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Earl Attlee: I am grateful to all Members of the Committee who have spoken, particularly the noble Earl, Lord Russell. I agree with the remarks of the noble Lord, Lord Berkeley, with regard to the phrase "concealed persons". It certainly confused me when I was drafting the amendments. My noble friend Lord Freeman talked about a lack of consultation. However, my phone was red hot as a result of calls from trade associations in connection with this matter.

I have a question for the Minister. What advice would he give to a lorry driver who leaves the port of Dover and realises that he has several clandestines on board his

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vehicle? Should he stop and let them run away or should he contact the authorities? What advice would the Minister give to a lorry driver in that situation?

Lord Filkin: I shall deal with the final point first. I am not sure whether it is easy or difficult but as a Home Office Minister there is only one response I can possibly give; namely, that the driver should report the matter to the responsible authorities. He would no doubt thereby expose himself to the prospect of a penalty but could plead in mitigation his honesty and compliance with the law—but you would expect me to say that, wouldn't you?

I shall seek to respond to a number of the other points that were made. I refer to the concerns of the noble Earl, Lord Russell, about private bodies being expected to carry out administrative functions. In short, the Government believe that the responsibility for securing vehicles and trains to prevent the carriage of unauthorised persons must lie with the transport operator and not with the Immigration Service. We do not believe that it is unreasonable to expect carriers to take adequate steps physically to secure their transporters. They will be judged only against the test of whether they have taken all reasonable steps. The code of practice will seek to ensure that that is the case.

I was also asked about aircraft by the noble Lord, Lord Berkeley.

Earl Russell: I hope that I may ask the Minister for one more piece of advice in regard to someone who is a legitimate asylum seeker but an illegal immigrant. By what route should he attempt to enter this country?

Lord Filkin: I have not forgotten the question. I shall come to it in a moment. I refer to the question about aircraft asked by the noble Lord, Lord Berkeley. Part 2 of the relevant legislation has not been commenced for aircraft because there is not presently perceived to be a problem for aircraft. The measure does not remove the reference to aircraft as the Government wish to maintain flexibility in case it proves necessary to apply the civil penalty to aircraft in the future. We do not expect carriers to be experts in this matter. We expect them only to carry out simple as opposed to sophisticated checks.

The question asked by the noble Earl, Lord Russell, is significant and profound. It deserves more of an answer than I can sensibly give at this stage, but I shall make one or two points. It is not the object to keep out genuine refugees. The UK continues to respond to the problems encountered by genuine refugees. However, not all non-EEA nationals require visas to come to the UK. Although visa regimes may be widespread, they do not prevent genuine refugees from seeking international protection. Where an inadequately documented passenger makes a successful application for refugee status, any charge imposed on a carrier will be waived or refunded as appropriate. An asylum seeker always has the option of approaching a UNHCR representative. However, as I signalled, this is a massive subject which

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requires more time than one can give at this point. Given what I have said, I hope that the noble Earl will feel inclined to withdraw the amendment.

Earl Attlee: I am grateful for the Minister's response. He surprised me somewhat by covering most of my amendments in some detail. If I had been aware of that, I would have happily grouped them together and moved them en bloc. The hour is late and I do not propose to move my other amendments unless any Member of the Committee would like me to do so.

Lord Berkeley: There are a few matters in some of the other amendments that have not been covered but which deserve brief discussion, if the noble Earl agrees.

Earl Attlee: Will the noble Lord suggest which amendments he would like me to move, or shall I move them all?

Lord Berkeley: It would be best to move them all and to try to do so quickly.

Earl Attlee: Subject to the usual caveats, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 224 and 225 not moved.]

Earl Attlee moved Amendment No. 226:

    Page 96, leave out lines 16 to 18.

The noble Earl said: If the employer has diligently employed a suitable prevention scheme, I am not sure why he should be liable to the driver's penalty if the driver failed properly to implement the scheme when outside the control of the operator. The amendment deletes new subsection (4)(a) so that the employer would not be liable to the driver's penalty. I beg to move.

Lord Berkeley: I support the amendment. One can go a step further in this context. As the Minister said in relation to an earlier amendment, the Bill is designed to cover the owner of the vehicle. However, in many instances nowadays, the owner of the vehicle is a financing and leasing company. I have received several representations from such companies. This consideration applies mainly to the road network but it could in future apply to rail. The companies say that due to the ways in which the financial arrangement is structured, their members—the leasing companies—are the title owners of the commercial vehicles, which in theory could be impounded and they could be liable for the penalties.

The companies obviously do not have any day-to-day operational control over the vehicles; they may not even know that they are going out of this country. It is pretty inequitable to penalise them for something over which they have no control. It is worth pointing out—I believe that this supports what the noble Earl, Lord Attlee, said in relation to a previous amendment—that the business is worth about 3 billion a year. This approach is part of keeping the wheels of industry moving. If leasing companies say, "Right, none of your lorries is to go out

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of this country", that would add to the problems of drivers' hours, the shortage of drivers and so on and it would put up the cost of what comes into the country. Goods would probably come into this country in 25 year-old cowboy lorries. I hope that my noble friend will consider changes that could protect those lessors—if that is the right word—from that provision.

Earl Russell: There is only one problem with this approach. The noble Earl's argument for protecting the employer from the driver's penalty has much equitable force in it. However, there is a risk of a shortage of drivers who are prepared to undertake cross-Channel journeys. There is such a thing as international commerce and it is rather important to this country. If no one is prepared to take the risk of being a driver, how will that happen?

Lord Filkin: Briefly, the amendment would remove the provision that the vehicle's owner or hirer should be held jointly responsible for the payment of a civil penalty issued to the driver where they are the driver's employers.

It is a well-established principle of civil law that employers should take some responsibility for the action of their employees while retaining some level of personal liability themselves. It is perfectly reasonable to expect employers to train and monitor their employees, and to exert influence over them, to ensure that they take proper security measures that are required to avoid liability to a penalty.

The provision is also needed to enable the effective enforcement of the regime. It will prevent drivers whose personal resources will be more limited than those of haulage firms being disproportionately affected by the civil penalty regime.

With regard to the point raised about finance and leasing companies, the amendments moved by the Government tonight provide a significant concession for leasing companies by allowing them to apply to a court for the release of their vehicle. That perhaps relates to a slightly wider point.

That is all that I wish to say at this point, and I invite the noble Earl to withdraw his amendment.

Earl Attlee: The noble Lord, Lord Berkeley, made the extremely important point about the situation in the finance and leasing industry. Its trade association has certainly been telephoning me incessantly. There is a real danger that its members will not allow their spot-hire vehicles to leave the UK. That would be a disadvantage to UK industry.

The Minister touched upon a later government amendment. However, that is not the complete answer, and at a later stage I shall table an amendment to deal with that point. But, in the meantime, I beg leave to withdraw the amendment, subject to the usual caveats.

Amendment, by leave, withdrawn.

Earl Attlee moved Amendment No. 227:

    Page 97, line 7, leave out from "32" to end of line 8.

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The noble Earl said: In moving Amendment No. 227, it may be convenient if I speak also to Amendment No. 229, which is the substantive one, and to Amendments Nos. 230 and 231.

I was not able to take part in the passage of the 1999 Act as I had other Front-Bench responsibilities at the time. However, it seemed to me that the Act was highly questionable in terms of the ECHR. I believed then, as I do now, that many noble Lords are more concerned with the rights of bogus asylum seekers than with those of our own UK transport operators and drivers.

I believe it is bizarre that, if we want to take a young hooligan to task, we must deal with him in a magistrates' court, even if the likely penalty is very minor. On the other hand, if a transport operator inadvertently brings in a clandestine entrant, the Secretary of State determines whether the operator should pay a civil penalty, which could bankrupt the operator. The Secretary of State hears any appeal but, of course, the same group of officials is involved in the process. I was not in the least surprised when the legislation hit the buffers with the Roth case in the Court of Appeal.

I understand the difficulty facing a government when it is difficult or impossible to secure a conviction for smuggling illegal immigrants under the 1971 Act. But how far can one go with the introduction of severe civil penalties instead of a criminal prosecution? The Government have moved some way towards addressing those deficiencies with paragraph 8 of Schedule 8, which provides for new Section 35A in the 1999 Act.

In the Roth case, the court was particularly critical of the penalty system being based on the reverse burden of proof. The Government's new Section 35A does nothing to address that. However, as part of a fairer system, it is imperative that consideration as to whether there is a statutory defence and, if there is not, what the penalty should be is taken away from the Immigration Service. Those who are liable for penalties should be able to appear in person before a specially constituted independent body and be legally represented. My amendments provide for that. I beg to move.

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