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Baroness Williams of Crosby: I found that a fascinating exchange. I am not completely clear what kind of fine can be levied against what employer for employing what number of employees. This is a point that we may wish to clear up. If the noble Lord, Lord McIntosh, is right, the following example jumps to my mind. Let us suppose that a farmer, perhaps in East Anglia, employs a family that wants to work on the harvest. He employs five people. Let us assume that he is a relatively small farmer. If the ultimate amount that he has to pay for employing those five people, who turn out to be here without proper papers, is £25,000, such a fine could break a small farmer. It is an important point to clear up. Let me say right away that I do not know the answer, but it is an important point to clarify.

At this late hour I do not want to keep the Committee up for ever, but perhaps I can say just one other thing. A great deal turns on the issue of the level of fine and how clear we can be with employers about what is required. There must be a balance between the two. The debate has not clarified for me what documents will be needed for this extremely difficult set of conditions that employees might be in breach of.

I wonder whether the Minister would consider the simple test that my noble friend Lord Avebury mentioned earlier; that is to say, a national insurance card, or, failing that, a birth certificate. The more complex the documents, substitute documents or copy documents required, the greater the danger of some employer of good will being caught by a substantial fine. I believe I have talked long enough for the Minister to find the answer to the question. If not, I fully understand that she may come back to me in correspondence or on Report.

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10 p.m.

Baroness Blatch: One piece of information that I cannot ascertain at the moment is whether more than one offence is committed if there is more than one illegal employee. I shall take advice. First, there is an assumption that the £5,000 maximum would be levied in every case. That is a matter for the courts. The seriousness would be reflected in the amount of fine determined by the courts.

The two pieces of documentation that the noble Baroness mentioned would be an absolute defence for the employer. Once an employer has noted and recorded a national insurance number, or any of the documents specified, which include a birth certificate, then of course the employer would avail himself of the defence and there would be no offence committed. It is for people who do not avail themselves of a defence who would be guilty of an offence.

Baroness Williams of Crosby: I thank the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 90 not moved.]

Lord Dubs moved Amendment No. 91:

Page 6, line 36, at end insert--
("( ) There shall be included in an order by the Secretary of State under this section a requirement that where for purposes of subsection (3)(a) an employer inspects a document prior to his employment of any person he shall inspect a document in respect of each person prior to employing him.").

The noble Lord said: The purpose of this amendment is to ensure that every employee who applies for a job is asked by the employer to produce the necessary documents. It is intended to ensure that there is no discrimination by the employer who might otherwise be tempted to say to his white employees who sound as if they are British, "We will take you on", but to a potential employee who happens to be black, or clearly from some other country, perhaps Bosnia, "I want documents." That would be discriminatory.

The purpose of the amendment is to ensure that where documentation is asked for, it is asked of all potential employees regardless of race, background or origin. In that way we have at least some assurance that everyone has a chance of being considered for a job and that no further discrimination is brought into the system through the provisions of Clause 8. I beg to move.

Lord Avebury: It is not quite the right approach, but I am in full agreement with the spirit of the amendment. It satisfies the condition I proposed earlier; that we would not make it an offence for an employer to take on an immigrant who did not satisfy the test but would make it an offence for the employer not to have the documentation presented to him at the time he took on the new worker. That would make matters even across the board. Earlier today we established the fact that an employer who did not require such documentation from a potential worker was putting himself at risk. Under the terms of the Bill an employer is not obliged to ask for a national insurance document or for any of the other papers which may be specified in the order. However, if

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he fails to do so, he will run the risk of being prosecuted. Therefore, in effect and in practice he will demand such documentation from every worker who presents himself.

I believe that the intention of the amendment is that it should be spelt out on the face of the Bill that the employer will demand such documentation. I support that and would go further by providing that the offence should be one of failing to ask for the documentation or of wilfully employing somebody who the employer knows is presenting false documentation. When I tried to make that point earlier the Minister suggested that I was putting an enormous additional burden on employers. I wish to refute that suggestion and to ensure that anyone who reads Hansard will be aware that my proposal would not place an additional burden on employers but spells out clearly the employers' obligation in an objective way. The employer must look at the documentation and must be without knowledge of any fraudulence on the part of the applicant.

Compliance with the Bill is a very simple matter. The employer simply has to look at the national insurance number on whatever the document and to record the fact that it has been presented to him. Perhaps he could take a photocopy of the national insurance number on the P.45 or whatever other document, such as a passport, is presented to him. Once he has done that he has extinguished his liability under the Bill. The system would then be uniform for any employee who presents himself. There would be no possibility of racial discrimination, which was mentioned in regard to earlier amendments, and everybody would know where they stood. The employee would bring along the document, the employer would examine it, that would be recorded and it would be the end of the matter unless it was subsequently alleged that the employer knowingly accepted a document that was fraudulent. That would be the only other condition that must be satisfied and it would be the equivalent to the provisions in the Minister's Amendment No. 89ZA.

We have the germ of an amendment to the clause which would not only enable us to remove the term "immigrant", which the Minister has promised to do, but would spell out on the face of the Bill precisely what the employer must do in terms which are unambiguous, plain and cause the least amount of work on the part of the employer.

The Lord Bishop of Ripon: The Minister will remember that this was one of the matters raised in our meeting with the Home Secretary. The noble Baroness then made it clear that her expectation was that all employers will inspect a document. She has repeated that in the Chamber tonight. If that is the case, how will employers know that that is the expectation?

Perhaps I may apologise to the Minister for being absent at an earlier stage in the Committee when she made the welcome concession about the word "immigrant", and I thank her for that.

Baroness Blatch: The amendment would place on the face of the Bill a requirement that where an employer chooses to establish a defence in respect of any new employee he must do so in respect of all new

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employees. Implicit in the amendment is the intention that employers should not simply direct their checks at people from the ethnic minorities. Under the formulation it would be made clear in Clause 8 that any employer who opts to make checks will be required by order to make checks on all new employees. In that way an employer would both be able to avoid conviction under Clause 8 and be more likely to avoid challenge under the Race Relations Act 1976.

We have made clear all along that employers will need to treat all new employees in the same way. Indeed, this was set out in our consultation document. I should explain to the noble Lord, Lord Avebury, that a consultation document has been issued on the subject. We intend to issue guidance. I understand the point the noble Lord makes. It is extremely difficult to understand anything by reading the "legalese" of a statute. Therefore, we believe that the best way to inform employers, in particular smaller employers, of their responsibilities under this Act is to put it in proper guidance in plain English. We intend to do that.

This does not mean that employers will be required to make checks in all cases. Employers will be free to take the risk that they may be employing people not entitled to work if they choose not to make checks. However, given the straightforwardness of the checks we expect that most employers will choose to make them.

We have also made clear all along that this legislation is positively not a licence to discriminate. Indeed it has been clear to us that in practice employers will need to check all employees--if they choose to check any--in order to comply with the Race Relations Act. However, it is not clear that there is anything to be gained by having this on the face of the Bill rather than simply explained in the guidelines which will be made available to all employers. Either way the remedy available if employers do not treat all new employees equally would be by way of a complaint under the Race Relations Act. This amendment would not alter the position in any way.

We have made clear from the outset that we will be providing guidance to employers. In part this will explain to them what they will need to do to establish a defence. It will also provide advice which will help them to ensure that their selection processes are fair and lawful and do not breach the race relations legislation. The need to treat all new employees in the same way will clearly be a key part of that guidance.

I believe that the Government's intentions are clear and that employers will be in no doubt as to what is required of them. The amendment would not add anything to the clause. I therefore urge the Committee to reject it.

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