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Earl Russell: One of the pleasures of having the Minister on duty is that one need not be afraid to ask him

19 Jul 1999 : Column 667

technical legal questions. I want to probe the extent of the vires conferred by Amendment No. 66, which states:

    "'rail freight wagon' has such meaning as may be prescribed".

Having listened to the noble Lord, Lord Cadman, I understand some of the difficulties that that amendment may be intended to address, but is there any legal limit to the vires conferred by the amendment? Is there any outer limit to what the Minister could, if he chose, describe as a "rail freight wagon"? Is this a case of the famous porter's maxim, "Dogs is dogs, cats is cats, but a tortoise is a hinsect"? Suppose, for example, the Minister were to prescribe a bicycle as a "rail freight wagon". Would that technically be ultra vires under the wording of Amendment No. 66? Before conferring such powers, we should understand what they mean.

I, too, listened with great care and considerable sympathy to the noble Lord, Lord Berkeley. We are a trading nation and we live by our trade, but we threaten our livelihood if we impose undue obstacles and costs on trade. We know what the French, with dubious legality, have attempted to do with imports from Japan, which for many years were impounded at Poitiers while all sorts of legal checks were conducted on their labelling and specification. We risk imposing such a burden on our own commerce. Apart from the fact that that might be shooting ourselves in the foot, which I hope is not an irrelevant consideration, we are committed to membership of a single European market, within which there is supposed to be free and unimpeded movement of goods. Has the Home Office consulted the European commissioner responsible for the single market before introducing this measure? If not, why not?

Finally, I should like to elaborate on the point made by my noble friend Lady Williams of Crosby about whether this measure might impede the entry of genuine refugees. The obvious intent of carriers' liability legislation is to deter the carrier from carrying any immigrant, whether refugee or not. It is not within a carrier's competence to determine whether a person has a genuine, well founded fear of persecution, within the definition of the UN convention. The penalty applies in any case. Can the Minister explain how it is that this new clause would not lead to the turning back of people with a well founded fear of persecution and therefore to a breach of our obligations under the 1951 UN convention? The Committee has a right to ask to be satisfied on that point.

3.30 p.m.

Lord Avebury: Let us suppose that a person arrives in a railway wagon. As soon as the wagon reaches the point where an entry certificate officer is available, the person comes out of the wagon and presents himself for examination. Then, as I read the clause, that person is still liable to be prosecuted. That is notwithstanding the fact that he was not a "clandestine entrant" within the meaning of the English language. But he is a "clandestine entrant" within the meaning of this clause. However, anyone using English in its normal sense would say that if that person has arrived in a railway wagon but nevertheless comes out of it at the first opportunity at which he can be examined by an immigration officer, he is not attempting to gain entry without passing through an examination point. He has indeed come forward at a point at which he can be

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interviewed. He has simply used the railway wagon as a means of transport to the United Kingdom and not as a means of preventing his examination at the point of entry.

Why is the term "clandestine entrant" defined separately in this clause rather than by reference to Clause 25 where the remainder of the definition of "clandestine entrant" is contained? Is it not confusing to have two separate definitions of "clandestine entrant" instead of incorporating the words of this definition in Clause 25 where they belong? Also, what is the definition of "relevant rail freight wagon" to correspond with "relevant ship, aircraft or vehicle" in new Section 25A(2)? The subsection states:

    "relevant ship, aircraft or vehicle, in relation to an arrested person ... one which the officer or constable concerned has reasonable grounds for believing could, on conviction of the arrested person for the offence for which he was arrested, be the subject of an order for forfeiture made under section 25(6)"--

that is to say, of the Immigration Act 1971. I presume that the term "relevant rail freight wagon" has a similar meaning but I cannot find a definition. I may have missed something. Perhaps the Minister can point it out.

Therefore, is it intended that those freight wagons will be forfeited under Section 25(6) of the Immigration Act 1971, notwithstanding the fact that the operators of the freight wagon have no knowledge whatever that the illegal entrant--if he is such a person--has entered the railway freight wagon clandestinely with a view to gaining admission to the United Kingdom? Is it an absolute offence which causes the wagon to be impounded by the very fact that a person has attempted to gain entry and not through any omission or fault by the operators of the railway freight wagon?

Viscount Brentford: I warmly support the principle of Amendment No. 56. However, I should like some clarification on what the individual asylum seeker should do. If he is travelling in a railway freight wagon, one might argue that that is illegal anyway and therefore he should not be there. However, in practice it is much more difficult for a person who is trying to escape from a country in that way to apply for permission to come to the UK because he is probably sealed in a railway freight wagon. That appears to cause extra difficulty for the individual. Let us assume that the asylum seeker cannot obtain exit papers or make contact with a UK embassy in the country where he is liable to persecution, torture or death. How is he to resolve the matter if he receives an offer to enter a railway freight wagon, whatever that may mean or however it may be defined?

I believe that we touched on the point in a different sphere earlier in our discussions. However, would any penalty be refunded to the person responsible for the wagon if subsequently the individual or individuals were accepted in this country as asylum seekers?

I now seek clarification on another point on which I am ignorant. I assume rail freight wagons enter the country through the Tunnel. I assume that they do not fly in, but I wonder whether they come in also by ship. It would be interesting to know whether there is only one way in which they come here nowadays. With regard to the power to sell a freight wagon, is it not always clear who is the owner? I wonder why that is necessary. Presumably

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there is no problem in ascertaining who is the owner of a freight wagon. I should have thought that agreement could be reached with that person without necessarily having to sell the wagon.

Lord Hylton: I am a little surprised by the drafting of the Government's new clause in that it refers to "rail freight wagons" and makes no mention of "rail passenger wagons." Perhaps the Minister considers that passengers are already covered even if they are entering clandestinely or stowing away.

I turn now to the substance of the regulations when they come into force, from the point of view of the operator. First, he faces additional penalties; secondly, he is liable to have his wagon detained; and, thirdly, in extreme cases--I recognise that the noble Lord said the power would be used only rarely--he is still liable to have the wagon sold. It seems to me that the value of a rail freight wagon is likely to be greatly in excess of the penalty for, perhaps unknowingly, bringing in one single person. Therefore, on those grounds, I am inclined to support the noble Lord, Lord Berkeley.

The Lord Bishop of Hereford: I express my support for the noble Lord, Lord Berkeley, on two grounds. The first, raised by a number of Members of the Committee, concerns the character of seeking asylum through stowing away on a freight train. That might be the only way in which a genuine asylum seeker or genuine refugee can get out of his own country and into this country. Indubitably the Government need to take seriously that possibility.

I return to the points originally raised by the noble Lord, Lord Berkeley. All Members of the Committee are anxious to see a significant increase in the transfer of freight traffic to rail. The Government's amendment, as tabled, is a serious disincentive to that traffic. I echo the point made by the noble Lord, Lord Hylton, that paragraphs (c) and (d) of subsection (2) of Amendment No. 56 seem completely inappropriate and unnecessary. If Clause 56 really relates to the detection of clandestine entrants, why is it then necessary to detain or sell the freight wagon? That simply sabotages the freight operation which we wish to see flourish.

I am not entirely happy about Amendment No. 59, which seems to me too widely drawn. However, I certainly agree with all that has been said about Amendment No. 61 and I hope that the Minister will give the Committee assurances about a code of practice.

Lord Brightman: Perhaps I may say a brief word about Amendment No. 66, which states:

    "'rail freight wagon' has such meaning as may be prescribed".

That seems rather wide. I do not recall seeing such a definition clause before. I wonder whether the Minister will consider a slight alteration to the wording, such as, "rail freight wagon means such rail vehicle as may be prescribed", in the same way as one might say, "such road vehicle as may be prescribed". That would avoid the very wide wording of the present definition.

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