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Lord Avebury moved, as an amendment to Amendment No. 12, Amendment No. 13:


Line 6, at end insert--
("( ) If the person to whom directions are given objects to the directions, the Secretary of State may, with the agreement of that person, appoint an arbitrator who shall review the directions and make recommendations and the directions shall be amended to give effect to these recommendations.").

The noble Lord said: My Lords, I am glad to remind noble Lords that on the previous occasion when we debated this matter the noble and learned Lord, Lord Williams, said that all of the points that we then raised were reasonable. However, he did not deal with them in any detail because at that stage the clause was being withdrawn as one of those matters to be referred to the Select Committee on Delegated Powers and

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Deregulation. We have since heard from British Airways in particular that it knows nothing about these provisions. One takes a dim view of that, given that the Government have introduced new rules relating to charges to be imposed on carriers. Presumably, if they did not tell British Airways none of the other airlines knew either. Perhaps the noble Lord will agree when he replies that it is a little off the mark to impose important new financial burdens on airlines without taking the trouble to inform them and give them the opportunity to raise any points that they see fit.

The noble Lord is probably aware that British Airways already pays for escorts on a per diem basis although, as he implied in moving his amendment, some other airlines have challenged those arrangements. That is probably why we need this fresh legislation. British Airways says, I believe reasonably, that it should not have to bear such costs where the passenger's documentation is in order but he is refused admission for some other reason which cannot have been within its knowledge. What is the response of the Government?

The noble Lord said that only two parties could pay these costs: the airline or the Government. It is a matter of natural justice that the airline should not have to pay the costs when it has been through all the procedures suggested to it by the Government. The Minister said that the Government provided training on the requirements. One assumes, as inevitably must happen, that in particular cases the airline has followed all the recommendations of the Government but an individual with good documentation is nevertheless stopped at Heathrow and sent back. Why should the airline have to foot the bill?

British Airways is anxious about the wording of the provisions for several reasons, some of which we debated on a previous occasion. If the reason for the clause is to plug loopholes which allow some carriers to evade the obligations which BA voluntarily assumes the airlines should be told, what are those loopholes? As we noted on the previous occasion, the phrase "one or more" in relation to the escorts means that in theory a direction can specify an unnecessarily large number of escorts, and no mechanism is provided to challenge that decision. We also need to know what is meant by,


    "such costs ... as may be prescribed",

given that the remuneration of escorts is already mentioned on the face of the Bill.

We need to be assured that these powers are to be used sparingly and modestly. Yet I suggest to the Minister that it would be unnecessarily cumbersome if every time an airline objected, it had to seek judicial review. The Minister referred to listening to protests from airlines in particular cases, but I want to formalise that process. For that reason, my amendment provides for an arbitration procedure which is a simple mechanism to allow a carrier to appeal against a direction. If the arbitrator upholds the

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objection, that direction can be amended. I hope that the noble Lord agrees that this is a reasonable and modest amendment. I beg to move.

Earl Bathurst: My Lords, on a number of occasions the Minister referred, obviously, to airports and airlines, as did the noble Lord, Lord Avebury, when moving his amendment. Would Clause 12 and the amendments moved by the Minister and the noble Lord, Lord Avebury, if accepted, cover the Channel tunnel and Eurostar?

Lord Dholakia: My Lords, I support the amendment moved by my noble friend Lord Avebury. There is a need occasionally to be a little fairer in proposing legislation. In this particular case, the noble Lord spoke about the extent to which the Home Office was involved in the training of carriers with regard to the documentation of passengers brought to this country. I am well aware of this. As one who holds a British passport, at various posts abroad I must still undergo rigorous checks about the validity of my passport.

However, putting that aside, if the airlines follow precisely the instructions and training given by the Home Office and the passenger destroys the documentation after landing in this country, we cannot hold the airlines responsible for such action. It is right and proper that in such cases the Home Office should look at other means of recovering the costs rather than asking the airlines to pay.

What consultation on the clause has taken place with airlines and other forms of transport which bring people to this country?

5.30 p.m.

Lord Hacking: My Lords, I have no personal criticism of the Ministers on the Front Bench. However, little or no notice has been given of this new clause of the Bill. As the noble Lord, Lord Cope, correctly cited, this amendment--my noble and learned friend withdrew it after discussion on Report--was tabled only on the Thursday before the Report stage of the Bill on the Monday.

I have consulted two important members of the industry: first, the Board of Airline Representatives (UK)--BAR(UK)--represents a large number of the overseas carriers who bring millions of passengers to this country; and, secondly, British Airways. Both have told me that not only were there no consultations, they did not even know the clause had been tabled until they read Hansard the next day. It is, therefore, not surprising that the air carriers have some concerns.

The noble Lord, Lord Avebury, identified their concern on whether they are expected to pick up the costs of taking passengers back under escort to the country of origin when, for example, the airlines have not been at fault. Noble Lords will remember that under Clause 37 (as it now is) there is release from the provisions in this clause when passengers arrive without proper documents. Specifically, Clause 37(4) states that no charge is payable when the airline operator can show that the passenger in question

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produced the proper documentation at the place of embarkation. The question raised by the airline industry is that if that concession is given--I suggest, correctly given--under the provisions of Clause 37, can they also be given it under the provisions of the new Clause 12?

The airline industry is also anxious to know what tests are to be applied as regards the number of escorts. One would think that two escorts would be sufficient with the passenger being handcuffed on both sides. After all, unless he is a very peculiar passenger, he will have only two arms. But there has been a suggestion that there may be need of medical escorts--a doctor, nurse and so forth--and the airline industry, which is having to pay for the escorting of that passenger to the country of origin, and then for the escorts to return here, wish to know what criteria are to be applied on the number of escorts.

There is also the issue of costs. Subsection (3)(b) of the new clause states that the Secretary of State may introduce regulations requiring the airline to bear such costs in connection with the escort, in particular the remuneration of those who are carrying out the escort duties. Again, that is an area over which the airline industry is reasonably concerned.

Finally, on the adjudication of any dispute between an airline and the Secretary of State, the noble Lord, Lord Avebury, introduced a sensible amendment. In the timetable to which we are working, it may not be possible for my noble friends on the Front Bench to accept that amendment as drafted. For example, it leaves open whether or not the arbitration is to be binding. If it were to be binding it may give some concern to my noble friends on the Front Bench. I ask, therefore, whether my noble friends can accept the spirit of the amendment tabled by the noble Lord, Lord Avebury, and agree that there should be some form of dispute resolution process.

On Report my noble and learned friend Lord Williams referred to judicial review as a means of dispute resolution. But as my noble and learned friend and I know--from his days at the Bar, and from my days at the Bar and as a solicitor--the system of judicial review is hardly geared to deciding such issues as costs, the number of escorts and so on. Under our process of judicial review, the courts rightly will not intervene unless a manifestly wrong decision has been made. It takes a great deal of time to prepare the papers for judicial review. A single judge has to give leave. If the single judge does not give leave, one goes to open court. Even if one could get the case into the courts, having gained the requisite leave for it, the matter could take up to 12 months. That is ridiculous when dealing with an issue which could fall under the new Clause 12. Clearly, there should be a dispute resolution process which can work under a tight timetable. I suggest that it should be non-binding. An arbitrator could give a recommendation to the Secretary of State and he could then make a decision.

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For all those reasons, I hope that my noble friends on the Front Bench will be able to help.


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