Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Cope of Berkeley: My Lords, before the noble and learned Lord sits down, would I be correct in thinking that the Government will not be pursuing Amendment No. 30 tonight? After all, the order-making power in subsection (10), admittedly subject to affirmative procedure, seems to bring it under the undertaking given earlier. We can of course proceed to a vote if it is wished on Amendment No. 29.

Lord Williams of Mostyn: My Lords, I should have wanted to take, I hope, the positive opinion of the

18 Oct 1999 : Column 858

House on Amendment No. 30. I believe that I have explained it fully. I do not believe that it falls into the category of problem areas which I gave way to earlier tonight.

Lord Shepherd: My Lords, before my noble and learned friend sits down, perhaps he can help me. How does he interpret subsection (1)(c), which reads:

    “made a claim for asylum as soon as was reasonably practicable",

bearing in mind the questions we have asked about documents?

Lord Williams of Mostyn: My Lords, as “soon as was reasonably practicable" is a well known concept in English law. It would bite in a number of ways. First, the prosecuting authority, whichever it is, must put its mind to the question whether the claim for asylum was made as soon as reasonably practicable. In a sense, that is both an objective and a subjective question. One must come to an objective view about what was subjectively reasonably practicable. I take the examples given. If someone is suffering grievously from the consequences of torture, it seems to me that any court or administratively directed prosecutor is going to bear that in mind. That is opposed to the case of someone who is otherwise--I am not minimising distress--more hale and hearty in body, mind and spirit than someone who has been tortured.

Again, I believe that what has been tabled in this amendment in the name of my noble friend Lord Bassam is flexible and appropriate by way of response.

Lord Goodhart: My Lords, before the noble and learned Lord sits down, I should like to question him a little further on the matter of the delegated powers. He was suggesting that that did not come within the principle of the concession which the Government have made to refer those matters back to the delegated powers committee.

The power is that in subsection (10), as I understand it, in the new clause after Clause 25, which gives the Secretary of State power, by order, to add or remove offences from those that are for the time being listed under subsection (3). Is that not absolutely central to the issue? Will there not therefore be a serious question as to whether it is necessary to deal with that issue by, say, affirmative or negative procedure? I therefore invite the noble and learned Lord to withdraw this amendment and to treat it, along with the others, as one which should be referred to the delegated powers committee.

Lord Williams of Mostyn: My Lords, again I do not believe that that is an unreasonable approach. It is substantially the approach put forward by the noble Lord, Lord Cope of Berkeley. In fact, I had in mind that we might wish to extend the list of offences which the noble Lord will know as well as I--relating to fraudulent documents which would be subject to amnesty.

If it is the feeling of your Lordships, which I detect it to be, that the House would be happier with my not moving the amendment at this stage, I am perfectly

18 Oct 1999 : Column 859

happy to fall in with that. It seems to me that that is the general sense of the House. I am grateful to the noble Lord, Lord Cope of Berkeley, for raising the point. Perhaps I should have been more reflective in my response to him. However, I hope that I have been able to convince the House, whatever its feeling on subsection (10), that we have achieved a better outcome--I put that neutrally, not in any partisan way--than that proposed by the noble Baroness.

Therefore, on the basis of the invitation from the noble Lord, Lord Cope, supported by the noble Lord, Lord Goodhart, I am happy not to press the amendment this evening.

The Lord Bishop of Southwark: My Lords, I must acknowledge that the Bill is much better with Amendment No. 30 included than without it. Having flagged up some of the difficulties which may be encountered by the new procedures, and having heard something of the administrative safeguards being developed, I am prepared to withdraw Amendment No. 29.

Amendment, by leave, withdrawn.

[Amendments Nos. 30 and 30A not moved.]

Clause 26 [Penalty for carrying clandestine entrants]:

Viscount Astor moved Amendment No. 31:

Page 17, line 31, leave out paragraph (a).

The noble Viscount said: My Lords, Amendment No. 31 begins a series of amendments which refer by and large to carriers' liability for asylum seekers and their effects. I should begin by saying that we support the general thrust of the Government's clauses, but that we have various concerns about Part II of the Bill in terms of the wording and its effects.

The effect of Amendments Nos. 31 to 33 is to limit the definition of a clandestine entrant in the Bill, so that it does not include people who present themselves to immigration officials immediately on arrival. The definition of a clandestine entrant is relevant to the question of which carriers can be fined. Therefore it is very relevant to carriers.

The way in which the Government have framed these clauses in Part II seems to penalise carriers for honest behaviour. It acts as a disincentive, as it were, to honest behaviour. That is something which I am sure the Government do not intend. Indeed, it would be a disincentive to anyone arriving in this country.

The way in which the Bill is framed is a disincentive to the owner of a vehicle, ship or aircraft to report a person if he or she should discover someone hidden on arrival in this country. At the moment, the Bill encourages carriers to let people stay hidden. Their honesty as a carrier and their proper behaviour in bringing such a person to the attention of immigration control and the Immigration Service will gain them nothing but a £2,000 fine. It hardly seems sensible public policy to punish people who co-operate with the Immigration Service; rather, it should be the other way round. The Bill is a disincentive to co-operation.

18 Oct 1999 : Column 860

Paragraph (c) provides a positive incentive to a carrier to keep hidden someone discovered in the course of the journey. The second amendment attempts to delete that because at the moment the Bill punishes law-abiding behaviour and people who are in no way to blame.

Amendment No. 33 relates to the provision which imposes a particular disincentive on carriers to make known to the Immigration Service the presence of a person if they realise that the person is going to claim asylum. In such cases, giving up such a person to the Immigration Service will not help the carrier to avoid liability for the fine.

We believe that the Government have got the wording wrong in Clause 26. We support their purpose, but we feel that they should review the wording of that clause. I beg to move.

Baroness Williams of Crosby: My Lords, in order to speed up the process, I rise to make a few comments from these Benches about the group of amendments with which we are now dealing and with which my name is associated.

Like the noble Viscount who has just moved the amendment, I argue strongly that the problem here is that there will be no difference in terms of the penalties suffered by a lorry driver, a railway staff member or a member of a ship's crew irrespective of whether that person persuades someone they carry to come out openly and declare that they are seeking asylum or the person carried continues to remain concealed within the ship, lorry or whatever it may be.

I believe that it follows logically from the eloquent statement made by the Minister and by the noble and learned Lord, Lord Williams, that a distinction should be made between the position of bona fide asylum seekers under the refugee convention and those who are not bona fide--and who, indeed, need to be studied carefully by the Immigration Service.

A further step should be taken in relation to those people carried in a vehicle--I shall not go into detail over the different types of vehicle--who declare themselves immediately they enter the United Kingdom to be seeking asylum and who make it absolutely plain that that was their intention. They then submit themselves to a careful study of whether or not their claim is substantiated. Those who carry them may do so innocently, not knowing they are there. There is then information relating to whether the person has been unknowingly or, in some cases, knowingly carried. Without such information, effectively, one would be penalising the staff, the lorry drivers and their owners for something for which, I believe, they should not for one moment be penalised; that is to say, for taking part in bringing to this country someone who has a genuine claim for refugee status, as distinct from taking part in the entry of somebody who is an illegal immigrant.

We are concerned with the third of these amendments, Amendment No. 33, which penalises people who claim that they intend to seek asylum. It seems that that is the person who should not be

18 Oct 1999 : Column 861

penalised and that everybody else should be heavily penalised. We are a little puzzled that carriers will be held responsible for people who, we have just agreed, should be treated differently because they have claimed, and have proven that their claim is valid, to be treated under the terms of the refugee convention, Article 31(1).

In supporting the amendments, I suggest that the Government should make that distinction and that they should not penalise carriers because they carry into this country legitimate people who declare themselves to be asylum seekers. It is absolutely right and proper that carriers should be penalised if they carry people who are deliberately intending to enter this country illegally. They may well be part of an organised trade that should be stopped. We fully support the Government on that, but we feel that they run the two together in Clause 26 in a way that cannot be justified.

10 p.m.

The Lord Bishop of Oxford: My Lords, on the issue of whether we go with the common sense definition of “clandestine entrant" or whether we go with a rather contrived understanding, perhaps your Lordships will forgive a simple example. If we find someone in the House who has no right to be here, we may regard him as an illegal entrant. Contrast that with a person who travels by railway without a ticket and on the Underground without a ticket. He arrives at the Peers' entrance and says, “I have no right to be here, but I would like to have a look around." We would not regard that person as an illegal entrant. The fact that he has travelled on the railway and the Tube without a ticket has no direct bearing on his entrance in this House.

I do not know whether I am fair to allude to the noble and learned Lord, Lord Falconer, as reported in Hansard. He stated:

    “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".--[Official Report, 12/7/99; col. 162.]

Surely, there can be no justification for including in the definition of a “clandestine entrant" those who make themselves known to the immigration authorities on arrival. There is also no reason to include in the definition any reference to whether or not a person makes a claim for asylum. It is wholly inappropriate to include in the definition of a “clandestine entrant" any reference to whether or not a person makes a claim for asylum.

Passengers who clandestinely embark upon travel but who bring themselves to the attention of the persons carrying them and/or the authorities in the United Kingdom are surely not in the same category as those who evade control on entry. Those responsible for the former should not be liable to the same penalties as those responsible for the latter. I plead for a common sense definition of “clandestine entrant".

18 Oct 1999 : Column 862

Next Section Back to Table of Contents Lords Hansard Home Page