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

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

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

Amendment, by leave, withdrawn.

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Clause 22 agreed to.

Clause 23 [Facilitation of entry]:

Lord Williams of Mostyn moved Amendment No. 43:

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

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

On Question, amendment agreed to.

Clause 23, as amended, agreed to.

Clause 24 agreed to.

Clause 25 [Penalty for carrying clandestine entrants]:

Lord Cope of Berkeley moved Amendment No. 44:

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

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

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

Lord Williams of Mostyn: It may be helpful if I briefly define our thinking behind this penalty and our resistance to the amendment.

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

The difference identified by the noble Lord, Lord Cope, is a difference because the circumstances are different. A great deal of control is available over fare-paying passengers entering aircraft and ferries. The civil penalty that we are looking at is aimed deliberately at dealing with a much less secure situation. Whether or not the clandestine is ultimately successful does not bear

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on the true point here; namely, has the driver actually carried out his duties to check? If he has failed, the penalty has to remain.

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

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

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

Amendment, by leave, withdrawn.

Lord Berkeley moved Amendment No. 45:

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

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

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

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12.15 a.m.

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

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

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

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

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

12 Jul 1999 : Column 154

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