Clause 12 - Objection

Immigration, Asylum and Nationality Bill – in a Public Bill Committee at 4:00 pm on 20th October 2005.

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Photo of Eric Illsley Eric Illsley Labour, Barnsley Central

With this it will be convenient to discuss the following amendments: No. 26, in clause 12, page 6, line 14, at end insert

'or  

(d) the amount of the penalty would threaten the future viability of the employer's business.'.

No. 10, in clause 12, page 6, line 20, at end insert

'which shall be not less than 21 days.'.

No. 27, in clause 12, page 6, line 24, at end insert—

'(ba) set out a timetable for the payment of the penalty which takes account of the viability of the employer's business,'.

No. 5, in clause 12, page 6, line 25, leave out paragraph (c).

No. 68, in clause 12, page 6, line 30, after 'decision', insert 'and give reasons'.

No. 28, in clause 12, page 6, line 31, at end insert—

'(ba) set out the timetable for payment of any penalty after consultation with the employer,'.

No. 29, in clause 13, page 6, line 42, at end insert—

'(aa) allow the appeal, and specify a timetable for the payment of the penalty,'.

No. 98, in clause 13, page 7, line 14, leave out 'or' and insert—

'( ) if the employer gives notice of objection and the Secretary of State increases the penalty, the date specified in the notice of increase as the date upon which it is given, or'.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

I do not want to detain the Committee as most of the amendments, imperfect though they probably are as they are partly drafted by me, are all transparent about what they are trying to do. With your permission, Mr. Illsley, I shall take the amendments and clause stand part together.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

Then I will stick to the amendments and hope that my points fall within the ambit of the debate.

Amendment No. 25 leaves out ''or'' and amendment No. 26 adds

''(d) the amount of the penalty would threaten the future viability of the employer's business.'.''

The Minister must appreciate that there are small businesses that may fall foul of the measure and the imposition of a fine upon that business could threaten the liability of the business. In that case, the consequential amendments, which concern negotiations about a timetable for payment, should make sense, being the type of protection for small businesses that would appeal to the Minister. That is certainly the reason for amendment No. 28, in which I propose that a timetable is set out for payment after consultation with the employer. I am sure that the last thing the Minister would want to do is put one of our small businesses out of business by an unduly onerous burden.

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office 4:15 pm, 20th October 2005

Purely to assist the hon. Lady, I think that that is the essential import behind clause 12(1)(c), which states:

''This section applies where an employer to whom a penalty notice is given objects on the ground that the amount of the penalty is too high.''

That is not simply about the penalty being too high; all the incumbent elements of liability that she discusses   come under that provision. The amendment is otiose for those reasons.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

I appreciate that the amendment is otiose. That is the sort of assurance that I hope to get from the Minister. By virtue of the fact that the penalty could be deemed too high, it is important to state in the Bill that a timetable would be set out for payment after consultation, because as the legislation is drafted, it does not follow that any time would be given to the business to pay.

My other amendment is also quite obvious. It seeks to insert at line 20

''which shall be not less than 21 days.''

There should be a time limit; the period cannot be open-ended. Choosing a specific time would be sensible, because it makes the provision more transparent for businesses.

I reserve the right to a brief clause stand part debate, if you will allow it, Mr. Illsley, as I should be interested to hear whether the Minister has anything to add to those points.

Photo of Evan Harris Evan Harris Science, Non-Departmental & Cross Departmental Responsibilities

Amendment No. 98 is in my name and that of my hon. Friend the Member for Manchester, Withington. I should like to draw it to the Minister's attention, because he is not aware of it. Although the amendment has been taken with the clause under discussion, the amendment is to clause 13 on page 7 at line 14. It adds

''if the employer gives notice of objection and the Secretary of State increases the date of the penalty, the date specified in the notice of increase is the date upon which it is given, or''.

That is self-explanatory. The concern is that people should not be caught by a rather unfortunate provision in which on appeal the penalty might go up, as it must in such cases. I support the thrust of the amendments in this group tabled by the hon. Member for Chesham and Amersham and her friends.

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office

Like the previous group of amendments, I have a great deal of sympathy with these amendments and the sentiments behind them. However, we can capture far more readily most of the sentiments in the code of practice in part, and subsequently in guidance. The Bill is not the place for that level of detail, although I accept the points made.

We can and will consider whether it is appropriate in some cases for the employer who is served with a penalty to pay in instalments over a particular period, as I suggested to the hon. Member for Woking. That measure is entirely normal. I have made the point already about clause 12(1)(c) meaning far more than simply, ''Let's have a row about the level of the fine.'' It encompasses those other points about the life and viability of the business as well.

I would defend the notion that, rather like that small word in financial adverts on television, the fine can go up as well as down. It is a useful device in normal circumstances under civil penalty regimes, preventing regular, ongoing, vexatious, capricious and downright chancy applications in the appeal process. Used sparingly, that is appropriate. We can strike a sensible balance, as we have sought to do,   between the civil penalty arrangements and the concerns of the CBI and hon. Members about the viability of business. I fully accept those concerns. This is not about driving businesses, large or small, out of existence. It is about simply enforcing the letter of the law.

I would freely admit that section 8 of the Asylum and Immigration Act 1996 had consequences that were different. We have been able to pursue some of the business organisations concerned for charges far more serious than those in section 8 of that Act. In some cases, as I suggested earlier, in the end the co-operation of the employer to stop illegal working had greater value in public policy terms than adding another scalp.

Without going into all the details of why the amendments are technically flawed, which would be unkind at such a late hour in our deliberations, I will give the assurance that most of what is requested will be in the guidance that we offer. That is the right and proper place for that level of detail. In that context, I ask that the amendments are withdrawn and the clause stand part.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

I am grateful to the Minister. It was a probing series of amendments to see what was in the Minister's mind. It is better when we can have the draft guidance when we are considering legislation such as this, as it is the sort of detail that can be discussed. [Interruption.] It is not the draft guidance.

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

The Minister is saying that we are halfway there, but we do not have the draft guidance, nevertheless, and it is therefore necessary to table such amendments. I have no hesitation in withdrawing them and I shall be interested to receive my own personal copy of the draft guidance. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

I want to raise three quick points, which may be a result of my own stupidity, but nevertheless I would like to ask the Minister what might happen in hypothetical cases, particularly as they may form the substance of an objection in response to which I hope that the Secretary of State would call upon clause 12(4)(d) and

''determine to take no action.''

First, can the Minister tell me what would happen in the case of an amnesty, where an employer has unfortunately employed somebody who is illegal and faces the full penalty of the law but in the meantime the Government grant an amnesty? That is not impossible; it happens from time to time in the European Union and even in this country. How would an employer be placed in that instance?

Secondly, I want to know how an employer would be placed if the employment of an illegal was by virtue of a Government programme. An example of such a programme is the ethnic minority outreach initiative,   with which I know the Minister will be familiar because the Government have committed £14 million funding to it from April 2004 to March 2006. I am keen to know whether, if someone is employing someone through a Government programme, that would offer them the immunity that they would deserve because otherwise they might find themselves unwittingly exposed.

Lastly, there is a problem as far as the unions are concerned; I am tentative about raising this point. The TUC, when it talks about migrant workers in Britain, makes immortal statements, as it does in some of its articles. It states that the

''blurring by . . . governments of the distinction between refused asylum seekers, illegal working, illegal entry and criminal activity such as trafficking'' makes it

''difficult for trade unions to identify and present the key issues from the perspective of defending the interests of workers''.

What thought has the Minister given to the representation of workers in that instance? It is an important matter, which has increasingly become blurred over the past few years.

Photo of Tony McNulty Tony McNulty Minister of State (Immigration, Citizenship and Nationality), Home Office

As much as I love the TUC and pleased as I was to do a joint statement with it, the CBI and the Home Office about the need for migrant workers, managed migration and the protection of such workers at all levels, I do not accept the premise that, in Government at least, there has been a blurring at the edges of those categories. I do accept the premise that that has been part of the wider public debate, mischievously or otherwise, and we have an opportunity with the five-year plan and the points system to get out from under that and to discuss in a positive sense what the asylum system and the immigration and managed migration system do, and the distinction between them. I accept that as part of my role.

On the issues that the hon. Lady raised, I am a Home Office Minister, so I do not recognise the concept of amnesty. However, I will say in the next breath that the Bill gives the Secretary of State unilateral powers in respect of the civil penalty regime, so it is entirely a matter for the Secretary of State to decide whether to impose penalties or otherwise. If the situation is other than that, I will write to the hon. Lady.

I believe that that captures the potential of the Hon. Lady's second point about someone being employed in a position as a result of some element of the state not recognising that they were illegal. I can envisage how that may prevail in certain circumstances, not just in the programme that she mentioned, and rather like the rest of the Bill—the appeals part that we have done and the parts to come—that does, I emphasise, need to be seen in all that we are doing to improve processes and structures overall. I take her comments seriously, but, for the reasons that I gave, they are concerns that are met or will be met by guidance, which I accept we do not have—the code of conduct is not guidance. For those reasons, I urge that the clause stand part eventually, if not now.  

Photo of Dame Cheryl Gillan Dame Cheryl Gillan Shadow Secretary of State for Wales

I am grateful to the Minister. There are some issues here, and I hope that he will take it upon himself to write to me about them. For example, if a UK company employed somebody in a Spanish territory and, as happened in Spain, the illegal immigrants were granted an amnesty, the employer would no longer be liable. A situation may arise whereby there would be a reasonable defence. With an undertaking from the Minister that he will write to me about that, I am satisfied at this stage.

Question put and agreed to.

Clause 12 ordered to stand part of the Bill.

Photo of Eric Illsley Eric Illsley Labour, Barnsley Central

For the guidance of the Committee, I am minded to suspend in two minutes for at least one hour. I am prepared to carry on with the Committee if we can arrive at a decision acceptable to the usual channels, but obviously that would need the co-operation of all Members.

Clauses 13 to 16 ordered to stand part of the Bill.