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Earl Russell:

We have been dealing all day so far with injustices to the weak and helpless. We are now dealing with an injustice to the rich and powerful, but that does not make it any less of an injustice. Justice is proverbially blind and an injustice to one person is just as much an injustice as an injustice to another. It is in that spirit that the Committee should consider the amendment, which seems to me to offer a serious case.

I agree that it is an improper privatisation, in effect, of government responsibility by handing responsibility for the quite important job of checking some technical papers to a body which is not part of the public service, whose objectives are different and which can get its staff to do it only by an exhaustive process of training which is not part of their normal work.

I remember one case referred to in 1991 when we discussed the issue previously. My noble friend Lord Harris of Greenwich states that it was not quoted by him. It concerns a flight from Toronto to Copenhagen. It touched down at Glasgow and was prevented from going on by bad weather. The airline very properly decided that, since it could not fly its passengers further that day, it would get them a hotel overnight in Glasgow and fly them on the next day when the weather was better. It was made to pay the fine for each passenger that it landed. That is slap within the purpose of the amendment. Those passengers were given leave to enter; they went on the next day; and they did no possible harm to the United Kingdom. What really sticks in my gullet about that case is that the imposition of the fine was an incentive to be neglectful of air safety. I am most grateful to the airline that it did not succumb, but it should not have been put under that temptation.

I understand that this situation is costing British Airways £2.5 million a year. It is a considerable sum of money which begins to approach the character of taxation. I do not know by what authority that taxation is raised. It is taxation for things which are not under British Airways' control and not morally, legally or otherwise its responsibility.

Let us take the example of the case put forward by Singapore Airlines. A lady, Mrs. J. Mbabazi, was flying from Singapore to Abu Dhabi. Her flight was delayed,

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so she got on a flight to London which had a connecting flight. It was expected that she would not go outside the airport area. However, entirely unforeseen by the airline, she decided to land herself in London and spend the night at a hotel because she was tired. That is a perfectly intelligible decision and not in any way the airline's responsibility. But the airline was fined for it.

Airlines are made to pay for any so-called mistake, but they are not given any financial support for doing the Government's work for them. That provides a contrast with the procedure under the Education (Student Loans) Act 1990 when a similar piece of government administrative work was offloaded on to the universities. I was glad--I welcomed it warmly at the time--that the Government agreed to pay the universities for the work they did for them. If the Government must insist on carriers' liability, I do not see why they should not apply the same principle here.

We have been debating much this evening on the third country removal in which people are shuttled to and fro between airlines. That is done at the airlines' expense. When the noble Baroness turned down the amendment asking for the third country to agree to the removal before the person was removed, she was unloading a great expense on the airlines for something that was no responsibility of theirs.

Finally I wish to ask the noble Baroness this question. I shall return to the issue if we do not receive an answer tonight. Clause 5(1)(b) makes it an offence to assist an asylum seeker--an offence to assist someone in doing what is perfectly lawful. Does that clause create a new carriers' liability? I think we should be told.

Lord Brabazon of Tara:

I have my name to this amendment. I support my noble friend's remarks. My noble friend the Minister will be aware that in the past I have been somewhat critical of the operation of the Immigration (Carriers' Liability) Act. As has been said, it is not the job of airline or ferry employees to act as unpaid immigration officials. I know that both the airlines and the ferry companies have spent large sums of money in training their people to enforce the provisions of the Act as best they can. It therefore seems exceptionally unfair if, following the entry of someone who is given leave or exceptional leave to enter this country by immigration officials, the airline or ferry company should still be liable to pay the £2,000 fine. It is as if you won a case in the courts and, even though you won the case, you were still expected to pay the costs of the prosecution. That is not fair. My principal argument on this issue is one of fairness.

The noble Earl, Lord Russell, quoted a case from Singapore Airlines. If he had not done so, I should have quoted it myself. That person came into this country, previously having no intention of staying here. Finding that she had a 12-hour wait in transit at Heathrow, she decided to come into London. I have no doubt that, having done so, she spent some money, which was all to the good of the economy of London. She then returned to Heathrow and departed on her way to Entebbe, where she originally intended to go. The

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immigration officials had given her leave to enter this country; yet the airline was still fined £2,000. That is just not fair.

I continue on the case of Singapore Airlines only to say that, under the regulations, last year (1995) Singapore Airlines was involved in 42 cases under the Immigration (Carriers' Liability) Act. In 31 of those the fines were waived following often protracted appeal. In three-quarters of the cases the fines were waived. I suppose that could be used as argument either way. In my opinion it means that current legislation is badly drafted and needs to be brought into order. If someone can be charged 42 times and let off 31, there must be something wrong with the way the law is being operated.

My noble friend referred briefly to the ferry industry. I know that it feels very strongly about this issue, too. There is a slight difference between the ferry industry and the airline industry. It costs probably only £20 for a foot passenger to get across from the Continent to here on a ferry. Therefore the fine of £2,000 is 100 times the basic fare. At least the airlines probably receive a little more from their passengers to offset against the fine than the ferry companies do. Furthermore, the ferry companies have the problem of people hiding themselves in the back of trucks, in containers and so on, which at least the airlines do not have.

The ferry companies feel particularly aggrieved; and I ask my noble friend to address this issue. Why is the Channel Tunnel, which is in direct competition with the ferries across the Straits of Dover, exempted from all these fines when the ferry companies operating exactly the same route are liable to pay £2,000 every time they bring an illegal immigrant across? I hope my noble friend will examine these issues with care.

This amendment is not designed to upset the entire Immigration (Carriers' Liability) Act. It is designed only to address one particular anomaly; namely, of those people who, after they arrive here, are allowed by the immigration authorities to stay; yet even after they are allowed to stay the poor old carrier, whether a ferry company or an airline, is still fined £2,000. That does not seem fair.

Lord Mountevans:

I too want to support the amendment of my noble friend Lady O'Cathain. I dare say that it will come as no surprise to those who are aware of the implications of the carriers' liability legislation. On the other hand, it may surprise the Committee to hear that I shall not raise the case of the Gurkha band because I believe that it is famous enough already.

It might be asked why carriers have a liability in the context of immigration control. After all, the airlines and the shipping companies--whose case would, I am sure, have been well advanced by the noble Lord, Lord Greenway, had he not been prevented by a bereavement from being here this evening--pay for the provision of immigration services at our airports and ports, as do the taxpayers; in other words, at the frontiers.

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But things are not so simple as they seem. It seems to me that in this country we operate a three-tier system of frontier control. The noble and learned Lord, Lord Templeman, who is not in his place, recently chaired a working party on open frontiers in the European Union. His working party summarises the Government's policy as being threefold: pre-entry, which we are discussing tonight; entry; and post-entry. Post-entry--internal follow-up checks--do not concern me tonight. Entry--the checks at ports and airports--need not delay me. After all, as I explained, they are already paid for by the shipping companies and airlines and by the taxpayer. But then there is the pre-entry element. Put simply--it has been well explained already this evening--the carriers pay for a job to be done and are then penalised to the tune of £2,000 per passenger for not doing that job properly at the passenger's point of embarkation. That is a £2,000 a throw penalty.

British Airways staff, PRO staff or even the hired staff (hired, I might add, to take care of customers and not to act as the first line of British immigration control) do not show graduate level skills in the different types of basic travel document currently in general circulation. Let me name a few. There is the British passport--yes, one would expect them to cope with that. The status of a serviceman travelling on a military ID card is somewhat more complex. The seaman's book or certificate when being used in a TWOV, as the trade knows it (Transit without Visa), is okay; but if it is a matter of entering the UK to join a ship, visas may be required, depending upon the seaman's status. As for the Kinderausweis issued by the Germans and assorted kinds of refugee documents, let me casually let them pass.

But the check-in staff cannot be so casual. One slip and the carrier is prone to a £2,000 penalty. Having dealt with the passport and/or document, the check-in staff can find themselves faced with at least five different kinds of British visa. Go further and there may be nine or more endorsements entered on the passport on earlier occasions, some still valid and some very much less so.

So to where is the check-in person to turn? With skill, he or she can decide that real documents are in order. But fakes are another matter. After all, 55 years ago our POWs in Germany could produce relevant and convincing documents using only the facilities available in the camps in which they found themselves. How much easier is it to do so now using the technology that is available?

I have concentrated on carriers' liability and the insurmountable problems that such legislation poses to the carriers concerned, British and foreign. I appreciate that the Immigration Service has made progress in being available to train the carrier staff concerned. But despite that, the carriers incur considerable additional costs in staff training and in seeking to prevent offences. The ferry companies alone incur penalties now approaching £1 million a year, or they are misjudging 50,000 passengers' documents. They and their airline colleagues are then penalised for badly performing a job which I believe Immigration is already paid to do.

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I do not believe that any of us would expect an immigration officer to fly a 'plane or captain a ship. No more would I expect check-in staff to act as immigration officers. I am not aware of the former happening; the latter happens, I fear, all too often.

I welcome my noble friend's amendment. I conclude by saying that the benefit of the doubt, if extended to the passenger, should also be extended to the carrier. I am convinced that in almost every case the carrier's staff or agents have surely done their best.

12.30 a.m.

Lord Hacking:

I should like shortly to support my noble friend's amendment. I say "shortly" because it is a matter of regret--though I understand the circumstances of the relisting in the Marshalled List--that my noble friend the Minister is having to deal with this difficult matter at half-past midnight.

It has been drawn to the Committee's attention that the provisions of the Immigration (Carriers' Liability) Act place particularly onerous burdens on carriers. The noble Earl, Lord Russell, talked about taxation without representation. Figures have been given about the cost to British Airways. I have a figure that the cost in the amount of fines to all carriers is somewhere in the region of £5.5 million per annum. If that is not taxation without representation, what is?

It must be acknowledged that the United Kingdom is not alone in asking airline officials to act as immigration officers. Those Members of the Committee who have been to the United States of America know that, when the visa was a compulsory requirement for entering that country, airline officials at 'check in' had to look at one's passport to see whether one had a valid visa. Again, when we leave the United States of America, we do not pass immigration officials; we hand in our passport, and exit permit contained in it, to the airline carrier. This permit is removed from the passport by the airline and not by immigration officers. We are therefore not alone in this.

My objection to the provisions and my support for my noble friend rests in this position. It is unacceptable that airlines should be punished when the offences themselves are treated as technical offences. That is the point. It is an unfair burden and, as the noble Earl, Lord Russell, said: an injustice is an injustice to the big and the powerful as it is also an injustice to the weak and the helpless.

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