Clause 14 — Penalty

Immigration, Asylum and Nationality Bill – in the House of Commons at 3:51 pm on 16th November 2005.

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Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers) 3:51 pm, 16th November 2005

I beg to move amendment No. 8, in page 6, line 28, after 'employ', insert

'for more than 15 hours in any one week'.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

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

No. 9, in page 6, line 31 [Clause 14], leave out from 'Kingdom' to end of line 36.

No. 10, in page 6, line 40 [Clause 14], leave out from 'he' to end of line 41 and insert

'took reasonable steps to comply with any prescribed requirements in relation to the employment.'.

No. 11, in page 7, line 10 [Clause 14], leave out '14' and insert '28'.

No. 12, in page 7, line 14 [Clause 14], at end insert—

'(g) state the steps which an employer must take to avoid a further breach in relation to any employee.'.

No. 13, in page 7, line 25 [Clause 14], leave out paragraph (e).

No. 14, in page 7, line 37 [Clause 15], leave out paragraph (c).

No. 15, in page 8, line 17 [Clause 16], at end insert—

'(d) make such orders as to costs as it deems appropriate.'.

No. 16, in page 10, line 18, leave out Clause 21.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

We move on to the part of the Bill that deals with rights and duties of employers, and in particular to clause 14, which imposes the somewhat novel concept of a civil penalty on a person who employs a person subject to some immigration control. It is in connection with the general theme of the civil penalty that I introduce amendments Nos. 8 to 16. I hope that we will be permitted to divide the House on amendment No. 10 at the appropriate moment. My remaining amendments are essentially probing measures.

The problem of illegal working is acute. The strict liability criminal offence introduced by section 8 of the Asylum and Immigration Act 1996 dealt with it to some extent, but the problem with that legislation is that very few prosecutions have occurred. It is well known that hundreds of thousands of people are probably working illegally, but only 29 people have been prosecuted under the 1996 Act since 1997, and only eight or nine of them were found guilty.

Photo of Philip Hollobone Philip Hollobone Conservative, Kettering

Illegal immigrants working in the Kettering constituency are a serious problem. I have tabled written questions to the Home Office, the answers to which revealed that no employers have been prosecuted in Kettering for employing illegal workers.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

I am interested in my hon. Friend's point. I visited his constituency some months ago, so I know that the matter, which he takes particularly seriously on behalf of his law-abiding constituents, is a problem in his area. I am not surprised to learn that no one has been prosecuted. As a general principle, it is all very well to introduce new criminal penalties, but the problem is often the lack of enforcement of the existing law.

The civil penalty introduced by clause 14 is a new concept, but I am troubled by the fact that we know very little about the Secretary of State's plans. For example, the minimum and maximum penalties are not stated in the Bill. I have heard a rumour that the maximum per worker will be £2,500, although perhaps the Minister will confirm that figure in due course. Maximum fines and penalties are always set out in criminal statute, so it is disappointing not to have that information. Likewise, the contents of the penalty notice referred to in clause 14 are left for us to guess at. The documents that employers must see and the steps that they must take are, again, not specified, and they will be decided later.

The Government promised to consult employers' groups and small businesses during the passage of the Bill, and I hope that the Minister will give us the result of those consultations in his response.

Nobody knows how many illegal immigrants are in this country and how many of them are working, but it is a fair conjecture that if there are, as is generally agreed, well in excess of 500,000 illegal immigrants, it is very likely that a great number of them are working illegally. Does the Minister have any idea how many such persons are working illegally in this country?

Will the Minister specifically deal with enforcement of the civil penalty? How will it be enforced in practice and by whom? Will it be a matter for the police, local authorities or Home Office officials? Who will be tasked, which is not a word that I like, with enforcement? It is all very well to introduce a civil penalty, but enforcement is a critical point.

The Labour-dominated Home Affairs Committee has had something to say over the past few years about illegal working, which it has pointed out can have a particularly pernicious effect on community relations and an unfair impact on the legally employed work force. The Committee has been critical of the Government for their failure to prosecute under the criminal sanctions for employing illegal workers. If the criminal law has not worked, what is so magical about the new civil penalty?

Amendment No. 8 would insert the words

"for more than 15 hours in any one week".

It is intended to draw to the Minister's attention the problem that may arise for employers in relation to part-time or seasonal employees or one-off workers who do a particular job that may last only a day but are nevertheless employed. Short-term working in catering and the tourism industry should also be addressed positively by the Minister when he responds.

I have a very good friend called Philip Walters, who lives in Dorset and is much involved in local life there. He reports to me that in his county—I think that it is the same throughout the country—a significant number of people are employed by farmers on very short-term contracts. For example, strawberry pickers may be employed for only one day and paid food for their troubles. Farmers are completely reliant upon that kind of labour. It would be unfair of the Government to expect every farmer to ask every strawberry picker for the appropriate identity documents, employment documents, and so on, and to keep photocopies.

My concern is mainly on behalf of individual employers, not so much companies. I am worried that innocent individuals will be caught—people who employ gardeners and cleaners who work for perhaps no more than 10 hours a week at the most. I put 15 hours in my amendment because I thought that that was reasonable and would enable the Minister to respond fully on the issue of part-time workers. Such individuals face a penalty under the clause—there is no doubt about that. Is it right to impose on an individual who employs one or more persons for fewer than 15 hours a week the bureaucracy, red tape and burdens that we find in clause 14, leaving them, quite unnecessarily, with penalties and notices to pay?

Hotels, restaurants and other entertainment enterprises are often completely reliant on taking full advantage of seasonal peaks in demand. This measure may dramatically reduce their flexibility, which is one of the most significant advantages that small firms have over their larger competitors, and in effect punish those who experience an economic need for labour. The Government say that they support enterprise, small businesses, diversity and flexibility, but their failure to exempt part-time workers, in particular, could heap even more red tape on to businesses.

The Minister will tell us that he has consulted various bodies—and so have I. The end result is that I have received comments from several leading bodies that are very worried about the general problems that they will face. The CBI welcomes the clause on the criminal effects but says that

"civil penalties pose more problems than they create solutions" and that if

"the primary aim of the measures in the bill is the prevention of abuse, it is correct to focus on those who offend wilfully and/or repeatedly."

I believe that there is force in what the CBI goes on to say:

"The introduction of civil penalties for negligent employers . . . is a distraction. We are concerned that the difficulty of taking enforcement actions against true rogue employers will lead to a perverse incentive to target legal firms who employ legitimate migrants and may make the occasional mistake. The introduction of civil penalties for negligent employers may present enforcement officers with an "easy win".

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Home Affairs)

Does the hon. Gentleman agree that an employer who is minded to employ people illegally will also be well disposed to the notion of hiding behind the veil of incorporation in its various guises, and that that would be exceptionally problematic in regard to recovering civil penalties?

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers) 4:15 pm, 16th November 2005

The hon. Gentleman makes an interesting point—there is of course a corporate criminal offence set out in the Bill—and he might wish to develop it himself in the course of the debate.

The Joint Council for the Welfare of Immigrants, a much-respected body, also has concerns about the provisions. It has consulted businesses, and has registered on behalf of many of them concerns about the provision for a civil penalty. A problem that it has identified—perhaps the Minister will address it directly—is that the Government are almost asking employers to become

"'enforcers' of immigration control and that the threat of civil penalties as well as the requirement to repeatedly check documents will act as a disincentive to employers hiring foreign nationals, including those who are 'documented' and ethnic minorities."

So a lot of genuine people who have a full right to work could find themselves—for completely understandable reasons—accidentally discriminated against. They would therefore suffer as a result. When the Minister tells us about his consultations with the CBI and other business organisations, I am sure that he will be able to address those concerns.

The provisions would result in an even greater burden being placed on smaller businesses, which should not be expected to act as a continuing watchdog on behalf of the Government. Amendment No. 8 sets out an exemption for the employers of part-time workers. Its purpose is to ask the Minister please to be very cautious before placing unnecessary burdens on small employers who employ people part-time or just for one-off jobs, because they would be covered by the civil penalty.

Amendment No. 9 is a probing amendment that proposes to leave out clause 14(1)(b). This proposal would not place quite such a burden on the employer as the existing one. The employer would be subject to a penalty if he employed someone who had not been granted leave to enter or remain in the UK, but would not face a civil penalty if, for example, the person whom he had employed had leave but it had expired and there was a possibility of its being renewed. The Minister may remember that this issue was raised in Committee by Mr. Gerrard, who always takes a great interest in these matters. The Government's response at that time, though helpful in part, was incomplete. That links up with my point on that amendment involving the nature of the documentation, which the employer will have to read and understand. Some of those documents are complex.

I am going to say to the Minister something that may trouble him a little. I have read that those employers who are concerned that the penalty provision might impact on them can phone an employers' helpline—a hotline of sorts for employers—to get the fullest possible advice as to what they should and should not do, and how they should approach individual employment cases. The parallel with the immigration hotline, which is used by many of my hon. Friends and Members across the House to get answers on immigration matters, is interesting. I want the Minister to tell us in his winding-up speech whether the employers' helpline—or it is a hotline?—exists. Will he give us its telephone number? I have a number in front of me, but something tells me that it might be more appropriate for him to talk to us about this, just in case I have the wrong one. I think there is such a helpline and that it will be useful for employers.

Amendment No. 10 is the one about which it is fair to say I feel the strongest. Clause 14(3) says:

"An employer is excused from paying a penalty if he shows that he complied with any prescribed requirements".

Amendment No. 10 would introduce a few words giving the employer an excuse if he

"took reasonable steps to comply with any prescribed requirements".

As we are hammering employers under this provision, if they have taken reasonable steps, they should have some form of excuse. That is the principal amendment to which I shall speak. It is, I think, linked with amendment No. 12.

My hon. Friend Mr. Bellingham tabled a not dissimilar amendment in Committee, hoping thereby to ease the position of the innocent employer who may have made an innocent mistake. It was a pro-business amendment, so we were sorry, but not surprised, that the Government did not take it on board at that stage; nor have they tabled their own amendment today to ameliorate the position of employers. In tabling that amendment, my hon. Friend expressed his concern—and that of others, including the CBI—about that burden.

In Committee, the Minister indicated that the clause would be watered down. He did not use those words, but suggested that it would be shown to be more employer friendly by a code of practice, which would apparently offer a more lenient approach to first-time transgressors. I do not know exactly what that means. If first-time transgressors are not to be penalised under this civil measure, let us hear it. If the Minister will have discretion not to penalise first-time transgressors, employers have no reason to be comfortable, because they simply will not know their fate. I hope the Minister can respond on that point.

Prescribed requirements, which are not defined although the employer has to comply with them, mean inspection of documents. Anybody with the slightest knowledge of the immigration world realises that we are now entering a minefield. Picture yourself, Mr. Deputy Speaker, or any of us here, running a small business taking on labour. Then, one asks to see certain documents. Bearing in mind that many documents that are not real seem to pass the test with our immigration officials and those at airports, I do not see how the innocent employer will spot them. Did you know, Mr. Deputy Speaker, that it is a piece of cake in Lithuania to wander along and buy yourself a Lithuanian passport, which gives you everything that you need to come into this country? Did you know that it is a piece of cake in Italy and Greece—I hasten to say that I have not done it, but I know it to be true—to get hold of a Greek or Italian identity card and wander into this country on that basis? Finally, I am not sure that employers are expected to know that there is a terrific trade of Brazilians entering Portugal and getting hold quite easily of Portuguese identity and other documents, and then wandering around the EU, not to mention this country. The notion that expertise must be put into the mind of the employer is illusory.

My amendment No. 11 deals with a separate issue, and I hope that I have expressed fairly and opened up a debate on the burdens on employers, the concerns of business and the lack of detail that we have had so far. The clause states that a penalty notice must "specify a date". The date specified in the notice—goodness knows who sends it or has found out that an employer has an illegal migrant as an employee—is meant to be

"at least 14 days after the date specified in the notice as the date on which it is given, before which the penalty must be paid".

The amendment changes that from 14 days to 28 days. It is quite important—I know that the Minister is taking the point on board—that a reasonable period is given to the employer to pay the penalty. We do not know what the penalty will be, and have no idea who will judge how much it will be. If it is a Home Office official who decides on the penalty, such an official will have no idea about an employer's wealth, means or ability to pay and will, I presume, just pick a figure out of the air, which seems idiotic. It seems right, particularly as people are sometimes away for two or three weeks, that a reasonable period of grace should be given for the employer to pay the penalty.

On the question of the financial means of the person in receipt of a penalty, I see nothing in the Bill to tell me that the level of the penalty will be adjusted according to the means of the person who must pay it. In our courts, however, defendants' means are carefully examined—they carefully fill in a form about whether they are on benefits or X pounds a week. As a result, the courts set the fine at a level compatible with the defendant's means. Where is that provision in the Bill, and where is the prospect of the Minister allowing a little more time? If one is fined in a magistrates court, one is invariably given, if one asks for it, 28 days to pay. That is why I have suggested that 28 days be allowed in relation to the penalty notice.

Amendment No. 12 follows on from my amendment No. 10 and again seeks to lessen the burden on the employer.

Amendment No. 13 asks us to leave out paragraph (e), which requires

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

Not only will a burden be placed on an employer at the beginning of the employment, when he must inspect and deal with certain documents, but he will be required to do the same

"at specified intervals or on specified occasions during the course of employment."

Neither the specified intervals nor the specified occasions are quantified. We have had informal guidance from Ministers, but now that we have reached the Report stage, it would be helpful if this Minister went into more detail.

Does the Minister think that the penalty clause is absolutely necessary? Existing legislation covers the employment of persons and the need to examine their documents. Will he comment on the workings of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, which require agencies that supply workers to carry out checks to confirm workers' identities? Is that invariably done, what pitfalls exist, and have any measures been taken against agencies that have not dealt with the matter properly?

Will the Minister also comment on the workings of the Gangmasters (Licensing) Act 2004, which was intended to protect workers in the agriculture and shellfish sectors by requiring labour providers to register and apply for licences to act as gangmasters? Given that plenty of checks and regulations are already in force, and given that although there are probably 200,000, 300,000 or 400,000 illegal workers in the country—no one can gainsay that—only about 20 have been prosecuted in the last eight years, one wonders whether the real problem is that of enforcing existing law properly.

Amendment No. 14 seeks to omit clause 15(3)(c). It is merely a probing amendment. Paragraph (c) says that a notice of objection must be given "in the prescribed manner". If someone wished to object to a civil penalty, what would the "prescribed manner" be? The question troubles me a bit, because it raises the possibility that a notice would be deemed faulty because it had not been given in the prescribed manner. If a defendant wishes to appeal against a conviction or sentence in court, he or she is not required to provide a notice of appeal in a prescribed manner; it is necessary merely to file the notice. If it is on the back of an envelope and reads "I wish to appeal against the sentence because I thought it was very tough", that is good enough.

Amendment No. 15 relates to appeal against the penalty. I thought for a moment that the Minister was asking me to give way, but it seems that he is not— [Interruption.] I am told that Keith Vaz has just woken up. It is good to see him in his place.

Photo of Keith Vaz Keith Vaz Labour, Leicester East 4:30 pm, 16th November 2005

On a point of order, Mr. Deputy Speaker. I have not woken up. I have been listening to the hon. Gentleman for the last 30 minutes, as has the whole House. I just wish he would get on with it, as the business is guillotined.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

I do not think that that is a point of order for the Chair, but I can confirm what Keith Vaz has said.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

I hesitate to address the hon. Member for Leicester, East as Mr. Deputy Speaker, but he seems to be instructing me to move at a pace that suits him. Many of us have genuinely fallen asleep in the Chamber during his deliberations since 1983.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

The hon. Gentleman will not fall asleep when I start speaking.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

No.

I would like to insert under amendment No. 15 a provision whereby, following an appeal, a court can make an order as to costs. That is important. Can a court hearing an appeal make an order for costs at present under this Bill? If the appeal is vexatious and rubbish, it is undoubtedly sensible for the court to order costs against the appellant. However, if the appeal is full of merit and the Secretary of State has behaved disgracefully, it seems proper that the court can order costs against the Secretary of State. I hope that the Minister will respond on that matter.

I had the feeling that the hon. Member for Leicester, East was in the Chamber to hear my speech, but I have suddenly realised that he is here only to make his own.

Amendment No. 16 is a probing amendment, by which I seek to omit clause 21. I ask the Minister kindly to tell us a little more about the position of a body corporate and the criminal offence that applies in relation to a body corporate. We are anxious to know who would be prosecuted. Take the case, for example—I mentioned it in Committee—of a club. A club run by its members is capable of being criminally prosecuted under this measure. That is entirely different from a big organisation. It is voluntary for a start. Take a sports club or a small business where there are four partners, one of whom is a junior partner who has some responsibility for an aspect of the employment but no authority to overrule the other partners, who take a particular view about the employment of the individual concerned. I am anxious that the net in criminal terms does not extend to cover too many people.

Those are my amendments. The Minister has much to justify. I am hopeful that he will accept amendment No. 10, which is the one that we most want to test the opinion of the House on. Among my other amendments, I hope that he will be kind enough at least to agree that those who have a penalty imposed on them should get 28 days, rather than 14.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

I came into the Chamber determined to vote with the Opposition on amendment No. 8 but, having heard the speech of Mr. Malins, I have decided to vote with the Government because they do have a case and there are concerns about that amendment. I am certain that, with the length of time that he has taken to put his views forward, my hon. Friend the Minister will be able to deal with those concerns. Let me raise my concerns in a much shorter time to give other right hon. and hon. Members the opportunity to put their points to the Minister.

I am concerned about these proposals because they will disproportionately affect members of the ethnic minority community. The hon. Member for Woking was right to say that the measure will create a burden on small businesses when they have to keep checking immigration documents. It will also create a burden on the immigration service and the police. We have had legislation on immigration, asylum and nationality where the Government have told us, in good faith, that they felt that it would deal with the problem of illegal immigration, but sadly that has not happened. We are again legislating because we think that we will solve the problem, but we could end up not solving it and just creating greater burdens.

Photo of Philip Hollobone Philip Hollobone Conservative, Kettering

The hon. Gentleman is correct to identify that the immigration service does not want to have more rules and regulations to enforce. Is not it the case that the service is already overstretched and cannot enforce its existing powers?

Photo of Keith Vaz Keith Vaz Labour, Leicester East

I agree. There are more than 220,000 cases that the service has not dealt with. I went to visit the Arnhem centre in Leicester last Friday, where I looked at the appeals that come from the Home Office to the Department for Constitutional Affairs. There is such a huge burden on the IND, despite the appointment of the new director general, Lin Homer, whom I wish well. An extra burden of this kind will not help the system. After all, that is exactly what the Government said when they introduced—I think by regulation, but the Minister will correct me if I am wrong—the new certificates of marriage that people had to obtain from the Home Office in order to go to the registry office to get married. At the time, we were told that the purpose was to make the system clearer. In fact, there is still a huge delay for people trying to get those certificates from the Home Office because there is a backlog. The purpose—the good purpose—for which they were introduced has not been realised because of the administrative problems created.

First, I seek an assurance from the Minister that the provision will not create additional burdens, requiring additional resources, for the already overstretched immigration and nationality directorate. Secondly, to reiterate a good point that was made in an over-lengthy way by the hon. Member for Woking, what about consultation? The hon. Gentleman mentioned the CBI and employers organisations for small businesses, but what consultation has there been with communities, particularly with those who will be affected by what is happening?

Has the Minister sought the views of the Commission for Racial Equality, which has been very clear in the statements it has made to Members of the House this week? I quote:

"The CRE view is that civil penalties and repeat checks on certain employees subject to immigration control is not in the spirit of the Race Relations legislation, could be divisive within workforces, stigmatise workers, and potentially damage good race relations. We fear that the latest proposals may cause confusion, misunderstanding, and further cases of discrimination."

The very body set up to deal with issues of discrimination is saying to the Government that before the measure is passed they should pause and consider what is being proposed, so it is important for the Minister to tell the House which organisations and community groups have been consulted and what research his Department has done.

We know that proposals do not instantly emerge from the mind of the Home Secretary or the Minister for Immigration, Citizenship and Nationality and lead to immediate legislation. Ministers have had time to think about the proposals as the issue has been central to what the Government have been attempting to do for the past eight years. What is the evidence to support the measure? What information can the Minister give the House about that?

My final point is about the need to ensure that people who are here illegally and readily own up to it are given some sort of decision about their status. Occasionally, although I am not saying that it happens often, people who have lived in this country illegally for a long time come to my constituency surgery, as I am sure they do to the surgeries of other Members, and admit that they have been in the country illegally. Some have had an extended holiday. A gentleman who came to see me only last week came for a holiday 10 years ago on a visitor's visa. He is still here, he has had three children and he is working illegally, but he wants to come clean. He wants to make the Home Office aware of the position, although I am not sure whether he wants an amnesty. My job as MP is to stand in his shoes and write to the appropriate Minister or officials. I have done that—as I have done for a number of people who have come to my surgery and want to admit to being here illegally. They want their status clarified, but the delay in dealing with their cases adds to the backlog and the wider delay in the system.

We are all trying to find people who are working here illegally so that we can bring them to justice, and so that they can regularise their stay and either make an application to remain on some basis or leave the country and make an application to come back. We need assurances from the Minister that his staff that resources in the Home Office are sufficient to cope with the applications when they are made.

If the Minister can reassure me on those three points, I will happily vote with the Government on this measure. I remain worried, however, that in the 18 years during which I have been a Member of the House we have had 10 Bills on immigration, asylum and nationality. Every Government, of every hue, have said that the next piece of legislation will solve the problem, but that has not happened. I hope that the Minister is confident that these proposals will make a difference to the Government's immigration policy.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Home Affairs) 4:45 pm, 16th November 2005

I shall not detain the House because, ever the optimist, I remain hopeful that we might still get to the final group of amendments, which I consider to be very important. However, I want to share a few thoughts about illegal working, and I commend Mr. Malins for tabling these amendments. They allow us to discuss and place on the record some of our concerns about what is a real problem in many sectors of modern commerce and industry. Illegal working is a problem for all of us. It has a pernicious effect on community relations and leaves many people in different industries without proper protection or remuneration. If it is allowed to flourish, it places those who play by the rules at a real disadvantage.

The hon. Member for Woking said that most of his amendments are probing, and I think that that approach is correct, but he added that he wanted to press amendment No. 10 to a vote. Keith Vaz said that his resolution to support him had been tested, but mine has not. I remain resolute and I will support the amendment in a Division. Yet again, part of the reassurance offered by the Government is that a code of conduct will be put in place, but so far I am not aware that one has been produced. The Government say something similar increasingly often, but such statements provide no reassurance. Effectively, we are being asked to buy a pig in a poke.

The concept of civil penalties is superficially attractive, although I remain worried about some of the enforcement problems. What is the position of bodies corporate in relation to partnerships? In Scots law, partners are deemed to be jointly and severally liable, but it seems to me that the Bill could cause real injustice in that regard.

Moreover, the people most likely to be caught and to end up paying are those small business men or sole traders who have made some error that has brought them within the jurisdiction of the civil penalty scheme. However, they will not necessarily be the real villains of the piece. The real villains will find a means of escape—no doubt without much difficulty—through devices such as the veil of incorporation. I am therefore worried that the proposed scheme will not tackle the mischief.

Amendment No. 10 would reduce the test for establishing a defence and require traders to show that they had taken "reasonable steps" to comply with employment requirements. That seems sensible, and Liberal Democrat Members support it.

Photo of John Greenway John Greenway Conservative, Ryedale

I listened to Keith Vaz with great interest. He and I entered the House at the same time and in our early days here worked together in the Home Affairs Committee. We looked at some of these matters then, and few of us can match his experience, given the ethnic make-up of his constituency and the many cases with which he has to deal. I am sure that what he said will have been of great value to the House.

I want to deal with some of the issues that are under consideration in the Council of Europe's Committee on Migration, Refugees and Population, to which I was appointed earlier this year. They go right to the heart of the difficult question of the employment of irregular migrants. I concluded that what the Government propose in clauses 14 to 21—which the amendments tabled by my hon. Friend Mr. Malins address—namely, stronger criminal sanctions against employers who give work to irregular or illegal migrants, seems significantly out of step with the work of the Migration Committee and the advice it has received on future migration and employment trends.

As colleagues who follow economic trends will be aware, Alan Greenspan estimated recently that there may be between 10 million and 11 million irregular migrants in work in the USA, without whom, he said, the performance of the US economy would be adversely affected, particularly in relation to the rate of inflation. I understand that it is two years since any prosecutions were pressed against employers in the USA.

We know that irregular migrants are in work in the UK—the hon. Member for Leicester, East gave us one example. The clandestine nature of their employment can and does on occasion call into question the morality and ethical behaviour of their employers. On the other hand, some employers may unwittingly employ irregular migrants, especially through subcontractors in the agricultural sector or, as my hon. Friend the Member for Woking said, migrants who used false papers.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

I agree with much of what the hon. Gentleman is saying. If an employer is going through a busy period and needs to fill a vacancy, when people apply for the job the first question he asks is not, "Can I have a look at your passport?", but, "Are you able to do this job?" That is why people slip through.

Photo of John Greenway John Greenway Conservative, Ryedale

Indeed. In the hon. Gentleman's community, he may know that the person in question has a wife and children to support, and I want to touch on the issue of the rights of a person in that situation.

For the reasons that I have given, I think that my hon. Friend the Member for Woking is entirely right to try to amend the Bill as he proposes. It would be wholly wrong for us to treat the unscrupulous employer and the unwitting employer in exactly the same way, as the Bill would do. Yes, there is discretion about whether prosecutions are brought and there is discretion in the court, but if we are serious about regularising the position of illegal migrants, which is really what the hon. Member for Leicester, East was saying in his third point, it is counter-productive to penalise the very people who are most likely to know or learn about the irregularities and do something to address them.If our economy benefits from the employment of irregular migrants, we need to ask whether the prosecution of employers is justified, beyond their failure to meet employment laws and obligations. In the longer term, however, it is much more important for the House to address the interests of the migrants themselves.

I listened with interest to the Minister for Immigration, Citizenship and Nationality when he introduced new clause 2 and discussed the question of there being no minimum wage for people in detention centres who work. He made his point extremely well; the questions relating to the right level of pay were interesting. He pointed out that people in detention centres have a choice about whether to work, but that if they choose to work they are not paid the minimum wage. I see his point of view, but those people are nevertheless irregular migrants—that is why they are in detention—yet they are being given the choice and the right to work.

It may surprise some colleagues, as it certainly surprised me when the document arrived in my bundle of papers, that the Migration Committee is considering a report on the human rights of irregular migrants, which might include the right to work, or at least to accept employment. That is an extremely challenging concept. I have an open mind on the issue.

Mr. Henderson serves on the Migration Committee with me, and we have had quite a good exchange of views on what many colleagues on both sides of the House would find a challenging concept. However, we must all address the issue raised by the hon. Member for Leicester, East. If someone with a wife and children has lived in this country for 10 years but is here illegally because he overstayed his holiday and is in a job, does he have a right to work or not? That is the question. People say no, but the very fact that that question is on the agenda indicates the direction of thinking on this policy.

The Migration Committee has been given three different academic studies on the European convention on human rights, all of which conclude that irregular migrants must have some kind of rights. The better option is to regularise migrant workers because, without them, the long-term economic future of Europe, let alone this country, is in question. However, that is a debate for another day.

All I would say is that if the rights of irregular migrants are as uncertain as many hon. Members and I think, we ought seriously to consider the extent to which the law—which is what the amendment is about—seeks to penalise, including by imprisonment, employers who offer work to irregular migrants, especially in circumstances where the employer has unwittingly employed such persons. Amendment No. 10, tabled by my hon. Friend the Member for Woking, is entirely reasonable in those circumstances, and it would greatly strengthen and improve the Bill if the Government were to accept it.

Photo of Philip Hollobone Philip Hollobone Conservative, Kettering

My constituents would not want the opportunity of debating these amendments to pass without my mentioning the very serious and growing problem of working by illegal immigrants in and around Kettering—a issue that I have raised with the Home Office in a number of written questions. I share the scepticism expressed by Labour Members about the need to introduce new rules and regulations without the enforcement of the current rules and regulations being nearly effective enough.

The immigrant community in Kettering is not large. Perhaps 500 or so mainly Sikh people represent a long-established and well-respected minority ethnic community in Kettering. However, there is growing disquiet about the increasing number of illegal immigrants, many from the Indian subcontinent, who are finding their way to Kettering to work illegally in many of the local establishments. There is a well-established, if tortuous, route to gaining illegal entry into this country, and my hon. Friend Mr. Malins very graciously came to Kettering to hear the local residents' concerns about it.

I should like to take this opportunity to invite the Minister to come to my constituency to explain to members of the Sikh community, employers, police officers, immigration officers and others how the proposed changes in the Bill will address the growing problem of illegal working in Kettering. Having heard the debate so far, I am afraid that, on behalf of my constituents, I remain extremely sceptical about whether the Bill will tackle the problem in the way that it ought to.

Photo of Andy Burnham Andy Burnham Parliamentary Under-Secretary (Home Office)

I am grateful to hon. Members for the tone in which the debate has been conducted. We have had a proportionate and balanced debate on some very important issues. However, as Mr. Carmichael said, we have yet to consider some perhaps even more serious issues on Report, and it is right to devote as much time as possible to those issues. With the permission of the House, I will seek to deal not with every point that has been made, but with the substance of hon. Members' arguments and the assurances that they want.

With that in mind, I hope that I can persuade Mr. Malins—I know that he is a reasonable soul—that a vote on amendment No. 10 will not be needed. I genuinely believe that I can give him the assurance that he wants. The secondary legislation detailed in the Bill will achieve the effect of his amendment. I know that the hon. Member for Orkney and Shetland indicated that he would support the hon. Member for Woking in such a vote, but if the hon. Member for Woking is in the mood for doing deals, I can say that I may well be minded to accept amendment No. 11, the other amendment that he described as important because it would put more flexibility in the Bill. The Minister for Immigration, Citizenship and Nationality and I are minded to say that the amendment is reasonable.

Before I deal with the substance of the points that the hon. Gentleman made, let me turn to the matters raised by my hon. Friend Keith Vaz. He talked about additional burdens on the immigration and nationality directorate and asked whether the enforcement activity would impact on other work. He also talked about consultation with the ethnic minority community about the impact of the measures and discussed the IND's ability to deal with overstayers.

We are bringing forward the measures because the regime introduced by the Conservative party has failed to fulfil its intended function. In the nine years since that regime was introduced, some 17 prosecutions have been brought, but that is not to say that the IND has not carried out many more operations than that to detect illegal working and that it has not detected many more illegal workers than that during the course of its activity. The situation demonstrates the inadequacy of the current offence.

The measures that we are introducing, especially the civil penalty scheme, will put a wider range of tools at the disposal of the IND, so it will not have to use such heavy-handed means to address the problem. The civil penalty scheme is a more measured and calibrated system through which the problem can be addressed without having to resort to criminal prosecutions in every instance. On my hon. Friend's point about consultation, a draft code of practice has been published to set out the steps that employers can take to ensure that they keep within race discrimination legislation.

Photo of Keith Vaz Keith Vaz Labour, Leicester East 5:00 pm, 16th November 2005

I want the Minister to picture my constituency and areas such as East Park road and the Belgrave road. Every single person who is employed in every single factory on those roads is from the ethnic minority communities. Some are British born, some have acquired citizenship and others have indefinite leave. Does he accept that the measure will disproportionately affect members of the ethnic minority community, and have an impact on those who are in this country legally because employers simply will not want to employ them?

Photo of Andy Burnham Andy Burnham Parliamentary Under-Secretary (Home Office)

My hon. Friend is right to raise such serious issues. I do not know his constituency anything like as well as he does, but I would guess that the vast majority of those people are British born and British passport holders, so there will be no requirement for employers to check their documentation. The draft code was published in October and I would encourage him to read it.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

That is not the point. The Bill will allow those who have the power to go on fishing expeditions to find out which of those people are British citizens and individuals with indefinite leave—with the right to vote and work here—and which are not. The Bill will mean that people can start visiting factories and making checks, which will create more burdens.

Photo of Andy Burnham Andy Burnham Parliamentary Under-Secretary (Home Office)

The measures must be applied sensitively, which is why the draft code of practice sets out clearly the steps that should be followed to achieve that. The code makes what is acceptable clear to employers. We obviously want to ensure that there is consultation on the code of practice so that when it emerges in its final form, it will be a useful and practical document that will ensure that the scenario that my hon. Friend fears can be avoided. I understand my hon. Friend's point, but the purpose of the measures is to deal with illegal working. The IND carries out illegal working operations now and will continue to do so; the clauses simply gives the IND proportionate tools to use against employers who fail to comply.

The main point made by the hon. Member for Woking relates to amendment No. 10, in which he requests that reference be made in the Bill to employers who take reasonable steps to comply with the legislation. As he knows, secondary legislation will be required to bring into effect the clauses on employment. I refer the hon. Gentleman to the table in the draft code of practice that we have issued for the benefit of employers. He will see that it lays out clearly the practical steps that employers can take to ameliorate the size of any penalty. They can carry out a full check, which is defined, a partial check or no check at all. We have taken a balanced approach: the penalty varies in proportion to the extent to which an employer has taken steps to comply.

The hon. Gentleman will also see that it will be possible for a first-time offender who showed good will and carried out some partial checks to avoid a penalty on the first occasion of being found in breach. I genuinely believe that the secondary legislation to support the clauses will fulfil the purpose of amendment No. 10 by laying out clearly the practical steps that people can take, and I hope that it reassures the hon. Gentleman that first-time offenders will not be clobbered. The penalty will vary according to how many times the employer has breached the provisions and the extent to which the employer has taken steps to tackle the problem.

As I said, we are minded to accept amendment No. 11, which is sensible. It relates to the matters to be included in a civil penalty notice, specifically the Secretary of State's obligation under clause 14 to set a maximum period within which payment must be made. The effect of the amendment would be to increase the payment period specified in the notice from at least 14 days to at least 28 days. Clause 16 specifies that the period for bringing an appeal against a penalty will be 28 days and we intend that the maximum period for making objections under clause 15 will be the same. To accept amendment No. 11 is therefore logical.

Amendment No. 8 would exclude part-time workers from the scheme. That would not be sensible as it would undermine the principles of the scheme, weaken it, and create a potential loophole in the legislation. Employers could employ an illegal worker on a part-time basis for up to 15 hours a week having carried out no checks at all. I do not believe that that is really what the hon. Gentleman wants. It would not be sensible to accept the amendment, nor amendment No. 9, which would effectively exempt overstayers from the illegal working provisions. To exempt overstayers would be a counter-productive step that would undermine the scheme. The hon. Gentleman may know that a high proportion of the people who are picked up during operations tend to be overstayers. The hon. Gentleman asked about enforcement. [Interruption.] He is chuntering away on the Opposition Front Bench about who will enforce the provision, and he has asked about robust documents. How about a national identity card? Has the hon. Gentleman considered that? That might be an easy way to ensure that employers could quickly verify whether or not the person had the right to work in the country. The hon. Gentleman might want to think about that before we conclude our deliberations.

Other, less crucial points have been raised and Members have been able to have their say. I note the support from Mr. Greenway for an amnesty for all illegal workers. I am not sure that that is the policy of the two contenders for the leadership of the Conservative party, but it is something that they might want to consider.

I took the point made by the hon. Member for Orkney and Shetland, principally in relation to amendment No. 16, which is about liability within a company, especially for the knowingly employing offence. If we accepted the amendment, that would weaken our position because we would have to revert to common law to try to ascertain who was ultimately liable. That would not be satisfactory. People in positions of responsibility within a company have to take responsibility to ensure that their house is in order. It would not be right to make the provisions vague so that people could have further room for manoeuvre to try to avoid their obligations.

I think that we should move on to the substantial matters that remain to be considered. I hope that the hon. Member for Woking will be encouraged by what I have said and persuaded to accept my position on amendment No. 10, which will enable us to move straight on to the other matters that are to come before the House.

Photo of Humfrey Malins Humfrey Malins Shadow Minister, (Assisted By Shadow Law Officers)

The Minister, typically, has been extremely soothing and courteous. I was nearly lulled into accepting much of what he said. I thank him warmly for accepting amendment No. 11. My concerns remain, however, and I think that concerns remain on behalf of businesses, and small businesses in particular. It is my judgment that the defence of reasonableness should appear in the Bill, notwithstanding the Minister's kind words. It is because we feel so strongly about this matter and the need to put the provision in the Bill that we will put the issue to the vote.

I beg to ask leave to withdraw amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 10, in page 6, line 40, leave out from "he" to end of line 41 and insert

'took reasonable steps to comply with any prescribed requirements in relation to the employment.'.—[Mr. Malins.]

Question put, That the amendment be made:—

The House divided: Ayes 223, Noes 274.

Division number 99

See full list of votes (From The Public Whip)

Question accordingly negatived.

Amendment made: No. 11, in page 7, line 10, leave out '14' and insert '28'.—[Mr. Malins.]