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Asylum And Immigration Bill

Volume 571: debated on Thursday 2 May 1996

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House again in Committee on Clause 8.

moved Amendment No. 84A:

Page 6, line 13, at beginning insert ("Subject to subsection (3A) below,").

The noble Baroness said: In moving this amendment I wish to speak also to Amendment No. 89ZA. The Government gave notice of their intention to table amendments to this effect in another place. It has become clear that as Clause 8 is drafted an employer could rely on one of the specified documents to provide him with a statutory defence even if he knew from the outset that an employee was not entitled to work in the United Kingdom or had been told by immigration and nationality directorate staff subsequent to recruitment that the employee was not in fact entitled to work.

This is a loophole which could be exploited by racketeers and unscrupulous employers. We therefore believe that the clause must be amended to make clear that an employer will not have a defence if he knows—I emphasise the word "knows"—that the employee does not have permission to work.

If Clause 8 is not amended in this way it is likely that it will not be possible to prosecute successfully at least some of the employers known to employ illegal workers on a regular basis. That point was made on an earlier amendment by my noble friend Lady Gardner of Parkes. There would therefore be a risk that the effectiveness of the new offence could be limited in the cases of some of those employers about whom we are particularly concerned.

I stress that the amendment will not in any way increase the burden on legitimate employers. Employers will be additionally liable only if they have specific knowledge which renders the defence invalid. It would be for the prosecution to prove that the employer had such knowledge. Those attempting to comply with the legislation in good faith will never have that knowledge and so will be able to have complete confidence that they have established a satisfactory defence. We will make sure that the guidance we issue makes the position abundantly clear.

The noble Earl, Lord Russell, was kind enough to convey to me a concern which I know was shared by the CBI. Indeed, I had been aware that there were concerns about how the amendment would work. First, we believe that the concern about a potential additional burden on employers is unfounded. The defence is only disapplied if the employer can be shown by the prosecution to have known that the employee was not entitled to work. It does not therefore involve any additional duty to check.

One of the worries was that if an employee comes along and presents either a national insurance number or one of the specified documents, somehow or other that document must be checked in order to prove it is bona fide. That is not the case. If a national insurance number is proffered by a potential employee or if one of the specified documents is proffered and recorded by the employer, the employer's liability and duty under this part of the Bill ends. If the employer knows that the employee is illegal and is colluding with him and they are between them party to this racket, that is what the amendment is about. But if the employer takes in good faith one of the specified documents, it is not incumbent on him to check with the national insurance office or with the passport office. But he will record it either by photocopying it or putting it on computer. If subsequently the national insurance number is found to be wrong, or if subsequently the document is found to be incorrect in some way, the culpability will be on the individual who proffered the incorrect information, the incorrect number, the fraudulent passport or whatever it may be. But the employer will have a complete defence if he sought to secure one of those documents and record that he had seen it.

The CBI wanted the Government to make it absolutely clear that the Bill would not add to the burdens on employers. We believe that the racketeer-type employer does exist. That is why we believe we should not allow this loophole to continue. I beg to move.

These are absolutely extraordinary amendments. As the Committee knows, when the Bill first came before Parliament the major employers' organisations, including not just the Federation of Small Businesses but also the CBI and the Institute of Directors, expressed grave concern about the imposition on employers of the terms of this clause. They said clearly that it was not the job of employers to do the work of government in controlling illegal working. With the exception of the Federation of Small Businesses, which still holds the same view, the CBI and the Institute of Directors in particular were persuaded by the Government that their objections should be toned down or even removed by the suggestion which Ministers made that in practice it would be relatively easy by documentation to prove whether or not an employee was an illegal immigrant and therefore came within the scope of the clause. In particular, it was suggested that a national insurance number would be adequate evidence that an employee was not an illegal immigrant. Indeed, that is contained in the draft document order which has been made available. That is despite the fact that the consultation document on illegal working pointed out the considerable difficulties in using the national insurance number as the piece of evidence.

Now we have an amendment which says,"Regardless of what documentation is produced, the defences on which the employers' organisations and employers relied to exempt them from the terms of the clause and therefore from criminal prosecution are no longer to have effect where the employer knows that his employment of the employee would constitute an offence under the clause." We know the difference between "knows" and "has reasonable cause to suspect". I was sorely tempted to put down a late amendment to say "has reasonable cause to suspect", except, of course, as the Minister knows, it would have worked in the wrong direction and it would have reduced still further the effect of subsection (3) of Clause 8 which sets out the possible defences.

What is the effect of the amendment now, even allowing for the fact that "know" is a very strict test? First, it is said that none of these documents, in particular the national insurance number, will necessarily establish the entitlement of the employee to take up the job. That is fine, and it is almost certainly true that national insurance numbers are not an adequate protection against illegal working. That was the basis on which this clause was sold to the CBI and the Institute of Directors. They will have a few things to say when they find that reliance is no longer to be placed on it.

Secondly, that significantly increases the burden on the employer. What does "know" mean? If in a large company a shop foreman who has no responsibility for recruitment or personnel matters, knows about someone, is that knowledge by the employer? Subsections (5) and (6) of the clause extend the responsibility from the employer as a corporate organisation to individuals with the company. Does "know" apply to all those individuals, and if an individual knows is that knowledge by the company? If that is not the case and knowledge by an individual is not knowledge by the company, how can responsibility by an individual for a breach of this clause be a responsibility of the company? The Government must decide which side they are on because they cannot have it both ways.

Thirdly, this amendment confirms that this is no longer simple documentary procedure. Now we have the employer performing immigration control functions. So all the reassurances made to employers and their organisations that it would be a simple function of checking documents is no longer true. The checking of documents is not enough; there has to be knowledge based on whatever other information is available to the employer.

What is going to happen if an employer has a suspicion that a document is a forgery? Will he be responsible for checking whether it is a forgery and, if so, how? The idea is inconceivable. It represents a gross increase in the responsibilities of employers. How can the employer demonstrate that he did not know, particularly if he is giving evidence on oath, and feels obliged to acknowledge that he had some suspicion?

Finally—I could go on forever, but I shall not—surely employers will see this matter as a responsibility which increases the burden on them and adds to the uncertainty of the position, because in all this the Government are reducing the defences which are available to employers because they make certain specified checks. This clause cannot work unless there is a clear indication of what checks will exempt employers from this criminal responsibility. I am glad to see that the noble Lord, Lord Renton, is in his place because what is now being introduced into this clause is mens rea. Not only has the employer to perform a series of specified acts, but he has also now to make a judgment. He has to know or not know whether something is the case and whether or not it is shown by the documentation. I shall not vote against the amendment at this time of night, but this clause will cause havoc among employers' organisations. When they see what is now proposed the very qualified support they have given it to date will evaporate.

I really must come back on this point. The noble Lord has taken an extremely exaggerated view and, at times, a very wrong view. Under this Act an employer does absolutely no more than is required of him with or without this amendment. He needs to secure one of the specified documents from a potential employee. That document is both seen and recorded and that is an end to it. It is an absolute defence for the employer.

I really have to pose this question to the noble Lord: is he happy that an employer colludes with illegal immigrants, employs them, and, very often, exploits them, as my noble friend Lady Gardner of Parkes said earlier, for very low pay and long hours and keeps them hidden away from the authorities in order to carry out his business? That is the kind of person who will be caught by this amendment. The employer has to know that he has colluded with an illegal entrant to employ him. If the employer simply sees a potential employee, seeks one of these specified documents and simply records having seen it, either by photocopying it or putting it into the company records, or however he wishes to do it—and we shall give guidance on that—the employer has a total and complete defence under this Act.

But where an employer knows—and I use that word precisely in this context for the benefit of my noble friend Lord Renton because earlier we talked about "knowing" or "suspects"—that the employee before him has no right to work in this country, then the employer knowingly employs that person. As I have said, there are a very few unscrupulous employers who are taking on employees knowing that they are illegal entrants, and doing so to cut company costs. It is that kind of ruthless, unscrupulous racketeer that this amendment is meant to catch. All other employers need not worry because there is no extra burden on them whatsoever.

That confirms what we have just been saying and also what we said at Second Reading. This clause is simply not going to be effective against unscrupulous lawyers—employers. My noble friend Lord Cocks picks up an entirely innocent slip of the tongue in this case. I did not mean "lawyers", but "employers". The kind of people who will employ illegal immigrants are those who are going to break other employment legislation. That is another reason why this clause is not going to be effective, but damaging.

8.15 p.m.

On behalf of the CBI I would like to thank the noble Baroness warmly for what she said about there being no need to verify documents. That was the key point of anxiety. Not every employer is able to identify a fake Liechtenstein passport at first sight. So if that point is clear it is a very great relief.

It is a pity that there was not time for this matter to be dealt with by consultation, but at least the point has now been dealt with sensibly. However, I am not quite so happy about the burden of proof. I heard what the noble Baroness said and I warmly welcome it. But it was my understanding that this was a strict liability offence and therefore its effect would be to put the burden of proof on to the employer to show that he did not know that a person was not entitled to work. It is important to have that as firmly on the record as we can with the case of Pepper v. Hart in mind.

I believe that it was the noble Lord, Lord Renton, who said, as regards an earlier amendment, that to prove that one knows something is very difficult indeed. There are two types of proof. First, one needs to prove that the employer knows about the actual history of the employee. Secondly—and perhaps this is rather more difficult—one needs to prove that the employer is aware of some extremely complicated technicalities in the regulations and so forth. Not every employer understands every detail of immigration law: the police, many of us, and people working in the field do not understand it either. Getting the burden of proof clear makes a tremendous difference to how the word "know" is going to operate. Indeed, if the burden of proof is on the prosecution, I shall be very interested to know how the noble Baroness thinks that the prosecution is going to prove that the employer knew that the person was an illegal immigrant.

We are all agreed that we have to deal with illegal working. The question, raised many times during the passage of this Bill, is that of priority. The question is how many nuts one cracks with one stroke of the hammer. I wonder whether there really is evidence that the problem is on quite as alarming a scale as the noble Baroness suggests because we have to weigh a potential good against a potential mischief. Can she give us any indication of the scale of illegal working?

I cannot do so offhand. I do know that there are employers in this country who almost "trade" in giving illegal entrants work. I hope that it will help if I confirm to the noble Lord that if an employer claims that he has done what he is supposed to do under the provisions—that is, that he has secured one of the specified documents—it is for the prosecution to prove that an offence has been committed. The burden of proof lies on the prosecution. The prosecution must prove that when the employer employed the person concerned he knew that that person had no right to work here.

Perhaps I may return to a point that I made on the previous amendment to which the noble Baroness did not have the time to reply. Instead of the obligation being expressed as it is in the clause, would it not be better to require the employer to see one of the specified documents under the order which is to be made by the Secretary of State? We could then deal with the possibility which the Minister has envisaged by saying that the employer would be guilty of an offence if he knew that any of those documents was fraudulent. If we are saying that it is an absolute proof of a person's eligibility for work that he possesses, say, a national insurance document or one of the other three documents mentioned in the briefing, and given that the Minister has confirmed that the employer does not have to go "behind" those documents, if I may put it like that, to check whether they are genuine, if the employer was guilty of the offence of knowingly employing a person who is not entitled to work here, ipso facto he would be aware that the document being presented to him was not genuine.

I am suggesting that the obligation on the employer should be that he must see one or other of the documents specified in the order. I suggest that the point of Amendment No. 84 can be dealt with by providing that, if the employer knew that any document being presented to him was fraudulent, he would be committing an offence. It seems to me that we would then arrive at exactly the same result, but by specifying a more objective test for the employer. The employer would be required only to look at one or other of the documents and not know that that document was fraudulent. If the employer satisfied that test, he would be exempt from prosecution under the Bill.

That seems to me to be a way of getting round the objection mentioned by the noble Lord, Lord McIntosh. It is difficult to satisfy the test of knowledge of not only the employer, but all his staff. The extent to which an employer was aware of the details of the immigration regulations might be a matter of controversy in court. However, if we say only that an employer has to check that a document exists—and if we do not specify that he must not have any knowledge as to its fraudulence—we are placing a totally objective test on the shoulders of that employer, a test which I think would satisfy the CBI. Of course, I have not had the opportunity to consult the CBI, but I think that such provisions would meet the need.

I think that what the noble Lord is suggesting would place an onerous obligation on an employer. We are saying that when a potential employee comes along, the employer must ask for evidence of one of a specified range of documents. The employer will take that document in good faith. The noble Lord gave an example of an employer who knows that a document being presented to him is fraudulent in some way. One hopes that any good employer would then ask for another of the specified documents. The noble Lord used the word "know". If an employer knows that a document is fraudulent, he should say, "We know that that is a fraudulent document. You must bring us other proof that you have a bona fide right to be here".

We are operating on the basis that the employer takes the specified document in good faith and at face value. We are not requiring employers to carry out all sorts of checks to ascertain whether documents are genuine. The assumption and the presumption is that the document is one of the specified documents and that it is genuine. If that subsequently turns out not to be the case and the employer has performed his duty under the Bill, culpability will rest with the individual who proffered the false national insurance number, the fraudulent passport or any other fraudulent specified document. However, if the employer accepted such a fraudulent document knowingly, he would be guilty of giving that person work knowing that the information which was provided to him did not prove that that person had a bona fide right to be here.

We know that employers are tied into marriage rackets and other rackets which help people into this country. The provisions of paragraphs (b) and (c) of Clause 5(1) create two new offences to cover that. We are concerned not only with those who help people to enter the country, but with those who help them to stay in this country by getting them work with a friend down the road. It is a case of "No names, no pack drill". Such employers not only provide illegal entrants with work, but often exploit them most dreadfully. We are hoping to catch such employers by this amendment. However, we want to place the lightest possible burden on employers. What the noble Lord is suggesting would give employers rather more work.

Perhaps I may come back for just a moment. I do not understand what the noble Baroness is saying. The circumstance envisaged in Amendment No. 89ZA is that an employer has looked at a document and satisfied himself that all is as it appears and that there is, for example, a national insurance number on the P.45. The noble Baroness is trying to catch the employer who nevertheless knows that that person is not entitled to work here; ipso facto the national insurance number or the passport or the stamp on the passport must have been obtained by fraudulent means. The evidence that that person had permission to work in this country must have been obtained fraudulently. If an employer knows that an employee is not entitled to work here, he must know that the document that was presented to him, which shows that that person is entitled to work here, is not genuine.

I am saying that we should not ask the employer to look behind the document. We should ask the employer to look at the document and to satisfy himself that it complies with the order which the Secretary of State is to make. If the employer knows that the person obtained that document in some improper manner, the employer will be guilty of an offence under the Bill. It seems quite simple.

The noble Lord is confusing two things. If an employer knows that the person before him is here illegally, it is incumbent on the employer not to employ that person. We are saying that it is an offence to employ somebody illegally—and certainly to do so knowingly.

However, we do not want to turn employers into immigration officers. We do not want our employers to feel that it is incumbent on them to check national insurance numbers and passports to ascertain whether they are correct. If an employer has been proffered a passport that looks like a passport or a national insurance number that looks genuine, we are not requiring that employer to check whether that document is correct—

The noble Lord is suggesting that. If the employee is known to be an illegal immigrant, the employer has a duty not to employ him. If the employer does so knowingly, he would be caught by the amendment.

Nobody denies that the Government's objective in trying to deal with rogue employers who knowingly employ illegal immigrants is a proper objective. Nobody is saying that there is anything wrong with that. However, that is not what the amendments provide. The amendments apply to all employers. They must apply to all employers. There is no other way around it. The amendments seek to qualify the exceptions, the defences, which employers can use when arguing that they have carried out the checks that are necessary under the Bill. The basis of agreement with the employers' organisations was that those checks would be sufficient. The Minister has confirmed that this evening. If that is the case, how will anybody know that the employer knew something when he adequately performed the checks that are set out for him? The Government are hopelessly entangled in these provisions. They are trying to deal with a specific and almost certainly a very small number of employers by a general means which will not work.

I find this whole approach to the employment of immigrants extraordinary and unreal. There is an air of cloud cuckoo land about the whole thing. If the Government must make this an offence, I very much hope that they will consider making it a civil rather than a criminal offence. It seems totally inappropriate to make it a criminal offence to take on an illegal immigrant. I find it odd that a government who have been so eager to remove burdens from businesses should be imposing this burden on them, and that a government who have resisted the social chapter should be so desperately concerned that some employers may treat immigrant labour badly. I am concerned about the unreality of it. Where one has a well set up, proper personnel department the employer will do all of these things. However, has the noble Baroness given thought to what happens at a place like a building site where these people will go? A site foreman will be surrounded by machinery and probably items will fall on his head a good deal of the time. Will he go through all of these procedures? It is totally unreal. Here we are thrashing away at the details of a fairy tale approach to the employment of people.

Building sites are very good places for people who are trying to hide, as I well know. It is the place to which you send offenders to get jobs because no one asks any questions. They will also go to hotels to do washing up. Can one see the supervisor of kitchens going through all of these procedures? It is a nonsense. Can the Government at least give thought to making it a civil instead of a criminal offence?

8.30 p.m.

I did not intend to take part in this debate. However, the noble Lord, Lord McIntosh, drew me into it by referring to mens rea, about which I will say more in a moment. The noble Earl, Lord Russell, also drew me into it by referring to the burden of proof. With the deepest respect, I believe that all noble Lords and the noble Baroness, Lady Seear, who have spoken on this subject, have made unnecessarily heavy weather of the whole matter. It is very simple. In Clause 8 the Government have done justice by enabling an employer to raise a defence to show that he is innocent as far as subsection (3) goes. Perhaps, as an afterthought, although a very necessary one, it has to be considered whether the employer might have known that the employment of the employee would constitute an offence. It is only right to spell that out in the Bill.

If I may have the attention of the noble Lord, Lord McIntosh, mens rea in our criminal law is a matter of which we should be proud. It means that no person can be convicted of an offence unless a guilty intent has been proved. That is absolutely vital and not a matter to be despised. That will have to be proved in an alleged offence under this clause. So far as concerns the burden of proof, the noble Earl is right that there must be proof beyond reasonable doubt in criminal cases. In civil cases the burden of proof is on a balance of probabilities, which is different. But the onus remains on the prosecution in all criminal cases from beginning to end, except that where a particular type of defence is raised the burden can shift. It is then for the court to decide ultimately whether or not the prosecution has proved its case beyond reasonable doubt. If there is a reasonable doubt on any of the issues raised in the case, the accused person has to be acquitted. It is as plain as that. The clause does justice in necessary circumstances.

From time to time during Committee stage there have been implications that noble Lords opposite are absolutely wonderful in having no colour prejudice. I have no colour prejudice. Some of my close friends happen to be Indians. Only today I took 11 South Koreans round the Palace of Westminster. The leader of the delegation, which came from one of the largest cities in South Korea, was kind enough to give me a badge signifying membership of his city. I totally deny that noble Lords opposite are in a different position from any of us on these Benches, or the right reverend Prelate, on the issue of colour prejudice. I hope that that will he borne in mind during the remaining debates on the Bill.

Will the noble Lord tell the Committee what has been said to lead him to make that comment? I have no recollection of any suggestion that those on the other side of the Chamber have colour prejudice. What has been said that moves the noble Lord to make that statement?

I do not want to embarrass noble Lords by referring back to previous speeches. But from time to time there has been the clearest implication that their arguments are supported by a lack of colour prejudice and that anything which resists them involves it.

I have not for one moment hinted at colour prejudice anywhere in this Chamber. The only references I have made to its existence have related to the country outside where, regrettably, it is not unknown. I am entirely happy to accept everything the noble Lord says on the subject. I am extremely sorry if inadvertently I have said anything which led him to say what he did say. If inadvertently I have given any such impression, I unreservedly offer to apologise.

For some time I have asked the noble Baroness to confirm that suspicion does not constitute proof. That is clear enough. The noble Baroness shakes her head, which I hope will go on the record. I thank her warmly. Another matter which gives me concern is that the Home Office has no quantitative evidence on the point. I appreciate the difficulty of obtaining quantitative evidence of any illegal activity. In any crime statistics there are always duff figures. However, even for those employer organisations which do not contest the clause—although they do not give it a particularly excited welcome—it will inevitably mean a burden. One wants to know that there is some quantifiable evidence of mischief, even if one does not know that it is the whole mischief, before the need for the clause is accepted. The Department of Social Security used to say that it did not introduce policy based upon anecdotal evidence. That was a good restraint. One wonders whether the Home Office should accept a similar restraint. If the noble Baroness has any pulk of evidence which led the Home Office to decide that the clause is necessary, I would listen to it with a great deal of interest.

I should like the noble Baroness to confirm or deny one matter. Having carefully read the research which I believe was carried out by the Institute of Public Policy, my understanding is that in 1994 there were 12 cases involving illegal working. That research provided no later figures. Given that the estimate of the cost of this exercise is approximately £11 million recurring, at nearly £1 million per prosecution, it seems awfully expensive.

I do not know about the cost of £1 million per prosecution, if that is what the noble Baroness suggests. If an employer is found to have been giving work to an illegal immigrant, that seems to be an extraordinary estimate of the cost.

Perhaps I should try to put it more clearly. I agree with the noble Baroness completely. My understanding—I may be wrong—from reading that research quite carefully is that in that year in the entire country there were 12 prosecutions—they were not even successful prosecutions—brought for illegal working. If that is correct and the cost of this method of dealing with the problem will run at about £11 million a year—that understanding may or may not be correct, although that is what all of the research indicates—and the initial cost is some £30 million, does the noble Baroness agree that it is an awfully expensive way of going about it?

I now know how the noble Baroness arrived at those figures. I have been at the Home Office since the middle of 1994, and I happen to know that more people than the noble Baroness mentioned have been rounded up in searches in the London area; for example, while cleaning offices during the night and working at airports. There was a lively scheme going at airports. People stepped off aeroplanes wearing coats and carrying buckets and brooms and changed places with others. That happened in greater numbers than the noble Baroness said. It can be a problem.

We want to see all employers taking the normal documents, recording them and putting them away. I believe that it costs something like 65p per employee to record that document. It may be part of the other information that employees have to give to an employer when they are accepted for employment. For some employers it will cost no more. It is part of their normal system for employing people.

I have just been handed some information which may help. Any estimate of the extent of illegal immigration, including people working in breach of their immigration conditions, of its nature can be no more than speculation. So we do not have specific estimates, but we know that in 1994 over 10,000 people were detected by the Immigration Service working while here illegally or while prohibited from working. In 1988, the comparable figure was 4,000. That is a large number of people who we know could be working for employers in this country. We know that a large proportion of those people will be working for employers who do not know that they are illegally in the country. There will be some employers who are part of the marriage racket and other organised rackets where they are the end of the chain. People having come in for payment—often for extortion—those employers will give people employment. In such cases it would be different.

8.42 p.m.

On Question, Whether the said amendment (No. 84A) shall be agreed to?

Their Lordships divided: Contents, 46; Not-Contents, 21.

Division No. 3

CONTENTS

Addison, V.Howe, E.
Balfour, EJenkin of Roding, L.
Belhaven and Stenton, L.Kingsland, L.
Blaker, L.Long, V.
Blatch, B.Lucas, L.
Bowness, L.Lucas of Chilworth, L.
Brabazon of Tara, L.Lyell, L.
Brougham and Vaux, L.Mackay of Ardbrecknish, L.
Carnock, L.Mackay of Drumadoon, L.
Chesham, L.[Teller.]Marlesford, L.
Courtown, E.Miller of Hendon, B.
Cumberlege, B.Monk Bretton, L.
Denton of Wakefield, B.Northesk, E
Dixon-Smith, L.Park of Monmouth, B.
Elton, L.Rankeillour, L.
Fraser of Carmyllie, L.Rawlings, B.
Gardner of Parkes, B.Renton, L.
Geddes, L.Seccombe, B.
Glenarthur, L.Stewartby, L.
Goschen, V.Strathclyde, L. [Teller]
Harris of Peckham, L.Trumpington, B.
Hemphill, L.Wilcox, B.
Henley, L.Wynford, L.

NOT-CONTENTS

Addington, L.Craigavon, V.
Allenby of Megiddo, V.Dormand of Easington, L.
Avebury, L.Dubs, L.
Berkeley, L.Falkland, V.
Cocks of Hartcliffe, L.Graham of Edmonton, L.

Haskel, L. [Teller.]Russell, E. [Teller.]
Kilbracken, L.Sandwich, E.
Lawrence, L.Seear, B.
Weatherill, L.
McIntosh of Haringey, L.White, B.
Monkswell, L.Williams of Crosby, B.

Resolved in the affirmative, and amendment agreed to accordingly.

8.50 p.m.

moved Amendment No. 85:

Page 6, line 14, leave out ("before the employment began") and insert ("within 2 months of the commencement of the employment").

The noble Lord said: What will be the situation when a small employer wishes to recruit an individual for his workforce? Let us suppose that as a result of an advertisement a potential employee arrives on the scene, and when the employer says to him, "I need to check some of your documents" he says, "I haven't brought them with me. I didn't know that I had to. I don't know where they are". The employer will then be faced with the choice of keeping the job open while the prospective employee looks for the documents or risk being prosecuted for employing someone without documents. Either way, the small businessman will lose out. Surely it cannot be the Government's wish to penalise small businessmen in that way.

The merit of the amendment is that an employer could take on an employee provided that the documentation demanded by the Government under the Bill is produced within two months. If that were done, it would be proper for the employer to have the applicant working for him during that two-month period. If by the end of that period the employee cannot produce the documents, the employer will be obliged by law to terminate the employment.

The amendment does not seek to undermine what the Government purport to do. We seek to make the procedure more workable because in the real world small businessmen have to take on people quickly as they cannot afford to run their businesses with a vacancy. They cannot afford to leave a post unfilled while an employee is obtaining documentation.

I wish to raise another important aspect which has already been mentioned. If an employer has three people applying for the same job but two have difficulty in finding their documents he will naturally go for the person who already has the proper documents. In the real world some employers would say to a black applicant, "No, if you do not have the documentation I am not prepared to wait and take a chance". Therefore, the effect of the provision would be discriminatory against black people. If rumours are correct, that was the fear in Cabinet when the matter was discussed.

We are suggesting a very simple change which reflects the way in which small employers wish to do business and to fill vacancies quickly. They would have a period of time during which the employee could produce the necessary documentation. The proposal is simple and straightforward and would help small employers a great deal. I beg to move.

I support the amendment because it brings into the proceedings an air of reality which has been totally lacking in most of the previous discussions on employment.

I have two difficulties with the amendment, which has nothing to do with whether one is black or white. I sit as a lay magistrate and know that often people are asked to bring their driving licences. They never appear to have a sense of urgency but it is amazing how, if they are told that the case will be adjourned until the next day, they turn up with the licence. To allow a period of two months would be a stupid way in which to operate.

My second difficulty is that by having any delay one is playing into the hands of an employer who, perhaps for the wrong reasons, will say, "I shall employ you for one month and 29 days", and then employs someone else. That is not what any of us want and I cannot support the amendment.

I listened to the noble Lord, Lord Dubs, with interest; but there was an air of unreality and of times past. Even in the world of small employers I am not aware of people who openly advertise a job and have only one applicant whom they feel they must employ. In the present state of the labour market—which is better than it used to be—it is not the situation that some people would desire.

In 1961 or 1962 when unemployment was at only 2 or 3 per cent. perhaps there would have been some validity in the argument that is being advanced. However, in the current climate it is completely unreal. For the life of me, I am unable to understand why a request from a potential employer to produce some documentation to show that a valid application is being made is not entirely reasonable. That applies to any employee; it is not a matter of prejudice. I cannot support the amendment.

Surely it is fairer that an employer should be alerted by statute to the fact that he must make sure in advance that he will not be committing an offence by employing someone who is an illegal immigrant than that he should speculatively take a chance in the hope that nothing will come to light, at any rate for two months, which might make it an offence. That is not only fair but it is common sense and I hope that the Government will resist the amendment.

Is this not a case in which, as we heard earlier from my noble friend Lady Gardner of Parkes, there would be more simplicity and less opportunity for error if we held identity cards? They are gaining support from the general law-abiding public, and I believe that the Government are considering them. That might be an answer for the noble Lord, Lord Dubs.

The noble Baroness, Lady Rawlings, tempts me to a memory of an occasion when one member of my family lost his identity card. Such things happen and they can cause a great deal of trouble.

The noble Lord, Lord Renton, raised a question that is worth thinking about. I agree that two months may be a long time; but, on the other hand, not every immigrant applying for a job, and not every person applying for a job who knows that he is not an immigrant because he was British-born, knows that an employer will ask him for documents and will necessarily have all the right documents with him on the day he turns up. Would it help the noble Lord, Lord Renton, if we were to specify "on the first day of employment"? By then the applicant could be given a specification of exactly what documents he needed and could go home and get them. I do not believe that everyone will know what they are meant to have with them—

I listened carefully to the noble Earl. If a person applies for a job and the employer has reason to believe that he may be an illegal immigrant and asks, "Where are your documents? I want to make sure about the situation"—which under the law he will be required to do—he would also be entitled to say to the immigrant, "Look here, if you say you have got documents, how soon can you bring them? Tomorrow, the day after or next Monday? If you bring them then, I shall carefully consider employing you".

9 p.m.

That is a concession for which I am extremely grateful and to which I hope the Government will listen. But the noble Lord tempts me also to ask one of the crucial questions in relation to this clause. He says, "If the employer has reason to suspect that the person may be an illegal immigrant". What would be such a reason?

The explanation given by my noble friend Lord Renton is not a concession but is the fact. If someone comes forward for a job and the employer asks for documentation and the person says, "Well, I do not have it with me but I can produce it", on producing it, that is an end to it. The person may then take up the job.

Amendment No. 85 would provide an employer with a defence if he could show that one of the specified documents had been produced to him within two months of the employment starting. At present the clause specifies that the document should have been produced to the employer before the employment began.

The suggestion that there should be a period of grace allowed to employers within which they could establish their defence was put forward by a small number of those who responded to our consultation document on the prevention of illegal working. I understand that those who have advocated a period of grace have had a number of different objectives in mind.

One is that a period of grace would benefit those sectors of the economy where a significant proportion of employments currently have fairly informal recruitment procedures and often involve immediate, and perhaps very short time, hire. I believe that the licensed trade and the hospitality and catering sector more generally have expressed some support for a period of grace on this basis. The noble Baroness referred to that on an earlier amendment.

Another is that a period of grace would prevent the introduction of potential delays into the recruitment process while documentation was requested. I know that this has been a concern to some employers.

I can understand why some employers have found the idea of a period of grace attractive—although the suggested two months does represent an unduly long time to establish a defence. However, it is clear that a period of grace would seriously weaken the impact of Clause 8. Even a very short period would do that. It would provide a loophole which could be used by unscrupulous racketeers trying to evade the impact of the clause. If the bill were amended in this way, there would be nothing to stop racketeers moving employees between jobs for short-term periods, so that they always worked for fewer than two months at a time and never had to produce any documentation. My noble friend Lady Seccombe made that point.

A period of grace would also, in our view, effectively exclude from the terms of the offence all genuine short-term employments and a lot of casual work. Immigration Service experience suggests that a significant proportion of illegal working occurs in such employments. This amendment would therefore considerably reduce the effectiveness of the clause.

While I can understand the concerns of those who seek a period of grace, it is not unreasonable to assume that the new requirement will have an effect on the recruitment process. At present there is no need for a person to carry certain documentation when seeking employment unless it has specifically been asked for. As a result, it will therefore rarely be available. However, our expectation will be that such documentation will be readily available in many more cases because it will be understood that the offer of employment may be dependent on its production.

I believe that Amendment No. 88 is intended to relate quite directly to Amendment No. 85 as it would attempt to retain a requirement on employers to have considered the question of whether employment of an individual would constitute an offence before the employment began. However, we will be considering that amendment separately in due course. I urge the Committee to reject this amendment.

I listened with care to the Minister. Again, she is becoming extremely alarmed about unscrupulous employers. Again, it makes me wants to ask about the question of priorities which has been worrying me throughout the debates on this clause. We all agree that we must prevent illegal working and we all agree that we must avoid placing unnecessary burdens on business. The question is as to the comparative weight which we give to those two factors.

When the noble Baroness talks about unscrupulous employers, she sounds a little as though she were discussing the spread of the plague of bacillus. She makes it sound extremely dangerous and exciting. Why is it such an immediate and desperately grave danger that it has a higher priority than other things in which we all believe?

The noble Earl has just made an ingenuous comment. I am not over-excited and this matter has not been given any greater priority than anything else in the Bill. We believe that it is part of a package of measures needed to tackle a problem.

Secondly, I said earlier that we know that in 1994 more than 10,000 people were working here illegally. That is 10,000 jobs which were denied to people who are here in a bona fide manner and who could have taken up those jobs. Every job that is taken by somebody who is illegally in this country is denied to a person who is legally in this country and looking for work. Therefore, we do regard this as an important matter. We believe that the period of grace would produce a loophole and would allow the practice to continue. It is our job and our intention that that should be stopped. But we are not putting that at the top of the agenda; it is part of a complete package. That package consists of providing more money to tackle the problem; to have more people working within the system; to have more technology to speed up the system; and to introduce legal measures which will combat the problem from all angles.

We hope that that will make way for two benefits. First, it will continue to improve race relations in this country. And, also, it will allow genuine asylum seekers to be processed more quickly.

I am very sorry that the noble Baroness should think that I was making an ingenuous comment. I asked that question in very genuine puzzlement and I have been puzzled throughout the debate on this and on the previous clause. I badly wanted an answer and I have not received one. Of course we are agreed that those 10,000 people should not have been working and that in many cases, they are taking jobs from other people. My recollection—and it is only a recollection because I have not found the relevant page in my papers—is that the cost of the clause to business is estimated at being around —11 million. That is a rather expensive way of buying jobs. If a proposal to buy jobs in that way had come from this side of the Committee, I cannot help wondering whether the Government would have described them as "bogus" jobs.

A very high priority is being given here to the prevention of illegal immigration. Granted that there are many ills which this country faces—and that is one of them—we believe that the Bill is making it rather more important than all the rest. I genuinely do not understand why that is so, but I would like to.

I should like to ask a question which arises out of something said by the noble Lord, Lord Renton, when he referred to the employer having reason to suspect that a person coming before him as an applicant for a job was an illegal entrant. The employer has no way of knowing whether the person presenting himself for a job is an immigrant or someone who is native to this country. The noble Baroness, Lady Gardner of Parkes, said earlier that she thought that the level of illegal immigration among Australians was very high. Indeed, we all know Australians whose use of the Queen's English is virtually indistinguishable from someone who is a native of this country.

I should point out that my noble friend sitting in front of me knows the person whom I have in mind; indeed, he is a mutual friend. If noble Lords met him and listened to him speaking they would certainly not be aware that he came from Melbourne. Therefore, if he presented himself to an employer, the latter would have to play safe and assume that he may be an immigrant and thus demand production of the relevant documents.

I am saying that the employer does not only have to make a prior judgment as to whether or not the person applying for a job may be an immigrant and therefore request sight of his national insurance number on his P.45. He will have to demand the P.45, or the equivalent document, from every single person whom he interviews. I should like the Minister to confirm that fact. I believe that that is an important burden upon employers and one which not all of them may realise. If there are only 10,000 illegal entrants, they may think that that represents a tiny fraction of potential employees and that they will easily be able to identify them by some para-psychological means. However, that situation only applies if, as we suspect, the employer takes into consideration the colour of the person's skin. We are not suggesting any one is racist in that connection. We are just saying that, on balance, if a person with a black skin comes before an employer to apply for a job, then it is more likely that he will be an immigrant than someone with a white skin, even though there are many immigrants with white skins who may not be so readily identifiable.

Therefore, to be on the safe side, the employer will have to check the documentation and record it in respect of every single person who enters his firm. Employers should be wise to that fact and not think that they will only have to deal with a tiny minority. I believe that the noble Lord, Lord Renton, put his finger on a point which has not really emerged during the course of our debates thus far.

If I may say so, there is a simple answer for the noble Lord, Lord Avebury. There are all kinds of things which may cause the employer to wonder whether the person is a local resident, whatever the colour of his skin. I shall give Members of the Committee one example. Let us suppose that a man comes along seeking a job dressed obviously in Asian clothing, speaking very broken English and looking bewildered. The employer may ask him where he was last employed and the man has to say that he has never been employed before. The employer will then ask, "How long have you been here?" and the answer may well be, "Some weeks". That response may raise doubts in the employer's mind. I do not want to detain Members of the Committee at this late hour by enumerating more examples, but I believe that that is a very clear and obvious one.

Does not the noble Lord, Lord Renton, realise that in everything except the time mentioned in that example the person he described might perfectly well have been born and bred in Bradford?

Of course, that is absolutely true. That is why the securing of a document would actually make that fact obvious and would be a defence for the employer. In our guidance to employers we intend to suggest that, whatever their recruitment policy, they apply it right across all employees. It is also fair to say that about 90 per cent. of companies in this country—and that is a very high percentage—employ five or fewer employees. Indeed, it is only a very small percentage of companies that have 100 or fewer employees and even a smaller percentage, a tiny percentage, which have more than 100 employees.

Therefore, we can say that employers should apply the policy fairly. Further—and I shall not use my noble friend's example for the purpose of what I have to say—if an employer was simply applying the policy to someone with a black face, or someone with an accent or, indeed, someone whom he thought fell into the ethnic minority mould, then the Race Relations Act would apply. That would be a clear case of discrimination and would be caught by the race relations legislation; and quite rightly so. We believe that that should be fairly applied.

Of course, under this legislation it is open to an employer to carry out no checks, and not to avail himself of a defence. He can take the risk that someone may be picked up because he is so sure that his employment policies and recruitment policies are such that he does not have to do anything more. Many employers will have to do nothing more because what they do more than covers the requirements under this legislation. My own view is that if employers, simply as a routine measure, ask for national insurance numbers, P.45 numbers and some documentation that is specified, they have an absolute defence, with the exception of knowing that the people concerned were acting illegally in the first place. I think that Members of the Committee are seeing much more in this than there is. The amendment is neither desirable nor necessary.

9.15 p.m.

I have listened with interest to the many interesting contributions on this amendment. Having listened to the arguments, I concede that two months may be too long a period. If the Minister had suggested that perhaps a month or two weeks would be an appropriate period, I would have accepted that that appeared to meet my main concern. I repeat that I accept that two months is too long a period. But having said that, the argument for some period of grace seems to me to be as strong as ever. I am not persuaded by the arguments I have heard. I shall develop that further. The Minister talked about unscrupulous employers. No one condones them. There are, of course, some unscrupulous employers, but there are also many scrupulous employers who want to do the right thing. I fear that they are the ones who will be caught by these measures.

I have discussed the Bill with small employers. They are concerned about how to tackle the detailed requirements they are asked to meet. Therefore it is not an idle statement to say that I am worried about the good employers who will find life much more difficult.

The Minister also referred to a situation where an employer may wish to employ a number of people, some of whom have the right documents but others of whom do not. Given what has been said this evening, and given the Government's policy, it is almost inevitable that an employer would say, "I shall choose to fill the vacancy, or vacancies, from among those people who have one of the documents." That makes sense, does it not? If it so happens that the people without documents are black and the people with the documents are white, there would be a basis for saying—

I said, if it so happened. The Minister cannot say no to that. That is a bit of speculation on my part. How can the Minister contradict that? I give way.

If the noble Lord will allow me to say so, the distinguishing feature would not be whether they were black, white or green, but whether they had the right documentation or whether they did not. That is what would distinguish them. The fact that they may be Ukrainian, Afro-Caribbean or whatever would be an incidental factor. I have said that if employers discriminate on the grounds of colour, they would be caught by the Race Relations Act.

I had not finished the sentence that started with "If". I was going to say that if it happened, in the hypothetical example I am putting forward, that potential employees who are without documents are black, I do not suppose there would be a case for racial discrimination because the employer could defend himself from such an accusation by saying that he chose from among people who produced the relevant documents. That is, I think, almost self-evident. However, the problem is that by making it more difficult for employers, they will inevitably choose to employ those individuals whom it is easier to employ. Having looked with interest at the draft statutory instrument—that is to say, the specified documents as regards employment restrictions, which have been made generally available—I contend that it is more likely that black people will have difficulties in arriving with the relevant documents than will white people.

The Minister asks why that is so. I am about to explain that. They may have more difficulty because if, for example, they are asylum seekers and have been in this country for six months, after which they are normally allowed to take employment, the papers they need to obtain from the Home Office to confirm that fact are not all that easy to assess. In my experience at the Refugee Council the documentation that was produced was sometimes not clear either to potential employers, or indeed to DSS offices. There have been difficulties with such documents. The matter is not that clear-cut. Certainly, if the Minister were to look at some of those documents I believe she would understand that an employer who is not experienced in this matter would find them more difficult to assess than if, for example, he were given a birth certificate issued in the United Kingdom. That is one example of why there may be difficulties.

I shall give the Minister another example that does not concern a black person at all. It is perfectly possible for someone to have arrived from Ireland who would not need to have any of the documents we are discussing. Such a person would be in this country quite legitimately and would be entitled to work quite legitimately. However, he would not be able to produce the documentation we have been discussing because he simply would not have it.

I give the Minister a further example. Let us take the case of a school-leaver who is seeking a job and is willing to accept a fairly casual job in the catering industry, or in an industry of that sort. The school-leaver might have no documentation—at least, not the documentation specified in the schedule. The school-leaver might have a report (or some such document) from his or her school as evidence of education. That would not be evidence within the schedule. Therefore, such a school-leaver might have more difficulty.

This measure is called the Asylum and Immigration Bill. It would not be surprising if the effect of the provision were to make employers more reluctant to employ black people. If we give a short period of grace, I think that that would help matters along. We argue that it would make it easier for employers to do the right thing: to take someone on and to use, let us say, the two week period of grace to check the documentation and establish that the employer, in employing the person, was within the law.

I had hoped to have a further response from the Minister, but in the absence of such a response, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[ Amendments Nos. 86 and 87 not moved.]

moved Amendment No. 88:

Page 6, line 22, at end insert ("and
(c) having regard to the nature of the employment or of the employer, all reasonable steps were taken before the employment began to establish that the employment of the employee would not constitute an offence under this section.").

The noble Lord said: This has to be a probing amendment because it is difficult to find the right words to provide what we seek: to persuade the Government that there has to be a degree of flexibility in the clause for small employers and short-term employment. I do not claim for a moment that we have the right phrasing by using the words,

"having regard to the nature of the employment or of the employer".

The Government will know from the results of their consultation that the concern expressed about the clause has not been from large, well-established employers. On the whole they have reasonably formal recruitment procedures. They would expect to examine some document in any case and would have no difficulty with the implementation of the clause.

The problem is as regards small employers. I do not even know the right definition of a small employer. Does it apply to an employer with 10 or 20 employees? I do not know. I have spent 30 years of my life as an employer, starting with only one employee and ending up after 30 years—the Committee might not consider it a great success—with something like 40 employees. Nevertheless, I have been through all the stages of employment of small numbers as an employer. When I first started as an employer in the 1960s formalities now imposed on employers—I had to suffer them in the early 1990s—would have driven me crazy. I have got used to them after a number of years, but I do not know whether at the beginning I could have survived the degree of regulation imposed on small businesses in the 1980s and 1990s.

I do not ask the Government to accept the wording of the amendment but to understand the purpose underlying it. Let us take an extreme case. A self-employed person may wish to employ another person for a short period for a certain purpose. That is exactly the kind of job creation of which the Government claim to be in favour in all their propaganda. However, this provision will be an obstacle to such short-term, part-time or casual employment. From the point of view of someone's career, it may not be ideal employment. But it is an addition to employment. Under the clause as drafted, small employers and employers of short-term labour will find themselves in exactly the same position with no concessions whatsoever, as large, formalised employers with employment departments, human resource management departments, personnel departments, and so on.

I do not insist on the wording. However, I beg the Government to pay some attention to the needs of small employers and specific forms of short-term, part-time employment. I beg to move.

One other point which I think needs making is well within the terms of the amendment. It is the difficulty some people experience, when they have not previously been employed, in obtaining national insurance numbers. There are many cases of the Benefits Agency saying, "Come back when you have a job". I appreciate that the noble Baroness is in no position to answer immediately and without warning for the Department of Social Security. However, if the clause is to go through, before we are through the Report stage we need a fairly tightly worded assurance from the Department of Social Security that it will do something about the situation, especially for school-leavers who have never had previous work experience. If the school-leavers can get the national insurance number before they have done any work, it will assist matters.

In passing, perhaps I may say that the department is unjustly maligned as to the alleged 20,000 national insurance numbers floating loose. I have read its replies to the Select Committee and I find them convincing. Many of the cases relate to people who are dead but whose dependants still receive pensions based on their contributions or to people who have been abroad, as I have, and might need the number again when they come back. I was grateful that mine had not been destroyed. If the point is raised later in the debate, as it may well be, I shall defend the department on it. But I should like to see it take action on people who cannot get a national insurance number until they have a job. Without that, the clause will be a misery for young school-leavers.

I am not sure that the noble Earl's remarks relate specifically to this amendment. I understand from the way in which the noble Lord, Lord McIntosh, introduced the amendment that I should assume that it is taken separately from Amendment No. 85. If so, it would require that for the defence to be established under subsection (3), the employer would need to be able to show that he had taken all reasonable steps before the employment began to establish that the employment would not constitute an offence, as well as having seen and copied a relevant document. What constituted "all reasonable steps" would depend, under the terms of the amendment, on the nature of the employment or the employer.

I initially believed that Amendment No. 88 was intended to relate quite directly to Amendment No. 85 in an attempt to retain a requirement on employers to have considered the question of whether the employment of an individual would constitute an offence before the employment began. Either way, taken together those amendments would have meant that in order to establish a defence an employer would need to have been able to show that he had taken all reasonable steps before the employment began to establish that the employment would not constitute an offence. However, the employer would have two months, if we take this amendment with Amendment No. 85, from the commencement of the employment in order to obtain documentary evidence showing that the employment did not constitute an offence.

I should certainly be unhappy about the introduction of the concept of reasonableness into the defence we intend to provide under Clause 8. As the clause is drafted, an employer could be certain whether he had a defence. We think certainty is important to employers; they do not wish to leave it to subjective judgment on reasonableness. Under this proposal, the employer could need to enter into argument about whether actions taken before the employment began were reasonable in his circumstances. That would introduce an element of confusion and doubt.

A key point made by a number of respondents to our consultation document was the importance of it being clear to employers what they will need to do to establish a defence. The amendment would not enable us to provide employers with that clarity. I urge the Committee to reject the amendment.

The Minister's response was in large part based on her assumption that the amendment was intended to be linked with Amendment No. 85. That is not the case, and to that extent, therefore, her response is not relevant. As I admitted at the beginning she has a point. I do not think the wording is adequate to the purpose that we intend to achieve. In particular, looking again at the wording of the amendment, I see that we have linked (b) and (c) with "and". Clearly that would be inappropriate. It would have been our intention in ideal circumstances to have said "or". Then we should have had to go back and change the relationship between (a) and (b). So technically the amendment is defective.

However, I take note of the fact and place it on record that, even allowing for the inefficiencies of our amendments, the Minister has failed to pay attention to the needs of small businesses and short-term casual or part-time labour. Nothing in this clause allows that sort of flexibility, which is essential for employers who are not experienced in this kind of form filling.

I do not know whether the Minister has ever been in the position, as I have been, of establishing a company without an immediate intention of trading. Within a week or two, you receive from the Inland Revenue an enormous quantity of documentation—it can be 50 centimetres high—on the assumption that you will be employing people and will be involved in the PAYE system. That kind of thing, together with VAT returns, is the most abominable burden in the eyes of small employers.

What is proposed here is an additional burden for small employers. There is no "tempering the wind to the shorn lamb". There is no provision for those who might be encouraged to provide employment on a short-term basis or a casual basis. They know now that there are to be no special concessions.

I made no strong claim for the wording of my amendments and the Minister knows that. But she, in turn, has made no concessions whatsoever to the needs of small employers. That will be noted. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.30 p.m.

moved Amendment No. 89:

Page 6, line 22, at end insert ("; or
(c) the employment was of such a casual and short-term nature, and the number of employees was such that it was not reasonably practicable for the employer to obtain such a document from the employee.").

The noble Viscount said: This amendment is concerned with a serious practical problem of compliance with the duties envisaged by the Government under Clause 8 that will be faced by employers of short-term casual workers in the agricultural and horticultural industries. Rather than declaring an interest, perhaps I should say that I have had some 25 years' experience of farming in Lincolnshire.

Employers commit an offence if they employ illegal immigrants. But in many parts of the countryside, such as East Anglia and Kent, where the crops grown require the employment of significant numbers of casual labour to harvest them, employers will be faced with a major practical difficulty.

Casual workers are engaged by the hour or day, and can come and go as they wish. They are paid at the end of each day or at the time they decide to leave work. Typically, these workers either make their own travel arrangements or a vehicle is dispatched to the nearest town: the workers are picked up, transported to the field, pick the crop and are paid in cash. When they arrive at work they will be under the supervision of a chargehand who may himself be employed only on a temporary basis.

Most casual workers do not carry documentation with them, and do not know their NI number. In many cases, the work is out in the fields, many miles from the farm or the farm office. So the photocopying of any documents they do have is out of the question.

There is often a questionmark, too, in relation to who is the employer. In many cases the workers will not be recruited by the farmer but by a gangmaster who also transports them to and from work. Sometimes a farmer pays the gangmaster; others may pay the workers directly. In some cases, depending on the nature of the work, the status of the worker is also questionable. Some could be held to be self-employed. The numbers of casuals involved in a single operation could run into hundreds each day.

In such circumstances other government departments—the DSS and the Inland Revenue—already accept that it is impossible for the employer to identify individual workers, and therefore special tax and national insurance arrangements apply to them.

Amendment No. 89 extends the defences available to an employer prosecuted under Clause 8. As an alternative to the employer showing that he had obtained the relevant document from the employee, he would be able to defend himself upon the basis that it was "not reasonably practicable" for him to obtain such documents from a large number of casual, short-term employees.

Coming, as the Minister does, from East Anglia, I am sure that she will have seen large gangs of casual employees at work harvesting the crops, whether they be flowers, fruit or potatoes, and will therefore understand the case I have made. I hope that she will give it her sympathetic attention. I beg to move.

As a native of Kent and now living in East Anglia, I remember in my youth seeing the hop-pickers and fruit-pickers who came from the East End of London in groups. Now in Huntingdonshire for some years, all potato harvesting on a large scale has been done by contract hands and it is rare that a gang is employed for more than one week at a time. Amendment No. 89 deserves some consideration from the Minister. It may be that the Government can find a better solution; but the one put forward by my noble friend Lord Addison is worthy of consideration.

I look forward to hearing what my noble friend the Minister says in response to this amendment. I am another East Anglian. I am no longer involved in the business of employing casual labour for the picking of vegetables, potatoes or fruit. But this is not exclusively an agricultural problem and I shall return to that in a moment.

Short-term employment is not unknown, as has already been mentioned this evening by the noble Baroness, Lady Seear, in the construction industry where not least of the problems is identifying who the prime employer is. Is it the prime contract holder who has responsibility—dealing for the moment with the construction industry—for the total site, the design and the construction of the total project? Or, as is so often the case, is it a subcontractor who is being employed in order to plaster the walls or to put the wiring into the building? He may have a deadline to finish the work by Saturday night and decide to take on three extra people to complete the work. In that instance I would hope to hear from my noble friend that the prime contractor is exonerated and that it is the responsibility of the subcontractor to ensure that the workers comply with the responsibility required by the law.

If one comes back to the agricultural situation and draws a parallel example, one may have a situation where a landowner employs a gangmaster who provides the labour. It is quite clear that the gangmaster is in the position of the subcontracting employer and should properly be held responsible for the bona fides of those he brings onto the landowner's field. The other side of the argument is that if the landowner himself owns an old banger of a bus which he drives around the local villages, filling it with various local people, then the responsibility lies in his hands.

This form of employment is already well recognised and well known to the DSS, who have been trying to deal with the scores of people who are here today and gone tomorrow. Although it is somewhat unusual at the moment in East Anglia, occasionally it rains and it is not possible to work. This is therefore a real problem and I hope that the Minister can give a somewhat sympathetic response to the specific difficulties of this rather irrational, illogical but nonetheless essential type of employment.

Before my noble friend sits down, I think he may wish to make it clear that in the context of this clause it is the gangmaster and not the farmer with whom the gangmaster contracts who is the employer.

I hoped I had made that point clear. If not, I would have been guilty of imprecise language.

Having made a similar point on a previous amendment, I very much wish to support this amendment.

I wish to support the amendment as well. I do not have any direct experience of farming but I wonder whether there are all these gangmasters about. From what I understand of some of the employment in East Anglia and Kent, it seems that there are not gangmasters. Casual workers arrive and hope to get jobs, perhaps on a daily basis. There is no one there but the farmer who may well be employing the casual workers on a seasonal basis to harvest crops. The tradition of Londoners going hop picking in Kent is a long established one.

We have a similar difficulty in the construction industry. There may be gangmasters there—I do not know—but there is still that type of problem. Surely the Government do not want to make it impossible for people to be employed on a casual basis when that is the way in which that type of employment works best. It seems to me that there is a point here. The National Farmers Union accepts the point. I hope the Minister will make some concession.

I hoped I had made my point perfectly plain, but I do not think the noble Lord, Lord Dubs, was listening. I thought I said that where a farmer undertook this responsibility for himself he carried the responsibility himself.

Perhaps I may add a few words. In Scotland a substantial number of people from southern Ireland are employed on the casual basis just described. They never seem to possess any papers about anything.

I thank the noble Earl for supporting the point I made in relation to an earlier amendment. Perhaps I may turn to the comments of the noble Lord, Lord Dixon-Smith. I can assure him that I was listening. He said that it was the farmer's responsibility. My point is that when a farmer in Kent takes on a casual worker to harvest crops it is very difficult to expect the farmer to go through the processes required by the Bill. If labour is taken on in that casual way it will be difficult to impose on the farmer the burden of dealing with the documentation that is required. Whether it is the farmer or the gangmaster, the strength of the criticism of the Government's proposal in relation to this matter stands.

The amendment would provide an additional defence in some circumstances for those employing people on a casual and short-term basis. Under its terms an employer would not be guilty of an offence under Clause 8 if he could prove that the employment concerned was of a casual and short-term nature and that the number of employees involved was such that it was not reasonably practicable for the employer to obtain a document from the employee concerned.

The amendment introduces a degree of uncertainty into what would otherwise be a clear-cut matter. Employers would be required to weigh the reasonableness and the practicability of making checks in the light of the number of employees involved in casual and short-term employment. Having done so, they could still not be sure that in seeking to rely on the new defence provided in the amendment they would not be guilty of an offence, given the subjective nature of the test to be applied.

It would also weaken the impact of Clause 8 by potentially removing from its ambit a significant number of casual and short-term employments where the employer judged it impracticable to make the necessary checks. It would provide a loophole which could be readily exploited by unscrupulous racketeers trying to evade the impact of the clause. All they would have to do would be to engage sufficiently large numbers of those not entitled to work and make sure that they worked on a casual basis. We believe that employers must have clear and objective guidance if what is required of them under Clause 8 is to be kept to a minimum. The amendment would not enable us to provide such guidance.

The Government recognise the difficulties faced by the agricultural and horticultural industries in particular in securing sufficient casual workers who are legally entitled to do such work. The seasonal agricultural workers' scheme, which enables overseas students to work on farms from May to November each year as part of a youth mobility scheme, provides such a source. But we accept that the present quota of 5,550 falls short of the industry's needs despite efforts to improve recruitment from the resident labour force. We have therefore decided that from the 1997 season that quota will be increased to 10,000, which represents a rise of more than 80 per cent. We believe that that will substantially increase the number of people legally entitled to do seasonal agricultural work and as such will significantly reduce the industry's problems in making checks on casual workers. In the circumstances I hope that, with that concession, my noble friend will not wish to press the amendment.

9.45 p.m.

I thank my noble friend for that reply and all Members of the Committee for their contributions. I am very pleased that the few crumbs of comfort that I thought I might have have turned into something more desirable. However, I am rather worried that 10,000 Australian illegal immigrants may turn up in East Anglia. That does not seem to be very many when we consider the figures we heard earlier. Will there be any flexibility? Will my noble friend give me a little more comfort in possibly increasing that number if there is a need?

My noble friend knows a good deal about Kent and my noble friend Lord Renton and I know a good deal about East Anglia. There will be constraints in East Anglia because horticulture in particular is a very hard-pressed industry. The likelihood of it taking one single employee more than it can afford on to its books is a very remote possibility indeed. It is an industry which runs on very tight profit margins, if any. That will be a very real constraint on the numbers that can be employed. So if 10,000 Australians turn up in East Anglia they will be disappointed. However, I can say to my noble friend that the NFU has made representations to us. This is a steep increase on the present quota of 5,550. We want to see how that goes. It does not require an order in Parliament to increase the number as it is an administrative issue. Therefore, we would consider later representations, but we wish to see how this particular increase works and the degree to which it satisfies the needs of the farmers who particularly employ seasonal labour.

My noble friend has been most helpful. On that basis, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 89ZA:

Page 6, line 22, at end insert—
("(3A) The defence afforded by subsection (3) above shall not be available in any case where the employer knew that his employment of the employee would constitute an offence under this section.").

The noble Baroness said: I spoke to this amendment with Amendment No. 84A. I beg to move.

On Question, amendment agreed to.

moved Amendment No. 89A:

Page 6, line 24, leave out ("5") and insert ("3").

The noble Baroness said: At this late hour I shall move this amendment briefly. The point of it is to reduce the level of fines implied by offences under this clause. Because I am still far from clear whether employers will know exactly what they are required to do to protect themselves from a charge being laid against them for employing an illegal immigrant knowingly or unknowingly, I suggest that the fines implied by level 5 are extremely crushing. Under that level the fine is £5,000 and under level 3 it is £1,000, which is a very big difference. Under the Criminal Justice Act 1991 the fines at each level were substantially increased. My understanding is that as well as a fine of £5,000, an employer can be sent to prison for up to six months for level 5 offences. That seems to be a very ponderous and heavy burden for someone to bear.

In a sense there is a balance in what the noble Baroness said at an earlier stage about the clarity that will be laid down as to what employers are expected to do in order to protect themselves. However, I was a little troubled that she felt unable to accept any of the amendments in the last group moved by the noble Lord, Lord McIntosh, which were an attempt to pursue a much clearer set of indications about what the employers are supposed to do.

I hope that noble Lords who are concerned about this clause and its possible effect on employers will consider supporting the amendment. I think that a penalty as heavy as level 5—that is, of up to —5,000 or up to six months' imprisonment—is a substantial penalty to impose on an employer who may well be unclear about exactly what he is supposed to do and about whether he has been through all the proper documents. The noble Viscount, Lord Addison, has just given an example of how difficult it is for employers in some industries to get the necessary documents.

I must confess that I am troubled by the provisions. I do not really understand why the Home Secretary feels obliged to increase the fines to level 5 for this offence. Although I recognise that there are some bad cases, it will be a tremendously heavy fine for most employers. I am troubled by the fact that once again as we have argued repeatedly from these Benches, and as has been argued from the Cross-Benches and from the Benches of the Lords Spiritual, rather than face that level of fine many employers will decide not to employ anybody who might conceivably be defined as an "immigrant" for the purposes of this clause. I beg to move.

I am afraid that this clause would be incomplete without these two subsections. An employer can be either an individual, a partnership, a corporation or a company—

Perhaps I may intervene. I was speaking to Amendment No. 89A, the sole purpose of which is to reduce the maximum penalty attracted by an offence under this clause. I believe that the noble Lord is addressing the next amendment.

This amendment raises a question about priorities to which I have been trying to get an answer for some time. There is no argument between us about whether there should be a fine. The question relates to the level of the fine. It might help if we could have a comparative scale of fines. Let us take an example which is more extreme than anything that we are arguing here. It would cause us a certain amount of surprise to find people being imprisoned for being drunk and disorderly if there had been no threat to life.

Perhaps we could be told what are the fines on employers who are found guilty of unfair dismissal. What are the fines on employers who keep people working for longer than is allowed without a meal break? What are the fines on employers for using dangerous and unguarded machinery? What are the fines on employers for polluting rivers, as happens from time to time? We need to know that comparative information. We need to put this offence on a comparative scale with other offences. We then need to consider whether the gravity which has been given to this particular offence is proportionate to the offence. That is a real question. I should like to have some material to help to answer it.

There really is a misunderstanding on this part of the Bill. The amendment would set the maximum penalty for the new offence at level 3—currently £1,000—rather than at level 5—currently £5,000. Both of those figures are maximum figures. There are no powers whatever in Clause 8 to imprison anybody, so imprisonment is not an alternative to the fines.

In setting the maximum penalty for the new offence, the most important consideration is, as always, to ensure that the courts will be able to sentence appropriately the most serious examples of the offence. Within that maximum penalty, it is then for the courts to set the penalty in individual cases taking account of the seriousness of the particular offence and the financial circumstances of the offender.

We do not believe that a maximum penalty of just £1,000 would allow the courts adequately to deal with, for example, the deliberately exploitative employer who employs people he knows, or suspects, to be working illegally simply because he can pay them lower wages. We believe that a maximum penalty of £5,000 would allow the courts to deal with such offenders in an appropriate fashion. We are setting a level within which there can be proper reflection of the seriousness or otherwise of the offence. Obviously, in the examples given by the noble Baroness it will operate at the lower end of the level 5 fine of £5,000, and for the most serious offences that I have referred to a fine of up to £5,000 can be imposed on an employer.

The noble Baroness has still not addressed the comparative point which exercises me quite considerably. To take another comparative figure, last Tuesday night we discussed carriers' liability. In that case the fine is a maximum of £2,000. This is more than twice the fine that is imposed upon carriers. Why is this a much more serious offence?

I understand that in the case of carriers' liability it is a flat £2,000. It is not a question of the fine going up to anything; it is a £2,000 levy, charge or whatever which is being considered. I am afraid that I am unable to provide the levels of fines in cases of unfair dismissal, working with unguarded machinery and so on. Sometimes industrial tribunals set their own penalties to be imposed on employers. If the noble Earl wishes me to write to him about it I shall do so. For the more serious exploitative examples of employing illegal immigrants, we take the view that £1,000 is too low and that a fine of up to £5,000 will allow the seriousness of the offence to be reflected in the fine. Of course, for less serious cases we expect it to operate at a much lower level than £5,000 but within that range.

As I understand it, under Clause 8(1) an offence is committed if an employer employs a person who is an illegal immigrant. Therefore, the fine is for an offence which relates to a single employee or immigrant. If an employer employs five or ten at a time the maximum fine can be £5,000 times five or ten. I do not say that the maximum fine will always be imposed. The Minister is right about that. However, it is a specific offence which relates to a single employee. Therefore, the fines multiply as the number of employees multiplies.

The noble Lord has got me on that technical question. My understanding is that if the police are concerned about a particular employer whose workforce is made up entirely of illegal immigrants the employer will be prosecuted for employing illegal entrants. I am not sure that the fine would be £5,000 times the number of persons employed. I would need to take advice on that. I do not know.

The Bill is very clear. Subsection (1) reads:

"Subject to subsection (3) below, if any person (`the employer') employs an immigrant ('the employee') … the employer shall be guilty of an offence".
Subsection (4) provides:
"A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale".
There is no doubt what the Bill says.

If they are separate offences the fine may be £1,000 in each case, as long as it is within the £5,000. The fine may be £500 in each case. It is a matter for the court to determine the right fine to impose on the employer who is guilty of that particular offence. The noble Lord is absolutely right in his definition of the offence. If an employer employs a person without availing himself of a defence, he will be guilty of an offence and it will be for the court to determine the matter.

I found that a fascinating exchange. I am not completely clear what kind of fine can be levied against what employer for employing what number of employees. This is a point that we may wish to clear up. If the noble Lord, Lord McIntosh, is right, the following example jumps to my mind. Let us suppose that a farmer, perhaps in East Anglia, employs a family that wants to work on the harvest. He employs five people. Let us assume that he is a relatively small farmer. If the ultimate amount that he has to pay for employing those five people, who turn out to be here without proper papers, is £25,000, such a fine could break a small farmer. It is an important point to clear up. Let me say right away that I do not know the answer, but it is an important point to clarify.

At this late hour I do not want to keep the Committee up for ever, but perhaps I can say just one other thing. A great deal turns on the issue of the level of fine and how clear we can be with employers about what is required. There must be a balance between the two. The debate has not clarified for me what documents will be needed for this extremely difficult set of conditions that employees might be in breach of.

I wonder whether the Minister would consider the simple test that my noble friend Lord Avebury mentioned earlier; that is to say, a national insurance card, or, failing that, a birth certificate. The more complex the documents, substitute documents or copy documents required, the greater the danger of some employer of good will being caught by a substantial fine. I believe I have talked long enough for the Minister to find the answer to the question. If not, I fully understand that she may come back to me in correspondence or on Report.

10 p.m.

One piece of information that I cannot ascertain at the moment is whether more than one offence is committed if there is more than one illegal employee. I shall take advice. First, there is an assumption that the £5,000 maximum would be levied in every case. That is a matter for the courts. The seriousness would be reflected in the amount of fine determined by the courts.

The two pieces of documentation that the noble Baroness mentioned would be an absolute defence for the employer. Once an employer has noted and recorded a national insurance number, or any of the documents specified, which include a birth certificate, then of course the employer would avail himself of the defence and there would be no offence committed. It is for people who do not avail themselves of a defence who would be guilty of an offence.

I thank the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[ Amendment No. 90 not moved.]

moved Amendment No. 91:

Page 6, line 36, at end insert—
("() There shall be included in an order by the Secretary of State under this section a requirement that where for purposes of subsection (3)(a) an employer inspects a document prior to his employment of any person he shall inspect a document in respect of each person prior to employing him.").

The noble Lord said: The purpose of this amendment is to ensure that every employee who applies for a job is asked by the employer to produce the necessary documents. It is intended to ensure that there is no discrimination by the employer who might otherwise be tempted to say to his white employees who sound as if they are British, "We will take you on", but to a potential employee who happens to be black, or clearly from some other country, perhaps Bosnia, "I want documents." That would be discriminatory.

The purpose of the amendment is to ensure that where documentation is asked for, it is asked of all potential employees regardless of race, background or origin. In that way we have at least some assurance that everyone has a chance of being considered for a job and that no further discrimination is brought into the system through the provisions of Clause 8. I beg to move.

It is not quite the right approach, but I am in full agreement with the spirit of the amendment. It satisfies the condition I proposed earlier; that we would not make it an offence for an employer to take on an immigrant who did not satisfy the test but would make it an offence for the employer not to have the documentation presented to him at the time he took on the new worker. That would make matters even across the board. Earlier today we established the fact that an employer who did not require such documentation from a potential worker was putting himself at risk. Under the terms of the Bill an employer is not obliged to ask for a national insurance document or for any of the other papers which may be specified in the order. However, if he fails to do so, he will run the risk of being prosecuted. Therefore, in effect and in practice he will demand such documentation from every worker who presents himself.

I believe that the intention of the amendment is that it should be spelt out on the face of the Bill that the employer will demand such documentation. I support that and would go further by providing that the offence should be one of failing to ask for the documentation or of wilfully employing somebody who the employer knows is presenting false documentation. When I tried to make that point earlier the Minister suggested that I was putting an enormous additional burden on employers. I wish to refute that suggestion and to ensure that anyone who reads Hansard will be aware that my proposal would not place an additional burden on employers but spells out clearly the employers' obligation in an objective way. The employer must look at the documentation and must be without knowledge of any fraudulence on the part of the applicant.

Compliance with the Bill is a very simple matter. The employer simply has to look at the national insurance number on whatever the document and to record the fact that it has been presented to him. Perhaps he could take a photocopy of the national insurance number on the P.45 or whatever other document, such as a passport, is presented to him. Once he has done that he has extinguished his liability under the Bill. The system would then be uniform for any employee who presents himself. There would be no possibility of racial discrimination, which was mentioned in regard to earlier amendments, and everybody would know where they stood. The employee would bring along the document, the employer would examine it, that would be recorded and it would be the end of the matter unless it was subsequently alleged that the employer knowingly accepted a document that was fraudulent. That would be the only other condition that must be satisfied and it would be the equivalent to the provisions in the Minister's Amendment No. 89ZA.

We have the germ of an amendment to the clause which would not only enable us to remove the term "immigrant", which the Minister has promised to do, but would spell out on the face of the Bill precisely what the employer must do in terms which are unambiguous, plain and cause the least amount of work on the part of the employer.

The Minister will remember that this was one of the matters raised in our meeting with the Home Secretary. The noble Baroness then made it clear that her expectation was that all employers will inspect a document. She has repeated that in the Chamber tonight. If that is the case, how will employers know that that is the expectation?

Perhaps I may apologise to the Minister for being absent at an earlier stage in the Committee when she made the welcome concession about the word "immigrant", and I thank her for that.

The amendment would place on the face of the Bill a requirement that where an employer chooses to establish a defence in respect of any new employee he must do so in respect of all new employees. Implicit in the amendment is the intention that employers should not simply direct their checks at people from the ethnic minorities. Under the formulation it would be made clear in Clause 8 that any employer who opts to make checks will be required by order to make checks on all new employees. In that way an employer would both be able to avoid conviction under Clause 8 and be more likely to avoid challenge under the Race Relations Act 1976.

We have made clear all along that employers will need to treat all new employees in the same way. Indeed, this was set out in our consultation document. I should explain to the noble Lord, Lord Avebury, that a consultation document has been issued on the subject. We intend to issue guidance. I understand the point the noble Lord makes. It is extremely difficult to understand anything by reading the "legalese" of a statute. Therefore, we believe that the best way to inform employers, in particular smaller employers, of their responsibilities under this Act is to put it in proper guidance in plain English. We intend to do that.

This does not mean that employers will be required to make checks in all cases. Employers will be free to take the risk that they may be employing people not entitled to work if they choose not to make checks. However, given the straightforwardness of the checks we expect that most employers will choose to make them.

We have also made clear all along that this legislation is positively not a licence to discriminate. Indeed it has been clear to us that in practice employers will need to check all employees—if they choose to check any—in order to comply with the Race Relations Act. However, it is not clear that there is anything to be gained by having this on the face of the Bill rather than simply explained in the guidelines which will be made available to all employers. Either way the remedy available if employers do not treat all new employees equally would be by way of a complaint under the Race Relations Act. This amendment would not alter the position in any way.

We have made clear from the outset that we will be providing guidance to employers. In part this will explain to them what they will need to do to establish a defence. It will also provide advice which will help them to ensure that their selection processes are fair and lawful and do not breach the race relations legislation. The need to treat all new employees in the same way will clearly be a key part of that guidance.

I believe that the Government's intentions are clear and that employers will be in no doubt as to what is required of them. The amendment would not add anything to the clause. I therefore urge the Committee to reject it.

The noble Baroness says that this clause is not a licence to discriminate. I welcome that, and I accept entirely the sincerity of the Minister's intention. The question is about the effect.

I am reminded of a remark by Archbishop Laud. He was reading through a form of service for reconciling to Christianity those who, while captive and in slavery in Algiers, had been with a degree of coercion converted to Islam. He said that the service laid down that they were to stand in a church porch in a white sheet doing penance throughout a day. Seeing that, Laud wrote in the margin: "Memorandum. Small boys not to gather to laugh at them." I cannot help wondering whether one hope is just about as likely to be realised as the other.

I am always interested and sometimes amused by the noble Earl's references back into the annals of history and his incredible font of true-life references in our debates. If there is that kind of open discrimination, we believe that the Race Relations Act is the proper way to deal with it. We believe that employers will act fairly. My noble and learned friend the Lord Advocate mentioned to me a few moments ago that if the person seeking work has lived next door to the company and has known the people there since he was born, it would be entirely proper for an employer not to seek a defence in the case of that particular person. However, if the applicants who came along had strange accents or were of a colour which made the employer say, "My goodness, this must be an illegal immigrant" that situation is caught by the race relations legislation.

We trust employers to be sensible and not to discriminate on the basis of race, colour or creed. We believe that to put this provision on the face of the Bill would impose an unnecessary burden on employers. They should be free to avail themselves of the defence if they need to. Having said that, as I said to the right reverend Prelate, we have an expectation that the provision will be applied fairly and universally because that is the best possible defence for any employer.

10.15 p.m.

Before the Minister concludes her response, can she say whether this will apply to domestic employment? I am not trying to be facetious in any way but, for example, if a housewife takes on a cleaning lady—that is, if she is lucky enough to find one—does it mean that she will have to go through the process, or is there a domestic exemption in that respect? I ask that because there have been some domestic exemptions.

We have already discussed domestic employees this evening. We have said that people must be careful that they are not employing illegal immigrants. Indeed, I believe that there probably are quite a number of illegal immigrants employed in that way. It is the responsibility of employers to assure themselves that the potential employee is not an illegal immigrant.

Before my noble friend the Minister sits down, can she take note of the fact that we are all most grateful to the many Asians who run corner shops and mini supermarkets? If guidance is to be sent out in clear English, perhaps their needs could also be taken into account and, if necessary, translations provided.

I can assure my noble friend that that point will be taken into account.

If the Minister will forgive me, I have one further question. Will additional staff in the Home Office be given the task of answering questions from employers about the operation of the clause? Moreover, where telephone advice is given, will there be written confirmation of it? That could be extremely helpful to a number of small employers, such as those mentioned by the noble Baroness, Lady Seccombe. Indeed, I agree with her in that respect.

We want to keep the burden on employers as light as possible. We also want to be as helpful to them as possible and to explain in the simplest possible way how they can avail themselves of the defence against committing an offence under the Bill. We shall certainly do all that we can in that respect. Indeed, we work very well and very constructively through the employers' federations. With regard to the information that goes out to new employers—that is, people who become employers—we shall certainly find ways and means of ensuring that they understand their obligations under the legislation. As I said, we shall do what we can. I am not sure that we intend to employ new people at the Home Office to tackle the task. But clearly we do not want to make the process so complicated that employers would feel the need to keep telephoning us on a regular basis.

I had not intended to intervene in the debate, but the noble Baroness, Lady Seear, raised a point which might strike home so far as I am concerned in that I could well be an employer of an illegal immigrant for all I know: a cleaning lady. I hope that my noble friend the Minister will publicise the new requirements as fully as possible. Otherwise there may be many people who may find themselves in an extremely embarrassing position.

If I may say so, I believe that a fairly senior person—namely, the President of the United States—found himself in rather a difficult position for that very offence.

Perhaps I may point out that two potential Members of the Cabinet in Washington failed their hearings precisely on that point. Therefore, the noble Lord's concerns are well placed. However, I think that they go slightly wide of the amendment. I believe that I understood correctly what the Minister said in her original response, but perhaps she will be kind enough to confirm my understanding.

The Minister said that the Government's intention was that there should be no discrimination by employers. She said that she would put into the guidelines the sentiments contained in the amendment, so that employers would treat all people equally. However, the Minister also said that she would not accept the amendment because she felt that all employers ought to be free not to have to make checks. I find that a little puzzling. The Minister said that employers should have the freedom not to make checks, yet she accepted the spirit of the amendment and said that she would put it in the guidelines. I do not understand whether or not the Minister wants the provision.

It seems to me that if the amendment is technically defective, then all the Minister has to do is to say so. However, if employers are to know how to behave on the basis suggested and if the Minister agrees with the content of the amendment, I cannot understand why she will not accept it. It seems to me to be counter to that spirit to say that employers ought to be free not to make checks. In other words, I am still puzzled in that respect.

It will be an offence—offences have been created in this Bill—to employ an illegal immigrant. We have provided a defence for employers, which they are free to avail themselves of, or not to avail themselves of. We believe that whatever practice they adopt, that should certainly be a fair practice. We also believe that, in practice, it would be better to apply it universally so that any new people entering a company should be checked according to these rules. We are saying that if an employer believes that his recruitment policies are such that he does not wish to avail himself of the defence, he is free to do that. But I have to say that, if subsequently he is found to be employing an illegal immigrant, he will not have a defence against the offence of employing one.

I thank the Minister for those comments. The amendment states that,

"where for purposes of subsection (3)(a) an employer inspects a document … he shall inspect a document in respect"
of each employee. The amendment does not even say that the employer has to inspect all employees' documents at all times. However, if he adopts a practice of inspecting documents, he must do so for each employee prior to employing him. It is late and I do not wish to press this matter. Perhaps I can withdraw my amendment on the basis that the guidelines will be clear and unambiguous along the lines of what the Minister has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 92:

Page 6, line 36, at end insert—
("() Before making any order under subsection (3), the Secretary of State shall consult such organisations as appear to him to be representative of employers and employees and the Commission for Racial Equality.").

The noble Lord said: In moving Amendment No. 92, I wish to speak also to Amendment No. 94. I rather think that these can be probing amendments because the Minister has referred to the intention of the Government to produce a document containing details of the provisions of the order in response to a number of previous amendments. I welcome that. The need for Amendment No. 92 is heightened by the amendments which the Minister has already persuaded the Committee—by force of votes—should be added to the Bill, and therefore subtracted from the defences available to employers in proceedings under this part of the Bill.

This will inevitably be an enormously complicated series of instructions to employers. The measure comprises statutory obligations which we have been debating tonight. It will comprise the contents of orders under subsections (2)(b), (3)(a) and (3)(b). It will comprise guidance which does not even have the status of orders. It will be enormously difficult for employers to understand what is proposed by the provisions of this clause. We think therefore that it is necessary for there to be two safeguards. The first is the safeguard contained in Amendment No. 92 which states,

"Before making any order under subsection (3)"—

those are the two orders relating to documents and to the retention of documents—the Secretary of State should consult employers' organisations, employees' organisations (I take it that would be the trade unions) and the Commission for Racial Equality which has been closely observing and commenting on the Bill. Before the final decision is taken to bring this measure into effect—that is, the whole of this clause—

"the Secretary of State shall take reasonable steps to circulate to employers a document containing details of the provisions of the order".

I think that the Minister has already said that. The Secretary of State shall also provide,

"facsimile representations of any documents an employee can produce".

It is necessary to do this graphically as well as in words. This evening we have had difficulty understanding the provisions of the clause. I hesitate to suggest this but I think that Ministers must have had some difficulty—as they were being briefed and as they were presenting the clause to us—in understanding the provisions of the clause. I do not think that the whole thing is self-evident and clear in the way that it would have to be for employers. I suggest to Ministers that it would be to their advantage and in no way detract from the effectiveness of the clause if they were to take account of the two stages of consultation proposed in Amendments Nos. 92 and 94. I beg to move.

The amendments seek to promote consultation and to ensure that employers are properly informed about what will be required of them because of this clause. However, neither amendment is necessary. I hope that I can explain why.

Amendment No. 92 would require the Home Secretary to consult the Commission for Racial Equality and organisations chosen by him as being representative of employers and employees before making any order under subsection (3).

While the Government have made clear their commitment to proper consultation with employers and others to ensure that the implementation of Clause 8 is as straightforward as possible, we cannot agree that there should be a statutory requirement to undertake such consultation on each and every occasion the order-making power is to be used. Such a requirement is in our view unnecessary. There could well be occasions where such consultation would achieve nothing except an unhelpful delay.

Consultation will take place where it will be helpful. As part of the consultation on the guidance that the Home Office will be providing for employers—and which we made abundantly clear in our consultation document would take place—I would expect that we will circulate a copy of any draft statutory instrument then available.

If any substantive comments were to be made at that stage then we would consider amending the statutory instrument. But given the purpose and likely content of the statutory instrument, we would anticipate that such comments would be unlikely. It is for Parliament to decide which documents should provide a defence for employers under this provision.

The key will, in our view, be keeping employers and others informed about government policy in this area—and giving employers time to prepare for any changes. These will clearly be the essential ingredients.

The same applies to the second of these amendments. Indeed, it is because we have already made clear our commitment to providing all necessary guidance to employers that this amendment is not necessary. It simply seeks to require us to do something that we have already made abundantly clear will be provided.

Employers would certainly have reason to complain if we had not made every effort to make available to them information which will enable them to be certain of what they need to do to ensure that they are not liable to prosecution. This would include information about immigration stamps and what they mean about a person's entitlement to work; it would include a list of EEA countries; it would include advice on how employers could ensure that they did not breach the Race Relations Act; and it would also include any other information that we established, through consultation, would be helpful to employers.

The Minister states that she will make information available to all employers. A few moments ago she told us that the provision applies to every housewife in the country who might wish to employ a cleaning lady. How will the Government get this information over? Does the Minister believe that everyone reads all the pieces of paper lying about all over the place? Whatever efforts are made, a vast number of people will know nothing about the provision.

I remind the noble Baroness that every housewife in this country is subject to a great deal of statutory law which is not read in any detail, day in, day out, throughout their lives. We do not send them great screeds on every piece of legislation, but considerable publicity will be given to the Act as it comes into force. Housewives who employ people now are subject to complicated employment law: rules to do with the Inland Revenue, employment conditions and so on. I trust—

I am making a serious point, housewives are already, as are husbands, subject to massive statutory obligations. They do not have every single statute in their homes; we do not send them everything. But the Act will be given publicity. Employers will be informed of their obligations under the Act, just as they are under any other Act such as the Criminal Justice Act and the Education Act. They lay obligations on people and as much publicity is given to them as possible. As the noble Baroness knows, ignorance is no defence under the law. People who employ cleaning ladies, domestic servants, waiters, home helps, whatever they are, will know that they have an obligation as an employer. One of the new obligations will be that they should not employ an illegal immigrant.

We will do our best to let employers know but, to take the point made by the noble Baroness, if we put the provision on the face of the Bill, we would be in difficulty with informing however many million housewives there are who may at some time employ someone. There has never been any intention other than that guidance should be made available so far as possible to all employers, or that it should be made available to them before the clause and any order under it come into effect. That is simply a question of common sense. I cannot advise that the amendments should be agreed to. I accept the principle and the importance of consultation, but I hope that the amendment will not be pressed.

10.30 p.m.

I do not believe that it is ever superfluous to require a government to consult, entirely independent of which party may be in office at the time. Governments instinctively leave things to the last moment and then do everything in a rush; and we are left to fit in with it as best we can. That has always been true and it probably always will be true.

I recall an occasion in 1993 when I believe the noble Baroness was at the Dispatch Box during the passage of the Education Bill. There were quite strong exchanges with the right reverend Prelate the Bishop of Guildford who had been trying to get a response out of the Department for Education, as it then was. He said: "The problem is not that the Government will not meet our concerns; it is that we cannot make them understand that this is our concern". The noble Baroness was not in any way at fault and did everything she could to put it right. If she remembers that incident, she will understand why a requirement to consult may on occasions save a great deal of trouble.

She is also reluctant to have requirements placed on government. There again, we hear a voice, the voice of the Executive, absolutely regardless of party, time, place or anything else. The Executive is always ready to place requirements on the rest of us: employers, employees, parents, children, young, old, whatever. But when an attempt is made in Parliament to place requirements on the Executive itself, it always resists it with the utmost vehemence.

One cannot help occasionally feeling a real sense of incongruity about this. I hope that the noble Baroness will understand why I feel that sense of incongruity. Cannot she go just a little way to meet this?

Before the Minister replies, does the Committee feel, in view of the remarks made by the mover of the amendment, that my noble friend has answered basically the same question three, if not four, times this evening? We are going round exactly the same circle as we did two nights previously when the same question to my noble friend was addressed from different angles and she gave almost the same answer. It is abundantly clear what the answer is. Would it not be in the Committee's best interests to study the answers in the intervening period? If any matter remains unknown or unaccepted, Members of the Committee would have the opportunity, at perhaps a more reasonable hour of the night, to readdress the question.

My noble friend reminds me of how repetitive the debate is, but it is my job to answer the questions. I have been in local and national government for a long time. I do not believe that I have ever known so much information made public, so much open government for parents and citizens through the Citizen's Charter programmes: from the health service to citizens, from the education service to citizens, from the Home Office to citizens, in information leaflets and in all manner of ways. Consultation is certainly a very big part of the work that I do.

If we have fallen down on the consultation we have done so far on this particular Bill or if we fall down on the consultation we have promised during the course of it and, subsequently, when it becomes law, then I should rightly feel guilty about the question that has been posed. The particular resistance to putting this on the face of the Bill relates to being so prescriptive. There will be occasions when we shall want to do something helpfully and quickly. Then we should be bound by a requirement on the face of the Bill to go through a particular process that would be decidedly unhelpful. It is better to have flexibility, and to take on trust that this Government are more open than any previous government have ever been. I hope that that will continue.

I do not accuse the Government on this occasion of any unwillingness to communicate with employers about the effects of this clause. I never have done. I accept that the Minister has acknowledged the necessity in particular for the kind of communication that is called for in Amendment No. 94. To that extent (I do not know whether she is familiar with the phrase that we use in the Labour Party) "warm words" are comparatively welcome.

The Minister made clear in her response to the amendment—that is why I do not apologise, even to the noble Lord, Lord Lucas of Chilworth, for moving an amendment which he believes is repetitive—the amount of information that it will be necessary to communicate to employers in order to enable them to comply with the conditions of this clause. The amount of information and illustration that will be necessary for employers—large and small, individual and corporate, partnerships, employers of casual labour, part-time labour, and short-term labour—is grotesque. All of them are caught by the provision. No attempt that has been made by the Opposition or from any Benches in this Chamber to try to restrict the obligations to smaller employers and employers of casual labour has found any favour with the Government.

In order to avoid saying it on clause stand part, I say now that I am in two minds about this clause. I am sorry for the employers who will have to comply with it. But it will not have any significant effect on the employment of illegal immigrants; and it will cause a huge wave of anger among employers, large and small, at the additional impositions that the Government are placing on them. I wish the Government luck with the implications both in electoral terms and in terms of the argument that will ensue from the enactment of this clause. They are welcome to it. It will cause them only pain if they allow it to go through as it is now proposed. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[ Amendment No. 93 not moved.]

moved Amendment No. 93A:

Page 6, line 39, at end insert—
("(8) In this section—
"contract of employment" means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether it is oral or in writing;
"employ" means employ under a contract of employment and "employment" shall be construed accordingly.").

The noble Baroness said: This amendment will introduce into Clause 8 a definition of the term "employ". That definition will make clear that employment means employment under a contract of service or apprenticeship. The intention is to make clear that the employed, but not the self-employed, should come within the scope of Clause 8.

As the Committee will know, Clause 8 will make it an offence to employ a person aged 16 or over who does not have permission to live and work in the United Kingdom. However, the term "employ" is not defined. That is consistent with the approach taken in the Immigration Act 1971 and in the Immigration Rules, where no attempt is made to define what is meant by "employment". The appellate authorities have not felt bound to consider whether people are, strictly speaking, employed having ruled, for example, that providing childcare for a sister and brother-in-law constituted employment.

If we did not define what we meant by "employ" in Clause 8, it would finally be for magistrates' courts to decide the scope of that term for the purposes of Clause 8. A number of respondents to our consultation document made the point that we ought to define in the Bill what is meant by the term "employ".

Having considered the matter, we agree that it would be helpful to have such a definition. It would make it easier to give clear guidance to employers about the nature of their obligations.

The term is, of course, defined in other legislation affecting employment. The most common definition, and the one which seems to us most appropriate to use in the context of this new offence, relates to employment under a contract of service or of apprenticeship. This is a well-established term and there is a considerable body of case law which explores the circumstances in which such a contract will be taken to exist. A person who is self-employed works under a contract for services and would quite properly not be covered by the terms of Clause 8. I beg to move.

This only confirms what I was saying on the last amendment. I do not know whether to laugh or cry when I see these amendments. The Minister is right: it is necessary to define "employment". She is probably right too in saying that it is necessary to define it in terms of a contract of employment or apprenticeship. But what will be the effect of that? All the rogue employers she describes—those who employ illegal immigrants—will immediately say, "I am not employing you. You are self-employed." Sometimes they will be what are called "gangmasters" or employers of "lump" labour, but more often people will actually be self-employed.

In order to provide for this nonsensical attempt at control of illegal immigration—I am not against the control of illegal immigration; I am against the way it is proposed in this Bill—the Government will drive large numbers of legal workers in this country into self-employment and outwith the protections of employment legislation. As I say, I do not know whether to laugh or cry.

I apologise to the noble Lord, Lord Lucas of Chilworth, if I have been repeating myself. So far as I know, I have only one question to which I have yet to receive an answer where I see the same mischief arising under several different parts of the Bill.

I agree entirely with what the noble Lord, Lord McIntosh of Haringey, said. The trend to self-employment is already in progress for a great variety of reasons. It has the effect of depriving people of the protection of employment legislation. It has the effect also of depriving government revenue of national insurance contributions.

We are faced with a real problem which is worrying the Chancellor of the Exchequer considerably; that is, falling tax takes of various sorts. I cannot help wondering whether this measure will give a further twist to that process and make the problem of putting right the public sector borrowing requirement even more serious. I hope that that point will receive thought and that there will be consultation with the Treasury about it.

Referring back to the construction industry, about which I seem to have spoken a great deal this evening, this provision means that a vast proportion of people will go on what is known as the "lump" in that industry; and I wish everyone luck with it.

On Question, amendment agreed to.

[ Amendment No. 94 not moved.]

moved Amendment No. 95:

Page 6, line 39, at end insert—
("() Within 18 months of this section coming into force, the Secretary of State shall lay before both Houses of Parliament a report estimating the costs to business of implementing this section during its first year of operation.").

The noble Lord said: In moving Amendment No. 95, I shall speak also to Amendment No. 96, both amendments being in my name and that of my noble friend Lord McIntosh of Haringey.

These amendments take the situation forward after the Bill has come into force, although I hope that it will not be passed as it is presently drafted. Amendment No. 95 seeks to establish that,

"Within 18 months of this section coming into force, the Secretary of State shall lay before both Houses of Parliament a report estimating the costs to business of implementing this section during its first year of operation".

We believe that to implement Clause 8 will put a significant additional burden on to businesses; and we think it right and proper, as the Government deny that proposition, that within a certain period after the Bill comes into force there should be an assessment of the cost to business.

Some figures have already been put forward as to what the cost might be. I am not sure that they are worth quoting because all the matters involved may not have been considered. I shall give the Committee one or two examples of what costs might be incurred. Some employers will have to train staff to operate the new system. Personnel departments will need to know what the legislation says and how they must conduct themselves. Employers may have to develop new systems for keeping records and for monitoring their employment practices.

The cost to employers might be raised in another way. Foreign nationals are increasingly required to present their original documents to, or leave them with, a number of agencies, particularly the Home Office. From June this year they will have to leave certain documents with the Home Office when making particular applications. The Home Office often sits on those documents. While the Home Office has the documents, the employee cannot show them to the employer. This applies not only to the Home Office, lest the Minister thinks that I am picking unfairly on her department. It may be the embassy of the country from which the individual comes; it may be educational establishments; it may be health authorities; it may be the DSS, local authorities or others. Such agencies may require the same documents that the Government require should be shown to employers.

There will be an extra burden on employers because they will have to know how to cope with the situation when an employee says, "I have a passport. It says that I am allowed to stay here and to take work, but it happens to be with the Home Office". We all know that it takes quite some time for the Home Office to process these documents. Employers can, as the Minister said, take people on without the documents on the strength of the assurance that the potential employee gives. This represents an extra burden on employers. It is one of the reasons why we should like an amendment to be accepted which ensures that there will be some assessment of how the system works.

Amendment No. 96 concerns whether the effect of the legislation will be to discriminate against the black and ethnic minority communities of this country. I fear that it will be. I said earlier—I do not mind repeating it—that I understand that the Cabinet itself was divided on precisely this issue when considering whether to bring forward the Bill. The Commission for Racial Equality, the TUC and others fear that the effect of the provision will be discriminatory. The Government say that it will not be. The amendment deals with that dilemma or that difference of opinion.

The amendment will ensure that the Secretary of State lays before Parliament after two years of this section coming into force a report on the effects on the employment of members of ethnic minorities. We know that unemployment among black and ethnic minority people is higher than among their white equivalents. Afro-Caribbean men suffer a much higher level of unemployment than their white contemporaries. If there is any basis for our fear on this side of the Committee that the measure will add to the discrimination against those minorities, it is right that that should come out in the open.

I put the amendment to the Minister in the hope that she will accept it because it will at least resolve the issue of whether there is discrimination as a result of these measures. I beg to move.

I am surprised that the noble Lord, Lord Dubs, is so worried that this clause will place such a heavy burden of costs on business. I wonder why he and his party are not opposing the terrible costs that the Social Chapter would impose on business.

Touché! These amendments would place statutory requirements on the Home Secretary to assess the early effects of Clause 8 on business costs and the employment of people from the ethnic minorities.

It is right that these areas should be of particular interest. But I should say at the outset that we do not think it would be necessary or helpful to have statutory requirements of the kind proposed. I expect that it will be helpful to review the operation of the whole scheme, including the costs to business and the impact on employment opportunities, at some point in the future. But the Government's view is that it would be preferable not to put detailed requirements in statutory form.

Let me turn to the first of these amendments. It would place a statutory requirement on the Secretary of State to make an estimate of the cost to business of implementing Clause 8 during the first 12 months of its operation; and to lay a report before Parliament detailing those costs within 18 months of the clause coming into force.

One of the prime considerations in developing the proposals currently contained in Clause 8 was to ensure that the burdens on business were kept to the minimum. That reflects this Government's strong long-term commitment to supporting business.

A compliance cost assessment for Clause 8 was made available to interested parties. It was sent out to all those who were sent or asked for a copy of our consultation document and has, I understand, become widely available. In our compliance cost assessment we estimated that the total non-recurrent compliance costs would be £13.5 million, representing less than £11.30 for each employer; and that total recurrent compliance costs would be £11.5 million, representing less than £10 per employer per year.

We are currently considering whether that assessment may require some amendment in the light of comments received from business. Some responses forecasted minimal compliance costs, whereas others were less optimistic. It may well be that the different views expressed were the result of the different recruitment practices currently adopted by employers. We will make a revised assessment available during the passage of the Bill.

We accept, of course, that making an assessment of compliance costs before a provision is implemented will never be an exact science. It will clearly be important to listen to anything that employers have to say once the proposal is implemented, including comments on actual costs. If a formal estimate of costs to business seems called for at an early stage we will make one, but we do not need a statutory provision to this effect.

On the second amendment here, I understand the very genuine anxiety which lies behind it, which is that the provision might adversely affect the employment opportunities of people from the ethnic minorities. We have, however, provided reassurances on this point and have given a commitment to provide clear guidance to employers on the operation of this clause, which must be fair.

At the outset I would like to make clear again the great importance which we attach and place on maintaining and developing good race relations in this country and to ensuring that all groups are treated equally.

We would be concerned if we thought that employers would pick out any particular group for discriminatory treatment on the basis of their colour or race simply because of this clause. We have considered this aspect very carefully indeed. But we do not share the fears which have been expressed. We believe that ethnic minorities will be able to compete for jobs on merit alone, and that our proposals will not affect this.

We have, however, acknowledged that it will be crucially important to ensure that employers have available appropriate guidance and advice about what they might need to do under the arrangements proposed in Clause 8. An important part of that advice will clearly concern the avoidance of recruitment practices which are discriminatory, or which might appear to be so. We are already consulting the Commission for Racial Equality and others to make sure that the advice we provide will give employers any help they may need on this point.

There will undoubtedly be research undertaken on the effect of Clause 8 on employment opportunities for those from the ethnic minorities. It is right that that should be the case, but it does not mean that a statutory requirement to this effect is necessary. We understand the intentions behind these amendments and believe them to be rather narrow. I hope that they will not be pressed.

Perhaps I may respond briefly to the Minister's comments. There is a clear difference of opinion about whether the provisions will be discriminatory in their effect. Perhaps I may give a couple of quotations. Mr. Adair Turner of the CBI said recently:

"The proposed legislation will do nothing to improve equal opportunities and may undermine employers' commitment to implement equal opportunities policies".
If that was not clear enough, in a joint letter to The Times the TUC joined with the Institute of Directors, the Association of British Chambers of Commerce, the Federation of Small Businesses, the Institute of Management and the Institute of Personnel and Development in saying:
"As well as placing an unjustifiable burden on employers, the proposal threatens to damage race relations. There would be every incentive not to hire black staff or people with foreign sounding names; and to concentrate checks on ethnic minority employees".
I understand what the Minister said and that the Government are anxious that the effect of the provisions should not be discriminatory. I welcome the advice that is to be given to employers. I hope that the Government will feel that they have a responsibility to assess the workings of the legislation because it is only proper that new measures should be assessed to see how well they are working. To that extent, I hope that, in an informal sense, the Minister accepts the amendments in spirit as something that the Government will have to keep under review. However, I draw comfort from the fact that this Government will not be in office when that day comes. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[ Amendment No. 96 not moved.]

Clause 8, as amended, agreed to.

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at three minutes before eleven o'clock.