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Earl Russell: The noble Earl makes a very serious case about the reverse burden of proof, which I hope will get a hearing. I also hope that we shall not turn this into an argument over the rights of legitimate commercial operations as against the rights of asylum seekers. The only way that we can reach a solution that is satisfactory to both parties, who have a common interest in this matter, is to provide a legal channel by which people may enter this country to obtain a hearing for a claim for asylum. If we approach the matter in that way, we have no need to argue with each other, and we can join forces, as we should.

Lord Berkeley: I support this group of amendments standing in the name of the noble Earl, Lord Attlee, the noble Lord, Lord Freeman, and myself. The noble Earl, Lord Russell, has hit the nail on the head again. Several times he has made the point that the 1999 Act turned the carriers—be they road or rail—into unpaid frontier control guards who, unlike most guards and security firms, are fined when they make a mistake and

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have their equipment impounded. That is a funny way of enthusing them to carry out their job properly. It is a little like expecting the French police to police the Sangatte centre on the basis that the French want to keep asylum seekers in France when they actually want to leave. As I said before, there is much argument for encouraging the British authorities to have a presence in Sangatte or at the terminal and to process asylum seekers there. I believe that there would be a benefit to that.

The Government's proposal is an improvement because at least they propose an appeal to an independent court. When one goes down that route the legal fees become high and there are delays. Such poor people—I mean poor people, although some may deserve their treatment but not all—are quite often small businesses and the thought of appearing in court against the Government and the Home Office is beyond them. There is a strong argument for having a quick, cheap, but independent tribunal where they can represent themselves in person with confidence and seek a quick resolution to any appeal, confident that it really will be independent.

Lord Filkin: As the noble Earl, Lord Attlee, signalled, the Court of Appeal in Roth criticised the absence of an independent appeal right, which is clearly what we are seeking to address. Schedule 8 introduces a statutory right of appeal over and above the existing objection procedures, which will also be retained. In other words, people will be able to make informal direct objections to the Home Secretary about any penalty imposed and they will be able to have that considered before they exercise a statutory right of appeal. We also require the Secretary of State to determine any objections made within a period to be specified by regulations so that they do not suffer from delay. That will enable someone who is dissatisfied with a right of objection to the Secretary of State to be in time to go to court.

I understand the argument for creating an independent tribunal, but we believe that it will be impractical and would lead potentially to delay. In practice, the ability to seek redress in the county court if dissatisfied with the Home Secretary's response appears to the Government to be relatively quick and inexpensive. Therefore, an aggrieved operator or owner has two options both of which can be exercised if he feels aggrieved. He should be able to exercise them relatively rapidly and inexpensively.

Earl Attlee: I am grateful to all noble Lords who have responded to my amendment. If we follow the suggestion of the noble Earl, Lord Russell, we would have no problem at all. When moving my amendment I used the term "bogus asylum seekers" and I was worried that I may have enraged the noble Earl. I believe I got away with it. I shall read carefully what the Minister said. In the meantime I beg leave to withdraw my amendment subject to the usual caveats.

Amendment, by leave, withdrawn.

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Earl Attlee moved Amendment No. 228:

    Page 97, line 36, at end insert—

"(3B) Where the transporter is a vehicle, it is also a defence for the carrier to show that—
(a) on the occasion in question prescribed measures were taken to identify if a clandestine entrant was concealed in the vehicle and the measures did not identify that a person was so concealed,
(b) the measures were taken by an approved person in a secure area of the port of embarkation, and
(c) after the measures were taken the vehicle remained in the secure area until it boarded a ship, aircraft or train to the United Kingdom."

The noble Earl said: Amendment No. 228 stands in my name and that of my noble friend Lord Freeman and the noble Lord, Lord Berkeley. It too relates to Schedule 8.

Section 34 of the 1999 Act is amended by the new subsection 3(a) which is helpful to the rail industry which has been severely damaged by the curtailment of services. Under the code of practice it is the responsibility of the driver to carry out checks en route and prior to embarkation. Eurotunnel, the Port of Calais authorities, P&O Ferries and others are providing drivers with the opportunity to have their vehicles checked in a controlled, secure environment.

CO2 checks are involved as well as a manual inspection. No doubt other technologies will emerge so long as they provide an effective defence against the civil penalty. The checks were put in place at the initiative and the cost of the transport industry and are effective in detecting clandestine entrants. It is essential that the value of the checks is fully recognised by making the use of the facilities a statutory defence against the imposition of a penalty. My amendment seeks to do that. I beg to move.

Lord Berkeley: I rise briefly to support Amendment No. 228. The key to it is what the noble Earl, Lord Attlee, called a "secure environment". It could apply to ports on the Continent, the Eurotunnel terminal or to the French railways terminal at Fre˙thun when it has its new fence.

At the moment the port or the Eurotunnel provides the infrastructure in which the security checks can be undertaken by the operators. The same will apply to railways in the future because they may involve different operators as I said earlier. It is reasonable that if the protection measures are provided to a defined standard, and the operators who may be many and varied in number undertake the checks in the way that they should in accordance with the code, it should provide a statutory defence against the imposition of fines.

Wording such as that contained in the amendment, though it may be improved, would be advantageous to removing the uncertainty from the industry as to what it will have to do to comply with the code. At the moment the position is woolly and the industry is not sure whether or not it has complied. That may be

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intentional but it is not very encouraging for those who want to trade safely, reliably and honestly across the Channel.

Lord Filkin: I thank the noble Earl for this useful probing amendment, though I shall not be able to respond as positively as he hopes.

Though the wording is not explicit, we understand that Amendment No. 228 is intended to have the effect that the drivers and owners of vehicles who have submitted to the current carbon dioxide detector tests in Calais and elsewhere prior to embarkation should be automatically exempt from civil penalty charges if clandestines are subsequently found. It may be argued that it should apply also to other forms of detection technology such as x-ray, heartbeat detectors and so forth.

While the Government applaud the objective of encouraging the use of detection equipment, which certainly helps, the technology has not yet reached the level of effectiveness that we could accept that in itself it constituted the requisite system for detecting clandestines. The latest figures show that in the first six months of this year, 56 per cent of vehicles in which clandestine entrants were found had been through a check at Calais or Dunkirk. Thus no single type of detection technology can produce conclusive results in all circumstances; for example, the results of carbon dioxide screening may be affected by such things as the length of time people have been concealed, the type of vehicle or the nature of the load carried.

It is essential therefore that hauliers continue to ensure that their vehicles are adequately secured physically throughout their journey and that they follow the requirements in the statutory code of practice for the prevention of carriage of clandestine entrants. In addition there is often a significant delay between the time of such checks and the vehicle actually boarding the ferry. During that time we require drivers to be vigilant to the possibility that unauthorised persons might gain access to their vehicles. So, the use of detection equipment is a useful part of the system. By itself it cannot be sufficient.

In relation to the challenge of the noble Lord, Lord Berkeley, that the industry wants as much security as it is reasonable to provide, in a sense we shall develop this through the consultation on the code of practice, which clearly needs to be ongoing over the summer. It is important to give that as much energy as possible during that period. Given that explanation, I hope that the noble Earl will feel inclined to withdraw his amendment.

Lord Berkeley: Before my noble friend sits down, he has mentioned the statutory code of practice several times. We welcome that. There was a code of practice in a 1999 Act. I recall that it went out for consultation. I know that a number of trade organisations, companies and probably Members of the Committee responded. It is my firm recollection that not one change was made. I may be wrong. But I felt that the consultation was not quite as responsive as one would

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have hoped. I hope that this time there will be much more response and a two-way dialogue so that we can constructively produce the best provisions for the industry and help the noble Earl, Lord Russell, with some of his concerns.

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