Carriers’ Liability (Amendment) Regulations 2023

Lord Ponsonby of Shulbrede Excerpts

Monday 13th March 2023 Lords Chamber

[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?