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Northern Ireland (Emergency Provisions) Bill

Report received.

Viscount Long: 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.

Baroness Blatch moved Amendment No. 84A:

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

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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

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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.

Lord McIntosh of Haringey: 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

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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.

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