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Lord Cope of Berkeley: My Lords, I apologise for interrupting the Minister. He has spoken of deterring those who may abuse the system who are not genuine asylum seekers. However, it also deters genuine asylum seekers. We are absolutely at one in relation to deterring those who would abuse the system. This amendment does nothing to weaken the deterrent in that sense. It only weakens the deterrent on genuine asylum seekers where they are carried. However, it is also extremely unfair on the lorry driver or the carrier concerned if he actually turns out to have carried a genuine asylum seeker.

Lord Bassam of Brighton: My Lords, I have listened with interest to what the noble Lord has said.

2 Nov 1999 : Column 790

However, I return to the point that we believe that this amendment would significantly weaken our defences. We cannot do anything that would give encouragement to clandestine entrants and to drivers or owners or operators of vehicles to lower the level of security measures which they must take and which the civil penalty is intended to encourage.

In the context of the need to take those security measures and to make appropriate checks, the question of whether any concealed individual might or could make a successful asylum claim or a claim for protection under the ECHR is simply irrelevant. The checks are designed to ensure that no one is concealed; no one should be there. If the checks locate any concealed person, given that the person concealed will already be in a country of safety, they will have no need to travel to the UK to make a claim. We do not accept that there is an obligation to facilitate the travel here of persons who propose to claim asylum under the 1951 convention or protection under Article 3 of the ECHR.

In relation to clandestine entrants, we do not accept that the ECHR would require us to refund penalties even if the clandestine entrant eventually obtains Article 3 protection. The fact that a person, once here, has a right not to be removed is irrelevant to the question of whether the person responsible took proper precautions to prevent their carrying clandestine entrants generally. If they are faced with a person who wishes the driver to take them concealed into the United Kingdom, they should refuse. There is no reason for anyone to come to the United Kingdom concealed, as opposed to coming openly. Moreover, in most cases, the clandestine entrant will attempt to enter the United Kingdom from other member states of the EU who have a strong commitment to considering claims for protection. Such states are likely to be responsible under the terms of the Dublin Convention.

It is true that there is provision for carriers' liability charges to be refunded where an asylum application is successful. However, the circumstances are very different. There is a great degree of control over fare-paying passengers entering aircraft and ferries, so the scope for illicit travel is low.

The purpose of the penalty is to ensure security and to ensure that clandestine entrants are properly regulated and checked before they have an opportunity to enter the United Kingdom. We believe that the amendment would encourage drivers to take risks by not bothering to make proper checks.

I turn to the question raised by the noble Viscount, Viscount Astor, as to the level of consultation. We have consulted very carefully over the codes or practice. Indeed, we have had a good deal of discussion and consultation with the industries that are affected----the FTA, RHA, Eurolines, International Transport Union and the EWS for rail. I am happy to give a commitment that this is a continuing process. We wish to continue the helpful discussions and negotiations about the content of the draft code of practice.

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I return to my earlier point. The civil penalty is aimed at a much less secure situation. It is designed to encourage checks by drivers to prevent generally the carriage of clandestine entrants. This is of paramount importance. The motives of individuals who may be concealed are irrelevant to our consideration of this part of the legislation.

I urge your Lordships to assist us in strengthening our position in terms of protecting against clandestines, and to reject the amendment.

Lord Dholakia: My Lords, before the Minister sits down, he mentioned that there had been a number of consultations with the firms involved. Can he give some indication of their reaction and the outcome of the consultation with the Home Office?

Lord Bassam of Brighton: My Lords, it is always difficult to summarise and I should hate to get it wrong. There is an appreciation and an understanding of the scope of the problem. I accept fully that our proposals will not satisfy and meet the concerns of all of those with whom we have consulted. But in terms of drawing up a code of practice and making that code of practice effective--and making the legislation effective--there is an understanding. As I said, we are more than happy to continue those consultations so that we can better perfect the code of practice.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 24:

Page 20, line 2, at end insert--
("( ) The requirement of subsection (2)(a) may be satisfied by consultation before the passing of this Act.").

On Question, amendment agreed to.

Clause 31 [Defences to claim that penalty is due under section 29]:

Viscount Astor moved Amendment No. 25:

Page 20, line 13, at end insert--
("( ) It is also a defence for the carrier to show that the clandestine entrant was subsequently admitted to the United Kingdom and granted protection under the Refugee Convention or the Human Rights Act 1998.").

The noble Viscount said: My Lords, everything that the Minister said improved our argument, not his. The amendment is carefully drafted; it does not encourage bogus asylum seekers; it removes an anomaly from the Bill that the Minister admitted exists at the moment; it protects genuine asylum seekers; and it protects drivers and carriers. I should like to seek the opinion of the House. I beg to move.

7.12 p.m.

On Question, Whether the said amendment (No. 25) shall be agreed to?

Their Lordships divided: Contents, 117; Not-Contents, 121.

2 Nov 1999 : Column 792

Division No. 1


Addington, L.
Aldington, L.
Alexander of Tunis, E.
Alton of Liverpool, L.
Annaly, L.
Astor, V.
Avebury, L.
Barker, B.
Belstead, L.
Brabazon of Tara, L.
Brentford, V.
Bridgeman, V.
Burnham, L. [Teller]
Byford, B.
Carlisle, E.
Carnegy of Lour, B.
Carnock, L.
Clancarty, E.
Clement-Jones, L.
Cochrane of Cults, L.
Colwyn, L.
Cope of Berkeley, L.
Courtown, E.
Craigmyle, L.
Cross, V.
Darcy de Knayth, B.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Ellenborough, L.
Fairfax of Cameron, L.
Falkland, V.
Fookes, B.
Gardner of Parkes, B.
Geraint, L.
Gisborough, L.
Gladwyn, L.
Goodhart, L.
Greenway, L.
Grey, E.
Hamwee, B.
Harmar-Nicholls, L.
Harris of Greenwich, L.
Harris of Richmond, B.
Henley, L. [Teller]
HolmPatrick, L.
Hood, V.
Hooper, B.
Hooson, L.
Hylton, L.
Jacobs, L.
Kimball, L.
Kingsland, L.
Kinnoull, E.
Laird, L.
Lawrence, L.
Leigh, L.
Lester of Herne Hill, L.
Limerick, E.
Lindsey and Abingdon, E.
Linklater of Butterstone, B.
Lucas of Chilworth, L.
Luke, L.
Lyell, L.
Mackie of Benshie, L.
McNair, L.
Maddock, B.
Mar and Kellie, E.
Massereene and Ferrard, V.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Monk Bretton, L.
Montrose, D.
Morris, L.
Mountevans, L.
Moynihan, L.
Napier and Ettrick, L.
Newby, L.
Northbrook, L.
Northesk, E.
Norton, L.
Norton of Louth, L.
Onslow, E.
Oxfuird, V.
Palmer, L.
Park of Monmouth, B.
Pearson of Rannoch, L.
Razzall, L.
Redesdale, L.
Rennard, L
Renton, L.
Roberts of Conwy, L.
Rodgers of Quarry Bank, L.
Rowallan, L.
Russell, E.
St. John of Bletso, L.
St. John of Fawsley, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Skidelsky, L.
Stodart of Leaston, L.
Swinfen, L.
Taverne, L.
Teviot, L.
Teynham, L.
Thomas of Gwydir, L.
Thomas of Walliswood, B.
Thurso, V.
Tope, L.
Wallace of Saltaire, L.
Watson of Richmond, L.
Wilcox, B.
Williams of Crosby, B.
Wise, L.
Wynford, L.
Young, B.


Acton, L.
Ahmed, L.
Alli, L.
Amos, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Blackstone, B.
Blease, L.
Borrie, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Carmichael of Kelvingrove, L.
Carter, L. [Teller]
Chandos, V.
Clarke of Hampstead, L.
Cledwyn of Penrhos, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Watford, L.
Ewing of Kirkford, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gainsborough, E.
Gale, B.
Gilbert, L.
Goldsmith, L.
Goudie, B.
Gould of Potternewton, B.
Grabiner, L.
Graham of Edmonton, L.
Grantchester, L.
Grenfell, L.
Hacking, L.
Hardy of Wath, L.
Harris of Haringey, L.
Harrison, L.
Hayman, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L. (Lord Chancellor)
Islwyn, L.
Jay of Paddington, B. (Lord Privy Seal)
Jenkins of Putney, L.
Kennedy of The Shaws, B.
Kennet, L.
King of West Bromwich, L.
Kirkhill, L.
Lea of Crondall, L.
Lipsey, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Longford, E.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller]
McIntosh of Hudnall, B.
Mackenzie of Framwellgate, L.
Mallalieu, B.
Massey of Darwen, B.
Merlyn-Rees, L.
Milner of Leeds, L.
Molloy, L.
Monkswell, L.
Montague of Oxford, L.
Morris of Manchester, L.
Orme, L.
Paul, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Sainsbury of Turville, L.
Scotland of Asthal, B.
Sefton of Garston, L.
Serota, B.
Shepherd, L.
Sheppard of Liverpool, L.
Shore of Stepney, L.
Simon, V.
Stoddart of Swindon, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Thornton, B.
Uddin, B.
Varley, L.
Warner, L.
Warwick of Undercliffe, B.
Whitty, L.
Wilkins, B.
Williams of Mostyn, L.
Woolmer of Leeds, L.
Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

2 Nov 1999 : Column 793

7.23 p.m.

Clause 41 [Bail hearings for detained persons]:

[Amendments Nos. 26 and 27 not moved.]

Clause 48 [Procedure]:

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