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Lord Waddington: My Lords, as the noble Earl knows, that is not the point I am dealing with. I am saying that if there is a system of carriers' liability, it cannot reasonably be argued that the burden put on carriers is unreasonable. If a man is driving a lorry and he is charged with the duty of looking in his lorry before he takes it on a ship, most people would say that that is not a cruel burden to impose on him. That is my simple point.

Earl Attlee: My Lords, can my noble friend explain how the lorry driver is supposed to look into his vehicle when it is travelling under Customs seal?

Lord Waddington: My Lords, I am not asking the driver to do that. The argument in the amendment, as I understand it, is that the last check made on the vehicle must be made by some authorised person before the lorry is taken on to the ship. That is thoroughly unrealistic. If it is said that some authorised person can check before the lorry is taken on to the ship, surely the lorry driver can do so. It is as simple as that.

I cannot support the arguments advanced. They are thoroughly unrealistic. They are the sort of arguments that were advanced against the principles of carriers' liability way back in 1987. I am perfectly prepared to argue the toss with people about whether carriers' liability is right or wrong, but that is not the issue

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tonight. The issue is whether it is unrealistic to expect lorry drivers to look in their lorries before they drive them on to ships.

Lord Berkeley: My Lords, I declare an interest as chairman of the Rail Freight Group, which is not directly interested in the amendment. However, I am interested in cross-Channel transport. There has been a year of a severe problems with rail freight-thankfully now resolved, we hope.

I, too, had a useful meeting in the summer with my honourable friend the Minister responsible for immigration, together with people working with the noble Lord, Lord Freeman. We had a useful exchange of views.

One result of all these discussions, I think, is that the Government now clearly accept that, if they want to keep people out, it is the duty of government to control frontiers. It is also clear that the industry must help. However, I think it wrong to put responsibilities and duties on the industry that it cannot discharge. I do not know when the noble Lord, Lord Waddington, last saw the conditions that truckers face in Calais, but the fact is that they are threatened there. They even find it difficult to fill up with fuel anywhere near Calais. While they fill up their lorries with fuel—which they have to do themselves—or feed and wash themselves, it is possible for people to climb in on the other side of the lorry. Moreover, as the noble Lord, Lord Freeman, said, and as we discussed in Committee, if people are able to get on a ferry, they can move from one lorry to another.

It seems that the purpose of this amendment is to set a boundary to the carriers' liability. I believe that the arrangements must be fair. Drivers should be punished if they have not properly done the checks, but they should not be fined up to £4,000 per person if they have done the checks and people still get through.

It would be quite easy for the Government to prescribe particular search methods for vehicles, and those methods will undoubtedly improve over time. The Government could also prescribe where checks are made, such as in ports. Responsibility should not rest solely with drivers. Drivers need, for example, a secure environment in which to make checks, and the responsibility to provide that environment should rest with parties such as the ports and the Channel Tunnel.

I am not arguing against the principle of carrier liability. However, if drivers follow the rules meant to tighten up security and search methods, they should not be penalised if people still get in. There are circumstances beyond their control.

What incentive do carriers have to hand over the immigrants once they are in this country? I believe that, in an off-moment, one organisation suggested that, once they were in the UK, the best thing for drivers to do would be to park in the nearest lay-by and have a smoke. If people got off the back of the lorry, the driver would not know about it. Of course that is illegal, but there is a tremendous incentive. A similar situation could have emerged in relation to the rail freight industry. If 10 people are found in the back of

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a lorry, there could be a £40,000 fine. A driver could go bust with such a fine. It would be unfair for that to happen simply because it was not possible to find a structured way of enabling responsible drivers— and most of them are responsible—to comply without fear.

In the past year, because of the blockade on rail freight, the European Commission has started proceedings against the French Government for preventing the free movement of passengers and freight through the Channel Tunnel. There may come a time when, if we make it so difficult for truckers to come through legally and without too much fear, the Commission will consider taking action against the British Government. Such arrangements could be considered a constraint on the free movement of goods. There is a Sword of Damocles hanging over drivers' heads. Even if a driver took all reasonable precaution, he could never be certain that he would not face a fine of £40,000 or so. That could force him into liquidation.

I hope that my noble friend the Minister can give some comfort to the industry by telling us that the Government will consider a more structured approach. Those who comply with the latest rules, which can occasionally be updated, should have the comfort of knowing that they will not have an enormous fine hanging over their heads.

Earl Attlee: My Lords, I support my noble friend Lord Freeman. The amendment we are discussing stands also in my name. I declare an interest as president of the Heavy Transport Association.

I have no enemies in your Lordships' House, only friends. However, I thought that my only opponents would be seated on the Government Front Bench, but I was wrong about that! My noble friend Lord Waddington is right in many ways, but my amendment is designed to reinforce the regime of civil penalties to ensure that no clandestines can get on the ferry in the first place. I do not agree that it is impractical to check every vehicle. Some vehicles will require detailed checks but others will require a cursory check of the type described by my noble friend.

In Committee I felt that the Minister could not advance one good argument against my amendment. I doubt whether he can tonight; my noble friend Lord Waddington has tried hard. However, there is a danger of draconian penalties being imposed without criminal prosecutions. Decent, law-abiding operators will leave continental work alone or will have to charge much more. Only cowboys and those who are much worse will be left. There will be a large increase in the cost of freight and that will reduce European competition. It will also exacerbate the current shortage of HGV drivers prepared to be away from home for long periods of time.

My noble friend Lord Freeman touched on the nature of the tests in the amendment. In Committee the Minister said:

"Thus no single type of detection technology can produce conclusive results in all circumstances".—[Official Report, 17/7/02; col. 1369.]

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Of course, the Minister is quite right but the tests could comprise one or more of CO ₂ tests, heartbeat detector tests, tests using x-ray equipment, the use of dogs, and physical examination of the vehicle as mentioned by my noble friend Lord Waddington. But of course the only technology available to the driver is the mark one eyeball for examining the vehicle. If the vehicle is travelling under Customs seal, the driver cannot look in the load compartment; all he can do is check that the seal has not been tampered with. Unfortunately, the people we are discussing are extremely skilled at tampering with seals.

Lord Berkeley: My Lords, will the noble Earl explain how a driver inspects the roof of his lorry?

Earl Attlee: My Lords, with great difficulty. It is not a practical proposition. The only thing a driver could possibly do is park his lorry underneath a flyover, climb on to the flyover, examine the roof of the lorry and then get down. The only snag is that he would leave the lorry unattended while he did so. As I say, there is no practical way to examine the roof of a lorry, especially immediately before embarkation on to a ferry. My noble friend Lord Waddington referred to a quick check before embarkation on to a ferry. However, it is impractical to do a quick check of the roof of a lorry while marshals are telling the driver to board the ferry immediately.

In Committee the Minister said:

"It is essential therefore that hauliers continue to ensure that their vehicles are adequately secured physically throughout their journey".—[Official Report, 17/7/02; col. 1369.]

However, that is impractical. How is a driver able to do that and have a decent meal or perform his ablutions, as mentioned by the noble Lord, Lord Berkeley? The noble Lord, Lord Berkeley, also referred to threats of violence. Drivers are frequently threatened with violence, usually in the form of robbery. They can also be forced to carry clandestine entrants. This amendment would make that impractical as the clandestine entrants would be detected before the vehicle went on the ferry.

We need to think about the later stages. I urge the Minister to accept the amendment now. If it is not accepted tonight, at a later stage we shall have to return with other amendments to determine how we can solve the problem.

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