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Earl Russell: My Lords, I should like to support the points made by the noble Lord, Lord Berkeley, in relation to Amendment No. 36A. It is only necessary to look at passing freight trains and see the multifarious origins of the wagons that make it up to see that the noble Lord is right about the facts.
In the lay mind--and I admit only in the lay mind--there is a clear link between liability and responsibility. That link has been very much widened by the growth of liability, for example in American law. But the imposition of carrier's liability on the multifarious freight trains risks widening it to the point where it gets beyond the limits of eyesight. That is rather dangerous. It creates the nightmare of a billiard ball series of exchanges of claims of liability down the line which would make rail privatisation look a model of simplicity. I do not think we want to go down that road.
Lord Cadman: My Lords, following what has just been said, the point has already been made that there is much difficulty in implementing the codes of practice where the responsibility for implementation rests with those remote from our shores and who obviously have little interest other than that of delivering freight by road or rail.
The effect of the civil penalties on lorry drivers would be most likely to encourage them to check their vehicles and loads before arriving on our shores. But with regard to railway services, the scope for doing the checking is limited and rests with foreign railway administrations. We hope the amendments will prevent some of those problems and I support them.
Lord Falconer of Thoroton: My Lords, I have dealt with the first two amendments which deal with consultations in relation to the code of practice and consequential amendments to that. I believe the noble Viscount, Lord Astor, supported the amendment and welcomed the concession.
We believe that we are consulting and making progress. That causes the noble Earl some mirth, but that is what we are doing and the measure of our confidence in it can be shown by the fact that we are prepared to put the requirement on the face of the Bill. That deals with the point about the obligation to consult the industry. We enter into the consultations in a spirit of genuinely trying to get the best results in relation to the code of practice.
The effect of Amendment No. 37 would be to delete subsection (4) of Clause 28 which requires the Secretary of State, in determining whether a particular system is effective, to have regard to the code of practice. Amendment No. 35 proposes that we should delete altogether the reference to the code of practice. I am not sure where the noble Viscount, Lord Astor, stands on that. He proposed it and on the other hand congratulated us on saying we would consult about it. However, we shall take him at his word.
The net effect of Amendments Nos. 35, 36 and 37 would be gravely to weaken the civil penalty and to make its implementation much more difficult for both the immigration authorities and for carriers. Without a code of practice there would be no guidance to carriers on the measures they might take to prevent clandestine illegal immigrants. From the point of view of enforcement, if it is a defence to have a system for preventing carriage of clandestines, rather than an effective system", then enforcement would become impossible. Anything could be called a system" and would satisfy the defence requirement. I urge the House to reject the amendments.
I turn to Amendment No. 36A. Clause 28 already provides two defences: one is duress and the other is the maintenance of an effective system. The effect of Amendment No. 36A would be to add a third defence. It would come into effect where the carrier could show that he had a system, no matter how ineffective, in place and had taken all reasonable steps to procure its implementation. It is not a sensible defence. The whole point behind the introduction of the civil penalty is to reduce the number of clandestine entrants arriving in the United Kingdom concealed in vehicles, ships or aircraft. We intend to achieve that aim by encouraging the owners, drivers and operators of such vehicles to take responsibility for the security of their vehicle and the loads they carry.
The defence proposed by the amendment would undermine the whole concept of a civil penalty. It would absolve carriers from their responsibilities for ensuring that they had effective systems in place for preventing the carriage of illegal entrants to the United Kingdom and implementing those systems. It would certainly not solve the original problem which the civil penalty is being introduced to tackle. The fact that an increasing number of clandestine entrants arrive in the UK and become a drain on the public purse is self-evident. It would make the problem worse, and I urge noble Lords to reject the amendment.
I deal with two or three other points raised in the debate. The noble Viscount, Lord Astor, asked, rightly, about the French authorities. Should we be talking to them? My right honourable friend in another place has spoken to his French counterpart, M Chevenement. There have been talks at official level, both locally and nationally. Steps have been taken by the French authorities, for example to improve the security of the secure area in Calais. I hope that we have already taken that particular matter into account. I wholly agree with the noble Viscount that it is important that such consultation continues.
The noble Viscount also asked whether there had been consultation within government. There has been consultation with the Department of the Environment, Transport and the Regions--which was the phrase that the noble Viscount was striving for when he sought to describe the present organisation of government--and the Department of Trade and Industry.
The noble Earl, Lord Russell, I believe unfairly, suggested that the Government should have thought who would be liable in relation to particular carriers. If the noble Earl looks at the provisions of Clause 26(5) to (7)--which I am sure he has--there we specifically identify who is responsible.
The noble Viscount, Lord Astor, asked about the roofs of vehicles and the apparent contradiction between the draft code of practice and guidance given by the Health and Safety Executive. The roofs of vehicles is the favoured point of entry. A code of practice and system that does not require that to be checked will be ineffective. The point is being pursued at the moment with the Health and Safety Executive. There are a number of ways of checking roofs, for example by gantries, cameras and other systems. All these methods are being looked at and need to be, and will be, discussed with the industry. We are alive to the valuable points that the noble Viscount made.
Finally, in response to my noble friend Lord Berkeley, we are aware of the COTIF agreement, the particular circumstances of rail freight and why the Bill provides for the application of the civil penalty only after the making of further regulations and detailed consultations. We propose that the rail freight operator should be caught. We are also considering whether the operator who is responsible for taking the trains through the tunnel should be liable, but we wish to consult about that before we come to any conclusion in relation to it.
Viscount Astor: My Lords, before the noble Lord, Lord Berkeley, decides what to do with his amendment, I am grateful to the Minister for the assurances that he gave in relation to my amendments, which were the hook on which to hang a debate about the code of practice. I am grateful for his assurance that consultations will take place with the industry so that a workable, effective and reasonable code of practice for the industry is produced.
Lord Berkeley: My Lords, before my noble and learned friend sits down finally, I am not sure about the position of rail freight and who is responsible. A lot of work is to be done in determining who is a train operator, who is a consignor and everything else. I shall carefully study his words and hope that we can have further discussions before Third Reading. I beg leave to withdraw the amendment.