Clause 10 - Licensing Act 2003: amendments relating to illegal working

Immigration Bill – in a Public Bill Committee at 4:30 pm on 27th October 2015.

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

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration) 4:45 pm, 27th October 2015

With clause 10 and schedule 1, we move on to a slightly different provision. We will come to amendments to schedule 1 in the next group. Clause 10 deals with amendments to the Licensing Act 2003 that relate to illegal working. Home Office immigration enforcement officers frequently encounter illegal migrants in premises involved in the sale of alcohol and late-night refreshments. It is clear, on the basis of intelligence, that this is a high-risk sector for illegal working. Accordingly, we want to adapt the licensing regime to prevent illegal working in the sector.

Clause 10 and schedule 1 will prevent illegal migrants and those whose status does not permit them to work here from holding premises and personal licences. They provide a mechanism for the Home Office to object to the issue of such licences when it considers that necessary to prevent illegal working. Immigration officers are provided with the same power to enter a premises as licensing enforcement officers, for the sole purpose of checking whether immigration offences are being committed in connection with a licensable activity—namely, selling alcohol or providing late-night refreshment.

Clause 10 gives effect to schedule 1, which amends the Licensing Act 2003. The Licensing Act applies to England and Wales. We are consulting Northern Ireland and Scotland with a view to making similar amendments to their legislation in the Bill or, if that is not possible, in regulations, for which provision is made in the clause.

The provision links to schedule 1, on which some technical amendments will be moved. I will sit down at this point and move on to schedule 1 when we discuss the next group of amendments. The provisions are interlinked but I am conscious of the separation between them.

Photo of Gavin Newlands Gavin Newlands Scottish National Party, Paisley and Renfrewshire North

The clause and schedule pertain to the Licensing Act 2003, which is England and Wales legislation, but clause 10(2) empowers the Secretary of State to implement, by regulation, similar changes to Scotland. That is completely unacceptable and goes against the spirit of devolution and the Sewel convention. I am sure that the Minister will argue that it pertains to immigration, which is reserved, but it obviously has a big impact on a devolved matter.

Powers that ride roughshod over primary legislation—whether that is here in Westminster or at Holyrood in Edinburgh—without proper scrutiny by elected Members should be used very sparingly. The measure should be dealt with in primary legislation subject to debate prior to a legislative consent motion. The Government state that a significant proportion of illegal working happens on licensed premises where there is the sale of alcohol and late-night refreshment or the provision of entertainment. I have previously received an answer from the Minister, which confirms that the UK Government have no evidence that suggests that takeaways and off-licences are far more likely to employ illegal migrants compared to other businesses. That rather highlights the lack of evidence base for this part of the Bill. Surely, the starting point for any legislation is the requirement of evidence. To use hearsay or assertion in supporting this or any other legislation makes for neither good politics nor good law. Even if Members accept the premise of the proposal, the very need for this part of the Bill is called into question by John Miley, the chair of the National Association of Licensing and Enforcement Officers, who stated:

“Generally speaking, licensing authorities do not work in silos. They work in the broader scheme of things, and work with the police and the Security Industry Authority and more generally with immigration. Good work is currently going on in quite a lot of cases.”––[Official Report, Immigration Public Bill Committee, 20 October 2015; c. 32, Q67.]

The most concerning thing about the provision is the new power whereby an immigration officer who has

“reason to believe that any premises are being used for a licensable activity” can enter the premises

“with a view to seeing whether an offence under any of the Immigration Acts is being committed in connection with the carrying on of the activity.”

That terminology is a big concern to my colleagues and me. As framed, it gives immigration officers a very wide power to search any licensed premises. Home Office statistics show that an alarming number of offences pertain to small businesses that serve ethnic cuisines and are therefore likely to be run by ethnic minority owners. Is that because they are the gravest offenders or because they are searched most frequently? Will the same be true of licensed premises? The Migrant Rights Network states:

“These are small businesses who will be less able to deal with the additional burden of carrying out and recording frequent and complex immigration checks.”

The Secretary of State is given an additional power, as she can object to the granting of the licence, and that is to be taken into account by the licensing authority. Again, that is a completely devolved area and highlights the need for further reflection by the Government. Unlike other sections of the Bill, the Home Secretary is  given leave to appeal against the granting of a licence or refusal to cancel a licence despite her objection. This is additional bureaucracy that most businesses will not welcome and that is surely not in keeping with a long-term economic plan.

Restaurants and bars—especially those serving ethnic cuisines—feature heavily on the list of those given civil penalties for employing illegal workers. Is that because they employ illegal workers more frequently than other employers or because they are targeted more frequently for enforcement activity? If it is the latter, can the Minister tell us why?

In concluding, I should point out to the Committee that if the clause is passed, we will table further amendments on Report to remove the power to extend the provision to Scotland through regulations.

Photo of James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

As I have indicated, there are ongoing discussions with the Scottish Government about the impact of the clause and the potential for regulations. While the hon. Member for Paisley and Renfrewshire North and I were in agreement this morning, this may be a point on which we are not of the same view.

As the underlying purpose of the clause relates to immigration, our view is that a legislative consent motion is not required. We are in the process of consulting the Scottish Government on any necessary amendments to make provision for Scotland on the face of the Bill, and similarly for Northern Ireland. Management information for 2014-15 highlighted a number of operations from immigration enforcement in Scotland.

The hon. Gentleman asked me for evidence of why we think this is an important area to legislate on by building a mechanism into the licensing provisions—evidence of people with no status in the UK being captured within those sanctions and mechanisms. Of all civil penalties served in the year to June 2015, I am advised that 82% were served on the retail industry or hotel, restaurant and leisure industry, a large proportion of which hold premises or personal alcohol licences. That is why we see this as an issue affecting a particular sector. In building the legislative framework, it seems appropriate to strengthen the mechanisms available and to build the provisions in the Licensing Act and the potential sanctions in this way.

I appreciate the points that the hon. Gentleman makes and the different view he holds, but it is for the purposes I outlined that we view this as a reserved matter and are taking this stance. I assure him that discussions continue with the Scottish Government on how this may be applied within Scotland.

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

The Committee divided: Ayes 9, Noes 2.

Division number 4 Decision Time — Clause 10 - Licensing Act 2003: amendments relating to illegal working

Aye: 9 MPs

No: 2 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Clause 10 ordered to stand part of the Bill.