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Baroness Williams of Crosby: I rise in support of the amendment moved by the noble Lord, Lord Cope of Berkeley. Like him I am a little puzzled by subsection (3)(e) in that it seems to be cast in extremely wide terms and one cannot understand why. Paragraphs (a) to (d) appear to cover the waterfront pretty well in relation to immigration and customs, and then one finds this catch-all in subsection (3)(e) which makes one extremely suspicious. It does not appear to be in the spirit of the Data Protection Acts, which attempt to limit the amount of private data that can be made available, and it is likely to run into grave difficulties on the ground of the devolution of power with regard to police operations to Scotland--to take one example. If the power is so widely expressed, one would need at the very least to be sure that the Scottish Parliament, the Welsh Assembly and whatever devolutionary structure is eventually agreed for Northern Ireland are all satisfied about the use of such information.

The Minister may be able to tell us that the scope of that provision is much narrower than it seems, in which case we will all be reassured. Some of us want to press

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for better wording than that found in Clause 16 which arouses deep suspicions that are probably unjustified. That is the fault of the draftsman, not the Committee.

Viscount Brentford: I also endorse the amendment. The word "specified" is rather getting up my nose. It occurs again in the next clause, and the interpretation is thrown back onto this clause--with a different interpretation than in a previous amendment.

I take subsection (3)(e) to mean such other purposes in connection with immigration as may be specified. If the subsection said that, I would be much happier. The existing wording is a wide and blanket phrase. I appreciate that is something any government like to give themselves, but others would not necessarily agree with it. I look forward to the Minister's explanation, but I would like that provision limited to the subject in mind.

Lord Falconer of Thoroton: One of the key aims of the Bill is to create modern and flexible immigration control. It is essential that the Secretary of State should be able in future to receive information for any new immigration purposes that may arise. Removing subsection (3)(e) would preclude that happening. Limiting the desired flexibility would prevent information being received that might be needed to deal with emerging threats to immigration control.

The words,

    "such other purposes as may be specified",

would obviously be construed as being ejusdem generis with subsection (3)(a) to (d). When determining what "such other purposes" could embrace, they must be something to do with immigration control. The words must be construed within the four corners of the enabling statute.

It is impossible to predict at this time all the threats to immigration control that may face us in future. They may arise at short notice and require swift action, hence the need for the flexibility provided by Clause 16.

We accept of course that the power must be properly controlled. The order-making power that subsection (3)(e) provides will be subject to the affirmative resolution procedure--something that the Select Committee on Delegated Powers and Deregulation indicated is appropriate. That procedure, together with adherence to the requirements under data protection legislation and the Human Rights Act--both of which would apply--will provide adequate safeguards.

It is sensible that there should be such a power because one cannot accurately predict how people might seek to evade or undermine the sensible immigration controls contained in the statute. I invite the noble Lord to withdraw his amendment.

Lord Avebury: The Minister said that the provision will be interpreted as ejusdem generis with subsection (3)(a) to (d) and as being coterminous with the purposes of the Bill. Those purposes are far wider than paragraphs (a) to (d), as one can see from the Long Title, which extends to procedures in connection with marriage on a superintendent

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registrar's certificate and for connected purposes. Therefore, the "connected purposes" go infinitely wider than paragraphs (a) to (d) in subsection (3).

It would be most helpful if the noble and learned Lord would agree that we should insert wording at a future stage of the Bill which makes it absolutely clear that these other purposes are to be, ejusdem generis, as regards paragraphs (a) to (d) and not coterminous with the purposes of the legislation as a whole.

Lord Falconer of Thoroton: With the greatest respect to the noble Lord, I do not think that that would be appropriate for two reasons. First, if we were to satisfy both the wide purpose and the ejusdem generis rule in relation to (a) to (d) that would provide two cumulative hurdles, which the particular purpose chosen would have to overcome. Secondly, as a matter of construction, it would be construed ejusdem generis in any event with paragraph (e) and, therefore, it would be quite unnecessary.

Lord Cope of Berkeley: The Minister may tell us that it is quite unnecessary but I am not sure why we cannot simply add the word "immigration" after the word "other", so as to make the paragraph read,

    "such other immigration purposes as may be specified".

It is not as if paragraphs (a) to (d) are very narrow; indeed, as far as I can see, they cover the whole of immigration control and all immigration Acts both now and in the future. They cover prevention, detection, investigation and prosecution of criminal offences under all those Acts. As it is, they are enormously wide in immigration control terms.

However, I was interested to hear the noble and learned Lord say that the Data Protection Act will cover this point. Can he confirm to me that this means that, if any piece of information is being supplied from one of these institutions to the immigration control people, the fact that such information is being supplied will be made known to the person to whom the information relates and that the content of such information will also be available to him? I believe that that would probably be the effect of the Data Protection Act on these matters, assuming that the person concerned thought it might be possible and actually asked if that was so. Of course, I may be remembering the Data Protection Act incorrectly in that respect.

Lord Falconer of Thoroton: I am sure that the noble Lord will sympathise with me if I do not seek to give too detailed an answer in relation to data protection. However, I shall outline the basic position. The practical operation of the statutory gateways created by the whole of this clause will be subject to the relevant requirements of the ECHR and data protection legislation. This means that when you are providing information from one body to another, even one designated under paragraph (e), you must comply with all the data protection legislation in so far as it is relevant. I shall not be so bold as to indicate what the

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detail of that would be, but I hope that that explanation gives the noble Lord an indication of what the effect would be of this particular revision.

Lord Cope of Berkeley: I wonder whether the noble and learned Lord could expand that explanation by letter when he has had the opportunity to look into the matter.

Judging by subsection (6) of this clause, it seems to me that this is not really a very limiting matter in any case. It says:

    "This section does not limit the circumstances in which information may be supplied apart from this section".

So all sorts of information may be passed about which is not confined by this provision at all. Indeed, in a sense, one begins to wonder what the purpose of the clause is if anything can be passed about in other ways. However, I shall not pursue that point because it falls outside the terms of my amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 agreed to.

Clause 17 agreed to.

Lord Dholakia moved Amendment No. 33A:

Before Clause 18, insert the following new clause--


("In the 1971 Act, after section 25(2), insert--
"(2A) If any person ("the employer") is employing or has within the preceding 3 months employed any person who is an illegal entrant or a person who has committed an offence under section 24(1)(b) or (c), an immigration officer may serve a notice on the employer, in accordance with regulations made by the Secretary of State.
(2B) Any employer who, within 12 months of being served with a notice under subsection (2A), employs any person who is an illegal entrant or a person who has committed an offence under section 24(1)(b) or (c), shall be guilty of an offence punishable on summary conviction with a fine of not more than level 5 on the standard scale or with imprisonment for not more than six months or with both.
(2C) It shall be a defence to proceedings under subsection (2B) above to prove that in respect of any person employed after service of the notice under subsection (2A), before the employment began the employer made such enquiries or inspected such documents as were reasonable in the circumstances to satisfy himself that to employ the person would not contravene subsection (2B).
(2D) Where an offence under subsection (2B) committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to the neglect on the part of--
(a) any director, manager, secretary or other similar officer of the body corporate; or
(b) any person who was purporting to act in any such capacity,
he as well as the body corporate shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
(2E) Where the affairs of a body corporate are managed by its members, subsection (2D) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
(2F) In this section, "employ" means employ under a contract of service or apprenticeship, whether express or implied and (if it is express) whether it is oral or written, and "employment" shall be construed accordingly."").

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The noble Lord said: This amendment, which is grouped with Clause 18 stand part and Amendment No. 221, provides the Government with a way out of the dilemma in which they find themselves. On Second Reading I referred to what the Labour Party had said while in opposition; namely, that this Bill had implications which constituted a dangerous and impractical burden on employers and that it created an incentive not to hire black staff or people with foreign-sounding names. I referred also to the Labour Party's pledge to repeal a particular provision.

If the Minister is prepared to interrupt me and say that he is prepared to consider this amendment, I can speak briefly; otherwise I promise that I may have to speak for much longer. I beg to move.

10.45 p.m.

Lord Falconer of Thoroton: As I am terrorised by that threat, I say at the outset and without commitment that we should like to take away Amendment No. 33A in order to take a little more time to consider it properly. We received it only on Friday and we need a little longer to weigh up its merits. I shall return to that matter in a moment. I do not think that I need to summarise the issues as that has been excellently done already.

As part of our review of Section 8 of the previous Act, we have been concerned by reports of the Commission for Racial Equality that some employers may be making more checks than the legislation requires and that the legislation may be being used by some employers as an excuse to discriminate. We have had to face up to that reality and tackle it.

As regards the amendment proposed by the noble Lord, we have also discussed with the CRE and others whether it is possible to find better ways to achieve the difficult balance between tackling illegal employment effectively and ensuring that employers do not discriminate. The noble Lord has put forward an alternative solution which deserves to be given serious and fuller consideration. I understand that it has the approval of the CRE, the CBI, the Federation of Small Businesses and the TUC. It therefore represents a serious attempt to provide an alternative provision.

I do not think that it is right for me to go through the detail of the measure. We have some questions on it, but our initial view is that this is an interesting proposal although it may have some potential difficulties. We shall need to think about it and discuss matters with those organisations which advised the noble Lord on the amendment. We undertake to consider Amendment No. 33A without commitment in consultation with interested parties. In the light of the outcome of those discussions, there will of course be an opportunity for the Chamber to return to this matter on Report. On that basis, I hope that the noble Lord will agree to withdraw his amendment and allow Clause 18 to be accepted.

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