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Baroness Blatch: The noble Lord has made two points, one about the catering industry and one about the farming industry. He will note at a previous stage of this Bill we made quite a concession to the farming industry, because we recognise that there is an issue there. We have doubled the number of people from abroad who come in on special schemes and work in the farming industry, because we recognise just that.

As for the catering industry, many of the people who go to the organisation in Oxford Street are working for McDonalds, the large hotels or Kentucky Fried Chicken. They are working for all those organisations, none of which will be caught by the noble Lord's amendment.

Is the noble Lord saying that somebody recruited in that sense should be party to the provisions in Clause 8 and those working for the 90 per cent. or so of companies which the noble Lord wishes to be exempt from this provision should count as a different kind of citizen?

Lord McIntosh of Haringey: My Lords, the Minister speaks to the previous amendment. This amendment is not about firms with fewer than 20 employees. It is about the two weeks' grace. I should be grateful if she would withdraw the remarks that she has just made.

Baroness Blatch: My Lords, again with the leave of the House, let me say that the issues are very similar. We are talking about those who will employ people on a sessional basis. If we allow a period of grace, they will resort to a sessional basis. Many of the people described by the noble Lord in his amendment are people who will be taken on in the morning for one, two or three days' work. Many of the people about whom we are talking, many of the employers whom we are trying to catch by the measures in Clause 8, will resort to just that. If the noble Lord makes the period a fortnight, they will resort to periods of less than a fortnight; if he makes it seven days, they will resort to

24 Jun 1996 : Column 682

periods of less than a week; and if he makes it 24 hours, they will resort to periods of hours. We believe that the scope for exploitation by the unscrupulous is legion.

Lord McIntosh of Haringey: My Lords, there are some trades in which inflexibility is a virtue. Inflexibility of that kind at the Dispatch Box is no virtue. The Minister has moved away from the thrust of the amendment that we have been arguing to try to talk about small employers. That is an issue which we are not debating at the moment. Even when she is challenged directly on the issue, she refuses to acknowledge that she is in fact reading from the wrong part of her brief.

The Minister shows no understanding of our two fundamental criticisms of Clause 8 of the Bill. One is that to attempt to have a blanket obligation on all employers to be part of the criminal law in pursuing illegal immigrants is a huge burden on employers. The second is a failure of the Government to understand that there is a very considerable black economy which will in no way be affected by this clause.

I had certainly not intended to divide the House on this issue. But in view of the intransigent response that the Government have given to this amendment, I believe that it is my duty to press it.

8.52 p.m.

On Question, Whether the said amendment (No. 69) shall be agreed to?

Their Lordships divided: Contents, 35; Not-Contents, 55.

Division No. 4

CONTENTS

Berkeley, L.
Blease, L.
Brightman, L.
Broadbridge, L.
Carmichael of Kelvingrove, L.
Clinton-Davis, L.
David, B.
Dean of Thornton-le-Fylde, B. [Teller.]
Dormand of Easington, L.
Dubs, L.
Elis-Thomas, L.
Geraint, L.
Harris of Greenwich, L.
Haskel, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howell, L.
Hylton, L.
Kilbracken, L.
Kintore, E.
Lockwood, B.
McCarthy, L.
McIntosh of Haringey, L.
McNair, L.
Monkswell, L.
Morris of Castle Morris, L.
Nicol, B.
Ripon, Bp.
Russell, E. [Teller.]
Sewel, L.
Taylor of Blackburn, L.
Thurso, V.
Wallace of Saltaire, L.
White, B.
Williams of Crosby, B.

NOT-CONTENTS

Annaly, L.
Archer of Weston-Super-Mare, L.
Balfour, E.
Barber of Tewkesbury, L.
Belhaven and Stenton, L.
Berners, B.
Blaker, L.
Blatch, B.
Boardman, L.
Brabazon of Tara, L.
Bridgeman, V.
Burnham, L.
Carnegy of Lour, B.
Carnock, L.
Courtown, E.
Cranborne, V. [Lord Privy Seal.]
Crickhowell, L.
Dean of Harptree, L.
Denton of Wakefield, B.
Gardner of Parkes, B.
Goschen, V.
Harlech, L.
Henley, L.
Hogg, B.
Howe, E.
Inglewood, L.
Kimball, L.
Kingsland, L.
Leigh, L.
Lucas, L. [Teller.]
Lucas of Chilworth, L.
McConnell, L.
Mackay of Ardbrecknish, L.
Marlesford, L.
Miller of Hendon, B.
Monk Bretton, L.
Mountevans, L.
Rankeillour, L.
Rawlings, B.
Reay, L.
Rennell, L.
Renton, L.
Renwick, L.
Seccombe, B.
Sharples, B.
Shaw of Northstead, L.
Skelmersdale, L.
Teviot, L.
Trumpington, B. [Teller.]
Ullswater, V.
Wakeham, L.
Westbury, L.
Wise, L.
Wynford, L.
Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

24 Jun 1996 : Column 683

9 p.m.

Baroness Blatch moved Amendment No. 70:


Page 6, line 35, leave out from beginning to ("a") in line 36.

The noble Baroness said: My Lords, these government amendments simply make some minor adjustments to Clause 8.

Amendment No. 70 will remove from subsection (3) of the clause the requirement that an employer would need to prove that the document which he had seen to provide himself with a defence had been produced with a view to establishing that the employment would not constitute an offence.

On consideration we take the view that that is not a necessary requirement. The important elements are that the document was produced and, where necessary, copied. Furthermore, while in many cases the document will have been produced simply because of the requirements of this clause, that will not necessarily be the case. A P45, for example, will continue to be produced principally for purposes related to income tax.

Amendment No. 71 is a minor but not insignificant drafting amendment which will make clear that employers are only expected to prove that a document that was produced to them "appeared" to be one of the specified documents. The current text specifies that the document,


    "was of a description specified".
Theoretically that would not cover a forged document. We made clear in the consultation document that employers would only be expected to satisfy themselves that a document appeared to be one of those specified. The amendment will make sure that there is no doubt about what is expected of employers on this point. I beg to move.

Lord McIntosh of Haringey: My Lords, these amendments are well intentioned. To the minor extent that they go, they are welcome. We have no intention of opposing them.

Baroness Gardner of Parkes: My Lords, a number of small employers have said to me that they have no way of knowing whether or not a national insurance

24 Jun 1996 : Column 684

card is genuine. It would be useful if the employers' federation or a similar group had access to the computer in Newcastle so that they could tell whether or not people really existed. I felt that there was a case for such access when I read in the paper recently that a woman who lived a few doors from where I am in London collected pensions for thousands of people--not hundreds--involving £2 million or more in forged pension books. Can my noble friend say whether it is a possible proposition for employers to have access to a simple way of determining whether or not cards are genuine?

Baroness Blatch: My Lords, in our attempt to make it as little burdensome as possible for employers, we are not asking them to be investigators on behalf of the Home Office in this matter. If somebody comes along to whom an employer is prepared to offer a job and he or she produces a P45, P46, a birth certificate or a national insurance number, we expect the employer to take it in good faith unless he has good reason for believing that it may not be genuine, in which case he can ring the help line and make inquiries about that. We are not putting the onus on the employer to worry about it being a fraudulent document. The breach would be on the part of the employee who proffered a fraudulent document.

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 71:


Page 6, line 37, leave out ("was") and insert ("to be").

On Question, amendment agreed to.

Baroness Williams of Crosby moved Amendment No. 72:


Page 7, line 2, leave out ("5") and insert ("3").

The noble Baroness said: My Lords, I rise to move Amendment No. 72 and say right away that my concern is with the possibility of making a criminal offence out of what may well be an action on the part of an employer which arises from--to use the terms of the Bill--an issue of neglect,


    "on the part of ... any director, manager, secretary or other similar officer of the body corporate".

I fully accept the Government's wording with regard to "connivance" because that implies a systematic attempt to avoid the law and falls squarely within the area about which the Minister was talking; namely, that of racketeering. Noble Lords on this side of the House have made it as plain as they possibly can that we do not support racketeering in relation to vulnerable immigrants.

However, it is also the case that a number of employers, and especially small employers--though this may not be a matter of interest to the colleague of the Minister who is clearly engaging her attention--simply through neglect or misunderstanding fail to act in the proper manner to remove themselves from the terms of the Bill. I draw the Minister's attention again to the words of the Bill as amended, which refer to,


    "neglect on the part of ... any director ... or any person who was purporting to act in any such capacity".

24 Jun 1996 : Column 685

My concern is with the high levels of punishment implicit in Clause 8 and in particular the fact that Clause 8 implies a criminal offence. I hope that the Government can distinguish between those who legitimately can be described as being engaged in a criminal offence--namely, systematic attempts to evade immigration legislation--and those who fall within the terms of the clause because of an oversight, a misunderstanding or an act of neglect.

The Minister may say that that would be a matter for the courts. However, I believe that primary legislation should give clear guidance to the courts on such a matter and should distinguish between connivance on the one hand and neglect on the other for the sentences implicit in this Bill are very substantial indeed. As the noble Baroness will know, one of the matters that the Federation of Small Business Employers has continually insisted on is its resentment and concern about the possibility of being charged with a criminal offence when it believes that its members will have tried to meet the terms of the legislation but may inadvertently have failed to do so.

I hope very much that the noble Baroness will consider the distinction between honest and dishonest employers which is rather like the distinction between bogus and real refugees and asylum seekers. The business of the House is to distinguish between the honest and dishonest, the bogus and the real. Just as the Minister asks us to try to get the balance right on Clauses 1 and 2, although we may not agree where the balance should be struck--I for one do not--on this issue I hope that we can strike a balance between the honest employer who is trying to meet the requirements but who, for some reason, has failed to meet them in full, and the dishonest employer who is engaged in an attempt to undermine the legislation and its predecessors.

I hope that the Minister will listen to the examples to be given by my noble friend about the ways in which employers try to meet the requirements and who may fail to do so. Above all, in moving the amendment, I am profoundly concerned about the possibility of employers engaging in a criminal offence. It is always dangerous to criminalise otherwise innocent people. I beg to move.


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