Immigration Bill — Committee (1st Day) (Continued)

– in the House of Lords at 5:26 pm on 18th January 2016.

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Clause 2: Labour market enforcement strategy

Amendments 6 to 8 not moved.

Amendment 9

Moved by Lord Ashton of Hyde

9: Clause 2, page 2, line 17, leave out “whose officers” and insert “whom, or by whose officers,”

Photo of Lord Ashton of Hyde Lord Ashton of Hyde Lord in Waiting (HM Household) (Whip) 5:46 pm, 18th January 2016

My Lords, before I turn to the amendments before us, it may be helpful to explain what the changes the Government are proposing will do to the Bill print. We have brought forward a number of amendments to Part 1. To avoid this becoming unwieldy, on reprint this will be split into two chapters. Chapter 1 will be entitled “Labour Market Enforcement” and will cover that topic, meaning what is currently Clauses 1 to 7 and the material in government amendments numbered between 9 and 77. Chapter 2 will start at what is now Clause 8 and will cover illegal working.

I have taken on board and listened to what was said in Committee on the Director of Labour Market Enforcement, and his role and resources, and the general points that have been made about these government amendments. In the light of what has been said, it now falls to me, in bringing these amendments forward, to explain the nature of the amendments which bring into being some of the issues we have talked about.

I will begin with those amendments that collectively better define the “labour market enforcement functions”,

“non-compliance in the labour market”,

and “labour market offence” that are within the scope of the labour market enforcement strategy that the director is required to create every year. Some of these are substantive, others are technical in nature, but they all go to the core of the purpose of the Director of Labour Market Enforcement and what should be covered by the annual labour market enforcement strategy.

Amendments 9 and 19 to 23 ensure that all the enforcement bodies’ functions contained in the Employment Agencies Act 1973, the National Minimum Wage Act 1998 and the Gangmasters (Licensing) Act 2004 are brought within the oversight of the director. Amendment 23 has two key purposes. First, it adds new functions of the Gangmasters and Labour Abuse Authority under Part 2 of the Modern Slavery Act 2015 to the list. As I hope noble Lords will know from our response to the consultation on Tackling Exploitation in the Labour Market, published on 12 January, and as we will cover when we reach later amendments, the Government wish the Gangmasters Licensing Authority to evolve into an authority that is able to tackle serious labour market exploitation across the economy. As part of this, we intend that the Gangmasters and Labour Abuse Authority will be able to enforce certain parts of the Modern Slavery Act 2015.

Secondly, Amendment 23 includes the investigation of breaches of the new labour market enforcement orders. As I hope noble Lords will be aware, we are bringing forward amendments to enable a new regime of labour market enforcement undertakings and orders. These will be used to tackle the most unscrupulous employers. I look forward to dealing with this in detail later today but, if it is the will of this House that these undertakings and orders should be added to the Bill, the Government want this regime to be firmly in the scope of the labour market enforcement strategy.

I turn to the abuses in the labour market that we want the director to help us tackle. It is the Government’s intention that the labour market enforcement strategy covers all types of non-compliance by business with the Employment Agencies Act 1973, the National Minimum Wage Act 1998 and the Gangmasters (Licensing) Act 2004, whether they are criminal offences or not. Amendments 16, 17 and 24 seek to better define in legislation the non-compliance that is not an offence but should be included. This is: non-payment of the national minimum wage where it does not meet the wilful criminal intention; failure to pay a notice of underpayment of national minimum wage; and breaching a Gangmasters and Labour Abuse Authority licence condition that results in withdrawal of a licence rather than a criminal prosecution.

The next set of amendments deals with the offences that will be included in the labour market enforcement strategy. The Bill already includes offences under the Employment Agencies Act 1973, the National Minimum Wage Act 1998 and the Gangmasters (Licensing) Act 2004—the three core pieces of legislation enforced by the three enforcement bodies—and offences in Part 1 of the Modern Slavery Act 2015. Amendment 26 excludes an offence from this core legislation that applies to enforcement officers rather than employers—the offence of improper disclosure of information collected by the enforcer. We think this is not best dealt with through the Director of Labour Market Enforcement but is covered by other mechanisms. Amendments 27 and 30 add to the scope of the labour market enforcement strategy the offence of breaching a slavery and trafficking prevention order where the action against the perpetrator was taken by the Gangmasters and Labour Abuse Authority. Amendment 27 also adds to the scope breaches of the new LME orders that the Government are proposing to create. Amendment 29 adds related offences, such as aiding and abetting, to the list.

The Government believe that this is a sensible remit for the Director of Labour Market Enforcement at this time. However, I draw noble Lords’ attention to the powers currently in the Bill which provide that the Government can add further labour market enforcement functions and labour market offences to the scope of the labour market enforcement strategy. Amendment 17 includes the ability for the Secretary of State to also add further non-compliance in the labour market by regulations. The Government believe it is appropriate for such extensions to be made by secondary legislation to enable us to act quickly if it becomes apparent that changes are required urgently. We believe that making these regulations subject to the negative procedure is the appropriate degree of parliamentary oversight. The power would allow the Government only to add labour market enforcement functions, non-compliance or offences already set out in legislation to the scope of the labour market enforcement strategy, not to create new categories of non-compliance or offences.

I turn to the more technical amendments. Amendment 15 removes the definition of “financial year” from Clause 2, which is now contained, along with other relevant definitions, in a new clause proposed in Amendment 62. Amendments 31, 61, 243 and 244 deal with the regulation-making powers under this Part. As I have said, we want the Secretary of State to have the ability to widen the remit of the Director of Labour Market Enforcement’s annual labour market enforcement strategy, should the nature of exploitation change in the future. This will make sure that the role stays relevant to prevent abuses in the labour market. Secondly, we want the Secretary of State to have the ability to confer extra functions on the Gangmasters and Labour Abuse Authority by regulations for the same reason: if there are new abuses in the labour market that we need the authority to be able to crack down on. The Government believe that the appropriate level of parliamentary scrutiny for these regulations is the negative procedure. This is because Parliament has approved the regimes and the Government are keeping them up to date. However, were any primary legislation to be amended as a consequence, we believe it is appropriate for the affirmative procedure to apply, as that merits a higher level of parliamentary scrutiny. Thirdly, the ability to add to the list of trigger offences would enable enforcement bodies to request an LME undertaking. Again, this will mean that our labour market enforcement can be flexible to changing non-compliance and criminality in the labour market. Lastly, the list of measures that can be included in an LME undertaking and an LME order are added to.

For these three regulation-making powers, we are proposing that the affirmative procedure should apply. This is because a breach of an LME order is a criminal offence, and we want that to be subject to appropriate scrutiny here and in the other place. In relation to the territorial extent of the regulations, Amendment 61 makes clear that the regulation-making powers can contain only devolved matters with the consent of the Ministers in the relevant devolved Administrations.

Finally, Amendment 246 changes the Long Title of the Bill to better reflect the functions which have been added since introduction. I beg to move.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

My Lords, my noble friend and I have one amendment in this group. It is an amendment to the Government’s Amendment 17, which allows other requirements to be added to the list of roles already set out, and other enactments to be added. The noble Lord said that this does not mean the creation of new offences: I accept and understand that. He also said that it will extend to “non-compliance in the labour market”. That is exactly what I am seeking—

Photo of Lord Ashton of Hyde Lord Ashton of Hyde Lord in Waiting (HM Household) (Whip)

I am sorry to interrupt. Could the noble Baroness tell me which amendment she is speaking to?

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

It is Amendment 18, which is an amendment to government Amendment 17. From the way in which the Minister introduced Amendment 17, I think that he was anticipating Amendment 18. He seemed to glance in my direction at the time as well.

The Minister said that the fourth paragraph of Amendment 17, regarding,

“failure to comply with any other requirement imposed by or under any enactment and which is prescribed by regulations”,

was to deal with other enactments which related to non-compliance in the labour market. My amendment seeks an assurance to exactly that effect: that the Secretary of State could not roam far and wide over the statute book by adding whatever enactment took his or her fancy under that paragraph. I realise, looking at Amendment 18 now, that my drafting is not completely correct—in other words, it is wrong. I have taken out too many words, but I am sure that the Minister and his officials will have understood what I was driving at.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Shadow Spokesperson (Housing), Opposition Whip (Lords), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Home Affairs) 6:00 pm, 18th January 2016

My Lords, the noble Lord, Lord Ashton of Hyde, explained that he was hoping to make things a bit easier for noble Lords with the reprinting. I welcome that and wish him well with it.

The amendments in this group are all government amendments, with the exception of Amendment 18, in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, which seeks to amend a government amendment. I am grateful to the noble Lord, Lord Ashton of Hyde, for explaining these amendments. One of the amendments refers to functions that were considered for inclusion. Can he help the Committee by saying what functions were considered and then not included? I would be interested to know that in relation to Amendments 16, 17 and 24.

I can see the value of being able to add further non-compliance matters by regulation. However, this should be by the affirmative and not the negative procedure, as proposed here. Such matters often benefit from a short debate in the Moses Room when additions are proposed. I think that many in the Committee would agree that this legislation is not to the same standard or quality as we saw with the Modern Slavery

Bill, for example. For that reason, if for no other, we should have the affirmative rather than the negative procedure.

It could be suggested that Amendments 19, 20, 21, 22 and 23 better define the labour market functions within the scope of the labour market enforcement strategy, by reference to specific legislation; I can see that point.

Government Amendments 243 and 244 both require the use of the affirmative procedures. That is welcome, but it contradicts the earlier decision to use the negative procedure, which I have referred to on this group. The last amendment, Amendment 246, would take out a reference to the Director of Labour Market Enforcement. Yes, that is fine, but I wonder whether the Government should perhaps have taken the whole thing out of the Bill and brought a separate Bill back.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

My Lords, I welcome the greater powers for the Gangmasters Licensing Authority, both in this group of amendments and in a later group. The authority has done extremely good work ever since its inception in legislation and I am delighted that there will in due course be powers for its officers to take steps under PACE. I appreciate that that provision is not in the present group, but I want to say that in case I am not here when that point comes up.

I want to put two points to the Minister. First, how far afield is he expecting the Gangmasters Licensing Authority to roam? In particular, does he have in mind either the hospitality or the construction industry, each of which should at some stage be under the control of that authority, or possibly this new director, in a way which is not covered at present? Secondly, if in fact the Gangmasters Licensing Authority is to have further powers, as it will, it is crucial that it has greater resources. That matter should be absolutely upfront because if its officers are allowed to become prevention officers—to be able to arrest and to do much more than they can at the moment—it really does not have sufficient resources to carry that out, let alone anything further that needs to be done.

Photo of Lord Ashton of Hyde Lord Ashton of Hyde Lord in Waiting (HM Household) (Whip)

My Lords, several noble Lords said right at the beginning of our debate that these government amendments came fairly late, but noble Lords on the opposition Benches are not the only ones to suffer from that. I will therefore have to ask the noble Baroness, Lady Hamwee, for her indulgence because I am afraid that her Amendment 18 was not contained within my speaking notes for this group. It is an amendment to our Amendment 17, but I do not have the details of how I should refute it with the power that I normally would. As my noble friend Lord Bates said right at the beginning, and as I think the noble Baroness mentioned, some of these issues may be revisited at times on Report—but I accept that that is not a very compelling argument tonight.

The noble Lord, Lord Kennedy, talked about negative and affirmative procedures. I have never known him to agree that we should have a negative procedure when we could have the affirmative. I do not want to repeat the reasons that I gave, but we have made a distinction between regulations that create new offences or affect primary legislation and those which merely deal with existing offences, where we still maintain that the negative procedure is correct.

The noble and learned Baroness, Lady Butler-Sloss, asked how far the remit of the Gangmasters Licensing Authority will roam in future. I cannot tell her that today, but I absolutely take on board her point. As I said in my opening remarks, we intend that the authority should evolve. That is the whole point of our changing the Gangmasters Licensing Authority to the new arrangements, and putting it under the remit of the Director of Labour Market Enforcement. The only thing we are likely to be concerned about—we have made this point before—is that it will be for labour market enforcement issues and not for other things. However, I take on board the noble and learned Baroness’s point on where it might evolve.

Of course, the Director of Labour Market Enforcement is required to outline a strategy. That is one of the things that we would expect him to do, having used the intelligence hub to work out where the efforts of his three enforcement agencies should best be employed. I also take on board that if we are expanding their role, there will be resource implications. My noble friend Lord Bates has already committed to write to noble Lords about the resource issue, so I would like to leave it there and ask that the amendments be accepted.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Shadow Spokesperson (Housing), Opposition Whip (Lords), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Home Affairs)

I assure the noble Lord that I would be very happy to agree to a negative procedure. I have nothing against that at all, but my concern here is that we have not had the greatest time today, with amendments arriving late. It is about my lack of confidence and the fear that we may be sitting back here in some weeks’ or months’ time with problems, only for us to say, “I told you so”.

Photo of Lord Ashton of Hyde Lord Ashton of Hyde Lord in Waiting (HM Household) (Whip)

I hear what the noble Lord says.

Amendment 9 agreed.

Amendments 10 and 11 not moved.

Amendment 12

Moved by Baroness Hamwee

12: Clause 2, page 2, line 26, at end insert—

“( ) Nothing in this section shall permit the alteration of a strategy of a person entitled to prepare a strategy under any labour market legislation (as defined in section 3).”

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

My Lords, Amendment 12, together with Amendments 14 and 38, is in my name and that of my noble friend Lord Paddick. The first of these amendments again goes to the relationship between the new director and the other bodies which the Bill concerns, in particular the Gangmasters Licensing Authority. The Bill provides for a strategy to be prepared by the director. Amendment 12 is probing in the sense that I am not sure whether the language is quite right, but the point is clear enough. It would provide that anyone else who is entitled to prepare a labour market legislation strategy under that legislation gets to keep it, so that their strategy cannot just be altered by some diktat from the director. Of course, in real life, one hopes there would be consultation and discussion.

As we have heard from several noble Lords this afternoon, most recently the noble and learned Baroness, Lady Butler-Sloss, the GLA is a successful body. It has a board and it publishes a strategy. Which strategy takes precedence? In particular, what is the function of the GLA board under the new regime if a strategy is to be handed down by the director? It is important to know how the Government envisage that this will work. We start at the top of the tree with two Secretaries of State, who will have to sort out what was described earlier as “an envelope”. Then there is some sort of trickle-down arrangement. The Government must have thought about how the relative powers and the working arrangements would operate. It is not going to be that easy.

My other amendments are rather to the same point. Amendment 14 is about whether or not the other bodies should be bound by what the director provides. These amendments came before the Government’s mega-tranche of amendments last week. Again, I want to probe the relationship between the various strategies and whether Clause 2(6) affects the GLA board. It refers to:

“Any person by whom labour market enforcement functions are exercisable”.

Is the GLA a “person” for this purpose? Clause 2(6) refers to Labour market enforcement functions being carried out by enforcement officers, not by the employing authority

The last amendment in the group, Amendment 38, is on Clause 6, which provides that the director must set up what is referred to as an “information hub”. The GLA has an information hub. Is that to be superseded? Again, it raises the question of resources. Something like a hub does not just come naturally by shoving some pieces of paper into a file. One thing that will have to be addressed is the funding of the IT infrastructure. Who is to manage the hub? As I said, the Government’s new proposals were published after these amendments were tabled, so they have been rather overtaken—or possibly had their significance magnified—by the new proposals.

This morning on the “Today” programme, the Prime Minister talked, I think in the context of the police, about a country whose Government rely on independent institutions. He said something like, “Independent institutions should be able to exercise independent judgments”. That rather neatly encapsulates the quandary that I find myself in when trying to understand who will be able to be independent within this new regime. I beg to move.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

My Lords, I share the concerns of the noble Baroness, Lady Hamwee, in relation to Amendment 12. As I said on the earlier amendments, and as agreed by everyone in the House, the Gangmasters Licensing Authority has gained a great deal of expertise and is working extremely efficiently. The concern that I share and would like to ask the Minister about is whether the director is going to give the Gangmasters Licensing Authority a free rein to continue the good work it is doing. Is there not a danger it may be controlled by strategies set out by someone who does not have the same expertise as Paul Broadbent and his team? I would be very worried about putting the director over the Gangmasters Licensing Authority without clear instructions that his strategy must be very broad and that he should let the authority get on with the work it has done so well. It would not do it so well if it was confined by any sort of strategy that posed unnecessary restrictions on the work of Paul Broadbent and his team.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Shadow Spokesperson (Housing), Opposition Whip (Lords), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Home Affairs) 6:15 pm, 18th January 2016

My Lords, Amendment 12, moved by the noble Baroness, Lady Hamwee, puts in the Bill a new clause that puts beyond doubt that this part of the Bill cannot be used to permit the alteration of a strategy of a person entitled to prepare a labour market enforcement strategy paper. This is a sensible addition to the Bill and one that I hope the Minister—whether it is the noble Lord, Lord Bates, or the noble Lord, Lord Ashton, who responds—will be able to support, or at least agree to look at carefully and perhaps bring something back on Report.

I am not sure that Amendment 14, also proposed by the noble Baroness, Lady Hamwee, would bring much to the clause, although I am not against it in principle. Amendment 38 makes it optional for the Director of Labour Market Enforcement to,

“gather, store, process, analyse and disseminate information”.

I have given thought to the amendment and listened to the reasoning behind it. In fact, it may be quite useful to have this information, but the noble Baroness made some excellent points about resources and the useful work already done by the Gangmasters Licensing Authority.

Photo of Lord Bates Lord Bates The Minister of State, Home Department

My Lords, I thank the noble Baroness, Lady Hamwee, for giving us the opportunity to discuss this important area further and to look at the production of an evidence-based, annual labour market enforcement strategy as a key part of the role of the Director of Labour Market Enforcement. By following a single, overarching strategy with a shared view of risk, enforcement will be better co-ordinated and more effective.

A real concern was expressed during the consultation exercise on labour market enforcement, which has been referred to. The Government have of course responded to that, giving rise to the amendments referred to earlier. In many ways, this touches on the point raised by the noble and learned Baroness, Lady Butler-Sloss. In terms of responsibility for strategy, the Gangmasters Licensing Authority currently reports up to the Home Secretary. Initially, it was I think part of Defra, but it was moved across to the Home Office because we felt that that was a more logical place for it to sit, particularly in the light of the introduction of the Modern Slavery Act. So the authority refers up to the Home Secretary, while the HMRC national minimum wage team feeds up its strategy to the Secretary of State for Business, Innovation and Skills, as does the Employment Agency’s standards inspectorate. So at the moment there are two different reporting lines. The proposal is that, rather than effectively having two separate reporting structures, there is an initial feed-in to the Director of Labour Market Enforcement, who then reports to the joint Secretaries of State. That may in fact result in fewer problems.

Amendments 12 and 14 appear to limit the director’s proposed role by not permitting his strategy to alter the strategies set out by any of the other enforcement bodies or by not binding the enforcement bodies to delivering the director’s strategy. The director’s strategy is not intended to undermine or take precedence over the enforcement bodies’ strategies; rather, we expect those strategies to be informed by the director’s strategy as they contribute to tackling labour market exploitation.

The GLA board will continue to be responsible for delivery of the GLA’s functions. What will change is that the delivery of those functions will sit within a wider vision of tackling labour market exploitation, an issue I will address in due course. The Government’s amendments will add the functions of the GLA board to the list of labour market enforcement functions. Furthermore, the GLA board will have a duty to exercise its functions in accordance with the director’s strategy. We believe that this will ensure that the enforcement bodies and the director can work together more effectively.

Amendment 38 brings me to the intelligence hub. Clause 6 as drafted gives the new director the duty to lead an intelligence hub that forms a coherent view of the nature and extent of exploitation and non-compliance in the labour market—something that the consultation and the Committee have accepted as being absolutely necessary. The director will use the information gathered to formulate the annual strategy for labour market enforcement. It is essential that the director have the power to gather information from those involved in labour market enforcement to enable them to set the annual strategy. Without this, the strategy will not be evidence-based and will therefore be unable to improve the effectiveness and co-ordination of enforcement, which is our objective. If the duty on the director to gather information was removed from Clause 6, that would lead to a different role than the Government have committed to creating.

To enable the intelligence hub to work, we intend to create a statutory framework to enable information and intelligence to be shared appropriately, with the necessary safeguards. We will bring forward amendments at Report to achieve this. I reassure noble Lords that the new intelligence hub will not replace existing information-gathering arrangements in the individual enforcement bodies, which I know was a point of concern. They will continue to gather and analyse their own data in order to plan their own operational activity. This will then be fed into the new intelligence hub and the director’s strategic plan, providing an up-to-date picture of areas where workers are at risk of abuse. However, the director’s intelligence hub will be wider. It is important that the director have the power to exchange data and intelligence with other enforcement bodies whose legislation is often breached by the same rogue businesses.

I also reassure noble Lords that we are in the process of identifying what resources, including IT infrastructure, will be required to enable the new information hub to be effective, and that the Government recognise this is just as important as creating the statutory framework. I hope my explanation will be helpful to the noble Baroness and that she may therefore feel able to withdraw her amendments.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

I wonder if I could just come back. I am not so concerned with Amendment 12. I am much more concerned with what lies behind it. My particular concern is that a new director who organises strategy should not be organising a strategy of the Gangmasters Licensing Authority, which knows much more about it than he does. Therefore, this new director of strategy needs to have a light touch when he deals with an established organisation that has been doing very good work with a lot of successful prosecutions. I have not had that assurance from the Minister.

Photo of Lord Bates Lord Bates The Minister of State, Home Department

I will try to be a bit more helpful if I can. I totally share the view of the noble and learned Baroness that the Gangmasters Licensing Authority is doing an outstanding job in its present field. That is one reason why we are increasing its powers. It is a recognition that it is an effective organisation and we want to make it even more effective. It is unthinkable that someone could come into this role—co-ordinating and sharpening the overall strategy of labour enforcement—who would not embrace the strategy already in place of such an effective organisation as the Gangmasters Licensing Authority.

Clause 7 prevents the director exercising functions or making recommendations in relation to individual cases. Decisions about sanctions to be taken against businesses are a matter for the enforcement bodies, which will remain operationally independent. However, the director may consider individual cases when examining the general issue during the exercise of his or her functions. I know that that relates to a previous comment, not to the comment just made. None the less, I hope that those additional reassurances—that the labour market enforcement director is building on strategies, ensuring that they are coherent and joined-up, and in doing so is absorbing best practice from a wider range of organisations involved in enforcement—will be welcomed. If so, the noble Baroness might feel these amendments are not necessary at this stage.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

The noble and learned Baroness expresses my view precisely. I am not particularly concerned with the specific amendments; they were probing amendments. I might enlist her help in drafting something for the next stage. I am not sure—I may have missed it, in which case apologies—whether my question about whether the GLA board was a person for the purposes of Clause 2(6) was addressed, but perhaps that can come later. The board will exercise functions—essentially functions to the director’s priorities. In other words, the GLA board’s role is going to be changed. That is a serious issue for the individuals who will have taken one set of skills to the board and will not be expecting to get involved in something which is essentially more operational.

We are all struggling a bit to articulate the arrangements that we are concerned about and what we think should be in place. That is perhaps because it is quite easy to draw some sort of diagram—an organigram—on a page showing the relationships, but that is not necessarily what real life is like. I am afraid that the intelligence hub does not reassure me at all, because it sounds like two lots of overlapping expenditure, if not complete duplication. That may be something that I return to. The nub of all this is the relationship. I hope that I can find a more felicitous way of addressing this at the next stage, but it has to remain on the agenda. For now I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

Amendments 13 and 14 not moved.

Amendment 15

Moved by Lord Bates

15: Clause 2, page 2, line 35, leave out subsection (7)

Amendment 15 agreed.

Clause 2, as amended, agreed.

Clause 3: Non-compliance in the labour market etc: interpretation

Amendment 16

Moved by Lord Bates

16: Clause 3, page 2, line 40, leave out paragraph (a)

Amendment 16 agreed.

Amendment 17

Moved by Lord Bates

17: Clause 3, page 2, line 41, at end insert—

“( ) failure to comply with the requirement under section 1 of the National Minimum Wage Act 1998 (workers to be paid at least national minimum wage);

( ) failure to pay any financial penalty required to be paid by a notice of underpayment served under section 19 of that Act (see section 19A of that Act);

( ) breach of a condition of a licence granted under section 7 of the Gangmasters (Licensing) Act 2004;

( ) failure to comply with any other requirement imposed by or under any enactment and which is prescribed by regulations made by the Secretary of State.”

Amendment 18 (to Amendment 17) not moved.

Amendment 17 agreed.

Amendments 19 to 24

Moved by Lord Bates

19: Clause 3, page 2, line 45, leave out from “officer” to end of line 46 and insert “acting for the purposes of that Act (see section 8A of that Act),”

20: Clause 3, page 3, line 2, leave out from “1998 (” to second “of” in line 3 and insert “see section 13”

21: Clause 3, page 3, line 3, at end insert—

“( ) any function of the Gangmasters and Labour Abuse Authority conferred by section 1(2)(a) to (c) of the Gangmasters (Licensing) Act 2004,”

22: Clause 3, page 3, line 4, leave out from “officer” to “of” in line 6 and insert “or a compliance officer acting for the purposes of that Act (see section 15”

23: Clause 3, page 3, line 6, after “Act),” insert—

“( ) any function of the Gangmasters and Labour Abuse Authority under Part 2 of the Modern Slavery Act 2015 (slavery and trafficking prevention orders etc),

( ) any function of an officer of that Authority acting for the purposes of Part 1 or 2 of that Act (see sections 11A and 30A of that Act),

( ) any function an officer has by virtue of section (Investigative functions),”

24: Clause 3, page 3, line 9, leave out subsection (3)

Amendments 19 to 24 agreed.

Amendment 25 not moved.

Amendments 26 and 27

Moved by Lord Bates

26: Clause 3, page 3, line 16, at end insert “other than one under section 9(4)(b) of that Act”

27: Clause 3, page 3, line 24, at end insert—

“( ) an offence under section 30(1) or (2) of that Act which is committed in relation to—

(i) an order which was made on the application of the Gangmasters and Labour Abuse Authority, or

(ii) an order which was made under section 14 of that Act and which falls within subsection (4A) below;

( ) an offence under section (Offence);”

Amendments 26 and 27 agreed.

Amendment 28 not moved.

Amendments 29 to 31

Moved by Lord Bates

29: Clause 3, page 3, line 26, at end insert—

“( ) an offence of attempting or conspiring to commit an offence mentioned in paragraphs (a) to (f);

( ) an offence under Part 2 of the Serious Crime Act 2007 in relation to an offence so mentioned;

( ) an offence of inciting a person to commit an offence so mentioned;

( ) an offence of aiding, abetting, counselling or procuring the commission of an offence so mentioned.”

30: Clause 3, page 3, line 26, at end insert—

“(4A) An order made under section 14 of the Modern Slavery Act 2015 falls within this subsection if—

(a) the order was made following the conviction of the defendant of an offence mentioned in subsection (4)(d) or (e), and

(b) the prosecution resulted from an investigation conducted by a labour abuse prevention officer (within the meaning of section 114B of the Police and Criminal Evidence Act 1984).”

31: Clause 3, page 3, line 27, leave out subsection (5)

Amendments 29 to 31 agreed.

Amendments 32 to 35 not moved.

Clause 3, as amended, agreed.

Clause 4: Annual and other reports

Amendment 36 not moved.

Clause 4 agreed.

Clause 5: Publication of strategy and reports

Amendment 37 not moved.

Clause 5 agreed.

Clause 6: Information hub

Amendment 38 not moved.

Clause 6 agreed.

Clause 7 agreed.

Amendment 39

Moved by Lord Bates

39: After Clause 7, insert the following new Clause—

“Gangmasters and Labour Abuse Authority

Renaming of Gangmasters Licensing Authority

(1) The Gangmasters Licensing Authority is renamed the Gangmasters and Labour Abuse Authority.

(2) In any enactment passed before the day on which this section comes into force, and in any instrument or other document made before that day, references to the Gangmasters Licensing Authority are to be read, in relation to any time on or after that day, as references to the Gangmasters and Labour Abuse Authority.”

Photo of Lord Bates Lord Bates The Minister of State, Home Department 6:30 pm, 18th January 2016

My Lords, I shall speak also to Amendment 40 to 42, 60, 73, 77 and 214. I will allow the sponsors of Amendments 71 and 245 to speak to them.

Government Amendment 39 will rename the GLA the Gangmasters and Labour Abuse Authority, reflecting the transformation of its role. Amendment 40 relates to a new schedule, inserted by Amendment 73, enabling the GLAA to investigate labour market exploitation through investigative powers for our proposed new offence and the labour market offences contained in Clause 3. Government Amendment 41 enables GLAA officers to exercise police-style powers when investigating labour market offences, ensuring prompt action to tackle criminal behaviour. Officers will undergo necessary training, meeting College of Policing standards, to exercise these powers.

Other noble Lords will speak to Amendments 41A to 41D. Government Amendment 42 introduces a power for the GLAA to request assistance from the National Crime Agency, the police and immigration enforcement, who will have a similar right to ask the GLAA for assistance. Other bodies can be added by order.

Government Amendments 60 and 77 make consequential amendments reflecting the GLA’s change of name, adding the director to certain legislation, such as the Freedom of Information Act, introducing IPCC oversight for the exercise of PACE powers and retaining the current GLA regime in Northern Ireland.

I will deal with the other amendments in this group when they have been spoken to by other noble Lords. I beg to move.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

My Lords, earlier today a number of noble Lords referred to their misgivings about the changes being made to the Gangmasters Licensing Authority. During the passage of the modern-day slavery and human trafficking legislation, I moved amendments on the GLA and queried its ability to meet its obligations because of the resources made available to it—a point referred to earlier by my noble and learned friend and by other Members of your Lordships’ House during our earlier debates. During the passage of that legislation, I moved amendments to enable the GLA to utilise assets from the proceeds of the crimes that it had investigated. In doing so, I reminded the House of the events which led to the genesis of the GLA, notably the 23 Chinese men and women who drowned in Morecambe bay after their Liverpool gangmasters took them to undertake cockle picking. At the time, a local fisherman, Harold Benson, described the tragedy as not only awful beyond words but absolutely avoidable.

In December 2014, during the passage of the legislation on modern-day slavery, I told the House that the lessons of Morecambe bay had not been fully learned. I described a similar incident in the Ribble estuary in which 17 cockle pickers of eastern European origin had been snatched to safety. In those debates, I cited the small number of personnel employed by the GLA, the cut, which I referred to earlier, of around 17% in the GLA’s budget between 2011 and 2014, the small number of convictions—just seven—and the research by the University of Durham calling for the mandate of the GLA to be extended. Instead of seeing an expansion of the GLA’s remit in order to prevent labour exploitation, there are genuine fears that the Government’s amendments that we are considering represent a severe threat to the GLA, with changes to its role, remit and name resulting in a greatly weakened licensing labour inspection regime. If this comes to pass, it would inevitably allow new labour abuses, such as those I have just described, to abound.

The main issue revolves around the creation of what has been described as flexible licensing standards without a requirement for affirmative procedures. Government Amendment 77 to omit the requirement for the GLA to make rules by statutory instrument in effect means that the GLA has power to amend licensing standards and must—this is changed from “may” in the original GLA Act—seek approval of the Secretary of State, but not Parliament. The Secretary of State still retains the power she always has had under Section 6(2) of the Gangmasters (Licensing) Act to remove by negative procedure certain circumstances in which labour providers do not require a licence.

In summary, these amendments, taken with existing powers, mean that the Secretary of State could greatly reduce by negative procedure the number of labour providers licensed in a GLA sector, as suggested by the recent consultation response, and could greatly reduce the licence standards to be applied to those who are licensed with no requirement for any statutory instrument. This appears to be what the Government mean when they talk about flexible licensing, which was put forward in the consultation and supported by just 19%—less than one in five—of the respondents.

The Delegated Powers and Regulatory Reform Committee published a report on the new government amendments only last Friday and found that these new powers to change rules without parliamentary approval are inappropriate and therefore should be removed from the Bill. Focus on Labour Exploitation states that,

“the GLA is a first line of defence against the labour abuses that develop into severe exploitation and modern slavery. We are extremely concerned that a new ‘flexible’ licensing regime as proposed in these amendments will leave the GLA powerless to prevent widespread abuses and therefore exploitation and instead caught up in police style investigations that absorb a huge amount of time and resources”.

In our debate on the Modern Slavery Act, the noble Baroness, Lady Garden of Frognal, answering for the Government said:

“We need to consider this carefully and ensure that in seeking to broaden the GLA’s remit, we do not undermine the good work that is being done already”.—[Hansard, 10/12/14; col. 1879.]

I entirely concur with that sentiment. We must be very careful indeed not to do precisely that.

The noble Baroness also said:

“The GLA is working with the University of Derby to devise training and to develop an anti-slavery training academy for use by supply chain businesses. This will build on the GLA’s excellent existing collaboration with business in its regulated sectors. The GLA is well placed to tackle the serious worker exploitation that lies between the more technical compliance offences that fall to be investigated by HMRC and the serious and organised crimes that are addressed by the National Crime Agency”.—[Hansard, 10/12/14; cols. 1880-81.]

Presuming that this is the aim of today’s amendments, what are the resource implications? This point was made earlier by my noble and learned friend and other Members of your Lordships’ House. Without the necessary resources, how on earth will this agency be able to do these things? Clearly the Government envisage an expanded role. This will include police-style investigations and powers for offences across the labour market. Alongside this is the proposal to have a more flexible approach to licensing.

The Minister needs to be clear about whether the aim of the amendments published on the very day that the consultation concluded—which hardly demonstrates that there was a long period of reflection—is to remove strict compliance obligations from those businesses which have been compliant hitherto or whether it is to give the GLA more teeth. I wonder what the Minister makes of the minimal support which the flexibility proposal received from the respondents—just 19% out of a total of, I think, 93 respondents to the consultation, who came from academia, charities, trades unions and industry.

Existing GLA licence standards are crafted to give strong protection against exploitation. That includes issues such as working hours, pay, accommodation and safe transport. Clearly, flexible licensing should not mean a reduction in licensing. This must not become a sort of trade-off between licensing as a means of raising labour standards and preventing exploitation and a more flexible approach that could divert time and resources to tackling extreme cases instead. That in turn would create a climate in which rogue gangmasters could flourish and undermine the excellent intentions of the legislation we passed on human trafficking and exploitation of people as modern-day slaves.

Furthermore, the amendment removes a requirement for the GLA to make rules by negative procedure—a point made earlier by the noble Lord, Lord Kennedy, when we were dealing with the earlier amendments. In effect this will mean that the GLA would have the power to amend licensing standards and must seek the approval only of the Secretary of State and not of this House or the other place. The Secretary of State still retains, and always has had, the power to remove certain categories of labour providers requiring a licence by negative procedure. These amendments mean that the licence standards to be applied to labour providers in a given sector could be significantly reduced or expanded without parliamentary scrutiny. Unless Parliament is engaged in the shaping of licence standards, changes could be made without a clear evidential basis and without proper and full consultation with all stakeholders with expertise in labour sector licensing requirements. GLA licensing rules should not be changed without detailed impact assessments, including worker consultation, which might assure Parliament that any changes would not negatively impact upon the vulnerable workers whom they are designed to protect.

In conclusion, when the modern-day anti-slavery legislation was enacted, it had the benefit of pre-legislative scrutiny and of the forensic examination by both Houses. That is not the case with what is before us today. We would be wrong to treat this avalanche of amendments lightly or to be pushed pell-mell into approving them in haste.

Photo of Lord Lea of Crondall Lord Lea of Crondall Labour

I, too, want more clarity on the same issue that we have been discussing for the past half hour or so. I refer to the new Schedule, on page 32 of the Marshalled List. Why is some of this necessary? At the bottom of that page, the proposed new subsection states:

“The body known as the Gangmasters Licensing Authority is to continue to exist”— that is very nice—

“and is to be known as the Gangmasters and Labour Abuse Authority”.

Given that the word “Licensing” is disappearing, does that arise in respect of the present functions of the Gangmasters Licensing Authority simply because those are being subsumed in the wider exercise that is mentioned the bottom of the page, where it says,

“the Authority and its officers must carry out those functions in accordance with the strategy”,

which is the wider strategy? The more I think about it, the more I cannot quite believe that this will do anything other than restrict some of the present functions of the Gangmasters Licensing Authority. Therefore, at the foot of page 32 instead of just saying “continue to exist”, which, as I say, is very nice—a pat on the head, so jolly good—why could we not say “and its functions continue to exist”? Could the Minister clarify why that is not the case?

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport) 6:45 pm, 18th January 2016

I thank the Minister for introducing the government amendments in this group, which set out the Government’s proposals for the new Gangmasters and Labour Abuse Authority. We also have an amendment in this group calling for the Secretary of State to undertake a review of the existing, highly successful and effective Gangmasters Licensing Authority, with a view to extending its remit to enforce labour standards and protection wherever it is believed abuse and exploitation of workers may be taking place.

The Delegated Powers and Regulatory Reform Committee, as the Minister has said, has already expressed its views, through the use of an exclamation mark, on the number of last-minute amendments the Government have submitted. In its speedily produced report on those amendments—for which we are, I am sure, all very grateful—the committee made a number of recommendations relating to the latest tranche of government amendments. It would be helpful if the Minister could say whether the Government intend to adopt those latest recommendations and will therefore be bringing forward appropriate amendments as necessary. It would be very helpful to know what the Government’s position is on that point.

The Gangmasters Licensing Authority, as has already been said, was set up in the aftermath of the Morecambe Bay tragedy in 2004, when 23 Chinese cockle pickers drowned while working there. In the past two years, the GLA has prevented the exploitation of over 5,000 workers. The question that has to be asked, in the light of the changes proposed by the Government and the setting up of a new Gangmasters and Labour Abuse Authority, is whether these changes will address the problem of labour exploitation and abuse across the board, or will the effect be to extend across a broader front a watered-down and less effective version of the current Gangmasters Licensing Authority? If that is the case, this would do little to help eradicate labour exploitation or abuse or, equally significantly, do little to encourage those being abused to come forward.

According to the Association of Labour Providers, which conducts a survey of Gangmasters Licensing Authority licence holders once every two years, this year—as I think the noble Baroness, Lady Hamwee, said earlier—93% of licence holders said they were in favour of licensing, 73% perceived the Gangmasters Licensing Authority to be doing a good job and 67% deemed the Gangmasters Licensing Authority to have contributed to a significantly or slightly improved level-playing field. The point about regulation and achieving a level playing field is important because, as the chairman of the Migration Advisory Committee told the Public Bill Committee in the Commons,

“It takes away the cowboys … and the people who do the undercutting”.—[Official Report, Commons, Immigration Bill Committee, 20/10/15; col. 20.]

The proposed new or revamped authority, the Gangmasters and Labour Abuse Authority, will have the power to enforce the National Minimum Wage Act 1998, the Employment Agencies Act 1973 and relevant parts of the Modern Slavery Act of last year across the entire labour market. It will also engage in criminal investigation and enforcement. The setting up of the Gangmasters and Labour Abuse Authority, as the changed name suggests, will also lead to a move towards what the Government are describing as,

“a more flexible approach to licensing”.

Before putting forward their proposals on the proposed Gangmasters and Labour Abuse Authority, the Government conducted a consultation on tackling exploitation in the labour market. In the part of the questionnaire on licensing, the Government asked respondents to say whether they agreed that the Government,

“should introduce a more flexible approach to licensing, based on a risk assessment, judged on a sector by sector basis and agreed by Ministers and Parliament”.

Since, as the noble Lord, Lord Alton, has already pointed out, almost twice as many respondents answered no to that question as answered yes, it looks, frankly, as though the Government had already made up their minds on the issue of flexible licensing before the consultation started. Otherwise, what was the point of the consultation when almost twice as many respondents answered no to that particular question?

Unscrupulous gangmasters can of course also be flexible and simply move to a sector where the proposed flexibility of the licensing arrangements may enable them to carry on their exploitation and abuse in the labour market. What firm assurances can the Government give that this would not happen under a “flexible approach” to licensing? Can the Minister give an assurance that flexible licensing does not mean a reduction in licensing? I suspect that he cannot give such an assurance. If it means a reduction, that could threaten efforts in the Modern Slavery Act to protect vulnerable workers from exploitation and to reduce cases of modern slavery. Will the Minister also confirm that there will be no shift away from licensing towards voluntary schemes? Witnesses before the Bill Committee in the Commons were clear that the enforcement of labour standards across the board is the only way to level the playing field.

The issue raised most frequently by respondents to the consultation related to resources, and comments have already been made on this issue. Having sufficient resources attached to ensure that the new authority had the ability to match its mission was a recurring theme, and overall respondents were clear that any reforms would need to be sufficiently resourced and enforced. No doubt this clear response was in part conditioned by the fact that labour inspection authorities have seen steep declines in their budgets over the past five years, including a cut of more than 20% to the Gangmasters Licensing Authority. Not only will the GLA, in its changed role, see its remit extended to the whole labour market but it will receive new criminal powers of investigation and enforcement that could require significant resources which, if not provided, could then distract from core licensing and monitoring functions.

However, although this was the most frequently raised issue in the consultation, the Government failed to address it in any meaningful way in their response. Instead, there is a suggestion that the Director of Labour Market Enforcement will help to pool resources between labour inspection authorities. Given the existing budgets on which they operate, though, such pooling could not ensure that the proposed increase in workload was adequately funded. I ask the Minister to tell us, either now or well before Report, in the letter that he earlier undertook to send on resources, what the Government’s estimate is of the resources that will be needed by the new bodies that they are creating under the Bill, including, importantly, the new Gangmasters and Labour Abuse Authority, to undertake the role and remit that they are being given in future under the terms of the Bill—a role and remit that, in many cases, are extended over those that currently apply. Presumably, the Government do not set up new statutory bodies or organisations with defined roles and powers without having a view on the resources that will be needed to enable the remit to be carried out, and the powers given to be effectively applied and enforced.

We have also expressed concerns, in the discussions on previous amendments, about the relationship between labour standards enforcement authorities and the immigration authorities. There is a reference in one of the Government’s new clauses to the new Gangmasters and Labour Abuse Authority having a working relationship with immigration officials and,

“any other person prescribed or of a prescribed description”,

over requests for assistance. Since there is evidence that, the greater the overlap between labour inspection and immigration control, the less likely victims of exploitation are to come forward for identification, could the Minister spell out in some detail what the parameters will be of the working relationship, set out in the Bill, with immigration officials and others undefined, to which I have referred?

The Bill’s provisions also bind officers from, now, the Gangmasters Licensing Authority and, in future, the Gangmasters and Labour Abuse Authority to the provisions of the Director of Labour Market Enforcement’s strategy. The noble and learned Baroness, Lady Butler-Sloss, has already expressed her reservations about that. Why do the Government believe—I ask this despite the previous explanation that the Minister gave—that this is necessary, as opposed to requiring the GLA, and, in future, the GLAA, to have regard to the director’s strategy? What difficulty do the Government see arising if the primary functions and overall strategy of the GLA and GLAA are set by their own board after having regard to the director’s strategy? What is it that the Director of Labour Market Enforcement could conceivably require the GLA to do that that body might not want to do, and thus appear to justify the Government’s proposal that it will be bound by the provisions of the Director of Labour Market Enforcement’s strategy? I hope that the Minister will respond in some detail on that point.

I hope that I am not abusing my ability to speak on this group, but I also invite the Minister to respond, under this group or in the letter that he earlier undertook to send, to a question that I asked in an earlier group about the protections given under the Bill to workers irrespective of immigration status, and what role the Director of Labour Market Enforcement and the agencies that he or she will oversee, including the new GLAA, will play in addressing labour exploitation and abuse in the workplaces of those who do not have the required immigration status to be in this country.

As always, I will listen with interest to the response of the Minister, who I hope will be able to reply, either now or prior to Report, to the points made in response to the Government’s proposals, including the latest batch of amendments following their consultation on labour market exploitation.

Photo of Baroness Donaghy Baroness Donaghy Chair, Information Committee (Lords)

My Lords, as the Minister will know, I am a refugee from the employment relations world and the language of immigration is not familiar to me. I know that the Minister himself has a lot of personal experience of employment relations so I hope he will understand that, in supporting my noble friend’s amendment, I have real concerns about why these issues have come up under an Immigration Bill at all. Obviously, I must not be self-indulgent and make a Second Reading speech at this stage, but I echo what has been said that, if this is associated with immigration matters then reporting by vulnerable workers will be even less likely, and that is a matter of some concern.

My other concern is that vulnerable workers can also be British-born. We have heard a lot about how some adults with special needs have been housed in tin shacks and exploited horribly. When I produced a report for the previous Labour Government on construction fatalities, I identified that there were also vulnerable groups of workers who were British-born: the very young, who would not necessarily challenge the authority of their employer, and—how shall I put it?—the quite mature, who were perhaps reaching the end of their working life in construction and thought that they knew rather more about it than they actually did, or perhaps were not familiar with a piece of machinery. So I would regret it if this were seen entirely as an issue of immigrant and migrant labour. Because of where it has appeared in the legislation, there is a danger that that could happen.

I take some comfort from the fact that the consultation exercise was shared between the Home Office and BIS. I look for an assurance from the Minister that BIS will have a very full role to play so that the employment relations aspect of all this—the labour market issues as I know them—rather than immigration issues, will be fully taken into consideration.

Perhaps I may underline that, when I looked at this issue, I recommended that the Gangmasters Licensing Authority should cover construction. That was seven years ago, so things have changed without all the changes the Government are recommending. In a way, I am rather glad that the powers are being extended, but it is a question of being careful what you wish for. I have a real worry that this tidy little hierarchy, which looks as if it is going to be based in the Home Office, is going to be a dissipated power and there are going to be a lot of misunderstandings about the role of the new authority.

In the year that I studied for the report, there was a lot of discussion because about 12 migrant workers had been killed in the construction industry. Some would say they were the most vulnerable because they were used to tolerating lower standards of health and safety or they were exploited or there was a language barrier that prevented effective communication. I have to say there was no real data to show this. Equally, I saw that many migrants were skilled and experienced and worked in regular groups. They were attracted to the industry, which liked their work ethic, and they were paid the agreed industry rates. Some questioned the competence of migrant skilled workers and said their qualifications were not comparable, but there was no evidence to prove that.

I agree with what my noble friend Lord Rosser has said. Can the Minister assure us that the real labour relations issues will not be neglected here and that the good work of the Gangmasters Licensing Authority will not be dissipated in any way? We should remember that this is not just an immigration issue; it concerns vulnerable workers of all kinds.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat 7:00 pm, 18th January 2016

My Lords, the very fact that the noble Baroness raises this issue coming—and I do not say this at all disparagingly—rather fresher to this Bill than some of us underlines the need to get the answers to questions raised around the Committee on to the record and in such as a place as they can easily be found. It should not just be in a letter in the Library but in the Bill. That becomes all the more obvious. I am glad that the noble Baroness reinforced that. Other references have been made to the report of the Delegated Powers and Regulatory Reform Committee and to flexible licensing, so I will not take the time of the Committee now.

I have a number of amendments in this group. This may be the point at which I emulate the Government Front Bench as I am in danger of losing my place—I hope they will forgive me if I do. My Amendment 40A refers to the importance of resources by providing that the new functions conferred by regulation on the GLAA should be ones for which resources have been made available.

My amendments to Amendment 41 raise some similar points which I will refer to later, so I will deal with them in a rather more general fashion. The first is a probing amendment. Amendment 41 proposes new Section 114B for the Police and Criminal Evidence Act and says that,

“regulations may apply provisions of this Act with any modifications”.

Does that refer to modifications that are necessary simply in order to tweak references to legislation; for instance, so that the legislation being modified applies quite clearly directly or is it something wider? As it is written at the moment I fear it might be wider, which is why I have raised the issue.

I also suggest that regulations should,

“provide for labour abuse prevention officers to undertake specified training and achieve specified qualifications”.

The noble and learned Baroness referred earlier to the extension of PACE powers. One should not extend those significant powers to people who do not know how to use them. Training is needed and possibly qualifications for them to be able to use those powers. I picked that up at a number of points. I also suggest with my amendments that a statutory instrument amending or repealing a provision of the Act is significant.

In new Section 22A of the Gangmasters (Licensing) Act 2004, to which the noble Lord, Lord Rosser, referred, a relevant person for the purposes of requests for assistance going either way includes immigration officers. That again conflates immigration control and labour market regulation. I am aware that the GLA has experienced some frustrations when it might undertake what you might call hot pursuit when it has discovered a likely offence but does not have the power to deal with it. I have heard Paul Broadbent say that it is very frustrating when you have to wait for the police to arrive to deal with something and you cannot stop evidence being removed. I am not sure whether I am making that point at quite the right point in the Bill but I think it comes generally within this area.

My next group of amendments deals very much with training, qualifications and resources again so I will not repeat the arguments, but I think it was again the noble Lord, Lord Rosser, who referred to the relationship between the strategies. Under Amendment 77 the GLAA will have to carry out functions “in accordance with” the labour market enforcement strategy. Everybody else involved is left with the lighter obligation of having regard to it, so why the difference? That is my Amendment 77A.

Amendments 77B and 77C are about the relationship with the Secretary of State and the Secretary of State’s powers. At the moment, to take one instance, the GLA sets fees after consultation with the Secretary of State, what will the position be in the future? My Amendment 72 would enable the GLA to require information from supply chain. It would give it powers relating to an organisation that takes supplies of goods and services. That seems to have been a lacuna that could do with filling or closing. I am not sure what one does with a lacuna, but it is rather a different amendment from the others we have been debating. Again, it is something we could very usefully address during the course of this Bill.

Photo of Viscount Hailsham Viscount Hailsham Conservative

My Lords, I apologise for making what I suspect will be regarded as a somewhat pedantic point but I should like to raise some specific questions about Amendment 41. At this point, I am referring to the amendments to the PACE powers.

First, as regards new subsection (1)(1), I notice that the power is permissive and not mandatory. Perhaps the Minister would be so good as to explain why it is not a mandatory power but only a permissive one. Secondly and related to that, I am sure that your Lordships would like to know whether it is the Government’s intention to exercise this power. If so, when and to what extent?

My next point is also brief. In new subsection (1)(7)(b) I find that the regulations may apply to “particular purposes”. I think that your Lordships will be reassured to know that this power is not going to be imposed with regard to particular investigations; rather, that it is more general in character.

My last point relates to new subsection (1)(8), which concerns a very wide power. It is contemplated giving the Secretary of State a power to amend substantive legislation. I have personally always been very cautious about using statutory instruments for such a purpose. Incidentally, I am very glad to see that the affirmative procedure is being used here for that very purpose, but, as I say, I am very cautious about using statutory instruments in this way. I suspect that the Committee would like to know the extent to which the Government are minded to use this power and, if so, for what purpose and when.

Photo of Lord Bates Lord Bates The Minister of State, Home Department

My Lords, I am very grateful to noble Lords for speaking to their amendments in this group. I shall try to address as many of the points raised as I can at this stage, but I may have to write to noble Lords on some of the more specific ones.

I want to make one general point, which more or less relates to the points made by the noble Baroness, Lady Donaghy, and the noble Lord, Lord Lea. Essentially they are asking what has changed here. The Government are effectively putting themselves in a strategic position to take much tougher action against all forms of labour market abuse. In general terms, although the TUC had some reservations about the detail, which I am sure we will come to, in a broader sense it welcomed the fact that the Government were taking this matter very seriously, wanting to join up different agencies which are all doing a very good job, to give them a stronger strategic position and, of course, more powers. Those powers would include the ability for rogue employers to be jailed. These are serious powers and I will come back to the comments of my noble friend Lord Hailsham on their use, because that is a very important point for us to consider.

It should be remembered that we are extending the base of the resources. In some of the amendments we have covered the additional resources that will be available to the agencies—for example, the Organised Immigration Crime Task Force and the National Crime Agency, which we dealt with in the Serious Crime Act, and there is also immigration enforcement. Organised crime syndicates are massively exploiting this area. Information will be shared and we will be receiving information from different areas. That is part of a big approach that we are taking to nail some of the abuse that has been going on for far too long.

When it comes to resources—a key point referred to by the noble Lord, Lord Alton—again, it is right that we get down into the detail. I was making a rough note of some figures I had quoted earlier, which I shall have to check. Effectively we are bringing together three agencies and putting in a new Director of Labour Market Enforcement. The Bill sets out that there will be funding to enable the director to do his or her job. Therefore, let us say that that is an additional element of funding. Beneath that, we have the Gangmasters Licensing Authority, whose budget is about £2.48 million, the Employment Agency Standards Inspectorate, whose budget is about half a million pounds—a relatively small sum—and the national minimum wage enforcement function. The latter has by far the greatest number of staff and by far the greatest budget, standing at £9 million last year. Therefore, the total across those three groups for last year was £12 million.

In his Autumn Statement, the Chancellor announced that a further £4 million would be going to the minimum wage task force, and the regulations, which were prayed against just before we started this Committee stage, provide for additional fines to be levied on employers. The task force’s budget was increased from £9 million to £13.2 million. Therefore, over the past year the overall pot for labour market enforcement has increased from £12 million to £16 million—a 25% increase, which is quite substantial—and there are additional powers. I am not saying that a headline figure of that nature is going to answer everybody’s questions but it underscores that we are genuinely putting resources and legislative power behind the efforts to tackle labour market abuse.

I turn to some of the points that were raised. The noble Lord, Lord Rosser, asked about the relationship between the Gangmasters and Labour Abuse Authority and immigration enforcement. It is entirely possible that the GLAA will become aware of a situation involving gangmasters that also involves illegal working and the employment of illegal workers. In such circumstances, it is vital that a defined partnership exists to enable the exchange of information while ensuring that roles remain distinct. This already happens and we are taking the opportunity to formulate how that relationship works. This is part of what I referred to earlier. Often—we are told by the prosecuting authorities—when someone is guilty of an offence in one area, they are an offender in multiple areas.

I was asked about GLA prosecutions, and this relates to the points raised by the noble Lord, Lord Alton. Over time, the GLA has undertaken a number of more complex investigations that focus more effectively on serious and organised crime. This reflects a targeted and risk-based enforcement approach by the GLA. This year alone, the GLA has undertaken 92 such investigations—already more than the 72 undertaken in 2014 and the highest level since 2011. Again, I am not trying to escape from the resources point; I am trying to say that the GLA, which we all defer to in admiration, is doing more work more effectively, and we expect it to undertake more investigations.

The noble Lord, Lord Rosser, also asked why the GLAA has to carry out its functions in accordance with the strategy rather than having to have regard to the strategy, as other enforcement bodies do. The GLAA board remains responsible for the delivery of the GLAA functions but it now sits within the wider strategic approach of tackling labour exploitation. Enforcement bodies will be responsible for delivering aspects of the strategy but the legislative difference will be driven by their different legal identities. In practice, the same expectation will apply to all three enforcement bodies—that is, they will now follow the director’s strategy.

On the strategy of the Gangmasters and Labour Abuse Authority and the point that the noble Baroness, Lady Donaghy, was making, it is important to remember that such abuse can be investigated across any sector, so it is not restricted to the traditional areas in which the Gangmasters Licensing Authority operated. It can look at labour abuse wherever it is found, including in construction. Again, I would have thought that that would be broadly welcomed.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport) 7:15 pm, 18th January 2016

Is it the Government’s position that the resources currently available to the existing authorities will be sufficient to cover the apparently extended role and remit under this Bill of the Director of Labour Market Enforcement and the GLAA, which, as the Minister has said, will now exercise its function across a much wider front? Do the Government think that the kind of sums the Minister says are being spent at the moment will be sufficient to cover what appears to be a considerably enhanced role for this authority in future?

Photo of Lord Bates Lord Bates The Minister of State, Home Department

As I said, they are 25% higher than this time last year in terms of overall labour market enforcement. Are we saying that that is sufficient? No, because what we are focusing on is the strategy. A very important role of the Director of Labour Market Enforcement will be to advise the Home Secretary and the Secretary of State for Business, Innovation and Skills on what resources are necessary to tackle labour market abuse and exploitation. That is what we are doing, but once we have an overall strategy that says where the focus should be, we would be confident in identifying where the gaps are. We would have more confidence in claims made for increases in resources at that point than perhaps might have existed when we were looking at them in isolation. Again, I would have thought that that would be welcomed.

The noble Lord, Lord Rosser, rightly asked if we would look at the recommendations made by the Delegated Powers and Regulatory Reform Committee. Of course we will. We take all the committees of this House extremely seriously. I would say in our defence—as has been used in defence against us—that the report is dated last Friday, 15 January, and it is now Monday.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport)

I hope the noble Lord will accept that it is dated Friday of last week because the Government were so late in producing their significant tranche of amendments.

Photo of Lord Bates Lord Bates The Minister of State, Home Department

Touché. I get that point. The point I am trying to make is a very serious one: that the Government will of course listen to and pay very careful regard to the recommendations of a committee of your Lordships’ House. I will have more to say on that by the time we get to the relevant section on Report.

Will our reforms make it easier for rogue gangmasters to operate without fear of detection? Absolutely not. Our reforms will ensure that the GLAA has tough new enforcement powers to tackle criminals in any labour sector, not just those that are licensed. Importantly, the number of licences granted for 2014-15 was 82, with 27 refusals and 23 revocations, out of a total of 954 licences in existence. That shows that it is something more than a box-ticking exercise: that genuine work is being done by the GLA in assessing the quality of those licences, and we want that to continue.

I have touched on reviews—perhaps not to the entire satisfaction of the noble Lord, Lord Alton—but I will come back to that issue and set out the position in a letter. The licensing rules contain detailed provisions on a variety of matters, such as what information should be provided by a licence holder to a worker before they start—for example, shellfish-gathering rules on tide, accommodation, record keeping and sector specific provisions. This follows a model set out in Section 7 of the Private Security Industry Act 2001 which allows the Security Industry Authority to set its licensing criteria by publishing a document without any parliamentary procedure but with the approval of the Secretary of State.

I come to the point made on PACE powers—that there is no mention of the new labour market enforcement order offence in the proposed new Section 114B of PACE. Amendment 55, which introduces the new clause “Investigative functions”, provides that the enforcing authorities can use the investigative powers they already have for the relevant trigger offence to be investigated in any breaches in LME orders. This means that where the GLAA has PACE powers for the trigger offence, it can use those powers to investigate a breach. I am immediately conscious, as I read that out, that that does not answer the particular point. Staff designated to exercise police-style powers will be subject to the relevant PACE codes and to Independent Police Complaints Commission supervision. As I say, I am conscious that that does not answer the specific question my noble friend asked, and I will undertake to write to him and to other noble Lords whom I have not had the opportunity to respond to in the time available. I hope, with those reassurances, that noble Lords and Baronesses will feel able to withdraw their amendment.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

One of the amendments to which I spoke, which was quite unrelated to any others, addressed the supply chain point for the GLAA. I wonder whether the Minister has an answer to that. If not, could that not get lost in the rather more philosophical issues we have been debating?

Photo of Lord Bates Lord Bates The Minister of State, Home Department

It is one that we listed in the supply chain regulations which recently came before your Lordships’ House. A number of undertakings were given at that time to examine options for a central database and how that will be done. It should also be said that there was general agreement that we had set the threshold for the reporting of those standards at the lower end of the expected threshold, so that more companies would have to comply. That has a concomitant effect upon the size of the database which would need to be maintained in order to carry those statements of transparency in supply chains by the companies affected. I am very happy to undertake to update noble Lords on progress with that in the course of my responses.

Photo of Lord Elton Lord Elton Conservative

Before my noble friend sits down I plead the excuse of being the Minister who moved the original PACE and took it through this House. I have a sort of avuncular interest, particularly in codes of conduct. I would be most grateful if he copied me in to the correspondence about the bearing of PACE codes of conduct on these new people operating under the Bill.

Photo of Lord Bates Lord Bates The Minister of State, Home Department

I would be delighted to ensure that the noble Lord, as a distinguished former Home Office Minister, is so copied in.

Amendment 39 agreed.

Amendment 40

Moved by Lord Bates

40: After Clause 7, insert the following new Clause—

“Functions in relation to labour market

(1) Schedule (Functions in relation to labour market) (functions in relation to labour market) has effect.

(2) The Secretary of State may by regulations confer other functions on the Gangmasters and Labour Abuse Authority or its officers.”

Amendment 40A (to Amendment 40) not moved.

Amendment 40 agreed.

Amendment 41

Moved by Lord Bates

41: After Clause 7, insert the following new Clause—

PACE powers in England and Wales for labour abuse prevention officers

(1) After section 114A of the Police and Criminal Evidence Act 1984 insert—

“114B Application of Act to labour abuse prevention officers

(1) The Secretary of State may by regulations apply any provision of this Act which relates to investigations of offences conducted by police officers to investigations of labour market offences conducted by labour abuse prevention officers.

(2) The regulations may apply provisions of this Act with any modifications specified in the regulations.

(3) In this section “labour abuse prevention officer” means an officer of the Gangmasters and Labour Abuse Authority who—

(a) falls within subsection (4), and

(b) is authorised (whether generally or specifically) by the Secretary of State for the purposes of this section.

(4) An officer of the Gangmasters and Labour Abuse Authority falls within this subsection if he or she is—

(a) acting for the purposes of the Employment Agencies Act 1973 (see section 8A of that Act),

(b) acting for the purposes of the National Minimum Wage Act 1998 (see section 13 of that Act),

(c) acting for the purposes of the Gangmasters (Licensing) Act 2004 as an enforcement officer within the meaning of section 15 of that Act,

(d) acting for the purposes of Part 1 or 2 of the Modern Slavery Act 2015 (see sections 11A and 30A of that Act), or

(e) acting for any other purpose prescribed in regulations made by the Secretary of State.

(5) The investigations for the purposes of which provisions of this Act may be applied by regulations under this section include investigations of offences committed, or suspected of having been committed, before the coming into force of the regulations or of this section.

(6) Regulations under this section are to be made by statutory instrument.

(7) Regulations under this section may make—

(a) different provision for different purposes;

(b) provision which applies generally or for particular purposes;

(c) incidental, supplementary, consequential, transitional or transitory provision or savings.

(8) Regulations under subsection (4)(e) may, in particular, make such provision amending, repealing or revoking any enactment as the Secretary of State considers appropriate in consequence of any provision made by the regulations.

(9) A statutory instrument containing regulations under this section which amend or repeal any provision of an Act of Parliament may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(10) Any other statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.

(11) In this section—

“enactment” includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978;

“labour market offence” has the meaning given in section 3 of the Immigration Act 2016.”

(2) In section 18 of the Gangmasters (Licensing) Act 2004 (obstruction of officers), in subsection (1)(a), after “this Act” insert “or functions conferred by virtue of section 114B of the Police and Criminal Evidence Act 84 (application of that Act to Authority officers)”.”

Amendments 41A to 41D (to Amendment 41) not moved.

Amendment 41 agreed.

Amendment 42

Moved by Lord Bates

42: After Clause 7, insert the following new Clause—

“Relationship with other agencies: requests for assistance

(1) The Gangmasters (Licensing) Act 2004 is amended as follows.

(2) Before section 23 (but after the italic heading before it) insert—

“22A Relationship with other agencies: requests for assistance

(1) The Authority may request any relevant person to provide assistance to the Authority or any of its officers.

(2) The Authority may make a request under subsection (1) only if it considers that the assistance would facilitate the exercise of any function by the Authority or any of its officers.

(3) Any relevant person may request the Authority to provide assistance to the relevant person.

(4) A relevant person may make a request under subsection (3) only if the person considers that the assistance would facilitate the exercise by the person of any function.

(5) A request under this section must—

(a) set out what assistance is being requested, and

(b) explain how the assistance would facilitate the exercise of the function.

(6) A person who receives a request under this section must respond to it in writing within a reasonable period.

(7) Each of the following is a “relevant person”—

(a) a chief officer of police for a police area in England and Wales;

(b) the National Crime Agency;

(c) a National Crime Agency officer;

(d) a person appointed as an immigration officer under paragraph 1 of Schedule 2 to the Immigration Act 1971;

(e) any other person prescribed or of a prescribed description.

(8) Before making regulations under this section the Secretary of State must obtain the consent of—

(a) the Scottish Ministers, if the regulations prescribe a person who exercises, or a description of persons who exercise, any function in a case where provision conferring the function would be within the legislative competence of the Scottish Parliament if contained in an Act of that Parliament;

(b) the Welsh Ministers, if the regulations prescribe a person who exercises, or a description of persons who exercise, any function in a case where provision conferring the function would be within the legislative competence of the National Assembly for Wales if contained in an Act of that Assembly;

(c) the consent of the Office of the First Minister and deputy First Minister, if the regulations prescribe a person who exercises, or a description of persons who exercise, any function in a case where provision conferring the function would be within the legislative competence of the Northern Ireland Assembly if contained in an Act of that Assembly made without the consent of the Secretary of State.”

(3) In section 25 (regulations, rules and orders), in subsection (5)—

(a) omit the “or” at the end of paragraph (a);

(b) at the end insert “, or

(c) section 22A(8)(e) (regulations adding to the definition of “relevant persons”).””

Amendment 42 agreed.

House resumed. Committee to begin again not before 8.30 pm.