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Lord Williams of Mostyn: The answer to my noble friend's question can be found in Clause 25(1):

    (a) he arrives in the United Kingdom concealed in a vehicle, ship or aircraft".

That is the point at which he commits an offence.

Clause 25(5) states:

    "In the case of a clandestine entrant to whom subsection(1)(a) applies, each of the following is a responsible person".

If one reads through the scheme at Clause 25, it becomes straightforward.

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

Lord Berkeley: I am grateful to the Minister for that answer. Clause 25 states that,

    "A person is a clandestine entrant if he arrives in the United Kingdom".

If he travels on a lorry on the Shuttle he has gone through immigration in France, so he has not entered the United Kingdom. Presumably if the British immigration authorities in France picked him up, and no one else did so, he has not entered the United Kingdom and has not committed an offence. If the immigration authority has not picked him up it is probably not doing its job properly. I fear that the situation is still confusing.

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

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

Amendment, by leave, withdrawn.

[Amendment No. 46 not moved.]

Lord Berkeley moved Amendment No. 47:

Page 18, line 36, at end insert--
("(11) This section shall not come into effect until--
(a) the Secretary of State has procured the implementation of suitable systems for preventing and detecting clandestine immigrants; and
(b) the Secretary of State has demonstrated that the systems will not cause any additional cost or significant delay to the persons responsible.").

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

The noble Lord, Lord Cope, referred to this point. How does the driver who picks up the load know whether there is anyone inside? I have conducted some investigation. Among the methods used for getting into

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containers is cutting the roofs and sides of the lorries with a Stanley knife, then taping the sides to look as though they have not been broken. The Custom seals are broken but they can be replaced with forged seals. It is extremely difficult to tell whether someone is inside the lorry.

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

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

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

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

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

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

The code of practice is difficult because of subsections (4) and (5) of Clause 27 to which my Amendment No. 51 draws attention. That is the bit in the Bill that turns the code of practice into a legal requirement, rather than something that is desirable--such as the Highway Code and other similar codes of practice. Clause 27(4) does that by saying:

    "In determining, for the purposes of this section, whether a particular system is effective, regard is to be had to the code of practice".

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Under Clause 27(3)(b), the carrier must show that he has an effective system. However, if an immigrant succeeded in getting through immigration control, the system was patently not effective. Therefore, it is no defence for the driver, operator, hirer or anyone else involved to say, "Well, we have a system", because it was patently not effective. We all know that no system is perfect and that no system of control by immigration officers will work 100 per cent. Yet, as I see it, the lorry driver has an obligation to comply with every detail of the code of practice--and, what is more, to succeed--if he is not to fall foul of this clause and end up paying the penalty.

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

Earl Russell: The key point that the noble Lord, Lord Berkeley, made was that the driver often simply does not know--and has no opportunity to know--whether someone is in his cab and he does not always have access to the rear part of the transporter. In that context, I have looked with some apprehension at Clause 25(7), which states:

    "it is immaterial whether a responsible person knew or suspected ... that the clandestine entrant was concealed in the transporter".

That is the doctrine of the absolute offence: it does not require any mens rea at all on the part of the accused. That is quite rare in English law, and United States courts in some cases--one for which my New York lawyer boasted at great length about being responsible--have refused to recognise British convictions reached under the absolute offence. I do not think that that will do our legal reputation very much good.

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

12.30 a.m.

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

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

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

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

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

I take the point made by the noble Lord, Lord Cope, that we need to consult as widely as possible on the code of practice. We want to minimise any additional burden on transport operators. Many have appropriate and effective systems. The code of practice is dealt with in Clause 26 and I reiterate that we do not want

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unnecessary unreasonable burdens in terms of either efficiency or cost. One needs to look at all these subsections together and not any one separately.

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