Schedule 8 - Maritime Enforcement

Immigration Bill – in a Public Bill Committee at 2:00 pm on 10th November 2015.

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Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 2:00 pm, 10th November 2015

I beg to move amendment 230, in schedule 8, page 114, line 9, leave out “elsewhere” and insert “, at port or as conveniently as possible thereafter”

To limit powers of search to the ship, the port and as conveniently as possible thereafter, not anywhere in the country.

Photo of Albert Owen Albert Owen Labour, Ynys Môn

With this it will be convenient to discuss the following:

Amendment 233, in schedule 8, page 114, line 22, leave out “elsewhere” and insert “, at port or as conveniently as possible thereafter”

See explanatory note for Amendment 230.

Amendment 239, in schedule 8, page 116, leave out lines 4 to 6

To prevent persons accompanying immigration officers carrying out searches in accordance with this part of the Bill.

Amendment 242, in schedule 8, page 116, leave out lines 13 to 18

To remove the immunity from prosecution and civil suit for constables and enforcement officers exercising powers under the Bill.

Amendment 231, in schedule 8, page 118, line 32, leave out “elsewhere” and insert “, at port or as conveniently as possible thereafter”

See explanatory note for Amendment 230.

Amendment 234, in schedule 8, page 118, line 45, leave out “elsewhere” and insert “, at port or as conveniently as possible thereafter”

See explanatory note for Amendment 230.

Amendment 240, in schedule 8, page 120, leave out lines 26 to 28

See explanatory note for Amendment 239.

Amendment 243, in schedule 8, page 120, leave out lines 35 to 40

See explanatory note for Amendment 242.

Amendment 232, in schedule 8, page 123, line 9, leave out “elsewhere” and insert “, at port or as conveniently as possible thereafter”

See explanatory note for Amendment 230.

Amendment 235, in schedule 8, page 123, line 22, leave out “elsewhere” and insert “, at port or as conveniently as possible thereafter”

See explanatory note for Amendment 230.

Amendment 241, in schedule 8, page 125, leave out lines 4 to 6

See explanatory note for Amendment 239.

Amendment 244, in schedule 8, page 125, leave out lines 13 to 18

See explanatory note for Amendment 242.

Photo of Robert Buckland Robert Buckland The Solicitor-General

On a point of order, Mr Owen. This morning I assured the hon. Member for South Shields that a letter would be written. It has indeed now been sent to you and Mr Bone. I hope that that will answer some of the queries that she raised in debate some sittings ago.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

This is a daunting number of amendments, but most relate to extensions with respect to Scotland, Northern Ireland and Wales.

There are three substantive points. First, as the background to amendment 230, schedule 8 inserts new schedule 4A into the Immigration Act 1971. It covers enforcement powers

“exercisable by immigration officers, English and Welsh constables and enforcement officers” in relation to ships. We spoke this morning about the power to stop, board, divert and detain a ship, and about the power to search and obtain information under new paragraph 3. Under new paragraph 3(2) the “relevant officer” may search

“the ship; anyone on the ship; and anything on the ship”.

The provision to which amendment 230 relates is new paragraph 3(8), which states:

“A power conferred by this paragraph may be exercised on the ship or elsewhere.”

“Elsewhere” is obviously widely defined. There is a power to search the ship and anyone or anything on it, which suggests that it is ship-focused, but sub-paragraph (8) is open-ended and provides for a power to search on the ship or anywhere. To some extent the amendment may have a probing function to enable us to understand the reasoning behind the provision, but our concern is that the power is very broad and we seek assurance that it is not intended that the power under the schedule could be exercised literally anywhere, at any time.

Secondly, to give the context to amendment 239, new paragraph 4 deals with the power of arrest and seizure; new paragraph 5 is on protective searches of persons—searches that can be made of individuals to seize and retain items; and new paragraph 6 deals with searches for nationality documents.

Then comes new paragraph 7, which is odd. The “relevant officer” appears pretty well through the Bill and is the officer with the relevant powers, training, duties and so on. New paragraph 7(1) provides for assistants:

“A relevant officer may…be accompanied by other persons”.

Then sub-paragraph (2) creates a very broad power:

“A person accompanying a relevant officer under sub-paragraph (1) may perform any of the officer’s functions under this Part of this Schedule, but only under the officer’s supervision.”

If that means what it says, anybody can exercise powers of search, including searches of people, and other powers without the need for any of the normal training and safeguards around the exercise of that power. On the face of it, simply anybody with the officer who is deemed to be an assistant can carry out all of these functions. That is an extraordinarily wide power. I do not think that exists in other areas of the law. Designating someone as an assistant in that way certainly does not exist in relation to police officers or other enforcement officers. That is a very broad power.

Thirdly, on amendment 242, we turn again to page 116 and the same set of provisions:

“A relevant officer is not liable in any criminal or civil proceedings for anything done in the purported performance of functions under this Part of this Schedule if the court is satisfied that—

(a) the act was done in good faith, and

(b) there were reasonable grounds for doing it.”

That is a very wide-ranging immunity which is as broad as anything I have ever seen. If, heaven forbid, there were a fatality when someone was being held or searched or force was used—as has tragically happened in immigration cases—this would exempt from any criminal or civil proceedings anyone acting in good faith with reasonable grounds, notwithstanding the other common law and statutory defences that would be available. On the face of it, that would prevent a court looking into the exercise of these powers. That is obviously a deep cause for concern. Although there are many amendments, those are the three core issues that run through the set.

Photo of Gavin Newlands Gavin Newlands Scottish National Party, Paisley and Renfrewshire North

We can all agree that we do not want to see anyone attempt to gain illegal entry into the UK by means of being smuggled in an overcrowded boat or vessel. Ensuring that immigration officials have the proper power to carry out their important duties is important not only in terms of enforcing our immigration control but with regards to increasing safety at sea.

That said, part 6 and, in particular, schedule 8 introduce a raft of new powers for immigration and maritime officers. It is only right and proper that we scrutinise those powers appropriately to ensure that the proper powers are being introduced to the correct officers and that they balance appropriately with the liberties that people are entitled to. I am not convinced that these provisions in their current form meet that aim and balance the equipping of immigration officers with the power that they need with ensuring that they treat international citizens with the respect that they deserve. Therefore, the aim of the amendments is to strike that balance between protecting an individual’s liberty and human rights and giving Home Office officers sufficient, important powers to carry out their duties. I accept that this is a difficult balance for the Home Office to strike.

We should be concerned about the regular use of the word “elsewhere” throughout this section of the Bill and what that implies. This in particular relates to the searches that will be conducted into the personal lives of individuals. In earlier sittings of the Committee, we have spoken about the dangers of speculative searches and the Home Office’s poor track record on completing them. I will not repeat the arguments already made but I will stress that these searches could have a significant and deteriorating impact on community relations and social cohesion.

Amendments 239, 240 and 241 make the point that, regardless of what happens with the Bill and the form it ends up taking, regardless of what law is finally passed, we all need to be sure that we have fully trained, capable and appropriate individuals carrying out the checks and enforcement that the law will demand. They will have powers of arrest without warrant, search, arrest and seizure. The Bill proposes that persons wholly unspecified may be able to carry out all these powers without limitation, under supervision of an immigration officer. Any powers under these provisions should be  exercised by immigration officers alone. The amendments will ensure that the Home Office has the appropriate immigration officers carrying out the proper checks. The power and functions relating to this section of the Bill are wide and varied, including arresting without warrant, seizing property and conducting searches. The implications for the individuals concerned are so severe that these functions must be exercised by fully trained immigration officers. There is no excuse for them not to be.

The responsibilities of immigration officers who are operating at sea are arguably more demanding than those who are operating on land. Not only do they have to be qualified in immigration law, but they have to be experienced at dealing with ships at sea. This is an extremely important point. Safety concerns are at stake and I again make the point that we cannot make a half-hearted attempt on who we delegate these powers to. Schedule 8 may not have been one of the most widely discussed provisions in the Bill, but that should not distract our attention from it. Events over the summer have highlighted the danger that exists in trying to gain asylum through a vessel of some sort. Schedule 8 grants officers the

“Power to stop, board, divert and detain” ships for immigration offences. Safety concerns arise in that regard and therefore careful consideration should be given to the schedule and the amendments that have subsequently been proposed.

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

I hope that, with our clarifications and assurances, hon. Members will realise our purpose and intentions. We are taking the power because of a gap in the law. Until now, there has been a small number of relatively isolated incidents involving suspected facilitation in UK territorial waters. However, those incidents illustrate a gap in the legislation. Border Force officers currently have no powers to act unless the vessel is also of customs interest. In those circumstances, they have to pass the information to immigration officers on land and monitor the vessel’s movements while it remains at sea.

We judge that that gap in the law needs to be addressed to reflect the difference between powers that could be exercised for customs purposes and powers that could be exercised for immigration purposes. It is an issue if the powers cannot be exercised in the context of a vessel that is considered to be smuggling people rather than contraband, given the risk that organised crime groups, as we are seeing elsewhere, may over time seek to smuggle in a different way. The purpose of the schedule is to be prepared and to have the right legislative framework in place to be able to respond to any such risk in UK territorial waters.

Amendments 230 to 235 seek

“To limit the maritime search powers under the Bill to the ship, the port and as conveniently as possible thereafter”.

The amendments raise concerns, as the hon. and learned Gentleman, the shadow Minister, and the hon. Member for Paisley and Renfrewshire North have highlighted, about whether the powers could be exercised anywhere on land. For ease, I will simply refer to the part of the schedule that deals with England and Wales, but I assure hon. Members that the same provisions equally apply, in certain other aspects of the schedule, in respect of waters adjacent to the coasts of Scotland and Northern Ireland.

The power to search in paragraph 3 of new schedule 4A only applies to a search of the ship, anyone on the ship and anything on the ship, as the hon. and learned Gentleman highlighted. The Bill does not limit where the power may be exercised in order to ensure that there are no gaps in the power. He was rightly probing and testing as to the intent of the term “elsewhere”. In part, it ensures that there is provision to arrest a person should they jump overboard to evade enforcement officers. Given the nature of the powers that we are seeking to provide, that could be entirely possible, whether they jump into the water or, if the vessel is in more inland waters, on to land. We need to be able to ensure that the provisions are operable in those circumstances. That will not be possible if the provision is limited to a ship or a port. I reassure the Committee that the test in paragraph 3(1) of new schedule 4A to the Immigration Act 1971 connects the exercise of the powers with suspicion regarding the ship. I hope that that connection may be helpful in giving an understanding of what we are trying to get at here.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

This is in the nature of a probing intervention to ensure that I understand the Minister. The search is constrained by new paragraph 3(2) and I understand the reasoning, but there is no power of arrest in the paragraph; there is only a power of search. So sub-paragraph (8) would not help in the circumstance where someone jumps overboard and needs to be arrested. If someone jumped overboard, they could only be searched. I am probing because I do not quite understand the logic, but it may be that I am not quick enough.

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration) 2:15 pm, 10th November 2015

That is connected to sub-paragraph (3), which states:

“The relevant officer may require the master of the ship, or any member of its crew, to take such action as is necessary for the purposes of sub-paragraph (2)(c).”

Obviously, the officer would require the ship to be taken to a port. That is connected to the ability to search, as the hon. and learned Gentleman has highlighted. There may be circumstances, for example, in which someone jumps off a ship and is rescued by officers where a search may be appropriate under the exercise of that power. We are trying to cover such circumstances. I recognise that he is fairly seeking to probe on that, and I hope my answer is helpful.

Amendments 239 to 244 would ensure that only the officers specified in the Bill can use the powers, and would remove the protection of officers from personal, criminal and civil liability. I will address those two points separately. The provision permitting powers to be exercised by accompanying officers reflects existing powers under other legislation—most notably, the powers recently considered by the House in the Modern Slavery Act 2015. The extension of powers to assistants also exists in general for those working alongside customs officers under section 8 of the Customs and Excise Management Act 1979.

In my opening comments I sought to explain the arrangement that Border Force officers have responsibility for revenue protection, as well as for the border, and they utilise those powers when they are on board cutters.  We have therefore sought to ensure that there is no mismatch between customs powers and immigration powers. Other examples in the maritime context include paragraph 5 of schedule 3 to the Criminal Justice (International Co-operation) Act 1990, concerning powers to combat drug smuggling.

The reason why such powers may be given to assistants is not to permit untrained individuals to exercise those powers, but to ensure effective joint working with partner agencies that have at least a basic level of law enforcement training. The measure permits officers from partner organisations who may be working alongside enforcement officers, such as fisheries inspection officers, to assist immigration officers. It is important to emphasise the requirement that such persons must still be supervised.

On the protection of officers against civil and criminal liability, the measure extends only to personal liability; it does not prevent a claim for which an employer may be vicariously liable. When a court considers that officers have acted in good faith and that there were reasonable grounds for their actions, we think it is right from a public policy perspective that they are not held personally liable for carrying out their duties and acting in good faith. There are many other examples of where law enforcement officers are given equivalent protection. I understand that the principle has long been part of English law—prior to this sitting, the Solicitor General and I were discussing that it can be traced back to section 6 of the Constables Protection Act 1750, which I am assured remains in force today. Members may not have anticipated that they would be referring back to certain legislation in Committee, but the Solicitor General has come across the 1750 Act, which I underline.

With those reassurances, I hope that the hon. and learned Member for Holborn and St Pancras will recognise that the measure is not an extension of the law but builds on existing legislative practices and principles. I therefore ask him to reflect on what he fairly said are probing amendments to gain a better sense of our intent and the purpose and nature of schedule 8. I hope that he is minded to withdraw his amendment.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I am grateful to the Minister for those assurances. I wonder aloud how long that immunity provision, however long-standing it is, can survive. The idea that people are immune from criminal law in that way is hard to reconcile with later legislation, but that is a much bigger argument than the one we are having now. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 109, in schedule 8, page 114, line 17, leave out “detain” and insert “retain”.

This amendment and amendments 110 and 112 are minor drafting changes for consistency with language used elsewhere in the Schedule and have no substantive effect.

Amendment 110, in schedule 8, page 118, line 40, leave out “detain” and insert “retain”.

See the explanatory statement for amendment 109.

Amendment 111, in schedule 8, page 122, line 6, leave out “(in England and Wales or elsewhere)” and insert “in the United Kingdom”.

This amendment is a minor drafting change for consistency with the language used in the equivalent provisions for England, Wales and Scotland.

Amendment 112, in schedule 8, page 123, line 17, leave out “detain” and insert “retain”.—(James Brokenshire.)

See the explanatory statement for amendment 109.

Schedule 8, as amended, agreed to.

Clause 37 ordered to stand part of the Bill.