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I really have to pose this question to the noble Lord: is he happy that an employer colludes with illegal immigrants, employs them, and, very often, exploits them, as my noble friend Lady Gardner of Parkes said earlier, for very low pay and long hours and keeps them hidden away from the authorities in order to carry out his business? That is the kind of person who will be caught by this amendment. The employer has to know that he has colluded with an illegal entrant to employ him. If the employer simply sees a potential employee, seeks one of these specified documents and simply records having seen it, either by photocopying it or putting it into the company records, or however he wishes to do it--and we shall give guidance on that--the employer has a total and complete defence under this Act.
But where an employer knows--and I use that word precisely in this context for the benefit of my noble friend Lord Renton because earlier we talked about "knowing" or "suspects"--that the employee before him has no right to work in this country, then the employer knowingly employs that person. As I have said, there are a very few unscrupulous employers who are taking on employees knowing that they are illegal entrants, and doing so to cut company costs. It is that kind of ruthless, unscrupulous racketeer that this amendment is meant to catch. All other employers need not worry because there is no extra burden on them whatsoever.
Lord McIntosh of Haringey: That confirms what we have just been saying and also what we said at Second Reading. This clause is simply not going to be effective against unscrupulous lawyers--employers. My noble friend Lord Cocks picks up an entirely innocent slip of the tongue in this case. I did not mean "lawyers", but "employers". The kind of people who will employ illegal immigrants are those who are going to break other employment legislation. That is another reason why this clause is not going to be effective, but damaging.
Earl Russell: On behalf of the CBI I would like to thank the noble Baroness warmly for what she said about there being no need to verify documents. That was the key point of anxiety. Not every employer is able to identify a fake Liechtenstein passport at first sight. So if that point is clear it is a very great relief.
It is a pity that there was not time for this matter to be dealt with by consultation, but at least the point has now been dealt with sensibly. However, I am not quite so happy about the burden of proof. I heard what the noble Baroness said and I warmly welcome it. But it was my understanding that this was a strict liability offence and therefore its effect would be to put the burden of proof on to the employer to show that he did not know that a person was not entitled to work. It is important to have that as firmly on the record as we can with the case of Pepper v. Hart in mind.
I believe that it was the noble Lord, Lord Renton, who said, as regards an earlier amendment, that to prove that one knows something is very difficult indeed. There are two types of proof. First, one needs to prove that the employer knows about the actual history of the employee. Secondly--and perhaps this is rather more difficult--one needs to prove that the employer is aware of some extremely complicated technicalities in the regulations and so forth. Not every employer understands every detail of immigration law: the police, many of us, and people working in the field do not understand it either. Getting the burden of proof clear makes a tremendous difference to how the word "know" is going to operate. Indeed, if the burden of proof is on the prosecution, I shall be very interested to know how the noble Baroness thinks that the prosecution is going to prove that the employer knew that the person was an illegal immigrant.
We are all agreed that we have to deal with illegal working. The question, raised many times during the passage of this Bill, is that of priority. The question is how many nuts one cracks with one stroke of the hammer. I wonder whether there really is evidence that the problem is on quite as alarming a scale as the noble Baroness suggests because we have to weigh a potential good against a potential mischief. Can she give us any indication of the scale of illegal working?
Baroness Blatch: I cannot do so offhand. I do know that there are employers in this country who almost "trade" in giving illegal entrants work. I hope that it will help if I confirm to the noble Lord that if an employer claims that he has done what he is supposed to do under the provisions--that is, that he has secured one of the specified documents--it is for the prosecution to prove that an offence has been committed. The burden of proof lies on the prosecution. The prosecution must prove that when the employer employed the person concerned he knew that that person had no right to work here.
Lord Avebury: Perhaps I may return to a point that I made on the previous amendment to which the noble Baroness did not have the time to reply. Instead of the obligation being expressed as it is in the clause, would it not be better to require the employer to see one of the specified documents under the order which is to be made by the Secretary of State? We could then deal with the possibility which the Minister has envisaged by saying that the employer would be guilty of an offence if he knew that any of those documents was fraudulent. If we are saying that it is an absolute proof of a person's eligibility for work that he possesses, say, a national insurance document or one of the other three documents mentioned in the briefing, and given that the Minister has confirmed that the employer does not have to go "behind" those documents, if I may put it like that, to check whether they are genuine, if the employer was guilty of the offence of knowingly employing a person who is not entitled to work here, ipso facto he would be aware that the document being presented to him was not genuine.
That seems to me to be a way of getting round the objection mentioned by the noble Lord, Lord McIntosh. It is difficult to satisfy the test of knowledge of not only the employer, but all his staff. The extent to which an employer was aware of the details of the immigration regulations might be a matter of controversy in court. However, if we say only that an employer has to check that a document exists--and if we do not specify that he must not have any knowledge as to its fraudulence--we are placing a totally objective test on the shoulders of that employer, a test which I think would satisfy the CBI. Of course, I have not had the opportunity to consult the CBI, but I think that such provisions would meet the need.
Baroness Blatch: I think that what the noble Lord is suggesting would place an onerous obligation on an employer. We are saying that when a potential employee comes along, the employer must ask for evidence of one of a specified range of documents. The employer will take that document in good faith. The noble Lord gave an example of an employer who knows that a document being presented to him is fraudulent in some way. One hopes that any good employer would then ask for another of the specified documents. The noble Lord used the word "know". If an employer knows that a document is fraudulent, he should say, "We know that that is a fraudulent document. You must bring us other proof that you have a bona fide right to be here".
We are operating on the basis that the employer takes the specified document in good faith and at face value. We are not requiring employers to carry out all sorts of checks to ascertain whether documents are genuine. The assumption and the presumption is that the document is one of the specified documents and that it is genuine. If that subsequently turns out not to be the case and the employer has performed his duty under the Bill, culpability will rest with the individual who proffered the false national insurance number, the fraudulent passport or any other fraudulent specified document. However, if the employer accepted such a fraudulent document knowingly, he would be guilty of giving that person work knowing that the information which was provided to him did not prove that that person had a bona fide right to be here.
We know that employers are tied into marriage rackets and other rackets which help people into this country. The provisions of paragraphs (b) and (c) of Clause 5(1) create two new offences to cover that. We are concerned not only with those who help people to enter the country, but with those who help them to stay in this country by getting them work with a friend down
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