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Lord Filkin: No doubt the long summer gap will give noble Lords the opportunity to see what progress we are making over the summer.

Earl Attlee: I was grateful for the Minister's reply but I was a little surprised. He seemed to be saying that it is not possible to guarantee detection of clandestine entrants in the vehicle. If we cannot use technology to detect clandestine entrants, how is the lorry driver on his own supposed to be able to detect clandestines?

Lord Filkin: I thank the noble Lord for giving way. The point that I was making was that it is not possible through technological means alone to be reasonably sure that there are not clandestines present, which is why the checking of security ropes and such obvious physical checks at the point of embarkation is an essential part as well.

Earl Attlee: But my amendment specifically refers to a manual check on top of technological checks.

It is also important to remember that these clandestine entrants are ingenious and extremely cunning. It only takes a moment's distraction for them to be able to climb on top of a trailer, cut the tilt open and jump in. A moment's distraction can be set up by a little disturbance.

Also my amendment refers to a secure area in the port. So it is hard to understand how this could occur. No doubt I shall be pursuing this matter at a later stage. We shall see how the consultation goes. In the meantime, subject to the usual caveats, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Berkeley moved Amendment No. 228A:

"(7) Where a person has a defence under subsection (2) in respect of a clandestine entrant, that person shall be exempt from any liability in respect of section 27 of and Schedules 2 and 3 to the Immigration Act 1971 (c. 77) (offences by persons connected with ships or aircraft or with ports).
(8) Where a person is not a responsible person as defined in section 32(5) of the Immigration and Asylum Act 1999 (c. 33) (penalty for carrying clandestine entrants), that person shall be exempt from any liability in respect of section 27 of and Schedules 2 and 3 to the Immigration Act 1971 (c. 77) (offences by persons connected with ships or aircraft or ports)."

The noble Lord said: Amendment No. 228A is related to the previous amendment, but slightly separate. We have talked about the Roth case several times today where the judge found against the Government in relation to fines for bringing in clandestines. It is interesting that, although it has changed the level of fine or charge, the Immigration Act 1971 still requires the carrier to be responsible for two weeks' board and lodging—I am not sure about

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that—and a fare home for anyone who has been handed over to the authorities rather than left by a lorry parked on a motorway and invited to go across the fields, as we discussed earlier. This requirement for repatriation applies to railways, road, air and any operator where the asylum application has been turned down.

Whereas this may be equitable for those clandestines on whom the charge of 2,000 or 4,000 has been applied, there are companies—we have discussed today—which have a defence under the 1999 Act, which means, effectively that the Government accept that the carrier has taken reasonable precautions. We have discussed what precautions are reasonable. The last amendment of the noble Earl, Lord Attlee, tried to put that in a little more detail. But there are occasions when a company has been told, for whatever reason, that it has taken reasonable steps and that it therefore has a defence under subsection (2).

As things stand, although it is not liable for the 2,000 to 4,000 per person, it must still pay the fare home of anyone who is subsequently refused asylum. It is perverse that, even though the Government accept that the carrier is not liable, it is still liable to pay for board, lodging and fares.

I do not have figures for how many members of the road haulage industry have been caught by that provision, but I suspect that there are many of them. English, Welsh and Scottish Railway, which has been given what I call exemption, has received bills for more than 200,000 for fares back to Romania, Afghanistan or wherever. As has been said in other debates, there is no incentive to hand people over, even for those who are not liable for the entry fines.

The amendment is designed to reflect the result of the Roth case. I am advised that Section 27 of the 1971 Act suffers from the same defects of non-compliance with the Human Rights Act 1998, which, in my view, is what caused the Government to lose the Roth case. That has wider implications than those for the six respondent lorry drivers. It is interesting to cite a paragraph from the judgment of Lord Justice Simon Brown, who says:

    "What is presently in issue . . . is the intrinsic legality of the scheme itself rather than the liability of carriers in individual cases. The facts, therefore at this stage are relevant only: a) to indicate the extent of the problem of illegal entry and the success of the scheme in combating it . . . and b) to illustrate how ineluctably the scheme in practice works".

He continues that even if the scheme does not contravene Article 6, he certainly believes that it contravenes Article 1, on the basis that,

    "the hallowed principle that the punishment must fit the crime is irreconcilable with the notion of a substantial fixed penalty".

In the three cases before him, the drivers only discovered that the clandestine entrants were on board when they had travelled up the motorway to London. They would therefore never have been penalised had they not themselves alerted the police.

A similar situation obtains under Schedules 2 and 3 to the 1971 Act, because the operator must always pay the full cost of complying with any direction given by the Home Office. I could go through that Act in detail,

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but I think that, at this time of night, we should avoid that. The 1971 Act, like the 1999 Act, contains no element of discretion. The similarities between the Roth case and the requirement to repatriate under the 1971 Act are so great that there will be a good case to be made against the Government if they require operators to comply.

Does my noble friend really want the industry to spend two years taking the Government to court for exactly the same reasons as obtained in the Roth case? Perhaps he would like to reword my amendment to achieve the same objective and receive lots of thanks from the industry. I beg to move.

Earl Russell: Lord Grimond once remarked that Parliament sometimes gets what he described as a legislative stammer: it legislates over and again on the same matter. First it was education; then it was local government; now it is asylum. Often, that happens because an attempt is being made to do something that cannot be done at all. Listening to the exchanges between the noble Lord, Lord Berkeley, and the Minister, I was unable to help wondering whether this is one of those cases. Indeed, I cannot help wondering whether the whole Bill is one of those cases.

The Minister might add to his summer reflections the question of whether we should not go back to the drawing board and start again.

Earl Attlee: I shall be brief. I support the noble Lord's amendment.

Lord Filkin: As I promised, we shall give serious consideration to all that has been said today and on previous days in Committee and to what will be said next Tuesday. The Government do not think that we need to go back to the drawing board on the principles of the White Paper, the principles of the Bill or the development of the Bill, although we will, no doubt, learn from and reflect on the parliamentary scrutiny. We seek to strike the right balance between making it possible for people who have a genuine asylum case to make it and limiting those who do not. I will not speak at more length on that.

The amendment would ensure that, since English, Welsh and Scottish Railways International is not defined as a responsible person, it would not have to comply with directions for the removal of illegal entrants either. If that is the intention, the amendment is technically deficient, as it extends exemption way beyond EWS.

If the intention behind the amendment is that all carriers that are not responsible persons should be exempt from the requirements of Schedules 2 and 3 only in respect of clandestine entrants, we still cannot accept it. There is no direct link between liability to a civil penalty and the responsibility for arranging removals, as those who are designated as responsible persons for penalty purposes do not necessarily have an obligation to arrange the removal of the clandestine entrants whom they carry here. For example, drivers, hirers or owners of vehicles, who are responsible persons under the penalty regime, have no

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responsibility for removing the clandestine entrants whom they may carry here. That is the responsibility of the international carrier that transported the vehicle and, therefore, the clandestine entrants to the UK.

If it is the intention of the amendment that a carrier that has a defence against liability to the civil penalty should not be responsible for the removal of persons whom it transports to a country, we would argue that our present policy reflects well established universal practice and is consistent with international agreements such as the International Civil Aviation Organisation Convention. Paragraph 26 of the Schengen Convention, in which the UK is participating, also provides that member states shall require carriers to remove passengers who are found to be inadmissible. Such obligations are, unfortunately, part of the commercial risk that carriers over international routes must bear. It is right that all carriers should be responsible for the removal of any illegal entrants who are found to have arrived in the UK on the services for which they are responsible.

In short, all carriers are responsible for the removal of persons whom they have transported, regardless of whether they were at fault in carrying them. That has been the case for centuries, rather than decades. There is no reason why EWS should be treated differently from any other carrier in that respect.

The Roth case has nothing to do with the liability of carriers to pay the costs of removal in compliance with a removal direction. The Government contend strongly that removal directions are not in breach of ECHR.

I suggest that it might be in order to withdraw the amendment at this stage and allow both sides to consider what has been said.

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