Lord Kennedy of Southwark
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.
The Minister of State, Home Office (Lord Bates) (Con)
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 amendment.
Baroness Butler-Sloss
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.
Lord Bates
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.
Baroness Hamwee
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.
Lord Bates
Lord Bates
Lord Bates
“( ) 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.”
Lord Bates
Lord Bates
Lord Bates
“( ) 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.”
Lord Bates
“Gangmasters and Labour Abuse AuthorityRenaming 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.”
Lord Bates
My Lords, I shall speak also to Amendments 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.
Lord Bates
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.
Lord Rosser
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?
Lord Bates
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.
Lord Rosser
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.
Lord Bates
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.
Baroness Hamwee
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?
Lord Bates
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.
Lord Elton (Con)
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.
Lord Bates
I would be delighted to ensure that the noble Lord, as a distinguished former Home Office Minister, is so copied in.
Lord Bates
“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.”
Lord Bates
“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)”.”
Lord Bates
“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”).””