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Lord Cope of Berkeley: Perhaps I may say in parenthesis, as it were, as gently as possible to the noble

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Baroness, Lady Williams, that the town from which the noble Lord takes his ancient peerage is commonly pronounced "barkly" in this country. I had the honour to live there; hence it occurs also in my title. The noble Baroness prefers the American pronunciation; no doubt because of her connections in that country.

Baroness Williams of Crosby: I immediately accept the noble Lord's point and apologise for using any American pronunciation in this Chamber.

Lord Cope of Berkeley: Turning first to the substance of the new clause, the Minister referred to immigrants and potential asylum seekers entering the country on rail freight wagons as a problem that is growing rapidly. However, he gave no estimate of the numbers who are entering in that way. I realise that it is likely to be an estimate, because some illegal immigrants elude the controls at that point. Have many been identified as attempting to enter the country illegally in that way? If so, to the extent that the Minister is able to tell us, how did they do so? We have heard previously of people entering through the roof of a rail wagon, for example, or hiding under the bogeys. Where has that happened? Italy has been suggested as one place where it happens to a degree. The Committee needs such information in order to attempt to assess whether the draconian remedies proposed by the Government for what is said to be a rapidly growing problem are proportionate to the mischief involved.

It has also been pointed out by the noble Lord, Lord Hylton, that this is not a question of passengers, but merely of rail freight. It would be interesting to know whether the Government believe that a number of illegal entrants are entering the country on passenger trains. It has been suggested to me that the immigration service believes that passenger trains have carried a large number of inadequately documented passengers. It has also been suggested that a change in French law--and probably in Belgian law also--is required for checks to be instituted at the station of departure. The provision places passenger trains on a different basis from passenger aircraft, and aircraft operators are extremely concerned. Aircraft operators are obliged to check all documentation in advance, whereas passenger train operators have no such obligation and no such penalties. If many immigrants are entering in that way, it is clearly a matter of concern.

The clause also requires proper precautions to be taken. However, it is extremely difficult--that was the nub of remarks made by the noble Lord, Lord Berkeley at Second Reading--to see how the proper precautions can be taken by those who will have to pay the penalty if the precautions do not succeed. The difference between lorries and rail freight under the new clause is not clear to me. As I understand it, a large amount of the rail freight that comes into the country through the tunnel does so on lorries; but the lorries themselves are on wagons when travelling through the tunnel.

Lord Berkeley: Perhaps I may explain that they do not come in lorry trailers on piggyback, as many of us

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would like to see, but they come in containers, which are the same, but without wheels. They are lifted on to, and are separate from, the wagon.

3.45 p.m.

Lord Cope of Berkeley: I bow, as always, to the noble Lord's specialist knowledge. It seems that it is particularly difficult to know who is responsible as regards containers, as the noble Lord has set out on other occasions.

We have also had some discussion, initiated today by the noble Earl, Lord Russell, to which the noble and learned Lord, Lord Brightman, contributed, about the definition of "rail freight wagon". That is important. Subsection (2)(c) of the new clause confers the power to detain only a "rail freight wagon". In ordinary speech, a rail freight wagon is a railway wagon; it is not the container which is on top of it. Unless there is some other power, it would seem that the container cannot be detained--only the wagon. That seems odd, unless the definition that is to be inserted following Amendment No. 66 includes containers and is extremely wide--which would probably go outside normal English and be difficult. We need to know more about the proposed definition that will be put in place as a result of Amendment No. 66. The power that is granted by Amendment No. 66 is potentially extremely wide.

The noble Lord, Lord Berkeley, also spoke to several other amendments, relating, for example, to consultation. I appreciate that to permit operators to have a veto by requiring agreement is rather heavy, as the Minister suggested; but that does not mean that we are happy with the limited consultations that have taken place so far. Fortunately, as the noble Lord the Captain of the Gentlemen-at-Arms told us, we are about to have a Recess, during which the Minister and his colleagues can no doubt pursue the consultations, so that we can hear a great deal more about the matter on Report. I hope that we shall have more information by that stage.

Amendment No. 59 relates to the question of who will be affected. It seems that those who will be most directly affected are the lorry drivers. They ought to be consulted just as much as the operators. I should be grateful to know whether such consultation has taken place. Individual lorry drivers will not realise that they will be directly affected until they find themselves in that position, and with a very expensive bill. At least their representatives might be consulted.

I can understand why the Government want to extend to rail freight the draconian penalties that they are putting in place for some other forms of transport--although not all, judging by the situation regarding passenger trains. However, we are worried about the provisions in this part of the Bill. The noble Lord, Lord Berkeley, has done the Committee a service in drawing attention to particular aspects.

Lord Williams of Mostyn: I am grateful for the questions that have been put. Perhaps I may deal first with the helpful question raised by the noble and learned Lord, Lord Brightman. I shall certainly give consideration to the definition of "rail freight wagon" in Amendment No. 66, standing in my name.

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Perhaps I may help further. In answer to the noble Earl, Lord Russell, I do not think that it would be possible to have a definition to include, for instance, a motor cycle or bicycle. We seek to include a definition of "rail freight wagon", with the intention of catching all forms of railway vehicle designed or adapted for the carriage of goods, but not to catch the locomotive which pulls those wagons. We are more than happy to have consultations with anyone who expresses an interest in these matters. I agree that they are of importance.

It is important to bear in mind the terms of Clause 27. Clause 27(3) has a defence which I shall not read out again. It is worth bearing that in mind as some rather alarmist questions have been raised.

The noble Lord, Lord Cope, raised the question of Eurostar and I accept that this is a legitimate area of concern. Checks at stations of departure are under consideration. We have checks for passengers travelling on the Shuttle; there are UK immigration controls in France and French immigration controls at Folkestone. Again in answer to the noble Lord, Lord Cope, I am not aware, subject to checking, of material that points to any significant use of passenger trains by clandestines. I accept that, as he said, they are used by inadequately documented passengers and that is why they are covered by Clause 32.

The noble Lord, Lord Cope, also quite reasonably asked how I backed up my assertion about clandestine entrants from freight trains. I accept his point that in the nature of things at the moment some may well not be discovered. In January there were nine clandestines, in February nine, in March 83, in April 117, in May 117. In June, because there was a French police operation within their own jurisdiction, a limited exercise, the figure fell to 33. The noble Lord is quite right, those clandestines were destined for the United Kingdom, coming from Italy, but they were found by French police within their jurisdiction.

We are trying to establish a regime which underlines the public concern and the right public policy behind the prevention of clandestine immigrants. I repeat the defence that is open in Clause 27. Clandestines conceal themselves in freight wagons, they use a variety of means of forced entrance and come from a variety of countries. Italy is a problem.

Under the 1951 convention or elsewhere, we have no obligation to facilitate the arrival of asylum seekers here, clandestinely or otherwise. Drivers bringing clandestines have no idea whether their "passengers" are genuine. That is why, on a proper construction but not an unduly harsh one, it is irrelevant whether or not they are genuine from the point of view of the carrier's liability. It is entirely relevant to what happens to the determination of their claims, but it does not bite on whether proper precautions have been taken by a driver who brings in clandestines.

I simply point out, I hope not unduly harshly, that any clandestine who gets into the United Kingdom must have come from continental Europe. In other words, he has come from a third country where an asylum application could have been made. I am not being harsh, it is a fact of life and of geography.

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The definition of freight wagons was also touched on by the noble Lord, Lord Avebury. I hope I have made it plain that we want to consult on the definition that we arrive at. On the first Committee day, I dealt with refunds to those recognised as refugees. The civil penalty is to give the clearest possible signal of the importance we attach to security measures to prevent the entry of clandestine illegal immigrants. If we have refunds, we shall diminish that effect. I repeat what I said a moment or two ago: if they are clandestines and if no system is operated, the vice is in having no effective system, it is not dependent on what happens to the asylum seeker in the end.

Eurostar services are already covered by Clause 32. We do not propose to extend the present clause to cover freight wagons coming as freight; they will be treated as freight on a ship.

There is only one type of clandestine entrant that can be relevant to rail freight. That is referred to in Clause 25(1)(a). I refer to the question from, I think, the noble Lord, Lord Hylton. The reason we put the definition there is that we thought it better to have the wording there for clarity rather than use a cross-reference. The noble Earl, Lord Russell, asked whether we had consulted the relevant European commissioner. We have not, but we have carefully considered relevant questions of European law.

I have dealt with the point on the limit to vires in my response to the noble and learned Lord, Lord Brightman, and with my assurance that, on my understanding, a bicycle could not be included within the definition unless, I am reminded, a bicycle were adapted to run on rails and carry goods--which would make it difficult to pedal. (An example of humour of that quality from the Box is entitled to be repeated!)

A number of issues have been raised in detail. I welcome the fact that informed minds raised them, if I may say so without presumption. There is a good deal of technical expertise in the House and in this Committee which is invaluable. That is why I underline that we want consultation with everyone who has a sensible interest. That is why it would have been a blank cheque or an open postal order to accept what my noble friend Lord Berkeley said. It was that we could not have regulations unless we had come to agreement.

We all look forward to the Recess with panting anticipation. I was asked by my noble friend Lord Berkeley whether the code of practice would be put in the Library before Report. It is a reasonable request and it is our intention to have the code of practice in draft in the Library before Report. The whole point of proceeding in this way is to allow detailed and informed consultation with the industry.

The noble Baroness, Lady Williams of Crosby, asked about the affirmative resolution procedure. I repeat what I said earlier. We do not think it is necessary. The principles of the civil penalty are already clearly set out in the relevant part of the Bill. The purpose of the power is to take account of the needs and troubles of the industry generally. I do not think that would require the affirmative procedure. The noble Baroness also asked

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about Schengen. As she said, we have an opt-out from it because we have no intention of removing our frontier controls with other European Union member states.

The final question came from the noble Lord, Lord Berkeley, on the definition of a train operator. It is not to be applied for the purpose of imposing a civil penalty on freight trains. The definition is used for the purpose of Clause 32. I hope that I have covered all the points Members of the Committee raised, but I see the noble Lord, Lord Avebury, rising to tell me that I have not.

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