Clause 2 - Labour market enforcement strategy

Immigration Bill – in a Public Bill Committee on 27th October 2015.

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Amendment proposed (this day): 57, in clause 2, page 2, line 9, at end insert—

‘(ia) the threats and obstacles to effective labour market enforcement,

(ib) the remedies secured by victims of non-compliance in the labour market,’—(Keir Starmer.)

To ensure that the labour market enforcement strategy sets out an assessment of the threats and obstacles to effective labour market enforcements and the remedies secured by victims of labour rights infringements and labour market offences.

Question again proposed, That the amendment be made.

Photo of Peter Bone Peter Bone Conservative, Wellingborough

I remind the Committee that with this we are discussing the following:

Amendment 58, in clause 2, page 2, line 12, leave out paragraph (b) and insert—

‘(b) contains a proposal for the year to which the strategy relates setting out—

(i) how the non-compliance outlined in the assessment required by subsection (2)(a) (i) and (ii) is to be addressed,

(ii) how the threats and obstacles identified under subsection (2)(ia) are to be overcome, and

(iii) how the provision of remedies for victims of non-compliance in the labour market identified under subsection 2(a)(ib) is to be improved.’

To ensure that the functions of the Director of Labour Market Enforcement are exercised for the purpose of enforcing all existing labour market standards, rather than prioritising a limited number of areas, and to link the Director’s strategy with his or her assessment of non-compliance with labour market standards.

Amendment 56, in clause 2, page 2, line 24, leave out subsection (3) and insert—

‘(3) The proposal mentioned in subsection (2)(b) must set out the resources required to—

(a) address the non-compliance in the labour market,

(b) overcome the threats and obstacles identified under subsection 2(b)(ia),

(c) improve the provision of remedies for victims of non-compliance in the labour market.’

To oblige the Director of Labour Market Enforcement to provide an assessment of the resources required for effective labour market enforcement and remedies for victims, rather than simply to determine how currently available resources should be allocated.

Amendment 59, in clause 2, page 2, line 26, at end insert—

‘(3A) Nothing in the strategy shall—

(a) restrict, or

(b) reduce the resources allocated to

the labour market enforcement functions as defined in Section 3(2) of this Act.’

To clarify the relationship between the Director of Labour Market Enforcement and the UK’s existing labour inspection agencies, ensuring the current role, remit and resources of labour inspectorates are safeguarded.

Amendment 65, in clause 3, page 3, line 6, at end insert—

‘(da) ny function of the Health and Safety Executive and the Health and Safety Executive for Northern Ireland;

(db) any function of local authorities in relation to the “relevant statutory provisions” as defined in Part 1 of the Health and Safety at Work etc. Act 1973;

(dc) any function of local authorities under the Children and Young Persons Act 1933 and by-laws made under that Act, the Management of Health and Safety at Work Regulations 1999, and the Children (Protection at Work) (Scotland) Regulations 2006.’

To include the remit of the Director of Labour Market Enforcement to cover functions relating to health and safety at work and child labour, functions carried out for the most part by local authorities.

Amendment 66, in clause 3, page 3, line 12, at end insert—

‘(ca) Part 1 and The Health and Safety at Work etc. Act 1973;

(cb) Sections 3 and 4 and Part 2 of the Children and Young Persons Act 1933.’

This a consequential amendment to amendment 65.

Amendment 63, in clause 3, page 3, line 31, before “in this section”, insert “Subject to subsection 6A,”

Amendment 64, in clause 3, page 3, line 33, at end insert—

‘(6A) A person is not prevented from being a worker, or a person seeking work, for the purposes of this section by reason of the fact that he has no right to be, or to work, in the United Kingdom.’

To ensure that labour market offences committed against all workers are included within the scope of the Director of Labour Market Enforcement’s work, irrespective of immigration status (as under subsection 2 of section 26 of the Gangmasters (Licensing) Act 2004).

Amendment 62, in clause 4, page 3, line 42, leave out paragraph (a) and insert—

‘(a) An assessment of the extent to which the strategy developed under section 2 of this Act has—

(i) addressed the non-compliance identified under Section 2 (2)(a)(i),

(ii) improved the provision of remedies for victims of non-compliance in the labour market identified under 2 (2)(a)(ia), and

(iii) overcome the threats and obstacles identified under 2 (2)(a)(ib)”.’

To ensure the Director of Labour Market Enforcement’s Annual Report links with his or her assessments about non-compliance in the labour market (and assessment of the remedies secured by victims and threats and obstacles to effective enforcement).

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

When we broke for our short adjournment, we were touching on the use of a particular term: we were looking slightly ahead to the use of the term “worker” in clauses 3 and 9. I want to ensure clarity about where that term is used because that may be informative to the Committee and perhaps help to narrow the debate and argument.

I assure hon. Members that the definition of worker in clause 3(6) applies only in one context, which is in respect of clause 3(4)(e)(i), which relates to sections 2 and 4 of the Modern Slavery Act 2015. The definition of worker in all other Acts in the director’s remit is  unaffected. The hon. and learned Member for Holborn and St Pancras may find that and the context in which the definition applies helpful.

The definition of worker in the Employment Agencies Act 1973 is unaffected. The Employment Agency Standards Inspectorate will continue to take action against rogue employment agencies and businesses regardless of whether the worker is here legally or illegally. Similarly, the definition of worker in the Gangmasters (Licensing) Act 2004 is unaffected. The Gangmasters Licensing Authority will continue to take action against rogue gangmasters regardless of whether the worker is here legally or illegally. That matches the concerns raised in contributions this morning.

Furthermore, the definition in the National Minimum Wage Act 1998 is also unaffected. That will continue to apply only to legal workers—that is how it is framed. The provisions are about not extending rights to illegal workers, but bringing strategic oversight together under one person. We do not think it is appropriate to give illegal workers the right to the national minimum wage. Of course, the employer who employs an illegal worker and pays them less than the national minimum wage will still be committing an offence under section 21 of the Immigration, Asylum and Nationality Act 2006, which comes with a higher penalty. The Bill also includes measures to enable us to take a tougher enforcement approach to employers of illegal workers, including increased prison sentences if they employ people whom they know or reasonably suspect are illegal workers.

The definition of worker in clause 3(6) has no effect on section 1 of the Modern Slavery Act 2015. All offences of slavery, servitude and forced or compulsory labour will be within the director of labour market enforcement’s remit, because it would be illogical to exclude those forced to work from the director’s purview. Indeed, all offences of trafficking under sections 2 and 4 of the Modern Slavery Act that involve slavery, servitude and forced or compulsory labour will also be within the director’s remit.

The definition in clause 3(6) also has no effect on the trafficking offences criminalised by sections 2 and 4 of the Modern Slavery Act. The only effect the definition has is on which type of trafficking offences are in the director’s remit. Offences involving sexual exploitation, removal of organs, securing services by force and securing services from children and vulnerable persons will be in the director’s remit only if they relate to workers or work seekers provided for in the definition—legal workers. It will still be an offence to traffic an illegal worker for any of those purposes, but we do not think it appropriate for that to be in the director’s remit. Instead, such offences will be dealt with by the police and the National Crime Agency. All modern slavery offences will be in the Independent Anti-slavery Commissioner’s remit.

As I explained before, the definition is not about granting new rights or curtailing offences. It is simply about creating the right remit for the director of labour market enforcement, which I believe the clause does. We are clear that the remit provides the director with the ability to tackle the broad spectrum of labour exploitation, from non-compliance to the most serious harm against workers.

I recall the comment I made earlier about the relationship between the commissioner and director, where the  commissioner will effectively have that oversight role. Therefore, we believe that that will lock things together in a clear fashion.

I appreciate that this has drawn us into something more technical than contemplated at first sight by the amendment. I hope, for the sake of clarity, I have spelled out the context in which the definition is used.

Photo of Paul Blomfield Paul Blomfield Labour, Sheffield Central

I am grateful to the Minister for giving way and for the statement he has just shared with us. I am not absorbing its detail as quickly as I would wish; perhaps we can find a way to reflect on it before we reach a final view.

Notwithstanding the points the Minister has made, the concern remains that we are in danger of including only offences committed against workers as defined in the Employment Rights Act 1996, that is, those with a valid contract of employment, so by definition, regular migration status. Although we are trying to achieve the same objective here, the provision might risk leaving the director powerless to investigate trafficking in the very sector of the labour market—illegal working—that the Bill is designed to target.

As the Minister indicated, this is about not conferring new rights on workers, whether in relation to the national minimum wage or whatever, but ensuring that the director can cover all the listed offences, no matter against whom they are committed. As it stands, the clause is potentially in violation of article 3 of the European convention on action against trafficking in human beings, which guarantees the provisions of that convention, irrespective of national origin.

I take it that the purpose of clause 3(4)(e)(i) is to narrow the remit of the director so that he or she covers human trafficking offences only for labour exploitation, as opposed to sexual exploitation or organ harvesting. In that case, subject to reaching agreement on the position in our amendment, the Minister would have our support. The way the clause is currently drafted seems to exclude human trafficking of illegal workers from the remit. Further confusion is created by including human trafficking offences committed against “a person seeking work” in the director’s remit. We just need a bit of time for reflection on that, if the Minister would agree.

Photo of Peter Bone Peter Bone Conservative, Wellingborough

Before the Minister answers, these are detailed and complex matters, which is why I am allowing the interventions to be relatively lengthy. I would not normally stand for an intervention that long, but I will because it is on a technicality. Do not think, ladies and gentlemen, that you will get away with it later.

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

I am grateful to you, Mr Bone. It is important on these points of detail where issues have been raised that we try to give clarity in Committee. I entirely understand your ruling; as always, the Chair is entirely sensible.

In response to the hon. Gentleman, when he reads the record of what I said—as I know he will as he is assiduous and focused on getting things right—I hope he will see in the explanation the distinction we are drawing between labour market and what is straying beyond labour market issues, and why we have drawn the provision that way.

I apologise for straying slightly, but clause 3(6) links to the amendment and it is appropriate to comment on the point now. This definition of “worker” is used only once in the context of clause 3(4). I will reflect on the drafting of that, since we are clear on the intent and how it works through. The intention is not to imply or impute any limiting of that definition into the other provisions listed in clause 3(4). That is not the intent and hence my comments. Without any commitment, I will certainly look at the wording of that to satisfy myself that it does not give any wrong impression. As I have said, that is not the intention.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

Thank you, Mr Bone, for your indulgence on this. I want to make sure that we have got the point right, because it may be that the area of dispute is considerably reduced. I am grateful to the Minister and the team that has been behind him over the last hour and a half for this clarification, which really helps. As I understand it, the definition of “worker” in clause 3(6) is limited for the purposes of this measure alone and therefore does not affect anything beyond it.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

That removes one concern, so I am grateful for that clarification.

As far as clause 3(4)(e) is concerned, what is being said is that the offence itself is unaffected by any definition; it only goes to the remit of the director. Again, that removes a concern. Therefore, the only remaining concern is that the director has a remit only over certain types of worker for the offences in clause 3(4)(e), as I understand it. The Minister put forward a reason for that—just to make sure I have understood that. I am not sure how it works in a Committee such as this, but I wonder whether it is possible to have that in some written form over and above what the Minister has said already, which I know will be on the record. It is critical to the international obligations and how other people will look at this and understand it. I am grateful for the clarification.

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

I am grateful for the way in which the hon. and learned Gentleman has raised the matter. If it helps the Committee, I will be happy to write to him to set out what I have said and give that clarity in context. I get the sense that the issue on these provisions is perhaps narrower than it may have appeared at first sight. It relates to the way the provision operates within the Modern Slavery Act itself and the way in which the term “worker” is used within that. It is perhaps not even as complete as he was suggesting in that context. Given this is quite a narrow, technical, but important point, I think it will probably be helpful if I write to him to set that out in further detail. It would be open to him to reflect on that as we look towards Report.

Photo of Peter Bone Peter Bone Conservative, Wellingborough

Could you write to the Committee, too, and we will circulate it? Then every Member will have it.

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

Of course. It is important that all Committee members see that, so I am happy to undertake to do that.

Various comments were made about the Gangmasters Licensing Authority and prosecutions and investigations. Over time, the GLA has undertaken a number of more complex investigations that focused more effectively on serious and organised crime. I think that reflects a targeting and risk-based enforcement approach by the GLA. Only one GLA-initiated prosecution has ever failed to return a conviction. This year alone, the GLA has undertaken 92 investigations—already more than the 72 undertaken in 2014 and its highest since 2011. During that time, the GLA also secured four prosecutions of unlicensed gangmasters, with the same number last year. That demonstrates that the GLA continues to be capable of targeting rogue gangmasters effectively. That is why we see it as an important component of the director’s new remit to tackle labour exploitation. We are reflecting further in relation to the GLA as part of the consultation, albeit that that strays wider than the group of amendments we are debating today.

On the labour market consultation, I mentioned this morning that we have announced today that the consultation has been extended. It now closes on 7 December, rather than 9 November. As I said, I hope that that will give further opportunity for interested parties to feed in and ensure that this is understood and well-reflected.

The hon. Member for Sheffield Central talked about recovering compensation. The GLA does seek recompense for workers when it finds breaches of licensing conditions as part of its negotiations around putting breaches right and the retention of a licence. I have seen figures in the order of £3.5 million that have been provided in recompense through that route.

I reassure the hon. and learned Member for Holborn and St Pancras that the issue of compensation is not ignored. He makes a point around compensation orders, but we hope that, through the new strategy and approaches, compensation will remain a focus of operational activity. I ask him to withdraw the amendment.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 2:15 pm, 27th October 2015

I am grateful to the Minister for his clarification, not only on the technical point we have just discussed, but more generally on the health and safety and other agencies that are not included in the Bill. I now understand that that is because of the particular function and focus of their activity and, in relation to children, because of the localised knowledge of some authorities that would not otherwise be more generally available.

I am going to withdraw the amendment, so I shall be brief. However, it would be helpful if there could be greater clarity about the sharing of intelligence. Although they are separate functions, there will be a huge overlap between what the health and safety and other agencies are doing, and what the director is trying to pull together in the strategy. The Minister says that there will be a sharing of intelligence, so it would be helpful if we had more clarity about exactly how that will work. I say no more about the strategy in relation to obstacles and resources, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I beg to move amendment 60, in clause 2, page 2, line 26, at end insert—

‘(3A) The Director must engage with civil society in the development of his or her labour market enforcement strategy.”

To expressly require engagement between civil society and the Director of Labour Market Enforcement in the development of the labour market enforcement strategy.

The amendment would require the director of labour market enforcement to engage with civil society in the development of the labour market enforcement strategy. Page 26 of the Government’s consultation document “Tackling Exploitation in the Labour Market”states that a director:

“will engage with a wide range of stakeholders to gather insights and perspectives on real world practices, improve detection of exploitation and understand external views of the effectiveness of the enforcement landscape. Stakeholders will include Government departments, the IASC, the police, local authorities and other public bodies; organisations representing employers and employees across the economy and in particular sectors of interest; and a range of third sector bodies that engage with vulnerable/exploited groups.”

The amendment would make that explicit in the Bill.

It is important that the voice of organisations working with victims of labour exploitation, trade unions and others are invited to feed their expertise into the director’s work, especially at the strategy stage. The absence of any formal engagement strategy will mean that the director may fail to gain the breadth of front-line experience and expertise required to prepare an evidence-based strategy. This is linked to the resource point that was made earlier. With extremely limited resources, it will be very hard for the director to gather the range of information required to complete a comprehensive labour market assessment, so strong engagement mechanisms will be required to ensure that all expertise is integrated into the strategy. The amendment would strengthen the strategy and formalise the involvement of others who have expertise and experience, as is recognised in the consultation document, and ensure that the strategy is as strong as it needs to be, if the approach is to be the step change that we hope it will be.

Photo of Chloe Smith Chloe Smith Conservative, Norwich North

The hon. and learned Gentleman has tabled an extremely interesting amendment. Has he given more thought as to how “civil society” ought to be defined? If he is going to put that phrase into primary legislation, it should be well defined. Of course, he would expect there to be consequences if the director does not do what the Bill says the director must do. Could the hon. and learned Gentleman better define civil society and explain how he would enforce such a thing?

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I am grateful to the hon. Lady for that intervention. In a sense, the intent is to formalise what was envisaged in the consultation document, which contained a fairly lengthy list—I read it out a moment ago—of stakeholders, including organisations representing employers and employees, and third sector bodies that engage with vulnerable and exploited groups. It might be helpful to go a bit further than that, but the intention was to formalise what was rightly set out in the consultation document—the bodies with which the director should engage—using the words “civil society”. That is what lies behind the amendment.

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

As the hon. and learned Gentleman highlighted, the amendment would require the director of labour market enforcement to engage with civil society in developing the enforcement strategy provided for by the clause. I sympathise with the intention behind the amendment, but it is not necessary or, for the reasons highlighted by my hon. Friend the Member for Norwich North, workable in its current form.

The hon. and learned Gentleman rightly highlighted the consultation that we are undertaking, and he read out the relevant part, about our expectations regarding stakeholder engagement. It is right that the director should speak to a range of people—the widest range of sources—to identify the scale and nature of non-compliance in the labour market. That will include securing information from the information hub we will consider when we reach clause 6, but it will rightly also include engaging non-governmental organisations, bodies representing employers and workers, and other organisations to develop the fullest picture.

The consultation published on 13 October contains more information on how we envisage the relationship working. We will flesh that out further in the light of the views received in response to the consultation. I want to see what the responses look like before we reflect on whether anything further needs to be undertaken.

The director will play a leading role publicly in bringing greater co-ordination and coherence to the enforcement of labour market legislation. The strategy they produce will be public, so I have no difficulty in principle with their consulting civil society in developing it, however that may be framed or defined.

Sometimes, when we go into legislation, we can close things off, rather than opening them up. We need to define things in a very legalistic way, and the issue is how we can properly give effect to the desires in the consultation document. I do not want to risk creating unnecessary scope for legal challenges to be brought against the director or, bearing in mind the legalistic approach we have to take, closing things down.

I do have sympathy with what the hon. and learned Gentleman said, and I will obviously review the responses to the consultation. With that reassurance about how we are approaching the issue, however, I hope he will be minded to withdraw the amendment.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I am grateful to the Minister for that reassurance, and 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 James Brokenshire James Brokenshire Minister of State (Home Office) (Security and Immigration)

I intend to speak only briefly because we have had quite a wide-ranging discussion of the priorities for enforcement and the outcomes required from the enforcement bodies, which the director will be looking for in the strategy, as well as a number of other themes relating to the nature of the director’s operations, which we touched on in the group of amendments before last. Crucially, the strategy will be evidence-based. It will contain the director’s assessments of non-compliance in the previous year—points were raised about that in previous debates—and predictions for the next two years, based on information drawn from a range of  sources, including the three enforcement bodies, other Government bodies and civil society organisations. That will allow the plan for the coming year to be based on where non-compliance is most likely to occur and to cause harm. It will be subject to more public involvement, and the strategy will be published in the way I have outlined. I trust that the Committee will support the clause.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.