§ (" .—(1) The Secretary of State may make regulations applying (with or without modification) any provision of this Part for the purpose of enabling penalties to be imposed in respect of a person ("a clandestine entrant") who—
- (a) arrives in the United Kingdom concealed in a rail freight wagon; and
- (b) claims, or indicates that he intends to seek, asylum in the United Kingdom or evades, or attempts to evade. immigration control.
§ (2) The regulations may, in particular, make provision—
- (a) enabling additional penalties to be imposed in respect of persons concealed with the clandestine entrant;
- (b) as to which person is (or which persons are together) liable to penalties in respect of the clandestine entrant;
- (c) for conferring on a senior officer a power to detain any relevant rail freight wagon in prescribed circumstances;
- (d) for conferring on the Secretary of State a power to sell in prescribed circumstances a rail freight wagon which has been detained.
§ (3) Before making any regulations under this section, the Secretary of State must consult, in the way he considers appropriate, persons appearing to him to be likely to be affected by the imposition of penalties under the regulations.").
§ The noble Lord said: In this group are to be found Amendments Nos. 56, 57, 58, 59, 60, 61 and 66. I hope that it is convenient if I address them at this stage. I shall speak first to Amendments Nos. 56 and 66. During Second Reading the question of the applicability of the civil penalty to freight trains was raised. I said then that we had been considering the matter but that currently the Bill did not extend the civil penalty to such trains. We have completed our consideration and we are sure that it is necessary to provide for the extension of the civil penalty to freight trains. Amendments Nos. 56 and 66 make the necessary provisions.
§ There is a serious problem of clandestine illegal immigration into this country. The effect of the carriers' liability provisions in respect of fare-paying passengers has reduced the possibilities for entry. One consequence has been to displace the effort to clandestine entry, particularly in lorries but also in other forms of transport. Our experience is that freight train services from continental Europe are being targeted systematically by organised criminal gangs as well as by individuals.
§ The civil penalty is a new penalty designed to tackle this problem and to complement the carriers' liability legislation. The aim of the civil penalty is to ensure that those responsible for lorries, vans, yachts and other forms of transport take adequate security precautions to ensure that they do not give scope for clandestine illegal entry to the United Kingdom. In addition to the civil penalty, the existing criminal offence of facilitation is applied in respect of persons who knowingly take part in the transport of illegal immigrants. We believe that the problem has been growing rapidly. There is no sense in leaving a loophole in the coverage of the civil penalty: that would just be a recipe for diversion of illegal immigrants to freight trains and away from other forms of transport already covered. We have therefore concluded that the Bill must provide for this extension.
§ During Second Reading my noble friend Lord Berkeley gave an expert description of the difficult issues. The trains which reach the United Kingdom are made up of railway wagons which may have travelled individually or as part of other trains across a variety of areas of Europe. A single train may contain wagons owned by a number of different railway companies. As the noble Lord said, the wagons themselves may be hired out. Therefore a number of different organisations may be involved.
§ This is a different situation from the rather clearer chain of responsibility involved in respect of a lorry, trailer or other form of transport. Nonetheless we believe that it will 662 be possible to apply the civil penalty. By ensuring that the coverage of "responsible persons" includes the train operator, the freight operator and the owner or hirer of the rail freight wagons, we will be able to apply the civil penalty in a realistic fashion and so provide a significant incentive to all those with relevant responsibility to ensure the security of the wagons and the trains at all stages.
§ We propose that the extension should be capable of being implemented by regulation and separately from the provisions relating to other types of carrier. Amendment No. 56 makes it a requirement for the Secretary of State to consult the rail freight industry before bringing before Parliament any proposal for regulations. I believe that this is a carefully considered proposal. It takes account of the consultations we have already had and provides safeguards in recognition of the exceptional circumstances of the industry. The civil penalty is a vital addition to our immigration control.
§ I turn now to Amendments Nos. 57 to 61 inclusive. Amendment No. 57 concerns subsection (2) of the new clause inserted by Amendment No. 56 and sets out particular issues which may be covered in the regulations. Items (c) and (d) concern, respectively, the power to detain a rail freight wagon which has been used for carriage of clandestine illegal immigrants and a power to sell such a wagon. Amendment No. 57 seeks to delete those references. The powers to detain and, if necessary, sell transporters are a vital part of the civil penalty mechanism. We hope that they will be rarely used but they are necessary given the great flow of traffic in and out of the United Kingdom. Without these powers a deliberately recalcitrant owner or operator may successfully seek to evade the civil penalty.
§ It is equally necessary to have these powers in relation to railfreight wagons: indeed, the circumstances of ownership and the responsibility for such wagons are particularly complex matters, which is the reason for our not proceeding directly to extend the civil penalty to such trains. So detention and sale powers are particularly necessary.
§ Amendment No. 58 concerns the requirement for consultation in subsection (3). I have already indicated that we have inserted this requirement to recognise the special circumstances of the railfreight industry. However, Amendment No. 58 would require not only consultation but that we "reach agreement with". That would give an unlimited veto and is obviously not acceptable.
§ Amendment No. 59 concerns the provisions on consultation in subsection (3) and seeks to change the wording so that the Secretary of State would have to consult all those likely to be affected "directly or indirectly". The Secretary of State will certainly judge carefully who it would be appropriate to consult and would of course consult others—for instance, the Secretary of State for Transport—on this point. But some limit must be drawn. This amendment, explicitly requiring him to consult those indirectly affected, would widen the requirement impracticably.
Amendment No. 60 seeks to impose a new two-part requirement. It would prevent any regulations made under the new clause coming into effect if they impose
"additional cost or significant delay" or if authorities in the countries from which freight comes here have implemented,
suitable systems for preventing and detecting clandestine entrants".
§ I recognise that it is unavoidable that the civil penalty will impose a burden on transport industries. The burden will be less, and may be nil, for those who already have in place proper systems to prevent the inadvertent carriage of clandestines. The whole point of the civil penalty is to make sure that all operators take the proper precautions. For some, this will mean additional cost. It may also mean, for some operators, some delay, although use of best practice and technology should minimise this. On those requirements alone, Amendment No. 60 would effectively block extension of the civil penalty to railfreight traffic.
§ The second limb concerns security systems. In practice, it would mean that extension of the civil penalty would not he possible as it is unlikely that every single country could meet the requirement. I have made it plain that our aim is to extend the penalty to those involved in railfreight services and to impose a responsibility on them to ensure that suitable security arrangements are in place. I ask the Committee to reject the amendment.
§ Finally, Amendment No. 61 seeks to make provision for regulations under the new clause to be subject to the affirmative resolution. In this House and elsewhere there has been considerable discussion of the general issue of the order-making powers. I understand the concerns. I do not believe that the particular circumstance of the civil penalty and its application to railfreight services warrants or requires the affirmative resolution procedure. I beg to move.
§ 3.15 p.m.
Lord Berkeley moved, as an amendment to Amendment No. 56, Amendment No. 57:
Line 15, leave out paragraphs (c) and (d).
§ The noble Lord said: In moving Amendment No. 57, I shall speak also to Amendments Nos. 58 to 61 inclusive. I am in an odd situation as my noble friend has already given his answers to these amendments before I have had a chance to move them. However, that does not really matter.
§ I do not have a problem with the principle of apprehending criminals in railfreight wagons or anything else. My noble friend is right to seek to bring forward regulations to cover that. My problem with Amendment No. 56 is that it does not say how that will be done. It just says, "At some stage in the future we will introduce regulations—they might be workable; they might be unworkable—and we will consult whoever we think it is a good idea to consult".
§ As my noble friend said, I went into this matter at some length at Second Reading; I shall not repeat my arguments today. My amendments seek to probe what are the likely circumstances and methods by which these criminals and the owners and operators of the trains will be apprehended.664
Perhaps I may refer the Committee to page 26. line 13 of the Bill and the definition of "train operator". It is,
the operator of trains who embarked that person on that train for the journey".
§ That person could embark in Italy, Romania, Sweden or anywhere else. I do not know whether my noble friend expects to fine Italian Railways several million pounds a year—because that is where much of the problem comes from—or how the provision will be enforced. The contract between any operator in this, country and an operator on the Continent is to pick up the train when it arrives at the Channel tunnel and to deliver it here. I do not think that there is any obligation to do anything else. For example, EWS is not the main contractor; how it will persuade Italian Railways to bring in a security system if the Government are unwilling or incapable of doing so, I am not quite sure.
Perhaps I may go into a little more detail about my various amendments. Amendment No. 57 seeks to remove paragraphs (c) and (d) from subsection (2) of the new clause until we have seen the real detail of my noble friend's proposals. As to Amendment No. 58, my noble friend said that if one inserts a clause about reaching agreement with the industry it would, in effect, make the Secretary of State a hostage to fortune. I remind him that similar proposals were introduced for railfreight through the Channel tunnel. Every railfreight unit which does not start off from a kind of Fort Knox terminal, which has cost several million pounds to make secure, has to pay approximately £30 for a security check when going through the Channel tunnel. When the regulations were debated in your Lordships' House many years ago, no one mentioned that. But now one has to pay an extra £30 per unit unless one has spent several million pounds on security before one gets there.
In the other direction, Her Majesty's Customs and Excise has a habit of delaying trains. Even if it wants to examine just one wagon, that delays the whole train. usually by 24 hours. That also costs the customer extra. As a security regime is in place for the Channel tunnel—operated on this side by the British Government's officials and on the French side by French officials—I cannot see why the French security people, when they examine wagons for security clearance, cannot examine them also for illegal immigrants. That is my concern about reaching agreement. I may be going over the top, but that is as a result of a bad experience.
In Amendment No. 59, I seek to insert, after the word "affected", the words "directly or indirectly" because of the nature of the industry. There are a lot of people out there who are not train operators or terminal operators; they are customers. What do customers do when life gets too tough? They send freight by road.
Amendment No. 60 relates to many of the points I have mentioned. As to Amendment No. 61, I feel that until a code of practice has been seen by your Lordships and we have had an opportunity to comment on it, the affirmative resolution would be a good stop-gap. My noble friend kindly put in your Lordships' Library last week a copy of the code of practice for road freight which had been discussed with the industry. We debated it in Committee a week ago. I hope that he will be able to also put in the Library in good time before we reach Report stage a draft 665 code of practice on how the railfreight operation will work. Otherwise, this will be a good example of a Henry VIII clause. I am no expert on that but it seems a matter of, "We want to do something. We are not quite sure what it is, but we hope that you will agree with it and we will bring it in later".
§ All these things may not seem serious in themselves but they all add up to one result: a reduction of railfreight through the Channel tunnel at present. I speak as a chairman of a railfreight group. The clause is not a nail in the coffin, but it is one more thing that will make railfreight less economic. If that is what the Government want, so be it. I beg to move.
§ Baroness Williams of Crosby
In order to save the time of the Committee and given that many of us have much sympathy with the Minister's situation and want to be as helpful as we can—none of us enjoys having flu—I shall address the amendments one after the other. With regard to Amendments Nos. 58, 59 and 60, I have much sympathy with the arguments of the noble Lord, Lord Berkeley. It seems to many of us on this side of the Committee that we are seeing an attempt to deal with a situation in which the discussions on the Schengen agreements have not been completed and, therefore, much of the provision that might be made commonly throughout the single market area has to be dealt with by individual member states. That is an unsatisfactory situation.
As I listened to the noble Lord, Lord Berkeley, I could not help wondering whether the Government might not find themselves in endless litigation with other countries whose freight wagons had been detained, to which they had taken exception. I strongly urge support for the suggestion in Amendment No. 58 that attempts be made to reach agreement with the relevant interests in the railway industry in what is a complex area in which it would be easy to get things wrong.
The noble Lord, Lord Berkeley, made a strong case for Amendment No. 61. At least until there is a code of practice—it may be that the Minister can tell us that one is forthcoming soon—it would be helpful to have an affirmative resolution procedure. The Home Office cannot, by the nature of things, have full expertise in the area of transport regulation, especially in the organisation of railway freight. Therefore, reaching agreement or at least seeking full consultation with railway interests seems an essential part of getting the law right.
With regard to Amendment No. 61, therefore, I should like to press the Minister on the code of practice and to ask him to reconsider his view that the affirmative resolution procedure is not necessary, especially given that basic civil liberties are involved in the retention of property. We have much sympathy with those who are affected by such regulations.
Subsection (1)(b) of Amendment No. 56 repeats the Government's assertion that the very seeking of asylum in the United Kingdom is regarded on an equal basis with illegal immigration. We have raised that point before and shall raise it again, but I should like to flag up again our real concern that people seeking asylum seem to be put on 666 all fours with people who are attempting to evade or have evaded immigration control. That is not acceptable, given our commitments under the refugee convention, the European Convention on Human Rights and other international regulations. We shall return to that issue later.
§ Lord Cadman
In speaking in support of the amendments, it seems to me that it is inappropriate to treat a railway vehicle, the ownership and operation of which is complex, as someone's private conveyance that is knowingly being used illegally. It may also be against international and European law to dispose of such vehicles and loads in the manner suggested in the Government's amendment. Some railway wagons consist of up to five or six permanently coupled vehicles. Are they all to be impounded under the regulations, and at what point in their journey?
I hope that Amendments Nos. 57 to 61 would prevent any adverse effect that the imposition of the regulations would have on the general conditions of the carriage of freight into this country by rail. I reinforce the request made by the noble Lord, Lord Berkeley, for a rail freight code of practice to be deposited in the Library.
People who arrive in this country concealed on a train comprising freight vehicles give rise, of course, to an offence and the possible prosecution of the vehicle operator or owner. Presumably, in enforcing the regulations, immigration officers will have to have powers to check vehicles of all descriptions for the presence of people at an appropriate point in the journey. Many of the regulations seem to be passing the responsibilities of the immigration authorities on to the vehicle operators and owners who will have to ensure that they do not get into trouble.
In an earlier amendment, I tried to draw attention to the demands of the immigration service for the provision of services at controlled ports of entry and to ask that some responsibility be recognised for additional costs. In some cases and by some people, the immigration service's working practices are seen to be somewhat inefficient. If so, it would be unfair for the consequences of an over-stretched inefficient service to be loaded on to businesses and operators.
The code of practice that I have seen appears to be heavily loaded against vehicle operators, many of whom are in no position fully to comply. Although I have no quarrel with our desire effectively to retain our island status within a common market or free trade area, the consequences of that and the lack of attention by the authorities of other nations to the presence of unauthorised people aboard vehicles of any description should not ultimately be the responsibility of people such as drivers and operators. It should be the responsibility of the immigration police before transit to our shores.
I support the noble Lord, Lord Berkeley, in his amendments and I suggest that much more consultation needs to take place on this subject before the Bill is finally enacted.
§ Earl Russell
One of the pleasures of having the Minister on duty is that one need not be afraid to ask him 667 technical legal questions. I want to probe the extent of the vires conferred by Amendment No. 66, which states:'rail freight wagon' has such meaning as may be prescribed".Having listened to the noble Lord, Lord Cadman, I understand some of the difficulties that that amendment may be intended to address, but is there any legal limit to the vires conferred by the amendment? Es there any outer limit to what the Minister could, if he chose, describe as a "rail freight wagon"? Is this a case of the famous porter's maxim, "Dogs is dogs, cats is cats, but a tortoise is a hinsect"? Suppose, for example, the Minister were to prescribe a bicycle as a "rail freight wagon". Would that technically be ultra vires under the wording of Amendment No. 66? Before conferring such powers, we should understand what they mean.
I, too, listened with great care and considerable sympathy to the noble Lord, Lord Berkeley. We are a trading nation and we live by our trade, but we threaten our livelihood if we impose undue obstacles and costs on trade. We know what the French, with dubious legality, have attempted to do with imports from Japan, which for many years were impounded at Poitiers while all sorts of legal checks were conducted on their labelling and specification. We risk imposing such a burden on our own commerce. Apart from the fact that that might be shooting ourselves in the foot, which I hope is not an irrelevant consideration, we are committed to membership of a single European market, within which there is supposed to be free and unimpeded movement of goods. Has the Home Office consulted the European commissioner responsible for the single market before introducing this measure? If not, why not?
Finally, I should like to elaborate on the point made by my noble friend Lady Williams of Crosby about whether this measure might impede the entry of genuine refugees. The obvious intent of carriers' liability legislation is to deter the carrier from carrying any immigrant, whether refugee or not. It is not within a carrier's competence to determine whether a person has a genuine, well founded fear of persecution, within the definition of the UN convention. The penalty applies in any case. Can the Minister explain how it is that this new clause would not lead to the turning back of people with a well founded fear of persecution and therefore to a breach of our obligations under the 1951 UN convention? The Committee has a right to ask to be satisfied on that point.
§ 3.30 p.m.
§ Lord Avebury
Let us suppose that a person arrives in a railway wagon. As soon as the wagon reaches the point where an entry certificate officer is available, the person comes out of the wagon and presents himself for examination. Then, as I read the clause, that person is still liable to be prosecuted. That is notwithstanding the fact that he was not a "clandestine entrant" within the meaning of the English language. But he is a "clandestine entrant" within the meaning of this clause. However, anyone using English in its normal sense would say that if that person has arrived in a railway wagon but nevertheless comes out of it at the first opportunity at which he can be examined by an immigration officer, he is not attempting to gain entry without passing through an examination point. He has indeed come forward at a point at which he can be 668 interviewed. He has simply used the railway wagon as a means of transport to the United Kingdom and not as a means of preventing his examination at the point of entry.
Why is the term "clandestine entrant" defined separately in this clause rather than by reference to Clause 25 where the remainder of the definition of "clandestine entrant" is contained? Is it riot confusing to have two separate definitions of "clandestine entrant" instead of incorporating the words of this definition in Clause 25 where they belong? Also, what is the definition of "relevant rail freight wagon" to correspond with "relevant ship, aircraft or vehicle" in new Section 25A(2)? The subsection states:relevant ship, aircraft or vehicle, in relation to an arrested person … one which the officer or constable concerned has reasonable grounds for believing could, on conviction of the arrested person for the offence for which he was arrested, be the subject of an order for forfeiture made under section 25(6)"—that is to say, of the Immigration Act 1971. I presume that the term "relevant rail freight wagon" has a similar meaning but I cannot find a definition. I may have missed something. Perhaps the Minister can point it out.
Therefore, is it intended that those freight wagons will be forfeited under Section 25(6) of the Immigration Act 1971, notwithstanding the fact that the operators of the freight wagon have no knowledge whatever that the illegal entrant—if he is such a person—has entered the railway freight wagon clandestinely with a view to gaining admission to the United Kingdom? Is it an absolute offence which causes the wagon to be impounded by the very fact that a person has attempted to gain entry and not through any omission or fat, It by the operators of the railway freight wagon?
§ Viscount Brentford
I warmly support the principle of Amendment No. 56. However, I should like some clarification on what the individual asylum seeker should do. If he is travelling in a railway freight wagon, one might argue that that is illegal anyway and therefore he should not be there. However, in practice it is much more difficult for a person who is trying to escape from a country in that way to apply for permission to come to the UK because he is probably sealed in a railway freight wagon. That appears to cause extra difficulty for the individual. Let us assume that the asylum seeker cannot obtain exit papers or make contact with a UK embassy in the country where he is liable to persecution, torture or death. How is he to resolve the matter if he receives an offer to enter a railway freight wagon, whatever that may mean or however it may be defined?
I believe that we touched on the point in a different sphere earlier in our discussions. However, would arty penalty be refunded to the person responsible for the wagon if subsequently the individual or individuals were accepted in this country as asylum seekers?
I now seek clarification on another point on which I am ignorant. I assume rail freight wagons enter the country through the Tunnel. I assume that they do not fly in, but I wonder whether they come in also by ship. It would be interesting to know whether there is only one way in which they come here nowadays. With regard to the power to sell a freight wagon, is it not always clear who is the owner? I wonder why that is necessary. Presumably 669 there is no problem in ascertaining who is the owner of a freight wagon. I should have thought that agreement could be reached with that person without necessarily having to sell the wagon.
§ Lord Hylton
I am a little surprised by the drafting of the Government's new clause in that it refers to "rail freight wagons" and makes no mention of "rail passenger wagons." Perhaps the Minister considers that passengers are already covered even if they are entering clandestinely or stowing away.
I turn now to the substance of the regulations when they come into force, from the point of view of the operator. First, he faces additional penalties; secondly, he is liable to have his wagon detained; and, thirdly, in extreme cases—I recognise that the noble Lord said the power would be used only rarely—he is still liable to have the wagon sold. It seems to me that the value of a rail freight wagon is likely to be greatly in excess of the penalty for, perhaps unknowingly, bringing in one single person. Therefore, on those grounds, I am inclined to support the noble Lord, Lord Berkeley.
§ The Lord Bishop of Hereford
I express my support for the noble Lord, Lord Berkeley, on two grounds. The first, raised by a number of Members of the Committee, concerns the character of seeking asylum through stowing away on a freight train. That might be the only way in which a genuine asylum seeker or genuine refugee can get out of his own country and into this country. Indubitably the Government need to take seriously that possibility.
I return to the points originally raised by the noble Lord, Lord Berkeley. All Members of the Committee are anxious to see a significant increase in the transfer of freight traffic to rail. The Government's amendment, as tabled, is a serious disincentive to that traffic. I echo the point made by the noble Lord, Lord Hylton, that paragraphs (c) and (d) of subsection (2) of Amendment No. 56 seem completely inappropriate and unnecessary. If Clause 56 really relates to the detection of clandestine entrants, why is it then necessary to detain or sell the freight wagon? That simply sabotages the freight operation which we wish to see flourish.
I am not entirely happy about Amendment No. 59, which seems to me too widely drawn. However, I certainly agree with all that has been said about Amendment No. 61 and I hope that the Minister will give the Committee assurances about a code of practice.
§ Lord Brightman
Perhaps I may say a brief word about Amendment No. 66, which states:'rail freight wagon' has such meaning as may be prescribed".That seems rather wide. I do not recall seeing such a definition clause before. I wonder whether the Minister will consider a slight alteration to the wording, such as, "rail freight wagon means such rail vehicle as may be prescribed", in the same way as one might say, "such road vehicle as may be prescribed". That would avoid the very wide wording of the present definition.
§ Lord Cope of Berkeley
Perhaps I may say in parenthesis, as it were, as gently as possible to the noble 670 Baroness, Lady Williams, that the town from which the noble Lord takes his ancient peerage is commonly pronounced "barkly" in this country. I had the honour to live there; hence it occurs also in my title. The noble Baroness prefers the American pronunciation; no doubt because of her connections in that country.
§ Baroness Williams of Crosby
I immediately accept the noble Lord's point and apologise for using any American pronunciation in this Chamber.
§ Lord Cope of Berkeley
Turning first to the substance of the new clause, the Minister referred to immigrants and potential asylum seekers entering the country on rail freight wagons as a problem that is growing rapidly. However, he gave no estimate of the numbers who are entering in that way. I realise that it is likely to be an estimate, because some illegal immigrants elude the controls at that point. Have many been identified as attempting to enter the country illegally in that way? If so, to the extent that the Minister is able to tell us, how did they do so? We have heard previously of people entering through the roof of a rail wagon, for example, or hiding under the bogeys. Where has that happened? Italy has been suggested as one place where it happens to a degree. The Committee needs such information in order to attempt to assess whether the draconian remedies proposed by the Government for what is said to be a rapidly growing problem are proportionate to the mischief involved.
It has also been pointed out by the noble Lord, Lord Hylton, that this is not a question of passengers, but merely of rail freight. It would be interesting to know whether the Government believe that a number of illegal entrants are entering the country on passenger trains. It has been suggested to me that the immigration service believes that passenger trains have carried a large number of inadequately documented passengers. It has also been suggested that a change in French law—and probably in Belgian law also—is required for checks to be instituted at the station of departure. The provision places passenger trains on a different basis from passenger aircraft, and aircraft operators are extremely concerned. Aircraft operators are obliged to check all documentation in advance, whereas passenger train operators have no such obligation and no such penalties. If many immigrants are entering in that way, it is clearly a matter of concern.
The clause also requires proper precautions to be taken. However, it is extremely difficult—that was the nub of remarks made by the noble Lord, Lord Berkeley at Second Reading—to see how the proper precautions can be taken by those who will have to pay the penalty if the precautions do not succeed. The difference between lorries and rail freight under the new clause is not clear to me. As I understand it, a large amount of the rail freight that comes into the country through the tunnel does so on lorries; but the lorries themselves are on wagons when travelling through the tunnel.
§ Lord Berkeley
Perhaps I may explain that they do not come in lorry trailers on piggyback, as many of us 671 would like to see, but they come in containers, which are the same, but without wheels. They are lifted on to, and are separate from, the wagon.
§ 3.45 p.m.
§ Lord Cope of Berkeley
I bow, as always, to the noble Lord's specialist knowledge. It seems that it is particularly difficult to know who is responsible as regards containers, as the noble Lord has set out on other occasions.
We have also had some discussion, initiated today by the noble Earl, Lord Russell, to which the noble and learned Lord, Lord Brightman, contributed, about the definition of "rail freight wagon". That is important. Subsection (2)(c) of the new clause confers the power to detain only a "rail freight wagon". In ordinary speech, a rail freight wagon is a railway wagon; it is not the container which is on top of it. Unless there is some other power, it would seem that the container cannot be detained—only the wagon. That seems odd, unless the definition that is to be inserted following Amendment No. 66 includes containers and is extremely wide—which would probably go outside normal English and he difficult. We need to know more about the proposed definition that will be put in place as a result of Amendment No. 66. The power that is granted by Amendment No. 66 is potentially extremely wide.
The noble Lord, Lord Berkeley, also spoke to several other amendments, relating, for example, to consultation. I appreciate that to permit operators to have a veto by requiting agreement is rather heavy, as the Minister suggested; but that does not mean that we are happy with the limited consultations that have taken place so far. Fortunately, as the noble Lord the Captain of the Gentlemen-at-Arms told us, we are about to have a Recess, during which the Minister and his colleagues can no doubt pursue the consultations, so that we can hear a great deal more about the matter on Report. I hope that we shall have more information by that stage.
Amendment No. 59 relates to the question of who will be affected. It seems that those who will be most directly affected are the lorry drivers. They ought to be consulted just as much as the operators. I should be grateful to know whether such consultation has taken place. Individual lorry drivers will not realise that they will be directly affected until they find themselves in that position, and with a very expensive bill. At least their representatives might be consulted.
I can understand why the Government want to extend to rail freight the draconian penalties that they are putting in place for some other forms of transport—although not all, judging by the situation regarding passenger trains. However, we are worried about the provisions in this part of the Bill. The noble Lord, Lord Berkeley, has done the Committee a service in drawing attention to particular aspects.
§ Lord Williams of Mostyn
I am grateful for the questions that have been put. Perhaps I may deal first with the helpful question raised by the noble and learned Lord, Lord Brightman. I shall certainly give consideration to the definition of "rail freight wagon" in Amendment No. 66, standing in my name.
672 Perhaps I may help further. In answer to the noble Earl, Lord Russell, I do not think that it would be possible to have a definition to include, for instance, a motor cycle or bicycle. We seek to include a definition of "rail freight wagon", with the intention of catching all forms of railway vehicle designed or adapted for the carriage of goods, but not to catch the locomotive which pulls those wagons. We are more than happy to have consultations with anyone who expresses an interest in these matters. I agree that they are of importance.
It is important to bear in mind the terms of Clause 27. Clause 27(3) has a defence which I shall not read out again. It is worth bearing that in mind as some rather alarmist questions have been raised.
The noble Lord, Lord Cope, raised the question of Eurostar and I accept that this is a legitimate area of concern. Checks at stations of departure are under consideration. We have checks for passengers travelling on the Shuttle; there are UK immigration controls in France and French immigration controls at Folkestone. Again in answer to the noble Lord, Lord Cope, I am not aware, subject to checking, of material that points to any significant use of passenger trains by clandestines. I accept that, as he said, they are used by inadequately documented passengers and that is why they are covered by Clause 32.
The noble Lord, Lord Cope, also quite reasonably asked how I backed up my assertion about clandestine entrants from freight trains. I accept his point that in the nature of things at the moment some may well not be discovered. In January there were nine clandestines, in February nine, in March 83, in April 117, in May 117. In June, because there was a French police operation within their own jurisdiction, a limited exercise, the figure fell to 33. The noble Lord is quite right, those clandestines were destined for the United Kingdom, coming from Italy, but they were found by French police within their jurisdiction.
We are trying to establish a regime which underlines the public concern and the right public policy behind the prevention of clandestine immigrants. I repeat the defence that is open in Clause 27. Clandestines conceal themselves in freight wagons, they use a variety of means of forced entrance and come from a variety of countries. Italy is a problem.
Under the 1951 convention or elsewhere, we have no obligation to facilitate the arrival of asylum seekers here, clandestinely or otherwise. Drivers bringing clandestines have no idea whether their "passengers" are genuine. That is why, on a proper construction but not an unduly harsh one, it is irrelevant whether or not they are genuine from the point of view of the carrier' s liability. It is entirely relevant to what happens to the determination of their claims, but it does not bite on whether proper precautions have been taken by a driver who brings in clandestines.
I simply point out, I hope not unduly harshly, that any clandestine who gets into the United Kingdom must have come from continental Europe. In other words, he has come from a third country where an asylum application could have been made. I am not being harsh, it is a fact of life and of geography.
673 The definition of freight wagons was also touched on by the noble Lord, Lord Avebury. I hope I have made it plain that we want to consult on the definition that we arrive at. On the first Committee day, I dealt with refunds to those recognised as refugees. The civil penalty is to give the clearest possible signal of the importance we attach to security measures to prevent the entry of clandestine illegal immigrants. If we have refunds, we shall diminish that effect. I repeat what I said a moment or two ago: if they are clandestines and if no system is operated, the vice is in having no effective system, it is not dependent on what happens to the asylum seeker in the end.
Eurostar services are already covered by Clause 32. We do not propose to extend the present clause to cover freight wagons coming as freight; they will be treated as freight on a ship.
There is only one type of clandestine entrant that can be relevant to rail freight. That is referred to in Clause 25(1)(a). I refer to the question from, I think, the noble Lord, Lord Hylton. The reason we put the definition there is that we thought it better to have the wording there for clarity rather than use a cross-reference. The noble Earl, Lord Russell, asked whether we had consulted the relevant European commissioner. We have not, but we have carefully considered relevant questions of European law.
I have dealt with the point on the limit to vires in my response to the noble and learned Lord, Lord Brightman, and with my assurance that, on my understanding, a bicycle could not be included within the definition unless, I am reminded, a bicycle were adapted to run on rails and carry goods—which would make it difficult to pedal. (An example of humour of that quality from the Box is entitled to be repeated!)
A number of issues have been raised in detail. I welcome the fact that informed minds raised them, if I may say so without presumption. There is a good deal of technical expertise in the House and in this Committee which is invaluable. That is why I underline that we want consultation with everyone who has a sensible interest. That is why it would have been a blank cheque or an open postal order to accept what my noble friend Lord Berkeley said. It was that we could not have regulations unless we had come to agreement.
We all look forward to the Recess with panting anticipation. I was asked by my noble friend Lord Berkeley whether the code of practice would be put in the Library before Report. It is a reasonable request and it is our intention to have the code of practice in draft in the Library before Report. The whole point of proceeding in this way is to allow detailed and informed consultation with the industry.
The noble Baroness, Lady Williams of Crosby, asked about the affirmative resolution procedure. I repeat what I said earlier. We do not think it is necessary. The principles of the civil penalty are already clearly set out in the relevant part of the Bill. The purpose of the power is to take account of the needs and troubles of the industry generally. I do not think that would require the affirmative procedure. The noble Baroness also asked 674 about Schengen. As she said, we have an opt-out from it because we have no intention of removing our frontier controls with other European Union member states.
The final question came from the noble Lord, Lord Berkeley, on the definition of a train operator. It is not to be applied for the purpose of imposing a civil penalty on freight trains. The definition is used for the purpose of Clause 32. I hope that I have covered all the points Members of the Committee raised, but I see the noble Lord, Lord Avebury, rising to tell me that I have not.
§ Lord Avebury
I wished to remind the noble Lord that I asked where the definition of "relevant rail freight wagon" was, analogous to the definition ofrelevant ship, aircraft or vehicle",in Clause 31.
§ Lord Williams of Mostyn
I will check that before the end of this evening's business. In any event, apart from informing the noble Lord informally, of course I shall write to him and put a copy in the Library. It is a matter of more general importance than his specific inquiry.
§ Baroness Williams of Crosby
Before the noble Lord sits down, perhaps I may ask one question on Amendment No. 61. He said that the Government were not minded to accept the affirmative resolution. However, he did not respond to the point relating to whether a code of practice with regard to the railway industry would be introduced soon. If so, part of our concern would be met.
With regard to subsection (1)(b) of Amendment No. 56, can he say anything about what steps might be taken in the case of a genuine refugee to permit him or her to travel? I believe the Home Office is trying to install some kind of hot line procedure. It may be that the Minister would rather leave the matter to a later stage of the Bill.
§ Lord Williams of Mostyn
I am grateful for the noble Baroness's consideration. That is certainly one aspect to which we are giving a good deal of thought—not least following the helpful conversations that the noble Baroness and the noble Lord, Lord Dholakia, had with myself and Home Office officials.
I said that the code of practice would be placed in the Library before Report stage. I am not sure whether the noble Baroness was questioning me about that.
§ 4 p.m.
§ Earl Russell
I enjoyed the Minister's remarks about bicycles and was reassured by them. I thank him and the noble and learned Lord, Lord Brightman, for their helpful comments. If the Minister will forgive me, I would like to probe further the question of clandestine entrants who are also genuine asylum seekers.
The Minister said that the Government are under no obligation to facilitate the entry of clandestines. Those words are clearly correct but they are also carefully chosen. I understand that the Government are under an 675 obligation to give a hearing to people who wish to claim asylum in this country. It could be argued—I put it no higher—that to establish a regime that makes it extremely difficult for people to exercise that right might be construed as an evasion of that right. The Minister knows that courts are not charitable institutions and they occasionally construe people's actions in ways that do not give them pleasure. Can the Minister be certain that we will not lay ourselves open to that construction?
§ Lord Williams of Mostyn
I can give a degree of reassurance because both my noble and learned friend Lord Falconer and I have been concerned with the general spectrum of questions that the noble Earl and others on his Benches have been asking.
At present, if the carrier brings inadequately documented passengers to the United Kingdom, there are two relevant concessions. The charge otherwise payable under the Immigration (Carriers' Liability) Act 1987 is waived or repaid where the captain of the ship or aircraft has allowed aboard a person whose life or limb was in imminent danger and where the inadequately documented person successfully claims asylum. Both concessions apply in respect of all fare-paying passenger transport subject to the charges for carrying inadequately documented passengers, and they are to be continued in Clause 32. If a carrier openly brings genuine refugees to this country, he will not be subject to a charge—or the charge they have paid will be refunded.
The more focused question centres on what is to happen if genuine refugees are brought here on a clandestine basis. I repeat something that I do not think is a philosophical evasion or a linguistic ploy. If someone brings clandestines here, self-evidently he does not know nor has any interest in whether or not they are genuine. He cannot, in the nature of things. We have given thought to that issue and if prosecutions are about to be launched, Article 31 of the convention will be considered to decide whether it is in the public interest to prosecute persons who have used false documents.
The noble Earl has raised that question in the past. I do not think that it is capable of being brushed aside. The noble Earl's point, which I accept is valid in some cases, is that a person genuinely fleeing from persecution is more likely to come here with false documents than otherwise.
§ The Lord Bishop of Hereford
May I press the Minister on the proposed subsection (2)(c) and (d)? Does he really believe those penalties are appropriate and proportionate? Also, the Minister did not respond to the points made by the noble Lord, Lord Berkeley, in relation to Amendment 60 and the costs and delay to rail freight traffic.
§ Lord Williams of Mostyn
I am grateful to the right reverend Prelate. I did not do so deliberately. The oversight was genuine. As to whether the penalties will be proportionate, if such activities are part of a well-organised racket for carrying clandestines that brings in several thousand pounds, I personally have no sympathy with those who are carrying clandestines.
676 As to my noble friend Lord Berkeley's questions, if vehicles have to be searched to find out whether clandestines are hidden, significant delay will be inevitable. Many illegal clandestine entrants into this country are preyed upon by organised gangs that charge them thousands of pounds but dump them in this country, leaving them virtually destitute. If remedies include the seizure of vehicles, I, for one, would regard that as entirely proportionate.
§ Lord Berkeley
I thank the large number of noble Lords who have contributed expert debate. They are concerned not only about immigrants but carriers who may unwittingly be exposed to extra cost or delay. I am grateful for the answers given by my noble friend the, Minister who has gone a long way to answering some of the questions.
It is possible that in future rail freight will come in by ship again—but I expect that has been covered elsewhere. My noble friend the Minister was asked how he intends to get Italian railways to pay up. If Italian railways has an office in London, will he send round the bailiffs or sequester its assets?
As to impounding and selling off rail freight wagons, where will that be done? Will a new government railway impounding centre be built? Who will pay for it? The Bill does not say. It may do so in the code of practice. I would be surprised if the Government did not ask the industry to pay, which would be an additional cause of concern.
My noble friend has produced the best solution—asking the French Government to help. When they helped, the number of illegal immigrants per month fell from 117 to 33. Surely, we can co-operate with the French Government to that extent? It is in the interests of both countries to reduce the number of illegal immigrants. Perhaps the French security people who already look at the trains in Calais ought to add searches for illegal immigrants to their searches for bombs.
I am grateful to my noble friend the Minister for offering consultation. There has been only one meeting with the industry so far. Consultation needs to be much wider. The recess will provide a period to consult and, I hope, to make available the draft code of practice. It is much easier to consult on a document than on a blank sheet of paper. We have had an interesting debate. There are many more amendments, so I beg leave to withdraw the amendment.
§ Amendment No. 57, as an amendment to Amendment No. 56, by leave, withdrawn.
§ [Amendments Nos. 58 to 61, as amendments to Amendment No. 56, not moved.]
§ On Question, Amendment No. 56 agreed to.
§ Clause 32 [Charges in respect of passengers without proper documents]:
§ Lord Clinton-Davis moved Amendment No. 61A:
§ Page 23, line 12, after ("operator,") insert ("aircraft operator,").
§ The noble Lord said: In moving Amendment No. 61A, it may be for the convenience of the Committee if I speak also to Amendment No. 61B. Amendment No. 61A is concerned essentially with the disparity of treatment between different modes of 677 transport. I believe that it is appropriate to try to equalise the application of the clause to all sectors of transport rather than simply road and rail. The shipping and aviation industries are perplexed as to why they should be excluded from the provisions of the clause when both have worked closely with the immigration service to reduce the incidence of documentary violations.
§ It is plain that airlines and shipping companies have good controls in place to deal with those who board their aircraft and ships. An element of risk is involved in both cases if someone wants to alight in mid-voyage. In theory, it is easier for those industries to control who lands on our shores from aircraft and vessels than for the owners of road vehicles because stops throughout such a journey may enable aliens to jump on board without their knowledge.
§ I believe that on our only cross-border rail service, Eurostar, the doors remain locked during any unforeseen mid-journey stops. Therefore, the opportunity for any passengers to board at any point except the point of origin is as unlikely as it is for both ships and aircraft. I declare a fairly peripheral interest as president of the British Air Line Pilots Association. I believe that the case has been made out by both industries and is worthy of a careful response from the Government. I beg to move.
§ Lord Greenway
I support the noble Lord's amendment. As he rightly said, shipping companies and airlines have been working closely with the immigration authorities for a number of years to try to streamline the procedures and obviate some of the fairly hefty fines that have been imposed on them over the years. One recalls the debates on the carriers' liability Bill when airlines and shipping companies were, to say the least, peeved by the fines to be imposed upon them for reasons with which one is familiar. Their employees were to act as quasi-immigration officials at points of entry abroad. Airlines and shipping companies felt from the beginning that that was an unfair way in which to proceed.
Since then the immigration authorities have made a number of concessions. Under the approved gate check system, for example, companies can achieve a certain status and so are not fined if people destroy their documents during transit. However, the companies must work to earn that status; it is not given automatically. They must shell out money to invest in various procedures which must be inspected by the immigration authorities. That status can also be removed. I believe that they are right to feel aggrieved that, apparently, train operators and the operators of road passenger vehicles are to be granted automatically what is in effect approved gate check status. I fully support the noble Lord's amendment and hope that the Government have a very good reason for proposing that shipping and airline companies should not be treated in the same way as road and rail interests.
§ 4.15 p.m.
§ Baroness O'Cathain
I also support the amendment moved by the noble Lord, Lord Clinton-Davis, which seeks to equalise application of the provisions of the 678 clause. I declare an interest as a director of British Airways. I regret that I was unable to speak at Second Reading. I was involved in some Select Committee work under a very harsh chairman who would not allow me to come to the Chamber. It seems very hard that the sectors which have done much with government to try to reduce document violations—I refer to aviation and shipping—should be the two excluded from the carriers' liability concession under this clause. It is most unlike our normally fastidious immigration service to make a major concession and effectively give automatic gate check status to two modes of transport that are most open to abuse by people who seek illegally to enter our country.
There is no indication of what "satisfactory" arrangements are required in order for road and rail to enjoy exemption from the carriers' liability obligation; yet the airlines and shipping companies must set them out in great detail before they are considered for any concession. They are required to make significant levels of investment in the provision of both facilities and staff training, as I mentioned in the debate on carriers' liability.
Like the noble Lord, even if the road hauliers have a special case, I can see no apparent reason why the provision should extend to train operators if it does not extend to ships and aircraft. Unless there are other special provisions, about which the Minister may wish to inform us, I believe that the clause as it stands creates (to use a stupid phrase) a most uneven playing field for competing modes of transport. I support the noble Lord's amendment which seeks to make it even.
§ Lord Hacking
As the noble Baroness, Lady O'Cathain, will be aware and other members of the Committee may recall from earlier debates, I have had an interest in this issue for some time, although I have no personal interest in the industries involved. The airline industry in particular has had to carry out unpaid and unrewarded immigration responsibilities for many years. For example, at Kennedy Airport in the United States of America, which handles a massive number of passengers who travel to the United Kingdom, it is not an immigration officer but a British Airways member of staff who examines the immigration documents when checking in the passenger. I believe that for many years it did not even matter if British Airways carried to the UK a passenger whose documents were false but had all the appearance of legitimacy. However, when this was spotted by an immigration officer, as opposed to airline staff, on the passenger's arrival, a fine was visited upon the responsible airline. That applies not just to British Airways but to all airlines that bring passengers into the United Kingdom.
I was approached on this matter only a couple of hours ago and I have not had time to do the research. However, if I am right in my recollection and that Clause 32(6) is a new provision—perhaps my noble friend can assist—we should be grateful to the Government that in this Bill a concession is to be made when false documents are produced, which on 679 reasonable examination appear to be legitimate, to an airline carrier and other carriers of persons who travel to the United Kingdom.
One further question arises. Another requirement on an airline that brings into the United Kingdom a person who is proved by the immigration authorities not to have proper documents is that the carrier must return that person to the place from which he or she came. In the short time available to me I have been unable to carry out research as to the amount of fines. My recollection—I look in the direction of the noble Baroness, Lady O'Cathain—is that penalties imposed on airlines amount to hundreds of thousands of pounds per annum. The noble Baroness is indicating millions. It is therefore an enormous penalty that is imposed on the airline companies.
I should be grateful if my noble friend could address the operation of subsection (6) and say whether the airline operator or other operators under subsection (2) are still exposed to the requirement, at their expense, of returning the passenger back to the country from which that passenger had come.
I am very pleased that my noble friend Lord Clinton-Davis has had support from the Cross Benches and from the Benches opposite. If he is right, there should be a level playing field, or a level cloud or a smooth level sea, with the same rules applying to all carriers.
Subsection (5) is a thoroughly fair provision. The train operator or the owner of the road passenger vehicle—and now my noble friend wants the provision to be extended to an aircraft operator and a ship—has to prove under paragraphs (a), (b) and (c) that they have made satisfactory arrangements; that all such practical steps were taken; and that the steps taken were practical steps to prevent A's (the offending passenger's) arrival where A refused to provide the required document or documents, or, if there are other reasons, that it appeared to the person who was responsible for bringing that person into the country that A may not have had the required document or documents.
I should be grateful if my noble friend could explain the operation of paragraph (c) because in the case of an airline operator or a ship there is an opportunity to look at the documents during check-in, providing the passenger does go through the check-in process.
What is the situation when a passenger stows away in a ship—effectively refusing to produce the documents—and where, therefore, the shipowner has no opportunity to examine those documents so that paragraph (c) cannot operate? The carrier has to satisfy all three paragraphs.
Stowing away in an aircraft by trying to hide above the wheels, as some passengers have sought to do, is very precarious and dangerous. Indeed, those who have attempted to do so have often lost their lives in the process. However there are other places in an aircraft where a person can skilfully stow away, notwithstanding controls at airports. There are ways of getting into an aircraft, prior to take-off, avoiding altogether the checking of documents by the airline. That is particularly the case at some airports which run less stringent security. I remember being at an airport on one 680 main continent of the world—I will not name the country—where the airport security was extremely lax and where it would have been extremely easy to shuffle out to join an aircraft and not show documents. That is another reason why my noble friend should be supported. It is not a cut and dried matter of looking at documents. Similarly, with a ship, there are means of passengers boarding ships without going through the proper check-in processes.
I look forward to the Minister's reply. I have known him for many years and he is always very reasonable. I hope that he will agree to consider the matter and will not dismiss it outright.
§ Baroness Williams of Crosby
We support the amendments of the noble Lord, Lord Clinton-Davis, which were so ably explained by the noble Lord, Lord Hacking.
We should like to put forward two further considerations. The airlines operate with sensitivity and at a speed which applies to virtually no other form of transport. We are all very conscious of the fact that they handle very difficult situations with great diplomacy and tact. I should like to thank the airline industry, not least British Airways, for the way in which they handle such situations with great courtesy and the minimum of disturbance. Nevertheless, subsections (5) and (6) should apply because of the efforts they make in this regard.
Unless railway trains come from the Channel ports, the chances are very high that they come through a third country. However, in the case of airlines, there is less likelihood that somebody will have passed through a third country and therefore it is very important that arrangements are in place. I reiterate that it is particularly important to the airline industry that genuine asylum seekers should be dealt with separately from those who are clearly not genuine. We support the amendments.
§ Lord Cope of Berkeley
I have sympathy with the amendments. They emphasise the imbalance in regard to these matters between the different modes of travel. That is most starkly indicated if one compares subsection (4) with subsection (5). Subsection (4) states that no charge is payable in respect of any person shown to have produced the required document on a ship or an aircraft, and it clearly covers ships and aircraft in addition to road and rail vehicles, while subsection (5), for some reason which no doubt the noble Lord, in his reasonable way, is about to explain, does not include them. It seems only fair that, in addition to subsection (4), subsection (5) should also apply.
§ Lord Williams of Mostyn
I am grateful for all the contributions that have been in support of the amendments. They concern the carriers' liability provisions in Clause 32. Much of Clause 32 is a repetition of existing carriers' liability legislation. Subsection (5) inserts a new defence against the imposition of a charge under the carriers' liability arrangements. The new defence will apply to a train operator or the owner of a road passenger vehicle. It has 681 been inserted specifically to take account of the specific circumstances of those two forms of transport. I shall develop that in a moment.
Amendments Nos. 61A and 61B seek to extend the application of subsection (5) to aircraft and ships respectively. That does not put right an imbalance in the way the noble Lord, Lord Cope, outlined, but forgets the present circumstances.
Under the existing carriers' liability legislation, no charge is payable in respect of a person who is shown, by the owner or operator of the transport, to have produced the required travel document or documents to him or his representative when embarking for the United Kingdom. This defence is reproduced in subsection (4) of Clause 32. We believe that that has worked satisfactorily for a number of years for ships and aircraft. In France, in relation to trains, buses and coaches only, there are legal limitations on the ability of the staff of the company concerned to check travel documents. The position in Belgium is not quite so clear. It is therefore not possible for the owners or operators of train and bus or coach services in France to benefit from the defence, as can the airlines, under subsection (4) of Clause 32. Therefore, we are not perpetuating an imbalance. We are giving owners or operators of train, bus or coach services in France the opportunity to benefit from the defence.
Carriers' liability already applies to Eurostar services by virtue of an order made under the Channel Tunnel Act; but there is still doubt about the services from Belgium. We have therefore devised the defence contained in subsection (5)—which is narrower than the existing defence for trains—in order to cover the specific circumstances of passenger train and bus and coach services, but in a way which assists them in complying so far as possible. The defence for a train operator or the owner of a bus or coach is to demonstrate that it had satisfactory arrangements in place to prevent the carriage of inadequately documented passengers and had done everything practicable to carry them out.
The Government are determined to continue to use carriers' liability legislation in respect of passenger train services and bus and coach services from mainland Europe. If there is a legal limitation on the ability to check, we recognise this and that is why we have inserted subsection (5) as a new defence.
However, in the case of passengers travelling by aircraft or ship, there are no legal obstacles, in France, or elsewhere, concerning the checking of travel documents. In the case of air travel, international obligations require carriers to check documents. There is, therefore, no difficulty. We do not think that the extension which is attempted is needed because different circumstances obtain for airlines in terms of international obligations and in terms of the other carriers which are presently protected by subsection (4).
§ 4.30 p.m.
§ Lord Clinton-Davis
I am grateful to my noble friend for giving way. Have the Government, and his department in particular, engaged in consultations with 682 shipowners and airline operators which must have explained their concerns to his department? A number of noble Lords have reiterated them today. If there has not been consultation on these matters, will my noble friend undertake that there will be during the Recess?
§ Lord Williams of Mostyn
I am always happy at any time for officials, or myself as appropriate, to receive any representations. I think that we have a reasonable track record for listening to them. I take my noble friend's point.
My noble friend Lord Hacking asked about the operation of paragraph (c). I repeat: that is designed to reflect the fact that in France, and possibly Belgium, train operators and bus and coach operators cannot check documents but they may be able to determine whether or not travel documents were properly issued.
The noble Baroness, Lady Williams, asked about subsection (6). It relates to subsections (4) and (5). The noble Lord, Lord Hacking, asked whether or not the saver in subsection (6)(a) was new or simply recent. I believe that his recollection is right: it is recent. It repeats a provision in the Immigration (Carriers' Liability) Act 1987. However, in response to his further question, subsection (6)(b) is new. I hope that that is of further benefit.
Our approach comes from this: we want to have co-operative arrangements with all carriers. I endorse what has been said by the noble Lord who spoke first; namely, that the carriers have their own interest which they have sought to discharge in consultation with us. I am happy to reciprocate that. I repeat: a carrier's staff are not expected to be immigration officers but they are expected to make checks. As the noble Lord, Lord Hacking, said, they try to do that.
The immigration service is always ready on request to train carriers and their check-in staff abroad. We have already had well over 500 training trips for over 150 carriers in 90 countries. Our evaluation shows that the average reduction in the number of such cases can be as much as 30 per cent once the carriers are trained. I repeat: we are more than happy to continue that, so I think that our interest is a common one.
On the questions raised by the noble Baroness, Lady O'Cathain, and my noble friend Lord Hacking, we have airline liaison officers abroad. We do not have enough at the moment, I agree, but we are planning to increase the number of airline liaison officers abroad to about 20 by the end of the year. I think that it is generally true to say that all the Schengen countries have carriers' liability laws. In total, over 50 countries have such rules and regulations.
In summary, the reason that we have drawn the distinction is not to discriminate against one class of carrier or another, but simply to say that there are international obligations which bind the airlines. There are legal provisions in Spain which disentitle the other carriers. We have simply sought to deal in a balanced way with both sets of carriers.
§ Lord Clinton-Davis
I am grateful for the care with which the Minister has responded to this interesting and 683 short debate. I am not totally convinced at present, but I appreciate that my noble friend said that, through his officials, he will entertain representations from those who feel that they are being prejudiced by the operation of the current situation and that involved in the Bill.
I do not want to exacerbate the situation of my noble friend. He is suffering enough already! I therefore beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 61B not moved.]
§ Lord Cope of Berkeley moved Amendment No. 62:
§ Page 23, line 43, leave out ("more than eight").
The noble Lord said: In comparison with the amendments we have discussed, this is a modest amendment. It enables me to make some inquiries about the definition of "road passenger vehicle". The Bill states that it is a vehicle,
adapted to carry more than eight passengers … being used for carrying passengers for hire or reward",
or carrying fewer than eight passengers but being used,
for carrying passengers for hire or reward at separate fares
—it is an interesting distinction—
in the course of a business of carrying passengers".
It is a further distinction for small vehicles. I cannot understand why a smaller vehicle—whether a car being used as a taxi, or a people carrier which may not seat eight individuals but may seat six or seven—should be treated differently from a coach. It seems to me that we might dispense with one or other of these subsections, either by the amendment, or by some more ingenious and better drafted provision with similar purpose. I beg to move.
I hope that I am not being pedantic when I point out that the clause deals with,Charges in respect of passengers without proper documents".It seems artificial that they should depend on the size of the vehicle. I therefore gladly support the amendment.
§ Lord Williams of Mostyn
We are sometimes criticised for dealing with dangers that do not exist. We are trying to avoid making provision for issues that we have not found a problem with. We are extending carriers' liability to buses and coaches because of the significant increase in the number of inadequately documented passengers arriving here by bus or coach. We have not found a similar problem with taxis. It is very rare for taxis to carry fare-paying passengers to the United Kingdom. If they did, they would be subject to the normal checks made by ferry companies.
Clause 32 has been cast wide enough. From experience we see no need to extend the scope of the definition of road passenger vehicles contained in subsection (9). When my noble friend Lord Berkeley pointed out that we had not dealt with a particular type of rail freight operator, we beetled off immediately to include them, but this is not a problem that we have encountered.
§ Lord Cope of Berkeley
If it is not a problem, perhaps I should have tabled an amendment to delete 684 subsection (9)(b), which catches taxis. If they are not a problem, we do not need that paragraph, However, that is a debate for another occasion. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 32 agreed to.
§ Clause 33 [Visas for transit passengers]:
§ Lord Cope of Berkeley moved Amendmem No. 63:
§ Page 24, line 9, at end insert ("unless they hold valid travel documents for entry into another country").
§ The noble Lord said: It will also be helpful to discuss Amendment No. 63A, which deals with the same point, but with, I hope, rather more refined drafting.
§ The subject of the clause is passengers in transit. Nationals of several countries currently require a direct airside transit visa to make a connection at a UK airport. For example, if they fly into this country from Peking and are going to change immediately to another flight, they require a visa even though they remain outside immigration control and technically outside the country, on the airside of Heathrow or Manchester or wherever it is.
§ The clause permits such transit visas to be still required. I understand that they are not required in Germany. As a result British Airways and other long-distance carriers are losing business to Lufthansa and other airlines that fly into Germany. The decision of someone who is planning to fly through one of the hub airports in Europe will be affected by the fact that they need a special visa just to stay in the transit lounge at London or Manchester, whereas if they go via Frankfurt or some other places they do not.
§ That is an issue of some importance. I am told that British Airways estimates an annual loss in revenue of £10 million as a result of the requirement for transit visas. It is unlikely that many people slip into the country out of the transit lounge. If many are thought to have done so, perhaps such provision is required, but if not and if they have proper documentation to continue their journey, it seems unnecessary to require such visas. I should be grateful for the Minister's comments. I beg to move.
§ 4.45 p.m.
§ Earl Russell
I hope that the amendment will not draw the same answer as the previous one, because it addresses a real mischief. I should like to tell the Minister a story that was told in this House by my noble friend Lord Harris of Greenwich. It is a story about carriers' liability that occurred before he was in this House.
There was a plane flying from Toronto to Copenhagen with passengers correctly documented for Copenhagen and with no plans for a stop in the United Kingdom. There was an onset of particularly severe weather and the pilot was warned that it would be unsafe to continue the flight. He was required to land at Glasgow. He waited for several hours and was advised that Glasgow would not clear him for take-off because the weather was still worsening. The passengers were 685 put up in a hotel in Glasgow overnight and continued their journey the next day. The airline was fined £2,000 under carriers' liability. That was a deterrent to air safety. Today of all days we might take some account of that.
As well as the air safety argument, there is also the effect on British trade, which the noble Lord, Lord Cope of Berkeley, has mentioned. Transit passengers are a paying business for this country. They are a vital and growing part of the economy. We should not discourage them or penalise passengers who can have had no thought of making an illegal entry into this country because there was no prospect of their plane stopping here. The case that I have mentioned was legally in order under carriers' liability legislation. Care should be taken to ensure that the problem does not arise again.
For the reasons given by the noble Earl, Lord Russell, and my noble friend Lord Cope of Berkeley, I hope the Government think again about the clause. Subsection (1) says that:The Secretary of State may by order require transit passengers to hold a transit visa".However, we are not told what will happen to the transit passenger if he does not hold a transit visa. It seems extraordinary to try to stop any transit passenger from moving away from this country and it is a great interference with their freedom. With the deepest respect, the clause will not do. However, my noble friend has driven some sense into it with his two amendments.
§ Lord Cadman
The amendments are desirable and I support them. They would remove much of the bureaucracy relating to transit passengers at airports and would remove much of the immigration service's need for special facilities and extra manpower. The consequences of our insistence on protecting ourselves from uninvited people and, perhaps, of the lack of attention to the issue by others must be borne to some extent by the taxpayer and not wholly by affected businesses. Provided that airports can segregate transit passengers properly and keep them airside, why should such passengers need visas?
§ Viscount Brentford
I also support the amendments. I do not understand why Clause 33 is in a Bill on immigration and asylum. No doubt the reason will become apparent in the supplementary regulations to be made under the clause.
Many people who have to pay for a transit visa feel aggrieved and regard it as a fine for passing through this country. The provision brings a lot of opprobrium on this country. I have encountered similar provision in other countries. I do not like it and I am sure that nobody else does. The amendments would help to improve the situation.
§ Lord Williams of Mostyn
In answer to the specific question put by the noble Lord, Lord Renton, the clause simply repeats Section 1(1)(a) of the Immigration (Carriers' Liability) Act 1987, which was introduced by 686 our predecessors in the Asylum and Immigration Appeals Act 1993. I recognise that the fact that our predecessors did something is not necessarily a knock-out blow in the context of argument. Indeed, the noble Baroness might think it is a knock-out blow the other way.
There is a point to the measure and I shall develop it because serious issues have been raised. If Amendment No. 63 were passed, it would disentitle the Secretary of State from imposing the requirement to obtain a transit visa on transit passengers—I stress, on transit passengers—who hold valid travel documents which allow them entry into another country. That means that there would be an end to the UK system of direct airside transit visa regimes and it would significantly affect our immigration control powers.
The United Kingdom visa requirements cover 106 countries. All but five of those are countries on which all EU member states impose a visa regime. The vast majority of visa nationals do not require a visa to transit the United Kingdom and benefit from a concession, known as a "transit without visa concession". It is an important concession for reasons that I shall develop, but it enables nationals to enter and transit the United Kingdom without obtaining a visa provided that transit is by air throughout; that they have an onward booking by the next available flight within 24 hours; and that they have the necessary documentation for their destination. That is a concession which we give and which has proved effective in practice in terms of the management of business, not overlooking our commercial interests which are extremely important.
In answer specifically to the concern raised by the noble Lord, Lord Renton, that concession is withheld from nationals of just 16 countries. That is because the concessions have been abused in the past. The countries are Afghanistan, China, the Democratic Republic of the Congo (Zaire), Eritrea, Ethiopia, the Federal Republic of Yugoslavia, Ghana, Iran, Iraq, Libya, Nigeria, the Slovak Republic, Somalia, Sri Lanka, Turkey, Uganda and holders of documents issued by the so-called "Turkish Republic of Northern Cyprus" and the former Socialist Federal Republic of Yugoslavia. Therefore, there is a small list of countries about which we have been sufficiently concerned to make that requirement. The overwhelming majority of countries and their nationals have that concession.
However, given the UK's importance as a transit hub, we seek only to impose a direct airside transit visa regime where we have found there to be no other solution. It is used as a last resort only, and only where we have had evidence of extensive sustained abuse of control.
The effect of Amendment No. 63A would be that the Secretary of State would have to exempt holders of either an entry permit to reside in, or a visa to enter, a state of the EU from a requirement to obtain a transit visa. As I have explained on a number of occasions, we have no objection in principle to a system of exemptions from the direct airside transit visa requirement. However, we need to be sure that such a system would 687 not be open to abuse. There are some permits from EU member states which are easy to forge. In our judgment, they are not sufficiently secure to safeguard our legitimate rights.
I hope that I have been able to indicate in particular to the noble Lord, Lord Renton, that his fears are misplaced. It is a continuation only of the existing system. The visa requirements cover 106 countries and we found abuse in only 16 countries. I am pleased to have been able to explain the situation at some length and I believe that we are right to seek to continue these measures. It is a fact that countries change and it is necessary to keep a list up to date, sometimes by deletions and sometimes by additions.
I am grateful to the Minister for that full explanation. However, I am still perplexed by the expression "transit passengers" in the first line of the clause. I tried to find a definition of that in Clause 35, the interpretation clause, but there is none. If a passenger is a transit passenger and described as such, what is the purpose of requiring him to hold a transit visa? If he is a transit passenger, it must be assumed that he will move on anyway. Therefore, I believe that the use of the word "transit" in that line makes the Minister's explanation difficult to follow.
I take his point about the 16 countries from which people come here without permission, perhaps trying to call themselves "transit passengers". However, they are not transit passengers: they would be illegal immigrants, which is different.
§ Lord Williams of Mostyn
The noble Lord finds the definition of "transit passengers" in Clause 33(2). Here, we are dealing with people who ought to be transit passengers—in other words, who come for a short time and move on—because we are a very important transit hub. We have no problem at all with that, but we must have a limited regime; limited to 16 out of the 106 countries where we have found evidence of abuse. Therefore, the general concession is not given to those from a limited number of countries. To put it crudely, if people want to come here using, say, Heathrow as a transit hub—in other words, an intermediate point—we are happy for them to do so provided that they depart. We have limited the number of countries in respect of which we do not give the concession.
I agree that the definition of "transit passengers" appears in subsection (2) and I have seen it. However, we are merely given a view of the type I have described; namely, people,who on arrival in the United Kingdom pass through to another country without entering the United Kingdom".If that is the position, surely we should just let them through. To require them to have a transit visa as well is somewhat bureaucratic, adding to the troubles of airport immigration officers in particular. I was most familiar with that many years ago when helping to pilot the Commonwealth Immigrants Act 1962. It is as old as that!
§ Lord Hylton
Perhaps I can help to defuse the situation. Would the Minister be so good as to say that 688 the Government will interpret Clause 33(3)(c) as widely as possible so that the minimum number of people are caught?
§ Lord Williams of Mostyn
Of course, one wants to catch the minimum number of people, but I return to what was said by the noble Lord, Lord Renton; that we want them to come here and transit. No one would be happier than I if they did come here and transit, hut we are worried about the people who come here and have no intention of transiting.
We would be perfectly happy for someone to travel here on a transit basis from one of the 16 countries with a ticket to the United States. However, we would not be happy for people to come here with no restriction of the kind we are considering. If someone does not have a transit visa of the sort being discussed—as raised by the noble Lord, Lord Renton—he will not be allowed to board the plane to the United Kingdom. We have found abuse by some nationals from those countries. We have limited the abuse to a small number, but some people will come here pretending to be transit passengers when they have no intention of taking an onward flight.
I do not know the details of the example raised by the noble Earl, Lord Russell, but it is unlikely to have been caught by the kind of regime we are discussing. I am more than happy to look into it if the noble Earl gives me the details of the case.
§ 5 p.m.
§ Earl Russell
I am grateful to the Minister. I am also interested in what the noble Lord, Lord Hylton, had to say about Clause 33(3)(c). Will the Minister consider using that clause for the protection of people whose aircraft are unexpectedly delayed in the United Kingdom for reasons of air safety only?
§ Lord Williams of Mostyn
I have already said that the example given is unlikely to be caught by this regime. The noble Earl said that there may be a storm or lightning, requiring passengers to land at a point where they never intended to go. I do not believe that that situation will be caught by this regime. If I am advised that it may be, I shall look into it further.
§ Earl Russell
I heard the noble Lord, Lord Waddington, tell the Committee, quite rightly, that that situation would be caught under carrier liability.
§ Lord Williams of Mostyn
I am not always in perfect agreement with everything that the noble Lord, Lord Waddington, says. I shall certainly look into the matter.
§ Lord Cope of Berkeley
I normally agree with my noble friend Lord Waddington. On this occasion I have found the Minister fairly persuasive, not least in his reference to the previous government, who were right at the time, although the situation may have changed since. There may be difficulties in preparing an order under Clause 33(3)(a), which specifies a description of persons by reference to their origin but not by reference to their race. It is extremely difficult to think what "origin" can 689 mean that is different from the meaning of "race", but I shall not press the Minister on that point as it is not raised by my amendment. For the moment, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 63A not moved.]
§ Clause 33 agreed to.
§ Clause 34 [Power to detain vehicles etc. in connection with charges under section 32]:
§ Lord Cope of Berkeley moved Amendment No. 64:
§ Page 24. line 42, after ("it") insert ("on the open market").
§ The noble Lord said: Amendment No. 64 provides that any vehicle that has to be sold under the draconian provisions should be sold in the open market. Those who find themselves in the difficult circumstances that we have considered, not only today, but in Committee on an earlier occasion, have the right to expect that anything that is confiscated is sold properly.
§ From time to time one sees advertisements for stock, such as bankrupt stock, being sold off by government and indeed by others. Such stock is often sold off well below its proper value to the detriment of the original owners. In this case, where the powers are so draconian, it seems that there should be a special duty to make sure that such property is sold properly.
§ Amendment No. 65, grouped with this amendment, returns to the point of what happens if the vehicle, whatever it is, is detained on an ill-founded basis. If the immigration authorities and the Secretary of State are wrong to detain the vehicle, the expenses which the operator or owner incur, and which could be considerable, should be refunded. Amendment No. 65 attempts to secure that.
§ We have already heard of problems such as a driver trying to identify whether someone is a legal immigrant—someone who has genuinely been subjected to persecution according to the convention—and someone who fails the tests. Because a driver cannot tell who should be allowed in, he is supposed to stop them all, Clearly, if a driver fails to stop them all, but nevertheless it turns out that he need not have stopped one of them, he and the owner of the vehicle will find themselves not only paying a fine but also potentially losing business through the detention of the lorry, leading to a loss of the whole business.
§ Amendment No. 65 attempts to ensure that some expenses are paid. I am not arguing for full compensation. I am saying that expenses incurred as a result of such a detention, which could be considerable, should be refunded to the individuals concerned. I beg to move.
§ Lord Dholakia
I support Amendment No. 64 in the name of the noble Lord, Lord Cope of Berkeley. I hope I have pronounced his name correctly. I believe my pronunciation is better than the American pronunciation attempted by my noble friend.
I have no problem with the first part of the amendment concerning those who, effectively, exploit illegal immigrants and bring them into the country for 690 vast sums of money. If they are caught, the transport is confiscated. If charges are not paid, it is right and proper that the property is sold on the open market in a way that achieves the best possible value so that any refund due can be paid to the individuals.
I am concerned about Amendment No. 65 which is grouped with Amendment No. 64. It refers to those who may be found not guilty of a particular offence. In that situation the Home Secretary is not legally liable, even if proved wrong in terms of confiscating someone's property. These powers are far in excess of what a court of law in this country imposes. If the Home Secretary is found to have been unlawful in the way in which he detained the property, it is right and proper that the individual should be repaid the money due to him. On the other hand, if it is proved that the individual was guilty of a particular offence, there is no problem.
We are talking about the rules of natural justice. It is right and proper that individuals who are found not guilty are able to claim the money back from the Home Office. The provision gives a draconian power to the Secretary of State. I hope the Committee will support the amendment.
§ Lord Avebury
Can the Minister explain the reason for the distinction between the powers to detain and sell off the assets that we are discussing under Clause 34 and the regulatory powers which we considered when debating Amendment No. 56? Why is it possible to put on the face of the Bill the detail of powers to detain these particular items which are described as "transporters" and to sell them under the specialised circumstances when powers to deal with rail freight wagons are to be put into regulations? It seems illogical to treat rail freight wagons in such a different way from all the other methods of transport covered in Clause 34.
§ Lord Hylton
These are two important amendments, given what a number of us were saying earlier on the Government's new clause in relation to draconian penalties.
I refer to line 43 of page 24 where a period of 84 days is specified in the Bill. In my commercial experience—now a few years ago—it was not uncommon for government departments in this country to take 90 days and more before paying their bills to commercial organisations. Therefore, 84 days may be a little on the low side.
The part of the Bill to which Amendment No. 65 relates may bear particularly harshly on owner-operators of single vehicles. Perhaps the Government will take that into consideration.
§ Lord Williams of Mostyn
I understand the anxieties being expressed; but if one looks at the scheme in Clause 34, they are not justified.
The reason we have regulations for rail freight wagons—the point of the noble Lord, Lord Avebury—is that we need to adapt provisions of part of the Bill to the specific circumstances of the rail freight industry. Clause 34 deals with a justifiable regime to allow the immigration service to detain and sell transporters to recover unpaid charges imposed under Clause 32.
691 First, therefore, a charge needs to have been imposed "under section 32", as indicated in Clause 34(1) which states:A senior officer may, pending payment of any charge imposed under section 32, detain … the transporter".That is the first safeguard. In other words, anyone subject to a charge "under section 32" can pay, in which case Clause 34 does not begin to bite at all.
Secondly, the other safeguard to which I ought to draw the attention of the Committee appears in subsection (3):The court may release the transporter if it considers that—If the court then has not ordered the release of the transporter—this is "court" intervention which is available—84 days beginning with the date on which detention began (that is quite a long time) have to pass before the Secretary of State can dispose of the transporter.
- (a) satisfactory security has been tendered … or
- (b) there is a significant doubt as to whether the charge is payable and the applicant has a compelling need to have the transporter released".
The amendments fall into two categories, clearly approaching the matter from two different bases. I understand the point of the first amendment; that is, we have to obtain the best price—I believe that is a fair summary. But that is exactly the duty that is set out on the face of the Bill. At paragraph 3 of Schedule 1 (on page 105) a specific duty is set out as follows:If leave for sale is given, the Secretary of State must secure that the transporter is sold for the best price that can reasonably be obtained".That is a better safeguard, in some circumstances, than simply saying, "on the open market". As I see it, the Secretary of State has a wider duty there.
In relation to Amendment No. 65, Clause 34(5) makes the detention lawful even if it subsequently transpires that the imposition of the charge was ill founded. But that must be read in conjunction with subsection (6), which states:But subsection (5) does not apply if the Secretary of State was acting unreasonably in imposing the charge".Therefore, if one takes subsections (5) and (6) together, which one has to, one sees that the detention of a transporter is not lawful unless the Secretary of State was acting reasonably. So all those safeguards are built in.
Turning to the question of the noble Lord, Lord Hylton, a period of 84 days was suggested when this part of the Bill was considered in the Commons. We consulted industry. I am told that it was thought appropriate and therefore an amendment was brought forward in the Commons to deal with this point.
Bearing in mind all these interlinked safeguards, not least the question in Schedule 1, this is not at all unduly draconian. However, I perhaps should say this, because it may be to the advantage of the industry generally and I say it deliberately. The immigration service envisages these powers being used sparingly and only when other attempts to recover accumulated debt have failed. It is important that where the Secretary of State acted reasonably, he and the 692 taxpayer should receive some protection. In balancing this against the interests of the carrier, I can assure the Committee that detention will be instigated only after the most full and careful consideration of the circumstances—I should perhaps emphasise the next words—including representations from the carrier. I am happy to give that assurance.
§ 5.15 p.m.
§ Lord Avebury
Can the Minister confirm that these assurances will extend to rail freight wagons and that the detention of rail freight wagons, under the regulations which have not yet been issued, will at least be expressed in the same terms; that is, that it will be pending the payment of any charge and that the courts may be able to release the rail freight wagons in like circumstances to those of this clause?
§ Lord Williams of Mostyn
I shall certainly give that point proper consideration. I cannot commit the Government on the hoof, but it is a fair inquiry and I shall give it careful thought.
§ Lord Dholakia
If it was found that the Secretary of State was acting unreasonably, would it mean that, as a result of that action, he would reimburse the carrier for any expenses incurred as a result of the detention?
§ Lord Williams of Mostyn
Subsection (5) gives the protection of lawfulness in terms of detention. It does not apply if the Secretary of State acted unreasonably. If one detains another's property and it is not on the basis of law, the owner of the property has the usual remedies from the court which fall to be determined in the usual way on the usual principles.
§ Lord Cope of Berkeley
In relation to Amendment No. 64, I had not observed that Schedule 1(3) applies in such cases. I entirely agree with the Minister that it is a better formulation and I am content with that.
In relation to Amendment No. 65, the noble Lord made some interesting points, but it may be a matter to which we shall want to return at a later stage. For the moment, I beg leave to withdraw Amendment No. 64.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 65 not moved.]
§ Clause 34 agreed to.
§ Schedule 1 agreed to.
§ Clause 35 [Interpretation of Part II]:
§ Lord Williams of Mostyn moved Amendment No. 66:
Page 26, line 1, at end insert—
(""rail freight wagon" has such meaning as may be prescribed;").
§ On Question, amendment agreed to.
§ Clause 35, as amended, agreed to.693
Baroness Williams of Crosby moved Amendment No. 67:
Before Clause 36, insert the following new clause—