§ Earl AttleeMy Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I remind the House that I hold several honorary positions in trade associations.
The Question was as follows:
To ask Her Majesty's Government why, in the aftermath of the International Transport Roth case, they are treating those who paid their civil penalties for carrying clandestine entrants differently from those who did not.
§ The Parliamentary Under-Secretary of State, Home Office (Lord Filkin)My Lords, the civil penalty regime that operated until 8th December 2002 was not found to be unlawful by the Roth judgment. Consequently, penalties issued under the regime were lawfully imposed. Where penalties have been paid, liability has been accepted and the Government are under no obligation to return them. While it would be open to us to take action against those who have not paid their penalties, we consider, in the light of the Roth judgment, that such action is not appropriate.
§ Earl AttleeMy Lords, I thank the Minister for his reply. Is not the reality that the operators paid their fines because the Secretary of State impounded their vehicles and that if they had not paid the fines in order to get their vehicles back they would have gone bankrupt?
§ Lord FilkinMy Lords, no, that is not the case. Some 50 per cent of the fines were paid by transport 2 operators whose vehicles had not been impounded. Where vehicles were impounded, it was perfectly open to operators, if they wished, to provide an alternative form of security while still contesting the fine.
§ Lord DholakiaMy Lords, if the Minister looks in Hansard he will see that we objected to this piece of legislation during the passage of the Nationality, Immigration and Asylum Bill. I think the Roth judgment has proved that we were right. Does the Minister consider that many firms paid up because the law was stacked against them? More importantly, they did not feel they wanted to waste more resources and time fighting something they were unable to defend at that stage.
In the light of that, does the Minister consider it appropriate to allow them at least a court hearing and for the court to decide, on the basis of the Roth criteria, whether or not their money should be refunded?
§ Lord FilkinMy Lords, no, because essentially the scale of the clandestine immigration problem requires a tough response. I do not need to remind the House of how serious that response should be. We cannot see any benefit in letting off people found to be in breach of legal requirements on vehicle security who have paid the appropriate penalties.
We are not asking a lot of transport operators. We are simply asking that they comply with a code of conduct and check that their vehicles are secured. That would cost them very little in capital equipment and in time. There have been persistent high levels of evidence that transport operators have allowed their vehicles to come into the country without checks having been put in place. It is essential, therefore, that we provide an incentive for them to take their responsibilities more seriously.
Lord BerkeleyMy Lords, perhaps my noble friend can clarify one or two matters. I understand that the Question concerns lorry drivers who were charged with bringing in people before the Roth case. Is it true 3 that those who paid will not be getting their money back, while those who did not pay and contested the fine will not have action taken against them? Is that not a bit of a legal nicety and rather unfair on those who paid?
§ Lord FilkinMy Lords, I refer my noble friend to the Answer I gave to the noble Earl, Lord Attlee. In essence, approximately £2 million was paid before the Roth judgment. Of that, about £350,000 was paid by UK transport operators and the remainder by foreign operators. I can only repeat what I have said already: we can see no justification for repaying the money. It is essential that a clear signal is given to transport operators to comply with their responsibilities to secure their vehicles and stop clandestine immigrants getting into this country.
§ Lord TebbitMy Lords, would it not be more effective if the Government deported illegal immigrants as soon as they were discovered instead of directing them to the nearest welfare agencies? Can the noble Lord say whether he thinks the Government's reputation for fairness and justice will have been enhanced by the Answer he gave today?
§ Lord FilkinMy Lords, no, I do not think it would be more effective to seek to deport people in the circumstances the noble Lord describes. All the evidence is, and common sense dictates, that it is far more effective to stop people getting here in the first place if they are essentially economic migrants using an asylum route. That is why we expect transport operators to co-operate with us in stopping illegal migration into the country. I am certain that on reflection the noble Lord will support an approach which says that it is much more sensible to stop them getting here in the first place rather than having to support them while they go through the procedures under the asylum Acts.
§ Lord Campbell of AllowayMy Lords, if one has an object that is laudable but where nonetheless the law should not have been enacted, how can penalising and then refusing to refund the penalty be justified? How can that be equitable in any sense?
§ Lord FilkinMy Lords, because the Court of Appeal did not feel that the Act was unlawful. It found that a flat fine at a high level was potentially disproportionate to the circumstances, which was why, under the Nationality, Immigration and Asylum Act, we brought in the provision making it possible to levy differential fines in those circumstances.
To give the more specific legal answer, Section 4(6) of the Human Rights Act states that,
('a declaration of incompatibility')—(a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and(b) is not binding on the parties to the proceedings in which it is made".