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Lord Nunburnholme: My Lords, perhaps I may ask the noble and learned Lord to speak forward.

Lord Falconer of Thoroton: My Lords, I apologise for not speaking sufficiently forward.

The Government believe that the arrangements that have been set out for other aspects of the transport industry provide sufficient safeguards and we do not believe that it is appropriate to give the rail freight industry special treatment. I urge the House to reject the amendment.

Lord Berkeley: My Lords, I am grateful to my noble and learned friend for that explanation. I cannot say that I agree with every word he said, but he has given us a great deal of food for thought. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 39“A, 39YA and 39ZA not moved.]

Clause 34 [Charges in respect of passengers without proper documents]:

Lord Hacking moved Amendment No. 39A:

Page 24, line 2, after (“vehicle,") insert (“ship or aircraft").

The noble Lord said: My Lords, in the absence of my noble friend Lord Clinton-Davis on duties with the Council of Europe, I rise to move Amendment No. 39A which is tabled in his name.

Like the Minister's Amendment No. 40, this amendment is directed to Clause 34(5). We debated this issue in Committee on 19th July. Therefore I shall briefly remind your Lordships of the curious history behind subsection (5), which was introduced into the Bill only during its passage through another place.

The basic provisions of Clause 34 are set out in subsections (1) and (2). They are that all carriers are liable to a charge of £2,000 if they deliver passengers to this country without a valid passport, or a visa, if required. However, there is a defence if a carrier can show that at the time of embarkation the passenger produced what reasonably appeared to be a valid passport and, if required, a valid visa. This means that if the passport was a forgery, or not related to the passenger, the carrier would not be in breach of the

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provisions of Clause 34 unless the falsity or the wrong identification was “reasonably apparent". These provisos are contained in subsections (4) and (6).

If the matter were to stop there, although undoubtedly onerous on all carriers, the provisions of Clause 34 would have applied equally to all carriers, whether by air, sea, train or coach. However, a special exception was created for train operators and the owners of road passenger vehicles. Those provisions are set out in subsection (5). Subject to the inclusion of the further provision in Amendment No. 40--if it is accepted by your Lordships--the summary of the position under subsection (5) is that if the carrier can show that

    “he had in place satisfactory arrangements",

and all practicable steps had been taken for the passenger to produce the required documents, he has a defence.

The reason why subsection (5) was introduced is apparently that in some nearby countries--France, Belgium and Spain were cited in Committee--it is not lawful to require train and coach passengers to produce the required documents, although apparently it is lawful to require air and ship passengers to produce those documents. Hence, we have the somewhat elaborate provisions of subsection (5), which will be made more elaborate if Amendment No. 40 is accepted.

When the matter was debated in Committee, we were assured by my noble and learned friend Lord Williams of Mostyn that there was no intention to put the airline or shipping industries at a disadvantage. In a letter that my noble friend Lord Bassam of Brighton recently wrote to British Airways, he confirmed that,

    “The intention is not to disadvantage the airlines and shipping companies, they still have their existing defence in subsection (4), but rather to provide some defence for those companies who are unable by law to make the required checks".

The problem is that it does. There are different provisions. Subsection (4) applies to all the carriers but subsection (5) contains new special provisions for train and coach carriers.

The provisions of Amendment No. 40 do not solve the problem. It is perfectly possible that in some country, somewhere in the world, we shall find a similar prohibition against examining documents of those who travel by sea or air. It is inherently unsafe to base our own legislation on the vagaries of the laws of other countries.

The fact is that passengers destroy or mutilate passports during a journey because they want to become stateless or eligible for political asylum. It may also be because they know that although the documents do not appear to be so, they are false. It is in order to tackle these concerns that my noble friend Lord Clinton-Davis tabled the amendment. I beg to move.

Lord Greenway: My Lords, I support the amendment moved so ably by the noble Lord, Lord Hacking. On the face of it, there appears to be a distinct and costly disadvantage for sea and air carriers

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as opposed to train operators and owners of road passenger vehicles. As I see it, Clause 34 automatically grants the equivalent to what is known as the approved gate check status to the train operators and road passenger vehicle owners. It is automatic in the sense that they do not have to work with the immigration authorities in any way, as do the air and sea carriers.

Over the past few years, air and sea carriers have worked extremely conscientiously with the immigration authorities to try to reduce document violations. But there is no blanket let-off which Clause 34 grants to other types of carrier. As I said, it puts them at a disadvantage. It is on the record that when we have discussed carriers' liability over the years, I have always thought that at best it was unfair and at worst amounted to nothing short of extortion. The air and shipping companies have paid out enormous sums in fines. I believe that P&O Stena Ferries has had to put aside something like £13 million to cover the next five years if the present state of affairs continues. That is a disgraceful figure. I know that the present Administration did not introduce it but we are still lumbered with carriers' liability. I believe that serious efforts should be made to deal with those indiscretions by using government-funded immigration officers rather than relying on personnel from airlines or shipping companies who admittedly receive training but who can never be expected to be as efficient as properly trained customs officers and immigration officials.

Lord Falconer of Thoroton: My Lords, as the noble Lord, Lord Hacking, said, the defence contained in Clause 34(5) applies only to train operators or the owners of road passenger vehicles where they can demonstrate that they have in place a satisfactory system for the prevention of the carriage of inadequately documented passengers and have done everything practicable to carry it out.

The defence was constructed to cater for the specific and unique legal circumstances which surround the operation of passenger train, bus and coach services in certain European countries. It reflects the fact that train and road passenger vehicle operators are not allowed in law to carry out the checks required to secure the defence against a carrier's liability charge found in subsection (4) of this clause. There is no such restriction in any country on air and sea carriers. Therefore, there is no logical reason why this defence should be extended to air and sea carriers. We fully understand the concerns of the noble Lord that air and sea carriers may be disadvantaged because there will be a large number of rail and road carriers who are able to do the necessary checks.

Government Amendment No. 40 seeks to ensure that train operators and road passenger vehicle owners cannot take advantage of the Clause 34(5) defence in circumstances where they may lawfully check documents in the country of embarkation and thus are in the position to avail themselves of the Clause 34(5) defence.

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We have met the point of unfairness. We disagree with the noble Lord, Lord Hacking, that it would be appropriate to add air and sea because there is no such restriction on air and sea carriers from checking tickets.

Government Amendment No. 42 gives to the Secretary of State power by order to provide for the non-application of the carriers' liability regime either generally for all passengers embarking on a train in a particular country or in relation to passengers embarking at specified stations in a country. An order under this power may only be made where there is in existence at the time an international agreement between the United Kingdom and the country concerned providing for the exercise of UK immigration control in that country or for the checking of travel documents of those embarking on trains for the United Kingdom. The amendment is intended to enable effect to be given, should agreement be reached on wider juxtaposed controls, to that agreement.

I invite your Lordships to reject Amendment No. 39A and accept Government Amendments Nos. 40 and 42.

11.15 p.m.

Lord Hacking: My Lords, in the circumstances, I shall be happy to withdraw Amendment No. 39A. I would be grateful if the Minister could look at the problems that still face the airline industry under the approved gate check system which was raised by the noble Lord who spoke from the Cross Benches. That is a method under which air carriers can use the defence under subsection (4) because it is a system that ensures the checking of passports in a satisfactory way at the point of embarkation.

Currently there is a four-month delay in the checking process for approved gates. Also, there are some curious decisions. For example, at Frankfurt airport the approved checking system is not accepted because apparently there are glass partitions with space underneath the glass where it is thought that papers could be passed by passengers during the embarkation process. There is no logic in that, and it would greatly assist the airline industry if the Minister could look at that aspect of the matter.

In view of the Minister's answers and in view of his confidence that nowhere in the world is there the same prohibition on the examination of documents by passengers who come in by air and by sea, I beg leave to withdraw the amendment.

Amendment, by leave, withdraw

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