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Earl Attlee: My Lords, if detection technology does not work, how is the lorry driver supposed to make sure that he is not carrying a clandestine entrant?

Lord Filkin: My Lords, by inspecting his own vehicle and trying to ensure that it is secure.

Earl Attlee: My Lords—

Lord Filkin: My Lords, perhaps the noble Earl would be gracious enough to allow me to complete my speech. Then if I have not answered questions, by all means he may take a further pop at me.

We hope that detection technology will get better. We will invest substantial amounts of money because it is in everybody's interest to improve its success rate. We would not be making that investment unless the technology had some success rate but it is not foolproof.

The amendment is about detection; the civil penalty is about prevention. We assert that drivers must not be able to turn a blind eye to security throughout their journey in the safe knowledge that any clandestines they carry will be detected in Calais. Transporting them to northern France only exacerbates the build-up there. Not all ports with traffic to the UK have the level of detection technology that has been provided to Calais.

I hoped that we had made good progress in what we felt were very positive discussions with the freight industry during the summer, particularly focused on the code of practice. We thought that was a good start. There has been a good dialogue with the industry and long may such dialogues continue.

Where liability does arise, the code of practice for determining the level of penalty has been amended—taking account of comments received during the summer—to make it explicit that where third-party detection technology has been used to identify clandestines, the level of penalty will generally be reduced. It reflects the realities.

Clearly there is a defence under duress. The new code of practice penalties to which the noble Lord, Lord Freeman, referred does not replace the current code, which provides hauliers with a defence against the imposition of penalties. Those who comply with

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the current code will not be penalised. Where the current code is not complied with, the new code will be used for determining the amount of penalty imposed. Any other relevant factors that may not be in the new code will be taken into account when determining the penalty.

As to the free movement of goods to which the noble Lord, Lord Berkeley, referred, the Court of Appeal found in the Roth case that there had been no breach of European laws in respect of the free movement of goods in operating a penalty regime.

It is late and I regret that I cannot go further. We feel that the consultations and discussions have been good. We wish to continue those dialogues with the freight transport industry and acknowledge its contribution. On the other hand, we are aware also that is not true of all lorry drivers. Only about half of them appear to comply well, so we urge the others to do the same.

11 p.m.

Earl Russell: My Lords, before the Minister concludes, will he agree to read the Home Office research published last week that found his final point to be entirely untrue?

Lord Filkin: My Lords, I shall do so with pleasure. However, this is not the place for a Second Reading debate. There are many factors that attract people to this country. We still have to find answers to the question as to why so many people come to Britain when it is so difficult to do so. Nevertheless, we are top of the league.

Lord Freeman: My Lords, I am grateful to the Minister for outlining very clearly the reasons why he feels unable to accept the amendment. I believe that his response will encourage both my noble friend Lord Attlee and myself to reflect further, together with the associations involved. The hour is late and I have but two very brief points to make in response to remarks made in this thought-provoking debate.

First, my noble friend Lord Waddington argued the case for absolute carriers' liability. In fact, there is no such thing as absolute liability; indeed, the Bill rightly provides grounds of defence for proper precautions taken. Our amendment simply seeks to put on the face of the Bill, and thereby secure, a defence in specific circumstances.

Secondly, my noble friend Lord Waddington may have misheard me, or perhaps I did not explain myself clearly—which is probably the case. I should tell him that I was not seeking to argue that others should necessarily be examining the freight vehicle in the secure area of the port; I meant the driver. If it were not the driver, the driver would have to assist. The carrier must always have that liability of continuing to supervise, where practical, the security of the vehicle.

On that basis, my noble friend Lord Attlee and I will reflect further on the matter, along with the trade associations. I am grateful to the Minister for indicating that at least his department might be open

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to any further sensible representations. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 63:

Page 104, line 11, leave out paragraph (b) and insert—

"(b) was an employee of the owner or hirer of the vehicle when the penalty notice was issued."

The noble Lord said: My Lords, these are minor and technical amendments designed to ensure consistency and clarity. I shall simply describe the purpose of the three amendments.

Amendment No. 58 ensures that there is no need to issue new codes of practice for the prevention of clandestine entrants under Section 33 of the Immigration and Asylum Act 1999, as a result of incorporating rail penalty provisions into primary legislation. Amendment No. 59 clarifies the legal position to ensure that we cannot detain a vehicle belonging to someone who was not the employer of the vehicle driver at the time the driver was issued with a penalty. Amendment No. 60 clarifies that the right of appeal to a court is available at any point following the decision to charge an owner in respect of a passenger without proper documents regardless of whether a written objection has been made. This mirrors provisions relating to the civil penalty regime. I beg to move.

On Question, amendment agreed to.

The Deputy Speaker (Lord Skelmersdale): My Lords, I assume that Amendments Nos. 64 and 65 were spoken to by the noble Lord. In which case the Question is that Amendments Nos. 64 and 65 be agreed to.

Lord Bassam of Brighton moved Amendments Nos. 64 and 65:

Page 107, line 19, at end insert—

"(5) An appeal may be brought by a person under this section against a decision to charge him whether or not he has given notice of objection under section 40A(3)."
Page 108, line 18, at end insert—

"(1) This paragraph applies to a code of practice which—
(a) has effect, before the coming into force of paragraph 12 of this Schedule, by virtue of sections 33 and 39 of the Immigration and Asylum Act 1999 (c. 33) (power to apply provisions about carriers' liability to rail freight), and
(b) could be issued under section 33 of that Act after the coming into force of paragraph 2 of this Schedule.
(2) A code of practice to which this paragraph applies—
(a) shall continue to have effect after the coming into force of paragraph 12 of this Schedule, and
(b) shall be treated after that time as if made and brought into operation under section 33 alone."

On Question, amendments agreed to.

Clause 113 [Physical data: compulsory provision]:

Lord Dholakia moved Amendment No. 66:

Page 60, line 28, leave out paragraph (g).

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The noble Lord said: My Lords, in moving this amendment, I shall speak also to Amendment No. 67. I shall be very brief. The purpose of the amendment is to prevent the physical data collected being used for any other purpose than immigration matters. The amendment has the support of a number of immigration advisory bodies, which find it objectionable that physical data collected about an individual under the compulsory scheme may be used for purposes that do not relate to immigration. This power is far too wide and ambiguous. The Secretary of State has been unable to justify such wide powers, which have serious implication for data protection. That is why we suggest the deletion of subsection (4)(g) of Clause 113.

Amendment No. 67 is designed to ensure that information supplied by a local authority is dealt with through a specified and qualified person. Again, the amendment has the support of a number of immigration advisory bodies. In order to avoid abuse and errors being made safeguards must be put in place against all these provisions to ensure confidentiality of information, and that only persons qualified to give, or receive, information are able to do so. Furthermore, it is essential that the individuals concerned are informed when information relating to them is being disclosed and that they should have the opportunity to challenge the accuracy of the information. We are concerned that information should be provided only by an officer qualified to provide it. There are serious data protection issues in that data may be inappropriately disclosed and there may be a risk that information will be inaccurate or misinterpreted.

For those reasons and for reasons of fairness we believe that information supplied by a local authority is supplied through a specified and qualified person. I beg to move.

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