Humfrey Malins (Shadow Minister, (Assisted By Shadow Law Officers); Woking, Conservative)

I beg to move amendment No. 7, in clause 11, page 5, line 11, leave out 'an adult' and insert 'a person'.

Eric Illsley (Barnsley Central, Labour)

With this it will be convenient to discuss the following amendments:

No. 8, in clause 11, page 5, line 25, after 'knew', insert 'or believed'.

No. 1, in clause 17, page 8, line 16, at end insert 'or believing'.

No. 2, in clause 17, page 8, line 17, leave out 'an adult' and insert 'a person'.

Humfrey Malins (Shadow Minister, (Assisted By Shadow Law Officers); Woking, Conservative)

We are moving to the part of the Bill concerned with employment, and this is the first of the clauses dealing with the civil penalty. I am sure, Mr. Illsley, that the briefer I am in moving the amendments, the more likely you are to grant a short stand part debate, when one or two matters of a more general nature might be raised.

The amendments are brief. The first seeks to change the word ''adult'' to ''person''. There is probably an obvious answer to the question that I am about to ask. Should it not be contrary to the section to employ someone who is under 18, rather than ''an adult''? There are instances of employment of young persons, which is, in a sense, almost more culpable than employing an adult. Is there any reason why the clause should not refer to a person rather than an adult? If it is supposed to refer to an adult, what is the position in respect of younger people? Would there be any penalty for someone who employed a young person who was not an adult, and who was subject to immigration control and so on? If not, why not?

Amendment No. 8, to subsection (4), would strengthen the penalty provision by providing that the excuse did not apply to an employer who knew ''or believed'' at any time that the action was contrary to the section. It would place a heavier burden on the employer than the Bill currently does.

Amendments Nos. 1 and 2 repeat the same   arguments for clause 17, which we will deal with later, in relation to the criminal offence as opposed to the penalty provision.

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

It is a relief to move to a new aspect of the Bill. I thank the hon. Member for Woking for his comments. The Conservative Administration introduced the section 8 provisions, which are along the lines of these provisions, so there is some agreement between us. I will address his specific points, but before doing so let me say that I am conscious of his wish to have a clause stand part debate. I, too, would welcome such a debate.

The section 8 offence of employing someone without the relevant immigration status was introduced in 1995. Since it came into force, in January 1997, there have been 17 successful prosecutions, so although we could support the provision, the section 8 offence has not been widely used. There have been only a handful of prosecutions in each year since the provision came into force. That is some of the background to the clauses dealing with illegal working. I believe that it will help members of the Committee if I refer them to the codes of practice that we have published alongside the clauses, to provide the detail of how they will work.

I shall now deal with amendments Nos. 7 and 8 and, following on from those, amendments Nos. 1 and 2, which, as the hon. Member for Woking said, relate to clause 17. Amendment No. 7 would leave out the words ''an adult'' and insert ''a person''. I believe that the hon. Gentleman's concern is that the provision may leave out children or young adults—those aged 16 or younger. May I refer him to clause 21? For the purposes of the Bill, it defines an ''adult'' as

''a person who has attained the age of 16''.

Humfrey Malins (Shadow Minister, (Assisted By Shadow Law Officers); Woking, Conservative)

I missed that.

Andy Burnham (Parliamentary Under-Secretary, Home Office; Leigh, Labour)

It is easy to do. The reason why we are comfortable with the Bill as drafted is that the UK policy on abolishing child labour is based on existing legislation. There is sufficient protection in such legislation prohibiting the employment of children under the compulsory school age of 16. The specific legislation is the Employment of Women, Young Persons and Children Act 1920, which, unlike the Immigration Act 1971, I do not believe the hon. Gentleman was around to see into force. The 1920 Act lays out clearly the restrictions on the employment of young people under 16, and for the purposes of this Bill, they are satisfactorily covered by that legislation.

Amendment No. 8 involves an issue of some substance. It relates to the scope of the civil penalty arrangements, and it would, if accepted, restrict somewhat further the circumstances in which an employer could establish an excuse against a penalty under clause 11. The clause already provides that the excuse is lost if it can be shown that the employer knew at any time during a period of employment that it was contrary to the spirit of clause 11. The amendment would provide additionally that the employer would lose his excuse if it could be shown that he believed that the employment in question was unlawful.  

The amendment is unnecessary because in practice it would be impossible to operate a workable distinction between knowing and believing. Clause 11 is concerned with facts rather than intentions, and with facts relating to the status of the employee and the documents that the employer has checked. For the information of members of the Committee, those documents are laid out in lists 1 and 2 at the end of the code of practice on the avoidance of race discrimination while seeking to prevent illegal working.

For example, if it can be shown that an employer knew that a document produced by an employee purporting to demonstrate his entitlement to work was a forgery, the employer loses his excuse against a penalty if the employee is an illegal worker. The inclusion of ''believe'' in this context does not add value. It is a point of semantics, but the only practical distinction between knowing and believing is that beliefs can be wrong. Knowledge implies a correctness of belief. Insofar as an employer believed he was employing illegally but it later transpired that the person was entitled to work, liability as laid out in clause 11(1) would not arise. There is nothing for the concept of belief to bite on in this context, so it would not add anything to the Bill.

In clause 17 similar provisions are introduced relating to the criminal sanctions on employers who knowingly employ a person without valid immigration status. The same points that I made to the hon. Gentleman about young people apply. If the test were to be about believing, it could lead to intrusion by the immigration authorities trying to establish that action.

I can reassure the hon. Gentleman that we have considered the spirit of and intention behind his amendments, but that we do not believe that they are necessary. The Bill would be less clear and sharp if we were to accept the amendments. I hope that he will withdraw them—I will keep talking until he gets back to his chair—because the Bill will retain a sharper focus if we do not accept them.

Humfrey Malins (Shadow Minister, (Assisted By Shadow Law Officers); Woking, Conservative)

I listened carefully to the Minister's comments—admittedly, from various parts of the Room. Occasionally, one has to give oneself an actual, not a metaphorical, smack on the wrist, and I do so now, because now I see, in clause 21, the interpretation of the word ''adult''. It just shows that we sometimes work so hard that we miss things. I think that the Minister has satisfied me completely, and that our short debate was not unhelpful. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Neil Gerrard (Walthamstow, Labour)

I beg to move amendment No. 17, in clause 11, page 5, line 17, leave out sub-paragraph (ii).

I hope that I have interpreted the clause wrongly and that the Minister will tell me that there is no problem. Subsection (1) sets out the conditions in which people should not be employed, some of which are obvious, such as that the person does not have   leave to enter or remain, or is subject to a condition preventing him from accepting employment.

The sub-paragraph that I seek to remove concerns people whose leave to enter or remain has expired. Other provisions in the Bill may mean that there is no problem, but I am concerned that the sort of cases that I, and probably other hon. Members, currently see concern people who have temporary permission to be in the UK—perhaps through exceptional leave to remain or a work permit—and have applied to extend it. I know that the Minister will tell me that decision making is improving, but suppose that someone with exceptional leave to remain makes an application for indefinite leave to remain, and the decision takes a considerable length of time and their leave to remain expires before the decision is given. How would they be affected by the measure? It seems, on first reading, that the clause makes it illegal for an employer to continue such a person's employment when their leave expires. We discussed this, to some extent, in our earlier debates on how a person would be affected in the gap between the refusal of their application and their appeal, and the Minister acknowledged that he needs to examine some of those areas, but this problem is slightly different.

I see significant numbers of people who are in that position, and I am sure that other hon. Members do, too. People have difficulties now, because employers frequently do not believe what the current situation is, which is that permission to work holds good until a decision has been made on a new application. I am frequently in touch with the Home Office about individual cases involving people who have that sort of problem. Clearly, one of the effects is to discourage some employers from offering jobs to people who have temporary permission to work.

I hope that the Minister will tell me that I am interpreting the clause wrongly, and that other bits of the Bill mean that this is not a problem, but it is a subject on which I would like clarification.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

I lend my support to the hon. Gentleman on the general concerns that he mentions. However, not even this Bill would mean that someone who had applied in time and was awaiting a determination would be deemed to have their leave expired.

Nevertheless, all the other problems that we have raised in relation to clauses 1, 3 and 9 apply here. The Minister will confirm that the clauses as unamended—and certainly unamended to provide for a person's right to work while awaiting a removal decision that will trigger an appeal in the circumstances for which the Minister might consider making amendments—will mean that people will have to give up their work. When such people they are working in jobs that are important from a public policy point of view, such as in the health service, and while they still might, in some cases, have reasonable grounds for an in-country appeal, I cannot believe that the Minister would want that to happen.

The hon. Member for Walthamstow has done the Committee a service by raising concern about the subject, and particularly by drawing attention to the   fact that people in such situations may already find it difficult to find work because of concerns about the sort of penalties imposed on employers who take them on.

Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)

I congratulate the hon. Gentleman, first for nicking my opening line on making applications in time. That is precisely the point that my hon. Friend the Member for Walthamstow raised. Leave to remain effectively continues while a further case is considered, if the application is made in time. My hon. Friend made an entirely fair point, and I recognise that there are continuing practical issues that need to be overcome.

Secondly, I congratulate the hon. Member for Oxford, West and Abingdon on carrying on the debate that we have had on the appeals part of the Bill, given that we have only just dispatched it—if that is not too generous a term, given that it took us three and a half sittings to do so. I give my hon. Friend the Member for Walthamstow the assurance that although subsection (1)(b)(ii) literally says ''has expired'', that does not relate to those who apply in time and carry on. We are still considering the practicalities that are in place, not in terms of rules or legislation, but in terms of persuading an employer or anyone else that the other application has been made.

However, I must resist the amendment. I hope that my hon. Friend the Member for Walthamstow will withdraw it, as he said that it was a probing amendment. As it stands, it would take overstayers out of the equation entirely. Despite the Daily Mail, the Daily Express and everyone else, it is not asylum seekers or others who make up the largest group of those who are here in an illegal capacity, but those who, for whatever reason, overstay. If we are to have a cogent, transparent and, I would say, progressive immigration policy based on what we are doing with managed migration, we must be able to take action against those who overstay and work illegally. We cannot have a progressive system unless that happens. The amendment is actually rather destructive in that regard, and I know that that was not my hon. Friend's intention. On the terms that he suggested, I hope that he can accept my assurance.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

I note what the Minister says, but although I am cautious about reopening debates, I want to raise a further point. If a valid judicial review application is given against a decision not to extend leave, what is the situation in respect of the amendment and the clause? I do not know, but if a valid judicial review application has been made, or even if one is being considered, how far does the provision impinge upon people who still have recourse to the law?

Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)

If I may give a politician's answer, the only thing I know is that the answer is not yes or no. There are complexities such as non-suspense of appeals versus suspense of appeals, and a range of other issues, so with your indulgence, Mr. Illsley, I shall write to the hon. Gentleman and the Committee.  

I hope that my hon. Friend the Member for Walthamstow feels that he can withdraw this horrid and destructive amendment—for the reasons that I have suggested, rather than the reasons that he gave when he moved it.

Neil Gerrard (Walthamstow, Labour)

As the Minister appreciates, I tabled the amendment to seek information. I realise that it is drafted in a way that could cause other problems. I am glad that he has been able to give those assurances, but I wanted to be absolutely sure that the clause, in its present from, would not create a new problem for those who have made valid applications and whose leave may technically have expired.

I also welcome what the Minister said about a mechanism to ensure that employers understand the provision, and I hope that he will pursue the matter. It is a constant, ongoing problem. People who have made a valid application may have to wait for weeks or even months for it to be determined. Perhaps we can speed it up, but people can wait for some time and then find themselves in difficulties with employers—or even with the Benefits Agency if they are not able to produce something clearly stating that they are entitled to continue working or that they have permission to obtain benefits. I am glad that the Minister has given that undertaking. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Henry Bellingham (Whip, Whips; North West Norfolk, Conservative)

I beg to move amendment No. 69, in clause 11, page 5, line 24, at end insert—

'(3A) An employer is excused from paying the penalty if it is the first time he has acted contrary to this section, and the employer—

(a) co-operates fully with enforcement officers; and

(b) is willing to take help and advice to avoid the repetition of the offence;'.

Eric Illsley (Barnsley Central, Labour)

With this it will be convenient to discuss amendment No. 65, in clause 11, page 5, line 28, leave out subsection (5).

Henry Bellingham (Whip, Whips; North West Norfolk, Conservative)

The Government keep saying that they are pro-business, that they want to listen to business organisations and that they are concerned to represent the interests of our wealth creators. A number of those organisations have said that although they support most aspects of the Bill, they are concerned that some smaller employers could be caught unawares by the legislation—and caught unfairly.

I served on the Committee that considered the Gangmasters (Licensing) Bill, and supported the hon. Member for Paisley and Renfrewshire, North (Jim Sheridan) in his determination to legislate. Places such as East Anglia have a large number of small employers in the food processing sector, who are waiting to see how that legislation beds down. They are concerned because they use a large number of gangmaster employees, and they often make mistakes.

The Bill will toughen up the regime, but those smaller companies could nevertheless be caught out. They will be acting normally and in good faith. The amendment suggests that employers should be excused from paying the penalty if it is the first time that they have acted contrary to the provisions and, most   importantly, if they co-operate fully with the enforcement officers. If they co-operate fully and if they are willing to take expert advice in order to prevent a repetition of the offence, they are surely showing good will.

Amendment No. 65, too, is important. Clause 11(5) states:

''The Secretary of State may give a penalty notice without having established whether subsection (3) applies''.

Subsection (3) states:

''An employer is excused from paying a penalty if he shows that he complied with any prescribed requirements in relation to the employment.''

The clause therefore gives the Secretary of State extra powers to apply the penalty notice regardless, and that is too draconian. I know that the provision has the support of many people in the business sector, but if the Minister and his team at the Home Office want to match the efforts of their colleagues at other Departments, including the Department of Trade and Industry, who are trying hard to be more pro-business and to listen and talk to businesses, they could accept our amendment, which would go some way to ensuring that the Government retained the confidence of the business community.

Neil Gerrard (Walthamstow, Labour)

I am interested in the amendment, but could the hon. Gentleman explain how it would help to deal with employers who are not very scrupulous? It seems to be an invitation to any unscrupulous employer to say, ''Okay, I'll just have a go and take a risk. If I get caught, all I'll need to do is say sorry and co-operate.'' It is an open invitation to people to try to evade the law.

Henry Bellingham (Whip, Whips; North West Norfolk, Conservative)

Although the hon. Gentleman's criticism is perfectly fair, I do not accept the thrust of what he says. If he spoke to organisations such as the Engineering Employers Federation, the CBI or the National Farmers Union, they would tell him that, in this particular respect, the Bill is too draconian. A lot of small companies are being inundated with extra regulations and red tape and they are finding the pressures extremely onerous.

In the spirit of making the Bill a bit more acceptable, particularly to smaller businesses, I urge hon. Members to accept the amendments.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

I rise briefly to give my support and that of my hon. Friend the Member for Manchester, Withington (Mr. Leech) to the amendments, and for the same reasons that the hon. Gentleman gave. It seems reasonable to recognise that such a civil penalties scheme will not be the best way to deal with the really terrible offenders who employ trafficked employees. Without the amendments, the penalties will fall too widely, hitting those who are not the serious offenders but who might have made a genuine error. They might be accused of committing an offence, but when we go into the issue in greater detail, it might turn out that they have not.

If we are to have such a civil penalty, it seems reasonable to provide for what I think we would all agree is a modest modification of the scheme through   the amendments. That would certainly meet some of the concerns of the business community, whose members, generally speaking, are not and should not be, in the business of seeking to exploit or otherwise use people who have no basis for working in this country. There are some poor practices, but without these modest amendments, the civil penalty will not be the best way to tackle them.

Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)

May I crave your indulgence momentarily, Mr. Illsley? Given that we are making such wonderful progress and might hit the counter-terrorism clauses today week because of the two extra sittings, I should remind Opposition parties that I have offered full briefings with officials on the new clauses. I hope that hon. Members will avail themselves of that opportunity through my office, because that would help us on Thursday week. I am grateful to you, Mr. Illsley, for allowing me to remind Members of that. We have just organised our own briefing, and I forgot that we needed to organise one for anyone else.

I have no problem with the sentiment and the import behind the amendments and I congratulate the hon. Member for North-West Norfolk (Mr. Bellingham) on his first upstanding contribution to the debate—as opposed to the rather strange sedentary contribution that he made earlier—and it is to his credit. However, I cannot accept it, as I shall explain.

I accept the thrust of the CBI's comments not only about small employers, but in more general terms. To be perfectly frank, the success of many operations to capture illegal working depends entirely on the co-operation of the individual employer. It is not simply a stark, black-and-white relationship between transgressor and prosecutor of the law—the waters are far muddier than that. I would accept the amendment if what were offered in the clause were as stark as the hon. Member for North-West Norfolk—[Interruption.] That is the same chair that I destroyed during the Bill on identity cards, so we must be in the same Room.

Cheryl Gillan (Shadow Minister, (Assisted By Shadow Law Officers); Chesham & Amersham, Conservative)

Weightwatchers, Tuesday night.

Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)

Weightwatchers on Tuesday night is in the diary, I can assure the hon. Lady. It had better be the same chair; otherwise I shall stop standing all over them.

I would accept the amendment if the clause were not ameliorated by the code of practice, although I accept that it can be interpreted as the hon. Member for North-West Norfolk and the CBI suggest, and I take the points about the impact on business. We say clearly in the draft code of practice that a specific framework will cover gradation, and will offer a more lenient approach to first-time transgressors when partial checks and other elements have been carried out. For obvious reasons, which I accept, that is tantamount to the ''yellow card'' system that both the amendment and the CBI suggest. The concerns of the hon. Gentleman and the CBI are covered by the grading system, which is like the yellow card, rather than by a rather draconian interpretation with no relief for those who transgress in the first instance.  

As I have said before, we want the civil penalty regime in this clause to be operated in the context of much that we are trying to do, offering a lighter-touch regulatory framework for those who comply than exists for those who repeatedly transgress, whom we reserve the right to pursue. I hope that that is a sufficient response to the first amendment.

Amendment No. 65 is unworkable, even if we accept its sentiments. I agree broadly with what my hon. Friend the Member for Walthamstow said in that regard, and I would make almost the same point: it would create a situation in which an immigration officer could not impose a penalty until he knew whether the employer could establish a statutory excuse. That would be to shift on to immigration officers a burden that we think falls fairly and reasonably on employers.

It would also, as my hon. Friend said very clearly, provide a means of dodging the law by procrastinating in providing immigration officers with information through which they can determine whether the statutory excuse applies. We are trying to achieve the same thing but, as already outlined in the Bill, with the ameliorating qualities of the code of practice. We would like to tackle the issue that way, rather than the other way round.

For those reasons, I hope that hon. Members recognise that the amendment is unworkable. The thrust of the lead amendment is already accounted for in the code of practice and I reiterate that immigration officers will, as a matter of practice, give employers the opportunity to demonstrate that they can benefit from a statutory excuse prior to imposing any penalties. The relationship is right the way round that we have it in the Bill, rather than it and its burdens being reversed in the way that the hon. Member for North-West Norfolk suggests. For those reasons, I ask him to withdraw the amendment.

Henry Bellingham (Whip, Whips; North West Norfolk, Conservative)

I am grateful to the Minister for those remarks. I am sorry that my first non-sedentary intervention led to his breaking a chair. I will restrict my interventions of that nature in this Committee to a minimum. Otherwise, we might run out of chairs for those on the Government Front Bench. I have listened to him carefully, and he has made some positive remarks about the code of practice, which we will digest. We reserve the right to come back to the matter at a later stage or in another place. In the spirit of what the Minister has said, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Humfrey Malins (Shadow Minister, (Assisted By Shadow Law Officers); Woking, Conservative)

I beg to move amendment No. 9, in clause 11, page 5, line 36, leave out paragraph (d).

Eric Illsley (Barnsley Central, Labour)

With this it will be convenient to discuss the following amendments: No. 66, in clause 11, page 5, line 36, at end insert—

'(da) provide information about compliance and support'.

No. 67, in clause 11, page 5, line 36, at end insert—

'(da) provide information about the civil penalty regime for a repeat offence'.  

No. 96, in clause 11, page 5, line 36, at end add—

'(da) explain how the employer may be excused from paying the penalty and specify any requirements prescribed for the purposes of subsection (3),'.

No. 97, in clause 11, page 5, line 36, at end insert—

'(da) explain how the employer may appeal against the penalty,'.

Humfrey Malins (Shadow Minister, (Assisted By Shadow Law Officers); Woking, Conservative)

This is no more than a probing amendment, dealing with the method of payment and enforcement of payment. We are faced quite a lot nowadays with legislation that tells us that something will be done but not how it will be done. I am thinking only of the parallel with my work over the years in the court where, for example, a fine could be paid by cheque, by cash or by instalments, based on a person's means. Instalments are another aspect that the Minister may care to dwell on in his response.

The next point connected to that is enforcement. Quite often someone from one part of the country is fined in a court 100 miles away and there is a system of remitting the collection of that fine to the person's local court: he can simply turn up and be dealt with. There are issues relating to enforcement and method of payment. This will be a Secretary of State's penalty. How will it be enforced? Will it be enforced by attachment of earnings orders, the bringing of bailiffs and so on? There is a parallel with the criminal justice system and the enforcement of county court penalties too. The amendment is purely to probe the Government to tell us a little more about how and where the penalty can be paid and what enforcements may exist against a non-payer. My consequential amendments, in effect, revolve around the same general issue.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

The amendments in this group in my name and that of my hon. Friend the Member for Manchester, Withington are, not surprisingly, very similar. They would provide a requirement to explain to the employer how an appeal would work and how he or she may be excused from paying the penalty, specifying any requirements prescribed for the purpose of subsection (3), which is the provision for excuse.

I fear, as do those in the industry and employers' representatives, that, despite what the Minister said about the workings of the penalty system in the draft code of practice, the civil penalty in its current form will fall heavily upon first-time offenders and those who made errors of omission without malice and without intending to fall foul of these rules. It is important that such naïve—if I can use that term in respect of the legislation—employers should be signposted to the way that they can seek to mitigate or avoid the penalty that is being sought.

Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)

I will try to resist attacking the chair. It was in a different Committee Room, but that is two that I now have killed.

I understand entirely what the hon. Member for Woking says about the probing nature of his amendment. The civil penalties scheme will be similar to those already in statute. He is right that the Secretary of State could use the county court to recover payments. He is right about all the assorted and normal processes that prevail: warrant of execution, charging order, third-party debt or, as he   suggests, attachment of earnings. We will have to make provisions, particularly as some of these fines could be quite large, given the level of transgression. We will have to look further, if we have not done so already, at times for payment and an instalment process. That is relatively normal under the existing civil penalty regimes.

In short, we do not want to reproduce a civil penalty regime specific to this Bill and to these offences; we want a regime that prevails in the wider term. With the greatest respect, we need paragraph (d) in order to do that. As I said to my hon. Friend the Member for Walthamstow, this is a nasty and destructive little amendment, but I know that the hon. Member for Woking did not table it for those reasons.

Humfrey Malins (Shadow Minister, (Assisted By Shadow Law Officers); Woking, Conservative)

I am not nasty.

Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)

No, absolutely not. That is why I sought to respond in those terms.

Amendments Nos. 66 and 67 would require a penalty notice to provide information about compliance and support. I appreciate the objectives behind these well-intentioned amendments, and I confirm that guidance will be issued to employers. I believe that that means guidance above and beyond the code of practice and that addresses the wider issues, not simply greater levels of detail and specifics. I shall inform the Committee if it does not. We need to relate this to the last part of the Bill on disclosure of information and other elements, but I am not sure whether that is right, so I shall pass on rapidly because I am temporarily confused. The guidance certainly adds to that operationally, and is the norm now in other regards. Enforcement officers will be encouraged to offer the information and guidance to employers when undertaking visits, using the draft code that I have already presented to the Committee.

Amendment No. 96 would require the notice to include two additional items. First, the notice would also have to explain how the employer may be excused from paying the penalty. Secondly, it would have to specify any requirements set down in an order issued by the Secretary of State under clause 11(3). I believe that the two items amount to the same thing. Again, I have considerable sympathy with the objectives behind the amendment, which reflects the fact that the burden is on the employer to show that he has established an excuse by complying with the specified requirements. The Secretary of State may issue a penalty notice without first establishing whether the employer has established an excuse.

The amendment is unnecessary, however, because immigration officers enforcing the civil penalty scheme will assess as part of their investigation whether the employer has complied with the specified requirements and established an excuse. No penalty will be served if the employer satisfies the immigration officer on that point. It would be possible to include, with the penalty, information on specified requirements in the supporting guidance to which I referred.  

Amendment No. 97 would require the Secretary of State to explain on the penalty notice how the employer might appeal to the courts. Again, I sympathise with that, but the amendment is not necessary because that information is already included in penalty notices and it is not essential to make it a legal requirement. I shall reconsider the matter and decide whether it is more appropriate to include the information in the draft code of practice, which outlines the broad system and issues, or in some of the more detailed guidance that follows from it.

I do have enormous sympathy with all the amendments, but believe that they are unnecessary and do not add to the Bill, for the reasons that I have suggested. Many of the points, although well made, are picked up in other ways in other areas.

Humfrey Malins (Shadow Minister, (Assisted By Shadow Law Officers); Woking, Conservative)

I am grateful for the Minister's very helpful response. I know that he will tell us much more about the scheme and will provide us with information as time goes by. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

I just want to make two new points that were not covered by that group of amendments. First, I have a general concern about clause 11(7)(c), which requires an employer

''to take specified steps to verify, retain, copy or record the content of a document produced to him in accordance with the order''

paired with clause 11(7)(e), which requires

''action to be taken at specified intervals or on specified occasions during the course of employment.''

I know that in the explanatory notes the Government have explained what they mean by ''verify'', which is a visual inspection to check that the document and any other photographic identification relates to the person concerned and, I suppose, that the dates on it are fine, but it would be helpful if the Minister would specify and clarify that. In relation to human rights, he will know that reversing the burden of proof, which is what the civil penalties would effectively do, requires the right balance to be struck regarding the onerous nature of what is required to prove one's innocence at all times when questioned.

A particular concern is the other point that I raised about the action to be taken at specified intervals or on specified occasions during the course of employment. Without knowledge of how regular those intervals will be, there may be a considerable impact on employers. They may feel that on regular occasions they will have to summon in employees with their ID and their leave to remain.

That brings me to my general concern about the impact of such measures in respect of indirect racial discrimination. It is important to ask the Minister about the impact that the measures—I guess that he will assert his confidence in them—will have, particularly the impact of deterring employers from employing people who look as though they might be immigrants with issues regarding their immigration status and leave to remain, which has implications for   questions of race, religion and nationality. That is particularly the case given the need to continually do this at specified intervals.

Although the Government produced the draft code of practice on the avoidance of race discrimination in recruitment practice while seeking to prevent illegal working, which is a very important document that advises employers on how to avoid the problem, the Minister should set out how confident he is that such problems will be resolved.

Secondly, are the provisions the appropriate way to tackle the problem? There is a belief among employers and others that the real offenders will not be caught by the civil penalty, and that it will switch the onus of enforcement from enforcement authorities on to firms. It would be helpful if the Minister would reiterate the policy undertaking that resources will be put into proactive means of identifying those dubious businesses operating in the black market using exploitative labour employment techniques, and that the Government will not rely on the number of convictions brought under the civil penalty, or on the resources raised by the penalty, as an indication of success in dealing with the real problems that can often lead to tragedy with regard to health and safety.

I hope that the Minister accepts my comments in the spirit in which they are made. They give him an opportunity to respond to the points I have raised.

Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)

I shall, but I do not accept the hon. Gentleman's last two points. I have been asked somehow to lighten the burden on those carrying out activity that is illegal, whatever we do under the civil penalty regime. It is illegal to employ someone whose status of settlement is not a matter of record. That is an absolute fact. We are trying to grasp how to do that in an appropriate fashion.

I do not agree with the hon. Gentleman's point, which uses a normal characterisation, that it is all a matter of sweatshops and exploitation. That accounts for part of the illegal working that exists, but many of the more recent, successful operations in this regard relate to high-street supermarkets—I shall not name them—and their assorted warehouse operations. It is not just a question of sweatshops and small employers. Very significant high-street employers were involved, including household names more recognisable than that of the hon. Member for Witney (Mr. Cameron), even this week. It is not just a matter of small outfits.

On the wider point raised by the hon. Member for Oxford, West and Abingdon, there is order-making power in the clause. We shall explore those elements in more detail with regard to guidance and a fuller code of practice, but just for completeness at this stage, ''regular intervals'' would probably be on an annual basis; certainly not less than that. The notion is not that it should be quarterly and an unnecessary burden.

I accept the balance between getting the law right and avoiding undue burdens on businesses but I do not accept that it is an undue burden for an employer to establish that he is not breaking the law by employing someone whose status here is not legal.   That cannot be an undue burden. I know the hon. Gentleman is not suggesting that, but sometimes we can slip into such notions if we are not careful. However, how we capture that proposal is important. Through guidance, through order-making and the final position in terms of the draft, on which we still have to consult, the absolute substance of many of the hon. Gentleman's very valid points will become more than apparent. As he said I would say, we do not offer anything that contravenes the Race Relations Act or, indeed, the Human Rights Act in those terms.

Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West & Abingdon, Liberal Democrat)

The Minister is right that I was not accusing him of knowingly seeking to do so. There is a draft code of practice on avoiding race discrimination in recruitment practice while seeking to prevent illegal working, so he recognises the problem. I wonder whether by publishing that code of practice he is recognising the temptation that employers might have not to employ someone who looks as though they might have immigration issues in case it provides them with extra work, regardless of whether we consider it an undue burden—I accept the point that he makes. How does he propose to monitor the impact that the new extension of policy will have in respect of indirect discrimination? I do not suggest that he means to cause it, or necessarily that it will happen, but I think there should be some monitoring technique, whether the Commission for Racial Equality has extra resources in order to do that or whether it is part of its working practice. Would the Minister agree to revisit this matter if it turned out that a problem had been caused, even if that was not the Government's intention?

Tony McNulty (Minister of State (Immigration, Citizenship and Nationality), Home Office; Harrow East, Labour)

Well, happily I have presented a draft on the avoidance of race discrimination, which is entirely right and proper. I want to have that duty. As I understand things, if the Bill is passed as drafted, we have an ongoing obligation under the Race Relations Act to ensure that this measure, and all others on the statute book, comply with that Act. In the normal fashion, it is in part about working with the CRE, which we need to do, and about research once the measure is bedded in for an amount of time and, as is normal for employment law, through regular engagement with the EC system and assorted employment tribunal cases. I take that point very seriously. I am grateful to the hon. Gentleman for saying what he did in a guarded way, not necessarily saying that it is absolutely certain that there will be problems of that nature; we are and will remain alive to that issue.

Question put and agreed to.

Clause 11 ordered to stand part of the Bill.