Would the Committee be content if I wrote further on this matter? Excellent.
I am not quite sure where I had got to. Amendment 128A in the name of the noble Baroness, Lady Hamwee, gives me the opportunity to explain the defence provided to persons who are not acting under the co-ordination of HMCG but who can show that they assisted an individual in danger or distress at sea at any time—I think I have just said that.
It is appropriate to set a clear timescale of when the defence will apply to assistance to those in danger or distress. This means a starting point from when the person was first in danger or distress at sea and ending at the time when the person was delivered to a place of safety on land. It does not include assistance given before the assisted individual is first in danger or distress. This is to make it more difficult for unscrupulous criminal gangs to benefit from the defence by either changing their operations to pick up migrants immediately after they have left the French coast and then ferrying them to the UK, or claiming that they are assisting
migrants before they reach a point of being in danger or distress at sea by providing life jackets—possibly at additional cost—when they begin their crossing.
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I would like to make it clear that, with this defence, there is an evidential burden on the person charged. This requires the individual to tell the investigating authorities the facts of the case, and it will then be for the prosecution to disprove these beyond all reasonable doubt. This means that it is extremely unlikely for someone to be charged unless the authorities have concrete evidence to the contrary, such as intelligence suggesting that they are linked to people-smuggling gangs, or the same person launching multiple “rescues” over several days with no good reason for being at that location.
On Amendment 129A, I am happy to take this opportunity to reassure the noble Baroness, Lady Hamwee, that the Government have already stated publicly that we will conduct a public consultation with such persons as considered appropriate before determining the level of penalty for the new offence and bringing a level of penalty code of practice into operation.
On Amendment 129B, it is entirely reasonable—merely a small imposition—to ask a migrant’s sponsor or the migrant themselves to provide confirmation of their arrival and departure. These requirements are already a core feature of the immigration system and should be familiar to employers and migrants alike. Any regulations made under Section 11B will be subject to a negative procedure and follow well-established parliamentary procedures for the making and laying of immigration regulations. Additional layers of scrutiny and consultation are therefore not required by way of inserting the requirement to consult into legislation.
I have noted Amendments 130, 131, 132A and 133, which seek to ensure that the maritime enforcement powers cannot be used in a manner that would endanger lives at sea and must be in accordance with international maritime law. I take this opportunity to praise the noble Lord, Lord Macdonald of River Glaven, for waiting all these hours to ask his question. In terms of violation of the right to life, our priority first and foremost is always to save lives at sea, and it is therefore compatible with the European Convention on Human Rights.
On Amendments 130 and 132A, as I have said, safety of life at sea will remain the priority for any interceptions of small boats crossing the channel, and their use will always be in compliance with international obligations in the context of maritime safety. Allowing specific types and sizes of vessel in effect to be exempt from the exercise of these powers would incentivise people smugglers to use those vessels and thereby potentially endanger lives even further. Trained officers deployed to deliver tactics using these powers will also be operating within a clear set of procedures which are regularly reviewed and designed to ensure that no actions are taken that endanger lives.
On the point about the MoD versus the Home Office/ Home Secretary, the Defence Minister James Heappey said last month that, throughout the last 12 months, the Home Office and the Ministry of Defence have
worked closely on countering the small boats challenge. Details of how the joint working continues, with the MoD playing a greater operational role, are being worked through, and noble Lords can expect a further update in due course. I do not agree with the description that the MoD publicly rebuked the Home Secretary for claiming that it might use turnaround tactics. As I have said, the MoD and the Home Office have worked closely to tackle illegal migration.
On issues of injury or death at sea in taking migrants to a place of safety, the noble Lord, Lord Paddick, made a comparison with an officer being ordered to shoot, as in the Jean Charles de Menezes case. We must balance things so that facilitators do not exploit the law to offer a taxi service to rescue migrants just off the French coast—probably at extra cost to the migrant—and then ferry them to the UK. If there is good reason to bring the migrant to the UK, for example because of a storm, this is taken into account in the offence, as in the example cited by the noble Lord, Lord Paddick.
With regard to Amendments 135 and 136, any exercise of maritime powers must take account of our international obligations. In relation to Amendments 132 and 134, I assure noble Lords that all operational officers in Border Force have received and passed the appropriate training.
I hope that, with those explanations and my promise to write, noble Lords will be happy not to press their amendments.