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Baroness Williams of Crosby: I support the amendment. The noble Lord, Lord Cope, has made out a very strong case, given that this is in the context of what is, at any rate, an ill-founded basis of detention of a transporter. "Ill-founded" is written on the face of the Bill. In those circumstances it would seem completely unjust for the owner of the vehicle to bear the expenses involved in such detention which is, after all, part of the Government's attempt to try to establish control.
I have one question for the Minister; that is, if it is discovered that the transporter has transported only one or two persons who later turn out to be accepted as legal asylum seekers and are accepted into this country on that basis, would that still be regarded as the kind of ill-founded detention on which the carrier would bear the costs of the detention and the Government would
Earl Russell: This clause, and the surrounding clauses, will be a considerable burden on international trade. Such burdens have a nasty habit of becoming reciprocal. When that happens, all countries lose, but an island state is liable to lose a great deal more than most.
Lord Berkeley: The noble Lord, Lord Cope, said that the load may deteriorate if a trailer or lorry is impounded. It usually deteriorates more when illegal immigrants have been in it for three or four days. The customers often reject that, so the carrier often has his load rejected and does not get paid.
Perhaps I may ask the noble Lord, Lord Cope, why it is only the carrier who he believes should be reimbursed. Many other people are involved in the chain, as we have been discussing for the past hour. Do they not deserve reimbursement as well?
Lord Cope of Berkeley: I was relying on a definition of "carrier" which I cannot put my finger on at the moment. However, I think that the noble Lord will find that it covers many of the people concerned in all this. If it does not, perhaps I should have deleted "carrier" and put "responsible person".
Lord Falconer of Thoroton: As one would expect, the noble Lord is entirely right in his instincts about the definition. The section makes it clear that the carrier is liable to a penalty under Section 25. A person liable to a penalty under Section 25 is a "responsible" person, so he is absolutely right in relation to that.
I turn to the question raised by the noble Baroness, Lady Williams of Crosby. The Chief Whip was speaking so loudly that it was difficult to hear large parts of it, so perhaps the noble Baroness could correct me if I am wrong. As I understood it, the question was: if somebody turns out to be a legitimate asylum seeker, can that person be a clandestine entrant?
Baroness Williams of Crosby: The Chief Whip obviously spoke more loudly than I did, which is understandable at this time of night. I asked whether, if the transporter was detained and it later emerged that it had carried a clandestine immigrant who was later accepted to be a legitimate asylum-seeker, the penalties would fall to be met by the owner of the transporter. Would it still be the case that that penalty could not be reimbursed?
Lord Falconer of Thoroton: My understanding of the statute is that a person is a clandestine entrant if he arrives concealed in a vehicle and then later indicates that he intends to seek asylum in the United Kingdom. The fact that his claim for asylum is later upheld does not prevent him from being a clandestine entrant. In other words, the essence of the circumstances in which a civil penalty is imposed is in relation to a clandestine entrant; that is, the transporter of a person who is concealed on the transport.
The answer to the question is that even if it was an ill-founded, though not unreasonable, levying of a penalty, and even though the person who was concealed was granted asylum, at the end of the day there would be no compensation for the detention.
Clause 29(4) is intended to provide the immigration service with some protection against possible claims for compensation where they have acted reasonably in detaining a vehicle, even though a penalty notice issued under Clause 25 was later found to be ill-founded. Amendment No.53 would remove that protection. Subsection (4), which is sought to be removed, should be considered with the qualification given in subsection (5) to the effect that it does not apply if the Secretary of State has acted unreasonably in issuing the penalty notice.
We recognise the significance of the power to detain transporters and the noble Lord, Lord Cope, effectively and persuasively described the very grave consequences for the owner or operator or for those whose goods have been carried when the vehicle is detained. We have therefore sought to include in the Bill a number of safeguards, of which subsections (4) and (5) are part. We are seeking to strike a balance. Were there to be liability for any expenses incurred by a transporter, even though the immigration officer acted on the basis of an apparently valid notice, it would place an unfair burden on those administering the civil penalty and go a long way towards making it unworkable.
Immigration officers would be aware that there would be a liability for costs incurred if for some reason the penalty notice is set aside. They would, as a result, be most reluctant to detain. The immigration officer must be able to act on the facts as they appear to be. If the penalty notice is issued reasonably, it is right that the power to detain should follow and that there should be no liability to costs.
The noble Lord, Lord Cope, will be aware that that is the situation in many analogous fields. The balance is struck by saying that as long as it is reasonable there will be no liability to compensation, but if it is unreasonable there is potential liability. That strikes the balance between protecting the transporter on the one hand and on the other making the section work. I ask the noble Lord to consider withdrawing the amendment.
Lord Cope: I am not entirely happy about the matter. I did see the phrase about the Secretary of State acting unreasonably. It is very difficult to show that he acted unreasonably in many cases where people have been put to great expense. The Minister said that the expense will be borne by the driver, by the operator and all the other people of whom we have been speaking. I beg leave to withdraw the amendment.
Lord Dholakia: I can be brief; many of the arguments have already been advanced by a number of previous speakers. Instead of talking about clandestine entry penalties, I want to talk about due process rights.
The noble and learned Lord, Lord Falconer of Thoroton, clearly explained that it is for the Secretary of State alone to decide whether any objections to the issue of a penalty notice are justified. We went into that explanation at some length. I have been provided with a brief by Justice which clearly demonstrates that, on the advice it received, it is a breach of Protocol 1(1) of the European Convention on Human Rights.
Two arguments are advanced. First, there is the question of whether such penalties (which may lead to a carrier's bankruptcy) can be considered to be proportional to the harm caused in circumstances where the person carried subsequently sustains a claim to protection. This is further argument in support of an exemption as suggested in paragraph 7.6 of Justice's argument, of which the noble and learned Lord has a copy.
Secondly, it considers that these penalties may constitute a criminal charge for the purposes of Article 6 under the European Convention on Human Rights. My point is that there are strong arguments to the effect that the Bill is creating a criminal penalty which should therefore be determined by a court. For those reasons, I oppose Clause 29 standing part of the Bill.
Lord Falconer of Thoroton: I will not advance the arguments I advanced in relation to subsections (4) and (5) because the noble Lord kindly said that I dealt with them in my previous speech. That leaves only the issue raised by Justice as to whether or not Clause 29 offends against the ECHR.
Now may not be the moment to go into the precise provisions in detail. This is not a criminal sanction; it is a civil penalty. As it is a civil penalty the normal requirements in relation to fair trials and so forth do not apply. Great care has been taken to ensure that that is the position. Though Justice's brief was well argued, we are satisfied, having taken all appropriate advice, that this does not offend against the ECHR.
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