House Of Lords
Thursday, 2nd May 1996.
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chester.
Mr Anthony Duncan
asked Her Majesty's Government:
What was the "fatal flaw" in the extradition documents presented to the Dublin courts in the attempt to extradite Mr. Anthony Duncan from Dublin to this country on Friday 12th April last.
My Lords, the reason the application was dismissed was that the original arrest warrant issued in this country was not produced to the Irish court at the hearing on Saturday 13th April; a photocopy was produced instead. There is a conflict of evidence as to how that came about. A fresh warrant was obtained and delivered the following morning to the Irish authorities.
My Lords, I thank my noble and learned friend for that reply. Is he aware that I received a photostat copy of a letter from the High Court in Dublin which states that the signature, which purports to be that of a magistrate, was not authenticated? That illustrates that the request for extradition was fatally flawed.
My Lords, I was not aware that my noble friend had received such a letter. My understanding of the position is that the documents presented to the Irish court were in order save for this: instead of a principal, a photocopy was produced. These days photocopies are of a high quality and it is possible to make a mistake as to whether a document is an original or a photocopy. Exactly where the error occurred is a matter of conflict of evidence. The senior officer of the Metropolitan Police who took the documents to Ireland is of the view that what he took and handed over was the original. If that is the position, the error must lie with the Irish authorities. By the time the documents reached the Irish court, a photocopy rather than the original was produced. That is as far as I can take the matter. As I said, the senior officer of the Metropolitan Police believes that he took the original to Ireland.
My Lords, is my noble and learned friend aware that I hold a copy of the fax in my hand? With respect, my noble and learned friend is misinformed. The fax says, first, that the Irish Times reported the histoire about the copy being the reason. But the Dublin High Court says that that is incorrect. The fax states that the true reason—which was a good reason—was that the signature which purported to be of a magistrate was not authenticated. Does my noble and learned friend agree that that is a clear, just and wholly correct reason for refusing extradition? There appears to be a muddle about it.
My Lords, there is no doubt that my information suggests what is a perfectly good reason for refusing extradition until the original copy arrived. I do not possess a copy of the fax to which my noble friend refers, but what I am saying is perfectly consistent with what he narrated as being stated in the fax. If it was a photocopy, then it was not the original signature of the magistrate. I am not suggesting and have never suggested that that was not a perfectly good reason for the Dublin court to refuse to grant an extradition warrant. The question is how that error arose. I have explained as far as I can the conflict of evidence that surrounds the matter.
My Lords, though we cannot go back in time, is it not important that, whatever the problem was, it is not repeated in the future?
My Lords, it is highly desirable that the fault is not repeated. However, there are not many infallible human beings around.
My Lords, there are a few.
My Lords, the noble Lord says that there are a few; I believe I know where they are not.The situation is that this was obviously a human error. Somebody confused the original with a rather good photostat. That was a sad and unfortunate error. I am sure that those involved will do their best to see that it does not happen again. Nothing makes one so careful as something having gone wrong in a specific way. I am sure that everybody will do their best to prevent the error recurring.
My Lords, does the Lord Chancellor realise that, over the years, those on the ground in Northern Ireland have suffered something like 3,000 deaths and do not find the matter amusing? Which Minister's job is it to make sure that this situation does not arise again? It has happened before.
My Lords, I do not find it amusing in the sense that very important matters depend upon this, but I do find it extremely difficult to give your Lordships an infallible method of ensuring that something of this kind does not happen from time to time. Every effort is made to see that it does not happen. In this particular case a new warrant was immediately sent out and no adverse consequences have arisen.
My Lords, does my noble and learned friend agree that there seems to be an extraordinary record of human error relating to requests for extradition for alleged terrorists from the Republic of Ireland? Can he say whether any other country finds that our officials are so frequently guilty of human error in these matters?
My Lords, I am only really aware in detail of the circumstances of this case, but those are circumstances which I think your Lordships could well understand. I am not aware of the extent to which this type of difficulty has arisen before, either in relation to the Republic of Ireland or in relation to other countries. My noble friend will know that the procedures in relation to the Republic of Ireland are different in certain respects because its own internal law governing extradition is different from that of many other countries.
My Lords, is my noble and learned friend on the Woolsack aware, as I am, that a very large number of errors have been made both in Northern Ireland and in this jurisdiction in connection with preparing the documentation to allow law officers to apply for extradition in Dublin? Secondly, would it not be a good idea if my noble and learned friend's department were to ask the department from which the information came whether he was in fact correctly or incorrectly informed as to the cause of the breakdown in this case?
My Lords, I am certainly aware that over the years mistakes have been made in relation to extradition documents, as my noble and learned friend Lord Lowry says. I am not aware of any reason to doubt the information on which I am basing my answers to your Lordships. So far as I can see it is a perfectly possible explanation of the difficulties that arose in this case, although, as I explained, new documents were quickly obtained and transmitted to the Irish authorities.
Better English Campaign
asked Her Majesty's Government:
Whether they are providing assistance to the Better English Campaign and, if so, whether their assistance extends throughout the United Kingdom.
My Lords, the Government are providing initial funding for the Better English Campaign for a period of two years. Because of the territorial limits of my right honourable friend's responsibilities, the campaign is primarily concerned with England. But it has already attracted the support of a number of national organisations and I am sure that it will be happy to work with a variety of partners on activities in different parts of the United Kingdom.
My Lords, I am grateful to my noble friend for his reply. Is it the intention to improve spoken English; for example, by reducing casual use of the words "sort of" before almost every verb and vague communication by grunt? As English is now the language most employed in the world and therefore a valuable asset for Britain, will the Government continue to support its articulate use? As regards Scotland, is my noble friend aware that, although estuary English is little known there, firth English tends to be also casual and ungrammatical at times but that those whose first language is Gaelic usually speak English impeccably?
My Lords, I am limited in the number of those I know whose first language is Gaelic, but I shall take my noble friend's word for it. I am sure that those whose first language is Welsh also speak absolutely impeccable English just as a great many of those whose first language is English manage to speak fairly impeccable English. The purpose behind the campaign is quite rightly to promote good spoken and, to some extent, good written English. It is very important that young people should be able to communicate and communicate properly.
My Lords, is the noble Lord aware that he is right when he says that English is spoken accurately and clearly in Wales? Is he further aware that the Better Welsh Campaign is going well?
My Lords, I regret to say that I did not know about the Better Welsh Campaign, but I am very grateful to the noble Lord for bringing it to the attention of the House. I am sure that all noble Lords will have taken on board what he had to say.
My Lords, does the Minister agree that even if his office extended to being able to provide better English in Scotland or in Wales, it would be a grotesque misuse of public funds in view of the admirable English spoken west of Shrewsbury and north of the Border? Does the Minister further agree that the Better English Campaign, so admirably led by Mr. Trevor McDonald, would do well to concentrate its attention on English in a relatively public role—I am not thinking of radio and television but of railway station announcements and telephonists responding to outside calls whether in hospitals, police stations or, indeed, in government departments? Would it not be a marvellous achievement if someone telephoning the DFEE did not have to ask for the response to be repeated because the initial response sounded both uneducated and unemployable?
My Lords, I apologise if the noble Lord had some problems in ringing my own department. As regards the main part of his question, it is a matter for Mr. Trevor McDonald as to how he develops the Better English Campaign. I am sure he will take note of some of the very helpful suggestions that the noble Lord has put forward. If he cares to know more of what the campaign is proposing I can send him a copy of the original press release which Mr. McDonald issued, giving some idea of the initiatives he intends to pursue.
My Lords, can the noble Lord say whether the campaign will deal not only with unnecessary words but also with unnecessary and undesirable pronunciation such as the glottal stop?
My Lords, the campaign is designed to promote good spoken English. As I made clear earlier, it is for Mr. McDonald to decide on his priorities. Again, I am sure that he will take note of what the noble Lord said.
My Lords, does my noble friend agree that for those responsible for this admirable campaign, government literature should offer them a very happy hunting ground?
My Lords, I always find that most government literature is written with the most admirable clarity. I certainly notice that my noble friend Lord Peyton seems to have little difficulty in understanding it, especially when he brings it before this House.
My Lords, is it not a fact that Mr. Trevor McDonald said publicly that he was astounded at reports that some universities had to run remedial training classes in English for undergraduates? Is the Minister aware that many of us who have been connected with universities were by no means astounded—indeed, we were distinctly underwhelmed—since such remedial classes were common in universities throughout the 1980s, even for those with good grade A-levels in English who had been admitted to read for a degree in English? Can the Minister tell the House what steps the Better English Campaign is taking, or will be encouraged to take, to ameliorate this very regrettable situation?
My Lords, the Better English Campaign is just one part of our efforts to raise standards. The raising of those standards has been at the heart of all the reforms we have pursued in terms of the national curriculum, national tests, teacher assessment and performance tables. I could go on. Our aim is to raise the standard of spoken and written English. We shall continue to pursue those reforms, probably with the opposition of the Opposition.
My Lords, does my noble friend agree that it is a handicap to this admirable campaign when the University of Oxford appoints to the Murdoch Chair of Communications a lady who does not believe in the importance of correct English and who is then brought forward by the BBC as an appropriate Reith lecturer?
My Lords, I understand that my noble friend is a great believer in academic freedom. As a result, I believe he will accept that I am not responsible for the decisions of Oxford University.
My Lords, will the noble Lord give the House an assurance—
My Lords, I know that this subject excites a great deal of interest in your Lordships' House, and rightly so. I observe, however, that two more Questions remain. Your Lordships may feel that the time has come to move on.
Developing Countries: Debt Burden
asked Her Majesty's Government:
What progress has been made by the G7 group of states towards the alleviation of the debt burden in developing countries.
My Lords, at last week's meetings of the IMF and the World Bank, there was agreement that the burden of debt is unsustainable for a number of heavily indebted poor countries, and that action is needed to reduce it so as not to put at risk their reform efforts. Ministers, led by my right honourable friend the Chancellor, agreed that the IMF and the World Bank will move swiftly to make specific proposals to enable agreement to be reached at the institution's annual meetings.
My Lords, I thank the Minister for that encouraging reply. Will he accept that he has the full support of this side of the House in all that the Government can do to encourage speed in restructuring the debts of the poorest countries? Does he not agree that one severe handicap at the moment is the reluctance of the International Monetary Fund to play its part? Can the Minister assure the House that at the G7 summit in June all possible pressure will be mobilised to persuade the IMF to restructure its enhanced structural adjustment programme with more concessional terms, perhaps financed by the sale of some of the gold stocks at the disposal of the IMF?
My Lords, I am grateful to the noble Lord, Lord Judd, for his support. He gave it to me when we last addressed this matter. We would like to see far quicker progress than we have made so far, but it takes time to reach agreement between the members of the IMF. We are pressing for a resolution of the debt problem. The fund's managing director and most other members of the IMF support this move. They want that body to make a real contribution to a solution in the context of a continuing, enhanced structural adjustment facility. A few members of the fund, regrettably, still oppose the modest sale of IMF gold which we and the managing director have proposed as a means of financing this project. We shall continue to work on this matter and to press for some form of agreement to be obtained in the autumn.
My Lords, I congratulate the Chancellor on the initiative he has taken on debt relief, which I welcome. Does the Minister agree that the six-year time lag which some countries will have to face before they qualify for debt relief may be seen to be too long?
My Lords, it depends on the position of each individual country. With regard to the countries most seriously affected by their very large debt overhang, the sooner they have a solution to the problem the quicker they can get on with trying to restore their economies and bringing some prosperity to their peoples. I can assure the noble Lord that we are taking all the steps we can, as we have been doing for some time, to move the multinational institutions to take action.
My Lords, does the Minister agree that in dealing with this problem time is of the essence? Further, is he aware that for less than what is currently being spent by some of the poorer countries on debt repayment it would be possible by the end of the century, through social investment, to save the lives of around 21 million African children and provide 90 million girls with primary education? Therefore, will the Government undertake to continue this pressure until a speedy solution is found to this problem, which is so desperately needed?
My Lords, the noble Baroness very graphically underlines the problem, which can be helped greatly by a resolution of the debt problems in the poorest countries in the world. I can only underline what I have already said; namely, that as regards multilateral debt, we are doing our very best to bring to a successful conclusion the plans brought forward and supported by Kenneth Clarke to sell some gold, invest it in resources which will generate interest and use that to reduce the burden of debt on the poorest countries.
My Lords, will my noble friend ensure that my right honourable friend the Chancellor of the Exchequer recognises that two issues are involved in relation to debt: the relief of interest on the debt and the cancellation of some of the debt which, frankly, will never be repaid by some of the less developed countries?
My Lords, my noble friend has a point. Indeed, on bilateral aid, the United Kingdom has "forgiven", as the jargon puts it, over £1 billion-worth of aid loans. All our new aid to the very poorest countries has been on grant terms for many years in order to get round the problem to which my noble friend rightly draws our attention.
My Lords, when will the Government institute in relation to poor people in this country similar policies to those which they apply with regard to poor countries? What plans does the Chancellor of the Exchequer have to alleviate the debt burden that is faced by some of the poorest members of our community?
My Lords, I am not entirely sure whether the noble Lord has got this Question mixed up with the next Question. I do not think that there is any comparison between the poorest people in the countries that we are now considering and the least well off people in our own country.
My Lords, does the Minister agree that it is wasting the British taxpayer's money to channel aid to those countries which have no chance of regenerating their economies unless the debt burden is relieved? Therefore, will the Minister assure the House that in the Government's strategy there is a determination to bring together both bilateral and multilateral measures because, unless there is a comprehensive approach, there is no way in which this issue can be resolved?
My Lords, the noble Lord is correct. It is not just a question of multilateral debt, but of bilateral debt also. This country has given something like 15 countries a debt reduction of up to the limit of the 67 per cent. agreed under the so-called Naples Terms. My right honourable friend the Chancellor indicated last week that we would be prepared to go as far as 80 per cent., as did some other Ministers. We have to follow a twin-track approach of trying to help with multilateral debt through the IMF and other organisations, and of trying to help with bilateral debt also.
asked Her Majesty's Government:
Whether they will resist proposals for cutbacks in child benefit.
Yes, my Lords. Child benefit is the cornerstone of our policy for all families with children. We have a manifesto commitment to pay child benefit for all families in respect of all children, including 16 and 17 year-olds in non-advanced education. We have honoured that commitment.
My Lords, I welcome that Answer. The Minister will know—he has told me so—that 25 per cent. of our children live in households which are on income support. Does he therefore agree that child benefit may be a vital part of the family budget? In particular, does he agree that it may be extremely important to a child's opportunity to stay on at school and that, however desirable improvements in education may be, funding them by raiding the social security budget may risk giving the appearance of starving Peter to teach Paul?
My Lords, I agree with the noble Earl that for people on income support or with low wages child benefit is an important factor in the family income, especially as it goes directly to the mother. We have seen a considerable improvement in the past 15 years in the number of youngsters staying on at school, especially in the number of children from unskilled families who stay on in education after the age of 16. I believe that the proposal, which I gather the Opposition favour, of removing child benefit from 16 and 17 year-olds who stay on at school would damage the excellent progress that we have made since 1979.
My Lords, does my noble friend agree that that is really a reallocation of public expenditure? Should we not be told what further, if any, reallocation of public expenditure will occur in order to fulfil the many promises which the Labour Party has made? Does my noble friend agree that if there are not to be more reallocations of public expenditure, taxes and public sector borrowing must rise?
My Lords, I agree with my noble friend. Indeed, I have said from this Dispatch Box on many occasions that there is a direct link between public spending and tax reforms. If one wants to increase public spending, one must explain from where the extra taxes will come. In this case the most important point is that the money will be taken from youngsters who stay on at school—something I thought everyone in this country wanted to encourage—and used elsewhere in the public spending budget. I cannot put the point any better than the noble Earl did at the end of his supplementary question.
My Lords, I am sure that the noble Lord did not intend to look at these Benches when he referred to the removal of child benefit from 16 to 18 year-olds because we have never collaborated in any way in that highly undesirable practice. While I am on my feet, and as the noble Lord clearly understands the importance of child benefit for youngsters aged 16 to 18, will he ask his right honourable and honourable friends at the Home Office to make sure that such benefit goes to the children whom we are considering under the Asylum and Immigration Bill?
My Lords, the latter part of that question is another matter to which I suspect that we shall return next week. I am thinking about children whose parents and families live in this country perfectly legally, have been here for many years, pay their taxes and so on. It seems unfair to remove child benefit from such youngsters just when they become extremely expensive. Your Lordships will recognise that a 16 year-old boy begins to look like a food-consuming machine on legs, if not on wheels. Just at the point when we hope that such families will keep their children on at school, if at all possible, it seems unfair to take away from them between £500 and £600 a year, which is exactly what the proposal of the party opposite would bring about.
My Lords, as the Minister is supportive of child benefit, will he explain why, since 1979, the Government have frozen the benefit for three years and raised it by less than inflation in a further five years? Does the Minister agree that that might explain why in 1979 one child in 10 in this country was in poverty whereas today the proportion is one child in three? Is it not deeply worrying that the person most likely to be poor in today's Britain is a child?
My Lords, we can congratulate the noble Baroness on her diversionary tactic. If she actually believes any of the things she has said, she ought to be ensuring that her party does not remove child benefit from 16 and 17 year-olds who stay on at school and that it does not endanger the considerable increase that we have seen during the term of office of this Government in the number of youngsters who remain at school, take advantage of further education, improve their qualifications and go on to university. All of those things have increased hugely since this Government took office in 1979.
My Lords, instead of blustering, will the Minister please answer my question?
My Lords, I have answered the question, but, as the noble Baroness has brought me to my feet again, perhaps I should say that I have not heard an answer to the question of whether the party opposite is really going to remove child benefit from those youngsters.
Brought from the Commons; read a first time, and to be printed.
Licensing (Amendment) (Scotland) Bill
Brought from the Commons; read a first time, and to be printed.
National Health Service (Residual Liabilities) Bill
Brought from the Commons; read a first time, and to be printed.
Civil Aviation (Amendment) Bill Hl
Asylum And Immigration Bill
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.Moved, That the House do now again resolve itself into Committee.—(Baroness Blatch.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMIIEES in the Chair.]
Clause 6 agreed to.
Clause 7 [ Power of arrest and search warrants]:
I must inform the Committee that if Amendment No. 69 is agreed to, I cannot call Amendment No. 70.
[ Amendment No. 69 not moved.]
moved Amendment No. 70:
Page 5, line 14, leave out ("has reasonable grounds for suspecting") and insert ("knows").
The noble Lord said: Amendment No. 70 is less wide-ranging in its implications than Amendment No. 69, but it is still of considerable importance. This part of Clause 7 deals with arrests without warrant. The Bill provides that a constable or immigration officer may arrest without warrant anyone whom he has reasonable grounds to suspect has committed an offence to which the clause applies.
The clause covers a wide range of offences under Section 24(1) of the 1971 Act. It covers those aspects which are already the subject of criminal legislation: illegal entry; remaining beyond time limited leave; and failure to observe conditions of leave to remain in the country. The Bill now adds to Section 24(1) the new offence of entering or remaining by deception. There is a wide range of offences to which the clause refers. The law, as it exists under the 1971 Act, has been found adequate for the purpose of dealing with them. The trouble with saying that anyone shall be subject to arrest without warrant if there are reasonable grounds for suspecting that he has committed these offences is not that it is always wrong to arrest without warrant when there are such reasonable grounds, but that these offences are capable of misinterpretation very readily by the police. For example, naturalised British citizens who have a perfect right to be in this country will in many cases be identifiable to the police by the colour of their skin or accents. If the police are engaged in a search for illegal entrants or those who are in this country without leave, they will be only too easily tempted to apprehend them if they believe that something may be wrong.
The police do not necessarily understand immigration status. With the best will in the world, on a number of occasions the police unnecessarily arrest and detain people from abroad who have a right to be in this country. I would not dream of saying that in general the police abuse their powers. However, it is well known to your Lordships who read newspaper reports of arrests—sometimes wrongful arrests which may attract compensation—that there are policemen and women in this country who take a certain view of people with different accents and a different colour of skin from those whom they assume to be of indigenous origin.
We do not want to take out the whole of Clause 7(1) and the power to arrest without warrant when that may be necessary in pursuit of the law. We do not wish to weaken the will and capacity of the police to enforce the law. But we believe that "reasonable grounds for suspecting" will in practice very often be interpreted too widely. In those circumstances, it is preferable to say that a constable or immigration officer may arrest without warrant anyone whom he knows to have committed an offence to which the clause applies. I beg to move.
I do not see how the Government can accept this amendment. The noble Lord suggests that a police officer, who may not be a very senior one, should be placed in the position of having to obtain evidence, such as it is, against the accused, find evidence in favour of the accused and reach a decision of the kind which eventually a court has to make having heard all the evidence and the cross-examination of various witnesses. That is a fantastic situation, especially when one considers the offences set out in Clause 7(4): illegal entry; obtaining leave to enter or remain by deception; and remaining beyond time limited by leave or failing to observe condition of leave. The police officer would have to find out before arresting the person—there might be good reason for making the arrest—what the limited time was, what the conditions were, how complicated or otherwise they were and whether or not they had been complied with. With deep respect to the noble Lord, with whose amendments I often have great sympathy, I believe that this is an unacceptable amendment.
If the powers in this clause are as essential as the noble Lord, Lord Renton, has argued, I wonder how the police got on so long without them.
I will be very short. As my noble friend Lord Renton has just said, it is a fantastic amendment. Just examine it for one moment. Let us consider the words "a constable knows". How will the constable know about all of the matters in subsection (4) to which my noble friend has referred? The only way in which he can know is if somebody else can tell him, or somebody else can hand him a document. Therefore, he can know only what he is told by somebody else. The whole structure is totally fantastic. I know of no other provision in any other statute cast in this form. The way in which it is cast at the moment seems to be fairly workable from an administrative point of view. If it were accepted, the amendment would throw the whole administration and make a total nonsense of it.
I have great sympathy with the problem raised by this matter. Frankly, I believe that the amendment goes too far. I am worried by how "reasonable grounds" can be defined. Perhaps the Minister could look at that at Report stage.I have in mind the particular case of a black man born in London who went to a police station to report the theft of items from his girlfriend's car. Instead of pursuing the theft, the duty police officer questioned him about his immigration status. When he said that he was British he was accused of lying and arrested on suspicion of an immigration offence. He was taken to his home in handcuffs so that his British passport and birth certificate could be inspected. In total, he was detained for three and a half hours. Obviously, there may be other surrounding circumstances in this case of which I am not aware. It appears that the noble Baroness is aware of them. Nonetheless, there is a real fear that the colour of a person's skin may appear to be "reasonable grounds", particularly if there is some aggression in the case. I should like the Minister to look again at the words "reasonable grounds", or to define those words in some way, so that wrongful arrests of this kind do not take place.
With great respect to the right reverend Prelate, that will not do. First, we are discussing the amendment which states "knows". In order to know a thing it must, first, be true—in fact, objectively as a fact; and, secondly, one has to have the knowledge that it is a fact. It is the first point which makes the amendment unacceptable.As regards the colour of skin, and all that, I think that most of us would agree that what is reasonable and what is not reasonable is a question of fact. But a tribunal must be expected to have a little common sense. It would be wrong for a tribunal to find as a fact that the colour of a man's or woman's skin was a reasonable ground for thinking that they had committed an offence. It might be some reason for making further inquiries, but it could not be a reasonable ground for thinking that the person has committed an offence. There must be evidence that the person did commit the offence.
I had not intended to speak again before the Minister responded, but having had three speakers from the Government Benches so fundamentally misunderstand the amendment, I have to come back. This subsection of Clause 7 relates only to arrest without warrant. There is perfectly good provision under subsection (2) for an arrest with a warrant from a justice of the peace, where there are reasonable grounds for suspecting that a person who is liable to be arrested can be found on premises. There are perfectly good procedures for a constable or an immigration officer to seek a warrant where there are reasonable grounds for suspecting.Where there is less awareness of the potential for an offence to have been committed, the proper procedure is to apply for a warrant. All we are considering now is an amendment to the subsection which deals with an arrest without warrant.
Is the noble Lord aware, as I think he should be, that there are scores of examples in our legislation, and in the common law, where a police officer may arrest without warrant without having to claim that he knows that the offence has been committed?
I am worried about the clause for a reason with which the Minister will be familiar, because she put it into my mind on the last occasion when we were discussing the Bill. She claims that an illegal entrant remains of that status, no matter how long before he is given leave to remain in the UK; but once a person has entered unlawfully he retains that status for the rest of his life. That is what the Minister said. She said in relation to a particular individual that he is and was an illegal entrant.Later the clause provides that one of the offences to which that power will apply is illegal entry. I am afraid that the power which is conferred on police officers under subsection (1) will extend to people who entered through one of our ports of entry with improper documentation, for the reasons we have discussed ad nauseam in debates on earlier clauses, and with which the Minister is familiar. Having been forced to enter this country with papers that were not in order because of difficulties in the country of origin, the Minister will label such a person an illegal entrant for ever afterwards. For the rest of his life such a person will be liable to arrest without warrant under this clause. That worries me greatly, particularly as I read what others have said about the dangers of the police abusing their powers under the existing legislation in relation to people belonging to ethnic minorities. As I understand it, the example given by the right reverend Prelate is one of a number which have been brought to the attention of the CRE. If the CRE has those anxieties—no doubt it has conveyed them to the Government just as it has to the right reverend Prelate and Members of the Committee—surely that is a matter that should be taken into consideration. If the Minister does not like the particular words of the amendment, she should at least say that the Government will consider the anxieties which have been expressed on all sides of the Committee by those who have had something to do with ethnic minorities, and by the bodies outside whose duty it is to safeguard the interests of ethnic minorities in our society.
On the assumption that the general principle of the first subsection is acceptable, will the Minister consider whether the wording "he reasonably suspects" would be preferable to "has reasonable grounds for suspecting"? The Minister may not feel like replying instantly, but perhaps she could let me know later.
Perhaps I may deal with the concerns of the right reverend Prelate, which he suggested that my noble friend the Minister should consider on Report. It is the question of the colour of the skin which was largely dealt with by my noble and learned friend Lord Hailsham a moment ago. Perhaps I may suggest to the right reverend Prelate that what cannot be done is to have a different regime depending upon the colour of a man's skin. So how on earth does he expect my noble friend the Minister to deal with his concerns?
It is interesting that everyone seems to talk about immigration as if it were merely an issue of colour. An Australian journalist recently told me that there are over 40,000 illegal Australian immigrants in this country, and that they are constantly in fear of having a motor accident or something similar which will reveal their status. It is not just an issue of colour. On the point raised by the right reverend Prelate when someone was told that he had to prove that he was British, and so on, I am a great believer in identity cards. If we had them, that person would have had it on him and he would not have gone through that problem.
The noble Baroness, Lady Gardner of Parkes, makes a fair point which I take on board. I am aware that this type of situation may affect Australians. But different situations arise and we know of a great many cases of black British being stopped for being illegal immigrants. Does the noble Baroness know of any case of a white British person being stopped on suspicion of being an Australian?
Perhaps if they were heard to speak.
Perhaps I may reply to the point. My observation did not concern the colour of the skin; it was a question of reasonable grounds. Colour of the skin was an illustration of that. I wanted to ask: what are reasonable grounds? The fear in the community is that that can be abused in the heat of the argument, the excitement of the chase, or with the police officer going further than he should. Even if later the matter is not upheld by a tribunal, the damage to the person is considerable. Although I cannot support the amendment because I believe that it goes too far, I want to plead for "reasonable grounds", or something somehow to be spelt out, with more protection than there is at the moment.
Perhaps I may say to the right reverend Prelate that the clause as drafted puts on the person arresting without warrant the burden of proving that he had reasonable grounds. The difficulty which the right reverend Prelate feels is felt by the constable before he makes the arrest.
I have received so much support in opposing the amendment that it may not be necessary to say very much. I rise to challenge the amendment and to remind Members of the Committee of what was provided when Parliament enacted the Immigration Act 1971. Section 24(2) provides that:
Section 25(3) is in similar terms. It states that,"A constable or immigration officer may arrest without warrant anyone who has, or whom he, with reasonable cause, suspects to have, committed or attempted to commit an offence under this section other than an offence under subsection (1)(d) above".
That illustrates the points raised by the noble and learned Lord, Lord Hailsham, and the noble Lords, Lord Renton and Lord Campbell of Alloway, that throughout statute law there are numerous examples of provisions in such terms being enacted by Parliament. It would be a serious mistake to depart upon a novel basis for setting into statutory form provisions for arrest without warrant. Clearly, concerns have been raised about issues such as the colour of skin, a particular type of accent, and so forth. Those matters require to be in the forefront of the arresting officer's mind, whether he be a police constable or an immigration officer, before he invokes the power that Parliament has given him. In the light of the concerns that are raised, undoubtedly police training will take account of them. But the fact that there may have been isolated incidents in which wrongful arrests have taken place does not justify the radical departure that is suggested. The right reverend Prelate the Bishop of Chester raised a particular case. Without further information about the person concerned it would be wrong to respond to that case in Committee. If the right reverend Prelate wishes to write to me with further details I shall ensure that a substantive response is given. The amendment is an example of a number that have been tabled with a view to making more difficult the establishment of greater coherence of immigration control, which this Bill is all about. For those reasons, I invite the Committee to reject the amendment."an immigration officer may arrest without warrant anyone who has, or whom he, with reasonable cause, suspects to have, committed an offence under subsection (1) above".
Would my noble and learned friend care to set at rest the mind of the right reverend Prelate by confirming that when we use the expression "reasonable grounds" in our statute law we scarcely ever define or qualify them because they must depend on the circumstances of each case?
I am happy to confirm that and to say in addition that it is a serious mistake to seek to define them because then one becomes involved in obtuse arguments in court as to whether a particular specificity set out has been met. The courts are well used to dealing with situations in which reasonable grounds fall to be construed. The noble Lord, Lord Renton, reminded the Committee that that construction requires to be applied to the particular facts of the particular case. It is my submission to the Committee that the courts would have no difficulty whatever in deciding whether any invoking of the power by a constable was well founded.
A distinction arises as regards the point made by the noble Lord, Lord Renton. Suspicion may and should arise from the circumstances of the case. What is different about this matter is that suspicion arises simply from looking at the person and not from anything he or she has done. If we had lived in the days when physiognomy was taken seriously and bushy eyebrows were taken to be proof of a criminal character I believe that I should have been suspected more than any other noble Lord, save the noble Lord, Lord Healey.
I do not accept that merely looking at someone would provide reasonable grounds. There would need to be something about a person's background, information that had come to hand, and other knowledge. It may well be that some aspect of the circumstances in which the constable came front to front with the individual had some bearing on it. If the individual immediately turned and ran away that might be an adminicle of evidence which linked with other adminicles of evidence to justify forming the view that there were reasonable grounds for suspecting that the particular individual had committed a particular offence to which the section applies. I suggest that merely looking at someone would not be enough.
I thank the noble and learned Lord for that reply. I was not suggesting that he thought anything else. I was merely telling him what happens on the ground.
If the noble and learned Lord the Lord Advocate is saying that reasonable grounds for suspicion do not include someone's appearance or accent but only the circumstances in which a person is found and that those circumstances are positively an indication of the likelihood of an offence having been committed, that would go a good deal of the way towards calming my fears. In moving my amendment it certainly was not my intention in any way to damage the coherence of the law relating to illegal immigration. The clause provides a considerable extension of the powers of the police and immigration officers in relation to illegal immigrants in this country. Surely it is incumbent on the Government to show why increased powers are required rather than making charges of an attack on the coherence of the provision that is made.The noble and learned Lord had a large part of a good point when he referred to the wording of the Immigration Act 1971 but I notice that even there the wording is different. The wording is,
That is different from the wording in the Bill, which is,"has, or whom he, with reasonable cause, suspects to have".
I do not know why it is different or whether there is any significance in the difference. However, in so far as this is not apparently a significant change in the law, which has generally found to be adequate, it is right that I should beg leave to withdraw the amendment. Amendment, by leave, withdrawn."reasonable grounds for suspecting".
[ Amendment No. 71 not moved.]
moved Amendment No. 72:
Page 5, line 18, after ("a") insert ("named").
The noble Lord said: Amendments Nos. 72 and 73 are probing amendments with which I can deal briefly because I want only a simple explanation from the Government. I understand that:
"If … a justice of the peace is by written information on oath satisfied that there is reasonable ground for suspecting that a person who is liable to be arrested … is to be found on any premises",
the written information on oath would have to be that of a named person and not just any person who might be found on those premises. I should be grateful for confirmation that that is the practice.
I also understand that when a warrant authorises a constable to enter if need be by force, the common law requires that that force should be reasonable or consistent with the needs of the occasion and that there is no change in the omission of the word "reasonable" which appears in the 1971 Act.
I believe that I am in a position to give the noble Lord, Lord McIntosh, the reassurance that he seeks. Amendment No. 72 would unnecessarily restrict matters in so far as it would make it absolutely necessary to have the correct and full name of the individual. As I am sure the noble Lord will well recognise, although it may be understood who the individual is and some part of his name may be known, his full details may not be available at the time at which the warrant is sought, either from the justice of the peace or, in Scotland, from the sheriff.I am happy to give the Committee the assurance that it is not intended that search warrants will be sought on some speculative basis; for example, searching premises for anybody who might be there, whether or not he is known in any sense to the immigration authorities. I hope that on the basis of that assurance, the noble Lord will withdraw Amendment No. 72. In relation to Amendment No. 73, again I am happy to give an assurance that no change to the application of the common law is intended. Again, the style used is that used on numerous other occasions. Officers, whether police officers or immigration officers, will be expected to behave reasonably having regard to the particular circumstances which they confront when they seek to execute the warrant.
I am most grateful for that explanation. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
[ Amendments Nos. 73 to 76 not moved.]
moved Amendment No. 77:
Page 5, line 27, leave out subsection (3).
The noble Baroness said: With this amendment we come to the heart of the clause and to a subsection of the clause which most troubles me and, I believe, other Members of the Committee. I begin by saying that I wish to put this amendment in a slightly wider context. I believe that it is the responsibility of a democratic country which cares very deeply about civil liberties to strike a balance between the very powerful arguments of law and order and the equally powerful arguments of the liberty of its citizens.
In my view, subsection (3), by raising a whole range of immigration offences to the level of serious criminal offences—the same level as crimes like murder, treason, rape and other significant offences with which any country has to deal—is treating those offences disproportionately in ways which could undermine the balance between law and order and liberty in our country.
I say very clearly, because I do not wish for one moment to be misunderstood on this matter, that in saying this I am not attempting to support the argument that illegal immigrants should be allowed to stay in this country. I wish to say in advance that I shall have every reason to feel extremely offended if that argument is used against this amendment.
I have been in the Home Office and have held the same position as the Minister. I am well aware that there are illegal immigrants and that there are rackets in illegal immigration. I am well aware also that there are genuine cases of people who seek asylum; that there are men and women all over the world who have stood up for democracy in the most difficult situations in their own countries and who, not only through no fault of their own but because their principles are outstanding, find themselves obliged to flee for the lives of their families and themselves.
It is in striking the balance between dealing with illegal immigrants on the one side and recognising the genuine nature of asylum seekers on the other that the wisdom of this Chamber is to be found. In my view, subsection (3) pushes the scales too far against the genuine asylum seeker.
It has been pointed out in this Chamber time and again from the Cross Benches, from the Benches opposite and from all sides of the Chamber that that is so. It has been pointed out that in some cases the situation of asylum seekers is so desperate that the only way in which they can leave their country is by using false papers. I must repeat that in some cases deception is due to force majeure. It is far beyond the capacity of those people fleeing not to use false papers. Nigeria is not in the habit of issuing true papers for people who try to leave the country because their lives are at risk as opponents of a terrible, tyrannical government. We now see such action being treated as a criminal offence on the same scale as murder. I consider that to be disproportionate.
I take the argument one stage further. In a long life in politics, I have learned to respect Home Secretaries on both sides of the House. I have learned also to have grave doubts about some Home Secretaries on both sides of the House. The noble Viscount, Lord Whitelaw, the noble Lord, Lord Carr, and many years ago, Mr. Herbert Morrison, when Home Secretary, understood the balance between law and order and liberty in a way which I believe was greatly to the credit of this country and enhanced the actions of Her Majesty's Government. I am afraid that I must say that in supporting subsection (3) the present Home Secretary has failed to understand the profound necessity of protecting individual liberties as well as protecting law and order. I repeat that it is that balance which lies at the very heart of individual freedom and democracy.
By raising these offences to the level that it does, subsection (3) carries with it penalties on a scale which in my view are, not in every case but in the broad group of cases, disproportionate. For example, there is no qualification to the use of the phrase "by force". It is not a question of hypothesis because we have seen, sadly, one or two cases where the force has been such that it has led to the death of the person involved. The case of Joy Gardner springs to mind. We have seen cases where, no doubt under the kind of pressure to which the right reverend Prelate referred, police officers have been pushed or gone beyond what should be their own levels of self restraint.
What frightens me about the clause is that even the qualifications made in the Police and Criminal Evidence Act a few years ago that force should be reasonable and, more than that, that attempts to search places should be made at reasonable hours unless there are strong reasons why they should not be, have been dropped as safeguards in this subsection.
In some cases, the people of whom we are talking have the most profound reason to fear a knock at the door at 3 a.m. I worked in central Europe—in Czechoslovakia, Poland and Romania—among people who know what it is to suddenly find their houses searched without warrant, not by our police, no, but by police in other countries. Some of those people are today refugees in this country. They live in an atmosphere of extreme fear. This subsection feeds that atmosphere in ways that are not justified.
I repeat that I see no argument at all for not retaining all the safeguards in the 1971 Immigration Act. They are set out clearly. They are fairly draconian. They include the right to arrest and to search and, in some cases, to arrest without warrant. They give power to search on the written statement of the justice of the peace. But they do not attempt to raise such matters as illegal over-staying to the level of murder and treason.
I believe that the Home Secretary will have reason to rue this subsection. I believe that he is creating criminals where there are no criminal intentions. That is an extremely unwise measure for a democratic government to take. I beg all Members of the Committee on all sides to consider very carefully indeed whether we should not do grave damage to our constitutional traditions and inheritance if we allowed this subsection to stand in Clause 7. I beg to move.
I should like to express my support for the amendment moved by the noble Baroness. Indeed, the noble Baroness spoke in most powerful terms of the effect of the clause. I should like to read an extract from a report of the Glidewell Panel of inquiry to which reference has already been made several times in this Chamber. It is an independent panel chaired by a recently retired Lord Justice of Appeal, Sir lain Glidewell. It considered all the clauses in the Bill and, in relation to Clause 7, it said, among other things:
I should like to press the Minister on the matter of serious arrestable offences. I fail to understand why offences under this legislation should be placed in the same category as those offences to which the noble Baroness, Lady Williams, made reference; for example, murder, rape, kidnapping, treason, offences which result in death or very serious injury, and so on. The offences about which we are talking are, of course, real offences. Like the noble Baroness, I hold no brief for illegal immigrants. I believe that they should not be in this country. Indeed, I believe that so strongly that, as the Minister knows, I have been in touch with a member of her staff about a particular illegal immigrant who I felt should not be here. However, that does not mean to say that I regard such offences as being in anything like the same category as those which are at present regarded as serious arrestable offences. I believe that I am right in saying that the offences under the Bill are triable only in a magistrates' court, and that there are maximum sentences which are at present six months' imprisonment or a suitable fine. Therefore, they are of an entirely different order from the offences that I have already mentioned. It seems to me to be quite illogical that the offences under the Bill should be placed in the same category. Under subsection (3) the police are able to obtain a search warrant and then search premises in order to seize and retain anything for which the search is authorised. Once they are on the premises, they can seize anything related to the offence or, indeed, anything which is evidence of any other offence. I suppose that they could be searching for wage slips which might indicate the name of a particular person who is employed in some way; they might be searching for lists of people present at a youth club or at some sort of meeting; or they might be searching for membership lists or personal correspondence. In pursuance of their search for such material, the police could he entering a wide variety of premises. I have in mind not just premises occupied by someone who may be under suspicion but also premises occupied by someone who is not under suspicion. For example, such premises could include the homes of relatives or friends, social clubs, places of work, schools or colleges, community centres and places of worship. Under Amendment No. 79, which is tabled in my name, I have set out an exclusion which would mean that a particular group of buildings, including hospitals, schools and places of worship, would be excluded from the provisions of the Bill. Indeed, I shall speak to that amendment in due course. However, in relation to the general issue now before the Committee, all sorts of premises could be entered. I believe that we must return to the matter of race. Although I hear what the noble Baroness, Lady Gardner of Parkes, says, people who are likely to be regarded as committing immigration offences are often from Africa or the Indian subcontinent. Indeed, the kind of places to which I referred—that is, places where social gatherings take place—are more likely to be targeted if it is believed that there are people present there from Africa or India who may conceivably have offended under the Bill. It is quite possible that such places are likely to experience the arrival of the police at anti-social hours, brandishing their warrants. That will be perceived as having something to do with the fact that people from Africa or India are present in such places. Inevitably a sense of targeting will be felt. That, in turn, is bound to have some effect on race relations. Effective policing depends upon trust and confidence between the police and members of the community. The implication of this particular subsection is that members of communities, where there are likely to be those who have offended under the legislation, cannot be trusted to assist the police in their inquiries and that, therefore, it is necessary to adopt such exceptional powers which at present are only reserved for the very gravest offences. As I said, there is an implication of distrust. The adoption of those greater powers must surely undermine to some extent relationships between the police and communities, not least ethnic minority communities. In my view, the Government have not demonstrated that that exceptional power is necessary for the Bill. In the past, Parliament has been very reluctant to grant such powers to the police. For such regulatory crimes—that is, crimes which involve no victim and which are of a much lower level than the very serious ones which at present fall within the scope of serious arrestable offences—I believe that the Government should do much more to indicate why such a power is necessary."We are seriously concerned about the draconian nature of the powers given to police and immigration officers under clause 7. We consider these quite inappropriate for the type of offences indicated".
I should like to draw attention briefly to the views expressed by the Immigration Advisory Service, the head of which is Mr. Keith Best, a former colleague of mine in another place. For that reason alone, I believe that those views should be seriously considered. Mr. Best says that the deterioration in the relationships between the police and immigrant groups is a matter of anxiety and that the many reports about mistaken arrests and about the use of powers to search are one of the reasons for that exacerbation. He says, in particular, that the consequence of searches on premises cause great resentment. So he has underlined that particular factor as regards Clause 7.There would be no point in having subsection (3) in Clause 7 if it did not mean that there was going to be an increase in the number of searches of the kind that we are now discussing. Therefore, inevitably, if the subsection remains in the legislation, we shall see more police raids on premises which are occupied predominantly, for example, by members of ethnic minority groups. That will have a harmful and deleterious effect, especially on relations between the police and those communities. For that reason alone, I believe that we should pause before allowing that provision to be incorporated into the Bill. I believe also that we should consider the costs involved in terms of the secondary factors which we were discussing the other day. If there are to be worsening relationships between the police and ethnic minority communities, what effect will that have on policing as a whole within those areas? Further, what effect will that have on the environment in which those searches are likely to cause the relationships to deteriorate? Indeed, the duties of the local authorities in those areas might be affected by the worsening of such relationships. The ramifications of such changes are so enormous that I believe we should have a much better idea of the extent to which those powers might be exercised before we allow the clause to go through. However, it is possible that the Minister will be able to help us in that respect. If we are only talking about one or two cases during the course of a year, then we might be able to accept that that will not be terribly important. The noble Baroness has already said that it is not the intention to go on fishing expeditions, but we shall not be in a position to judge that very easily once the Bill becomes law. Therefore, if, as we suspect, the presence of the clause in the legislation means that there might be fairly widespread trawls, and the consequences cause the harmful effects that we envisage, we shall then all regret not having given the provision a great deal more attention.
The matter is not as simple as the noble Lord, Lord Avebury, has indicated. As to the question of costs—and I believe that the noble Lord is thinking in particular of police costs—if we make it too difficult for the law to be enforced so that we get many more illegal immigrants than we already have, then, because of the laxity of our legislation, we might have to have more police to enforce such provisions. So his argument is a self-defeating one. I say that with deep respect to him.As to the noble Baroness, Lady Williams of Crosby, her deep sincerity seems to have misled her into depriving magistrates of the power that they need to authorise the police to enter premises where it is thought that an illegal, or possible illegal, immigrant has entered. Surely, there is no justification for that. The amendment of the right reverend Prelate the Bishop of Ripon concerns circumstances where a potential illegal immigrant, or a suspected illegal immigrant may enter a hospital, like St. Thomas' across the river, or an educational establishment such as University College, Gower Street, with its spacious courtyards, or any church, chapel, mosque or temple. The amendment would mean that as soon as an illegal immigrant sees a police officer whom he fears may seek to arrest him, he can dart into any one of those premises and be free from arrest and, he must hope, free from prosecution. In ancient times the Christian Churches were regarded as sanctuary; that was accepted. They had to feed and look after the people who sought sanctuary and allow them to sleep in the church. If those people ever came out they could be arrested if they had committed an offence or were suspected of having done so. I say, with deep respect to the sincerity of the noble Baroness and the right reverend Prelate, that I really think that the amendments are self-defeating and unacceptable.
I support the amendment of the noble Baroness. I shall try not to raise the emotional temperature. I wish to return to the note of sincerity, which began with the noble Baroness. The amendment is a warning to the Government as regards their policy of restraint towards asylum seekers. I believe this to be a deterrent Bill, not a curative Bill. I shall explain why.I have several misgivings about the Bill and the absurdity of having a published designated list which can only be a source of friction in our foreign policy. I reserve my remarks today for Clause 7(3) which deals with the new offences. The Government have crossed the line of reasonable restraint. I recognise that increased numbers have created a problem and that public opinion requires a tightening of the rules in line with our European allies. I can see the European dimension both as regards improved examination of the existing caseload and in sending a signal to prospective asylum seekers. I see the problem, but I also see the dangers of the measures prescribed. The right reverend Prelate mentioned the Glidewell Panel. That represents a range of organisations, many of which I have worked with personally. They have expressed concern that the Government are going beyond reasonable bounds in tightening up legislation. Their main point is that the Government risk a deterioration in our race relations. Sir Iain Glidewell's panel expressed anxiety about the sweeping powers available to the police under Clause 7 and the danger that this would lead to increased tension between the police and minority communities. Clause 7 puts the immigration offences into the category of serious arrestable offences. Given the powers the police already have under the 1971 Act, surely this clause is entirely unnecessary and could have a damaging effect on our race relations. As we have heard, the powers are only available for offences such as kidnapping, murder and rape. They have been hitherto unjustified by government statements. They will have a harmful effect on local police community relations. We heard a great deal about those relations in the debate on the police yesterday. We heard how good those relations have become. As someone who worked in Brixton during the 1980s as well as in communities abroad and as someone whose father served as a Conservative Member in another place for many years, I remind the Government of what the Prime Minister said on 15th November,
I submit that Clause 7, and especially the subsection we are discussing, constitutes such an occasion and such a policy. I urge the Government not to take risks with immigration and asylum and not to allow it to become an election issue as that could backfire on the Government and is not in keeping with the spirit of the 1951 convention. I urge the Government to follow the tradition of liberal Conservatism and win the respect of the wider electorate, not the more restless sections of the party who are moving towards a preventive deterrent policy."While I lead it, the instincts of my party will not be to play race at any time, in any way, on any occasion or upon any provocation. That will not be our policy".—[Official Report, Commons, 15/11/95; col. 39.]
I endorse entirely, as I am sure does every Member of the Committee, what the noble Baroness, Lady Williams, said about the difficult balance to be retained between the liberty of the individual and law and order. I have two or three questions arising from the amendment which seems to me to be important. I was interested to learn that there are some 40,000 illegal Australian immigrants in this country. I should like to be given an assurance that the police will make as much effort to chase them up as they will illegal immigrants from other countries. That is important. It does not matter what colour someone's skin is. We need to treat people as individuals. All are created in the image of God, whatever the colour of one's skin. I hope that I shall be given that assurance.I am slightly puzzled by Clause 7(3)(a) in the light of what I have read about it, and also as regards what has been said about it. Unfortunately, I have not consulted the Police and Criminal Evidence Act but the wording of the subsection refers to introducing the,
That seems remarkably mild in comparison with all that has been said about it. I should be grateful for an explanation of how it introduces the draconian laws which—I agree—sound rather horrendous. The right reverend Prelate quoted from the report of the Glidewell Panel. The report states on page 26,"power of justice to authorise entry and search of premises".
I should be grateful if my noble friend the Minister would explain why the powers already incorporated in that Act are not sufficient and why the extra powers in Clause 7(3) are needed."We are persuaded that sufficient administrative powers already exist under the 1971 Immigration Act".
The noble and learned Lord the Lord Advocate, in his response to an earlier amendment, talked quite properly about the coherence of the powers of the law in criminal proceedings in matters of illegal immigration. I can confirm that on this amendment, as on other amendments, our intention is not in any way to attack the coherence of the power to institute and pursue criminal proceedings in cases of illegal immigration. It is not, and never has been, our intention to support illegal immigration.Subsection (3) of Clause 7 adds incoherence rather than coherence to the meaning of the clause. By reference to Section 8 of the Police and Criminal Evidence Act 1984, and the comparable Northern Ireland order, it reads as though these immigration offences are serious arrestable offences under the terms of Section 8(1) of the Police and Criminal Evidence Act. To what does subsection (1) of that Act refer? It refers to powers of arrest and, in particular, search warrants. However, Clause 7(2) of the Asylum and Immigration Bill covers search warrants. Although we have not yet voted on clause stand part we have already implicitly agreed that. Clause 7(2) states:
Section 8(1) of the Police and Criminal Evidence Act simply adds the power to search premises on warrant for the purpose of obtaining material related to the arrest. That power could perfectly well be provided explicitly without bringing in, by this extraordinarily roundabout route, the comparison between illegal immigration and serious arrestable offences such as treason, murder, manslaughter, rape, kidnapping, and so on, which are capable of punishment on indictment by sentences of life, or 15 years or more. That is the offensive aspect: to compare immigration offences with treason, rape and murder. Those are far more serious offences as regards the sentences they can carry. The provision is quite unnecessary. We simply need to amend subsection (2) of Clause 7 to ensure that there are powers of entry to search for evidence as well as to find and arrest the individual. To do it as the Bill proposes is gratuitously offensive and misrepresents the degree of seriousness of illegal immigration offences. I support the amendment."If a justice of the peace is by written information on oath satisfied that there is reasonable ground for suspecting that a person who is liable to be arrested …is to be found on any premises … he may grant a warrant authorising any constable to enter, if need be by force, the premises named in the warrant for the purposes of searching for and arresting that person".
Can I ask the Lord Advocate whether these powers are the same as those which exist already in a previous Act? Noble Lords who support the amendment seem to think they have changed. Do these powers apply to the two new offences already agreed?
When the noble Baroness or the noble and learned Lord replies, perhaps the Committee can be assisted by some picture of where these offences come on the scale compared with some other offences? Is illegal immigration more or less serious than, say, burglary, breaking and entering, pickpocketing, shoplifting or mugging? When we know how it ranks in comparison with those offences, it may be easier for us to discuss whether or not the gravity given to it is proper.I make one point in reply to the noble Lord, Lord Renton. Where the English common law has dealt with suspicion, it has often related to cases such as theft where it is known that an offence has been committed. The question is: who committed the offence? The difference between those cases and illegal immigration is that until one catches the person one does not even know that an offence has been committed. That makes vague suspicion a far more shotgun scatter type of approach than the more focused suspicion when one is dealing with a specific, known offence. That is a point of importance.
I believe that no amount of most worthy amendments can save the clause or, in fact, the Bill. The great tradition of this country has been not to cross the t's and dot the i's. But these problems are in the highest, most intense, way personal problems which have to be faced by individuals, each case being different. One cannot legislate for matters which cannot be legislated for. We live in a world of growing violence. We must be on our guard not to slip into easy formulations which suit police states rather better than this country. I believe that we should be able to trust the individual. If we can trust the Secretary of State we can trust a well founded, well grounded, well educated individual.For my part I would rather err on the side of humanity than inhumanity. I would rather see one person saved from torture by not being sent back, and having 10 persons living where they choose to live and perhaps contributing to the community. Those are my strong convictions.
Does the Minister agree that the courts will decide on the importance and seriousness of the offences? Their penalty may reflect that.
I am intrigued that subsection (3) of Clause 7 specifically refers to the first part of Section 8 of the Police and Criminal Evidence Act 1984 and paragraph (1) of Article 10 of the Northern Ireland order.The Police and Criminal Evidence Act 1984 barely applies to Scotland. Article 10 does not apply to Scotland. Between now and Report stage, will my noble and learned friend the Lord Advocate consider whether there should be specific reference in the Bill to Scottish legislation, perhaps in the criminal procedure legislation or some such measure? I am not sufficiently familiar with this part of the law to know whether or not that is necessary.
I am happy to accept the invitation to re-examine the law in Scotland on this matter. I understand that there are sufficient powers to apply to the sheriff for a warrant under the criminal procedure legislation which would enable evidence to be recovered.It is instructive to bear in mind the effect of the subsection. In moving and supporting Amendment No. 77, Members of the Committee have sought to suggest that, whether or not the Government are resorting to any reference to race, they are seeking to incorporate for all purposes offences under this Bill and the 1971 Act with other offences which meet the definition in the 1984 Act of serious arrestable offences. The general purpose of the clause is to set out, by adopting provisions in the 1984 Act and the 1989 order, a procedure for the seizure of evidence. Clause 7(2) sets out a procedure for seeking and obtaining a warrant for the purposes of searching for and arresting a person. The clause is concerned with the procedure for searching for and seizing evidence. As Members of the Committee have discussed in recent months, it is important for the police, either before or after arresting an individual, if they have reasonable grounds for suspecting that he has committed an offence, to search for evidence which can help the police and the courts to establish one way or another whether the person accused is guilty of the offence for which he has been arrested and is brought before the court. On that basis alone, the offences fall to be treated as serious arrestable offences under Section 8 of the 1984 Act. There is no intention to incorporate them for the purposes of the procedure under which such persons should be prosecuted or, more important, for the penalties which are appropriate if guilt is established. Perhaps it would help to remind the Committee of what Section 8 provides. It sets out a procedure which enables a constable to apply to the justice of the peace. The justice of the peace must be satisfied that there are reasonable grounds for believing, first:
and, secondly,"that a serious arrestable offence has been committed";
That bears out the point which I made that the seizure of evidence is relevant to investigating an offence and whether the arrested person is guilty of it. The section provides, thirdly, that the material is likely to be relevant evidence; fourthly, that it is not subject to legal privilege; and, fifthly, that one of a number of conditions applies. Those conditions are as follows:"that there is material on premises specified in the application which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence".
That procedure was set down in 1984. The police have now had over 10 years' experience of working with it. The courts have had 10 years' experience of applying it. In my submission, it is entirely sensible for the Government to bring forward, for reasons to which I shall turn in a moment, a procedure which is well established, well practised and well understood by police officers and the court, to deal with a situation under subsection (2). That subsection deals with the application for a warrant for arrest, and subsection (3) deals with the application for a warrant to seize the evidence. Members of the Committee have raised the question of whether the power is required or whether a similar or identical existing power is to be found in the 1971 Act. The answer is no. There is no appropriate power in England and Northern Ireland for searching for and seizing evidence relevant to the issues of whether people are guilty of offences under the 1971 Act and the additional offences which the Bill would introduce. For that reason alone the provision set out in subsection (3) is brought forward. In seeking to enforce the existing offences, the immigration authorities have experienced difficulty through not having a power to search for evidence. It is in order to overcome that difficulty that the procedure is brought forward. It is a matter of regret that various parties outside your Lordships' House and some Members of the Committee who have spoken have sought to suggest that the Government are treating offences under the 1971 Act as equivalent to the more serious offences of murder, rape and other crimes which are also covered by Section 8. There is no intention to do that. The intention is quite straightforward. It is to set out a laid down procedure which is already known to the police, in which they have been trained and which the courts understand. We do that in the hope that it is the best way forward rather than involving a different procedure which would give rise to confusion and misunderstanding. From what Members of the Committee said, I know that they have concerns that individual police officers may abuse the powers. I am happy to give the Committee the assurance that the Government will keep on reminding chief constables and those responsible for training police officers of the importance of applying the law in the manner intended. They should remember the importance of discretion in exercising the powers open to police officers. I readily accept that the sensible use of discretion by police officers is a valuable aid to good race relations in the same way as the sensible use of discretion by prosecutors. Among my other duties, I have responsibility for prosecutions in Scotland. Discretion is an important part of the role of a prosecutor. Whether we are dealing with these statutory provisions or with prosecutions, there is no reason to believe that discretion will not be used as appropriate. The noble Baroness, Lady Williams, mentioned the Joy Gardner case. With the greatest respect, I do not believe that it arises directly from this subsection. Undoubtedly it was a tragic incident, but the powers set out in subsection (2) would have given the power to enter the premises concerned to search for and arrest the lady. Therefore, I do not begin to understand how it provides in any sense a valid objection which would prevent Members of the Committee being persuaded that this is a sensible statutory provision to adopt. Accusations have been made that the legislation will fuel an atmosphere of bad race relations and fly in the face of a sensible immigration policy. With respect to those who have spoken, many of whom I know feel strongly about the issues, such a problem is not in any sense a necessary consequence of passing the subsection. For those reasons, and with respect to those who have spoken, I hope that the Committee will not be persuaded that those are valid reasons for supporting the amendment. I believe that I have dealt with most of the questions raised. I shall try to deal with those that remain. With regard to how often the power would be invoked, an issue raised by the noble Lord, Lord Avebury, it is impossible to suggest that I or any Minister would be in a position to answer that. It is a problem which the immigration authorities have faced in the past and undoubtedly the power will be used. However, when and how often it will be used is fruitless speculation at present. Trespassing on Amendment No. 79, which has not yet been moved, there was a question as to whether it was appropriate to enforce warrants in places such as hospitals, educational establishments, youth clubs, places of worship and the like where people tend to congregate. I shall have more to say about that in due course when we reach Amendment No. 79, but it would be a great mistake to identify particular types of premises to which the law would not apply. It would encourage people to congregate there for invalid and illegal purposes. I do not understand how that would support the cause of good race relations. So far as Australian illegal immigrants are concerned, I am happy to give the Committee an assurance that the Government would wish the immigration authorities to apply the law in so far as it relates to illegal immigration completely without any discrimination against any category of person, whether positively in that person's favour or negatively against that person. For that reason, I hope the noble Viscount, Lord Brentford, is reassured. I believe I have dealt with all the points that I managed to note. If not, I shall no doubt be helpfully reminded by Members of the Committee."that it is not practicable to communicate with any person entitled to grant entry to the premises; … that it is practicable to communicate with a person entitled to grant entry but it is not practicable to communicate with any person entitled to grant access to the evidence; … that entry to the premises will not be granted unless a warrant is produced; … that the purpose of a search may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them".
The Minister confirmed my interpretation of subsection (3). He confirmed that it simply adds the power of search for material evidence. If that is the case, surely the drafting of this clause is not only virtually incomprehensible (it took me a long time going through three different Acts to discover the meaning) but quite unnecessarily offensive.I remind the noble and learned Lord the Lord Advocate what is meant by a "serious arrestable offence". As was said, it is treason, murder, manslaughter, rape, kidnapping and various sexual offences against children. It is also an offence that would have a consequence as specified in subsection (6) of Section 116:
Those criteria, like the crimes themselves that are listed as serious arrestable offences, are simply not appropriate to immigration law. They ought not to be in this Bill. If the noble Baroness, Lady Williams, pursues this amendment to a Division, I shall support her, and I shall undertake to introduce at the next stage a suitable amendment to subsection (2) of Clause 7 which will provide the power to search for evidence. That would be a much better way of dealing with this matter."serious harm to the security of the State or to public order … serious interference with the administration of justice … the death of any person … serious injury to any person … substantial financial gain to any person; and … serious financial loss to any person".
I thank the noble and learned Lord the Lord Advocate for his reply, and in particular for the very full explanation he gave of subsection (2). When he turned to subsection (3), I have to say that I found his clear statement that the Government would not accept the amendment not tantamount to an argument against it. I am still not satisfied that the amendment is other than in perfectly good order. I believe it makes perfectly good sense.The nub of the whole argument, as the Committee knows, is whether it is appropriate, as the noble Lord, Lord McIntosh, said, that immigration offences should be treated as if they were equivalent to serious offences of the most extreme kind. I think it has been the express view of the Committee in this debate that that argument simply will not hold water. I thank very much those noble Lords who have taken part in the debate. An extremely serious point was raised by the noble Earl, Lord Sandwich, on the impact of all this on race relations. With respect, it was not addressed by the Minister when he replied. It is an extremely important point and has concerned many Members in this place. The noble Viscount, Lord Brentford, raised similar concerns. Again, I fear that they have not so far been adequately considered. To turn to the police, I believe that the British record on policing is one of the great glories of this country. However, I am also well aware that some of the most distinguished commissioners, not least of the Metropolitan Police, and including the present commissioner, have themselves been deeply concerned at some incidents of racism among the police. It does not help their own case—which they have made with such strength and imagination—to pretend that there is no problem of this kind, since they themselves admit that there is. It is the duty of this place to help support commissioners of police in their attempt to try to make sure that all citizens of this country are treated alike. I thank very much the noble Lord, Lord Menuhin. He has made a tremendous contribution to this country. He came here under the very terms and generosity of previous Acts. He has been one of the most significant artistic contributors to this country of anybody in this place that I can name. I am most grateful to him for coming in to speak. Finally, I thank the noble Lord, Lord Renton, for his kind remarks. I am grateful to him for regarding me as speaking with sincerity. I assure him that it is not sincerity that primarily motivates me. I do not want to delay the proceedings of the Committee, but let me just tell a very short story. Some years ago I was travelling in Romania with my family on holiday. We stopped at a remote hotel in the Carpathian Mountains. It was made of concrete but was shabby and cheap. It was the only hotel to be found in that remote village. I handed over my passport, on which my occupation at that time (it was the old passport) was recorded as "Member of Parliament". The man behind the desk said to me: "Magna Carta liberorum". It is that response that has always filled me with a great sense of pride in my country—the "great charter of the free". I fear that measures such as this go a long way to undermine that reputation. It is because I wish to see that reputation upheld that I now ask the Committee to express its opinion on this amendment.
On Question, Whether the said amendment (No. 77) shall be agreed to?
Their Lordships divided: Contents, 112; Not-Contents, 131.
Division No. 1
|Addington, L.||Gallacher, L.|
|Archer of Sandwell, L.||Graham of Edmonton, L. [Teller.]|
|Avebury, L.||Greenhill of Harrow, L.|
|Beaumont of Whitley, L.||Hamwee, B.|
|Berkeley, L.||Hanworth, V.|
|Blackstone, B.||Harris of Greenwich, L.|
|Borrie, L.||Haskel, L.|
|Broadbridge, L.||Hayman, B.|
|Carmichael of Kelvingrove, L.||Healey, L.|
|Carter, L.||Henderson of Brompton, L.|
|Chester, Bp.||Hilton of Eggardon, B.|
|Chichester, Bp.||Hollick, L.|
|Clancarty, E||Hollis of Heigham, B.|
|Clinton-Davis, L.||Holme of Cheltenham, L.|
|Cocks of Hartcliffe, L.||Howie of Troon, L.|
|David, B.||Hughes, L.|
|Desai.L.||Hutchinson of Lullington, L.|
|Donaldson of Kingsbridge, L||Hylton, L.|
|Dormand of Easington, L.||Jay of Paddington, B.|
|Dubs, L.||Jenkins of Putney, L.|
|Ezra, L.||Judd, L.|
|Falkender, B.||Kennet, L.|
|Falkland, V.||Kilbracken, L.|
|Farrington of Ribbleton, B.||Kissin, L.|
|Lester of Herne Hill, L.||Sandwich, E|
|Lockwood, B.||Scanlon, L.|
|Lovell-Davis, L.||Seear, B.|
|McIntosh of Haringey, L.||Serota, B.|
|Mackie of Benshie, L.||Shepherd, L.|
|McNally, L.||Smith, L.|
|Merlyn-Rees, L.||Strabolgi, L.|
|Mishcon, L.||Tenby, V.|
|Monkswell, L.||Thomson of Monifieth, L.|
|Morris of Castle Morris, L||Thurso, V.|
|Nathan, L.||Tope, L.|
|Nicol, B.||Tordoff, L.|
|Ogmore.L.||Turner of Camden,B.|
|Oxford, Bp.||Wallace of Coslany.L.|
|Peston, L.||Walpole, L.|
|Rea, L.||Warnock, B.|
|Redesdale L.||Wedderbum of Charlton, L.|
|Richard, L.||White, B.|
|Ripon, Bp.||Wigoder, L.|
|Robertson of Oakridge, L.||Williams of Crosby, B. [Teller.]|
|Rochester, L.||Williams of Elvel, L.|
|Rodgers of Quarry Bank, L.||Williams of Mostyn, L.|
|Runcie, L.||Winston, L.|
|Russell, E||Wright of Richmond, L.|
|St John of Bletso, L.||Young of Dartington, L.|
|Addison, V.||Geddes, L.|
|Aldington, L.||Goschen, V.|
|Alexander of Tunis, E.||Haddington, E.|
|Allenby of Megiddo,V.||Haig,E.|
|Archer of Weston-Super-Mare, L.||Hailsham of Saint Marylebone, L.|
|Ashbourne, L.||Harding of Petherton, L.|
|Astor of Hever, L.||Hardwicke, E.|
|Bauer, L.||Harris of Peckham, L.|
|Belhaven and Stenton, L.||Hemphill, L.|
|Blatch, B.||Holdemess, L.|
|Bowness, L.||Hothfield, L.|
|Boyd-Carpenter, L.||Howe, E.|
|Brabazon of Tara, L.||Hylton-Foster, B.|
|Brigstocke, B.||Ilchester, E.|
|Butterwoith, L.||Inglewood, L.|
|Cadman, L.||Jenkin of Roding, L.|
|Campbell of Alloway, L.||Kimball, L.|
|Campbell of Croy, L.||Kingsland, L.|
|Carnock, L.||Leigh, L.|
|Chalker of Wallasey.B.||Lindsey and Abingdon, E|
|Chelmsford, V.||Liverpool, E.|
|Chesham, L. [Teller]||Long, V.|
|Clanwilliam, E.||Lucas, L.|
|Clark of Kempston, L.||Lucas of Chilworth, L.|
|Coleridge, L.||Lyell, L.|
|Courtown, E.||McColl of Dulwich, L.|
|Cranbome, V. [Lord Privy Seal.]||Mackay of Ardbrecknish, L.|
|Cumberlege, B.||Mackay of Clashfem, L. [Lord Chancellor]|
|Dacre of Glanton, L.|
|DeL'Isle,V.||Mackay of Drumadoon, L.|
|Dean of Harptree, L.||Marlesford, L.|
|Denton of Wakefield.||Massereene and Ferrard, V.|
|Dilhorne, V.||Merrivale, L.|
|Dixon-Smith, L.||Mersey, V.|
|Eden of Winton, L||Miller of Hendon,B.|
|Elliott of Morpeth, L.||Milverton, L.|
|Elton, L.||Monk Bretton, L.|
|Fraser of Carmyllie, L.||Monson, L.|
|Gainford, L.||Montgomery of Alamein, V.|
|Gainsborough, E.||Mottistone, L.|
|Gardner of Parkes.B.||Mountgarret, V.|
|Mowbray and Stourton, L.||Seccombe, B.|
|Moyne, L.||Selbome, E.|
|Murton of Lindisfarne, L.||Shaw of Northstead, L.|
|Nelson, E.||Sherfield, L.|
|Northesk,E.||Soulsby of Swaffham Prior, L.|
|Orr-Ewing, L.||Stewartby, L.|
|Park of Monmouth, B.||Strange, B.|
|Pearson of Rannoch, L.||Strathcarron, L.|
|Pender, L.||Strathclyde, L. [Teller.]|
|Peyton of Yeovil, L.||Sudeley, L.|
|Pym, L.||Swinfen, L.|
|Rankeillour, L.||Teviot, L.|
|Rawlings, B.||Thomas of Gwydir, L.|
|Rees, L.||Trumpington, B.|
|Rennell, L.||Vivian, L.|
|Renton, L.||Whitelaw, V.|
|Renwick, L.||Wise, L.|
|Saltoun of Abemethy, Ly.||Wynford, L.|
|Sanderson of Bowden, L.||Young, B.|
Resolved in the negative, and amendment disagreed to accordingly.
[ Amendment No. 78 not moved.]
moved Amendment No. 79:
Page 5, line 43, at end insert ("and "premises" has the same meaning as in the Police and Criminal Evidence Act 1984, save that it does not include a hospital (as defined in section 128 of the National Health Service Act 1977), bona fide educational establishment or place of worship").
The right reverend Prelate said: Amendment No. 79 seeks to limit the meaning of the word "premises". The noble and learned Lord the Lord Advocate has already commented that two powers are given under Clause 7; that is, the power to enter and arrest and the power to enter and search.
The institutions mentioned in the amendment are of a specific kind. I was moved by the contribution of the noble Lord, Lord Menuhin, on the debate on Amendment No. 77 and by what he said about this country being a country of humane behaviour. Each of the institutions mentioned in the amendment—a hospital, a bone fide educational establishment and a place of worship—have specific uses. A hospital is a place of healing; a bona fide educational establishment is a place of learning; and a place of worship speaks for itself. Those activities are such that they do not sit easily with the intrusive powers given under Clause 7. Those powers are not only intrusive; they may also be violent.
One of the powers is the power of arrest. The noble Lord, Lord Renton, conjured up a picture of somebody walking along a street, realising that he is about to be arrested and fleeing into one of those institutions. I find it difficult to see how that could happen in practice and, indeed, how the institution would receive him. If a man fled into a place of worship, would not the act of worship come to an end and those taking part in due course leave? The place of worship, in many cases, may be locked up for the night. I find it difficult to see how refuge could be sought by anybody for more than a momentary period.
The power of search also is not appropriate. Again one must ask what kind of evidence is being searched for. What could one be looking for in a place of worship? Other than lists of members, what could one find in a place of worship? What could one be looking for in a hospital, other than medical records? Those institutions are such that their activities sit uneasily with the powers afforded by the clause.
It is because I have that sense of uneasiness about the activities of entering, searching and arresting taking place that I tabled the amendment. I beg to move.
I rise briefly to support the amendment. I hope that the Government will consider carefully whether they might yield on this relatively limited provision. I have said already and say again that I fear that if Clause 7 is accepted unamended, we in this Chamber will live to rue the day. I hope that the Government will consider whether they can concede on the matter.Churches have been places of asylum and safety throughout history, even in countries which have records of dictatorships. It would be a great shame if in this country places of worship did not retain that reputation of not being like other places—places of asylum, places of peace and places where people may go from the rush and conflict of the world. I very much hope that the Government will consider yielding on this amendment and coming back at Report stage with appropriate wording. I support the right reverend Prelate.
I oppose the amendment. We had the debate on this point when we discussed the previous amendment. No matter how emotional we might feel about a church as a place of asylum—I agree with that—the amendment, apart from perhaps filling those empty churches again, would have a dangerous effect. It would mean that anyone could exploit what would not be a small loophole but a huge loophole. These premises could cover an almost unlimited number of people. Just to pop inside one of those places and then find yourself completely protected from the Act is in terms of practicality just not on. I oppose the amendment.
I oppose the amendment. I am a communicant member of the Church of England. I think it most extraordinary that the right reverend Prelate should have moved an amendment which might have the effect of making churches, some of which are open all night and into which people go for prayer and meditation, into refuges for those who wish to evade the police or conceal evidence. That is an extraordinary thing and would be a great disservice to organised religion.
I am not a communicant member of the Church of England or any Church, but the noble and learned Lord in his capacity as a communicant member should recognise that not under common law but under canon law churches are places of sanctuary for all crimes.
They ought not to be.
My concern about the amendment is that it is too far-ranging. I hope that my noble and learned friend the Lord Advocate might consider whether, having won the Division on the previous amendment, he could not revise the wording so as to retain the power of search but remove before Report stage what was offensive to many of us—the draconian powers. I would much rather him be prepared to consider that than to accept the amendment, which would create an enormous number of refuges scattered around the country which would be very difficult to handle.
As a church warden of a small but very lovely church in Hampshire, I would be very upset indeed at the idea of that church being used as a shelter for criminal articles or articles required by the criminal law. Therefore, I very much hope that the Committee will emphatically reject the amendment.
As a contemporary of two of the previous speakers—we are three of the oldest in the House—and also a communicant of the Church of England, I am strongly in favour of churches retaining what they have always had, which is to be places of refuge. That does not mean that other institutions should have the same right.
As we are all disclosing our ecclesiastical antecedents, perhaps I should indicate that I am not a member of the Church of England. My father was a seventh generation minister in Scotland and my great-uncle was James Moffatt, who translated the Bible.I genuinely suggest that the amendment would be entirely counterproductive for the purposes of generating good race relations in this country. No doubt from time to time those who are liable to be arrested in terms of the provisions of the Bill and of the 1971 Act will have to go to hospitals, educational establishments and places of worship for entirely bona fide purposes. But all these institutions are ones where people can come and go at will. The idea that the legislation should in some way encourage them to go there and to remain there for purposes which are not bona fide is one which I invite the Committee to resist. As with all the provisions of the Bill, the police will have to exercise their powers with moderation. There have been cases where they have not and the courts have required chief constables to pay the price for that. During the Division the right reverend Prelate who mentioned the case of A informed me that A had successfully sued for damages. There is no reason to believe that chief constables would allow, let alone encourage, their officers in any sense to misuse, abuse or recklessly employ the powers which the Bill seeks to give them. But if large institutions such as hospitals, educational establishments and some churches could allow people to go there, keep belongings there and stay there for reasons which are not bona fide, I suggest that that would not assist the cause which, from a different perspective, we are all seeking to achieve—better race relations in this country. For those reasons I sincerely hope that the amendment will not be pressed.
I am grateful to those noble Lords who have spoken in this brief debate. I am a little sorry that the noble and learned Lord, Lord Hailsham, and the noble Lord, Lord Boyd-Carpenter, whose wisdom I respect enormously, should not have a little more sense of the tradition of the Church. Churches are, as other noble Lords have said, not simply places of beauty but also of justice. The tradition of refuge is a long and honourable one. I find some of the pictures conjured up by noble Lords a little improbable—hordes of people rushing to the enclave of a church to live indefinitely there. I find it difficult to see how they would be supported, how they could continue there or what kind of life it would be if they were to remain there. I find the whole picture very improbable. I believe that some noble Lords have not sufficiently taken on board the point I made about the mismatch between the activities which take place in these institutions and the intrusion and violence which are involved in the clauses of the Bill. However, I was grateful to the noble and learned Lord the Lord Advocate for his statement that moderation will always be used. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn. On Question, Whether Clause 7 shall stand part of the Bill?
I should like first to say something entirely non-partisan. It is dangerously easy in politics in any century to impute to people who are doing things the motives that one would have had oneself if one had done those things. That is of course not the case because other people do not have the same assessment of facts as we do. So when they do things, they very often do not do them for the motives for which we would have done them had we done such things.I heard what the noble Earl, Lord Sandwich, had to say about the Prime Minister. I agree with it. I remember the Prime Minister on "Breakfast with Frost" during the Conservative leadership election saying that the Conservative Party is a party of tolerance. I take off my hat to him for saying that at that moment. I have never said that this Bill is an attempt to play the race card. What I do say is that, on my assessment of the facts, I believe the Bill has a racist effect. But I do not in any way credit the Government or their supporters with intending that effect because I accept that they do not believe it is the effect. It is also inevitable in the course of opposing the Question that Clause 7 stand part that I shall have to make some remarks which appear critical of the police. I agree with everything my noble friend Lady Williams of Crosby said about the standard of British policing. It is for a very large part of the time admirable, and I take off my hat to it. On the police, I say not a word more or less than Sir Paul Condon has said. He said:
That is all I am saying. All the examples I shall give are intended to illustrate no more than that proposition. I am concerned about the temptation which this clause will give to those officers and the amount of reciprocal fear, anger and suspicion that will be generated in the black community in particular by the exercise of those powers. Those of us who take a liberal view of these matters are occasionally reproached in the press for living in leafy suburbs and knowing nothing whatever about the subject. I do not live in a leafy suburb. I live in the London Borough of Brent which, I believe, has the highest concentration of ethnic minorities of any local authority area in Britain. I do know a little about what I am saying. I am concerned with the way in which powers are being exercised already. The power to arrest on suspicion is a fairly draconian power. Some Members of the Committee may remember what happened in Brixton in 1981 and the comments made on that in the Scarman Report. It seems that the troubles arose very largely from the operation of the old "sus" laws—the power to arrest on suspicion. I do not want to see that happen again. We should look at the figures given by Mr. David Maclean in a Written Answer and supplied to me by the Library. As regards police searches—that is, stopping and searching people in the street—in the Metropolitan Police area in 1994–95 there were 189,928 searches of white persons and 112,763 searches of non-white persons. Our non-white population is not such a high proportion of the population of the metropolitan area. I have not worked out the figures, but I believe that the disproportion will be admitted on all sides. In my local papers, the Kilburn Times and the Willesden and Brent Chronicle, articles on 4th March gave figures supplied by the police themselves. For searches, 1,598 white suspects were stopped by the police in Kilburn—that is 24 out of every 1,000 people—while 2,334 black people were stopped or 99 out of every 1,000. That is a considerable disproportion. I do not believe that the white population of Kilburn is so utterly law abiding as to justify that sort of discrepancy. It is in that context that I feel very considerable apprehension about conferring on the police—not just on the large majority of good and trustworthy officers but on all police—the power to arrest on suspicion. That power has been used in some fairly extreme ways. Perhaps I may give one example of a pregnant Nigerian woman. She was arrested and taken to the police station. She was a British subject. When the Home Office immigration officer arrived and confirmed that she was perfectly legally in this country and that there was no problem at all, the constable, in explaining why he arrested her, said, "She appeared not to be native English horn". The Bill uses the word "immigrant". I am not one of those who go in for making gibes about ministerial cars. Ministers have to get about and I know how heavy those boxes may be on occasions. But it is a pity that they do not hear the great British taxi driver nearly as often as we do, because in his ears the word "immigrant" means "black". So if the police are authorised to stop and search on suspicion, it will be very widely taken as the power to stop and search blacks. That is the point. Another example is that of the police who raided a house early one morning, acting on suspicion that illegal entrants might live there. The person they found was naturalised, was granted indefinite leave to remain and had a Home Office letter authorising him to be here. He also had a British passport application. The police recognised none of those documents. It is the usual problem that the police are not competent on immigration status. The man worked on a night shift. He was taken to the police station and held during the hours when he should have been working. He begged the police to inform his employer, whom he was afraid might sack him, why he was not at work. The police did not do so. There has been talk about fear. I entirely accept that the Joy Gardner case does not come within the terms of this clause, but what does is the reaction that that case has produced within the black community. In April 1994 there was the case of Kwanela Siziba who died after falling from the 12th floor of her block of flats. She thought that the police had come to her home to arrest her on immigration issues. She told her sister that she thought she would receive the same treatment as Joy Gardner. In fact, the police were accompanying a bailiff, and not on an immigration issue at all. The Minister may say that that was an irrational fear, but we are dealing with human beings who occasionally have irrational fears, especially if there is a headline case of that kind, which may seem to justify them. Inevitably, the police will act on "information received", as the phrase goes. That means that the police will, on occasion, be acting at the instigation of an informer. There are certain people in this country, some of them members of the British National Party or other such unpleasant organisations, who are capable of giving such information maliciously. Of those cases where the police have acted on the information of an informer, only 18 per cent. in the past year have turned out to be genuine. I ask the noble Baroness this question: is that one of the Home Secretary's policing objectives and, if not, should we be concentrating more police time on things which are, and which must be, part of the policing objectives of the Home Office such as the prevention of burglary? This is not the first time that such a provision allowing informers free rein against a particular group of people has been allowed. When the heresy laws were revived by Mary Tudor in 1554, she set up a procedure whereby a great deal of the work was done locally, instigated through informers, and carried through by the local justices of the peace. Mary Tudor herself—and we have this under her own hand—intended only to burn a few learned heretics as an example to the others. However, once public suspicion and public hatred had got the information network going, the web of suspicion inflamed, together with the idea that it was open season on Protestants. As a result she acquired the nickname "Bloody Mary" which, on her own record, she did not deserve. Yet again, just a few years later, when Queen Elizabeth I passed a new witchcraft statute, it again worked by the operation of informers. That is how the word "witchhunt" came to be proverbial—it relied on informers in neighbourhood feuds. In one case a woman was accused of being a witch by her next-door neighbour who said, "She is making a witch's circle underneath my window". The defendant's response was, "I am not making a witch's circle; I am making a shitting house". At once, all became clear. There are innumerable garden-fence hatreds. If we allow those to waste police time in the hunt for illegal immigrants when perhaps no offence has been committed, we shall have another witch hunt. The Government do not want that any more than I do, but if they keep this clause in the Bill I believe that that is what they will get. I oppose the Question that Clause 7 stand part of the Bill."Every effort was made during the recruitment process to weed out those with racist tendencies. However, we are made up of a wide cross-section of people and in any force of 28,000 people there will be officers who slip through the net".
I believe that the clause should stand part of the Bill. I do not think that I need to trouble the Committee by going through its terms in detail because they have already been debated at some length. I bow to the noble Earl's knowledge of history, which may include knowledge of one of my ecclesiastical ancestors, Donald Sage, who preached his last sermon in a church in Strathnaver before he and his parishioners were cleared out and the church burned on the instructions of a Member of your Lordships' House. I do not believe that reference to that incident should cause me any fear about what might happen to the church at which my father served in Edinburgh before he died.There is a slight danger in using such analogies and saying that they have some application to the legislation, and in particular to this clause which the Government seek to include in the Bill, and in suggesting that, whatever the Government's motives, the practical effect of the legislation will be racist because the proposed measures are draconian. We all have to be careful about the terms that we use in supporting or criticising this legislation. I invite the Committee to recognise that the provisions of the clause do no more than set down in perfectly clear terms, which are well understood by police officers, lawyers, and those who preside over courts of law, how warrants for arrest should be obtained and how warrants to search for evidence should be obtained and enforced. There have no doubt been occasions when officers have slipped through the net and become members of a force when one would rather that they had not. No doubt there are officers who, during the course of their career, do things they ought not to do. However, all chief constables throughout the United Kingdom, and particularly in the metropolitan area of London, are well aware of the importance of having codes of practice and disciplinary procedures and of providing regular guidance to officers on the way in which that part of their duties should be performed. Unfortunate incidents have occurred from time to time and no doubt they fall to be further investigated. Where people have erred, they ought to be disciplined, and damages are occasionally awarded. However, it is dangerous to suggest that because there have been such incidents there should not be any law to arrest people even where there are reasonable grounds for suspecting that an offence has been committed; and it is dangerous to suggest that there should be no law on the seizing of evidence which may help to establish one way or another whether a person is guilty of the offence as charged. That is all part of the firm and fair immigration policy which the Government seek to promote for the benefit of those who have the right to be here, who are genuine asylum seekers, and who are entitled to remain in this country. I commend the clause to the Committee.
I think that I was offering rather more than an analogy. I was offering the invocation and the use of informers against a certain marked and denigrated proportion of the population of this country. That has taken place in the discussion of this Bill—not all of it in Parliament, some of it in the press. But it has most undoubtedly taken place. The process which is operating is an identical process. That is all I wanted to say.I accept that the police must be able to get evidence. However, to give them the power to arrest on suspicion when there are so many cases where that power has been misused is extremely unwise. The noble and learned Lord said on the previous amendment that there have been cases where the police have not behaved as they should. I think that there are more of those cases than he thinks. Such cases create a reaction within the black community and have a multiplier effect. It is like ripples on a pond which get bigger because there is a wind which whips them up. So even one incident—even if it is small, and even if it did not actually happen—is dangerous. Let us take, for example, the alleged violence to Mr. Wayne Douglas in the police station in Brixton fairly recently which, it seems, did not take place. Anything which inflames suspicion is likely to get us into a very dangerous situation. I have read the Scarman Report on the Brixton troubles. I do not want to see anything like that happen again. That is why I oppose Clause 7.
On Question, Whether Clause 7 shall stand part of the Bill:
Their Lordships divided: Contents, 132; Not-Contents, 64.
Division No. 2
|Acton, L.||Kingsland, L.|
|Aldington, L.||Lindsey and Abingdon, E|
|Alexander of Tunis, E.||Liverpool, E.|
|Ashboume, L.||Long, V.|
|Astor of Hever, L.||Lucas, L.|
|Balfour, E.||Lucas of Chilworth, L.|
|Bauer, L.||Lyell, L.|
|Belhaven and Stenton, L.||McColl of Dulwich, L|
|Blaker, L.||Mackay of Ardbrecknish, L.|
|Blatch, B.||Mackay of Clashfern, L. [Lord Chancellor.].|
|Bowness, L.||Mackay of Drumadoon, L.|
|Boyd-Carpenter, L.||Massereene and Ferrard, V.|
|Brabazon of Tara, L.||Merrivale, L.|
|Brentford, V.||Mersey, V.|
|Cadman, L.||Miller of Hendon,B.|
|Caithness, E.||Milverton, L.|
|Campbell of Alloway, L.||Monk Bretton, L.|
|Campbell of Croy.L.||Monson, L.|
|Camock, L.||Mottistone, L.|
|Chalker of Wallasey.B.||Mowbray and Stourton, L.|
|Chelmsford, V.||Murton of Lindisfame, L.|
|Chesham, L. [Teller.]||Nelson, E.|
|Clanwilliam, E.||Newall, L.|
|Clark of Kempston, L.||Nome, L.|
|Clifford of Chudleigh, L.||Northesk,E.|
|Coleridge, L.||Orr-Ewing, L.|
|Craig of Radley, L.||Park of Monmouth, B.|
|Cranbome, V. [LordPrivy Seal]||Pearson of Rannoch, L.|
|Crawshaw, L.||Peel, E.|
|Cumberlege, B.||Plumb, L.|
|Dacre of Glanton, L.||Prior, L.|
|Demon of Wakefield,B.||Quinton, L.|
|Dilhome, V.||Rankeillour, L.|
|Dixon-Smith, L.||Rawlings, B.|
|Eden of Winton, L.||Rees, L.|
|Elliott of Morpeth, L.||Rennell, L.|
|Elton, L.||Renton, L.|
|Rather, B.||Renwick, L.|
|Fraser of Carmy Ilie, L.||Rodney, L.|
|Gardner of Parkes, B.||Saint Albans, D.|
|Gisborough, L.||Saltoun of Abemethy, Ly.|
|Goschen, V.||Sanderson of Bowden, L.|
|Hacking, L.||Seccombe, B.|
|Haddington, E||Selbome, E|
|Haig, E.||Shaw of Northstead, L.|
|Hailsham of Saint Marylebone, L.||Sherfield, L.|
|Harding of Petherton, L.||Skelmersdale.L.|
|Harlech, L.||Smith, L.|
|Harris of Peckham, L.||Soulsby of Swaffham Prior, L|
|Harvington, L.||Stewartby, L.|
|Hemphill, L.||Strange, B.|
|Henley, L.||Strathclyde, L. [Teller.]|
|Hooper, B.||Sudeley, L.|
|Howe, E.||Swinfen L.|
|Hylton-Foster, B.||Thomas of Gwydir, L.|
|Inglewood L.||Thurlow, L.|
|Jenkin of Roding, L.||Trumpington, B.|
|Vivian, L.||Wilcox, B.|
|Wamock, B.||Wise, L.|
|Whitelaw, V.||Wynford, L|
|Addington, L.||Lester of Herne Hill, L.|
|Archer of Sandwell, L.||Lockwood, B.|
|Avebmy, L.||Longford, E.|
|Bath,M.||Mackie of Benshie, L.|
|Beaumont of Whitley, L.||McNair, L.|
|Berkeley, L.||Mayhew, L.|
|Broadbridge, L.||Meston, L.|
|Bruce of Donington, L.||Monkswell, L.|
|Chester, Bp.||Nicol, B.|
|Chichester, Bp.||Ogmore, L.|
|Cocks of Hartcliffe, L.||Oxford, Bp.|
|David, B.||Rea, L.|
|Desai, L.||Redesdale, L.|
|Donaldson of Kingsbridge, L.||Ripon, Bp.|
|Elis-Thomas, L.||Robertson of Oakridge, L.|
|Ezra, L.||Rochester, L.|
|Falkland, V.||Rodgers of Quarry Bank, L.|
|Gainsborough, E.||Runcie, L.|
|Gilmour of Craigmillar, L.||Russell, E [Teller]|
|Grey, E.||Sandwich, E.|
|Hamwee, B.||Seear, B.|
|Harris of Greenwich, L.||Shepherd, L.|
|Hayman, B.||Thomson of Monifieth, L.|
|Healey, L.||Thurso, V.|
|Hilton of Eggardon, B.||Tope, L.|
|Holme of Cheltenham, L.||Tordoff, L.|
|Howie of Troon, L.||Wallace of Coslany, L.|
|Hughes, L.||Wallace of Saltaire, L.|
|Hutchinson of Lullington, L.||Walpole, L.|
|Hylton, L.||White, B.|
|Jenkins of Putney, L.||Wigoder, L.|
|Kilbracken, L.||Williams of Crosby, B. [Teller]|
Resolved in the affirmative, and Clause 7 agreed to accordingly.
Clause 8 [ Restrictions on employment]:
moved Amendment No. 80:
Page 6, line 3, leave out from ("employs") to ("the") in line 4 and insert ("a person ("the employee") who has attained the age of 16 and who requires leave to enter or remain in the United Kingdom under the Immigration Act 1971 and who does not have either such leave or some other permission enabling him to take up the employment in question,").
The noble Lord said: In moving Amendment No. 80, I speak also to Amendment No. 82. Clause 8 is concerned with the prevention of illegal working. The issue here is the creation of a new criminal offence of employing an, illegal immigrant. Before I come to the very serious deficiencies of the clause in terms of its content, I protest in the strongest possible terms—in other words, in the form of this amendment—against the use of the word "immigrant" in this clause, in Clauses 9 and 10 and in the definition in Clause 12. I remind the Committee that Clause 12(2) defines an immigrant as,
"a person who under the 1971 Act requires leave to enter or remain in the United Kingdom (whether or not such leave has been given)".
In other words, for the purposes of this Bill "immigrant" includes people who have a perfect right to be in this country and may well have a perfect right to work in
this country. It is a principle of our law that those who have a right to be in this country are subject to the same law as those born here or who have hereditary links. For the purposes of legislation, to define a person differently from others because he requires leave to enter or remain in the United Kingdom, even though he has that leave to enter or remain in the United Kingdom, is profoundly offensive. It is also extremely confusing. If one turns back to Clause 8 and looks at "immigrant" in the second line on page 6, one finds that the clause provides:
"… an immigrant ('the employee') who has attained the age of 16 and is not one to whom subsection (2) below applies, the employer shall be guilty of an offence.
(2) This subsection applies to an immigrant if either—
(a) he has been granted leave to enter or remain in the United Kingdom, and the leave is valid and subsisting and is not subject to a condition precluding him from taking up the employment in question; or (b) he satisfies such other conditions as may be specified in an order made by the Secretary of State".
That defines "immigrant", in the terms of Clause 12, as a person who may well have a right to be in this country and to work in this country. The situation is changed by subsection (2), which provides that the person may be subject to a condition—it is all in the negative, just to make things worse—that precludes him from taking up employment. It goes on to compound the confusion by referring to other conditions that may be specified in an order made by the Secretary of State. I remind your Lordships that this clause is to be the basis upon which employers have to decide whether or not a person whom they employ is entitled to be employed by them. If they make the wrong judgment they will be guilty of a criminal offence. That criminal offence will cost them up to £5,000 in fines (level 5 on the standard scale). It applies not only to the employer as an organisation but, under subsections (5) and (6), to directors, managers, secretaries or others who act on behalf of the employer. It is an extremely serious matter for an employer if he makes a wrong judgment or a mistake in defining whom he is entitled to employ. Yet the Bill as drafted defines an immigrant in that broad way. It then says that the person is an employee who has attained the age of 16, which is not something that was in the original definition. The clause then provides that it does not apply to two categories of people. The first is someone who:
"is not subject to a condition precluding him from taking up the employment".
The clause then introduces the further conclusion of an order made by the Secretary of State, which we have not yet seen.
So in every way the clause is drafted in order to make it as difficult as possible for an employer to understand it and apply it effectively. Its drafting is profoundly wrong, and it is profoundly wrong in principle, because as soon as we start to describe as immigrants people who have the right to be here and may have the right to work here we are starting to say that there are two different kinds of people in this country and two different kinds of law applying to them.
The CRE has estimated that on the definition in Clause 12 about a quarter of the people who belong to ethnic minority groups in this country will fall within the category of immigrants. What will employers do to avoid trouble? First, they will stop interviewing them, and then they will stop employing them. That is the easy, safe way out of the complications which the Bill is placing on them.
No, we should not have the word "immigrant". We do not need the word "immigrant". Amendment No. 80 gives a good definition of what is intended by the clause without in any way changing the meaning of the clause. It states that the person is an employee:
"who has attained the age of 16 and who requires leave to enter or remain in the United Kingdom under the Immigration Act 1971 and who does not have either such leave or some other permission enabling him to take up the employment in question".
Every employer can understand that. Few employers will understand the complex, paradoxical, and self-contradictory formulation which the Government have chosen in the Bill. I beg to move.
I should remind the Committee that if this amendment should be agreed to I shall be unable to call Amendment No. 81.
I am pleased to support the amendment. I should like to add one or two arguments to those which the noble Lord has so ably put before the Committee. The first argument is that this clause as it stands, without amendment, puts employers in an almost hopeless position. Let us assume that employers intend fully to carry out the law as it stands. With one voice the law tells employers that they have an obligation to treat people of all races equally: to offer equal opportunities, indeed that they will themselves be in breach of the law if they do not offer those equal opportunities. Employers—I give credit to them—have in many ways led the attempt to get good race relations in this country. There are some outstanding examples of fine employers who have done their very best to promote men and women from the ethnic minorities to positions of responsibility and trust. Many of them have had a great deal of good service from those very same people.The race relations law and the law of equal opportunities have served this country well. Many employers, especially small ones, are under such pressure that they cannot be expected to go in great detail through complex administrative forms. We are now telling employers that if they inadvertently employ someone who says to them that he or she has every right to be employed, and is in fact a black or Asian Briton, who then turns out not to be legally in this country, they will not be committing a civil offence—that is something I would understand—but a criminal offence. By this clause, we are criminalising decent employers. Again, as I said on the last clause, I do not understand why we are so widening the reach of criminality to men and women who are decent citizens. It is a foolish thing to do. It turns away from support of the Government and the state men and women whose intentions are to obey the law. First, we put employers in this impossible position. They are asked to obey two laws which are, to a great extent, in conflict, because, as the noble Lord, Lord McIntosh, said, if we look closely at the Bill and the schedules we will find the requirements laid upon employers to determine what it is to be beyond one's leave to remain; to be outwith the conditions laid down; to be, in that sense, out of line with immigration law. It will require a highly sophisticated person to be able to interpret those provisions. It is always bad to produce laws which are hard for people to obey because they are hard for them to understand. That is the first part of my case in support of the noble Lord. The second part of my case is that the great threat to good race relations in this country comes, above all, from the levels of unemployment among young black and Asian men and women. That level of unemployment is broadly twice that of the white community. For young Caribbean men, it approaches 20 per cent. That means that many a young lad who comes out of school seeking a job—sadly many are seeking only unskilled or semi-skilled work—with every intention of leading a decent and law-abiding life, who already finds it difficult to obtain a job, will find it very much harder to obtain a job if the clause goes through unamended, because, as the noble Lord, Lord McIntosh, said, many employers—I do not wish to suggest any bad intentions—will play safe by not employing someone who happens to have a different coloured skin. One cannot blame them when they run the risk of facing a serious criminal charge if they happen to employ that person. My final point was made eloquently by the noble Lord. Sooner or later we shall have to move away from the term "immigrant" when used in relation to our black and Asian fellow citizens. They are our fellow citizens. Some of them are Members of this place and another place. Some of them play a distinguished part on the appointed bodies of this country. Unless we get out of our minds, and the minds of many of our fellow citizens, the idea that someone who has lived in this country for a generation, two generations or more is somehow alien because of the colour of their skin, we shall never be a successful multi-faith, multi-racial society, and it is important that we should be. I conclude with the thought that that is not important for our country only, though it matters a great deal. It is important because one of the areas where this country still wields a great deal of influence is within the Commonwealth. Many citizens of Commonwealth countries have different coloured skins from those in our country. Countries such as South Africa, Zambia, India, Sri Lanka, and others, which look upon our country with friendship and wish to maintain close relations with us, will regard the way in which we treat race relations in this country as the acid test of our relations with them. Much more than our own country is at stake. It is our country's reputation, its relationship with the rest of the world, and its influence on the rest of the world that I believe are being jeopardised by what seems to me to be unnecessary and foolish clauses.
I shall speak against the amendment, although I have sympathy with the point made. I do not know how many other Members of this place are, like me, immigrants as defined under Clause 12. I rather like being known as an immigrant. I often use that term about myself. However, I understand the point made by the noble Lord, Lord McIntosh, that people have sensitivities about it. If we are going to mix up legal and illegal immigrants, there may be cause for the Government to look at that again. The next two amendments may he even more relevant.I believe that it is important to have employment as a condition. I sit on an industrial tribunal and a few weeks ago I was amazed by a case that came before it. The applicant did not appear and I thought that there must be a good reason for that. The employer had the case heard in the applicant's absence and he told us that the man had presented for employment under one name but a week later had said that that was not his name and gave another name. He said that he would like to work under a work permit in yet a third name. The employer said, "Of course, I always have someone working in the name on that work permit. They have always been different faces and different people but the work permit has always been used". The employer could not use that as a defence under the provisions of Clause 8 because he must have known that the documents were false if they were used by different people. Therefore, it is important to have proper restrictions on employers. I repeat that if we all had identity cards, we would have no problem because we would have only one identity and that would be the end of the matter. I believe that there is serious exploitation of illegal immigrants who work almost on a slave basis for low wages. The clause would not allow people to get away with treating others as they do. Some people, because of their illegal status, are willing to work for anything and there is no sanction against the employer. The clause would provide a sanction against the employer because he must ensure that the employee has a proper work permit and works under good and fair conditions. In many cases that is not so, but we never see those employees in the industrial tribunals because they are in illegal employment. The noble Lord, Lord McIntosh, mentioned the age limit of 16 and that reminded me of another case that I heard in the industrial tribunal. We would have found in favour of the applicant because the case concerned a boy working under age and unable to be considered under employment law—
I am grateful to the noble Baroness for giving way. I did not mention the age of 16; it appears in the Bill. Nothing in my amendment changes any of the powers in the Bill. It is entirely a drafting amendment designed to remove confusion and to correct an unnecessary and divisive label.
I thank the noble Lord. I leave the Government to decide whether the amendment is appropriate. I am emphasising the extreme importance of having proper employment restrictions in the Bill. It should be a criminal offence to employ someone illegally. The noble Lord, Lord McIntosh, mentioned the age of 16 and said that it had not appeared in other Bills.
Perhaps I misunderstood. I thought that he said that reference has not previously been made to the age of 16. One cannot have employment law relating to people under the age of 16 because they are not employable. Good employment protection would mean that people must abide by the law, which would be to our advantage.I conclude by saying that I am proud to be an immigrant, but I can understand that people may have different reactions and I take the noble Lord's point.
As regards the age criterion in the clause, presumably it would be a defence for an employer charged under the Bill to say that he thought the employee was under 16. He would then be caught by other legislation but not by this Bill. He would be fined, or otherwise penalised, for employing the person under the permitted age, but he would escape from the penalties provided in the Bill for taking on someone who is illegally present or who is legally present but without leave to take employment.I share the view expressed by my noble friend that to have the word "immigrant" on the face of an Act of Parliament is highly offensive to many people in this country and it should be avoided if at all possible. If the Government had put their minds to the matter it would have been feasible to have chosen a totally different way of catching the evil at which we are looking. I refer to the deliberate employment of people illegally in this country and sometimes at extremely low wages. Some employers are unscrupulous and employ such people, in some cases, virtually as slave labour. No one is condoning that or seeking to prevent the Government assuming adequate powers to stop employers exploiting such people in the way that has been described. When one looks at the ways in which employers must comply with the provisions of the clause it is difficult to see why that could not have been spelt out on the face of the Bill. In the consultation document we read that the most straightforward check is that of a national insurance number. A P.45, which has a national insurance number on it, would provide an employer with an absolute defence against a charge under this clause. If we provided that, on taking on a new employee, every employer must see a P.45 on which there is a valid national insurance number, we would be putting the condition that is to be imposed under the consultation document on the face of the Bill and we would be avoiding the necessity of referring to "immigrant". It would mean that employers must look at the P.45 of every employee to see whether it contains a valid national insurance number. The cost of compliance with the provisions of the clause are estimated in the Home Office document, Prevention of Illegal Working: Compliance Cost Assessment, at £13.5 million initially and £11.5 million in recurrent costs. If we are looking at the absolute defence of checking a national insurance number I do not see that that is an onerous requirement to place on a potential employer—
I thank the noble Lord for giving way. Of course, one has a P.45 only if one has had previous employment. School leavers are given an equivalent document but those newly arrived in the country do not have national insurance numbers—I did not when I arrived in this country—and it takes some time to obtain one. Therefore, I am not sure that the case is exactly as the noble Lord believes it to be.
I was about to turn to that point. If someone has moved from one job to another he will have a P.45. Until now there has been no obligation on a previous employer to enter the national insurance number on that document. However, there will be such an obligation and once that is done it will be an absolute defence to a charge against an employer that he has taken on an illegal entrant or someone not qualified under the clause to say that he looked at that document and it appeared to contain a valid national insurance number.I leave aside the issue on which the Minister may wish to comment in replying to the amendment because it was covered at length in the other place. It was that there are in circulation in the system many fraudulent national insurance numbers. I understand that an employer has no obligation to check with the Department of Social Security to see that the number on the P.45 is not fraudulent. The presence of the number on the form is an absolute defence. But if the person was not in previous employment then, as the noble Baroness pointed out correctly, he has no national insurance number and has to present another document. Those documents are specified in the prevention of illegal working compliance costs assessment document as being a British birth certificate or passport showing the holder to be a British citizen, a European Economic Area passport, a passport or other travel document endorsed to show that the person is settled in the United Kingdom or a certificate of registration or naturalisation as a British citizen. Therefore, I am suggesting that if we spelt out the presentation of those documents within the clause or within a redrafted Clause 8, we should not need to use the word "immigrant" at all. Employers would have to demand that they see one or more of those documents—the primary document being the P.45 with a national insurance number on it—but in default of the presentation of that document, any one of the four other documents specified by the Home Office. If that is done, it would remove many of the anxieties which are present in the minds of employers. On reading the Bill, many of them will ask how they are supposed to satisfy themselves that a person asking for a job falls within the terms of the Bill. It also gets round the danger that employers may be tempted to employ preferentially people who look as though they are born here because they have a white skin. If an employer is told that in every single case that he must look for such proof as is mentioned in the Prevention of Illegal Working document then there would be no discrimination at all. The employer asks first for the P.45 and if that is not presented, whether the person is black, white or any other colour he will say, "Let me see your birth certificate". That is not an onerous requirement to place on employers or jobseekers. If the person is born here and lived here all his life, he will have no difficulty in producing his birth certificate. If he comes from another European country, he will be able to produce a European Economic Area identity document, and so on. In all those cases, the employer is asked to look at a single piece of paper and the job applicant must present one of those documents. I believe that we should delete the whole of Clause 8 and incorporate the definition of illegal working criteria on the face of the Bill. We should not then need to define the word "immigrant", and we should not need to have any of the fears of racism which have been spoken about. Employers would be happy because they would know precisely what was required of them and employees would know exactly which documents to produce.
I am intrigued by the amendment put forward by the noble Lord, Lord McIntosh of Haringey, because I have the impression that it would exclude overseas students on a student visa from being allowed to obtain any employment in this country at all.
No. There is no problem for somebody with a bona fide reason for being here, whether he has a student visa or whatever, so long as he has a right to work here. The noble Lord, Lord McIntosh, spoke specifically to his amendment which deals with the sensitive and difficult issue of the word "immigrant". I wish to address the import of that amendment.We are aware that unease has been expressed about the use of the word "immigrant" in this Bill. Strictly speaking, it is a perfectly neutral word, as my noble friend said, and it has been used simply as a way of referring to a person who is subject to immigration control. The use of this term does not in any way affect anyone's immigration status. In particular, contrary to one criticism which has been expressed, there is nothing in the Bill which affects the immigration status of people who are settled here; in other words, those who have indefinite leave to remain. However, we now accept, in the light of the debate which has taken place both in this Chamber and elsewhere that, however irrationally, the word "immigrant" is perceived by some as having a pejorative connotation. It has been suggested that its use could give rise to anxieties among minority communities. That is the last thing we wish to happen. We recognise also that the term might be seen by the layman as referring to anyone who has come here from abroad to live, rather than only to a person who requires leave to enter or remain under the 1971 Immigration Act. My right honourable friend the Home Secretary and I met recently the right reverend Prelate the Bishop of Ripon, who is not at present in his place. The right reverend Prelate set out his concerns about a number of aspects of the Bill, including the use of the term "immigrant". On reflection we have found the right reverend Prelate's argument on this point compelling. We have also taken account of the representations which the Commission for Racial Equality has made to us. I shall reflect also on what has been said in this debate. We therefore intend to bring forward on Report government amendments which will remove the term "immigrant" from it and replace it with a term which avoids giving rise to the concerns which have been expressed. Amendments Nos. 81, 82 and 83 are defective, and if the Committee wishes me to, I can point out some of the problems.
In the light of what the Minister has said—which is most welcome—I shall clearly not press the amendments. If she wishes to humiliate me by pointing out the defects, she is welcome to do so.
No, that is the last thing that I want to do. The government amendments will address references to the word "immigrant" in Clauses 9, 10 and 12 in addition to Clause 8. Although Amendments Nos. 81 and 83 are not grouped with these amendments, my response to them would be the same. The Government will respond to Amendments Nos. 81, 82 and 83 on Report. I hope that in the light of that, the noble Lord will not press the amendment.
That is extremely good news. In his absence, I congratulate the right reverend Prelate the Bishop of Ripon on contributing to that change of heart. The Minister will have to make alterations to the Long Title of the Bill as well as to Clause 12.I hope that from that will come the possibility of achieving the other object of the amendment; namely, to simplify the guidance or the law to be imposed on employers. As I made clear, it is not just a matter of the use of the word "immigrant". It is the fact that the word "immigrant" is defined in Clause 12, defined more narrowly in Clause 8 and redefined more narrowly in a different way—in other words, leaving it to the discretion of the Secretary of State—in Clauses 9 and 10. Therefore, the Government will need to do more than merely change the use of the word "immigrant" if the second intended benefit of my amendment is to be achieved; namely, to simplify the way in which the law is presented to employers.
My Lords, first, I shall reflect carefully on what the noble Lord has said in the course of this debate. It may be that he has particular suggestions to make to me on this matter between now and Report. I believe that the noble Lord said that he does not wish to change the substance of any part of the Bill in that respect. We shall address that and we shall look at the drafting in the course of that. I hope that I can inform by letter all interested Members of the Committee what is to be the import of the government amendments to be moved on Report. But I shall certainly reflect on the drafting.Finally, we are concerned about the way in which employers are expected to understand the importance of Clause 8. We shall produce guidance to make it as clear as possible. We want both the legislation and the guidance to be clear so that this Act does not add to burdens on employers.
Would it not be helpful to set out the acceptable and relevant documents in a schedule to the Bill?
My understanding is that we shall be setting them out in an order.
Perhaps I may speak on behalf of my colleague the Lord Bishop of Ripon who has been in the Chamber until recently and will be returning very shortly. I should like to thank the Minister on his behalf, and on behalf of many people outside this place who are concerned about the matter, for being so receptive. She has indeed given us very good news.
I should also like to express my thanks to the Minister. However, I have one further request to make as regards the administration of this part of the clause. Will the Minister consider the possibility of undertaking a certain amount of study when the Bill has become enacted after, say, a year of its operation, to ascertain whether the advice has been understood by employers and whether they believe the legislation is working well; and, indeed, whether it is clear as to who can and who cannot be accepted safely?As the Minister knows, there has not been a great deal of study and research on the matter. There has, of course, been a little by the Institute for Public Policy Research, but there has been a great deal more in the United States, some of which has been quite disturbing in terms of employers' fear of such legislation. It would be most helpful if the Minister could at least consider the possibility of some research being carried out by the Home Office on the matter when the legislation has had a chance to operate for a while.
I am attracted to the request made by the noble Baroness, although I cannot at present commit the Government to very specific research. However, I can tell the noble Baroness that we certainly wish to monitor the legislation because we know that there are anxieties about it. Indeed, it represents a new burden on employers and we want to be certain that it is not too burdensome for them and that it is well understood; and understood for good reason.However, if the legislation is not working, we shall very soon become aware of that fact. Indeed, employers will certainly be fairly vocal in articulating just how it is not working if that proves to be the case. Certainly, in principle, we shall want to monitor the situation but I shall have to come back to the noble Baroness on the matter of specific research. Nevertheless, it is an interesting request.
I confirm that I shall not press the amendment. I am grateful to the Minister not only for her original response but also for her offer to consider the matter between now and the next stage. I shall seek an opportunity to meet and speak with her if that is possible. However, I must repeat that we are only discussing drafting amendments here; we are not talking about the content of the clause. Indeed, we shall still have to press ahead with our amendments in that respect. I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
[ Amendments Nos. 81 to 83 not moved.]
moved Amendment No. 84:
Page 6, line 10, after ("question;") insert—
("(aa) he was employed as a domestic worker and a police officer, doctor or solicitor has certified that he has previously suffered substantial physical abuse or deprivation, or serious economic exploitation, arising from previous bonded employment;").
The noble Lord said: I am glad that the Bill gives us an opportunity to do something to protect a most vulnerable, abused and exploited group, nearly all of whom are women and concentrated mostly in Greater London. I refer to bonded domestic workers, admitted to this country outside the Immigration Rules under the Home Office concession of 1981 (the year in which work permits were abolished for domestics). Those people are tied to a single named employer and normally accompany him when he comes to England for a visit or a longer stay. If the worker leaves the employer, for whatever reason, he or she very soon becomes an illicit overstayer and liable to immediate deportation.
Such employers, who are usually wealthy, in the main come from Middle Eastern countries, though sometimes from further away. I regret to have to say that many of those employers have not hesitated to abuse their position in most disgraceful ways. There have been many cases where the employer had two, three or more domestics while in the Middle East, but only brings one to London and then expects that one domestic to do the work previously shared among several. Low wages and non-payment of wages, sometimes for periods of years, are common. Working 16 to 18 hours per day, with no weekly day off, is quite normal. Holidays and time to attend religious services are frequently refused. Domestics are not always provided with beds and sometimes have to sleep in passages, kitchens or bathrooms. In addition to such intolerable conditions, bonded domestic workers have often been subjected to brutal and degrading verbal, physical and sexual violence and exploitation.
Over the past 15 years, a small handful of such employers have been convicted of criminal offences and fined or imprisoned. Somewhat more often, successful civil cases have been brought. The highest award, to my knowledge, was £300,000 in exemplary damages awarded to a Mrs. Swami who had suffered severely at the hands of two Kuwaiti princesses.
Legal sanctions alone have not stopped those evil practices and are most unlikely to do so in future. Therefore, Government action has been and still remains necessary. Following representations, information leaflets were introduced in 1991. These were supposed to be given to employers and employees before they left to come to Britain. Employees were also supposed to be interviewed by consular officials so that their rights on arrival in Britain could be explained to them. I am sorry to say that those measures have not proved very effective. In the past four years, some 1,000 domestics escaped from abusive employers and were then seen by the Commission for Filipino Migrant Workers. Only 165 cases had received the information leaflet, and sometimes even that had been confiscated by the employer.
In December 1994, after more complaints, Her Majesty's Government brought in new arrangements including a model form of contract. The commission already mentioned has monitored the results. In the seven months from July 1995 to February this year, there were 126 cases. In only 42 of them had the domestic signed the contract, but in only 10 of them had the domestic been able to retain a copy of it. In the other cases, the employer kept all the copies as, indeed, they often keep, quite illegally, the passports of their workers. Many workers had signed the contract without reading it, and in all 126 cases the terms of the contract had not been honoured. Once again, we see a non-effective safeguard.
Those who have worked on and studied such problems over the years have come to the conclusion that the only worthwhile remedy is to untie those domestic workers from the moment of their arrival. That is the objective towards which I believe we should continue to strive, if Britain is to continue to enjoy the benefits brought by rich overseas visitors.
However, the present amendment does not go anything like so far. It would merely allow a bonded worker who provided credible prima facie evidence of,
"substantial physical abuse or deprivation, or serious economic exploitation",
to take a new second job without running the risk of deportation. I submit that that would be a worthwhile safeguard. Its existence would become known to employers, and could be pointed out to them by means of leaflets or otherwise. It would materially help the workers, most of whom are not able to pay for tickets to return to their home countries. In any case, when they are paid, they are usually sending money to their countries of origin in order to support relatives and families who themselves are often in desperate poverty.
Therefore, this is a modest amendment which is designed to mitigate conditions of domestic slavery, which have been allowed to develop in a country which we are proud to claim to be a free one. The drafting is the best I have been able to find with, I should add, the invaluable help of the Public Bill Office. It would not surprise me if it were in some way inadequate. I may say, however, to the Minister that she has an immediate escape route. She knows I am always trying to be helpful. On Tuesday I offered her successively a lifebelt and an olive branch. The escape route in this case lies in Clause 8(3). If the Minister will undertake that abused and exploited domestic workers will be specified in an order to be made by the Secretary of State, I will happily withdraw the amendment. Meanwhile, as Parliament exists for the redress of grievances, I beg to move.
I support the amendment. We have all seen evidence of this problem and the noble Lord has spoken of the people affected by it. There is no doubt that the proposals put forward by the noble Lord will alleviate the position considerably. In particular it is important that these women who are so badly treated by their employers should be free to obtain other employment. They are tied to a particular employer and if they leave that employer they then become illegal immigrants. That binds them in a situation which it is no exaggeration to say—sometimes the word is used loosely—constitutes slavery. We should give them the right not to become illegal immigrants if they leave that bonded employment. They should be free to seek other employment. After all, this is not the kind of employment for which people queue up. These people are domestic servants who do the kind of work which is not sought after by a great many people in this country. It would make a great deal of difference if this change could be brought about.
I support the spirit behind the amendment but I doubt whether it achieves what the noble Lord, Lord Hylton, wants it to achieve because it does not give anyone the right to be employed. It simply excludes them from the reporting conditions in Clause 8. I am sure that, if not the wording, certainly the position of the amendment will have to be re-thought. However, the nobility of spirit behind the noble Lord's moving speech and the way in which he has pursued this humanitarian issue for a number of years deserve the highest praise.
This amendment—like several previous amendments from the other day—points to a confused understanding regarding genuine victims, who I believe, are protected by our law. I quite understand why the noble Lord, Lord Hylton, is concerned about the matter. In an ideal world his suggestions make absolute sense. However, we have a law to deal with the situation where such a domestic worker is maltreated. Some of these workers appear with great ease to sell their stories to the tabloids. However, it would surely be wrong if one of these foreign employees abused a special concession under our law. I agree with the noble Baroness, Lady Seear. If these people have a genuine case—which they often do—it would make sense to allow them to change employment. However, if that were written into the Bill, it would create a loophole which could then be easily abused. I urge the Committee not to support the amendment.
The point the noble Baroness, Lady Rawlings, makes—that these people enjoy the protection of our law—is of course quite fair, and in an ideal world they might be able to take advantage of it. However, what emerges in court over and over again when these cases are heard is that the victims of this type of treatment did not dare ask for the protection of our laws for fear they might be found to be illegal immigrants. Here again we are in the area we discussed on Clause 7; namely, the question of what priority should be given to the chasing of illegal immigrants. We all agree that it is an offence, and we all agree that something should be done about it. However, I think that the sort of cases described by the noble Lord, Lord Hylton, constitute a far worse offence than that of the victims being illegal immigrants. The offences in effect amount to wrongful imprisonment, often malnutrition, physical cruelty, and exploitation sometimes of a quite gross sort. One of the reasons I am worried about the matter is that if a greater pressure is applied against illegal working, that would close up the only loophole by which these people can escape. They are sometimes employed in the most unsavoury ways.A case was reported in the newspapers on 9th March. The offending man has since been sentenced to three-and-a-half years' imprisonment. For once I have some sympathy with the Home Secretary's desire for longer sentences. This person brought over women from northern Brazil—a remote and not particularly well informed area of Brazil. Many of them believed that they were being recruited for child minding. What in fact they were being recruited for was work in prostitution. The man took their passports and papers, locked those documents in his safe and took away all their earnings except £20 a week. He levied on them the most exorbitant charges for food and rent and for many other items which I shall not mention now. That is the sort of thing we mean when we talk about exploitation. We must stop it, and we should not allow the fear of being prosecuted as an illegal immigrant to prevent people in this position from making the escape they richly deserve.
I have great sympathy with the amendment. We all feel sad about the people who are in this terrible position. However, I take the point my noble friend made that the amendment might create a loophole. There must be some other answer. I ask the Government to try to find it. Perhaps these people could be given the right to stay for a certain period or given a work permit for a certain period. There may be ways around the problem. It is a problem we should genuinely try to solve. However, we do not want to create the loophole to which my noble friend referred because that could become a means whereby people came over here and tried to establish themselves. I ask my noble friend the Minister to try to find some way to resolve the problem mentioned by the noble Lord, Lord Hylton, without creating some new problem.I do not know what the legal position is. If, as the noble Lord, Lord Hylton, said, these people are bonded servants, I do not know whether under our law they are tied in some way to their employers and whether we can help them. I have great sympathy with the motivation behind the amendment. Certainly, I have every sympathy with the people—as has been said, they are mainly women—who have suffered such ill treatment. I should like to think that the Government will consider some way of trying to solve the problem.
I am delighted to agree with the noble Baroness in her suggestion that another answer should be found to a problem so well highlighted by the noble Lord, Lord Hylton. That answer was contained in his speech. I do not quite understand why he did not go further and put it before the Committee. If we abolished the permit-free employment which was introduced in 1981, none of these problems would arise. I ask the Government whether they will not take the opportunity of this Bill to do just that, bearing in mind the other objectives which are sought to be achieved.We are saying that we do not want people to be employed in sweatshops at sub-standard wages by unscrupulous employers. We are even taking measures to criminalise that kind of behaviour by employers. However, at the same time we have selected this particular group of immigrants—if I may use that term without causing any offence—to be completely exempt from all the regulations that apply to employment. We are saying that they may come here as domestic servants of persons who are otherwise granted leave to remain. They do not need any permission. They can come here at will, at the whim of the employer who proposes to use them as domestic workers. In many circumstances they are worse off than the people who are employed in the sweatshops we heard about earlier in our proceedings. There is no protection under the employment laws or any other sanctions except, as the noble Baroness pointed out, the criminal law. But those individuals have to have the ability to use that criminal law. Many do not speak English. The noble Lord, Lord Hylton, will recall a case, for example, where a woman fled in desperation from a house and fortuitously came across someone who spoke her own language. She appealed to that person to save her from the ordeals that she was undergoing as a domestic slave. Many years ago, an Eritrean woman rushed out of the house late at night after being severely ill-treated by her employer. By providence she ran into a fellow Eritrean in the street and appealed to her to save her from the situation. The lady to whom she appealed took her immediately to the police station and the matter was dealt with under the criminal law. She did not speak a word of English; she was extremely lucky to come across a fellow countrywoman who was able to put her in touch with the agencies of law and order. That would not happen often. The noble Lord, Lord Hylton, and my noble friend Lord Russell, referred to cases which probably form the tip of the iceberg. We do not know how many tales of misery and dejection lie behind locked doors of houses in which the fat cat employers are enjoying their opulent existence at the expense of these wretched women. I appeal to the Government to go that extra mile beyond the suggestion in the amendment. Let us abolish permit-free employment and make the people who wish to bring in domestic servants comply with the ordinary employment law of the United Kingdom.
There is a great deal of misunderstanding here. However, I wish to say from the outset that this is a very sensitive issue. The noble Lord, Lord Hylton, knows that we have discussed this issue on many occasions. The Government have done a great deal to ease the passage of people coming into this country on this concessional scheme, to which the noble Lord referred.The amendment would add to the list of those categories of immigrants in respect of whom an offence could not be committed by an employer. One effect of the amendment would be to exempt the employer. Another effect would be to give free licence to someone who came in under a specific scheme to work for someone else. It would be implicit that he would have a permit to work, a permit to stay and a permit to be here legally. That is a very real loophole, as my noble friend Lady Gardner of Parkes mentioned. The new category would be those employed as domestic workers where a police officer, doctor or solicitor has certified that the person had suffered substantial physical abuse or deprivation, or serious economic exploitation as a result of what is described in the amendment as "previous bonded employment". The amendment would therefore allow abused or exploited domestic workers to be employed in a domestic capacity by another employer without the new employer being liable for employing a person not permitted to undertake the work in question. However, it would not affect the position of the employee, who would not have permission to work for the new employer. In undertaking such employment, the employee would therefore either be in breach of their immigration conditions or an overstayer. I know that it is the domestic workers themselves about whom some noble Lords are, in fact, particularly concerned. The Government deplore the fact that there are cases where overseas domestic workers have been abused or exploited. However I can assure the Committee that the scheme for admitting domestic workers with their employers generally works well and to the benefit of the workers who would otherwise lose their jobs. We do not believe that the amendment tabled by the noble Lord, Lord Hylton, is an appropriate response to the cases of abuse that do occur. As the Committee is aware, the current arrangements for the entry of domestic workers to the United Kingdom, which operate as a concession for those accompanying their existing employer, are designed to minimise the scope for abuse. Domestic workers are required to apply abroad for entry clearance and, if they have not been interviewed before, to attend for an interview. That is an obligation. If the noble Lord says that those interviews do not take place, that is an abuse of the process. Domestic workers should be available for interview. The interview is communicated in their own language and in their own country. This enables the entry clearance officer to check the bona fides of each case—including whether adequate arrangements have been made for the servant's maintenance and accommodation in the United Kingdom. The entry clearance officer also ensures that the domestic worker receives and understands a leaflet explaining his or her rights in the United Kingdom including where to go for advice or help. A copy of the leaflet is also given to the employer under cover of a note making it clear that overseas domestics have full rights under our criminal and employment laws. We do not accept that this type of employment amounts to bonded labour. The entry clearance procedures are designed to ensure that we only admit domestic workers who freely undertake employment. We sympathise with the situation of domestic workers who have been abused. There will always be a risk of abuse. But we are satisfied that the procedures we have set in hand guard against abuse so far as possible. As I have said, any domestic worker in the United Kingdom who is the victim of criminal activity has the full protection—as do all citizens—of the criminal law. Where serious criminal offences are committed, it is right that heavy penalties should be available to the courts. But I should make it clear that no other overseas national coming to the United Kingdom for employment, whether under the work permit scheme or in a permit free category, or under any other concessionary arrangement, is allowed to change employers as of right. It would not be in the interests of a firm and fair immigration control to allow overseas domestic workers to take up alternative employment here while their stay is subject to conditions as a matter of right, even in those cases where there has been significant abuse. We do, of course, consider individual applications in the light of any compelling compassionate circumstances. The noble Lord, Lord Avebury, raised the point of slave labour. Genuine domestic servants, as opposed to what is described as slave labour, have the protection of employment legislation. The example given by the noble Earl, Lord Russell, would not be caught by the amendment on the domestic worker scheme because the employment was clearly illegal, not for immigration reasons but because of the general criminal law. Again, criminal law and employment law would apply to these people. Slavery has been illegal in this country since the 18th century. If slavery is the issue, that is clearly caught by the law. The real effect of the amendment would be to license easy immigration into the country—not only for an individual to come here, but to stay and to work here. That is a loophole that we could not allow. We shall continue to consider ways of eliminating and dealing with abuses which I know are of particular concern to the noble Lord, Lord Hylton—a concern I believe shared by the whole Committee.
I am grateful to the noble Baroness for the last sentence of her reply. Perhaps I may inject a little urgency into the continuing search for better safeguards. What I said earlier may have indicated that some of the safeguards have so far proved remarkably ineffective.I thank all other noble Lords and noble Baronesses who have spoken in the short debate. I am very appreciative of the high level of support for at least the spirit and intention of my amendment. The word "loophole" has been used. This particular loophole has been created by the Government in their own immigration procedures. There are two reasons why the normal legal protections, both in criminal and employment law, are so extremely difficult to apply. The first is because while the initial employment lasts, in many cases the domestic worker is physically locked up on his or her employer's premises and cannot get out. He or she therefore has no access to normal legal remedies. Once the employment has been lost or abandoned, the worker becomes liable for deportation and is therefore hesitant about embarking on any legal proceedings. The Minister mentioned being able to change employment as of right. That is the key to the problem and I hope that further consideration will include that point. Meanwhile, I should like to study everything that has been said, particularly by the Government, on the amendment. I beg leave to withdraw it for the time being, with the proviso that I may come back to the matter at Report stage. Amendment, by leave, withdrawn.
I beg to move that the House be now resumed. In moving the Motion, I suggest that the Committee stage begin again not before 8 p.m.Moved accordingly, and, on Question, Motion agreed to. House resumed.
Elections (Northern Ireland) Order 1996
rose to move, That the draft order laid before the House on 29th April be approved [18th Report from the Joint Committee].
The noble Baroness said: My Lords, the draft order sets out the technical detail of the arrangements for the elections that are to be held under the Northern Ireland (Entry to Negotiations, etc) Act.
The key features of the election are all prescribed in the Act itself. The order fills out the framework with what I fear is necessarily a substantial volume of technical detail. We considered carefully the form in which this should be presented in order to be most readily understood by those who will have to operate it. It has been suggested that we might have set out, in full, a comprehensive new code. While we saw the attractions of this approach, there are also substantial drawbacks. It would have created an order of very great length, which we believe would have been difficult to apply.
What we have sought to do so far as possible is to apply existing legislation that will be familiar to those involved in electoral matters. Hence the election will be conducted essentially on the basis of the existing law relating to parliamentary elections, with the minimum necessary modifications. Those modifications are set out in the body of the order and the schedules. The order sets out in what respects different provision will be made for this election. We believe that proceeding in this way makes the legislation simpler to understand and apply.
I turn now to a few of the detailed arrangements for the elections. We have been conscious that the electoral system to be used on 30th May will be new and unfamiliar to the electorate, and that a substantial education effort is required. We have already distributed almost 600,000 leaflets, one to every household, drawing attention to arrangements for absent voting, explaining the franchise and reminding voters of the need at Northern Ireland elections to have available one of the specified identity documents. A second leaflet, to be circulated shortly in the same volume, explains how to vote on this occasion and how the electoral system will work. In addition there will be television and radio advertisements during the campaign encouraging people to use their vote.
For these elections, which are different from those we are used to, we have decided that the restrictions on broadcasting in Section 93 of the Representation of the People Act 1983 should not apply. The unusual nature of these elections, involving votes for parties rather than individual candidates, means that the application of Section 93 might cause problems in distinguishing the campaign in a particular constituency from that across Northern Ireland as a whole. It will be important to avoid potential for disputes between the parties and the broadcasters. We understand that broadcasters share our view that these important elections should be given balanced and fair coverage that reflects the inclusive nature of the approach we have taken.
In view of the discussion yesterday in another place when this order was considered, I should like to emphasise a point about the names of parties, on which it is important that there is no misunderstanding. The names of parties for the purposes of the election are those set out in the Bill. That has long been made clear; it was stressed in the consultation paper published in Northern Ireland at the beginning of April. This is an important part of the scheme of the Bill, and if it were not the case, there would be a great deal of scope for confusion and for the use of "spoiling" names by those who might seek to subvert the electoral process. The names in the Bill will therefore appear on the ballot paper, and it is in those names also that the lists of the parties should be submitted. There is provision by which the lists might be rejected otherwise. That is clearly an eventuality that must be avoided, and that is why it is important that the names prescribed in the Bill are used.
These are the main features of the draft order. As I have said, it embodies much complex and technical provision. That is inevitable in provision for any election, because there has developed over the years a very large body of law for the regulation of elections. We believe, on reflection, that the order represents the most sensible and helpful approach to establishing the legal framework for the elections, and I therefore commend the order to the House. I beg to move.
Moved, That the draft order laid before the House on 29th April be approved [ 18th Report from the Joint Committee].—( Baroness Denton of Wakefield.)
My Lords, I thank the Minister for her exposition. The timetable is lamentable. As she said, the order was laid on 29th April, and today is 2nd May. The elections are only a matter of a few weeks away. This order was considered in another place yesterday evening. We are not doing our work properly because we are not being given the opportunity to do so. That is, of course, in no sense a criticism of the Minister, but I think it is an objective criticism of the timetable which ought to be sustained. In this order there are 30 pages of detailed, close, dense material which it is simply not possible to scrutinise properly in the time available, particularly bearing in mind that another place sat into the evening yesterday to raise questions and possible amendments.The Member for North Down in another place, Mr. Robert McCartney, made the point well. He has 20 years' experience as a senior counsel and he found it difficult to deal with all the material. The Minister mentioned the names of parties and that each party must stick to the formula by way of description within the schedule to the Act. Is that really fair? Mr. McCartney's party will have his name included, the Reverend Paisley will not. It is said that there will be opportunity for mischief and confusion, but that could easily have been attended to by a sieve, worked by the Secretary of State. It does not seem to me to be fair that one party will have the name of its leader on the ballot and another will not. I see no intellectual consistency there at all. Perhaps I may ask one or two distinct questions of which I have given notice to the Minister. On page 13, paragraph (2C) states:
As I read that, if a single candidate in a constituency acted in such a way as to make his or her election void, then the other successful delegates who would have been elected on that party ticket would be ineligible to sit. That seems a strange consequence, if I have read the section correctly. Perhaps the Minister can help the House as to the purpose of the reference to overseas electors on page 2 at paragraph 3(6)(c). How are expenses to he dealt with? I realise that there is a formula in respect of expenses for each constituency; but are there to be any limits on the expenses spent by parties generally throughout Northern Ireland? Will there be any opportunity for party political broadcasts? If so, how is equal time to be allocated? I was most heartened that the Minister was able to tell us that a good deal of publicity by way of publicly funded advertising and leaflet drops has been undertaken. That suggestion was put forward by both the noble Lord, Lord Holme of Cheltenham, and myself on an earlier occasion. I am sure that the noble Lord will be as pleased as I am to know that the Government acted upon it. Have the Government been able to put their mind to the question of alternative mechanisms for parallel decommissioning? I regret to reiterate my fear that if the alternative menu is not available and not fully thought out before 10th June, these negotiations will be abortive. Yet again we are in the position of saying that these are exceptional circumstances and therefore we are not able to carry out our work of scrutiny correctly or as our duty requires. These "exceptional circumstances" are becoming more the norm than the exception. I direct no criticism at the Minister, who always treats us with every courtesy and consideration, but the time is far too short to scrutinise this bulk of material with any degree of sense."Where the election court determines that the election of a delegate or delegates of a particular party was void but that the election as a whole in the constituency to which the petition relates was not void, the return of delegates under paragraph 14 of Part I of Schedule 1 to the 1996 Act shall be calculated again and the votes given for that party in that constituency shall be disregarded".
My Lords, I, too, thank the noble Baroness for her presentation of the order. However, in doing so I share the misgivings of the noble Lord, Lord Williams, in relation to the condensed schedule with which we have been presented throughout the Act, of which this order is now the necessary consequence. It is quite right that you cannot will the ends of an election without willing the means; namely, the order that we are discussing. However, given that the electoral system was effectively determined 10 days before Easter, the whole process has been unnecessarily condensed. The department should look to its procedures so that Parliament is not treated in this way.As the noble Baroness knows, I remain critical of the choice of electoral system. She was right to say that minimum modification to parliamentary procedure should be sought in order to minimise the strangeness of this election. That would not have been necessary had the single transferable vote been used. However, having expressed criticism, may I say how glad I am—as the noble Lord, Lord Williams, surmised I would be; I share his pleasure in the fact that the Government are to use radio and television to promote this election. It is vitally important that people participate and that they see the connection between their vote and the peace process; otherwise, these elections will have been for nothing. I also think that it is wise of the Government to release the corsets of the broadcasters in order to make it possible for them, in their own way, to arrive at a balanced and fair coverage between the enormously long list of parties fighting the election. In that regard, will the Minister tell the House (the noble Lord, Lord Williams, also asked this) how the limit will apply to parties across the whole of Northern Ireland? Is she satisfied in regard to the smaller parties? I instance merely the parties connected with the former loyalist paramilitaries. Can we really be sure that parties are getting enough help in kind, so that those relatively indigent parties can still fight a decent campaign? What provision is being made for election addresses? For instance, will some sort of government-sponsored newsletter be distributed in which parties can put their case? Having said that, and in supporting the order, I hope that the Government will take a hands-on attitude to the election. Voters will make their own choice; but nobody should be left in any doubt that this is an important election and it matters a great deal in Northern Ireland.
My Lords, I had not intended to intervene, and do so only because of a remark made by the noble Lord, Lord Williams of Mostyn. He suggested that it was unfair that Mr. Robert McCartney's name should appear on the ballot paper whereas Dr. Paisley's does not. I have to say, I disagree with him. The DUP has been in existence for a very long time. Most people throughout Northern Ireland are well aware of that party, what it represents and who leads it; namely, Dr. Paisley. In contrast, Mr. McCartney's party has been in existence only a very short time. He is now quite well known in the constituency of North Down, but not elsewhere. It seems not unreasonable that his name should be attached to his party label so as to avoid confusion, above all with the official Unionist Party.
My Lords, I thank noble Lords for their contribution to the debate. I understand their concern at the speed with which this legislation has been brought before them.I stress the special circumstances in Northern Ireland at the moment. Once we have been able to bring about a commitment to elections, I fear that the necessary speed of the process is not something that we would want any more than, as noble Lords made very plain, they would. The Government are more usually criticised for their slowness, and have often been criticised for such during this process of trying to build a peaceful future in Northern Ireland. I am very fortunate in this House in that those who participate in these debates have knowledge of the situation in Northern Ireland. I am well aware and very conscious of the quality of the lawyer who sits opposite me. Therefore I have some confidence in the scrutiny that applies even in a short time. I thank noble Lords for their courtesy in indicating where their concerns lie. The issue of names has been a major point in bringing forward this election legislation. I stress again that there was much discussion and consultation in another place as to what would be fair and appropriate. Having had that discussion and consultation and having voted on the matter, we are now saying in this order that it is important that that is abided by for the benefit of ensuring that all the votes cast in Northern Ireland are valid and represent the wishes of the people. The noble Lord, Lord Williams, raised the issue of what would happen under the Petition. That matter also concerned the honourable Member for South Down in another place. I should like to clear up the fact that it is not the intention of the legislation that all a party's candidates in a constituency would be declared void as a result of the activities of one of its candidates. It is only in the calculation of the regional delegates, which Section 144(2C) makes clear is carried out under paragraph 14 of Schedule 1 to the main Act, that the relevant party's vote in the constituency concerned is disregarded. Votes for constituency delegates are calculated under paragraphs 8 to 11 of the Act. The remaining candidates on that party's list for that constituency are therefore unaffected in so far as they keep their seats. But their votes, while they are being elected, will not contribute to the overall vote of the party. We believe that to be in keeping with the principles of the party list system, punishing, as it does, both the individual wrongdoer and the party on a regional basis. The noble Lord, Lord Williams, also expressed concern as to the position on overseas voters. The elections that are to take place on 30th May are regional elections, taking place in Northern Ireland only. They are being held to elect delegates to a forum convened to discuss Northern Ireland matters. It was therefore decided that it would be more appropriate to use a local government franchise and thereby retain the local nature of the elections. The local government franchise excludes overseas voters, to which Article 3(6)(c) of the order refers. However, it includes Peers and European Union citizens resident in Northern Ireland. I am sure that my colleagues in the House will be grateful that they can not only voice their concerns in words but also in practice. That is something about which we are very pleased. In terms of numbers, there is little difference. The parliamentary franchise produces around 70 more voters. The question of election expenses and the position of the small parties in this situation was raised by both the noble Lords, Lord Williams and Lord Holme of Cheltenham. The amount of media coverage of the elections is already helping people to register who are newcomers to the election process. Election expenses will be calculated for each party in Northern Ireland as a whole. The limit depends on the number of constituencies a party contests. There will be no special financial aid for parties in the system, no matter what their size. But we have taken that into account and endeavoured to assist small parties on this occasion by providing for unaddressed labels for election campaign material, which is much cheaper, and by doing away with the usual Post Office requirement for a constituency name to head election materials, thereby saving on printing costs. We have tried to recognise that there are people for whom the process will be entirely new; this may be their first entry into a system on which they can build in future years. The allocation of equal time on party political broadcasts will be a matter for agreement between the parties and the broadcasters. The noble Lord, Lord Williams, asked about the position of alternative action plans for decommissioning. I can assure him that those are under considerable scrutiny and discussion at the moment. His earlier concerns in that area came through loud and clear. I am delighted that the noble Lord, Lord Monson, is now participating in these debates. I thank him for his contribution on the question of names.
My Lords, I thank the noble Baroness for giving way. I sensed that she was approaching the end of what she had to say and I wish to clarify something before she sits down. I am not sure that I heard correctly. I believe she said that allocation of time for party election broadcasts would be a matter for agreement between the parties and the broadcasters. Perhaps I can remind her that difficulty is already experienced among the relatively few parties at Westminster when they have to sort out that question. The prospect of that alphabet soup of parties sitting amicably round a table and agreeing with each other and the broadcasters on the allocation of time seems a little improbable.
My Lords, I suppose I could reply that we are a deregulatory government. But that would not be very satisfactory. I did not guarantee "amicable" but the discussions around the table must be between the parties and the broadcasters. It is recognised both in the broadcasting situation and the media coverage that these elections are unique. It is a first; we hope that they work successfully. The broadcasters have taken a responsible attitude. The commitment to the Province from everyone involved that the elections should be made to work will allow for better discussions on this occasion. I hope that I prove to be right and not the noble Lord, although I understand his concerns.Again, with the understanding that we have asked that this legislation be considered speedily, I commend the order to your Lordships. On Question, Motion agreed to.
Northern Ireland (Emergency Provisions) Bill
My Lords, I beg to move that the House do now adjourn during pleasure until eight o'clock.Moved accordingly, and, on Question, Motion agreed to.
[ The Sitting was suspended from 7.25 to 8 p.m.]
Asylum And Immigration Bill
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.
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?
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.
Does the noble Lord suggest that of me?
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.
On Question, Whether the said amendment (No. 84A) shall be agreed to?
Their Lordships divided: Contents, 46; Not-Contents, 21.
Division No. 3
|Addison, V.||Howe, E.|
|Balfour, E||Jenkin 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.|
|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.|
|McIntosh of Haringey, L.||White, B.|
|Monkswell, L.||Williams of Crosby, B.|
Resolved in the affirmative, and amendment agreed to accordingly.
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—