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Lord Mackay of Drumadoon: 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.

2 May 1996 : Column 1782

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.

Earl Russell: 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.

2 May 1996 : Column 1783


5.46 p.m.

On Question, Whether Clause 7 shall stand part of the Bill:

Their Lordships divided: Contents, 132; Not-Contents, 64.

Division No. 2

CONTENTS

Acton, L.
Addison, V.
Ailsa, M.
Aldington, L.
Alexander of Tunis, E.
Ashbourne, L.
Astor of Hever, L.
Balfour, E.
Bauer, L.
Belhaven and Stenton, L.
Blaker, L.
Blatch, B.
Boardman, L.
Bowness, L.
Boyd-Carpenter, L.
Brabazon of Tara, L.
Brentford, V.
Cadman, L.
Caithness, E.
Campbell of Alloway, L.
Campbell of Croy, L.
Carnock, L.
Chalker of Wallasey, B.
Chelmsford, V.
Chesham, L. [Teller.]
Clanwilliam, E.
Clark of Kempston, L.
Clifford of Chudleigh, L.
Coleridge, L.
Courtown, E.
Craig of Radley, L.
Cranborne, V. [Lord Privy Seal.]
Crawshaw, L.
Cumberlege, B.
Dacre of Glanton, L.
De L'Isle, V.
Denton of Wakefield, B.
Dilhorne, V.
Dixon-Smith, L.
Eden of Winton, L.
Elliott of Morpeth, L.
Elton, L.
Flather, B.
Fraser of Carmyllie, L.
Gardner of Parkes, B.
Gisborough, L.
Goschen, V.
Hacking, L.
Haddington, E.
Haig, E.
Hailsham of Saint Marylebone, L.
Halsbury, E.
Harding of Petherton, L.
Harlech, L.
Harris of Peckham, L.
Harvington, L.
Hemphill, L.
Henley, L.
Holderness, L.
Hooper, B.
Howe, E.
Hylton-Foster, B.
Inglewood, L.
Jenkin of Roding, L.
Kingsland, L.
Kinnoull, E.
Leigh, L.
Lindsey and Abingdon, E.
Liverpool, E.
Long, V.
Lucas, L.
Lucas of Chilworth, L.
Lyell, L.
McColl of Dulwich, L.
Mackay of Ardbrecknish, L.
Mackay of Clashfern, L. [Lord Chancellor.]
Mackay of Drumadoon, L.
Massereene and Ferrard, V.
Merrivale, L.
Mersey, V.
Miller of Hendon, B.
Milverton, L.
Monk Bretton, L.
Monson, L.
Mottistone, L.
Mowbray and Stourton, L.
Murton of Lindisfarne, L.
Nelson, E.
Newall, L.
Norrie, L.
Northesk, E.
Orr-Ewing, L.
Oxfuird, V.
Park of Monmouth, B.
Pearson of Rannoch, L.
Peel, E.
Plumb, L.
Prior, L.
Pym, L.
Quinton, L.
Rankeillour, L.
Rawlings, B.
Rees, L.
Rennell, L.
Renton, L.
Renwick, L.
Rodney, L.
Saint Albans, D.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Seccombe, B.
Selborne, E.
Shaw of Northstead, L.
Sherfield, L.
Simon, V.
Skelmersdale, L.
Smith, L.
Soulsby of Swaffham Prior, L.
Stewartby, L.
Strange, B.
Strathclyde, L. [Teller.]
Sudeley, L.
Swinfen, L.
Thomas of Gwydir, L.
Thurlow, L.
Trumpington, B.
Vivian, L.
Warnock, B.
Whitelaw, V.
Wilcox, B.
Wise, L.
Wynford, L.

NOT-CONTENTS

Addington, L.
Archer of Sandwell, L.
Avebury, L.
Bath, M.
Beaumont of Whitley, L.
Berkeley, L.
Broadbridge, L.
Bruce of Donington, L.
Chester, Bp.
Chichester, Bp.
Cocks of Hartcliffe, L.
David, B.
Desai, L.
Donaldson of Kingsbridge, L.
Elis-Thomas, L.
Ezra, L.
Falkland, V.
Gainsborough, E.
Gilmour of Craigmillar, L.
Grey, E.
Hamwee, B.
Harris of Greenwich, L.
Hayman, B.
Healey, L.
Hilton of Eggardon, B.
Holme of Cheltenham, L.
Howie of Troon, L.
Hughes, L.
Hutchinson of Lullington, L.
Hylton, L.
Jenkins of Putney, L.
Kilbracken, L.
Lester of Herne Hill, L.
Lockwood, B.
Longford, E.
Mackie of Benshie, L.
McNair, L.
Mayhew, L.
Meston, L.
Monkswell, L.
Nicol, B.
Ogmore, L.
Oxford, Bp.
Rea, L.
Redesdale, L.
Ripon, Bp.
Robertson of Oakridge, L.
Rochester, L.
Rodgers of Quarry Bank, L.
Runcie, L.
Russell, E. [Teller.]
Sandwich, E.
Seear, B.
Shepherd, L.
Thomson of Monifieth, L.
Thurso, V.
Tope, L.
Tordoff, L.
Wallace of Coslany, L.
Wallace of Saltaire, L.
Walpole, L.
White, B.
Wigoder, L.
Williams of Crosby, B. [Teller.]

Resolved in the affirmative, and Clause 7 agreed to accordingly.

2 May 1996 : Column 1784

5.55 p.m.

Clause 8 [Restrictions on employment]:

Lord McIntosh of Haringey 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

2 May 1996 : Column 1785

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.

2 May 1996 : Column 1786

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.

6 p.m.

The Deputy Chairman of Committees (Lord Ampthill): I should remind the Committee that if this amendment should be agreed to I shall be unable to call Amendment No. 81.


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