Mr Alan Hurst (Braintree, Labour)

With this it will be convenient to take the following amendments: No. 330, in page 56, line 22, leave out '14' and insert '5'.

No. 329, in page 56, line 22, leave out '14' and insert '2'.

Mr Simon Hughes (North Southwark & Bermondsey, Liberal Democrat)

Amendment No. 330 is an alternative to amendment No. 329. We have moved swiftly to part 7 on offences, which is the last substantive part programmed for consideration today. The amendments relate to the first proposed new offence, which will replace the definition of the offence in section 25 of the 1971 Act with the more widely drawn offence of assisting unlawful immigration to a member state. The second provision in the clause covers the similar but different offence of helping asylum seekers to enter the UK.

The new offences should not be so widely drawn. Various phrases do not appear to have a prehistory in other immigration legislation, and some look as if they will be difficult to understand and interpret, not least because they require an understanding of other nations' immigration law as well as our own. Other phrases are also difficult to work out, such as those in new sections 25(1) and (2) about travel within the state. There is the question of how severe the penalty should be in order to draw up a league table that puts penalties in an appropriate hierarchy so that there are no inappropriately severe ones.

Amendment No. 324 would add ''and for gain'' to the provision on the new offence of assisting unlawful immigration to a member state. We tabled the amendment because we believe that the clause's purpose is to try to stop the illegal trafficking of people, especially women and children for sexual exploitation, as the hon. Member for Walthamstow noted. That is entirely proper, but I have a general question for the Minister. Would it not be more appropriate to include that offence in sexual offences legislation? I understand that such legislation is on the stocks, and that the Home Office has consulted on it and issued a White Paper. The Government may say perfectly reasonably that they want to include that offence in the Bill to catch people early. That is fine, but its eventual destination is the sexual offences legislation, when it is brought before Parliament.

On alternative penalties, the penalty for the offence in new section 25(6) is

''on conviction on indictment, to imprisonment for a term not exceeding 14 years, to a fine or to both, or...to imprisonment for a term not exceeding six months, to a fine not exceeding the statutory maximum or to both.''

The suggestion is that if we have a 14-year maximum penalty for an offence as it is currently described, we shall not follow the nature of the penalties in the Bill or distinguish between the offences of trafficking for the purpose of exploitation, which is extremely serious, and facilitating that, which is a lesser offence. People might be agents or aide and abet down the line, but while some are directly involved in bringing harm to someone, others are either not involved or involved only indirectly.

What thought have the Government given to that differential and what consultations have taken place on whether the Bill provides for the right penalties? Practitioners have told me that there should be different penalties for different offences, and it would be helpful if the Minister told us what consultations have taken place, what responses the Government have received and their justification for the proposed penalties.

Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

This is obviously an important clause, which replaces section 25 of the 1971 Act with four new sections. The current section 25 makes it an offence knowingly to assist illegal entry to the UK or to help someone to obtain leave to remain in the UK illegally by means including deception. The first major change is that the first new section extends the offence

to encompass assisting someone to enter, travel within or remain in any European Union member state in breach of the laws of that state.

The facilitation of illegal entry—the hon. Gentleman has used that phrase—is increasingly the work of organised criminal gangs. Those gangs do not respect international boundaries, and new section 25 will enable the UK to participate in a joint approach to combating the crime on a European, rather than simply a national, basis. That is extremely important if we want to combat the problem effectively.

As the hon. Gentleman said, the second major change is that the maximum penalty for the reformulated and expanded offences is increased from 10 years' imprisonment and/or an unlimited fine to 14 years and/or an unlimited fine. Although the current maximum meets our European obligations, we made it clear that we consider such crimes particularly abhorrent and therefore want a higher maximum penalty. We believe that 14 years is appropriate.

The third change relates to harbouring an immigration offender. That is a separate offence under section 25(2) of the 1971 Act, but it will be subsumed in the new offence because it constitutes assisting someone to breach immigration laws by being in the UK when they have no right to be here.

Amendment No. 324 would limit the offence of facilitating illegal entry to cases where that is done ''for gain''. An exemption to protect people who facilitate such entry for motives other than gain is appropriate in the case of asylum claimants, but we do not believe that there is justification for assisting someone to enter the UK illegally. Such a breach of immigration law should be an offence, whether or not the motivation is profit. The amendment is not only undesirable in principle, but unworkable in practice.

Amendments Nos. 329 and 330 offer a choice of maximum penalty for facilitating illegal entry—two years or five. Only two years ago, the penalty for that offence was increased from seven years to 10 in response to comments from the judiciary that the former maximum was insufficient to deal with the most serious facilitations. Having taken those points into account and to show how seriously we take such activity, we propose 14 years as appropriate rather than 10. I hope that the hon. Gentleman withdraws his amendment.

Mr Simon Hughes (North Southwark & Bermondsey, Liberal Democrat)

How many convictions have there been under the law and what is the range of penalties? The Minister says that the tariff was raised two years ago as a result of representations from the judiciary. Has there been further consultation and has any view been expressed that a penalty of 10 years is not enough? Should the offences of trafficking and of facilitating have the same upper limit? I understand the distinction that the Government draw between the offence that we are discussing and that concerning asylum seekers, which we shall discuss under the next clause, but is there not a case for setting different upper limits for the trafficking offences and the more remote facilitating offences?

Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

I shall quickly answer the hon. Gentleman's question on sexual offences. We are dealing with such offences under other legislation. The current legislation deals with inter-country problems, but an assurance has been given that the issue is being looked at. I do not know how many convictions there have been, but I shall attempt to find out.

On the hon. Gentleman's point about the difference between the offences of facilitating and trafficking, it is important that we send a clear message on the offences. The judiciary commented on the issue and its views, with public opinion saying that we must take firm action, made us decide to set such maximum penalties.

Mr Simon Hughes (North Southwark & Bermondsey, Liberal Democrat)

I shall reflect on what the Minister has said, and I am grateful for the information that she has given. It would be helpful if she came back with the figures on convictions and tariffs, because the debate is wide and important, and it will continue beyond the Committee. The amendment is probing and I am happy to withdraw it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Simon Hughes (North Southwark & Bermondsey, Liberal Democrat)

I beg to move amendment No. 325, in page 55, line 32, leave out from ''Union'' to end of line 35.

Mr Alan Hurst (Braintree, Labour)

With this we may discuss the following amendments: No. 306, in page 55, line 36, leave out ''a member State'' and insert ''the United Kingdom''.

No. 327, in page 55, line 38, leave out ''State'' and insert ''United Kingdom''.

No. 328, in page 55, line 40, leave out from beginning to ''or''.

No. 332, in page 57, line 4, leave out from ''Union'' to end of line 7.

Mr Simon Hughes (North Southwark & Bermondsey, Liberal Democrat)

We are moving down the page to the next issues. Amendment No. 306, which we have tabled with the hon. Member for Woking and his hon. Friends, would ensure that the offence is clearly defined. Amendment No. 325 would remove new section 25(1)(b) and leave the offence as knowingly facilitating

''the commission of a breach of immigration law by an individual who is not a citizen of the European Union''.

The Minister and hon. Members will agree that new section 25(1)(b) is a far more subjective test. It will make it an offence for you, Mr. Hurst, or I to do something that we have

''reasonable cause to believe may facilitate the commission''

of offences, even if no eventual offence is committed. That is rather like the riddle on the theft legislation about whether one can conspire to steal something that is not there to be stolen. Is it right that it should become an offence to do something that one thinks may be illegal, even if it is not?

Amendment No. 306 would limit the provision to UK law rather than that of any EU member state. We shall have a debate in another context on the extradition legislation—European arrest warrants and

so on will be on the agenda—and when the law here should act in relation to occurrences in other member states. Practitioners and others point out that it will be difficult for magistrates and judges here to interpret the immigration law in France, Belgium, Italy, Portugal or elsewhere. It is difficult enough to work it out in this country. The task will be almost impossible and potentially delaying for the courts, so I ask the Minister to get rid of those proposals as they stand. That would also be the effect of amendment No. 327.

Amendment No. 328 would remove the phrase ''travel within the State'', thereby limiting the offence to a law controlling entry to a state or someone being in the state. In theory, all sorts of laws could govern our right to travel within states, yet it is not blindingly obvious which the Bill is aiming at. It would be helpful if the Government explained that point. I do not have the knowledge or expertise to know the answer, but I am told that this phrase is previously unknown in UK immigration law. Is that right? If so, why is it being introduced?

Amendment No. 332 relates to the proposed new offence of assisting entry to the United Kingdom in breach of a deportation order. It should be limited to knowingly facilitating a breach of a deportation order in force, and not depend on subjective assessment of whether the accused has committed an offence. I am sorry that we are in complicated areas of definition. You, above all, Mr. Hurst, know how important it is for the law to be clear, so that people know where they stand. I hope that the Government seriously consider the amendment.

Mrs Angela Watkinson (Upminster, Conservative)

I shall speak to amendment No. 306. Subsection (2) defines immigration law as

''a law which has effect in a member State''.

The amendment would replace ''member State'' with ''the United Kingdom''. The clause begs the question whether our magistrates, judges and juries can be expected to have specific knowledge of, or the ability to interpret, the complex immigration law of other member states. The explanatory notes state:

''This is a measure required to enable the United Kingdom to comply with Article 27 of the Schengen Convention.''

To the best of my knowledge, and the Minister will correct me if I am wrong, this country is not a signatory to that convention. The notes continue:

''It will also assist compliance with a European Directive on Unauthorised Entry, Transit and Residence and its associated Framework Decision, which have yet to be formally adopted.''

The clause suggests that our courts will try cases involving foreign laws. If so, what special training is required? Alternatively, will such cases—like extradition, they are a highly specialised field—be tried only in Bow street court? If only a limited number of judges and magistrates have sufficient knowledge to handle those cases, that may not be the best way to avoid a backlog. I would be grateful for the Minister's clarification.

Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

Amendments Nos. 306, 327 and 328 would confine the offences to actions that breach UK law, but that runs counter to the purpose of the new section. If we accept the amendments, we might as well retain existing section 25 and increase the penalty. A common European approach is necessary and justified; otherwise, we could not implement reciprocal arrangements. Time and again action is demanded on a European level, so being unable to implement reciprocal arrangements would defeat the whole object. Magistrates are required to know the laws of other member states, particularly in this context.

Mr Humfrey Malins (Woking, Conservative)

The Minister says that we already require magistrates to know the laws of other member states. On what authority does she say so? What judicial training courses over the last two years have focused specifically on those matters? I do not believe that such knowledge is currently required.

Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

I shall endeavour to find out further information on training courses. Magistrates must be able to read the certificates prescribed by member states; it is part of the process. We cannot expect intimate knowledge, but awareness of and ability to understand different certificates is important.

Mr Simon Hughes (North Southwark & Bermondsey, Liberal Democrat)

This complicated issue intrigues and slightly troubles me. I understand that English judges, magistrates and district judges enforce English law, European Union law and, in the case of the Bow street magistrate, extradition law. That will be expanded under Government legislation, but their job does not currently involve enforcing the law of other member states. Our jurisdiction does not say that it is an offence here to break the law of another member state. We extradite people if they have committed an offence in another member state; we do not try them here. Surely that must be right.

Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

The point is that, where we have reciprocal arrangements, judges and magistrates must be aware of what becomes European law. There are instances of that, and eventually what we are discussing will become part of it. In respect of the offences that we are debating and reciprocal arrangements, there must be that knowledge. I am happy to pursue the question of any other type of training later, but with regard to including facilitation of breaches of immigration law of other member states, magistrates would have to do what I said to comply with reciprocal arrangements.

An offence of assisting illegal transit across the state does not exist in UK law, but other member states may have laws on that, which is why it was included in the European directive. The reference in new section 25(2) to a law that controls entitlement to travel within the state is intended to cover that and seemed a sensible way to capture the various laws that may regulate illegal transit in other member states. Of course, it is difficult to transit across a state without travelling within it.

Amendments Nos. 325 and 332 would make prosecution for the offence of facilitation extremely difficult. In many cases, the facilitator may not know

the precise provision of immigration law that is being breached. Even where he does know, that would be difficult to prove in all circumstances. However, whether he knows or not, the circumstances may be such that he has reasonable grounds to believe that he is committing some offence.

Under the clause, the prosecution would succeed if it showed that the facilitator had reasonable grounds to believe that he was committing a breach of immigration law. The provision is vital and will become even more so when the offence is expanded to include breaches of the laws of other EU member states. If we are to take action on this matter, it is important to have a robust system for doing so. The amendments would be unworkable in practice, so we cannot accept them.

Sitting suspended.

On resuming—

Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

To sum up, we should be clear about the certification process and how we see the court process working. If a prosecution were taking place we would ask the Government of another member state for a certificate under new section 25(3) of the Immigration Act 1971. A certificate from Italy, for example, would state that it was an offence under Italian law to take someone across Italy from Albania. If we were prosecuting a person in our courts and had evidence that that had taken place, the certificate would prove conclusively that it was an offence and it would not be necessary to revisit the matter in court. That is the idea of the certificate. Magistrates will not know about all the laws of every member state, but the certification process will provide courts with conclusive proof of what those laws state. Any training would be on how the new system worked, not necessarily on the substance of all the laws in other countries.

Mr Humfrey Malins (Woking, Conservative)

If the offence committed in Italy carried a maximum sentence of five years, could our courts sentence up to 14 years, or vice versa?

Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

Yes. I believe that in most cases we would be looking at a number of offences that had been committed, and not only here: evidence could be used from other countries too. As hon. Members know, this type of activity is certainly cross-border and across other member states. When bringing together a case we should have as much evidence as possible. Naturally, the laws that we will apply would be our British laws in our court.

Mr Simon Hughes (North Southwark & Bermondsey, Liberal Democrat)

We may return to some wider questions. Does the Minister accept that there are several difficulties already? First, the offence of crossing Italy to go to Albania—to use her example—might have various component elements to make it an offence under Italian law. For example, a person might have to be over 18, act knowingly or commit the act more than once. Offences are defined in different ways, and a person would have to know that.

Secondly, if an act is an offence in another country, why would it be dealt with here?

Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

May I return to the hon. Gentleman's first point about the certification process? If the offence were to be an offence, it would have to be stated that Italian law provides that taking a person across Italy is not an offence if a person is under 18. The law should be on the certificate to ensure that that does not cause argument in the British court. If an accused person who was under 18 argued that a person had to be over 18 to commit an offence under Italian law, there could be an argument about that, but it would be up to the court to decide. I hope that that helps.

Will the hon. Gentleman remind me of his other question?

Mr Simon Hughes (North Southwark & Bermondsey, Liberal Democrat)

Why would we not send people back to be dealt with in the Italian court?

Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

All other procedures, such as extradition proceedings, may apply—the measure does not overrule that. Organised activities will occur in many different countries. In building a case against an individual, given the severe penalties that we are discussing, it would be in everybody's best interests to get all relevant evidence in one place. In the scenario in which the person was tried here, we would want to take account of other information. Offences might have been committed in other countries, but it may be judged that it would help the prosecution by proceeding in that way rather than another way.

Mr Humfrey Malins (Woking, Conservative)

If we deal with an offence under Italian immigration law that is tried in this country, will Italian rules of evidence apply or will ours? Are we really giving ourselves power of sentence that might be well above what a person might get for the same offence if it were tried in Italy?

Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

If we tried a person in this country, we would believe that they had committed an offence here. However, the inclusion of evidence of offences that we believed had been committed in other countries might strengthen our prosecution case. I emphasise that the point of the certificate is not to pass a judgment on what an individual might have done, but to say that it is an offence to do X in Italy. No judgment would be made about the individual, because the certificate would simply state what is an offence in that country. It would be for the court to decide whether the person committed that offence. For example, if the person who was being prosecuted had been on a long journey, there might be evidence that offences had been committed in several countries. It is important that we have the ability to bring that to the court's attention, so that we can substantiate our evidence that an offence has been committed here.

I hope that that helps to clarify the position.

Mrs Angela Watkinson (Upminster, Conservative)

I wish to press the Minister a little further. Will every court be expected to be competent in dealing with those cases, or are they all likely to be concentrated in a single specialist court, such as that at Bow street?

Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

I expect that many of those cases will not take place in magistrates courts, because of the nature of the offences and the penalties that they attract. However, we hope that the courts will be sufficiently competent to deal with such complicated situations

Mr Simon Hughes (North Southwark & Bermondsey, Liberal Democrat)

This matter raises many interesting points, some of which will be addressed again on clause stand part, and one of which will be raised again in the second of the further group of amendments. I give notice that I will not seek a Division on this amendment.

I understand the argument that trafficking is—by definition—a transnational issue, and that it would be especially useful, for securing a conviction, if one had evidence that more than one frontier had been crossed and that there was more than one jurisdiction.

I still think that issues are raised here that tread new ground. For instance, is this a new type of legislating? The Minister may have an opportunity to reflect on that—or to take advice on it—before the clause stand part debate. I am not aware that we have previously made law in this way, which is outside straightforward domestic law, European Union law and European human rights law—both of which are now applied in our domestic courts—and extradition law, which is when we respond to an application from another country.

The courts are used to taking evidence of what is the law in foreign countries. For instance, in a wardship of a child case, they might take evidence as to what is the law in—let us say—an American state, to work out whether its courts would grant responsibility for the child to the mother. I understand the issue, and we may wish to return to it for the reasons that the amendments prompt.

I ask the Minister to reflect on the fact that it appears that, if this goes through, one could be found guilty in an English court—and the same would apply in a court in Scotland and Northern Ireland—for thinking that one was committing an offence here under, let us say, Italian law, even though one was not doing so. We will convict people who have reasonable cause for thinking—perhaps because somebody has told them—that they are committing an offence under Greek law, even though, in fact, what they have done is not an offence, even under Greek law. That pushes the credibility of what one should be convicted for over a couple of lines, beyond which we would not normally be happy to go. That issue might unite hon. Members of all parties—it is not a party political matter.

We will also need to return to the point about travel within the state. I understand offences relating to entering and leaving states, crossing boundaries and so forth, but I am not aware that it is an offence to travel within the UK. It is an offence to enter illegally, and it may even be an offence to leave illegally, but I am not aware of travel within the UK being an offence. We appear to be introducing something without precedent.

Having listened to the Minister's argument and understood the background to the Government's thinking, I think that we should return to the issues

raised in the amendments. I understand that pressure is coming from European Union initiatives, and I shall return to that matter in the clause stand part debate. For the time being, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Simon Hughes (North Southwark & Bermondsey, Liberal Democrat)

I beg to move amendment No. 331, in page 56, leave out lines 26 to 44.

Mr Alan Hurst (Braintree, Labour)

With this we may discuss the following amendments: No. 307, in page 56, line 28 leave out 'and for gain'.

No. 309, in page 56, line 41 after 'organisation', insert 'approved by the Secretary of State'.

No. 308, in page 56, line 42, leave out '(7)' and insert '(6)'.

Mr Simon Hughes (North Southwark & Bermondsey, Liberal Democrat)

Clause 112 is a portmanteau clause that creates a series of new offences. The amendments relate to the second of those, which is helping an asylum seeker to enter the UK. The last debate concerned assisting unlawful immigration between member states, and the two offences are markedly different for obvious reasons. The amendment would remove proposed new section 25A.

I expect that the Minister's initial objection would be that it is wrong to seek to smuggle someone into the UK as an asylum seeker for personal profit. There is already an exemption in 25A(3), which states that one cannot be found guilty if one is acting on behalf of an organisation that exists to assist asylum seekers. However, let us forget for one moment the point about ''for gain''. Suppose that when I went to Kosovo with the hon. Member for Walthamstow and the former Member for Fareham, Peter Lloyd, and met a family in desperate straits as a result of the civil war. If I got a telephone call a week after my return from one of the family wishing to seek asylum in the UK, it should not be an offence for me to try to get them into the UK. To put it bluntly, I should be entitled to help people to seek asylum if I think it proper. It is immoral to make that an offence.

It would be different if I was acting for personal or corporate gain or profit, and amendment No. 307 addresses that issue. I do not think it wrong for me knowingly to facilitate the arrival in the UK of someone I believe to be an asylum seeker. We have a nonsense system at the moment, as I have endlessly said to the Minister and his colleagues. There is no legal way into Britain for an asylum seeker. If there is civil war in Sri Lanka, Sierra Leone, the horn of Africa, Iraq or Iran, and people from such countries wish to seek asylum, there is no legitimate way for them to put their cases to come to the UK without getting here. If they are honest with the system, there is no way that they can get here legally.

People such as myself have always maintained that one ought to be able to apply for asylum in the UK either in the country from which one is fleeing, or if that is not safe, in the nearest possible country. One should be able to go to the British Embassy, high commission or consulate, a UNHCR office or Red Cross office and say, ''I want to come to the UK.''

That is why we have argued that it would be a good thing for British officials to be on the other side of the channel to process applications for asylum. People in Sangatte could then put their cases to the British authorities and have them dealt with there, ideally under the umbrella of the UNHCR or a similar body.

Apart from the ''for gain'' point, which I understand, I would hope that by the time the Bill becomes law, we shall have removed the provision. If we are to honour our international obligations, under which people are entitled to put a case for and be granted asylum, both of which are legitimate in international law, it should not be an offence to help someone to find asylum here. I do not understand how the first obligation in international law is compatible with making that an offence.

Mrs Angela Watkinson (Upminster, Conservative)

I want to speak to amendments Nos. 307 to 309. I shall discuss amendment No. 308 first, because in that one I sense a slight whiff of success.

The clause refers in subsection (4) to ''subsections (4) to (7)'', but try as I may, I have been unable to find subsection (7). I believe that the previous section ends at subsection (6), so I may have detected a drafting error.

Amendment No. 307 would amend subsection (1) by omitting the words ''and for gain'', a phrase that requires additional explanation. If criminal racketeers conduct such enterprise, clearly they do it for gain—considerable gain, in most cases—and should be punished most severely. However, others who would be subject to the Bill, such as members of an asylum seeker's family or other misguided individuals, might act for altruistic reasons or for the greater good or corporate gain, for example. Does the word ''gain'' in subsection (1) mean only financial gain? Other forms of gain may be involved. Would they be covered, too?

Amendment No. 309 is merely a probing amendment. New section 25A(3) seems to create a defence for

''a person acting on behalf of an organisation which aims to assist asylum-seekers.''

Anyone could create such an organisation, which need not be large and could be a front for criminality. That should be avoided at all costs. We suggest that the Secretary of State must approve the organisation. For example, the Refugee Council and the Immigration Advisory Service, which was established by my hon. Friend the Member for Woking, would obviously be approved by the Secretary of State, whereas others might not. The requirement would tighten up the interpretation of the word ''organisation'' in the clause and would avoid a possible loophole being created.

Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

I hope that I shall be able to give some reassurances. As has been said, the current offence of facilitating the entry of an asylum claimant does not apply to anything done other than for gain. The provision was inserted by the Immigration and Asylum Act 1999. It is a linear descendant of the provision inserted by the Asylum and Immigration Act 1996, which is sometimes referred to as the good Samaritan defence.

I refer first to the example given by the hon. Member for Southwark, North and Bermondsey. Under new section 25A(1),

''A person commits an offence if...he knowingly and for gain facilitates the arrival''

of an asylum seeker. The hon. Gentleman is not talking about illegal entry. If he were to assist someone in making an illegal entry—for example, if he smuggled them in, one way or another, after his visit—that would be an offence. If someone, having entered the UK, reports and claims asylum, an illegal entry has been made, but the hon. Gentleman's scenario is not about facilitating illegal entry in that way.

Once someone has entered the UK, they are an illegal entrant, whether or not they subsequently claim asylum, and the facilitator has committed the offence, whether or not they are acting for gain. Even if the hon. Gentleman were acting from the best of reasons, it would be problematic for him to assist an illegal entry. The offence does not relate to assisting a person who comes to the UK and claims asylum without attempting to avoid immigration control or to pass through illegally. The hon. Gentleman would therefore be covered in the scenario that he has outlined.

The hon. Member for Upminster (Angela Watkinson) referred to the issue of what is, and what is not, ''for gain''. Of course there is financial gain, which is fairly clear, but one could also include services in kind or for drugs, and so on. ''Gain'' would have to expand to include that; it would not be limited just to gains made in cash, for obvious reasons that I am sure we all understand. Without the consideration of gain, there is no offence.

Mr Simon Hughes (North Southwark & Bermondsey, Liberal Democrat)

I should like to compare two examples: the case of someone who comes here as a visitor or student and asks for asylum is covered—they cross the border legally, because they come with status—and that of a Kosovan who could not get a visa and came here intending, from the moment he left Kosovo, to seek asylum. Clearly, as one cannot make an application from Kosovo to come to the UK as an asylum seeker, they would have to cross with no status. I assume that it will still be perfectly lawful for me to help that person to leave Kosovo with no prearranged visa. Such a person should be able to land in the UK and apply for asylum, because otherwise the key and obvious objective could not be met.

Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

The issue is someone passing through immigration control without presenting themselves and saying ''I claim asylum.'' Illegal entry is coming into the country without doing that—arriving and immediately saying ''I claim asylum'' is different.

We recognise, as did the previous Administration, that there may be cases in which people are motivated by humanitarian considerations and provide assistance for people in danger to get here. That is why we resist amendment No. 307.

We do not accept that organised criminal gangs should be free to import people into the United Kingdom with impunity. That would be the effect of amendment No. 331, although I cannot imagine that it was the intention behind it.

The original offence contained a protection for employees of organisations that exist to help refugees. Clearly, individuals who earn a salary could be said to be acting for gain, but not in a way that could be regarded as reprehensible. I am not persuaded that an approved list would be appropriate because it would be difficult to maintain and keep up to date. Our approach towards such good Samaritan cases would be on a case-by-case basis, and it would be inappropriate to have a list. However, we will seek to refine the definition of organisations for the purpose of the clause, and if appropriate, we hope to return on Report with a clearer definition. However, I cannot accept the amendment.

I am extremely indebted to the hon. Members for Woking and for Upminster for their keen proof reading. We can accept amendment No. 308. I hope that, because I shall accept that amendment, the hon. Member for Southwark, North and Bermondsey will consider withdrawing amendment No. 331.

Mr Simon Hughes (North Southwark & Bermondsey, Liberal Democrat)

The hon. Member for Upminster may chalk up her first success, and I wish her many greater ones as her time in the House continues.

The Government's willingness to examine the definition of organisations is welcome. I should be grateful if the Minister would examine the point about ''for gain''. I do not have all the previous legislation in front of me, so I do not know whether the definition of ''for gain'' is explained in that, but we should ensure that when tackling profiteers we do not catch other people who might have an indirect gain, a family advantage or a family reunion.

I was grateful for the Minister's clarification. We understand each other, and understand that honourably assisting an asylum seeker to come to a port of entry or border to say, ''I'm an asylum seeker'' is different from a person who is smuggled into the country.

We may need to examine the subsidiary issue—my hon. Friend the Member for Sheffield, Hallam (Mr. Allan) and I shall do further work on it—of whether there is a failure in the previous listed offence because it does not cover this eventuality by an exemption. By definition, there might have had to be a border crossing outside the United Kingdom in order for a person to get here, and technically an offence might have been committed under the previous section. With that proviso—we will return to it during the Bill's final wrap-up—I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 308, in page 56, line 42, leave out '(7)' and insert '(6)'.—[Angela Watkinson.]

Question proposed, That the clause, as amended, stand part of the Bill.

Mr Humfrey Malins (Woking, Conservative)

I begin by warmly congratulating my hon. Friend the Member for Upminster on her notable success. Hers is the only Opposition amendment that has been accepted, which shows the force of her argument.

The clause breaks new ground, and we must examine it carefully. I summarise my thoughts by saying this: the Government are not on top of the issue. They have not answered points satisfactorily, and they should take the clause away, re-examine it and perhaps deal with these matters in an extradition Bill.

We must be clear what the clause says. In simple terms, it says that a person in this country can and will be tried in this country for aiding and abetting an activity that is an offence not in this country but in another country. It goes on to say that that person will be tried under rules of evidence that may differ entirely from the rules of evidence in the country where the activity is an offence. Furthermore, he may receive a sentence that would be unlawful in the country where the activity is an offence. He may offend if he does something that he believes, wrongly, to be an offence in the country concerned. That is nonsense, as is the fact that he will be tried in this country by courts that are unqualified to deal with issues that may affect the activity that is the crime in the other country.

When asked where the cases will be tried and what the expertise level will be, the Minister answered, disappointingly, that she believed that people would not be tried in magistrates courts because of the important powers of sentence. In that case, why is the offence not indictable only? Why can it be tried in the magistrates courts with a maximum penalty of six months? As the Bill stands, a case can be tried in a rural magistrates court. Complicated issues such as extradition have previously been limited to specialist courts and specialist stipendiary magistrates and district judges. There are only four in London who are qualified to deal with such cases. Those of us who sit part-time on the judiciary are not qualified to deal with such matters.

There is nothing in the Bill to stop cases being tried—yes, tried, not only committed for trial—in any magistrates court in this country. The Minister may say that there is nothing to stop any such case going to a Crown court. One would have thought that the judiciary, magistrates and clerks would be aware of that and would have received expert training. There has not been any such expert training, and none is proposed.

For the reasons that I have given, I do not think that the Government have thought through the clause. They must think about it much more. We shall not vote against it, because I am sure that the Government will recognise that there are real problems of principle as well as detail. I hope that they will take on board those issues and consider whether the matters should more properly be placed in an extradition Bill. On Report or Third Reading, or perhaps in the other place, I hope that they will clarify the situation and make it much more satisfactory.

Mr Simon Hughes (North Southwark & Bermondsey, Liberal Democrat)

I follow the hon. Gentleman by making similar noises of concern about the clause, which introduces three new offences and provides for forfeiture of vehicle, ship or aircraft in the event of any of those offences being committed. We have most difficulty with the first new offence of assisting unlawful immigration. I do not pretend to be an expert in that part of European Union law, but I understand that the offence has been proposed because of the EU directive on mutual recognition of expulsion decisions, on which we are obliged to legislate by the end of 2002. If that is the case, it is entirely proper. However, the offence should be included in an extradition Bill, where we will consider cross-border arrangements for law enforcement and the EU arrest warrant, or in a stand-alone piece of legislation that would have proper parliamentary scrutiny.

We may be in the process of creating Europewide offences, but this is difficult territory. I have not read the full record, but Lord Rooker answered questions about the EU arrest warrant in a debate in the House of Lords yesterday. There is concern across the political spectrum in both Houses about such offences. Whether people are pro-EU or anti-EU, they are concerned that there are common standards, principles, evidence and processes, as well as common tariffs, to which the hon. Gentleman referred. Like him, my hon. Friend the Member for Sheffield, Hallam and I do not propose to vote against the clause, which contains reasonable provisions.

I have questions on the proposals. Am I right in thinking that they set a precedent? Have any other countries in the EU legislated for this, or are we the first? If they have, have there been charges elsewhere in the EU under what I presume is comparable legislation? Have the judiciary—magistrates, district and Crown court judges—been consulted, and have they responded? I would be surprised if they had happily signed up to the legislation, saying that it was uncomplicated and that they were fine about it. Something is wrong with the process if they have not been consulted. All those who are expected to implement the legislation should be consulted. The Bill should not include this legislation. There is a general view that the Government have tacked the provisions into this Bill, perhaps for understandable reasons, when they should be in a general criminal justice or other Bill. Time should be spent getting it right.

Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

On other legislation, section 71 of the Criminal Justice Act 1993 deals with EC taxation offences and has similar certificate provisions. I have listened carefully to everything that hon. Gentlemen have said, but it is important to emphasise that we are trying to enable the UK to participate in a joint approach to combat such crime on a European, not simply a national, level. We are asked over and over again to ensure that we are working with other European member states on this issue, and the legislation is part of that. If we are not able to tackle the issue on a Europewide basis, we will fail in our duty and not respond to public opinion on the matter.

Mr Humfrey Malins (Woking, Conservative)

In what specific way is the measure we are discussing better than extradition?

Ms Rosie Winterton (Parliamentary Secretary, Lord Chancellor's Department; Doncaster Central, Labour)

To start with, it will enable us to achieve reciprocal arrangements with other member states and will pave the way for the UK to comply with the European directive and framework decision on the facilitation of unauthorised entry, movement and residence, which has yet to be formally adopted. If the hon. Gentleman thinks that extradition works brilliantly in tackling the issue, I accept that that is his opinion, but we feel that further measures need to be considered.

I have listened carefully to the points made by Opposition Members but we hope that they will support the clause, because it is an important part of tackling the issue on a much wider basis, as we are asked repeatedly to do.

Question put and agreed to.

Clause 112, as amended, ordered to stand part of the Bill.