HL Deb 12 July 1999 vol 604 cc147-64

(".—(1) The Secretary of State may, at the request of any person and in consideration of such charges as he may determine, make arrangements—

  1. (a) for the provision at any control port of immigration officers or facilities in addition to those (if any) needed to provide a basic service at the port;
  2. (b) for the provision of immigration officers or facilities for dealing with passengers of a particular description or in particular circumstances.

(2) "Control port" has the same meaning as in section 21.

(3) "Facilities" includes equipment.

(4) "Basic service" has such meaning as may be prescribed.").

The noble Lord said: This group of amendments comprises in addition Amendments Nos. 217 and 220. This clause replaces Section 9(4) of the Immigration Act 1988 and clarifies the Secretary of State's powers to provide on request, and in return for a charge, additional immigration services or to provide immigration officers or facilities to deal with passengers of a particular description. We have in mind, for example, fast-track clearance at airports or cruise liner immigration clearance.

We want to work in close partnership with the port authorities but need to clarify existing provisions, to ensure that charges can be made when a port requires additional immigration control resources to be provided. We need to define the level of service to be provided without charge-the "basic service". We are working closely with DETR officials and have had numerous detailed discussions with various organisations likely to be affected, both before and since the publication of the White Paper. We are consulting with industry representatives and hope to reach a reasonable agreement on the definition of "basic service".

Our intention is to provide a publicly funded basic service at all control ports, whether or not designated as ports of entry under Section 33(3) of the Immigration Act 1971. If a different level of service is required, that should be made available on request for payment. Amendments Nos. 217 and 220 are consequential changes to Schedules 13 and 15. I beg to move.

On Question, amendment agreed to.

Clause 22 [Deception]:

Lord Cope of Berkeley moved Amendment No. 42:

Page 16, line 8. after ("include") insert ("material").

The noble Lord said: This clause criminalises asylum seekers who use any deception. I do not disagree with that as a general overall principle, but it seems to me that, in some cases, there will be a small level of deception which should not lead to the same consequences as would a major attempt to get into the country by absolute deception. We must remember that many of these people are under great strain at the time of their arrival when seeking asylum. In those circumstances, we all know that the whole truth may not come out. Withholding some piece of evidence, or the fact that some evidence was not disclosed, might be regarded as deception. Indeed, "deception" is not only telling a falsehood; it is also omitting to disclose some information which later turns out to be material.

Therefore, it seems to me that we should modify the clause slightly by adding the word "material", so that only "material deception" can lead to such fierce penalties. I beg to move.

Lord Hylton

It seems to me that the amendment just moved by the noble Lord, Lord Cope of Berkeley, is necessary. It may save the time of the Committee if I try now to explain the reasons that moved me to give notice of my intention to oppose the Question that Clause 22 should stand part of the Bill.

I was concerned with current applications to enter or remain in the United Kingdom and not with people who may be resisting enforcement action. I was particularly concerned that mere inaccuracy, perhaps in describing events that occurred some time ago, should not be construed as deception. Asylum seekers may well have escaped from a persecuting or life-threatening country only by concealing or embellishing the bare truth of their situation. They might feel an obligation to maintain the consistency of their stories on arriving in this country.

There have been cases in the past where immigration officials have seized on minor inconsistencies or errors in an application to cast doubt on the applicant's whole case. It would be wrong for the culture of disbelief to be enshrined by more than one reference to "deception" in the Bill. In my view, it is also important that inability or refusal to answer intimate questions should not be understood as deception in cases of torture or rape victims.

I was further alarmed by the fact that neither the 1971 nor the 1996 Act define the meaning of "deception". On April 20th, the Minister in another place apparently referred to the definition in the theft Acts, but only in the context of penalties, so that what he then said may not be relevant to the main purposes of this Bill. I have seen and read a learned article in Criminal Law by Sir John Smith QC and the late Mr Brian Hogan of Grays Inn but as this refers only to the theft Acts it also may not be of much help. What I seek both in immigration and asylum cases is that each one should be treated fairly on its individual merits and in particular that deception should not be read into cases where it was not intentional, deliberate, fraudulent or dishonest. Amendment No. 42 may meet this case. I shall in any case look forward to hearing the reply of the Minister.


Lord Alton of Liverpool

I support the remarks of my noble friend Lord Hylton on Amendment No. 42. However, I wish to ask the Government about the conflict that may arise under Article 31 of the Refugee Convention and Clause 22 as it currently stands. In so far as the measure may be applied to asylum seekers and refugees, particularly to those entering on false documents, do not the Government agree that it should be amended to limit its scope and definition and that that should be reflected in guidelines to prosecuting authorities? If the Government fail to do that, a conflict may arise with regard to Article 31 of the Refugee Convention. That could leave the Government open to action and possibly to further cases of judicial review.

Earl Russell

At Second Reading of this Bill I referred, perhaps in a slightly lighthearted way, to the possibility that one might argue that asylum seekers were more likely to be fraudulent if they came on genuine documentation than if they came on false documentation. Since then I have had the dubious pleasure of reading the Asylum Aid publication, Still No Reason At All. I found that I should not have been so lighthearted. What I was treating as a joke is fact. In the words of the publication, A staple of refusal letters runs thus: The Secretary of State notes that you were able to obtain a properly issued passport which you then used to leave [country as appropriate] through normal immigration channels without difficulty. He has concluded that this indicates the authorities have no interest in you". But if not using deception leads one to be regarded as an asylum seeker who is abusing the system, and using deception excludes one from the process, is not the right of asylum being rendered nugatory?

I support the point that the noble Lord, Lord Alton of Liverpool, made about Article 31 of the Refugee Convention. With the leave of the Committee I wish to read Article 31(1), The contracting states shall not impose penalties on account of their illegal entry or presence on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article I, enter or are present in their territory without authorisation provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence". I ask the Minister to reconcile Article 31(1) of the UN Convention of 1951 with Clause 22 Of this Bill.

Lord Falconer of Thoroton

Clause 22 extends and strengthens the existing deception offence under Clause 24A(1)(a) of the 1971 Act. The effect of the amendment of the noble Lord, Lord Cope of Berkeley, would be to insert the word "material" before "deception" in the new offence. The word "material" does not appear in the current offence and I do not believe that it is necessary. It seems to me beyond doubt that for any prosecution under the new offence to succeed it will have to demonstrate that any deception is material to a person's obtaining, or seeking to obtain, leave to enter or remain, or their securing, or seeking to secure, the avoidance, postponement, or revocation of enforcement action. This is because new Section 24A(1) makes clear that the means used have to include deception.

Just to make that clear, Section 24A(1) states: A person who is not a British citizen is guilty of an offence if, by means which include deception by him … he obtains or seeks to obtain leave to enter or remain in the United Kingdom". So the deception must be one of the things that led to him getting the right to enter. If it did not contribute to that, then it is not material. The word "material" is not in the existing offence; this part of the section is a repetition of the existing offence. It is not necessary, therefore, to put it in because the position is exactly as the noble Lord, Lord Cope of Berkeley, would wish it to be.

As far as concerns the more general points, we understand, of course, that an asylum seeker may arrive here with false documents or no documents at all. Genuine refugees who arrive here directly from a territory where they fear for their life or freedom, and who present themselves without delay and claim asylum, are covered by Article 31 of the 1951 Convention. This will be taken into account by the prosecuting authorities in determining whether to prosecute. It will be for the Crown Prosecution Service ultimately to decide whether any prosecution should proceed. It may very well not be in the public interest to do so unless there has been serious deception. Even having regard to Article 31, we believe that the criminal law has a proper role to play in some cases.

I hope in the light of those assurances that the noble Lord will not press his amendment.

Earl Russell

I was very interested in—and, in part, very grateful for—the Minister's reply about Article 31. The Minister was following the line already taken in the Notes on Clauses. I should be more reassured if he would go a little further and guarantee to tighten the wording of the Bill to make it say no more than is said in the Notes on Clauses. That would be a very helpful offering.

Lord Hylton

It may well be that "material" is not the right word. If that is the case, how about "intentional'', "deliberate", "fraudulent" or "dishonest"?

Lord Cope of Berkeley

Unless the Minister wishes to respond to those comments, I have heard what he said and I will study it carefully. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 agreed to.

Clause 23 [Facilitation of entry]:

Lord Williams of Mostyn moved Amendment No. 43:

Page 16, line 42, at end insert ("or").

The noble Lord said: I have already spoken to the amendment. I beg to move.

On Question, amendment agreed to.

Clause 23, as amended, agreed to.

Clause 24 agreed to.

Clause 25 [Penalty for carrying clandestine entrants]:

Lord Cope of Berkeley moved Amendment No. 44:

Page 18, line 6, at end insert— ("provided always that any sum paid by way of penalty under this section shall he refunded to the person or persons responsible, in any case where the Secretary of State finds that the passenger is irremovable from the UK because his removal would be contrary to the Convention or the Human Rights Act 1998.").

The noble Lord said: I beg to move Amendment No. 44. The amendment brings us on to Part II of the Bill. We have left the general provisions on immigration and come to carriers' liability and, in particular, the penalty for carrying clandestine entrants.

It is provided by the Bill that lorry drivers or lorry operators, ships' captains and other people should be subject to a penalty if it is discovered—by them or by anybody else—that clandestine immigrants have been carried on the vehicle or the ship in question. There have, of course, been similar provisions in regard to aircraft for some time. However, in the aircraft provisions, I understand that if it is subsequently found that the person in question is legally admitted into the country under one of the international conventions we have been discussing, or for some other reason, then the penalty that the airline has paid in respect of that person is refunded. That seems to me to be fair enough. There is no equivalent provision in the Bill so far as vehicles or ships are concerned. It seems to me that there should be. Amendment No. 44 seeks to insert such a provision.

Lord Williams of Mostyn

It may be helpful if I briefly define our thinking behind this penalty and our resistance to the amendment.

A civil penalty is constructed to catch the transport of all clandestine entrants who either seek to evade immigration control or seek to claim asylum. So the aim of the penalty is to make drivers ensure that the security checks are operated on every occasion to prevent entry of clandestines and to ensure that would-be clandestines know that that is happening. Whether or not an individual clandestine entrant has a genuine case is not relevant to the issue of whether proper checks have been taken with regard to a transporter to prevent the carriage of clandestine entrants generally.

The difference identified by the noble Lord, Lord Cope, is a difference because the circumstances are different. A great deal of control is available over fare-paying passengers entering aircraft and ferries. The civil penalty that we are looking at is aimed deliberately at dealing with a much less secure situation. Whether or not the clandestine is ultimately successful does not bear on the true point here; namely, has the driver actually carried out his duties to check? If he has failed, the penalty has to remain.

Lord Cope of Berkeley

The position as regards a ship is similar to that of an aircraft in the sense that aircraft staff examine the documents in an attempt to ascertain whether someone is genuine. Sometimes they make mistakes and someone who turns out to be clandestine and is therefore not admissible is nevertheless allowed on the aircraft. The same must occasionally happen so far as ships are concerned. The comparison is extremely direct. The Minister explained some differences in regard to drivers. I accept that there is an element of difference, although it is still rather unfair if people are ultimately admitted. But ships seem to be in exactly the same position as aircraft.

Lord Berkeley

To follow the argument advanced by the noble Lord, Lord Cope, most ferries carry both cars and lorries. So there will be two different types of clandestine immigrants. If they have come in a car and are allowed to stay, the ship's captain is not liable; but if they have travelled in a lorry on the same ship, he is liable. I agree that it is rather unfair.

Lord Cope of Berkeley

We shall come to the question of cars when debating Amendment No. 62. The Minister does not seem inclined to respond further to my comments. I shall therefore have to ponder the matter further. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Berkeley moved Amendment No. 45:

Page 18, line 17, at end insert— ("(d) if it is a transporter ("the carried transporter") being carried in or on another transporter, the owner, hirer, driver or operator of the transporter in or on which it is carried").

The noble Lord said: I was interested to see the definition of a transporter: the carried transporter being carried in or on another transporter—which I believe means a shuttle train going through the Tunnel. However, the definition at line 12 on page 26 of the Bill is "not a shuttle train".

My amendments are designed to probe the "inequity" between ferries and shuttle trains. On ferries, the lorry driver, the owner of the trailer or the captain of the ship is potentially guilty. But if the lorry or trailer goes on a shuttle, the lorry driver or trailer owner or operator is guilty but the operator of the shuttle is not guilty. If I were a shuttle owner, I would be very pleased; if I were a ship owner, I would regard it as very unfair. Perhaps my noble friend can explain the difference between the two forms of transport which both take the same kind of lorry.

12.15 a.m.

Lord Williams of Mostyn

We believe that it is sensible that the civil penalty should attach to the owner, hirer or driver of the lorry. If that lorry arrives on a ferry, it is the owner, hirer or driver of that lorry, not those responsible for the ferry, who should be liable. We are trying to bite on weak security that allows clandestines to conceal themselves in a lorry. The effect of Amendment No. 45 is to try to reverse that. We do not believe that the owner, hirer, driver or operator of a ferry which carries a lorry containing a clandestine should be "a responsible person" within the meaning of Clause 25(5). If a person arrives concealed in a lorry, it is right that the owner, hirer or driver of that lorry should be responsible.

Shuttle trains are different, in that they carry vehicles which have already passed through UK immigration controls. It is for that reason that we draw a distinction here. We believe that it is legitimate to require those who are responsible for lorries to satisfy themselves, as they can, that their systems are appropriate and that they do not bring clandestines into this country.

Lord Cope of Berkeley

The Minister gives a very interesting answer which has much wider ramifications. Many lorry drivers drive the tractors of articulated vehicles to France and collect trailers that have already been sealed by Customs. The driver has no means of checking the contents of that trailer in any practical way. It seems to me that he is in exactly the same position as the shuttle train. A lorry may have a container on the back which is loaded and sealed elsewhere and is not under the control of the driver, let alone the hirer, even less the owner, who may be a very long way away from the point at which the driver picks up that container. If the Minister relies on the arguments that he has just advanced for shuttle trains, they should apply also to articulated container lorries and, in some cases, to ships.

Lord Berkeley

I too find the answer given by my noble friend interesting. Perhaps my noble friend can say at what stage the lorry driver, or whoever else may be liable, commits an offence. Is it when he or she enters UK territorial waters, or crosses the frontier, or passes through immigration? If it arises when the driver passes through immigration, presumably the immigration people can look for the illegal immigrants. The driver will not have committed an offence until he lands on British soil, in which case he is all right if he travels by shuttle. Perhaps my noble friend can assist me out of my confusion.

Baroness Williams of Crosby

The noble Lord, Lord Berkeley, is not alone in being confused. I find myself profoundly confused. It appears that an offence is committed if any clandestine is carried. Even if that clandestine turns out subsequently to be a legitimate asylum seeker, the ring will be closed. I do not see how anyone who is a legitimate asylum seeker can ever get into the country.

Lord Williams of Mostyn

The answer to my noble friend's question can be found in Clause 25(1): A person is a clandestine entrant if— (a) he arrives in the United Kingdom concealed in a vehicle, ship or aircraft". That is the point at which he commits an offence.

Clause 25(5) states: In the case of a clandestine entrant to whom subsection(1)(a) applies, each of the following is a responsible person". If one reads through the scheme at Clause 25, it becomes straightforward.

I was asked about the driver who picks up a trailer. Such a driver will have to pass through UK immigration control. It is the responsibility of the driver and the owner to ensure that the system is in place for checking. Some checks have already been successfully undertaken by some companies.

Lord Berkeley

I am grateful to the Minister for that answer. Clause 25 states that, A person is a clandestine entrant if he arrives in the United Kingdom". If he travels on a lorry on the Shuttle he has gone through immigration in France, so he has not entered the United Kingdom. Presumably if the British immigration authorities in France picked him up, and no one else did so, he has not entered the United Kingdom and has not committed an offence. If the immigration authority has not picked him up it is probably not doing its job properly. I fear that the situation is still confusing.

Lord Williams of Mostyn

No, because the situation that the noble Lord now describes is provided for in Clause 25(1)(b).

Lord Berkeley

I am grateful to the Minister. It has been an interesting discussion. It will need careful study. I hope that I shall not have to return to the matter at Report stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 46 not moved.]

Lord Berkeley moved Amendment No. 47:

Page 18, line 36, at end insert— ("(11) This section shall not come into effect until—

  1. (a) the Secretary of State has procured the implementation of suitable systems for preventing and detecting clandestine immigrants: and
  2. (b) the Secretary of State has demonstrated that the systems will not cause any additional cost or significant delay to the persons responsible.").

The noble Lord said: While Amendment No. 47 relates to a different issue, we have touched on it in previous amendments. It relates to the setting up of the systems for the operators and anyone else who may be liable if clandestine entrants are involved.

The noble Lord, Lord Cope, referred to this point. How does the driver who picks up the load know whether there is anyone inside? I have conducted some investigation. Among the methods used for getting into containers is cutting the roofs and sides of the lorries with a Stanley knife, then taping the sides to look as though they have not been broken. The Custom seals are broken but they can be replaced with forged seals. It is extremely difficult to tell whether someone is inside the lorry.

If the poor driver is to be certain that there is no one inside, someone will have to issue him with a ladder to climb on to the roof. One answer might be for the Government to issue all drivers with collapsible ladders! At Second Reading, I mentioned the biomass detector which is working between Mexico and the United States. Dogs can also be used. However, the most efficient way is to have the screening at the ports or the Eurotunnel terminal in France. It is up to the Government to ask the neighbouring member states to supply those facilities so that the lorries going through can be screened.

There is already a major security programme for the Channel Tunnel. All trains and lorries coming into the tunnel are screened. I do not understand why the security people undertaking that on behalf of the French Government, whose responsibility it is, should not extend that screening to illegal immigrants.

It is unfair that drivers have no means of telling who is in the lorries, but they will still be liable. I beg to move.

Lord Cope of Berkeley

Amendment No. 47 is important. It covers some of the points which I proposed to raise on Amendment No. 51, and so on. A draft code of practice is brought into effect a little later in the Bill. It attempts to lay down what drivers and others have to do in order to avoid being charged under these clauses.

The code of practice has not yet been agreed by the relevant trade associations. It is important that it should be agreed, but it is a difficult practical matter both for the Government and those representing the Government in the negotiations and for the trade associations. The practical difficulties to which the noble Lord, Lord Berkeley, drew attention are among those that must be considered in the code of practice.

I think that this code of practice must be agreed rather than imposed if that is at all possible. That is why I put Amendment No. 48 on the Marshalled List. It seeks to ensure that the Secretary of State is not obliged to have agreed by the time the Bill is enacted in case the negotiations drag on. The noble Lord also suggested that, before issuing the code of practice, the Secretary must consult and reach agreement. I think that my amendment would be necessary if his were passed.

The code of practice is difficult because of subsections (4) and (5) of Clause 27 to which my Amendment No. 51 draws attention. That is the bit in the Bill that turns the code of practice into a legal requirement, rather than something that is desirable—such as the Highway Code and other similar codes of practice. Clause 27(4) does that by saying: In determining, for the purposes of this section, whether a particular system is effective, regard is to be had to the code of practice". Under Clause 27(3)(b), the carrier must show that he has an effective system. However, if an immigrant succeeded in getting through immigration control, the system was patently not effective. Therefore, it is no defence for the driver, operator, hirer or anyone else involved to say, "Well, we have a system", because it was patently not effective. We all know that no system is perfect and that no system of control by immigration officers will work 100 per cent. Yet, as I see it, the lorry driver has an obligation to comply with every detail of the code of practice—and, what is more, to succeed—if he is not to fall foul of this clause and end up paying the penalty.

In view of the lateness of the hour, I am seeking to group together Amendment No. 47 moved by the noble Lord, Lord Berkeley, Amendments Nos. 48, 49 and 51 to the following two clauses and, by implication—I hope that the noble Lord will forgive me—Amendment No. 50 on consultation.

Earl Russell

The key point that the noble Lord, Lord Berkeley, made was that the driver often simply does not know—and has no opportunity to know—whether someone is in his cab and he does not always have access to the rear part of the transporter. In that context, I have looked with some apprehension at Clause 25(7), which states: it is immaterial whether a responsible person knew or suspected … that the clandestine entrant was concealed in the transporter". That is the doctrine of the absolute offence: it does not require any mens rea at all on the part of the accused. That is quite rare in English law, and United States courts in some cases—one for which my New York lawyer boasted at great length about being responsible—have refused to recognise British convictions reached under the absolute offence. I do not think that that will do our legal reputation very much good.

Another question arises. It may possibly be the case that the person concealed inside the transporter is a genuine refugee with full convention entitlement. There is no way in which that can be known until his case is examined. What will happen to the genuine refugee who is detected in those circumstances? Will his claim be heard; or will he be sent back, in which case the Government will be in breach of Article 33 of the UN Convention on Refugees? That point needs to be answered before we go any further.

12.30 a.m.

Baroness Williams of Crosby

Before the noble Lord, Lord Berkeley, responds, perhaps I may say a few words about Amendment No. 50. Amendment No. 50 states that before issuing the code of practice the Secretary of State should consult and reach agreement with those affected. A very troubling offence would be committed by lorry drivers and other transport operators with regard to carrying a clandestine person about whom they knew nothing. It is therefore crucial that before any such code of practice is issued, they should be fully consulted and their views and concerns taken into account.

In view of what my noble friend said, it is clear that the bodies that represent the interests of genuine asylum seekers should also be consulted about the code of practice. As matters stand, we are looking at a ring of steel which in some remarkable way is clapped on both genuine asylum seekers and those involved in the transport industry. It seems remarkable that the Bill achieves both of those results. This group of clauses is extremely disturbing and we would hope to return to them at Report stage if no answer is given at the present time.

Lord Williams of Mostyn

I do not think the noble Baroness spoke to the group with which we are dealing. The group has one amendment, Amendment No. 47, which stands in the name of the noble Lord, Lord Berkeley. The next group is Amendments Nos. 48, 49 and 50, which stand in the names of the noble Lord, Lord Cope, and the noble Viscount, Lord Astor. Amendment No. 47 is the amendment of the noble Lord, Lord Berkeley.

The civil penalty—I am now repeating what I said earlier—is a vital measure to combat a major problem of large-scale clandestine illegal immigration. Amendment No. 47 puts a dual duty on the Secretary of State: first, to procure the implementation of systems for the prevention and detection of clandestines, and, secondly, to demonstrate that such systems would not cause any additional cost or significant delay. A large number of systems, or aspects of systems, are already capable of preventing the entry of clandestines into vehicles: sturdy locks, metal-sided containers and a number of other measures, together with the regular checking of vehicles. There is scope for improvement in the security of many vehicles coming to this country. The point of the civil penalty is to bring that about.

One needs to look at a number of these clauses together. The noble Earl, Lord Russell, referred to Clause 25(7) and the absolute nature of the offence. However, Clause 25(7) is specifically subject to any defence provided by Clause 27. Clause 27 provides the defences. Clause 27(2) deals with duress. Under Clause 27(3), the carrier has a defence if he shows that he did not know, and had no reasonable grounds for suspecting, that a clandestine entrant was, or might be, concealed in the transporter; that he had an effective system for preventing the carriage of clandestine entrants; and that on the occasion in question the person or persons responsible for operating that system did so properly. To test whether or not the system is effective, one has to pay attention to the code of practice. That seems to me to be a series of measures of sensible practical utility.

I take the point made by the noble Lord, Lord Cope, that we need to consult as widely as possible on the code of practice. We want to minimise any additional burden on transport operators. Many have appropriate and effective systems. The code of practice is dealt with in Clause 26 and I reiterate that we do not want unnecessary unreasonable burdens in terms of either efficiency or cost. One needs to look at all these subsections together and not any one separately.

Lord Berkeley

I am grateful to my noble friend for his reply. On Second Reading, I asked whether he would place in the Library a copy of the draft code of practice. I understand that a draft is circulating the industry. It would be helpful if Members of the Committee could have a copy so that we can see whether our fears are unfounded and whether there is no problem where there are sturdy locks and metal-sided containers, and if people do not have Stanley knives. I remain concerned until I have seen the code, so perhaps the Minister can respond now.

Lord Cope of Berkeley

The Minister kindly sent me a copy of the code of practice and I shall be happy to give a copy to the noble Lord, Lord Berkeley. I believe that it has been placed in the Library.

Lord Williams of Mostyn

I am grateful, as always. There was an awful moment when I wondered whether I had signed the letter; Alzheimer's is a terrible disease; perhaps I had forgotten! I am grateful to the noble Lord for being so courteous as to remind me.

Lord Berkeley

On that basis, I am grateful to the noble Lord, Lord Cope, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 agreed to.

Clause 26 [Code of Practice]:

[Amendments Nos. 48 to 50 not moved.]

Clause 26 agreed to.

Clause 27 [Defences to claim that penalty is due under section 25]:

[Amendment No. 51 not moved.]

Clause 27 agreed to.

Clause 28 [Procedure]:

Lord Cope of Berkeley moved Amendment No. 52:

Page 19, line 40, leave out subsections (4) and (5).

The noble Lord said: It seems to me that subsections (4) and (5) are particularly obnoxious. They provide that: If a penalty notice is served on one of the responsible persons, the Secretary of State is to be taken to have served the required penalty notice on each of them", and that he must nevertheless take reasonable steps to do so. That is all very well, but the responsible persons listed in the earlier clause include, in the case of a lorry, the driver, the operator, the owner and the hirer of each part of it, as it were. There may be a difference between the tractor unit of an articulated lorry and the trailer unit which may be carrying a container. Each may have different owners, be subject to different hire agreements and have different operators.

A large number of people in different countries may be involved, yet if an immigration officer serves a piece of paper on the driver, who will normally be the man in the hot seat when the immigrants are discovered, that is assumed to be served not merely on his employer, but also on all kinds of people who have never heard of the driver and are nothing to do with the immediate circumstances in which the apparent offence has been committed. However, they are expected to know about it. What is more, their property is liable to be detained and subsequently confiscated. They are assumed to have had the notice simply because it has been served on the driver—the least of all these persons and the one least able in some respects to communicate with all the others. It would be better if it was served on the owner and it was then assumed that he would pass it down the line to the people below him in the various chains, but the Bill proposes that it be given to the bottom person in the chain. He is expected to get it through to all sorts of people with whom he has no contractual relationship and who, almost by definition, are in more than one country. The two subsections should not be included in the Bill. I beg to move.

Lord Falconer of Thoroton

The structure of the Bill provides that more than one person may be responsible for a clandestine entrant. For example, the owner, hirer and driver of a vehicle may all be responsible persons. That is because responsibility for security may be spread between a number of parties in the chain of transport. The aim of the civil penalty is to encourage all of them to take proper responsibility.

The practical circumstances in which a penalty notice will be issued mean that it may be possible to serve the notice on only one of the responsible persons. For example, a notice may be served on a lorry driver when a vehicle is apprehended with clandestine illegal immigrants aboard. We shall try to ensure that all the responsible persons receive a penalty notice. Clause 28(5) requires the Secretary of State to take reasonable steps to ensure that. However, the operating circumstances of the transport industries are such that that may not be possible in every case.

The civil penalty covers a range of industries in which there is often a diffuse chain of responsibility. We have tried to strike a reasonable balance in Clause 28 to ensure that the Secretary of State is under a duty to make every effort to notify all the responsible persons, while recognising that in some cases that will be very difficult, if not impossible.

We must provide for the real possibility that unscrupulous operators will try to conceal their identity or involvement to avoid responsibility for a civil penalty. If we were to impose an absolute requirement on the Secretary of State to notify all the responsible persons in every case, that requirement could become a means by which unscrupulous operators defeated the operation of the civil penalty. We believe that subsections (4) and (5) strike a sensible and reasonable balance between the conflicting requirements and concerns. I urge the noble Lord to consider what I have said and to withdraw the amendment.

Lord Berkeley

The explanation of my noble and learned friend the Minister makes me think that there will be a witch hunt throughout Europe of people who hire out containers and trailers. Anyone who wants to take a container or a trailer to this country will need to pay a premium as insurance against being hunted down by the thought police in case they were seen to be liable. There are thousands of people who hire trailers and containers, some of them of repute and some of them not of repute. Some of them come from eastern Europe and Russia. The provision is very wide, but it would be easier to make it narrower. It would be easier if proper facilities were provided at the continental ports to inspect the lorries as they went through. That would make the provisions unnecessary.

Lord Cope of Berkeley

The reply given by the noble and learned Lord to the amendment has increased my dissatisfaction with the provisions. The Minister said that it would be difficult, if not impossible, for the Secretary of State to find all the relevant people. And yet, in effect, he is imposing an obligation on the driver to find them all or, in some cases, the other way round. I entirely agree with his submission that there are diffuse responsibilities. I tried to hint at what some of those diffuse responsibilities may be. If it is difficult, if not impossible—I use the Minister's phrase—for the Secretary of State, it is equally difficult, if not impossible, for the driver also to find all those people. But if he does not, he will carry the can for them all. He may find himself in trouble with several of those groups for not informing them that the notice on him was served on them too.

That is extremely unsatisfactory. However, it seems that the Minister is not going to change his response. We shall reflect further on this matter but I hope the Minister will do so too between now and the next stage of the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 28 agreed to.

12.45 a.m.

Lord Henley

I thought we had agreed to stop at this stage. I thought that we were going to deal with Amendment No. 53 on another occasion.

Lord Falconer of Thoroton

I understand the position to be that we are going to deal with Amendment No. 53.

Lord Henley

That means that we are moving on to Clause 29 and I understood that we were not going to deal with that clause this evening and that that would be dealt with on another occasion. Perhaps I misunderstood what was said.

Lord McIntosh of Haringey

I understood that we were to deal with Amendment No. 53. There is no reason why we should not break in the middle of a clause.

Clause 29 [Power to detain vehicles etc. in connection with penalties under section 25]:

Lord Cope of Berkeley moved Amendment No. 53:

Page 20, line 42, at end insert ("but the Secretary of State shall reimburse the carrier for any expense incurred by him as a result of the detention").

The noble Lord said: Clause 29 provides for the seizure of a vehicle. It may turn out that the seizure of a vehicle was unnecessary because the penalty notice was wrong, a mistake was made and so on. I understand why the provision is made lawfully to detain a vehicle, although it may turn out to be unlawful or unnecessary and not supported by the law. A penalty notice may be ill-founded. I understand why no provision is made to sue for unlawful seizure of the vehicle in such circumstances. But the owner or operator of the vehicle will have been put to great expense. The lorry provides the means by which the operator makes his money. If the vehicle is detained, particularly for any length of time, the operator is prevented from making money and his business is taken away from him.

There are some individual owner-drivers who own only one lorry. If that is detained, he is completely out of business for the relevant period. This amendment is modest and it does not provide that all the compensation which seems to be due should be paid. I have merely provided that at least the expenses which have been incurred should be reimbursed. Such expenses may of course be quite serious. He may have been put to the expense of penalty clauses, particularly if the effect of detaining the lorry is that the load has somehow deteriorated. Many loads deteriorate in many different ways if delayed in the course of transport. He can be put to considerable expense in that way, as well as to the expense of hotel bills and so on, during the period of detention while the situation is being sorted out.

We should bear in mind that while that is taking place, considerable penalties may have to be paid by various people in different countries, and complications concerning the different currencies involved, and so on, will have to be sorted out. The carrier could, therefore, be put to considerable expense which, given that the detention was based on an ill-founded penalty notice, should be refunded to the carrier concerned.

Baroness Williams of Crosby

I support the amendment. The noble Lord, Lord Cope, has made out a very strong case, given that this is in the context of what is, at any rate, an ill-founded basis of detention of a transporter. "Ill-founded" is written on the face of the Bill. En those circumstances it would seem completely unjust for the owner of the vehicle to bear the expenses involved in such detention which is, after all, part of the Government's attempt to try to establish control.

I have one question for the Minister; that is, if it is discovered that the transporter has transported only one or two persons who later turn out to be accepted as legal asylum seekers and are accepted into this country on that basis, would that still be regarded as the kind of ill-founded detention on which the carrier would bear the costs of the detention and the Government would not? In other words, is carrying legitimate refugees, as they turn out to be, regarded, nevertheless, as grounds for detaining the vehicle that carries them?

Earl Russell

This clause, and the surrounding clauses, will be a considerable burden on international trade. Such burdens have a nasty habit of becoming reciprocal. When that happens, all countries lose, but an island state is liable to lose a great deal more than most.

Lord Berkeley

The noble Lord, Lord Cope, said that the load may deteriorate if a trailer or lorry is impounded. It usually deteriorates more when illegal immigrants have been in it for three or four days. The customers often reject that, so the carrier often has his load rejected and does not get paid.

Perhaps I may ask the noble Lord, Lord Cope, why it is only the carrier who he believes should be reimbursed. Many other people are involved in the chain, as we have been discussing for the past hour. Do they not deserve reimbursement as well?

Lord Cope of Berkeley

I was relying on a definition of "carrier" which I cannot put my finger on at the moment. However, I think that the noble Lord will find that it covers many of the people concerned in all this. If it does not, perhaps I should have deleted "carrier" and put "responsible person".

Lord Falconer of Thoroton

As one would expect, the noble Lord is entirely right in his instincts about the definition. The section makes it clear that the carrier is liable to a penalty under Section 25. A person liable to a penalty under Section 25 is a "responsible" person, so he is absolutely right in relation to that.

I turn to the question raised by the noble Baroness, Lady Williams of Crosby. The Chief Whip was speaking so loudly that it was difficult to hear large parts of it, so perhaps the noble Baroness could correct me if I am wrong. As I understood it, the question was: if somebody turns out to be a legitimate asylum seeker, can that person be a clandestine entrant?

Baroness Williams of Crosby

The Chief Whip obviously spoke more loudly than I did, which is understandable at this time of night. I asked whether, if the transporter was detained and it later emerged that it had carried a clandestine immigrant who was later accepted to be a legitimate asylum-seeker, the penalties would fall to be met by the owner of the transporter. Would it still be the case that that penalty could not be reimbursed?

Lord Falconer of Thoroton

My understanding of the statute is that a person is a clandestine entrant if he arrives concealed in a vehicle and then later indicates that he intends to seek asylum in the United Kingdom. The fact that his claim for asylum is later upheld does not prevent him from being a clandestine entrant. In other words, the essence of the circumstances in which a civil penalty is imposed is in relation to a clandestine entrant; that is, the transporter of a person who is concealed on the transport.

The answer to the question is that even if it was an ill-founded, though not unreasonable, levying of a penalty, and even though the person who was concealed was granted asylum, at the end of the day there would be no compensation for the detention.

Clause 29(4) is intended to provide the immigration service with some protection against possible claims for compensation where they have acted reasonably in detaining a vehicle, even though a penalty notice issued under Clause 25 was later found to be ill-founded. Amendment No.53 would remove that protection. Subsection (4), which is sought to be removed, should be considered with the qualification given in subsection (5) to the effect that it does not apply if the Secretary of State has acted unreasonably in issuing the penalty notice.

We recognise the significance of the power to detain transporters and the noble Lord, Lord Cope, effectively and persuasively described the very grave consequences for the owner or operator or for those whose goods have been carried when the vehicle is detained. We have therefore sought to include in the Bill a number of safeguards, of which subsections (4) and (5) are part. We are seeking to strike a balance. Were there to be liability for any expenses incurred by a transporter, even though the immigration officer acted on the basis of an apparently valid notice, it would place an unfair burden on those administering the civil penalty and go a long way towards making it unworkable.

Immigration officers would be aware that there would be a liability for costs incurred if for some reason the penalty notice is set aside. They would, as a result, be most reluctant to detain. The immigration officer must be able to act on the facts as they appear to be. If the penalty notice is issued reasonably, it is right that the power to detain should follow and that there should be no liability to costs.

The noble Lord, Lord Cope, will be aware that that is the situation in many analogous fields. The balance is struck by saying that as long as it is reasonable there will be no liability to compensation, but if it is unreasonable there is potential liability. That strikes the balance between protecting the transporter on the one hand and on the other making the section work. I ask the noble Lord to consider withdrawing the amendment.

Lord Cope

I am not entirely happy about the matter. I did see the phrase about the Secretary of State acting unreasonably. It is very difficult to show that he acted unreasonably in many cases where people have been put to great expense. The Minister said that the expense will be borne by the driver, by the operator and all the other people of whom we have been speaking. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 29 shall stand part of the Bill?

Lord Dholakia

I can be brief; many of the arguments have already been advanced by a number of previous speakers. Instead of talking about clandestine entry penalties, I want to talk about due process rights.

The noble and learned Lord, Lord Falconer of Thoroton, clearly explained that it is for the Secretary of State alone to decide whether any objections to the issue of a penalty notice are justified. We went into that explanation at some length. I have been provided with a brief by Justice which clearly demonstrates that, on the advice it received, it is a breach of Protocol 1(1) of the European Convention on Human Rights.

Two arguments are advanced. First, there is the question of whether such penalties (which may lead to a carrier's bankruptcy) can be considered to be proportional to the harm caused in circumstances where the person carried subsequently sustains a claim to protection. This is further argument in support of an exemption as suggested in paragraph 7.6 of Justice's argument, of which the noble and learned Lord has a copy.

Secondly, it considers that these penalties may constitute a criminal charge for the purposes of Article 6 under the European Convention on Human Rights. My point is that there are strong arguments to the effect that the Bill is creating a criminal penalty which should therefore be determined by a court. For those reasons, I oppose Clause 29 standing part of the Bill.

Lord Falconer of Thoroton

I will not advance the arguments I advanced in relation to subsections (4) and (5) because the noble Lord kindly said that I dealt with them in my previous speech. That leaves only the issue raised by Justice as to whether or not Clause 29 offends against the ECHR.

Now may not be the moment to go into the precise provisions in detail. This is not a criminal sanction; it is a civil penalty. As it is a civil penalty the normal requirements in relation to fair trials and so forth do not apply. Great care has been taken to ensure that that is the position. Though Justice's brief was well argued, we are satisfied, having taken all appropriate advice, that this does not offend against the ECHR.

Clause 29 agreed to.

Clause 30 agreed to.

Lord Burlison

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.