Special Standing Committee
Tuesday 20 April 1999
(Afternoon)
[Part III]
[Mr. John Maxton in the Chair]
[Continuation from column 772]
1.20 am
On resuming
Mr. Peter Bottomley: Will the Minister kindly make it clear whether his answer suggested that the amendment was not necessary because the standard of proof in it was equivalent to that that the Secretary of State would have to have in mind? Or does he oppose the amendment because it would require a higher standard of proof than his answer conveyed?
Mr. Hoon: I made it clear that a civil standard of proof was required.
Mr. Bottomley: We must therefore assume that cases will be determined on the balance of probabilities, and not beyond reasonable doubt. I suspect that my hon. Friend the Member for Hertsmere will wish to return to that point, and I am almost certain that it will come up on Report and in debates in another place. The penalties will be high; £2,000 is the minimum. Unless, we can make the penalties variable, I suspect that the Minister's reply will not find favour either in the House or in another place.
Mr. Clappison: This has been a useful debate. Several organisations that submitted evidence to the Committee are particularly interested in the issue, and we have obtained more information from the Government than we did before.
I am interested in the Minister's account of the Government's relations with the FTA and the RHA. I am in favour of good relations between those bodies and the Government, but I am not sure that there has been unadulterated pure love between them. A press release issued by the FTA and RHA stated that claims by the Government that drivers are either culpable because they accept bribes or at best negligent because they do not check their loads are nonsense and gravely offensive to the industry. It said that Government comments accusing the industry of negligence were made by the Minister responsible for immigration the Under-Secretary in the House on Monday, and that the Minister would be steering the parliamentary path of the Bill, which proposes to fine innocent drivers and operators £2,000 per illegal immigrant discovered in their vehicles.
We hope that there will be smooth relations between Government and the industry, but that will depend on the Government listening to the legitimate concerns of lorry drivers and the road haulage industry. They are worried about the procedures that the Bill will put in place.
My hon. Friend the Member for Worthing, West is right. On every issue that the Committee considered, things stack up against lorry drivers. The penalty is high, and the additional penalty will be the same as the first penalty. We now know that the Secretary of State will determine everything according to a civil standards of proof, so lorry drivers will not have the protection of the higher, criminal, standard of proof. Defences will be made available to drivers, but it will be difficult for them to use them in practice. It appears more and more as though a regime of strict liability will be imposed on lorry drivers.
I suspect that others will determine those issues, and that they may come before the courts. I am pleased that the Minister referred to the statement on the front page of the Bill that is required by the Human Rights Act 1998. If he had not done so, I would have brought up the subject myself. It states:
When the learned views of outside organisations about the points of due process that arise in the amendments are put, it is incumbent on Ministers to take some care in responding to those concerns and to consider them very carefully.
I know that the Minister will have thought carefully about his reply. I could tell by the way in which he was giving it. But Ministers cannot just steamroller things through when they have given such undertakings in the Bill. It is easy for them to give such undertakings, but it will not necessarily be they who have to face up to the consequences. Such matters may come before the courts, as the hon. Member for Hallam pointed out. It is far better to examine them in detail in a Committee and try to get them right, thus avoiding the costs, problems and embarrassment of court cases.
I do not know what the fate of the provision will be. I certainly would not pretend to give a decided opinion on whether it will eventually be found to be compatible with human rights requirements. But I do not think that the way in which things are stacking up against the lorry drivers will be entirely helpful to the Government's cause. Whatever the result may be in terms of the human rights consequences, it does not make it look any fairer to lorry drivers to push through a draconian regime.
I have listened carefully to what the Minister had to say, but again I shall press the amendment to a vote. This is a serious issue, and the lorry drivers will want us to reflect carefully and to express their concerns. The best way to do that is through a vote.
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The Committee divided: Ayes 6, Noes 11.
Division No. 4]
AYES
Allan, Mr. Richard
Bottomley, Mr. Peter
Clappison, Mr. James
Faber, Mr. David
Lewis, Dr. Julian
Syms, Mr. Robert
NOES
Blizzard, Mr. Bob
Gerrard, Mr. Neil
Hall, Mr. Mike
Hall, Mr. Patrick
Henderson, Mr. Ivan
Hoon, Mr. Geoffrey
Ladyman, Dr. Stephen
Lock, Mr. David
O'Brien, Mr. Mike
Pickthall, Mr. Colin
Singh, Mr. Marsha
Question accordingly negatived.
Mr. Clappison: I beg to move amendment No. 463, in page 13, line 31, at end insert
`if the person in control of the vehicle, ship or aircraft at the time of its embarcation knew, believed or had reasonable grounds for believing that a clandestine entrant was present in the vehicle, ship or aircraft and failed to take reasonable steps to prevent their arrival in the United Kingdom'.
The Chairman: With this it will be convenient to take the following amendments: No. 466, in page 14, leave out lines 7 to 11.
No. 471, in clause 20, page 14, line 35, leave out `suspecting' and insert `believing'.
Mr. Clappison: We now come to another important subject. The amendment concerns the important subject of the lorry driver's [Interruption.] Perhaps the Minister can contain the enthusiasm that he displayed on the last group of amendments until he has heard what the amendment is about, which is the important subject of the lorry driver's knowledge of the presence of the clandestine entrant. As the Bill stands, there is no requirement for a lorry driver to have any knowledge, belief or even suspicion of the presence of a clandestine entrant in his vehicle for the question of liability to arise.
Once the clandestine entrant's presence is linked to the responsible person, that person is liable for a penalty, as we now know, unless he can avail himself of a defence under clause 20. We shall come to that in due course, but in brief, it requires the responsible person to show that he had no suspicion of the presence of the clandestine entrant. There are also other hurdles to be surmounted.
The amendment explores the question of whether we should require some form of knowledge on the part of the lorry driver, and consider whether he has failed to take reasonable steps. That is a perfectly reasonable proposition to explore. The lorry driver's knowledge is an issue that many of those who gave evidence to the Committee commented upon and wanted us to explore.
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Subsection (2) makes a responsible person liable for a penalty. The amendment would qualify that by providing that he would be liable only if at the time of embarkation he
"knew, believed or had reasonable grounds for believing that a clandestine entrant was present in the vehicle, ship or aircraft and failed to take reasonable steps to prevent"
the arrival of the clandestine entrant. That does not require a lorry driver to know. It would be sufficient for him to believe or to have reasonable grounds for believing that there was a clandestine entrant in the vehicle.
That formulation of knowledge, belief or reasonable grounds for believing was drawn up fairly carefully. It is pitched at a lesser state than knowledge; belief or reasonable grounds for believing will do to trigger the liability. It has been deliberately pitched in that way to try to tempt the Minister. Obviously, one wants to make things as fair as possible for the lorry driver, but the amendment has been drafted to make it as tempting and realistic as possible for the Minister. I hope that he will be able to think very carefully about it. I will see as I go along how far I can tempt him.
As the Minister will know, belief is short of knowledge. Belief would be the state of mind of a person a lorry driver, in this instance who says to himself, "I cannot say that I know for certain that there are clandestine entrants in my vehicle, but there can be no other reasonable conclusion in the light of all that I have heard and seen." That is belief. If the lorry driver had that state of mind, liability would be triggered.
In a bid to attract the Minister's approval, the formulation in the amendment goes even further than that. It also includes "reasonable grounds of believing" . That is intended to cover the case of a driver who says to himself, "Despite all that I have seen and heard on this journey, and what has apparently been going on, I refuse to believe what my brain tells me is obvious." Belief in that sense, in the sense in which it is meant in other fields of the law, should be the minimum requirement. It should not go any further than that but it is framed in those terms to make it attractive to the Minister.
The point at which we draw the line, where we say that what has happened should not be enough to attract liability, is mere suspicion. That would cover the lorry driver who says to himself, "I suspect that there may be clandestine entrants in my vehicle, but on the other hand, there may not be." That state of mind would not be enough. We shall examine that case on a later amendment to a provision that requires a defendant to show that he did not have reasonable grounds for suspecting that a clandestine entrant was, or might be, concealed in the trailer. We shall come to that important subject in due course.
The second limb of the amendment is about taking reasonable steps: a lorry driver would be liable only if, having become aware of the presence of the clandestine entrants, he failed to take reasonable steps to prevent their arrival. What is reasonable would depend on the circumstances. In considering what is reasonable in the circumstances, considerable allowance should be made for the situation in which a driver finds himself. We have not sufficiently considered the position of drivers, who would want Parliament to consider the matter from their point of view; I am sure that hon. Members will be assiduous in that respect.
No lorry driver should be expected to do anything that puts his own health and safety or that of others, including clandestine entrants, at risk. A later amendment deals specifically with that matter, but it is relevant to ask what are reasonable steps for a driver to take to prevent the arrival of clandestine entrants once he has become aware of their presence. The driver will be travelling across a foreign country or at a foreign port when he makes the discovery. Informing the foreign authorities the port authorities, internal authorities or the police may be a reasonable step to take, but that depends on the circumstances. If the lorry driver becomes aware of the presence of the would-be clandestine entrants when he is on the ship, it would be a reasonable step for him to inform the master of the vessel and the port authorities.
It may be reasonable not to expect much more than that. People in other walks of life who are neither lorry drivers nor Members of Parliament would consider those reasonable steps for someone to take in such circumstances. In both limbs of the amendment, matters concerning the mental state of the lorry driver, his awareness of the clandestine entrants and the question whether he has taken reasonable steps to prevent their arrival are for the Secretary of State, and a proper legal process should be available to the lorry driver.
The absence of a requirement for the Secretary of State to prove any knowledge on the part of the lorry driver, including my extended definition of knowledge, is a noteworthy feature of the system which has attracted interest among those submitting evidence to the Committee. I would appreciate he Minister's considered response to that point. I hope that he will feel free, just for once, to respond more positively than he has to previous amendments. I await his reply with anticipation.
Amendment No. 466 would delete the provisions of subsection (7) which, subject to the defence afforded by clause 20, make it immaterial whether the responsible person knew of the presence of the clandestine entrants. My arguments for amendment No. 463 also support this amendment and I shall not burden the Committee by repeating them.
Amendment No. 471 relates to the defence provided by clause 20(3). It refers to grounds for suspicion rather than for believing. My earlier arguments also apply to this amendment, but the first of the three defences in clause 20 must be considered in conjunction with the other requirements in the clause because the defence is cumulative. Each of the limbs of clause 20(3) paragraphs (a), (b) and (c) have to be proved by the responsible person. I shall discuss that issue later when we debate the defence mechanism in clause 20.
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