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Mrs. Gillan: I want to raise three quick points, which may be a result of my own stupidity, but nevertheless I would like to ask the Minister what might happen in hypothetical cases, particularly as they may form the substance of an objection in response to which I hope that the Secretary of State would call upon clause 12(4)(d) and
''determine to take no action.''
First, can the Minister tell me what would happen in the case of an amnesty, where an employer has unfortunately employed somebody who is illegal and faces the full penalty of the law but in the meantime the Government grant an amnesty? That is not impossible; it happens from time to time in the European Union and even in this country. How would an employer be placed in that instance?
Secondly, I want to know how an employer would be placed if the employment of an illegal was by virtue of a Government programme. An example of such a programme is the ethnic minority outreach initiative,
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with which I know the Minister will be familiar because the Government have committed £14 million funding to it from April 2004 to March 2006. I am keen to know whether, if someone is employing someone through a Government programme, that would offer them the immunity that they would deserve because otherwise they might find themselves unwittingly exposed.
Lastly, there is a problem as far as the unions are concerned; I am tentative about raising this point. The TUC, when it talks about migrant workers in Britain, makes immortal statements, as it does in some of its articles. It states that the
''blurring by . . . governments of the distinction between refused asylum seekers, illegal working, illegal entry and criminal activity such as trafficking''
makes it
''difficult for trade unions to identify and present the key issues from the perspective of defending the interests of workers''.
What thought has the Minister given to the representation of workers in that instance? It is an important matter, which has increasingly become blurred over the past few years.
Mr. McNulty: As much as I love the TUC and pleased as I was to do a joint statement with it, the CBI and the Home Office about the need for migrant workers, managed migration and the protection of such workers at all levels, I do not accept the premise that, in Government at least, there has been a blurring at the edges of those categories. I do accept the premise that that has been part of the wider public debate, mischievously or otherwise, and we have an opportunity with the five-year plan and the points system to get out from under that and to discuss in a positive sense what the asylum system and the immigration and managed migration system do, and the distinction between them. I accept that as part of my role.
On the issues that the hon. Lady raised, I am a Home Office Minister, so I do not recognise the concept of amnesty. However, I will say in the next breath that the Bill gives the Secretary of State unilateral powers in respect of the civil penalty regime, so it is entirely a matter for the Secretary of State to decide whether to impose penalties or otherwise. If the situation is other than that, I will write to the hon. Lady.
I believe that that captures the potential of the Hon. Lady's second point about someone being employed in a position as a result of some element of the state not recognising that they were illegal. I can envisage how that may prevail in certain circumstances, not just in the programme that she mentioned, and rather like the rest of the Bill—the appeals part that we have done and the parts to come—that does, I emphasise, need to be seen in all that we are doing to improve processes and structures overall. I take her comments seriously, but, for the reasons that I gave, they are concerns that are met or will be met by guidance, which I accept we do not have—the code of conduct is not guidance. For those reasons, I urge that the clause stand part eventually, if not now.
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Mrs. Gillan: I am grateful to the Minister. There are some issues here, and I hope that he will take it upon himself to write to me about them. For example, if a UK company employed somebody in a Spanish territory and, as happened in Spain, the illegal immigrants were granted an amnesty, the employer would no longer be liable. A situation may arise whereby there would be a reasonable defence. With an undertaking from the Minister that he will write to me about that, I am satisfied at this stage.
Question put and agreed to.
Clause 12 ordered to stand part of the Bill.
The Chairman: For the guidance of the Committee, I am minded to suspend in two minutes for at least one hour. I am prepared to carry on with the Committee if we can arrive at a decision acceptable to the usual channels, but obviously that would need the co-operation of all Members.
Clauses 13 to 16 ordered to stand part of the Bill.
Clause 17
Offence
Mr. Malins: I beg to move amendment No. 3, in clause 17, page 8, line 27, leave out 'two' and insert 'five'.
The amendment would change the sentence on conviction in a Crown court from two to five years. There can be some really horrible examples of illegal employment, which can be organised by very nasty people. Some of them may deserve a condign sentence. Does the Minister agree with me?
4.30 pm
Dr. Harris: It is always tempting to think of very bad offences—as the hon. Member for Woking, who is far more experienced in these matters than I am, did—and to seek to increase the maximum penalty. However, would not the sorts of cases that he mentions—we can all think of some—be covered by other health and safety measures with stronger penalties? Is it necessary—perhaps it is—for the Opposition always to seek to ratchet up the tariff on the basis of very bad cases to which we think the legislation would apply, but to which other offences, such as reckless endangerment, and therefore higher penalties, would apply?
Mr. McNulty: In the interests of brevity: no; five years too excessive; and nasty stuff can be dealt with in other ways. For example, someone got 14 years imprisonment for the facilitation of trafficking in a really nasty case. As the hon. Gentleman suggests, other cases that are nasty, but not as nasty as trafficking and facilitation, are covered by the rest of the law. Two years is not excessive, but appropriate. That is why it appears in the clause.
Mr. Malins: I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 ordered to stand part of the Bill.
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Clause 18
&c.
Mr. Malins:Offence: bodies corporate, I beg to move amendment No. 15, in clause 18, page 9, line 3, leave out from 'has' to 'fact' in line 4 and insert
'the principal responsibility within the body for the creation of the employment knows or believes this.'.
The Chairman: With this it will be convenient to discuss amendment No. 99, in clause 18, page 9, line 4, leave out 'an' and insert 'a relevant'.
Mr. Malins: The clause states that a body is treated as knowing a fact about an employee
''if a person who has responsibility within the body for an aspect of the employment knows the fact.''
That is a wide definition—perhaps too wide. Many people in a body have some responsibility for some aspect of the employment. The buck ought to stop with somebody, such as the principal officer of the body. I have in mind a sports club that I know, within 30 miles of here—I do not want to give more detail than that for obvious reasons—which, in my judgment, employs someone in a part-time capacity who should not be in the country. Of course, I do not have anything to do with that and thus am not open to prosecution, but a number of people in the club are responsible for some aspect of the matter. Truly, the buck should stop with the principal person involved, rather than many people. Let us see if the Minister can justify that very general phrase.
Dr. Harris: Amendment No. 99, which is in my name and that of my hon. Friend the Member for Manchester, Withington makes the same point and pinpoints the matter outlined by the hon. Gentleman.
Mr. McNulty: I do not accept either amendment, because they would water down the measure. A corporation should not be able to avoid criminal liability for its actions through delegation. We are not putting this Bill on to the statute book simply to play some sort of game with assorted corporations of chasing around to see who can pin the proverbial tail on the donkey in terms of who has the most relevant responsibility. The way the clause is drafted, in four substantive parts, covers sufficiently those who can and should be liable for a breach of this new aspect of the law. Either amendment would water the measure down, and we ask that they should not be pressed.
Mr. Malins: We may return to this matter at a later stage and, perhaps, in another place, because there is a point of some general importance. However, on this occasion, having heard the Minister's response, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18 ordered to stand part of the Bill.
Clauses 19 to 21 ordered to stand part of the Bill.
Clause 22
Repeal
Question proposed, That the clause stand part of the Bill.
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Dr. Harris: I rise not to delay the Committee, but to elicit a smile from the Government Whip—[Interruption.] Whether it was worth it or not, I do not know.
I would have liked to celebrate the repeal of sections 8 and 8A of the Asylum and Immigration Act 1996. However, we have not yet tackled the employment of asylum seekers legally here while awaiting a decision, which sometimes takes a long time, and perhaps we shall have an opportunity to tackle that if it is judged that the Bill is wide enough. We cannot say that we have dealt with the restrictions on employment in the immigration and asylum arena
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while the hiatus exists—I know that many people share my view—whereby asylum seekers are usually prevented from working. This is not the time or place to go into that, but I did not want this repeal to go through without making that point.
Question put and agreed to.
Clause 22 ordered to stand part of the Bill
Further consideration adjourned.—[Joan Ryan.]
Adjourned accordingly at twenty-three minutes to Five o'clock till Tuesday 25 October at half-past Ten o'clock.
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