Carriers’ Liability (Amendment) Regulations 2023
(1 year, 9 months ago)
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Lord Berkeley
That this House regrets that the Carriers’ Liability (Amendment) Regulations 2023 (SI 2023/29) and Carriers’ Liability (Clandestine Entrants) (Level of Penalty: Code of Practice) Order 2023 (SI 2023/30) impose a series of unfair penalties on road carriers for the carriage of clandestine illegal immigrants or asylum seekers; and calls on His Majesty’s Government to introduce a coherent and holistic policy for dealing with migrants and asylum seekers regardless of how they seek to enter the United Kingdom.
Relevant document: 27th Report from the Secondary Legislation Scrutiny Committee
Lord Berkeley (Lab)
My Lords, I am grateful for the opportunity to have a short debate on these carriers’ liability amendment instruments, SI 2023/29 and SI 2023/30, which the 27th report of the Secondary Legislation Scrutiny Committee has drawn to your Lordships’ attention.
My purpose in raising this was to be able to reflect with the Government and other colleagues on the balance between the very strict and tight regulations which will be applied to the road freight and bus industries, in respect of clandestine or illegal immigrants, and the risk and demand and, as we have seen more recently, the very large number of people who have come across the Channel in small boats. It seems that we have a situation where the penalty very much depends on the mode of entry.
For trucks and buses, whether they are going on ferries or through the Channel Tunnel, the penalty is about £10,000 per entry for the so-called responsible person. It is not quite clear what penalty is payable if people smuggle themselves on freight trains—there are regulations going back many years on that—or whether that applies to trucks on trains. With people in small boats, as we have seen in the press quite a lot recently, it does not seem that anybody gets penalised, because the perpetrators cannot be found. You can see on that basis why the organisers, if there are some, have chosen the small boat route. But if we go back quite a few years, before the small boat revolution—if we can call it that—on the Calais to Dover route, a lot of people were being smuggled on trains and in lorries. One can conclude from this that most of the problems are solved, to the benefit of the people who want to manage these things and take people across, by removing the risk of being caught.
It would be useful therefore if the Minister could start by helping me and maybe other noble Lords with definitions. What does “clandestine” mean? What does “illegal” mean in the case of immigrants? Some of them may be asylum seekers. Does it actually mean everyone apart from visitors? Some people seek asylum and I believe that you have to set foot in the UK before you can. Some people obviously melt away.
However, there are other ways in, for example small boats and other places. The documentation mentions big boats and ships; we have talked about buses and trucks and other vehicles through the Channel Tunnel. But where do they have to come from? In other words, are the same regulations going to apply if you are coming from the Republic of Ireland, either by sea or by air, or going across the frontier into Northern Ireland?
It is not my intention to debate the rights and wrongs of who comes from where, but to try to point out the difference in the way the people organising it and some of those who are suffering are being treated by different modes. The report says that 3,838 people came smuggled in lorries last year, whereas the government website says the total was about 45,000. I would be interested to know how many people were smuggled on rail freight through the tunnel and how many came in, as I mentioned earlier, from the Republic of Ireland. Do these instruments apply there? How many people come across the land frontiers? Equally important for these other modes is how many people are caught and fined in the trucks and buses—maybe we do not know. It would be very good to know why the road freight and bus industries are being singled out for some pretty tight regulations in these SIs.
The Explanatory Memorandum says, in paragraph 10.2 on the consultation:
“Most respondents said the levels of penalty for the existing offence should either be unchanged or should be reduced. Stakeholders also emphasised possible adverse impacts on trade if penalty levels were too high”.
However, the Government are doing the opposite. There was certainly a report which I read, I think last week, about the rather short supply of vegetables from Morocco. The customers were diverting the freight to Belgium and Holland to avoid getting caught in the problems coming into the UK.
I would be interested to know why the Government think that the small number—about 4,000—of people allegedly coming in by truck or bus, compared with the 45,000 who are coming in small boats, justify the present pretty draconian penalties, which will only increase the costs of cross-channel freight. I look forward to the Minister’s comments.
Baroness Ludford (LD)
My Lords, the usual channels on the Opposition Benches have just had a quick word with me, saying that the noble Lord, Lord Ponsonby, will be able to contribute to the debate.
On these Benches, we welcome the opportunity that the noble Lord, Lord Berkeley, has given us to debate the regulations and the code of practice. He has comprehensively and usefully set out his concerns. We are concerned that—first, through these sanctions on drivers, and, secondly, in the new Illegal Migration Bill, which is still being debated in the other place—the Government are failing to target the criminal gangs exploiting vulnerable people. Their actions never seem to go upstream to get at the smugglers and traffickers. Does the Minister agree that the Government should be focusing on stopping dangerous crossings by whichever means, whether in the back of lorries or on small boats in the channel, by exercising criminal investigations and prosecutions in co-operation with our European partners? Does the Minister agree that providing safe and legal routes to sanctuary is one way of undermining the criminal gangs involved in people smuggling and trafficking?
The noble Lord, Lord Berkeley, talked about the need for a “coherent and holistic policy”. That theme is shared by many critics of the Government’s many actions on what they call “illegal” asylum seekers, but what my Benches and I would call “irregular” asylum seekers. The Government are flailing around all the time; they never address the need for safe routes and the need to work in partnership to target the criminal gangs. In addition, can the Minister provide an update on what investment the Government are making in officers, training and technology to prevent irregular entry at Britain’s borders?
On the specifics of the code of practice and the regulations, does the Minister recognise the validity of some of the concerns expressed by the Road Haulage Association on the clandestine vehicle checklist? I take the point raised by the noble Lord, Lord Berkeley, that “clandestine” is not defined. The RHA says that the clandestine vehicle checklist is too vague and requires clarity to be of use to operators. That is in the light of the comment in the Explanatory Memorandum to the regulations, that, in response to the consultation:
“Stakeholders welcomed the review of the current vehicle security Code of Practice and supported looking to articulate the required standards more clearly.”
Certainly, in the view of one of the main trade associations, the Road Haulage Association, that aim has not been fulfilled, and I will quote some of the specific points it raises. The first is that
“checking beneath HGVs is not always easy or safe especially if a vehicle has low axles”—
I presume that means, in layman’s terms, that you are expected to crawl underneath an enormous lorry, which sounds not only difficult but potentially unsafe. Then it points out:
“The section that calls for ‘checks inside vehicle for signs of unauthorised access’ is too vague, as it does not list whether trailers should be empty before loading.”
The RHA also says:
“Some checks would also be difficult to carry out with temperature-controlled vehicles as opening them requires a refrigerated environment.”
That seems a fair point. Are drivers expected to carry out checks on a refrigerated vehicle in the middle of a July or August day in France? The fourth point the RHA makes is that
“trailers filled with boxes make it impossible to check the roof for signs of forced entry, due to the impossibility of opening the … doors while on the road.”
Those objections all seem reasonable, understandable and eminently sensible, and I look forward to the Minister addressing them.
Finally, I ask the Minister about the fact that, apparently, the only statutory defence would be duress, as
“it will no longer be a statutory defence to say that an effective system for preventing the carriage of clandestine entrants was in operation”.
In quite a lot of scenarios for regulated activities, the emphasis is often on whether you have an adequate policy and a system, so that, if something happens that should not have happened, you can show that you had all the preparation, systems and safeguards necessary. But apparently that would not apply in this situation; the only defence would be if the driver could show that they were put under duress, even if they had done everything reasonable in the circumstances. It is a very narrow basis for a defence.
I look forward to the Minister responding to as many of my points as possible.
Lord Ponsonby of Shulbrede (Lab)
My Lords, we in the Labour Party support these statutory instruments because we believe we need stronger action to tackle dangerous lorry crossings, crack down on criminal smuggler gangs and secure the UK’s borders. Given that the maximum penalty levels have not risen since 2002, we believe it is right to look at these levels as we are now.
However, the Government have said that these measures are being put in place to tackle negligence rather than criminality. Given this, what do the Government plan to do to tackle criminal smuggling and trafficking gangs using lorries to transport migrants? How many of the 3,838 incidents during the previous financial year do the Government believe have been caused by negligence rather than criminality? How many incidents do the Government estimate these new penalty levels will prevent? How many convictions have the Government secured in the previous year against criminal gangs organising vehicle crossings of migrants? Some hauliers have said that there is little more they can do to ask their drivers to better secure their vehicles while maintaining health and safety regulations. How will the Government ensure that these fines target those who are being genuinely negligent?
The Earl of Erroll (CB)
My Lords, would it be all right for me to say a few words because the last point on duress interests me? I happened to catch a bit of a programme the other night on the Border Force. They had found some people in the back of a curtain-sided lorry. What is interesting is how they got in there. You would not have been able to detect that if the driver or no one else had been present when they got in. They had very cunningly cut the wire. Once they were in, they put it back together again. It was undetectable. I would have thought it would have been very reasonable for the driver to say that he had absolutely no idea that they were in there. In fact, the Border Force said the same to him and that they were not going to go after him as the people were very cunning.
This is the trouble. There will be certain types of lorry where it will be virtually impossible for the driver to detect that people have got in. I do not think that you should have a single defence, virtually an absolute defence. Life is complicated. You have got to be able to have a reasonable excuse.
The Parliamentary Under-Secretary of State, Home Office (Lord Murray of Blidworth) (Con)
My Lords, I thank all noble Lords who have spoken in this short debate and acknowledge the particular concerns of the noble Lord, Lord Berkeley. The measures in these two instruments form part of the Government’s overall efforts to crack down on illegal migration. I look forward in time to debating the latest part of the work, the new Illegal Migration Bill, which noble Lords have referred to and which, of course, is presently being debated in the other place.
The regulations that are the basis of today’s discussions reform the clandestine entrant civil penalties scheme, which has existed since 1999 under the previous Labour Administration. The scheme has not been reformed, as the noble Lord, Lord Ponsonby, rightly observed, and the maximum penalty levels have not changed, in over 20 years. The scheme is designed to complement law enforcement activity against criminals. It does this through tackling negligence by people who are not criminals but whose carelessness none the less means that they are responsible for a clandestine entrant gaining access to a vehicle.
Illegal migration is facilitated by serious organised criminals exploiting people and profiting from human misery. A significant number of people who arrive in the UK by tourist and freight transport routes through concealment in vehicles have had their entry illegally facilitated by organised criminal gangs. This method of entry continues and endangers the lives of those involved. In many cases, this is a result of criminal gangs and opportunistic migrants taking advantage of unsecured, or poorly secured, vehicles to smuggle people into the UK clandestinely. To respond to the point that the noble Lord, Lord Berkeley, raised, “clandestine” and other terms are defined in statute in Sections 31A and 32 of the Immigration and Asylum Act 1999. To answer the noble Lord’s second question: yes, this applies to those travelling from the Republic of Ireland.
I agree with the noble Baroness, Lady Ludford, that we need to stop the dangerous crossings. That is the purpose of the proposed legislation. Sadly, safe and legal routes themselves are no answer as a deterrent. The Government were concerned that the existing clandestine entrant civil penalty scheme was not having the required effect. The data showed that drivers and other responsible persons frequently neglected to take the steps required to secure vehicles and that clandestine entrants continued to use these routes to come to the UK. Action was needed to remedy this.
These measures will disrupt the attempts by organised criminal gangs and opportunistic clandestine migrants to take advantage of unsecured or poorly secured vehicles to enter the United Kingdom illegally. Instead, this may prompt potential clandestine migrants to claim asylum in a safe country and to get quicker access to any help and support that they may require.
On the point raised by the noble Baroness, Lady Ludford, we continue to have productive dialogue with the Road Haulage Association, and I can confirm that our officials are speaking at one of its conferences on 22 March.
We have made it clear that, where checks cannot be carried out, they do not have to be carried out. The checklist that we have created covers all eventualities; some of them will not be relevant in particular circumstances.
As the noble Earl rightly observed, duress remains a statutory defence. That was reflected in the original scheme in 1999. We will consider whether drivers and companies carried out adequate checks as part of mitigation, which could see the level of fine reduced. This would cover the circumstances such as those described by the noble Earl.
I am of course grateful for the support of the noble Lord, Lord Ponsonby, for these regulations. It is for the reasons that I have already described that the United Kingdom operates a scheme to tackle illegal migration. The scheme means that, when clandestine entrants are found in a vehicle, a penalty can be imposed on any responsible person connected to the vehicle in question. In response to the point raised by the noble Lord, Lord Berkeley: yes, these measures match the risk and demand.
The reforms set out in the regulations are born out of the Government’s concern that the scheme is not having enough of an effect. I say that because, during the financial year 2020-21, there were 3,145 incidents where clandestine entrants were detected concealed in vehicles, despite the Covid-19 pandemic causing a lower volume of traffic. This rose to 3,838 incidents during the financial year 2021-22.
Drivers are not taking all the steps required to secure vehicles, and clandestine entrants are continuing to use these routes to enter the UK. It is for this reason that the Government committed to reviewing and overhauling the scheme as part of their New Plan for Immigration. A public consultation on that plan was held from 24 March to 6 May 2021. The Government, as noble Lords will recall, then introduced changes to the scheme through primary legislation in the Nationality and Borders Act 2022. The changes in that primary legislation narrowed the statutory defences available to those who had carried a clandestine entrant. In Committee on that Bill, those measures were the subject of an amendment proposed by the noble Baroness, Lady Hamwee, who is not in her place today. That matter was canvassed during the passage of the Bill.
The 2022 Act introduced a new civil penalty for failing adequately to secure a goods vehicle, regardless of whether a clandestine entrant has been found. The final changes brought into effect by these regulations were made following a further public consultation held between 18 July and 12 September 2022. The Government carefully considered representations made by respondents about the possible impact of our proposed reforms, including on trade, supply routes and recruitment. The Government are committed to working with individuals and companies to support growth while delivering a strong and effective border. In short, we think it is appropriate to increase the maximum penalty levels for the existing offence of carrying clandestine entrants, as they have not changed, as the noble Lord, Lord Ponsonby, rightly observed, since 2002. It is also appropriate to set meaningful levels of penalty for the new offence of failing to secure a goods vehicle, to incentivise compliance with our security standards.
Both reforms have been designed with a view to cracking down on repeated instances of negligence, as opposed to unfairly penalising those who have striven to comply with the regulations. For this reason, the reformed scheme has introduced a strikes system for both offences, geared at targeting repeat offenders, with the highest penalty levels being applied only in cases where repeated instances of negligence are evident. Where a person or company is being fined, we have set out in a new statutory code of practice the mitigating circumstances in which they could be eligible for a reduction in the level of their penalty.
The maximum penalty for an individual responsible person for a first incident of carrying a clandestine entrant will be £6,000 per clandestine entrant. This rises to a maximum of £10,000 for a second and any subsequent incidents in the past five years. The maximum penalties in aggregate will be £12,000 and £20,000 for each offence respectively. The maximum penalty for an individual responsible person for a first incident of failing to adequately secure a goods vehicle will be £1,500. This will rise to a maximum of £3,000 for a second incident in the past five years, and to a maximum of £6,000 for a third and any subsequent incidents in the past five years. The maximum penalties in aggregate will be £3,000, £6,000 and £12,000.
A responsible person being fined for carrying a clandestine entrant could be eligible for a reduction of 50% in the level of their penalty if they have complied with the security regulations. A further reduction of 50% could be applied if they are a member of the civil penalty accreditation scheme. In respect of failing adequately to secure a goods vehicle, a responsible person who is not the driver and who was not present during the journey of the vehicle or the detached trailer to the UK could be eligible for a 50% reduction in their penalty if they acted to ensure compliance with the security regulations. I hope these measures go some way to assuage the concerns that the noble Lord, Lord Berkeley, elucidated. A further reduction of 50% could be applied if the responsible person is a member of the civil penalty accreditation scheme.
For both offences, individuals and companies will be able to apply for means testing to be applied when their level of penalty is being determined. The Secretary of State will be able to take into account those and any other factors they think appropriate in finalising the level of penalty to be levied. Indeed, they will retain a discretion not to impose a penalty at all in appropriate cases. The Government want people and companies to avoid being fined, and they can do so by complying with the security standards. We have set these in the new statutory regulations presently before the House. We have promoted adherence to the standards through further engagement with drivers and industry. This includes relaunching the civil penalty accreditation scheme I just mentioned, through which members are eligible for a potential 50% reduction in any fine.
The Government believe that this package of measures strikes the right balance between recognising the impact of penalties on individuals, companies and industry and incentivising compliance with our security standards and protecting border security. We are focused on delivering a fair and effective immigration system and, as I have said, these measures will allow us to strike the right balance in pursuit of that aim. With all that, I ask the noble Lord to withdraw his Motion.
Lord Berkeley (Lab)
I am grateful to the Minister for his fairly comprehensive response and to colleagues who have contributed to this short debate. I am certainly not against updating the penalties, because penalties are necessary, but there are one or two things about this that still concern me. The Minister summarised all the different people who could be involved in receiving penalties, if offences can be proved, and that reflects the different organisations that the logistics industry has these days, which I think we all accept.