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Lord Berkeley: I am grateful to my noble friend for his reply. On Second Reading, I asked whether he would place in the Library a copy of the draft code of practice. I understand that a draft is circulating the industry. It would be helpful if Members of the Committee could have a copy so that we can see whether our fears are unfounded and whether there is no problem where there are sturdy locks and metal-sided containers, and if people do not have Stanley knives. I remain concerned until I have seen the code, so perhaps the Minister can respond now.

Lord Cope of Berkeley: The Minister kindly sent me a copy of the code of practice and I shall be happy to give a copy to the noble Lord, Lord Berkeley. I believe that it has been placed in the Library.

Lord Williams of Mostyn: I am grateful, as always. There was an awful moment when I wondered whether I had signed the letter; Alzheimer's is a terrible disease; perhaps I had forgotten! I am grateful to the noble Lord for being so courteous as to remind me.

Lord Berkeley: On that basis, I am grateful to the noble Lord, Lord Cope, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 agreed to.

Clause 26 [Code of Practice]:

[Amendments Nos. 48 to 50 not moved.]

Clause 26 agreed to.

Clause 27 [Defences to claim that penalty is due under section 25]:

[Amendment No. 51 not moved.]

Clause 27 agreed to.

Clause 28 [Procedure]:

Lord Cope of Berkeley moved Amendment No. 52:

Page 19, line 40, leave out subsections (4) and (5).

The noble Lord said: It seems to me that subsections (4) and (5) are particularly obnoxious. They provide that:

and that he must nevertheless take reasonable steps to do so. That is all very well, but the responsible persons listed in the earlier clause include, in the case of a lorry, the driver, the operator, the owner and the hirer of each part of it, as it were. There may be a difference between the tractor unit of an articulated lorry and the trailer unit which may be carrying a container. Each may have different owners, be subject to different hire agreements and have different operators.

A large number of people in different countries may be involved, yet if an immigration officer serves a piece of paper on the driver, who will normally be the man in

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the hot seat when the immigrants are discovered, that is assumed to be served not merely on his employer, but also on all kinds of people who have never heard of the driver and are nothing to do with the immediate circumstances in which the apparent offence has been committed. However, they are expected to know about it. What is more, their property is liable to be detained and subsequently confiscated. They are assumed to have had the notice simply because it has been served on the driver--the least of all these persons and the one least able in some respects to communicate with all the others. It would be better if it was served on the owner and it was then assumed that he would pass it down the line to the people below him in the various chains, but the Bill proposes that it be given to the bottom person in the chain. He is expected to get it through to all sorts of people with whom he has no contractual relationship and who, almost by definition, are in more than one country. The two subsections should not be included in the Bill. I beg to move.

Lord Falconer of Thoroton: The structure of the Bill provides that more than one person may be responsible for a clandestine entrant. For example, the owner, hirer and driver of a vehicle may all be responsible persons. That is because responsibility for security may be spread between a number of parties in the chain of transport. The aim of the civil penalty is to encourage all of them to take proper responsibility.

The practical circumstances in which a penalty notice will be issued mean that it may be possible to serve the notice on only one of the responsible persons. For example, a notice may be served on a lorry driver when a vehicle is apprehended with clandestine illegal immigrants aboard. We shall try to ensure that all the responsible persons receive a penalty notice. Clause 28(5) requires the Secretary of State to take reasonable steps to ensure that. However, the operating circumstances of the transport industries are such that that may not be possible in every case.

The civil penalty covers a range of industries in which there is often a diffuse chain of responsibility. We have tried to strike a reasonable balance in Clause 28 to ensure that the Secretary of State is under a duty to make every effort to notify all the responsible persons, while recognising that in some cases that will be very difficult, if not impossible.

We must provide for the real possibility that unscrupulous operators will try to conceal their identity or involvement to avoid responsibility for a civil penalty. If we were to impose an absolute requirement on the Secretary of State to notify all the responsible persons in every case, that requirement could become a means by which unscrupulous operators defeated the operation of the civil penalty. We believe that subsections (4) and (5) strike a sensible and reasonable balance between the conflicting requirements and concerns. I urge the noble Lord to consider what I have said and to withdraw the amendment.

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Lord Berkeley: The explanation of my noble and learned friend the Minister makes me think that there will be a witch hunt throughout Europe of people who hire out containers and trailers. Anyone who wants to take a container or a trailer to this country will need to pay a premium as insurance against being hunted down by the thought police in case they were seen to be liable. There are thousands of people who hire trailers and containers, some of them of repute and some of them not of repute. Some of them come from eastern Europe and Russia. The provision is very wide, but it would be easier to make it narrower. It would be easier if proper facilities were provided at the continental ports to inspect the lorries as they went through. That would make the provisions unnecessary.

Lord Cope of Berkeley: The reply given by the noble and learned Lord to the amendment has increased my dissatisfaction with the provisions. The Minister said that it would be difficult, if not impossible, for the Secretary of State to find all the relevant people. And yet, in effect, he is imposing an obligation on the driver to find them all or, in some cases, the other way round. I entirely agree with his submission that there are diffuse responsibilities. I tried to hint at what some of those diffuse responsibilities may be. If it is difficult, if not impossible--I use the Minister's phrase--for the Secretary of State, it is equally difficult, if not impossible, for the driver also to find all those people. But if he does not, he will carry the can for them all. He may find himself in trouble with several of those groups for not informing them that the notice on him was served on them too.

That is extremely unsatisfactory. However, it seems that the Minister is not going to change his response. We shall reflect further on this matter but I hope the Minister will do so too between now and the next stage of the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 28 agreed to.

12.45 a.m.

Lord Henley: I thought we had agreed to stop at this stage. I thought that we were going to deal with Amendment No. 53 on another occasion.

Lord Falconer of Thoroton: I understand the position to be that we are going to deal with Amendment No. 53.

Lord Henley: That means that we are moving on to Clause 29 and I understood that we were not going to deal with that clause this evening and that that would be dealt with on another occasion. Perhaps I misunderstood what was said.

Lord McIntosh of Haringey: I understood that we were to deal with Amendment No. 53. There is no reason why we should not break in the middle of a clause.

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Clause 29 [Power to detain vehicles etc. in connection with penalties under section 25]:

Lord Cope of Berkeley moved Amendment No. 53:

Page 20, line 42, at end insert ("but the Secretary of State shall reimburse the carrier for any expense incurred by him as a result of the detention").

The noble Lord said: Clause 29 provides for the seizure of a vehicle. It may turn out that the seizure of a vehicle was unnecessary because the penalty notice was wrong, a mistake was made and so on. I understand why the provision is made lawfully to detain a vehicle, although it may turn out to be unlawful or unnecessary and not supported by the law. A penalty notice may be ill-founded. I understand why no provision is made to sue for unlawful seizure of the vehicle in such circumstances. But the owner or operator of the vehicle will have been put to great expense. The lorry provides the means by which the operator makes his money. If the vehicle is detained, particularly for any length of time, the operator is prevented from making money and his business is taken away from him.

There are some individual owner-drivers who own only one lorry. If that is detained, he is completely out of business for the relevant period. This amendment is modest and it does not provide that all the compensation which seems to be due should be paid. I have merely provided that at least the expenses which have been incurred should be reimbursed. Such expenses may of course be quite serious. He may have been put to the expense of penalty clauses, particularly if the effect of detaining the lorry is that the load has somehow deteriorated. Many loads deteriorate in many different ways if delayed in the course of transport. He can be put to considerable expense in that way, as well as to the expense of hotel bills and so on, during the period of detention while the situation is being sorted out.

We should bear in mind that while that is taking place, considerable penalties may have to be paid by various people in different countries, and complications concerning the different currencies involved, and so on, will have to be sorted out. The carrier could, therefore, be put to considerable expense which, given that the detention was based on an ill-founded penalty notice, should be refunded to the carrier concerned.

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