Clause 41 - Maritime enforcement

Nationality and Borders Bill – in a Public Bill Committee at 2:00 pm on 28th October 2021.

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Question (this day) again proposed, That the clause stand part of the Bill.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

I remind the Committee that with this we are discussing the following:

Government Amendment 82.

Amendment 144, in schedule 5, page 74, line 30, at end insert—

“provided that the relevant officer may not do any of the things mentioned in sub-paragraph (2) where they would risk the welfare or safety of persons on board the ship.”

This amendment would require officers to assess welfare risk before stopping or boarding a ship, requiring it to be taken elsewhere or requiring it to leave UK waters, and not act if doing so would exacerbate these risks.

Government amendment 83.

Amendment 145, in schedule 5, page 75, line 8, at end insert—

“(7A) The Secretary of State must publish a list of States and relevant territories with which agreement has been reached for the purposes of sub-paragraph (7) within 30 days of the date of Royal Assent to this Act, and the Secretary of State must update that published list from time to time.”

This amendment would require the Secretary of State to publish which states or territories she has agreed arrangements with for returning or removing asylum seekers to, within 30 days of Royal Assent.

Amendment 146, in schedule 5, page 76, line 24, at end insert—

“(9) A relevant officer may only exercise powers under this paragraph if they have passed relevant training, including training on the requirement to exercise powers under this paragraph in accordance with the provisions of the Human Rights Act 1998.”

This amendment would require the relevant officer to have passed relevant training before acting under these powers, and only acts with regards to the Human Rights Act.

Amendment 148, in schedule 5, page 77, line 18, at end insert—

“(7) A relevant officer may only exercise powers under this paragraph if they have passed relevant training, including training on the requirement to exercise powers under this paragraph in accordance with the provisions of the Human Rights Act 1998.”

This amendment would require the relevant officer to have passed relevant training before acting under these powers, and only acts with regards to the Human Rights Act.

Amendment 147, in schedule 5, page 78, line 12, at end insert—

“(10) A relevant officer may only exercise powers under this paragraph if they have passed relevant training, including training on the requirement to exercise powers under this paragraph in accordance with the provisions of the Human Rights Act 1998.”

This amendment would require the relevant officer to have passed relevant training before acting under these powers, and only acts with regards to the Human Rights Act.

Amendment 149, in schedule 5, page 78, line 32, at end insert—

“(c) the act was carried out in accordance with the provisions of the Human Rights Act 1998.”

This amendment would require the relevant officer to only act with regards to the Human Rights Act.

That schedule 5 be the Fifth schedule to the Bill.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

In terms of schedule 5, let me just say that clause 42 is one of the six drafted as placeholder clauses, as indicated in the explanatory notes and memorandum for the Delegated Powers and Regulatory Reform Committee. It was drafted as such in the interests of transparency, to make clear our intention to bring forward substantive provisions on working in the territorial seas. The placeholder clause is now to be replaced by new clause 20.

The Government’s clear position has always been that permission to work is needed for all foreign nationals intending to work in the United Kingdom landmass—that includes all UK waters. New clause 20 will bring legislative clarity: migrant workers wishing to work in the territorial seas or internal waters of the UK will need permission to do so. To obtain that permission, they will need to apply for a visa under the points-based system in the same way as when coming to work on the UK landmass.

New clause 20 will clarify the legal framework, but will not change the existing position that migrant workers need permission to work in UK waters. As such, the new clause does not invent a policy change and its effect should be negligible. The new clause does not impact on those engaging in innocent passage or crew who are covered by section 8 of the Immigration Act 1971.

Government amendments 126 to 128 are minor and technical. They are intended to ensure that the regime I have just talked about can be enforced.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

Order. Apologies, but I think you have strayed into the debate on schedule 5, which includes Government amendments 126, 127 and 128 and clause 43 stand part. I appreciate that there are a lot of different moving parts.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I apologise if that is so, Ms McDonagh. The groupings on the selection list are not clear, because they are talking about schedule 5. I am happy to leave that there and return to it separately in a moment.

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

Despite the Minister’s request, I would like to speak to amendments 144 to 149, which seek to address a couple of pretty serious issues: the immorality and the impracticality of the Government’s approach to the policy of pushback.

As regards Australia, the United Nations special rapporteur expressed real concern that the policy could intentionally put lives at risk. We have also seen the reports on those who lost their lives as a result of pushbacks in the Mediterranean. Clearly, the Government do not want to risk death or injury. Ministers have told us repeatedly that the objective of the legislation is to prevent drowning in the channel. Amendment 144 therefore seeks simply to put that commitment in the Bill.

I heard the Minister’s comments earlier, but a constant theme throughout our debate over the past few days has been that we identify real problems with the Bill and the Minister says, “Oh, don’t worry, we’ll sort it out.” We are trying to say, “If we’re in the same place on the issue, let’s sort it out by putting something on the face of the Bill.” Amendment 144 would do that by requiring officers not to act under powers granted by proposed new paragraph B1(2) if they risked the welfare of those on board. It would simply ensure that an officer who wants to stop a ship, board it or require it to be taken elsewhere in the UK or internationally and detained or to leave UK waters must first consider the implications for those on board. Given that we are in the same place in our intentions, I hope the Minister can accept amendment 144.

Amendment 145 addresses the issue of practicality. Clause 41 is disturbing enough in itself, but it also reflects a wider problem with the Bill. The Government are trying to talk tough and grab headlines but with proposals that are actually undeliverable and that will not solve the problem of people smuggling that we all agree needs to be tackled. We have discussed offshoring and third country returns on previous clauses, and here we are again. Amendment 145 seeks to press the Govt on the issue.

In schedule 5, proposed new paragraph B1(7) makes it clear that the Government can proceed with the policy of pushback only where the relevant territory

“is willing to receive the ship.”

So where are the agreements? Amendment 145 would require the Home Secretary simply to publish a list of states with which she has secured agreement under sub-paragraph (7) to send ships with asylum seekers to, and to do so within 30 days of Royal Assent. That is not 30 days from today; that is 30 days from Royal Assent. That is a considerable amount of time. The Government have put a lot of thought into the Bill apparently, although there seem to be a lot of last-minute amendments. The Minister has said repeatedly that he does not want to provide a running commentary on negotiations. Let me reassure him: we do not want a running commentary. We just want some indication that there are agreements, or agreements in the pipeline, but there absolutely do not seem to be any. That is key.

The Government have so far failed to secure any agreements for returning asylum seekers. Instead, they encourage rumours that they are so close to securing an agreement with one country or another, but every country that has been mentioned has slammed those rumours. Rwanda said it had no agreement with Denmark, whose Government have been condemned by the African Union —an entire continent—in the strongest terms possible. The African Union said that offshore processing amounted to “responsibility and burden shifting” and criticised European attempts to extend border control to African shores as “xenophobic and completely unacceptable.” As my hon. Friend the Member for Bermondsey and Old Southwark pointed out, the UK Government were rebuffed by Albania. The Albanian Foreign Minister told the press:

“Albania will proudly host 4,000 Afghan refugees based on its good will, but will never be a hub of anti-immigration policies of bigger and richer countries. We have instructed our Embassy in the UK to demand the retraction of this fake news.”

There are not just no agreements, but the Government are managing to offend countries around the world by implying that they are prepared to enter into agreements when they are clearly not. How many other countries are the Government deciding to burn bridges with over this issue? When will they come clean on this empty rhetoric?

Amendment 145 is intended to be helpful. We want to see transparency and, at the end of this process, to give the Government the opportunity, which they have so far failed to take, to publish the agreements they have secured. I hope that by accepting the amendment the Minister can prove us wrong in our doubts about the Government’s work in this area, and that he will agree that this information should be published well before the Bill takes effect.

Amendments 146 to 149 seek to ensure that officers adhere to the Human Rights Act 1998 and have completed relevant training before searching asylum seekers. These amendments relate to officials carrying out searches of people during maritime enforcement for documents, evidence of crime and other purposes. They seek to ensure that those officials have received training that is relevant to the task, and at all times are adhering to the Human Rights Act 1998.

As we have discussed many times in Committee, those fleeing persecution and danger to build new lives in the UK are likely to be victims of violence and trauma. They are vulnerable, and personal searches in particular could be extremely difficult or upsetting. Schedule 5 allows for officials to search a person, but forbids them to

“remove any clothing in public other than an outer coat, jacket or gloves.”

That is welcome as a bare minimum, but there is no stipulation or description of what can be done in searches in private, so this amendment seeks to ensure that the Home Office designs and delivers training to officers to ensure they are sensitive to the needs of the vulnerable people they may search. Additionally, it would ensure that all those searches are conducted with consideration given to the Human Rights Act and the right to a private life, to encourage the use of these powers only in extreme circumstances and when absolutely necessary.

Again, I draw the Minister’s attention to the lived experience of those who have come to our shores. In 2015, Women for Refugee Women published a report, “I Am Human”, which details the impact of searches on those who have experienced sexual violence. The searches triggered mental health problems, flashbacks and traumatic memories because people felt handled and scared by the process. When addressing my earlier amendments, the Minister sought to reassure me on these points too, saying that the Government would of course be compliant with the Human Rights Act and would take account of all the issues I am raising—fine. So why not put that commitment on the face of the Bill?

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

It is a pleasure to follow my friend, the hon. Member for Sheffield Central. When there are no safe and legal routes —or very few, as we have discovered throughout our many debates in this Committee—refugees will travel by unsafe means. We leave them no other choice. An estimated 40,000 refugees and other migrants died between 2014 and 2020 in the process of moving between countries, so as you said during a previous Bill Committee sitting, Ms McDonagh, we all of course want these dangerous crossings stopped.

We need to establish a network of the safe and legal routes the Government keep claiming the Bill is all about. But if it was about safe and legal routes, the Government would not be spending so much time, energy and money on introducing this so-called pushback policy for vessels found in the English channel. In the Bill, they refer to ships, but they have stretched the definition of what a ship is beyond recognition: it is now anything that appears to float. I feel the need to emphasise that for the hon. Member for Stoke-on-Trent North—I see his ears pricking up at the mention of the word “Stoke”. Given his comment that he is happy to holiday in Greece, and that refugees should therefore just stay there, he clearly thinks people are arriving here on cruise ships. He really ought to look into this issue a bit more before he casts another vote or speaks another word. The Bill specifically talks about

“any other structure (whether with or without means of propulsion)”.

That is because people are making these perilous journeys on the flimsiest of vessels, so desperate are they.

Let us not sanitise things by talking about the pushing back of boats, ships or vessels of any description. Let us call it what it is: a policy of pushing back people—human beings. That is who we are pushing back. Who are these people? They are not, as the Home Secretary disgracefully claimed yesterday, economic migrants who just want to stay in UK hotels. Several very well-respected refugee organisations have spoken to me this morning to express their anger over those words, because as the Home Secretary knows, it is not true. The Home Office itself, over which she presides, accepted that 98% of those who arrived on boats in 2019 were asylum seekers, so I repeat: it is not true.

Who are these people, then? Migrant Voice and Amnesty International, in their evidence to their Committee, said that they are often babies; children; pregnant women; people who are ill; people with physical or mental incapacities; people suffering the traumas of past slavery, torture, or the frightening journeys they are on or have taken; or people who are afraid. Guess what? Young men, with the exception of being pregnant, can also be all of those things. It is clear that it takes just one person to panic or misunderstand an instruction for lives to be in jeopardy—the lives of all those aforementioned people.

One of the most shocking things of all—I challenge the Minister to justify this—is the total absence of criminal or civil liability in exercising these powers. Negligence is overlooked and recklessness forgiven, as long as it was “done in good faith”. That is absolutely disgraceful. The Bill refers to the “relevant officer” not being liable, so if 50 people drown because of a reckless pushback attempt, the Home Secretary will not pay a penny in compensation. Is that correct and is there any justification for that?

Much in schedule 5 will depend on the stance of the French authorities in respect of channel crossings. As the hon. Member for Sheffield Central said, we have not heard of any agreements or discussions with our European neighbours. In fact, it appears that Government amendment 83 would allow the Secretary of State to order a ship to be returned to France even if France has not agreed to it. I await the French response to that with interest.

When I first heard about plans to push back people on boats, my immediate response was, “Well, that can’t be right. Surely maritime laws say there is a duty to rescue people at sea.” I said that instinctively, because we all instinctively know that we have a moral duty at least to rescue people in distress, particularly at sea—don’t we? That is why we have long-established rescue services—often voluntary—across the world, whether the RLNI, which has been spoken about repeatedly today, or the Cairngorm mountain rescue team. We know that when fellow human beings are in danger, regardless of how they got into that trouble or who they are, we want to rescue them.

Let us not forget that this is not just about instinct or morality; the duty to rescue has attained the status of customary international law and is enshrined in four binding international conventions addressing the issue. I think others have named them, so I will not, unless the Minister really wants me to. They all cover different areas of rescue, but when combined they impose a general duty to rescue those in distress at sea. Three of the four require state parties to establish search and rescue operations.

The Minister may well argue that if these poor, desperate people are putting themselves in this position, there is no duty to rescue, but the 2006 amendments to the international convention on maritime search and rescue and the international convention for the safety of life at sea make it clear that the duty of rescue applies regardless of the circumstances in which a person is found. The duty therefore applies just as much to a person who contributes to—or even causes—their own distress as to a person who takes all reasonable precautions. We all applaud the adventurous, plucky solo sailors circumnavigating the globe or crossing the Atlantic but, rightly, nobody has ever argued that they should be left to drown if they are in danger because they have put themselves in that position.

International conventions are simply obligations that the UK Government seem happy to flout—after all, there is little in the way of punishment for breaking them. However, the Minister has stood up several times and assured us—among a lot of things—that his Government are determined to abide by international obligations. I am struggling to understand how he can then justify giving power to the Secretary of State to do things in breach of the United Nations convention on the law of the sea in schedule 5.

How can we take any of his reassurances seriously when we are not provided with any insight into how various provisions can be lawful, and when he now proposes to give the Secretary of State express powers to dispense with international law? International human rights law, however, is an obligation we are bound by. Court action for compensation or restitution can be pursued against a state. We are legally obliged to consider the right to life when it comes to the duty to rescue. Yesterday, in response to a question from Baroness Chakrabarti, the Home Secretary said:

“let me just emphasise that none of this is illegal”.

However, as always, and like the Minister, she can emphasise all she likes, but on the Opposition side of the House and across the sector, we are looking for something substantive to back up these assertions.

The Minister might be interested to know, or may already know, that there is an active case pending before the European Court of Human Rights: S.S. and others v. Italy. It relates to the deaths of 63 migrants on a boat that was left to drift in the Mediterranean in 2011. The outcome is keenly awaited and will determine how the Court finds on these issues in the future.

Is not Britain supposed to be a stable, wealthy and well-respected set of nations with a reputation for maritime greatness? Are the Government really intent on rubbishing that long tradition, which has been established over hundreds of years? At one time, they sang that Britannia ruled the waves. Now, they seem to simply waive the rules.

Photo of Jonathan Gullis Jonathan Gullis Conservative, Stoke-on-Trent North

It is an honour to follow the hon. Member for Glasgow North East, and I am delighted that she is using the word “Stoke-on-Trent”. It is wonderful to hear it mentioned by hon. Members from across the House, and I hope that we will spend much more time talking about the city of Stoke-on-Trent.

I will discuss clause 41 and schedule 5. As we heard from His Excellency the Australian High Commissioner in the evidence session, pushback was one of a range of methods used to deter people from making the dangerous journey. There is no single approach that works on its own, and the clause adds to the raft of measures already in place. We already have in the Bill increased prison sentences and the idea that if someone enters the country illegally, it will count against their application. The clause says that if someone makes an illegal entry or attempts to do so, there could be pushback.

Of course, we acknowledge that pushbacks are not simple; they are dangerous and need to be thought through carefully. In the current legislation, pushbacks can already take place, as the Home Office has announced. There is a small legal window for that to happen, and it is up to the commander on the boat to make a decision on whether a pushback is safe to do. I believe that we should give confidence to commanders to know that this country has their back when they fulfil their duty to the people who elected the Government, and who therefore wanted the Bill delivered.

Ultimately, we know that Monsieur Macron was terrified by the threat of money not ending up in his pocket. The idea was that the French were so busy not doing their job and allowing boats to make the dangerous journey—some people in my patch would even have said that the French were aiding such crossings. It is not for me to say whether that is true—I am sure there are questions that could be answered—but, ultimately, we know it is election year in France. My hon. Friend the Member for North Norfolk mentioned earlier today in the main Chamber that the French were seizing British maritime boats over fishing, but they are not seeking to do enough when it comes to illegal economic migrants making the dangerous journey across the English channel. We are asking that boats are pushed back to a safe place.

Let us not forget that His Excellency the Australian High Commissioner said that when the Australians were using the method of pushback, they were using military vessels to stop what they described as rickety wooden boats. We would be doing it with rubber dinghies in some cases, which means that, in his opinion, there is not as much danger to the pushback as what was undertaken by the Australian navy. That is from someone who has actually lived that experience and gone through it, and he is obviously an extinguished lawyer who understands the legal implications. Ultimately, the Government are ensuring that we add more strings to the bow in order to deter people from making illegal crossings and to try to stop people risking their lives.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

I think the hon. Gentleman meant “distinguished”. To clarify the record, will he take this opportunity to correct his mistake this morning and perhaps even issue an apology to Islington Council, which he so sadly besmirched?

Photo of Jonathan Gullis Jonathan Gullis Conservative, Stoke-on-Trent North

I do not believe that is in scope of the clause, but I will not apologise to Islington Council. I made it very clear that, by the end of 2020, it had not taken any refugees. Obviously, Stoke-on-Trent had taken far more. The statistics back up what I am saying, and I am more than happy to have exchanges with the hon. Gentleman on the Floor of the House at another time, if he wishes.

Photo of Anne McLaughlin Anne McLaughlin Shadow SNP Spokesperson (Justice), Shadow SNP Spokesperson (Immigration, Asylum and Border Control)

I do not know the hon. Gentleman’s circumstances; he could have 10 kids or none. We have already established that most asylum seekers have no idea where they are going. They do not decide where they are going based on the immigration and asylum policies of the country where they end up, but imagine if they did. If the hon. Gentleman was one of them and was told, “If you go through that country, you will possibly end up in jail, but if you don’t leave your country right now, you are going to end up dead,” which would he choose for his family?

Photo of Jonathan Gullis Jonathan Gullis Conservative, Stoke-on-Trent North

I have one daughter and a son on the way in early February, which I am pleased to announce to the House. What a lucky father I am going to be. The hon. Lady said it—there is nothing dangerous about France, Italy or Greece. People’s lives are not at risk. They may well be in Afghanistan or Syria. People will have left those countries and made that dangerous journey, which they should not have done because there are safe and legal routes to the UK. Other countries across mainland Europe could look to us as an example. They can claim asylum in those countries and not risk their lives by crossing the channel from France to the United Kingdom.

As I said, 70% of people making that illegal crossing are men between the age of 18 and 35. Predominantly, women and children are not coming with them but staying in those dangerous countries, which is why what we did with Afghanistan and Syria was so brilliant—we took women and children from a terrorist regime that I have no time for whatsoever, who treat women as second-class citizens and force certain children into slavery. We need to ensure that those women and children are protected.

I therefore believe that we should give commanders the confidence to do that again if they believe it to be safe. It is the commanders who will make that decision, and I have full faith that they will do so knowing the law, and the legal system in this country will have their back. Most importantly, they will take into account the condition of the waters at the time and the passengers onboard, so they can decide what is safe. The French can then do what they are meant to do when boats are in French territorial waters—stick to the obligations they sign up to for the money they get from British taxpayers and take those people back.

The people of Stoke-on-Trent North, Kidsgrove and Talke are so angry about what is going on that they want us to pick people up and take them straight back to Calais. I am sympathetic to their viewpoint, and that is one way to deter. This is a legal opportunity for us and the right one for the Government.

Photo of Bambos Charalambous Bambos Charalambous Shadow Minister (Home Office)

It is a pleasure to follow the hon. Member for Stoke-on-Trent North. He has shown a real insight into seafaring from Stoke-on-Trent, which we all know is a coastal town.

It will come as no surprise that we will vote against clause 41 and schedule 5. Both plan to extend and enhance the new maritime enforcement powers beyond the UK territorial waters into international waters. They seek powers to stop, board, divert and detain foreign ships and ships without nationality.

The overarching goal of clause 41 is to push back asylum seekers, and for Government to redefine ships in legal terms, as the hon. Member for Glasgow North East mentioned. They broaden that definition to include fragile and insecure vessels that cross the English channel. At present, the definition of “ship” includes every description of vessel, including hovercraft, used in navigation. That definition is to be supplemented so that “ship” also includes any other structure, with or without means of propulsion, constructed or used to carry persons, goods, plant or machinery by water. To be more precise, it is referencing the small boats that cross the English channel.

The clause would grant new powers to the Home Office to stop or board ships, take them to any place on land or water in the UK or elsewhere, retain them there or require them to leave UK waters, if it has reasonable grounds to suspect that a relevant immigration-related offence is being committed. The powers may be exercised in relation to a UK ship, a ship without nationality, a foreign ship or a ship registered in another British territory. In addition, extensive new enforcement powers are to be conferred in this clause, and the power to seize and dispose of ships will be conferred in schedule 5. The problem with the power to divert ships bound for the UK is that it raises profound questions about the safety and wellbeing of the people on board, and ultimately presents a risk to lives. There is no proof that the diversion of a ship would occur only where safe, no suggestion of how it would be policed and enforced, and no intention from the Government to act in accordance with international law. Such intentions are likely to be assessed meaningfully only in retrospect, once people have been harmed.

Strangely, the Bill will also restrict the exercise of existing maritime enforcement powers to police officers, whereas previously they could be exercised by immigration enforcement officers. The powers were introduced only by the Immigration Act 2016, and it is a bizarre change, as police operations at sea in connection with immigration issues are unheard of. It is therefore difficult to understand why the Government are making that change. Is it just posturing?

In addition to new powers to stop or divert and detain a ship, the Bill contains connected powers to search and obtain information, powers of arrest and seizure, powers to conduct protective searches of persons, and powers to search for nationality documents. It is clear that the Home Office has concerns that its own tactics may lead to risks to life, and thus to the commissioning of criminal acts by relevant officers, as the Bill later immunises them against criminal and civil court proceedings. That is contained in proposed new section J1 in schedule 4A of the Immigration Act 1971, which exempts relevant officers from being

“liable in any criminal or civil proceedings” in certain circumstances.

The situation with regard to officers was ably put by Lucy Moreton from the Immigration Services Union in her evidence to the Committee on 21 September. In response to a question from the Scottish National party spokesperson, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, she said:

“On the issue of pushbacks, as things stand at the moment, given the instructions that we work under to ensure the safety of life at sea and the legality of it, it seems to us—the trade union, and the members who advise us—extremely unlikely to happen in practice. The restrictions are, quite rightly, very tight. No one wants to see a fatality from what is a very dangerous manoeuvre.”––[Official Report, Nationality and Borders Public Bill Committee, Tuesday 21 September 2021; c. 30, Q30.]

Nevertheless, as many organisations have observed, this pretended excising of the UK’s responsibility for refugees is wrong as a matter of international law. The proposed powers raise issues in terms of their compatibility with international legal commitments to which the UK is bound, such as those in international maritime law, human rights law and article 33 of the refugee convention. The duty of non-refoulement requires the party to assess whether an individual is being expelled or returned in any manner to the frontiers of territories where their life or freedom would be threatened. That has been the approach adopted in Australia. Australia is, unlike the UK, surrounded by expansive ocean and international waters, and relatively poor island states, some of which are willing to set up refugee camps for money. Moreover, the UK does not have the geographical capability for pushback operations to be pursued in the English channel in a way that would not endanger lives. There is no agreement with other countries, such as France, to receive asylum seekers who make claims for asylum in the UK, nor does it seem likely that such an agreement might be reached.

On the issue of Australia using pushbacks, in his evidence to us the Australian high commissioner, who I note had a very good Conservative party conference, said that the boats were coming from Indonesia. When I asked him how far Indonesia was from Australia, he said it was at least 1,000 km. It is actually a lot further than that, but that is more than 600 miles. The channel is a mere 22 miles, so clearly the tactics used in Australia would be very different from those used in the channel, purely because there would be far greater notice in the ocean than there would in the English channel. Clearly, those tactics would not work if applied as they were in Australia.

Where the ship seized is one without nationality, the changes would allow the Secretary of State to dispose of that ship and other property or retain it after 31 days from the day of seizure. The means of disposal include the sale and destruction of the ship and property. That would grant an overwhelming power to the Secretary of State and Home Office officials, broad enough to allow the relevant officer to require a ship carrying asylum seekers across the channel to be diverted away from the UK and back to France. So much would depend on the stance of the French authorities in respect of the channel crossings, and we are still to know any details about the Government’s agreement with France—there currently does not seem to be one.

Labour does not want to see the Government legislating to grant immunity to officials who have exercised new powers to push back asylum seekers trying to cross the English channel. Under the Bill, a relevant official is not liable for any criminal or civil proceedings for anything done in the purported performance of these functions if the court is satisfied that the act was done in good faith, and there were reasonable grounds for doing it. This cannot be guaranteed; there are clear breaches of international law in relation to the pursuit of those duties. I would like to call these proposals out for what they are: pushback powers. These are controversially designed powers to stop, board, divert and detain; in other words, to enforce hostility. Labour stands against these new pushback powers, which will be callous, ineffective and designed to distract from the abysmal mismanagement of the Government’s Home Office operations, such as the speed of asylum decision making. Ultimately, these proposals are extremely dangerous, and, if attempts were made to exercise the powers, lives at sea will surely be endangered. If attempts are not made to exercise them, then what is the point of passing them into law? This is a mere exercise to allow the Government to posture their opposition to small boats. For these reasons, we strongly oppose clause 41 and schedule 5 standing part.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office) 2:30 pm, 28th October 2021

There are a few points that I briefly want to address in concluding the debate on this clause. The first is the training that immigration officers have to undergo. I clarify again that all immigration officers have to pass the immigration foundation course to be appointed. This includes training on the Human Rights Act. Further specialist training is given to those officers working in the maritime environment, which includes vulnerability assessments in the context of human rights obligations. They will be exercising maritime powers using operational guidance that emphasises the need to take full account of relevant human rights aspects of the European Convention on Human Rights, and the Human Rights Act, in the context of safety of life at sea obligations. I know that the hon. Member for Sheffield Central is very keen that we include this in the Bill, but I respectfully disagree. There is already an established process in place that is delivering exactly what the hon. Gentleman wants to see. We are very mindful of these obligations on an ongoing basis.

The issue of immunity has also been raised; however, these protections are nothing new. Border Force has existing powers to intercept vessels in UK territorial seas; an officer is not liable in any criminal or civil proceedings if the court is satisfied that the act was done in good faith and there were reasonable grounds for it. This provision is also included in the Policing and Crime Act 2017, the Modern Slavery Act 2015, and applies in other contexts. This provision follows the same approach as the Immigration Act 1971.

The hon. Member for Glasgow North East raised a number of points in relation to search and rescue operations, which we had an extensive debate about during this morning’s session. Again, I make the point that this Government are absolutely committed to search and rescue operations, as would be rightly expected. That is an important function and service, and it is right that it continues to be a strong commitment. We are committed to it and that service must be provided. Again, I will emphasise that this Government will abide by their international obligations at all times.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

Can the Minister be absolutely clear that no new powers, or attempts at immunity that arguably do not follow international law, are being sought? This is contrary to some of the Government reports on this issue.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

All I can say in response, is that I refer the hon. Member to what I have just said. There is an established position in relation to this; these protections are nothing new.

Question put, That the clause stand part of the Bill.

Division number 36 Nationality and Borders Bill — Clause 41 - Maritime enforcement

Aye: 8 MPs

No: 7 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 8, Noes 7.

Question accordingly agreed to.

Clause 41 ordered to stand part of the Bill.

Amendments made: 82, in schedule 5, page 71, leave out lines 14 to 16.

This amendment removes from the face of the Bill the limitation that the Secretary of State may give authority to exercise powers under new Part A1 of Schedule 4A to the Immigration Act 1971 in relation to certain ships only if the Secretary of State considers that the United Nations Convention on the Law of the Sea 1982 permits the exercise of those powers.

Amendment 125, in schedule 5, page 73, line 23, leave out “or (C1)” and insert “, (C1) or (C1A)”.—(Tom Pursglove.)

This amendment is consequential on Amendment 110.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

I beg to move amendment 126, in schedule 5, page 73, line  23, at end insert “24B,”.

This amendment and Amendments 127 and 128 are consequential on NC20.

Photo of Siobhain McDonagh Siobhain McDonagh Labour, Mitcham and Morden

With this it will be convenient to discuss the following:

Government amendments 127 and 128.

Clause 42 stand part.

Government amendment 124.

Government new clause 20—Working in United Kingdom waters: arrival and entry.

Photo of Tom Pursglove Tom Pursglove Parliamentary Under Secretary of State (Ministry of Justice and Home Office)

As you noted, Ms McDonagh, I have spoken to various aspects of the grouping in my earlier remarks, so I do not propose repeating what I said. Amendments 126, 127 and 128 are changes to existing maritime enforcement powers to ensure that these are available in relation to illegal working offences in the UK’s territorial sea. Amendment 124 brings new clause 20 into force automatically two months after the Bill receives Royal Assent for the purpose of making regulations.

Amendment 126 agreed to.

Amendments made: 127, in schedule 5, page 73, line  31, after “(S.I. 2020/1309),” insert—

“(ba) an offence under section 21 of the Immigration, Asylum and Nationality Act 2006,”.

See the explanatory statement to Amendment 126.

Amendment 128, in schedule 5, page 73, line  37, leave out “paragraph (a) or (b)” and insert “paragraphs (a) to (ba)”.—(Tom Pursglove.)

See the explanatory statement to Amendment 126.

Amendment proposed: 144, in schedule 5, page 74, line 30, at end insert—

“provided that the relevant officer may not do any of the things mentioned in sub-paragraph (2) where they would risk the welfare or safety of persons on board the ship.”—(Paul Blomfield.)

This amendment would require officers to assess welfare risk before stopping or boarding a ship, requiring it to be taken elsewhere or requiring it to leave UK waters, and not act if doing so would exacerbate these risks.

Question put, That the amendment be made.

Division number 37 Nationality and Borders Bill — Clause 41 - Maritime enforcement

Aye: 6 MPs

No: 8 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 6, Noes 8.

Question accordingly negatived.

Amendment made: 83, in schedule 5, page 75, leave out lines 6 to 8.—(Tom Pursglove.)

Question put, That schedule 5, as amended, be the Fifth schedule to the Bill.

Division number 38 Nationality and Borders Bill — Clause 41 - Maritime enforcement

Aye: 8 MPs

No: 7 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 8, Noes 7.

Question accordingly agreed to.

Schedule 5, as amended, agreed to.

Clause 42 disagreed to.