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Lord Berkeley: Can my noble friend help on this matter? He will recall a horrible situation that occurred about a year ago, when some 60 people were found dead in a container coming into this country. Is the carrier liable for payment in respect of people who are dead when they arrive?

Lord Filkin: Perhaps I am unduly sensitive, but I find that a rather macabre request. I should have thought that the answer was no. I shall check on the matter and write to the noble Lord.

It is also appropriate to take into account the outcome of a person's negligence which, in the case of clandestine entrants, has implications for the taxpayer.

A couple of points may be of some small comfort. Where a penalty has been imposed on a driver, we would normally seek payment from him in the first instance. If payment is not made by the driver, however, we shall seek to recover the penalty from his employer. If the employer has also received a penalty in his own right, it may be appropriate in some circumstances to take this into account when seeking to enforce payment.

The noble Lord, Lord Freeman, drew the Committee's attention to issues about consultation to which I have referred, which are due in part to the limited time since the Roth judgment, in part to the complexity. While industry representatives and other interested parties have been informed about the proposed changes to the legislation, along with being sent copies of the draft code of practice, the time intervals are less than we normally expect and seek to achieve. Nevertheless, Beverley Hughes has agreed to meet the Freight Transport Association and either she or I will be happy to meet relevant interested noble Lords or relevant industry representatives at that meeting or a separate one, if appropriate.

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On a question raised by the noble Earl, Lord Attlee, and the noble Lord, Lord Freeman, the existing Part II of the 1999 Act fixes a penalty of 2,000 per clandestine entrant. The provisions of the Bill are no different in that respect. That is not the point on which the Government lost in the Roth case. The Government lost on the fixed and relatively severe nature of the penalty.

In response to the noble Lord, Lord Berkeley, there is not a problem of clandestine entrants on passenger trains or aircraft because detection is much simpler. The owners of ships and aircraft are liable for passengers without required documents under carrier's liability, as I am sure the noble Lord, Lord Berkeley, knows. We shall come to that point later this evening.

The noble Lord also asked whether the provisions were compatible with the free movement of goods requirement. The Roth judgment found civil penalty provisions to be fully compatible with EU law, including the free movement of goods. Nothing in the amendment would change that position.

I was also asked who a "concealed person" is. A concealed person is a person who is concealed—would you believe it?—with a clandestine entrant but who does not fall within the definition of a clandestine entrant as set out in Section 32(1) of the 1999 Act. I shall require time to understand that, so no doubt we shall return to the subject if it is not as clear as it should be.

Finally, I was asked why we do not apply the civil penalty to passenger trains. Historically, there has never been a significant problem, as I mentioned previously.

That concludes all I wish to say, apart from to repeat that the noble Lord, Lord Freeman, and others can look forward to a fuller discussion with Beverley Hughes or me. I hope that at this time of night it will not be necessary to press the amendments.

Lord Berkeley: I thank my noble friend very much for his answers. I accept that there is much less of a problem with aircraft and passenger trains. We have discussed the subject many times. I come back to Section 32 of the 1999 Act, which includes aircraft but not passenger trains. I wonder why, in all their amendments, the Government have not taken the opportunity to remove aircraft if they are not a problem.

Lord Filkin: That is further food for thought for the holidays. I shall add it to the pile that is mounting rapidly.

Earl Russell: I had intended to speak later on Amendments Nos. 228 or 228A, but by discussing the whole of Schedule 8 in his reply, the Minister has invited me to make my remarks now rather than leaving it until later.

There are a good many more problems about carrier's liability than anyone has yet indicated. In the first place, this is a privatisation of an administrative liability. I have always had my doubts about those. They tend to create a conflict of interest. It is clearly in the interests of the carrier to turn away as many people as possible. That applies particularly to the airlines. They are not expert in immigration control. They are not trained in the

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recognition of documents in the way that the Home Office and its employees might be. They have a natural interest in saving themselves from fines. They are becoming judge and party in their own courts.

Those problems of conflict of interest in privatisations go back centuries. Nobody has found the answer and the Government have not done so here.

My second cause for concern is that it is always unjust to punish people for things that are not under their control. I shall not soon forget the comments of the noble Lord, Lord Berkeley, when we discussed the 1999 Bill. He described the way in which freight trains across Europe are put together and how it is possible for clandestine entrants to make their way into wagons long before the person who is liable to pay the fine has had any access to them.

I do think there should be some concept of mens rea before one applies any notion of crime. One should fine people for what they do, not for what others have done or for what they, with all reasonable care, cannot prevent. That is why I had been thinking of making my remarks largely on the subject of Amendment No. 228 which deals very specifically with this problem. I hope that the noble Earl, Lord Attlee, will, in spite of having had a full reply on the schedule, take up that amendment in due course. It is a good one and I wholeheartedly support it.

The reason I am deeply concerned about carriers' liability is that it is another case where we suffer very deeply from the confusion between immigration law and asylum law, and of course it bites on both equally. The carrier is not trained in distinguishing between an immigrant and an asylum seeker. He is not trained in distinguishing between an economic migrant and a victim of persecution. If one's job is running heavy goods vehicles, one cannot reasonably be expected to be expert on things like that.

Immigration differs deeply from asylum. In respect of immigration, you can be expected to have a proper and orderly set of papers. You can be expected to prove who you are, where you come from and what route you have travelled by. If you cannot do these things you are an illegal immigrant and you may suffer for it. It is in the very nature of being an asylum seeker that you come from somewhere where you probably have no access to such papers and would risk your life if you attempted to get them. So it is in the nature of being an asylum seeker that you cannot legitimately be expected to have the proper documentation and cannot be punished for it.

How are legitimate asylum seekers to make entry to the country? I know somebody who has come in illegitimately in a lorry; three days and nights freezing with a daughter probably suffering from pneumonia. It is not a particularly pleasant experience. However, it is in the nature of the market that where there is a sufficiently intense demand for something, the market will, legally or illegally, supply it. So if there is to be no legal route whereby genuine asylum seekers can make entry to the country and make their claim, then it is to be expected that they will use an illegal route, some people undoubtedly indulging in that deliberately and consciously as a matter of profit.

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It may be perfectly proper to punish those people if a legal substitute is supplied. Equally, however, as we have seen regularly with trains and with many heavy goods vehicles—as we have even seen with people clinging to the undercarriages of aircraft coming into Heathrow, clinging on to any nook or cranny they can get hold of, and occasionally falling from several thousand feet in the sky over Richmond—people will take that risk because there is no legal means by which they can get in.

I have heard the whole system described as a "ring of steel" to keep asylum seekers away from this country. If that is what the Government in their wisdom wish to do, they may do it. However, I do not think that they are entitled to punish innocent goods operators and innocent train operators because they unwittingly and unwillingly provide a vehicle—I use the word in both senses—by which this is done. So people here are being held responsible for what is the Government's fault. If the Government wish to put it right, they should take action themselves and allow people a legal route by which they may come to this country and claim asylum. It is simply no good saying that it is safe to claim asylum outside this country; it is not, and that is of the very nature of asylum.

If we could have genuine hearings at the ports with lawyers in attendance for both sides, then we might have a channel through which people could go and claim asylum legally and the weight would be taken off the carrier—to the great benefit of our national commerce, to the great benefit of the single market within Europe, and to enable people to make a legitimate profit through a legitimate business, as I think they should be free to do. Once again, immigration and asylum are two separate subjects. The carriers have a greater interest in establishing this than anyone else except the asylum seekers themselves.

11.15 p.m.

Lord Freeman: Before my noble friend concludes his remarks on the amendment, I thank the Minister for a fair response. The trade associations, my noble friend and the noble Lord, Lord Berkeley, will welcome his comments. The Minister responded to a number of amendments. They are all interrelated as they concern the unjust burden imposed upon the freight industry. The Minister's offer of a meeting with either himself or Beverley Hughes during the recess is much welcomed. I thank the Minister.


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