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Dr. Harris: The Minister is right that I was not accusing him of knowingly seeking to do so. There is a draft code of practice on avoiding race discrimination in recruitment practice while seeking to prevent illegal working, so he recognises the problem. I wonder whether by publishing that code of practice he is recognising the temptation that employers might have not to employ someone who looks as though they might have immigration issues in case it provides them with extra work, regardless of whether we consider it an undue burden—I accept the point that he makes. How does he propose to monitor the impact that the new extension of policy will have in respect of indirect discrimination? I do not suggest that he means to cause it, or necessarily that it will happen, but I think there should be some monitoring technique, whether the Commission for Racial Equality has extra resources in order to do that or whether it is part of its working practice. Would the Minister agree to revisit this matter if it turned out that a problem had been caused, even if that was not the Government's intention?
Mr. McNulty: Well, happily I have presented a draft on the avoidance of race discrimination, which is entirely right and proper. I want to have that duty. As I understand things, if the Bill is passed as drafted, we have an ongoing obligation under the Race Relations Act to ensure that this measure, and all others on the statute book, comply with that Act. In the normal fashion, it is in part about working with the CRE, which we need to do, and about research once the measure is bedded in for an amount of time and, as is normal for employment law, through regular engagement with the EC system and assorted employment tribunal cases. I take that point very seriously. I am grateful to the hon. Gentleman for saying what he did in a guarded way, not necessarily saying that it is absolutely certain that there will be problems of that nature; we are and will remain alive to that issue.
Question put and agreed to.
Clause 11 ordered to stand part of the Bill.
Clause 12
Objection
Mrs. Gillan: I beg to move amendment No. 25, in clause 12, page 6, line 13, leave out 'or'.
The Chairman: With this it will be convenient to discuss the following amendments: No. 26, in clause 12, page 6, line 14, at end insert
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(d) the amount of the penalty would threaten the future viability of the employer's business.'.
No. 10, in clause 12, page 6, line 20, at end insert
'which shall be not less than 21 days.'.
No. 27, in clause 12, page 6, line 24, at end insert—
'(ba) set out a timetable for the payment of the penalty which takes account of the viability of the employer's business,'.
No. 5, in clause 12, page 6, line 25, leave out paragraph (c).
No. 68, in clause 12, page 6, line 30, after 'decision', insert 'and give reasons'.
No. 28, in clause 12, page 6, line 31, at end insert—
'(ba) set out the timetable for payment of any penalty after consultation with the employer,'.
No. 29, in clause 13, page 6, line 42, at end insert—
'(aa) allow the appeal, and specify a timetable for the payment of the penalty,'.
No. 98, in clause 13, page 7, line 14, leave out 'or' and insert—
'( ) if the employer gives notice of objection and the Secretary of State increases the penalty, the date specified in the notice of increase as the date upon which it is given, or'.
Mrs. Gillan: I do not want to detain the Committee as most of the amendments, imperfect though they probably are as they are partly drafted by me, are all transparent about what they are trying to do. With your permission, Mr. Illsley, I shall take the amendments and clause stand part together.
The Chairman: No.
Mrs. Gillan: Then I will stick to the amendments and hope that my points fall within the ambit of the debate.
Amendment No. 25 leaves out ''or'' and amendment No. 26 adds
''(d) the amount of the penalty would threaten the future viability of the employer's business.'.''
The Minister must appreciate that there are small businesses that may fall foul of the measure and the imposition of a fine upon that business could threaten the liability of the business. In that case, the consequential amendments, which concern negotiations about a timetable for payment, should make sense, being the type of protection for small businesses that would appeal to the Minister. That is certainly the reason for amendment No. 28, in which I propose that a timetable is set out for payment after consultation with the employer. I am sure that the last thing the Minister would want to do is put one of our small businesses out of business by an unduly onerous burden.
4.15 pm
Mr. McNulty: Purely to assist the hon. Lady, I think that that is the essential import behind clause 12(1)(c), which states:
''This section applies where an employer to whom a penalty notice is given objects on the ground that the amount of the penalty is too high.''
That is not simply about the penalty being too high; all the incumbent elements of liability that she discusses
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come under that provision. The amendment is otiose for those reasons.
Mrs. Gillan: I appreciate that the amendment is otiose. That is the sort of assurance that I hope to get from the Minister. By virtue of the fact that the penalty could be deemed too high, it is important to state in the Bill that a timetable would be set out for payment after consultation, because as the legislation is drafted, it does not follow that any time would be given to the business to pay.
My other amendment is also quite obvious. It seeks to insert at line 20
''which shall be not less than 21 days.''
There should be a time limit; the period cannot be open-ended. Choosing a specific time would be sensible, because it makes the provision more transparent for businesses.
I reserve the right to a brief clause stand part debate, if you will allow it, Mr. Illsley, as I should be interested to hear whether the Minister has anything to add to those points.
Dr. Harris: Amendment No. 98 is in my name and that of my hon. Friend the Member for Manchester, Withington. I should like to draw it to the Minister's attention, because he is not aware of it. Although the amendment has been taken with the clause under discussion, the amendment is to clause 13 on page 7 at line 14. It adds
''if the employer gives notice of objection and the Secretary of State increases the date of the penalty, the date specified in the notice of increase is the date upon which it is given, or''.
That is self-explanatory. The concern is that people should not be caught by a rather unfortunate provision in which on appeal the penalty might go up, as it must in such cases. I support the thrust of the amendments in this group tabled by the hon. Member for Chesham and Amersham and her friends.
Mr. McNulty: Like the previous group of amendments, I have a great deal of sympathy with these amendments and the sentiments behind them. However, we can capture far more readily most of the sentiments in the code of practice in part, and subsequently in guidance. The Bill is not the place for that level of detail, although I accept the points made.
We can and will consider whether it is appropriate in some cases for the employer who is served with a penalty to pay in instalments over a particular period, as I suggested to the hon. Member for Woking. That measure is entirely normal. I have made the point already about clause 12(1)(c) meaning far more than simply, ''Let's have a row about the level of the fine.'' It encompasses those other points about the life and viability of the business as well.
I would defend the notion that, rather like that small word in financial adverts on television, the fine can go up as well as down. It is a useful device in normal circumstances under civil penalty regimes, preventing regular, ongoing, vexatious, capricious and downright chancy applications in the appeal process. Used sparingly, that is appropriate. We can strike a sensible balance, as we have sought to do,
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between the civil penalty arrangements and the concerns of the CBI and hon. Members about the viability of business. I fully accept those concerns. This is not about driving businesses, large or small, out of existence. It is about simply enforcing the letter of the law.
I would freely admit that section 8 of the Asylum and Immigration Act 1996 had consequences that were different. We have been able to pursue some of the business organisations concerned for charges far more serious than those in section 8 of that Act. In some cases, as I suggested earlier, in the end the co-operation of the employer to stop illegal working had greater value in public policy terms than adding another scalp.
Without going into all the details of why the amendments are technically flawed, which would be unkind at such a late hour in our deliberations, I will give the assurance that most of what is requested will be in the guidance that we offer. That is the right and proper place for that level of detail. In that context, I ask that the amendments are withdrawn and the clause stand part.
Mrs. Gillan: I am grateful to the Minister. It was a probing series of amendments to see what was in the Minister's mind. It is better when we can have the draft guidance when we are considering legislation such as this, as it is the sort of detail that can be discussed. [Interruption.] It is not the draft guidance.
Mr. McNulty: We are halfway there.
Mrs. Gillan: The Minister is saying that we are halfway there, but we do not have the draft guidance, nevertheless, and it is therefore necessary to table such amendments. I have no hesitation in withdrawing them and I shall be interested to receive my own personal copy of the draft guidance. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
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