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Lord Falconer of Thoroton moved Amendment No. 38:

Page 21, line 8, after (“expenses;") insert--
(“( ) there is no significant risk that the penalty (or one or more of the penalties) and any connected expenses will not be paid;").

The noble and learned Lord said: My Lords, in moving Amendment No. 38, I speak also to Amendment No. 43. As your Lordships will be aware, the Government have made provision in Clause 31 of the Bill for the detention of a transporter pending payment of a penalty for carriage of clandestine entrants. Similarly, Clause 36 makes provision for the detention of a transporter pending payment of any outstanding charge in respect of passengers without proper documentation. In both instances, application may be made to the court for release of the transporter.

At present under Clauses 31(3) and 31(6), the court may release the transporter if it considers that satisfactory security has been tendered in place of the transporter or if there is significant doubt as to whether the penalty is payable and the applicant has a compelling need to have the transporter released.

Amendments Nos. 38 and 43 make further provision for the court to release the transporter if it considers that there is no significant risk that the penalty or penalties and any connected expenses will not be paid.

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Your Lordships will see that these amendments widen the jurisdiction of the court to consider whether any security is needed in a particular case. Without the proposed amendments the only means of challenging a decision that security was required would be by way of judicial review. We think that the court, on an application under these clauses, should be able to consider this issue alongside the others already provided for. We therefore believe that these amendments will not undermine the civil penalty legislation but rather, by enabling those who have an interest in securing the release of a transporter to seek relief without the need for judicial review, will facilitate the effectiveness of the legislation. I commend these amendments to the House. I beg to move.

On Question, amendment agreed to.

Clause 32 [Assisting illegal entry and harbouring]:

Lord Bassam of Brighton moved Amendment No. 39:

Page 22, leave out lines 10 to 20 and insert (“for paragraphs (a) and (b) substitute--
“(a) until a decision is taken as to whether or not to institute criminal proceedings against the arrested person for that offence; or
(b) if criminal proceedings have been instituted against the arrested person--
(i) until he is acquitted or, under section 65 or 147 of the Criminal Procedure (Scotland) Act 1995, discharged or liberated or the trial diet is deserted simpliciter;
(ii) if he has been convicted, until the court decides whether or not to order forfeiture of the ship, aircraft or vehicle,
and for the purposes of this subsection, criminal proceedings are instituted against a person at whichever is the earliest of his first appearance before the sheriff on petition, or the service on him of an indictment or complaint." ").

The noble Lord said: My Lords, the amendment makes a further technical change for Scotland to the new Section 25A in the 1971 Act. The amendment takes account of the differences in Scottish criminal procedure and proceedings and is intended to achieve an effect similar to that for England and Wales under subsection (1).

As the amendment makes clear, the ship, aircraft or vehicle in connection with which a person has been arrested or charged with an offence may be detained until a decision is taken on whether or not to bring criminal proceedings against the arrested person.

If criminal proceedings are taken against him, the ship, aircraft or vehicle may be detained until one of the following events occurs--that is, until he is acquitted, discharged or liberated or until the prosecutor decides to drop the charge completely and proceed no further. That is the effect, I understand, of the expression contained in the clause of deserting the trial diet simpliciter.

Where the person has been convicted, the ship, aircraft or vehicle may be detained until the court decides whether or not to order its forfeiture.

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The tailpiece to the amendment repeats what is currently at paragraph (c) in subsection (5) of the new Section 25A. The tailpiece sets out what is meant by the reference to criminal proceedings being instituted. I beg to move.

On Question, amendment agreed to.

Clause 33 [Rail freight]:

Lord Berkeley moved Manuscript Amendment No. 39WA:

Page 23, line 16, after (“person") insert (“in the United Kingdom and abroad").

The noble Lord said: My Lords, in moving this amendment, with the leave of the House I speak also to manuscript Amendments Nos. 39“A, 39YA and 39ZA. As I think that Amendment No. 39WA has been covered by previous discussions, I do not want to say anything further on that.

Amendments Nos. 39“A and 39YA refer to the impounding and selling off of rail wagons if a person liable has not paid the penalty. We have had no reasonable explanation of why this is necessary especially after the welcome amendment to new Section 25A which my noble friend has just moved. I gain the impression that the clause is included because there is a similar clause for road freight.

I submit that lorries may be mislaid but that it is hard to see how a rail wagon can be mislaid in the UK especially when there is a system of recording and tracking all wagons. I leave it to the Government to work out what will happen if they impound an Italian railways wagon. There would probably be an international incident.

I hope that my noble friend will ask that the amendments are withdrawn on the basis that they are unnecessary and that the railways always behave themselves and know where all their wagons are.

Amendment No. 39ZA proposes an arbitration measure, as we discussed on an earlier amendment in the name of the noble Lord, Lord Cadman. Perhaps my noble friend will feel able to make concessions similar to those he made as regards the size of immigration services buildings. I beg to move.

11 p.m.

Lord Cadman: My Lords, these amendments are obviously complementary to those in the noble Lord's previous group and introduce the added benefit of an arbitration system. As I have just been made aware, the Government do not appear to be receptive to any form of arbitration in this context, regrettably preferring simply to provide the Secretary of State with powers.

I believe that the Minister and his advisers in the DETR have not come to grips with the problem of people arriving, even in a train. I trust therefore that consideration will be seriously given to the different problems associated with rail freight compared with road haulage in this context before the Third Reading of the Bill.

Lord Dholakia: My Lords, we on these Benches support Amendment No. 39ZA. In many processes in

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this country, it is normal to allow arbitration and conciliation in trying to resolve a dispute. In this case, the suggestion is valid and it is right that in a disagreement of this nature an arbitrator should be appointed and that his decision should be accepted.

Lord Falconer of Thoroton: My Lords, I shall not deal with Amendment No. 39WA because my noble friend did not address further argument to it.

Amendment No. 39“A seeks to delete subsections (2)(c) and (2)(d) of Clause 33. Subsection (2)(c) refers to the introduction of possible provisions for the detention of a particular rail freight wagon. Subsection (2)(d) contains the power to sell a detained freight wagon. The intention of the two subsections is to reproduce in the rail freight regulations the same provisions as in Clause 30 of the Bill. I should emphasise that safeguards exist which ensure that the person on whom the penalty had been imposed may apply to the courts for the release of the wagon.

Deleting those requirements would seriously undermine the effectiveness of the civil penalty, which is to be underpinned by a power to detain and, if necessary, sell. We see no reason why there should be different provisions for the rail freight industry.

It is to be hoped that it will not be necessary to use this power in many instances, but it is essential that we have a power to detain vehicles and ultimately to sell them if the civil penalty remains unpaid. The power is likely to be used only rarely, where the officer believes that there is a significant risk that the penalty will not be paid in the time-scale allowed by the notice. The purpose of the provision is to ensure payment; it is not to find lost wagons.

Amendment No. 39YA would require any regulation made under this clause to include the provisions set out in Clause 27 relating to the issuing of a code of practice. It also provides that the code of practice relating to rail freight will have to be laid before Parliament before the regulations are published. That is unnecessary, in our view. The Government have based the whole operation of the civil penalty on the code of practice and it would make no sense for us not to issue a code of practice for rail freight operators. Indeed, I understand that the noble Lord, Lord Berkeley, has already been provided with a draft copy of the proposed code of practice.

In any event, the regulations relating to the imposition of the civil penalty on rail freight will be laid before Parliament before they come into force and noble Lords will have the opportunity to debate this issue fully at that stage. Those regulations must be subject to prior consultation.

Amendment No. 39ZA would place a statutory responsibility on the Secretary of State to appoint an arbitrator to resolve any areas of disagreement between him and representatives of the rail freight industry and to make binding recommendations. With respect, that is unacceptable.

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There will always be aspects of the civil penalty that will be unpalatable to the rail freight industry and areas on which it disagrees with the Government. As currently drafted, this amendment would have the effect of allowing the rail freight industry to spin out the consultation process and thus frustrate the imposition of the civil penalty, first, by disagreeing with the Secretary of State and then by providing a means whereby it can lawfully block the arbitrator's appointment. Nothing in the present context is suitable for arbitration.

The Government believe that the arrangements that have been set out for other aspects of the transport industry--

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