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Lord Bach: My Lords, I hope the noble Baroness will forgive me. I must remind the House that we are at Report stage, not Committee stage. It is proper for the noble Baroness to ask a short question of the Minister at this stage of the proceedings but not, I fear, to make a speech. I hope she will forgive me for saying so.

Lord Falconer of Thoroton: My Lords, perhaps I may deal with that important point. What is wrong, in

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the example given in combination by the noble Earl and the noble Baroness, of the genuine asylum seeker claiming asylum in France?

Baroness Williams of Crosby: My Lords, I am not allowed to reply.

Earl Russell: My Lords, I have been asked a question. Perhaps I may ask a question in return. What if the asylum seeker is an Algerian and is denied protection under France's interpretation of the convention, which differs from ours?

Lord Falconer of Thoroton: My Lords, if the asylum seeker would suffer persecution or inhuman treatment if returned, he would be protected--as was made clear earlier in the debate--by Article 3 of the European Convention on Human Rights, which provides a bigger protection than the relevant provision of the refugee convention.

Viscount Astor: My Lords, perhaps the Minister will answer one brief question before he sits down. As I understand it--I would be delighted to be corrected if I am wrong--there is a distinction in terms of refunds, under the Bill as it stands, between carriers who carry undocumented passengers and those who carry clandestine passengers. Am I correct in thinking that one carrier can get a refund and the other cannot under the terms of the Bill at the moment?

Lord Falconer of Thoroton: My Lords, there is a distinction between Clause 26 and Clause 34. At the moment we are dealing with Clause 26.

10.30 p.m.

Viscount Astor: My Lords, it is that distinction that is causing concern. It implies a lack of fairness between one carrier and the other. The noble Lord has said that there is a distinction. We shall have to consider the matter and perhaps return to it at Third Reading. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Berkeley moved Manuscript Amendment No. 34A:

Page 18, line 43, at insert--
(“(3A) Before laying a code before Parliament, the Secretary of State must consult, in the way he considers appropriate, persons appearing to him to be likely to be affected by the code.").

The noble Lord said: My Lords, first, I should declare an interest as chairman of the Rail Freight Group. The clause concerns carriers' liability. We must be careful to separate the concerns and problems of the road and rail freight industries, which have been gathered together in this grouping. I shall therefore speak to Amendments Nos. 34A, 34B and 36A in my name, and to Amendments Nos. 35, 36 and 37 in the names of the noble Lord, Lord Cope, and the noble Viscount, Lord Astor.

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I shall briefly cover the background. The inclusion of rail freight happened at a late stage in the Bill; the first time it was incorporated into the text of the measure was at Committee stage in your Lordships' House. My colleagues and I raised our concerns then, which resulted in my noble and learned friend Lord Williams of Mostyn agreeing to provide a draft code of practice followed by a report. We received the code of practice last Wednesday and I understand that it is now in the Library of your Lordships' House. We had a meeting with the Minister on Friday evening. For that reason, I apologise that the amendments were not tabled earlier.

Immigrants using rail freight are a serious problem and the industry must help to deal with them. They are causing an enormous amount of damage to cargo, which is often rejected. That can lead to consignors wishing to transfer to other means of transport or routes. There is also the matter of fire, such as that in the Channel tunnel. Eurotunnel has sent me a brief, pointing out that a couple of years ago it suffered a disastrous fire in a lorry shuttle. There was apparently a freight train trapped behind it. Of course, the emergency services took no steps to remove the freight train other than to help the driver because they assumed that there would be no one else on the train. However, if there had been clandestines on board, they would have perished. There is therefore a serious problem concerning fire and safety.

The industry wants to work with the Government to find solutions to the problems. The amendments attempt to probe the Government's intentions and to ensure that there is the fullest consultation in the development of regulations and the code.

I turn to Clause 27 and the code of practice. The rail freight industry wants a code and it is grateful to the Government for producing one. No doubt we shall hear from the noble Lord, Lord Cope, why other parts of the industry may not want it.

Lord Falconer of Thoroton: My Lords, the two amendments proposed by the noble Lord--Amendments Nos. 34A and 34B--relate to requiring consultation in respect of a code of practice. The Government have consulted representatives of the road haulage industry on the draft code. Further, we are committed to maintaining a dialogue with industry representatives. There is a similar provision in Clause 33 in relation to representatives of the rail freight industry. The Government are prepared to accept in principle the amendment of the noble Lord and will table a suitable provision at Third Reading. In doing so, we may seek to provide for consultation carried out prior to the coming into force of Clause 27 and prior to Royal Assent. I hope that that helps the noble Lord.

Lord Berkeley: My Lords, I am grateful to my noble and learned friend. That will save us some time. I shall study what he has said, but, on the face of it, it goes a long way to giving the rail freight industry what it wants from the code of practice.

However, because a number of amendments are grouped, I should like to speak briefly to Amendment No. 36A. That concerns Clause 28, and provides an

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additional possible line of defence for a carrier. This is where the contractual arrangements for the carriage of freight by road and rail are completely different. Whereas the arrangements for carriage by road are fairly clear--probably one lorry brings the load all the way from where it originated--on the railways there is an agreement with 21 railways--the COTIF agreement--which has taken around 50 years to come into being. That means that the railways along the line of the route of a freight shipment have no responsibility for the contents of the wagons. Their only obligation is for the safety of the rolling stock involved. The duty to ensure that the contents of the wagons conform with the consignment note rests with the consignor railway. Therefore, if the consignment comes from Italy, the duty rests with the Italian railways. We think that that includes the duty to ensure that there are no extraneous items or illegal immigrants in the consignment.

Furthermore, the railway operator which takes delivery of a train at the frontier cannot be held responsible for events taking place in the territory of the depot or the region of origin. Therefore, any fault in that respect lies with the railways having responsibility for security at the depot of origin. In Italy, the Italian railways would be responsible for sealing the consignment and so on. For the Channel Tunnel, SNCF is responsible for the trains until they arrive in Folkestone. Therefore, it is SNCF which brings the clandestines, if there are any, into the country.

I wish to know whether under this clause the Government would institute proceedings against SNCF, which would be the organisation bringing the clandestines into the country, or whether the proceedings would be instituted against the Italian railways. I hope that my noble and learned friend will be able to assure me that he will not try to lay blame on a British company such as EWS for something over which, as I hope I have demonstrated, it has no control. I beg to move.

Viscount Astor: My Lords, my amendments, Amendments Nos. 35 to 37, are grouped with Amendment No. 34A. I am grateful for the concession made by the noble and learned Lord about the code and consultation. However, without being too mean to the noble and learned Lord, I have to say that the consultation so far has not been a great success. The Government seem to feel that the problem is not their fault but the haulage industry's fault and that it is up to the industry to sort it out. We know that that is not the case. We know that the number of immigrants who lurk around the docks in Calais is huge and that they will try to enter Britain in any way they can. The haulage industry does not attract them. It does not want them. They are more trouble than they are worth.

The position is not the same as it was some years ago when immigrants would suddenly jump out of a truck and disappear into the wide blue yonder and were never seen again. I am told that recently a lorry stopped on the M.40 and a number of illegal

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immigrants jumped out. The police were called and advised the lorry driver to drop them at the nearest Immigration Advisory Service centre as they had all come out of the back of the lorry with a written message saying, “I claim asylum. Where do I go?" These are not people who want to disappear. As the result of erroneous information, they want to appear in the system. The wrong message has been sent to Kosovo, or wherever it happens to be. This is not the fault of the haulage industry.

There is a general view in the industry that the draft code of practice is not yet right. I should be interested to know from the Minister what consultations there have been within government, not merely with the industry. For example, what consultations have taken place under the Department of Transport, which is now absorbed into the huge new department?

The code must work. It must both provide protection for, and impose responsibility on, the industry. It must be reasonable and practical. The operator has to be able to follow it.

Another aspect of the Government's role is to press our neighbours on the Continent to take steps of their own. I am told that, at Zeebrugge, the lorry park is regularly patrolled using sniffer dogs and it is extremely difficult for illegal immigrants to gain access. Equally, I am told that at Cherbourg dogs are sent into the back of vehicles, with spectacular results--sadly, people pour out. But in Calais, which is always under pressure as a result of the sheer volume of trucks, cars and trains, there is no incentive for anyone to do anything. If one drives through, one sees people queuing up, looking for one means or another to get on board. The Government must involve the French authorities. It would be interesting to know what the Government are doing to encourage their help to prevent that.

There are a number of technical points that I do not intend to go into in great detail relating to how a lorry driver can always check his load. This is an issue that the industry must discuss directly with the Government. For example, the Government require lorries to be sealed. But seals can be broken and lorries can be resealed, even using a unique number. The driver has no knowledge of how it is done. Often, drivers are not present when the loads are sealed. A driver has to take it that it has been properly done; there may be a letter or document. The working of these matters is difficult. If the code is to work, the industry must be involved.

There seems to be a problem between various government departments. The most obvious example is the provision in paragraph 2.3 that the driver must check the outer shell and fabric of the vehicle for signs of damage or unauthorised entry, and must pay particular attention to the roof. That sounds entirely reasonable to most of us. We know that people enter via the roof. It is the weakest point. However, I am told that the Health and Safety Executive advises that haulage companies should not encourage their drivers to clamber over the roof because it is dangerous. So what can be done? There are two arms of government giving conflicting advice.

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In a spirit of support for this part of the Bill, my hope is that we can receive a commitment from the Minister that, between now and Third Reading, the Government will consult with the industry on the code and produce a code that the industry can accept as workable.

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