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Lord Cope of Berkeley moved, as an amendment to Amendment No. 21, Amendment No. 22:

Line 60, leave out (", or removing offences from,").

The noble Lord said: My Lords, I have no need to describe what this amendment does because the noble and learned Lord the Attorney-General has already explained its origins. I have no need to commend it to your Lordships because the noble and learned Lord the Attorney-General has already done so and

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mentioned his acceptance of it. I beg to move, as an amendment to Amendment No. 21, Amendment No. 22.

Lord Renton: My Lords, I support what my noble friend Lord Cope of Berkeley has said and I add briefly to that. We find in subsection (10) of the proposed new clause that,

    "The Secretary of State may by order"

do various things. In our legislation we occasionally allow that to happen, but mostly to deal with administrative matters. However, here it is suggested that criminal offences can be removed merely by order. That, I think, is unusual and unacceptable. Therefore I think that the amendment which my noble friend has moved, and which is supported by the noble Lord, Lord Goodhart, is an important one.

Lord Goodhart: My Lords, I am most grateful to the noble and learned Lord the Attorney-General for that concession. I am sure that the Delegated Powers and Deregulation Committee will be as well.

Lord Hylton: My Lords, I think that this is a welcome amendment. But when the noble and learned Lord speaks further on it, will he say whether he expects that even a few prisoners now serving sentences will be released as a consequence?

Baroness Williams of Crosby: My Lords--

Lord Williams of Mostyn: My Lords, I reply to that point immediately because the noble Lord, Lord Avebury, raised this question on a previous occasion. My answer remains the same; namely, that given the time sequence and the likely sentences to have been imposed--the noble Lord discussed this and explained it--it is unlikely that anyone is still serving a sentence of imprisonment. However, I mentioned--I repeat this--that if any particulars were brought either to the attention of the noble Lord, Lord Bassam, or to myself, we would look into them immediately. As far as I am aware, no such particulars have been brought to our attention.

Baroness Williams of Crosby: My Lords, I revert for a moment to Amendment No. 21 and to what the noble and learned Lord the Attorney-General said about stopping in a country. For the moment I do not want to pursue the matter of people stopping somewhere on their way to this country. Rather, I ask the following question. Do the administrative instructions, which I understand are given to the Crown Prosecution Service--we are grateful for the information that was provided by the Home Office on this matter--extend to people who are travelling through Heathrow with the purpose, for example, of going to a destination in Canada? There have been a number of cases of people who have been on their way to Canada to join other members of their family who have been prosecuted under the earlier procedures, the counterfeit Act and so on. Can the Minister tell us whether as a result of Clause 28 it is now unlikely that

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such people will be prosecuted but rather permitted to continue on their journey and be dealt with by the Canadian authorities?

Lord Williams of Mostyn: My Lords, I think that the best course is for me to procure the guidelines to the Crown Prosecution Service, provide a copy to the noble Baroness, and, as always, lodge a copy in the Library.

On Question, Amendment No. 22, as an amendment to Amendment No. 21, agreed to.

On Question, Amendment No. 21, as amended, agreed to.

Clause 30 [Code of practice]:

Lord Bassam of Brighton moved Amendment No. 23:

Page 20, line 1, after ("must") insert ("--
(a) consult such persons as he considers appropriate; and

The noble Lord said: My Lords, under Clause 30 the Secretary of State must issue a code of practice to be followed by any person operating a system for preventing the carriage of clandestine entrants. The effect of Amendment No. 23 would be to make it mandatory for the Secretary of State to consult such persons as he considers appropriate before laying the code of practice before Parliament. The noble Lord, Lord Berkeley, raised this issue at Report stage and the noble and learned Lord, Lord Falconer of Thoroton, undertook at that time to table a government amendment covering this point.

The Government are fully committed to consultation and dialogue with industry representatives in the development of the code of practice and Amendment No. 23 seeks to reflect this commitment. Amendment No. 24 makes it clear that any consultation that the Government have undertaken prior to the coming into force of the Act will count towards the Secretary of State's obligations to consult before issuing a code of practice.

The Government have been in consultation for some time with the road haulage industry about the contents of the code of practice for road freight and we think it only right that the amendment to the Bill should provide for this consultation to be taken into account in respect of the Secretary of State's obligations. I commend these amendments to the House. I beg to move.

7 p.m.

Viscount Astor: My Lords, I do not know whether the Minister wishes at this stage to deal with Amendment No. 25 standing in my name, which is

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grouped with this amendment, or whether it is intended that it should be degrouped and dealt with at another stage.

Lord Bassam of Brighton: My Lords, I am quite happy for the noble Earl to speak to his amendment now, following which I will respond.

Viscount Astor: My Lords, we discussed Amendment No. 25 at an earlier stage. It puts in a defence for a carrier if that carrier can show that the entrant was subsequently admitted to this country and granted protection under the refugee convention or the Human Rights Act. This amendment not only gives some protection to carriers but also eradicates an anomaly that we feel is apparent in the Bill.

Perhaps I could at this stage ask the Minister about the code of practice. I understand that since Report stage not much progress has been made in regard to the consultations. I note that the Minister will be seeking expert advice. Can he confirm that there are two different codes for road and rail and that the advice will include those two different codes? It would be helpful if the Minister could at this stage say what progress has been made on the code of practice.

Baroness Williams of Crosby: My Lords, I briefly address Amendment No. 25. As the Ministers will know, we have on a number of occasions reverted to the issue of what would happen if a clandestine entrant made himself known immediately as an asylum seeker or was proved later to be one. It has always seemed to us profoundly unfair that those who carry, without any intention of doing so, people who later turn out to be genuine asylum seekers should be treated on all-fours with those who deliberately bring in people intending to be in breach of our immigration laws and indeed intending to be illegal entrants. At present the Bill makes no such distinction between the two categories.

Amendment No. 25 is very cautiously worded. It makes plain that the carrier would not receive any form of protection from penalties if he, either knowingly or unknowingly, brought in somebody who intended to come to this country without declaring himself to be an asylum seeker, or if that person was not subsequently granted asylum. It is, therefore, a very narrowly and cautiously drawn amendment. It makes clear that what is proposed will only hold in the case of somebody who is subsequently admitted to the United Kingdom, and that in that event, and only in that event, the fine which would otherwise be payable would retrospectively be returned.

The amendment is designed very carefully within the context of the refugee convention or the Human Rights Act 1998. Very strict penalties would fall upon harbingers who brought in a clandestine entrant other than on the strongest possible grounds under the provisions. They would be penalised very heavily; they might even put their lorries or other forms of transport at risk.

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In the circumstances, we believe that this is a modest request for a reasonable level of refund to those who would otherwise be penalised for bringing in somebody who turned out to be a genuine asylum seeker, genuinely accepted in this country. The amendment should commend itself to Ministers.

Lord Bassam of Brighton: My Lords, we have for some time considered Amendment No. 25. It seeks to introduce an additional defence against the civil penalty where the carrier can show that the clandestine entrant has been granted refugee status or protection under the European Convention on Human Rights.

As we have said on a number of occasions during our discussions on the civil penalty, the Government understand the genuine and sincere concerns which underlie such amendments as this. However, I believe that the amendment would damage the effectiveness of the civil penalty in combating the problem of clandestine illegal entry and would not benefit genuine asylum seekers.

This Government have a strong and honourable human rights record and remain fully committed to honouring their obligations under the 1951 convention as and when refugees reach the UK. However, there is no obligation on the United Kingdom, or on any other government, to facilitate the travel here of persons who propose to claim asylum under the 1951 convention or ECHR protection under Article 3.

The civil penalty is intended to address the large and increasing problem of clandestine illegal entrants. Many of these clandestine entrants subsequently claim asylum and indeed travel here with that intention. However, only a very small proportion have their claims accepted. Other provisions in the Bill are intended to deter the increasing number of persons who are travelling to the United Kingdom with the intention of using a claim for asylum as a means of establishing themselves for economic betterment rather than genuinely fleeing persecution. At the moment, such persons increasingly use clandestine illegal entry.

The Government do not believe that the deterrent effect of the civil penalty can be diluted in this way. Nor can we dilute the message to drivers, owners and operators of vehicles about the security measures they must take which the civil penalty is intended clearly and in a very straightforward way to encourage.

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