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Earl Attlee moved Amendment No. 223:

The noble Earl said: In moving Amendment No. 223, which stands in my name and those of my noble friend Lord Freeman and the noble Lord, Lord Berkeley, I shall speak also to Amendments Nos. 224 and 225.

Before speaking to the amendment, I declare an interest as president of the Heavy Transport Association. I shall explain a little of the background to the Committee, as the next five groups concern Schedule 8 which amends the carriers' liability provisions of the 1999 Act. The carriers' liability order provides for a 2,000 fixed civil penalty per clandestine entrant detected on a transporter, which covers both trucks and trains. The order causes great concern to all trade associations involved in transport.

I understand the difficulty for the Government, which is that an asylum seeker has achieved his objective if his feet touch UK soil. The Committee will understand the

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background to the problem but it is not relevant to our discussions on the amendments today. However, the problem means that the noble Lord, Lord Berkeley, and his colleagues cannot run their train services, so goods have to be moved a long distance by road when they could be moved economically by rail. That is environmentally unsound and is destroying the cross-Channel rail industry.

In addition, cargo being moved by road or rail is being damaged and ruined by clandestines hiding in vehicles or containers. The clandestines are cunning and ingenious and organised crime is heavily involved. Because of the sophisticated technique employed, it is extremely difficult to avoid inadvertently carrying clandestines across the Channel.

The Committee should consider carefully the extent to which it is safe to bash the transport industry in general and truck drivers and their operators in particular. An unintended consequence of these civil penalties might be that decent, law-abiding operators leave the transport industry in favour of cowboys and much worse.

Another possible consequence is that the current shortage of HGV drivers may be exacerbated by good drivers declining to undertake Continental work because of the civil penalty regime and other difficulties and risks. When moving later amendments, I will talk more about difficulties with the ECHR, but in the Roth case the court criticised the existing system of calculating penalties as being disproportionately severe because a high-fixed penalty was applied cumulatively.

Schedule 8 amends Section 32 of the 1999 Act and introduces a new Section 32A. It provides for the penalty to be varied according to the degree of blame, but still leaves the resulting figure to be multiplied by the number of illegal immigrants detected. This is illogical and contrary to natural justice. The imposition of a civil penalty occurs where it has been determined that there are no grounds for introducing a criminal prosecution. It is therefore confined to instances of unwitting carriage through alleged negligence.

In those circumstances, the number of illegal immigrants who have managed to gain access to the vehicle is a matter of pure chance and can have no bearing on the degree of diligence exercised by the responsible person. It therefore follows that such an arbitrary figure can have no role in determining the amount of penalty. I beg to move.

Lord Freeman: I rise to support my noble friend in Amendments Nos. 223 to 225. I declare an interest as the immediate former president of the British International Freight Association. The freight industry, covering the movement of rail freight across the Channel and road freight, is extremely upset at the provisions in the Bill, which relate the penalty for bringing illegal immigrants into this country to the number of immigrants rather than the offence.

The offence is failure by the driver to examine either the freight wagon or the truck at the appropriate times to ensure that there are no illegal stowaways. That is the present system.

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To introduce in the Bill a penalty which says in effect, "It does not matter whether you have one, five or even 10 illegal immigrants, we shall calculate the penalty not on a single offence of negligence, but as a multiple of the number of immigrants", is, as my noble friend pointed out, an offence against natural justice. I should tell the Minister that what happens in practice is this. In virtually all the cases in the industry of which I am aware, where there is stowing away of illegal immigrants, it tends to take place as one event. A number will enter either a truck or a wagon. It is not a serial event. Of course that should be detected, if humanly possible, by the driver or by the person in charge of the freight.

I am sorry to say that there has been a lack of consultation with the transport industry on the part of the Government on these proposed changes to the 1999 legislation. The relevant amendments were introduced very late in the day and there has not been the normal opportunity for consultation. Given that, I would ask the Minister whether, between the Committee and Report stages, the Government are prepared to meet certain noble Lords including myself, my noble friend Lord Attlee, the noble Lord, Lord Berkeley, and others, together with representatives of bodies such as the British International Freight Association, the Freight Transport Association, the Road Haulage Association and the Heavy Transport Association to hold a discussion before we return to this very important subject after the Summer Recess.

Baroness Anelay of St Johns: My noble friends have been commendably succinct. I hope to assist them by being fairly brief as well. However, it may be appropriate to put on the record the Front Bench views on these matters across the whole series of amendments rather than speaking only to the group before the Committee. I shall not then have to repeat my words when we reach the subsequent groups.

I pay tribute to the expertise and hard work of my noble friends Lord Attlee and Lord Freeman in addressing these matters. I understand their concern that there may be unintended consequences as a result of the new civil penalty regime. I have heard many concerns expressed both tonight and on other occasions about the fact that the penalty is to be related to the number of clandestines who enter this country rather than to the offence itself.

My noble friends are also aware that we have always strongly supported government efforts both under this Government and during our own time in government to impose penalties that should prevent clandestines from entering this country. We recognise too the vital part played by the haulage companies in trying to achieve exactly the same aim; that is, to keep out clandestines. It is important that a fair and equitable operation of the penalties should be extended in the Bill and therefore it is necessary to debate the matter tonight because, as was pointed out by my noble friend, the opportunity to do so was not afforded in another place.

The Government face a difficult task in trying to ensure that clandestines do not enter this country and it is an effort that we wholeheartedly support. However, it

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must be balanced against the fact that they must not undermine the haulage industry, on which much of our economy depends. My noble friend Lord Freeman referred in particular to difficulties with regard to consultation. We have heard in connection with other parts of the Bill that perhaps the Home Office has not been exemplary in its consultation with the Local Government Association and that it hopes to put that right.

I hope to hear that the Minister will accede to the request of my noble friend Lord Freeman. Proper consultation should take place over the summer between officials, noble Lords with an interest in the matter and representatives of the industry. Perhaps we shall be able to resolve the difficulties before we reach the Report stage.

Lord Berkeley: I support these amendments and I congratulate the noble Earl, Lord Attlee, and the noble Lord, Lord Freeman, on the way in which they have introduced them. I declare an interest as chairman of the Rail Fight Group.

Potentially the amendments will affect not only rail freight but road freight and, in certain circumstances, other means of crossing. I agree with the noble Lord, Lord Freeman, in regard to the lack of consultation. I believe that we heard about this issue in late or mid-June. My noble friend the Minister has tabled a raft of new amendments for today's proceedings. The amendments may be good, they may be bad, but we certainly need more time for consultation before we get to Report stage.

On Second Reading, I generally welcomed these proposals as being, in the round, an improvement on the 1999 Act, although there are still problems. I welcomed particularly the fact that EWS Railway was effectively exempt because it did not have a joint venture agreement with French railways and therefore could not be held responsible for what happened on the French side.

In just over six months time something called "open access" is due to come into operation on the railways, when, in theory, any freight operator on the continent or here can run into any other country. We await with great interest to see whether it happens in France on 15th March, but it will happen elsewhere. The Commission see it as the way forward for freight and we do not want to encourage further restrictions on this traffic because undoubtedly the open access operator for rail freight would then be caught, hook, line and sinker, by Schedule 8. One would then have to question whether this complied with the Treaty of Rome and the open access policy. The European Commission is at the moment considering whether to take the French Government to court in respect of the illegal immigrants at Sangatte.

Looking at the amendments, I begin to wonder whether Section 32 of the 1999 Act is becoming a bit of a dog's breakfast. A "clandestine entrant" is defined as a person who comes in concealed in a vehicle, ship or aircraft—the Bill suggests that freight wagons should be added to the list—but why is a person not a clandestine

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entrant if he comes in on a passenger train? I do not believe that it has anything to do with the process for dealing with clandestines as they come in. Does entry by aircraft or train make any difference as to whether or not they are considered clandestine entrants? They are either clandestines or not, regardless of how they come in.

That brings me to the substance of these amendments. I do not understand why the Bill introduces a clandestine's friend—that is, a "concealed person". I can find no definition for a "concealed person", although there is a complex and rather inconsistent definition of what I call an asylum seeker, clandestine entrant or whatever. Can my noble friend help me with the definition of a "concealed person"? Does an asylum seeker have to be concealed? If he does have to be concealed, why do we have another category of person called a "concealed person"? And, secondly, why are passenger trains excluded from the definition of how a clandestine entrant might come in?

11.00 p.m.

Lord Filkin: I shall speak briefly to Clause 108 in general and respond to Amendment No. 223.

In this context we know about the numbers of clandestines that were coming in by freight vehicles and about the significant reduction in numbers which took place as a result of the civil penalty. Understandably the haulage industry did not like it but, from the Government's perspective, it achieved the intended objective despite the pain.

The Roth judgment, which, if I recollect correctly, took place in February, has put some pressure on time in this respect—which is one of the reasons why there have been some difficulties in consultation. These clauses are intended to address that.

To address some of the points raised, the level of penalty imposed will be determined by the Secretary of State, who will consider matters as specified in a new statutory code of practice, which is already on deposit and is available for consultation. The code will specify mitigating or aggravating factors, such as the responsible person's previous record of liability to penalties and, in certain circumstances, that person's level of co-operation in bringing clandestine entrants to the notice of authorities. A copy of the draft code has been placed in the Library and copies have been sent to haulage industry representatives inviting their comments.

Rather than all responsible persons being held jointly and severally liable, as under the existing regime, each individual responsible person will now be liable for his own penalty, which is clearly one of the areas of condition. Where a penalty is imposed on a driver who is an employee of the vehicle's owner or hirer, the employer will be jointly liable with the driver for payment of that penalty. Employers are clearly in a strong position to promote effective security measures; it is a well-established principle that an employer should take responsibility for the actions of the employee.

Where a penalty is imposed on more than one person, or on the same person in more than one capacity, there will also be a prescribed maximum, a total amount of

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penalties that may be imposed in respect of each clandestine entrant. The combined maximum amount that can be imposed will be prescribed in regulations.

In addition, however, we are taking the opportunity to introduce a statutory right of appeal by which a person may contest in the court both liability to a penalty and its level. The appeal will be a re-hearing of the Secretary of State's decision to impose a penalty and may take account of matters of which he was unaware at the time the decision was made. The penalty regime, as amended, will also apply to rail freight and freight shuttle operators.

The argument that the number of clandestines who are able to enter a vehicle should be ignored is, we feel, inappropriate. Were it to be the case that carrying a single clandestine would give rise to the same penalty as the carriage of 30, we believe that the new provision will significantly reduce the motivation to take all possible or reasonable steps. It is more difficult for groups of clandestines to enter a vehicle than it is for individuals. Once access has been gained by a significant number, the presence of a group is easier to detect. There would be significantly less incentive for drivers and others properly to secure and check their vehicles in these circumstances.

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