a matter for the court to decide.

Lord Mishcon

My Lords, if the noble Lord will pardon the interruption—I promise him it will be for the last time—what he is saying is most serious, because it will be in the Official Report that he is indicating that it is the view of Parliament, and certainly his view. He is talking about where the Secretary of State exacts a penalty and the carrier says, "I do not accept your ruling. I am going to the county court, and I am going from there by way of appeal right the way up the judicial ladder to challenge the circumstances in which you have exacted the penalty—not your right or whether you have correctly gone through the procedure". If that is being said, and it is not answered by the Minister as being either the right or the wrong interpretation, Parliament will have misled the carriers who obviously look with great respect, as we all do, upon the noble Lord's speeches. On one view the carriers will have a completely wrong idea, and on the other a completely correct idea. I say frankly, and with great humility, that I disagree with the noble Lord's point of view. I leave it to the Minister to deal with the matter; otherwise we are confusing the issue from the point of view of the carrier's liability and his rights.

Lord Campbell of Alloway

My Lords, I am grateful to the noble Lord. Before the Minister replies I should like to develop my argument and expose what I have consistently maintained was a false premise taken throughout by the noble Lord, Lord Mishcon. He is perfectly entitled to take that point of view but it is, with respect to him, totally misconceived. Of course, there is no question of misleading the carriers. As the Minister said at Committee stage, the carrier can refuse to pay. If he refuses to pay, the Secretary of State must prove the contravention in the county court. If it is proved to the satisfaction of the judge, the Secretary of State can recover and the liability to pay in rugby terms is "converted" into an obligation. The obligation does not arise, if it is challenged, until it has been judicially accepted.

There is no question whatsoever of discretion arising in those county court proceedings. I was seeking to develop an alternative route. The carrier has two barrels. He can either refuse to pay and go to the county court, or he can say, "The Secretary of State should not have made this demand. No reasonable Secretary of State properly directed ought to have made this demand on the evidence", or, as I was seeking to suggest, "The Secretary of State did not comply with the fundamental requirements of natural justice, such as allowing the carrier to make representations along the lines that apparently genuine documents were produced".

As there are these safeguards, it would not be appropriate to set up an appeal tribunal from the decision of the Secretary of State to make a demand, as is proposed by this amendment. Failure by the Secretary of State to exercise benevolent administrative discretion could not be brought before the divisional court on judicial review. If such is to be the function of this appellate tribunal it would be open to the most serious objection. The proposed amendment would in fact substitute the discretion of the appellate tribunal for the discretion of a Minister of State, which would be wholly unacceptable.

I apologise for the time I have taken to develop my argument but the noble Lord, Lord Mishcon, and I are poles apart over this matter. We both entertain totally genuine reasons for being poles apart. However, I thought it right to develop my argument.

Lord Denning

My Lords, I hope your Lordships will not accept this amendment. Let me imagine the Bill without it: then it is quite clear that the Secretary of State may bring proceedings in the High Court against the carrier for the £1,000 which has been demanded and not paid. In such proceedings the Secretary of State has to prove the elemental points as regards the man entering undocumented. On proving those matters, and on demand, the Secretary of State obtains his judgment. There could be an appeal against the judgment but with no hope of success. If the complaint is against the discretion of the Minister, that is not the subject of an appeal at all. The discretion, as I have said previously, is administrative and executive. It is not judicial and, therefore, there can be no appeal against it.

It seems to me that it is quite unnecessary to have this clause when the matter has already been taken care of.

4.30 p.m.

Lord Mishcon

My Lords, before the noble and learned Lord sits down, and only because of the importance of the point, may I say with deep deference that he has said exactly what I was trying to say. In other words, once you get to the county court, if the Secretary of State proves that there has been a breach of this Bill, then the county court judge or the High Court judge has no alternative whatever but to say, "The Secretary of State said £1,000, and £1,000 it is." He cannot hear the defendant.

I was arguing—this is where the noble Lord, Lord Campbell, as I understood him, differs from me—that, the necessity for the appeal tribunal was in order—

Lord Campbell of Alloway

My Lords—

Lord Mishcon

May I just finish my sentence?

Lord Campbell of Alloway

Surely it is in order to intervene at this stage of the proceedings. I cannot reply as I have made my speech.

A noble Lord

The noble Lord must seek the leave of the House.

Lord Campbell of Alloway

No, it is the Minister who seeks the leave of the House.

A noble Lord

No, anyone can.

Lord Campbell of Alloway

I apologise, my Lords.

Lord Mishcon

My Lords, I am sure the noble Lord, Lord Campbell of Alloway, was not trying to silence my argument. It is the last thing in the world that I would ever expect of him. I was saying—it is the whole purport of my address to your Lordships—that the necessity for an appeal tribunal is to be able to go to somebody and say, "Look, I submitted this to the Secretary of State" or "New evidence has come to light, and I want you to find that it is wrong to exact a penalty of £ 1,000 from me; you may think it should be only £250 or nothing at all." He has no right, and the noble and learned Lord has confirmed it, to do that in the county court.

There is no right of appeal and, with great respect to the noble Lord, Lord Campbell of Alloway, that was not the impression he gave the House. If he cares to amend it, I am certainly not against the noble Lord addressing the House again before I sit down, or before anybody else sits down. The point is that his argument was based upon something with which the noble and learned Lord, Lord Denning, does not agree and with which I, a very much humbler person in the legal profession, certainly do not agree.

Lord Campbell of Alloway

My Lords, before the noble Lord sits down, surely he accepts that I would never try to muzzle his argument unless I was in the position of being deprived of any reply. I hope the noble Lord accepts that.

Lord Mishcon

I do.

Lord Campbell of Alloway

The position is again totally misunderstood by the noble Lord, Lord Mishcon. Once you get into the county court, the discretion of the Minister, in so far as it is the discretion to make the demand, is wholly immaterial. It is the exercise of the benevolent discretion not to proceed. That is what the noble Lord, Lord Mishcon, is seeking to set up this tribunal to review, and that is the one thing which would be quite contrary to practice because it substitutes the discretion of a tribunal for the discretion of the Secretary of State.

If I have left the noble Lord or your Lordships' House in a state of confusion, all I can say is that I apologise. I can say no more. I hope that your Lordships will not, in any circumstances, accept this amendment.

Lord Denning

My Lords, I am not sure that I had finished. In a way, I agree with everyone. There is certainly an appeal if the county court or the High Court judge finds that £1,000 is payable and it is not paid or is resisted. There is then an appeal either to the High Court or to the county court; there is no doubt about that. The only dispute is on the decision of the Minister whether or not to make a demand and the circumstances which he takes into account. The question is how far that can be queried.

I can understand the concern of my noble friend Lord Mishcon that there should be an appeal from that decision-making process. I do not agree with it for this reason. The decision in that respect is administrative and executive but not judicial. Therefore, it is essentially a matter for the Secretary of State save for this one safeguard; that if the Secretary of State does anything grossly unfair or anything improper, or adopts a wrong procedure, you have a judicial review. The whole procedure is quite simple and straightforward and we do not need this amendment.

Lord Winstanley

My Lords, the difficulty for noble Lords like myself who have no connection with any branch of the legal profession is that the Bill is drafted in such an indefinite way that we have no knowledge whatever of the manner in which the Secretary of State will exercise his discretion or, indeed, about the procedures which will be adopted. The noble Earl, in his reply to an earlier amendment, made it quite clear that the Secretary of State does have a discretion. However, in a very curious answer in reply to Amendment No. 1, when the noble Lord, Lord Mishcon, asked what was meant by the word "theoretically", the noble Earl replied that it meant that the Secretary of State had a discretion to do certain things in theory, but in practice he would never do them.

The logic of that would seem to be that the noble Earl himself ought to want to change the Bill so that the discretion no longer exists. But the difficulty I find is that there is nothing in the Bill to explain how the Secretary of State will deal with these matters. To what extent and in what way will he look at the evidence which is brought forward? Will the people who are complained about, who are perhaps later liable to this penalty, be given an opportunity of a hearing and of giving an oral explanation as to precisely what has happened? Many noble Lords will have anxiety about whether or not an individual case has been enquired into properly and whether or not justice has actually been done.

I have no doubt at all that when penalties such as these are levied on certain carriers there will be many who feel a profound sense of injustice and believe that they have been put in a position through no fault of their own. They will want to feel that their representations have been properly heard. It may be that they will be properly heard, but none of us will know. And since there is no appeal procedure, there is no way of ever finding out. That is why I hope that some procedure, such as that envisaged in the noble Lord's amendment, will be devised.

I accept that it may be difficult—the noble Lord, Lord Mishcon, said that the precise nature and composition of the appeal tribunal is not specified —but I feel that what many of us would like to hear (and we would feel happier about the Bill if we did hear it) is that an opportunity exists to ensure that there can be second thoughts about an individual case in which the victim—if that is the right word—feels aggrieved and considers that he has been dealt with unjustly.

I hope that when the noble Earl replies he will be able to give us some encouragement and let us know that there will be some procedure whereby a case can be looked at again if the complainant feels that he has been dealt with unjustly or, indeed, if Members of either House of Parliament, in consultation with those people, feel that the matter has been dealt with unjustly and that the facts ought to be looked at again by the Secretary of State. It is possible that there will be cases where we are not satisfied with the manner in which the Secretary of State's undoubted discretion has been exercised.

I hope that when he replies the noble Earl will be able to tell us that there is some procedure whereby he can assure us that in those particular cases there will be a method whereby the case can be looked at again and that we can all know that the case will be looked at again.

Lord Trafford

My Lords, may I make one point? We have talked a great deal about the legal aspects of the type of appeal that could be heard and ruled upon by a county court judge. But this amendment destroys the part of the Bill with reference to the discretion of the Home Secretary. It removes the discretionary powers in the sense that with an appeals tribunal, you are undermining or removing those powers.

It would be reasonable as an amendment to suggest that such powers should not be exercised by the Secretary of State at all, although in many other respects such powers are exercised. The amendment would remove such discretionary powers which, on a previous amendment, the noble Lord talked about strengthening because he did not wish to clog such powers. It seems to me that there is a considerable risk that the amendment would remove such discretionary powers and substitute this appeals tribunal. If I recall the Committee stage correctly, I believe that the noble Lord referred to two or three independent citizens. The amendment would transfer the Secretary of State's discretionary powers to two or three independent individuals.

The Earl of Caithness

My Lords, I understand, or at least I think that I do, the thinking behind this amendment which has been the subject of some discussion among the legal eagles in this House. I, too, believe it to be misconceived and that an appeal tribunal is unnecessary in the circumstances provided under this legislation. The noble Lord, Lord Mishcon, has often been called the best advocate in this House. I was swayed by his advocacy in Committee when he said that, it is not very sensible to set up a special tribunal to deal with a few appeals".—[0fficia Report,7/5/87; col. 282.] The noble Lord qualified that this afternoon by saying that it was on cost grounds, but I believe that it is right in principle.

The effect of the amendment would be to interpose an appellate body between the Secretary of State and the county court in cases where evidence as to liability is in dispute, and to substitute an appeal tribunals' judgment for that of the Secretary of State on matters relating to the use of the Home Secretary's discretion. I believe that it is unnecessary for a tribunal to duplicate the responsibilities of the county court, and that it is not reasonable for a tribunal to subsitute its judgment in these matters for that of the Secretary of State.

The issues of fact that can arise are relatively straightforward. There is already ample provision for resolving them at law—at the county court. If a carrier disputes a charge imposed upon him because he does not believe he is liable in law, for example, because he believed that the passenger did not require leave to enter, he may decline to pay. Recovery of the debt would then be a matter for action in the county court which would determine in the normal way whether a liability arose under the law.

On the other hand, a carrier may seek to argue that although he was admittedly liable in law, the Home Secretary should have exercised his discretion not to impose a charge. Surely, that is not a matter upon which an appeal tribunal is best placed to form a judgment. No question of law arises. If it is a question of fairness and compassion, it is right that the Home Secretary should accept responsibility for making the necessary judgments, as he is in the best position to take account not just of the particular circumstances of the case but of the wider issues which might reasonably form a part of his judgment.

I do not believe that an appeal tribunal, however formulated, would be an appropriate or indeed necessary forum for such judgments; nor would it represent an efficient or sensible use of resources. It would add a further cumbersome, expensive and unnecessary tier to what, under the Bill, are properly straightforward matters. There is a case for such tribunals when an individual's private future is at stake. Here we are not dealing with such matters, but with the potential financial liability of a carrying company. That is not cause for a separate administrative tribunal.

I believe therefore that disputes as to civil liability should continue to be dealt with in the normal way under this legislation, and that it is right that the exercise of discretion should be a matter for the Secretary of State's judgment. Surely the noble Lord, Lord Winstanley, will agree with me that it is far better for that discretion to be exercised by the Secretary of State, who is accountable to Parliament, rather than by a tribunal which is not. Of course the noble Lord, Lord Mishcon, is right when he says that it is always open to a carrying company to ask for a judicial review of the Home Secretary's decisions, for example, on grounds that he acted unreasonably. We believe that an appeal tribunal is not required to deal with any case where a carrier feels that the Home Secretary acted wholly unreasonably.

Lord Winstanley

My Lords, may I ask the noble Earl a question before he sits down? Are there any circumstances in which the Home Secretary would be prepared to look at a case again, or will it be that once he has made his judgment, that will be his judgment for all time? It is utterly final. Would he be prepared to look again at a case in which a person feels aggrieved?

The Earl of Caithness

My Lords, I apologise to the noble Lord for not covering that point in my answer. I meant to. Of course it is open to the carrying companies to make such representations as they see fit to the Secretary of State. If they receive a notice saying that the Secretary of State intends to charge the carrier, the carrier can of course make representations. They will be considered. If there is further evidence that comes afresh to the carrying company as the noble Lord suggested, of course, it would be considered.

As I have said on a number of occasions, we wish to treat the carrying companies entirely fairly in such matters. That is why my right honourable friend the Secretary of State has already exercised the discretion available to him under the Bill.

Lord Mishcon

My Lords, if I am considerate enough not to make a further speech, I stand a chance of receiving more support from your Lordships than if I do. I merely intend to say that I believe that this is a matter of such importance that the opinion of the House should be tested.

4.45 p.m.

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

Their Lordships divided: Contents, 97; Not-Contents, 135.

DIVISION NO.2
CONTENTS
Airedale, L.	Loyd of Kilgerran, L.
Amherst, E.	Lockwood, B.
Ardwick, L.	McNair, L. [Teller.]
Attlee, E.	Mar, C.
Aylestone, L.	Meston, L.
Banks, L.	Mishcon, L.
Birk, B.	Molloy, L.
Blackstone, B.	Monson, L.
Blease, L.	Mulley, L.
Blyton, L.	Nathan, L.
Boston of Faversham, L.	Oram, L.
Buckmaster, V.	Paget of Northampton, L.
Campbell of Eskan, L.	Parry, L.
Carmichael of Kelvingrove, L.	Peston, L.
Carter, L.	Phillips, B.
Chitnis, L.	Pitt of Hampstead, L.
Cledwyn of Penrhos, L.	Ponsonby of Shulbrede, L. [Teller.]
Davies of Penrhys, L.
Denington, B.	Rea, L.
Diamond, L.	Rhodes, L.
Donaldson of Kingsbridge, L.	Ritchie of Dundee, L.
Elwyn-Jones, L.	Rochester, L.
Ennals, L.	Ross of Marnock, L.
Falkland, V.	Rugby, L.
Fisher of Rednal, B.	Russell, E.
Foot, L.	Seear, B.
Galpern, L.	Sefton of Garston, L.
Graham of Edmonton, L.	Shackleton, L.
Gregson, L.	Stallard, L.
Grey, E.	Stedman, B.
Grimond, L.	Stewart of Fulham, L.
Harris of Greenwich, L.	Strabolgi, L.
Hatch of Lusby, L.	Tanlaw, L.
Henderson of Brompton, L.	Taylor of Gryfe, L.
Hirshfield, L.	Taylor of Mansfield, L.
Houghton of Sowerby, L.	Tordoff, L.
Hunt, L.	Underhill, L.
Hutchinson of Lullington, L.	Wallace of Coslany, L.
Irvine of Lairg, L.	Walston, L.
Jeger, B.	Wells-Pestell, L.
Jenkins of Putney, L.	Whaddon, L.
John-Mackie, L.	White, B.
Kilbracken, L.	Wigoder, L.
Kilmarnock, L.	Williams of Elvel, L.
Kinloss, Ly.	Wilson of Langside, L.
Kirkhill, L.	Wilson of Rievaulx, L.
Listowel, E.	Winstanley, L.
Llewelyn-Davies of Hastoe,	Winterbottom, L.
Lloyd of Hampstead, L.	Ypres, E.
NON-CONTENTS
Aldington, L.	Beaverbrook, L.
Alexander of Tunis, E.	Belhaven and Stenton, L.
Allenby of Megiddo, V.	Beloff, L.
Allerton, L.	Belstead, L.
Alport, L.	Bessborough, E.
Auckland, L.	Blake, L.
Bauer, L.	Blyth, L.

Boyd-Carpenter, L.	Layton, L.
Brabazon of Tara, L.	Long, V.
Brookes, L.	Lucas of Chilworth, L.
Brougham and Vaux, L.	Lyell, L.
Bruce-Gardyne, L.	McAlpine of Moffat, L.
Caithness, E.	McFadzean, L.
Campbell of Alloway, L.	Marley, L.
Camegy of Lour, B.	Marshall of Leeds, L.
Camock, L.	Maude of Stratford-upon
Cathcart, E.	Avon, L.
Chelwood, L.	Merrivale, L.
Coleraine, L.	Mersey, V.
Constantine of Stanmore, L.	Middleton, L.
Cork and Orrery, E.	Milverton, L.
Cottesloe, L.	Molson, L.
Cowley, E.	Monk Bretton, L.
Cox, B.	Montgomery of Alamein, V.
Craigmyle, L.	Mowbray and Stourton, L.
Crawford and Balcarres, E.	Munster, E.
Cullen of Ashbourne, L.	Murton of Lindisfarne, L.
Davidson, V. [Teller.]	Pike, B.
Denham, L. [Teller.]	Porritt, L.
Denning, L.	Portland, D.
Dilhorne, V.	Radnor, E.
Duncan-Sandys, L.	Rankeillour, L.
Dundee, E.	Rodney, L.
Ebbisham, L.	St. Aldwyn, E.
Eden of Winton, L.	St. Davids, V.
Edmund-Davies, L.	Saint Oswald, L.
Elliot of Harwood, B.	Saltoun of Abernethy, Ly.
Elliott of Morpeth, L.	Sanderson of Bowden, L.
Faithfull, B.	Sandford, L.
Fanshawe of Richmond, L.	Sandys, L.
Fortescue, E.	Selbourne, E.
Fraser of Kilmorack, L.	Selkirk, E.
Gardner of Parkes, B.	Sempill, Ly.
Geddes, L.	Sharples, B.
Gishorough, L.	Skelmersdale, L.
Glanusk, L.	Stanley of Alderley, L.
Glenarthur, L.	Stodart of Leaston, L.
Gormanston, V.	Strathcarron, L.
Gray, L.	Strathspey, L.
Gray of Contin, L.	Sudeley, L.
Greenway, L.	Swinfen, L.
Gridley, L.	Swinton, E.
Hailsham of Saint	Terrington, L.
Marylebone, L.	Teviot, L.
Halsbury, E.	Teynham, L.
Harmar-Nicholls, L.	Torpichen, L.
Harvington, L.	Trafford, L.
Hesketh, L.	Trefgarne, L.
Hives, L.	Trumpington, B.
Hood, V.	Ullswater, V.
Hooper, B.	Vaux of Harrowden, L.
Hylton-Foster, B.	Westbury, L.
Ilchester, E.	Whitelaw, V.
Jessel, L.	Wigram, L.
Johnston of Rockport, L.	Windlesham, L.
Kimball, L.	Wise, L.
Kimberley, E.	Wolfson, L.
Kinnaird, L.	Young, B.
Kitchener, E.

Resolved in the negative, and amendment disagreed to accordingly.

4.54 p.m.

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

Lord McNair moved Amendment No. 4:

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

The noble Lord said: I brought forward this amendment at the Committee stage and it elicited some information from the noble Earl which obtained for our deliberations the only coverage I could find in the national press. I have put down the amendment again because there are other questions that I want to ask him. It is a probing amendment, not that that makes the slightest difference. The first question concerns his answer at the Committee stage. He told us that 600 notifications had been sent out and that on 100 occasions notifications had not been sent out because the Home Secretary had exercised his discretion. I should like to know how this rate of arrivals between 5th March and when that information was given compares with the rate of arrivals in a comparable period before 5th March? In other words, does the noble Earl think that the Bill is working?

I was able to give the noble Earl notice of my other questions. First, of the 600 notifications that are mentioned, how many were cases of people who had asked for asylum? Secondly, how many of those 600 people were immediately deported? Thirdly, in what kinds of circumstances did the Home Secretary exercise his discretion not to levy a fine? My fourth question, which may be the most important, is: will the Home Office be keeping such records on the operation of this Bill when enacted to enable Ministers to answer questions about the various categories of passenger for whose carriage carriers have been found liable? I say no more. I shall be most interested to hear the answers of the noble Earl.

The Earl of Caithness

My Lords, the noble Lord, Lord McNair, has asked a series of questions about the operation of the legislation, of which he was kind enough to give me advance notice this morning. Between 5th March and 26th April about 180 passengers have arrived at the ports to claim asylum, of whom just under 50 had the right documentation. At an average of about 25 port asylum applications a week this represents a considerable reduction in the figures for the previous month when applications were running at an average of about 60 a week. In the great majority of cases where a carrier has been notified of liability it was because a passenger had no valid visa. The general rule is that people without valid visas are refused entry and removed. Similarly, the great majority of cases where discretion has already been exercised involve passengers without a valid visa. Those where no warning letter was issued include many of the circumstances already described to the House: where a carrier has been compelled to bring someone here by an overseas authority through no fault of his own; where a stowaway has been brought and the carrier has done everything reasonable to stop unauthorised people from using his services; where a passenger came from within the common travel area; where a passenger not intending to seek entry to the United Kingdom had had to do so, for example, because he had missed an onward flight; where there was a genuine misunderstanding with a carrier; and a number of varied cases where there were particular compassionate circumstances—for example, following the Zeebrugge disaster or because someone had unexpectedly to accompany a very sick child.

It is not possible in all cases to link the figures for undocumented arrivals under the Bill with the subsequent immigration history of the individual passenger, but we shall continue to keep records of the type of cases in which we decide to exercise discretion and a breakdown of the reasons why a charge was made. With that, I hope that the noble Lord, Lord McNair, will be satisfied that we are keeping the situation very much under review and I am sure he will note that the Bill is working very satisfactorily.

5 p.m.

Lord McNair

My Lords, I am most grateful to the Minister for that very full answer. I am not quick-witted enough to take in all the implications of the answer as he read it out so I shall look at it with great care tomorrow in the Official Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mishcon moved Amendment No. 5:

Page 2, line 13, 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)The Secretary of State may by order made by statutory instrument extend from year to year any order made under subsection (5) above.

(7)No instruments shall be made under subsections (5) or (6) above unless a draft of them has been laid before and approved by a resolution of each House of Parliament.").

The noble Lord said: My Lords, at Committee stage I ventured to suggest that it would be wise, as this Bill was born out of an emergency, to treat it as an emergency measure and to limit its life to 12 months. The noble Earl made a very reasonable response to that request in that he pointed out that 12 months was rather a brief period. He reminded me—and it was kind of him to do so—that in my amendment I had not produced the effect I thought I had, which was to make the Act renewable annually. In other words, it would come to rest at the end of the 12-month period unless it was renewed for a further period of 12 months.

I am somewhat reminded of a review by James Agate, whose cynical words brought a great deal of pleasure to some people and a great deal of pain to others. He was reviewing a piece of musical comedy of which a relation of mine was the joint composer. He remembered to the very end of his days the words of James Agate, which were, At the end of the second scene of the first act one of the characters says, 'Methinks I should not be here'. Me took the hint: me went". That was the pungent criticism of James Agate.

I similarly have taken the hint from the noble Earl. I now have down an amendment which would make the Act renewable year by year. If Parliament so decides or if Parliament otherwise decides, it comes to an end. As this legislation was born out of an emergency, I hope that the amendment will commend itself to the House.

Lord Campbell of Alloway

My Lords, surely this is not an emergency measure as that is ordinarily understood. It is a permanent component part of our immigration control. As I understand it, the intention is that this pattern of Bill will be accepted throughout Europe on a recriprocal basis. In these circumstances the amendment surely would not be appropriate.

The Earl of Caithness

My Lords, I am grateful for the honeyed words of the noble Lord, Lord Mishcon, but despite the tasteful honey I find them as unpalatable as I found them at Committee stage. I do not believe that the Bill requires the annual parliamentary consideratation that the amendment proposes. I took careful note of what the noble Lord said on this matter during the Committee stage, when he sought to argue, quoting from a speech by my right honourable friend the Secretary of State in another place, that the Bill was some kind of emergency measure. It is urgent but is not and has never been intended to be a temporary provision.

It is quite true that it was the arrival here late last year and early this year of large numbers of undocumented passengers that provided what my right honourable friend described as the immediate spur to this proposal. It would have been quite irresponsible of us simply to have ignored those events and taken no action to prevent their recurrence. That is why we acted quickly to introduce this Bill, not as an emergency procedure but as the swift response that this responsible Government demand.

But this Bill is intended to form a permanent part of our immigration control, as my noble friend Lord Campbell of Alloway has just said, just as European Community Ministers have agreed to recommend the introduction of similar legislation in all member countries. It raises no novel points either in comparison with other countries' legislation, or indeed in our interpretation of the responsibilites of carrying countries. As your Lordships know, it builds on the long accepted responsibilities of carrying companies under the Immigration Act 1971. It raises no new issues. It seeks only to ensure that people who wish to come here have the documents which they need and which Parliament has approved before they set out.

These are not matters which need or which should be introduced as temporary provisions or which should of their nature be kept under regular parliamentary review. Of course in changing world conditions they may not be the whole answer, but they will remain an important and useful part of the armoury of immigration control for the foreseeable future. There is therefore nothing to be gained by looking at the matter again in 12 months' time and every 12 months thereafter. To do so would be an unnecessary burden on our parliamentary procedures which would not be justified by the intrinsic nature of the legislation and it would leave carriers in a state of continuing and annual uncertainty about Parliament's intentions.

That is not in the carriers' interest, nor in the interests of maintaining an orderly policy of immigration control. I regret to have to say to the noble Lord, Lord Mishcon, that I can only advise the House not to accept this amendment.

Lord Mishcon

My Lords, I accept the expression of regret from the noble Earl. I too regret his reply but realise that there would be no point in this instance in testing the opinion of the House. I therefore ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Then, Standing Order No. 44 having been suspended (pursuant to Resolution of today's date):

The Earl of Caithness

My Lords, I beg to move that the Bill be now read a third time.

Lord Mishcon

My Lords, before the Bill passes through your Lordships' House, and, with the speed to which we shall be accustomed over the next few days, finds it way on to the statute book a few words are appropriate and not many more. From these Benches we have realised the whole time that two aspects ought to be fought: first, the attempted immigrant who cheats; and, secondly, the carrier who makes a fortune or endeavours to do so out of the misery of others. We join the Government in wanting to make provision in legislation to defeat both those sets of people.

We have tried to tight from these Benches to ensure that the genuine immigrant is not impeded from making his plea to a country which has never refused to listen to the pleas of those who are in danger of losing their lives or in fear of persecution. I believe that that was a right battle to fight. If I may say so, not only the House has been fair in listening to those arguments but in particular the Minister has been patient, tolerant and courteous in listening to them.

From these Benches I do not regret the aim of the battle that we waged but now the end of the battle is here and one can only pray, as I am sure will be the case, that the Secretary of State when reading of your Lordships' deliberations will decide to use the discretion of which we have heard so much with mercy and tolerance, as befits our country.

Lord McNair

My Lords, in wishing this Bill not so much bon voyage —perhaps mal de mer is a better expression—I should like to make one serious point. We have not opposed the principle of the Bill but I fear that unamended it will sooner or later have some tragic consequences. I am afraid that sooner or later somebody will not get on a flight or a ship because of this Bill, somebody who would otherwise have reached our shores and would have been given asylum had he done so. I just hope and pray that I am wrong.

Lord Denning

My Lords, I should just like to congratulate the Government on the speed and efficacy of this legislation. It will do a great deal to stop those racketeers who have been making money out of innocent people.

Lord Campbell of Alloway

My Lords, I merely wish to endorse what the noble and learned Lord, Lord Denning, said. There was a terrifying abuse and this Bill is a reasonable and measured response to curb it.

The Earl of Caithness

My Lords, the Bill has benefited from the careful and full discussion that we have had both today and on two previous parliamentary occasions. I should like to take this opportunity of thanking all noble Lords who took part in it and my noble friends and the noble and learned Lord, Lord Denning for the support that I have received. It is perhaps difficult to imagine two clauses being given more careful scrutiny.

For our part the Government welcome these opportunities to set out the case for this legislation and to do our best to dispel misapprehensions and misunderstandings. Our debates have, I believe, helped to clarify and explain what is basically a short, simple but effective provision to deal with the problem of carriers accepting people for travel who do not have the basic documents for their journeys.

Your Lordships have understandably concentrated on the possible effect on genuine refugees. At each stage I have taken every opportunity to confirm the Government's continuing commitment to the 1951 Convention on Refugees and to show that in practice there is no necessary link between a genuine refugee and the absence of proper documentation. The vast majority of genuine refugees will not be affected in any way at all by this legislation.

I think there has been some measure of agreement in this House that we have a problem of asylum abuse which we share with many other countries in the Western world. I ask the House to recognise that we are not alone in concluding that legislation of this sort is the right response. Our response is fully in accord with the recommendations recently made to all the members of the Economic Community and with the action taken in many other parts of the world.

The strength and effectiveness of this measure lie in its simplicity and in the fact that its requirements are all-embracing. I am sure your Lordships have been right to resist attempts to import various savings into the Bill which would open up obvious and unacceptable loopholes. But I again assure your Lordships that the Home Secretary will use his powers to exercise discretion sensibly, reasonably and with good judgment. He will continue to maintain a good balance between compassion and the need to bring home to carriers their responsibilities.

I cannot accept that the Bill in any way detracts from the Government's continued commitment to providing for refugees under the 1951 convention. This country is rightly proud of its reputation for accepting genuine refugees and this Government's record is an honourable and generous one, as the figures show. Between 1979 and 1985 we granted refugee status or asylum to over 7,500 people—that is, an average of over 20 each week. This response represents a real and practical commitment to helping with the problem of genuine refugees.

In addition, we have played a key part in resettling a substantial number of Indo-Chinese refugees; and on 8th May my right honourable friend the Home Secretary announced that the Government were ready to receive a further 468 from Hong Kong. We believe, as has happened before, that this commitment will help to pave the way to other countries offering further help. This is not the response of a government seeking to ignore the needs of genuine refugees and surely demonstrates in the clearest way possible the practical action which the Government are ready to take in dealing in a responsible and planned way with the needs of genuine refugees.

We have also made significant practical contributions to help the victims of various disasters—famine and civil war—throughout the world. Over the last financial year, we provided £32 million in aid to various programmes, many run under the auspices of the United Nations High Commissioner for Refugees; and we have agreed with our European partners to play our part in a European Community contribution equivalent to over £100 million for refugee assistance to the African, Caribbean and Pacific countries in the years from 1986 to 1990.

I believe we would be right to give the Bill its Third Reading. Our debates and detailed consideration have shown it is a necessary response to a serious problem. They have shown too that this legislation has withstood a most searching examination by your Lordships and, as I have reported to the House, that it is working in a sensible, humane and effective way. I believe the evidence will continue to show that the Bill presents no threat to or reflection on this country's continued commitment to genuine refugees, which rightly this House holds dear, but that it will ensure that this country continues to have the effective control on immigration which I believe the whole House accepts that we need. I commend the Bill to your Lordships.

On Question, Bill read a third time.

The Earl of Caithness

My Lords, I beg to move that the Bill do now pass.

Moved, That the Bill do now pass.—(The Earl of Caithness.)

On Question, Bill passed.