(8 years, 11 months ago)
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Lord Bates
“ScheduleFunctions in relation to labour marketEmployment Agencies Act 1973 (c. 35)1 The Employment Agencies Act 1973 is amended as follows.
2 Before section 9 insert—
“8A Appointment of officers
(1) The Secretary of State may—
(a) appoint officers to act for the purposes of this Act, and(b) instead of or in addition to appointing any officers under this section, arrange with any relevant authority for officers of that authority to act for those purposes.(2) The following are relevant authorities—
(a) any Minister of the Crown or government department;(b) any body performing functions on behalf of the Crown; (c) the Gangmasters and Labour Abuse Authority.”3 (1) Section 9 (inspection) is amended as follows.
(2) Before subsection (1) insert—
“(A1) This section does not apply to an officer acting for the purposes of this Act in relation to England and Wales if the officer is a labour abuse prevention officer within the meaning of section 114B of the Police and Criminal Evidence Act 1984 (PACE powers for labour abuse prevention officers).”
(3) In subsection (1), for “duly authorised in that behalf by the Secretary of State” substitute “acting for the purposes of this Act”.
(4) In subsection (4)(a), in each of subparagraphs (ii) and (iii), for “or servant appointed by, or person exercising functions on behalf of, the Secretary of State” substitute “acting for the purposes of this Act,”.
National Minimum Wage Act 1998 (c. 39)4 The National Minimum Wage Act 1998 is amended as follows.
5 In section 13 (appointment of officers for enforcement)—
(a) in subsection (1)(b), for the words from “Minister of the Crown” to “body shall” substitute “relevant authority for officers of that authority to”;(b) after subsection (1) insert—“(1A) The following are relevant authorities—
(a) any Minister of the Crown or government department;(b) any body performing functions on behalf of the Crown; (c) the Gangmasters and Labour Abuse Authority.”6 In section 14 (powers of officers) before subsection (1) insert—
“(A1) This section does not apply to an officer acting for the purposes of this Act in relation to England and Wales if the officer is a labour abuse prevention officer within the meaning of section 114B of the Police and Criminal Evidence Act 1984 (PACE powers for labour abuse prevention officers).”
Modern Slavery Act 2015 (c. 30)7 The Modern Slavery Act 2015 is amended as follows.
8 Before section 12 (but after the italic heading before it) insert—
“11A Enforcement by Gangmasters and Labour Abuse Authority
(1) The Secretary of State may make arrangements with the Gangmasters and Labour Abuse Authority for officers of the Authority to act for the purposes of this Part in taking action in circumstances in which it appears that an offence under this Part which is a labour market offence (within the meaning of section 3 of the Immigration Act 2016) has been, is being or may be committed.
(2) For provision about the powers of such an officer who is acting for the purposes of this Part, see section 114B of the Police and Criminal Evidence Act 1984 (PACE powers for labour abuse prevention officers).”
9 (1) Section 15 (slavery and trafficking prevention orders on application) is amended as follows.
(2) In subsection (1)—
(a) omit the “or” after paragraph (b);(b) after paragraph (c) insert “, or(d) the Gangmasters and Labour Abuse Authority.”(3) In subsection (7)—
(a) for “or the Director General”, in the first place it occurs, substitute “, the Director General or the Gangmasters and Labour Abuse Authority”;(b) for “or the Director General”, in the second place it occurs, substitute “, the Director General or the Authority”.(4) In subsection (8)(b)—
(a) for “or the Director General”, in the first place it occurs, substitute “, the Director General or the Gangmasters and Labour Abuse Authority”;(b) for “or the Director General”, in the second place it occurs, substitute “, the Director General or the Authority”.10 In section 19(7) (requirement to provide name and address)—
(a) for “or an immigration officer” substitute “, an immigration officer or the Gangmasters and Labour Abuse Authority”;(b) for “or the officer” substitute “, the officer or the Authority”.11 (1) Section 20 (variation, renewal and discharge) is amended as follows.
(2) In subsection (2), after paragraph (f) insert—
“(g) where the order was made on an application under section 15 by the Gangmasters and Labour Abuse Authority, the Authority.”(3) In subsection (9)—
(a) for “or the Director General”, in the first place it occurs, substitute “, the Director General or the Gangmasters and Labour Abuse Authority”;(b) for “or the Director General”, in the second and third places it occurs, substitute “, the Director General or the Authority”.12 (1) Section 23 (slavery and trafficking risk orders) is amended as follows.
(2) In subsection (1)—
(a) omit the “or” after paragraph (b);(b) after paragraph (c) insert “, or(d) the Gangmasters and Labour Abuse Authority.”(3) In subsection (6)—
(a) for “or the Director General”, in the first place it occurs, substitute “, the Director General or the Gangmasters and Labour Abuse Authority”;(b) for “or the Director General”, in the second place it occurs, substitute “, the Director General or the Authority”.(4) In subsection (7)(b)—
(a) for “or the Director General” substitute “, the Director General or the Gangmasters and Labour Abuse Authority”;(b) for “or Director General” substitute “, the Director General or the Authority”.13 In section 26(7) (requirement to provide name and address)—
(a) for “or an immigration officer” substitute “, an immigration officer or the Gangmasters and Labour Abuse Authority”;(b) for “or the officer” substitute “, the officer or the Authority”.14 (1) Section 27 (variation, renewal and discharge) is amended as follows.
(2) In subsection (2), after paragraph (f) insert—
“(g) where the order was made on an application by the Gangmasters and Labour Abuse Authority, the Authority.”(3) In subsection (7)—
(a) for “or the Director General” in the first place it occurs, substitute “, the Director General or the Gangmasters and Labour Abuse Authority”;(b) for “or the Director General” in the second and third places it occurs, substitute “, the Director General or the Authority”.15 After section 30 (offences) insert—
“30A Enforcement by Gangmasters and Labour Abuse Authority
(1) The Secretary of State may make arrangements with the Gangmasters and Labour Abuse Authority for officers of the Authority to act for the purposes of this Part in taking action in circumstances in which it appears that an offence under this Part which is a labour market offence (within the meaning of section 3 of the Immigration Act 2016) has been, is being or may be committed.
(2) For provision about the powers of such an officer who is acting for the purposes of this Part, see section 114B of the Police and Criminal Evidence Act 1984 (PACE powers for labour abuse prevention officers).”
16 In section 33 (guidance), in subsection (1) for “and the Director General of the National Crime Agency” substitute “, the Director General of the National Crime Agency and the Gangmasters and Labour Abuse Authority”.”
Lord Bates
“ScheduleConsequential and related amendmentsPublic Records Act 1958 (c. 51)1 In the Public Records Act 1958, in Schedule 1 (definition of public records), in Part 2 of the Table at the end of paragraph 3 (other establishments and organisations), for “Gangmasters Licensing Authority” substitute “Gangmasters and Labour Abuse Authority”.
Parliamentary Commissioner Act 1967 (c. 13)2 In the Parliamentary Commissioner Act 1967, in Schedule 2 (departments etc subject to investigation)—
(a) at the appropriate place insert “Director of Labour Market Enforcement”;(b) for “Gangmasters Licensing Authority” substitute “Gangmasters and Labour Abuse Authority”.Superannuation Act 1972 (c. 11)3 In the Superannuation Act 1972, in Schedule 1 (kinds of employment to which that Act applies), under the heading “Other bodies”, for “Gangmasters Licensing Authority” substitute “Gangmasters and Labour Abuse Authority”.
House of Commons Disqualification Act 1975 (c. 24)4 In the House of Commons Disqualification Act 1975, in Schedule 1 (offices disqualifying for membership)—
(a) in Part 2 (bodies of which all members are disqualified), for “Gangmasters Licensing Authority” substitute “Gangmasters and Labour Abuse Authority”;(b) in Part 3 (other disqualifying offices), at the appropriate place insert “Director of Labour Market Enforcement”.Northern Ireland Assembly Disqualification Act 1975 (c. 25)5 In the Northern Ireland Assembly Disqualification Act 1975, in Schedule 1 (offices disqualifying for membership)—
(a) in Part 2 (bodies of which all members are disqualified), for “Gangmasters Licensing Authority” substitute “Gangmasters and Labour Abuse Authority”;(b) in Part 3 (other disqualifying offices), at the appropriate place insert “Director of Labour Market Enforcement”.Regulation of Investigatory Powers Act 2000 (c. 23)6 In the Regulation of Investigatory Powers Act 2000, in Schedule 1 (relevant public authorities), in Part 1 (relevant authorities for purposes of sections 28 and 29 of that Act) in paragraph 20E for “Gangmasters Licensing Authority” substitute “Gangmasters and Labour Abuse Authority”.
Freedom of Information Act 2000 (c. 36)7 In the Freedom of Information Act 2000, in Schedule 1 (public authorities), in Part 6 (other public bodies and offices: general)—
(a) at the appropriate place insert “Director of Labour Market Enforcement”; (b) for “Gangmasters Licensing Authority” substitute “Gangmasters and Labour Abuse Authority”.Police Reform Act 2002 (c. 30)8 The Police Reform Act 2002 is amended as follows.
9 In section 10 (general functions of the Independent Police Complaints Commission)—
(a) in subsection (1), after paragraph (g) insert—“(ga) to carry out such corresponding functions in relation to officers of the Gangmasters and Labour Abuse Authority in their capacity as labour abuse prevention officers (see section 114B of the Police and Criminal Evidence Act 1984 (PACE powers for labour abuse prevention officers)).”; (b) in subsection (3), after paragraph (bc) insert— “(bd) any regulations under section 26D of this Act (labour abuse prevention officers);”.10 After section 26C insert—
“26D Labour abuse prevention officers
(1) The Secretary of State may make regulations conferring functions on the Commission in relation to the exercise of functions by officers of the Gangmasters and Labour Abuse Authority (the “Authority”) in their capacity as labour abuse prevention officers (see section 114B of the Police and Criminal Evidence Act 1984 (PACE powers for labour abuse prevention officers)).
(2) Regulations under this section may, in particular—
(a) apply (with or without modifications), or make provision similar to, any provision of or made under this Part;(b) make provision for payment by the Authority to, or in respect of, the Commission.(3) The Commission and the Parliamentary Commissioner for Administration may jointly investigate a matter in relation to which—
(a) the Commission has functions by virtue of this section, and(b) the Parliamentary Commissioner for Administration has functions by virtue of the Parliamentary Commissioner Act 1967.(4) An officer of the Authority may disclose information to the Commission, or to a person acting on the Commission’s behalf, for the purposes of the exercise by the Commission, or by any person acting on the Commission’s behalf, of an Authority complaints function.
(5) The Commission and the Parliamentary Commissioner for Administration may disclose information to each other for the purposes of the exercise of a function—
(a) by virtue of this section, or(b) under the Parliamentary Commissioner Act 1967.(6) Regulations under this section may, in particular, make—
(a) further provision about the disclosure of information under subsection (4) or (5);(b) provision about the further disclosure of information that has been so disclosed.(7) In this section “Authority complaints function” means a function in relation to the exercise of functions by officers of the Authority.”
Gangmasters (Licensing) Act 2004 (c. 11)11 The Gangmasters (Licensing) Act 2004 is amended as follows.
12 In the italic heading before section 1, for “Gangmasters Licensing Authority” substitute “Gangmasters and Labour Abuse Authority”.
13 In section 1 (Gangmasters Licensing Authority)—
(a) in the heading, for “Gangmasters Licensing Authority” substitute “Gangmasters and Labour Abuse Authority”;(b) for subsection (1) substitute—“(1) The body known as the Gangmasters Licensing Authority is to continue to exist and is to be known as the Gangmasters and Labour Abuse Authority (in this Act referred to as “the Authority”).”;
(c) after subsection (3) insert—“(3A) When carrying out functions during a year to which a labour market enforcement strategy approved under section 2 of the Immigration Act 2016 relates, the Authority and its officers must carry out those functions in accordance with the strategy.”
14 In section 2 (directions etc by the Secretary of State), in subsection (2) after “the Authority” insert “and the Director of Labour Market Enforcement”.
15 In section 3 (work to which Act applies)—
(a) in subsection (5)(b), for the words from “the following nature” to the end substitute “a prescribed description as being work to which this Act applies”;(b) after subsection (5) insert— “(6) The Secretary of State must consult the Authority and the Director of Labour Market Enforcement before making regulations under subsection (5).”
16 In section 8 (general power of Authority to make rules)—
(a) in subsection (1), after “may” insert “with the approval of the Secretary of State”;(b) omit subsection (3);(c) after subsection (4) insert—“(5) The Authority may from time to time with the approval of the Secretary of State revise the rules.
(6) The Authority must publish any rules made or revised under this section.”
17 In section 14 (offences: supplementary provisions) after subsection (2) insert—
“(2A) Subsections (1) and (2) do not apply to an enforcement officer who is acting for the purposes of this Act in relation to England and Wales if the officer is a labour abuse prevention officer within the meaning of section 114B of the Police and Criminal Evidence Act 1984 (PACE powers for labour abuse prevention officers).”
18 In section 15 (enforcement and compliance officers) after subsection (6) insert—
“(6A) Subsections (5) and (6) do not apply to an enforcement officer who is acting for the purposes of this Act in relation to England and Wales if the officer is a labour abuse prevention officer within the meaning of section 114B of the Police and Criminal Evidence Act 1984 (PACE powers for labour abuse prevention officers).”
19 In section 16 (powers of officers) before subsection (1) insert—
“(A1) This section does not apply to an enforcement officer who is acting for the purposes of this Act in relation to England and Wales if the officer is a labour abuse prevention officer within the meaning of section 114B of the Police and Criminal Evidence Act 1984 (PACE powers for labour abuse prevention officers).”
20 In section 17 (entry by warrant) before subsection (1) insert—
“(A1) This section does not apply to an enforcement officer who is acting for the purposes of this Act in relation to England and Wales if the officer is a labour abuse prevention officer within the meaning of section 114B of the Police and Criminal Evidence Act 1984 (PACE powers for labour abuse prevention officers).”
21 In section 25 (regulations, rules and orders)—
(a) omit subsection (4);(b) in subsection (6), omit paragraph (b) (and the “or” before it).22 (1) Schedule 2 (application of Act to Northern Ireland) is amended as follows.
(2) In the italic heading before paragraph 3, for “Gangmasters Licensing Authority” substitute “Gangmasters and Labour Abuse Authority”.
(3) In paragraph 6—
(a) after “work in Northern Ireland,” insert “—(a) ”;(b) at the end insert “, and (b) the requirement under subsection (2) of that section to consult the Director of Labour Market Enforcement is to be ignored.”(4) In paragraph 7, for paragraph (b) substitute—
“(b) paragraph (b) is to be read as if for “work of a prescribed description as being work to which this Act applies” there were substituted “work of the following nature as being work to which this Act applies—(i) the gathering (by any manner) of wild creatures, or wild plants, of a prescribed description and the processing and packaging of anything so gathered, and (ii) the harvesting of fish from a fish farm (within the meaning of the Fisheries Act (NI) 1966 (c. 17 (NI)).”(5) For paragraph 10 substitute—
“10 (1) Rules under section 8 (general power of Authority to make rules) which make provision for Northern Ireland licences (“Northern Ireland rules”) are to be made by statutory instrument.
(2) Section 8 as it applies in relation to Northern Ireland licences is to be read as if—
(a) in subsection (1) the words “with the approval of the Secretary of State” were omitted, and(b) subsections (5) and (6) were omitted.(3) The Authority must consult the relevant Northern Ireland department before making any Northern Ireland rules about fees.
(4) A statutory instrument containing Northern Ireland rules is subject to annulment in pursuance of a resolution of either House of Parliament.”
Natural Environment and Rural Communities Act 2006 (c. 16)23 In the Natural Environment and Rural Communities Act 2006, in Schedule 7 (designated bodies), in paragraph 13, for “Gangmasters’ Licensing Authority” substitute “Gangmasters and Labour Abuse Authority”.
Regulatory Enforcement and Sanctions Act 2008 (c. 13)24 In the Regulatory Enforcement and Sanctions Act 2008, in Schedule 5 (designated regulators), for “Gangmasters Licensing Authority” substitute “Gangmasters and Labour Abuse Authority”.
Modern Slavery Act 2015 (c. 30)25 The Modern Slavery Act 2015 is amended as follows.
26 In section 52 (duty to notify Secretary of State about suspected victims of slavery or human trafficking), in subsection (5)(k), for “Gangmasters Licensing Authority” substitute “Gangmasters and Labour Abuse Authority”.
27 In Schedule 3 (public authorities under duty to co-operate with the Independent Anti-slavery Commissioner), for “Gangmasters Licensing Authority” substitute “Gangmasters and Labour Abuse Authority”.
Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (c. 2) (N.I.)28 In the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, in Schedule 3 (slavery and trafficking prevention orders), in Part 3 (supplementary) in paragraph 18(7)(e), for “Gangmasters Licensing Authority” substitute “Gangmasters and Labour Abuse Authority”.”
Baroness Hamwee
Baroness Hamwee (LD)
My Lords, my noble friend Lord Paddick and I have Amendments 78 to 91 in this group, in which there are also two government amendments. I am sorry that they are not the sort of all-singing, all-dancing amendments with which one might like to start the day’s proceedings, but they are important.
Schedule 1 provides for changes to licensing related to illegal working and covers licensed premises and personal licences. The Licensing Act 2003 sets out licensing objectives. They are the prevention of crime and disorder, public safety, the prevention of public nuisance and the protection of children from harm. It seems to us that they cover the ground pretty well and they have been found to do so, particularly when taken with the local administration of licensing which sets it in the local context. I dare say that the Minister will say that illegal working—the subject of the schedule—is a crime, but we have already explained our view that the schedule is futile at best, dangerous at worst and has unlooked-for consequences. I will not repeat those arguments now. If a crime is committed, then whether that specific crime needs a schedule is one of the overarching questions.
Amendments 78 and 79 would retain the Secretary of State’s right to be notified of an application for a licence and to object to that application along with the occupants of 25 Acacia Avenue, those next door to the Bull public house and so on, but it would delete the immigration officer’s right to enter to see—those are the words of the Bill—whether an immigration offence is being committed. In our view, the licensing objective should be about particular individuals and premises and whether they are appropriate for a licence to be granted. Apart from the substantive objections, this schedule produces a lot of bureaucracy. Is it not enough that the Secretary of State has a right to object to the grant of the licence? If the licensee has been employing one or two people without the right to work, it is possible that there may have been confusion, difficulties of checking and so on, so there is a great possibility for mistakes. That is very different from an operation being dependent on an almost entirely unentitled or illegal workforce.
I have mentioned public houses, but I know that there is also concern in, for instance, the curry house trade that these provisions will cause considerable disruption to their operation. What consultation has there been with various relevant organisations, including within the licensed trade? A lot of small businesses stand to be affected by this. The Immigration Law Practitioners’ Association has analysed Home Office lists of penalties imposed for illegal working and says that many of them relate to small businesses. It asks a pertinent question about whether that is because they employ illegal workers more often or because they are targeted more often. Also, for immigration officers to be able to enter premises on something of a fishing expedition without the need for suspicion is a wide power.
Amendments 80 and 83 may look as if I am seeking to extend the powers of the Secretary of State; I am not. This is to probe how the powers will operate and, again, to ask what consultation there has been. The police can already object to the transfer of a licence because it would undermine the crime prevention objective in the exceptional circumstances of a case, so presumably the Home Office has experience of this and should be able to help me with that question. I also ask whether this right for the police is not enough in itself without extending a similar right to the Secretary of State.
Amendments 81, 82, 84, 85, 87, 88 and 90 would change “appropriate” to “necessary”, which is the term used in the 2003 Act. For instance, it would be “necessary” to reject an application under that Act for the crime prevention objective. To change that term to being “appropriate” to reject it for these objectives seems to give a discretion to the Secretary of State that is wider than we are accustomed to in current licensing law, and which I am unconvinced about.
Amendments 86 and 89 are also about the scope for the Secretary of State’s discretion. They mean that the Secretary of State must be satisfied—I will give that much on the basis of reasonableness—that refusing a licence or the continuation of one is necessary to prevent illegal working, not just that the grant of a licence would prejudice the prevention of illegal working, as the schedule says.
Lastly, and rather differently, there is Amendment 91. The schedule provides that on appeal the magistrates cannot consider whether, after the original decision that is the subject of the appeal, an individual has actually been granted leave to enter or remain in the UK. Why is this necessary? What happens if the individual is granted leave to enter or leave to remain but his initial application for a licence has been turned down? Does he in those circumstances have to make a fresh application for a licence, which will carry with it costs as well as difficulties in running a business, and indeed for employees of that applicant? I will hear what the Minister has to say about his amendments, but I beg to move.
Baroness Butler-Sloss (CB)
My Lords, I support what might be seen as the rather technical points raised by the noble Baroness, Lady Hamwee. I am looking particularly at Amendments 81, 82, 84, 85, 86, 87, 88, 89 and 90. Where it is the practice in earlier legislation to use the word “necessary”, it seems inappropriate to use the word “appropriate”. One should keep to similar phraseology in legislation unless there is some very strong view to change it. “Appropriate”, as the noble Baroness says, gives a very wide degree of discretion—far greater than necessary—and I cannot at the moment see why it is necessary to have it wider than that. The other points—refusing continuation of a licence and so on—are similar. They are perhaps technical but, when they are worked on the ground, they have considerable force, and I am rather concerned to be broadening out what it does not seem necessary so to broaden.
The Earl of Sandwich (CB)
My Lords, I support Amendments 78 and 79, which would remove the Secretary of State’s power. It is a snooping power—a very wide power to search any licensed premises, with no need for suspicion, as the noble Baroness said. I will ask her question again in different words: what is the evidence for the growth in illegal working in licensed premises which justifies these new rules?
Lord Kennedy of Southwark (Lab)
My Lords, the amendments in this group are in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, with the exception of the final two, which are in the name of the noble Lord, Lord Bates. They are all concerned with Schedule 1 to the Bill and are generally technical in nature.
Amendments 78 and 79 aim to remove from the schedule amendments to the Licensing Act 2003, which would bring that Act into line with the proposals in the Bill. These amendments highlight the very unsatisfactory nature of the Bill that has been brought before us today, and for that reason, if nothing else, they are useful.
The next part of this group seeks to delete and insert certain words to make changes in emphasis and to clarify at what point action is sought to be taken. To remove the word “appropriate” and insert the word “necessary” in its place would raise the requirement from what is deemed “suitable” or “fitting” to achieve the objective or outcome to something where those exercising the power would have to be satisfied that it is “essential” or “indispensable” to achieve the desired outcome. I agree with the points made in this respect by the noble and learned Baroness, Lady Butler-Sloss.
I will not spend any more time on this as there will be more substantial debates later today, but I hope that the noble Lord, Lord Bates, will be able to answer the important points that have been raised in this initial debate. The final two amendments, which are in the name of the noble Lord, Lord Bates, seek to clarify further what is proposed in the provisions in the schedule, and I am satisfied with them.
The Minister of State, Home Office (Lord Bates) (Con)
My Lords, I thank the noble Baroness for speaking to her amendments. Before coming to the questions that have been asked, I will briefly speak to Amendments 92 and 93 in my name. Schedule 1 to the Bill concerns the powers to prevent illegal working in premises licensed to sell alcohol or provide late-night refreshment in England and Wales. These are two technical amendments to Schedule 1 which aim to ensure that those who have applied for a premises licence or a personal licence for the sale of alcohol or the provision of late-night refreshment, and who have not had a decision on that licence application before these provisions have commenced, will have their application determined on the basis of the licensing law in force at the time they made their licensing application.
Amendments 78 to 91 are proposed by the noble Baroness, Lady Hamwee. Schedule 1 integrates protection against illegal working into the existing licensing regime, including by adding the Home Secretary to the list of responsible authorities for the purpose of the Licensing Act, by making the prevention of illegal working an objective of the licensing regime and by requiring licence applicants to have the requisite right to work. The amendments proposed by the noble Baroness would adjust the threshold at which the Secretary of State may object to a licensing application. They would permit a court to consider whether the appellant has been granted leave to enter or remain in the UK after the date of the decision being appealed against, in effect duplicating the proper role of the tribunal—the Immigration and Asylum Chamber. The amendments would also make changes to the proposed “entitlement to work” definition from the Licensing Act 2003 to prevent immigration status and, in particular, the lack of it being relevant to alcohol or late-night refreshment licensing decisions.
We do not believe that these amendments would achieve the objective of preventing illegal working in this high-risk sector. They would not provide the necessary clarity for licensing authorities or the Home Office in respect of the proposed power to withhold personal and premises licences based on the absence of the applicant’s right to work in this sector or concerns about the risk of illegal working in the premises concerned. They would also result in inconsistency with the standards employed in the wider licensing framework. Changes made by the Police Reform and Social Responsibility Act 2011 have given licensing authorities greater power to tackle alcohol-related crime and disorder, and it is appropriate that the same level of evidence and discretion is also afforded in respect of the prevention of illegal working.
The Home Office decision to object to the issue of a premises licence to prevent illegal working will not be taken lightly. Schedule 1 makes it clear that the Secretary of State may object only where she is satisfied that the exceptional circumstances of the case are such that issuing a licence would be prejudicial to preventing illegal working. Schedule 1 also provides the necessary clarity on the circumstances in which a person’s immigration status should render them ineligible to hold a licence to sell alcohol. The proposed amendments would permit an individual to apply for a licence even though they are not permitted to work in the UK, or where their immigration status prevents their doing work related to licensable activity. This cannot be right. An applicant who has been refused a licence but is subsequently granted leave would simply need to make a fresh application and include the required information that provides evidence of immigration status.
Let me turn to some of the particular points that were made. The noble Earl, Lord Sandwich, asked what evidence exists that this is a particular problem. Of the civil penalties served for illegal working in the year to June 2015, 82% were served on the retail industry or hotel, restaurant and leisure industry sectors. A large proportion of these sectors hold premises or personal alcohol licences. Enforcement activity is decided as a consequence of intelligence and does not affect only companies that employ a small number of employees.
The noble Baroness, Lady Hamwee, asked what consultation had taken place. The changes proposed to the Licensing Act in the Bill have been subject to consultation with interested partners, including licensing authorities, the police, and representatives of the licensed trade. The consultation was undertaken last summer via a number of workshops, which were attended by the Local Government Association, the Institute of Licensing, licensing officers from seven licensing authorities, representatives of the national policing lead on alcohol, and the police and crime commissioner lead on alcohol. The second workshop included industry partners such as the British Beer & Pub Association, the Association of Convenience Stores, the Wine and Spirit Trade Association and the Association of Licensed Multiple Retailers. These partners provided a significant contribution to shaping our proposals.
Let me turn to perhaps the most interesting point, raised by the noble and learned Baroness, Lady Butler-Sloss, which is the subject of most of the amendments in this group: the use of the term “appropriate”. This was introduced across the licensing regime in the Police Reform and Social Responsibility Act 2011. We want the test in standards to be consistent across the two pieces of legislation. If we ended up with a differently worded test in the Bill before us, that might require consequential changes to the 2011 Act to bring them into line. I have listened carefully to the arguments that have been made and the point made by the noble Lord, Lord Kennedy, on behalf of the Opposition, and I am very happy to look at this issue ahead of Report to see whether any change is needed. However, that is the rationale for the choice of language.
With that assurance, I hope that the noble Baroness will feel able to withdraw her amendments, and in doing so I commend my amendments to the Committee.
Baroness Hamwee
I am grateful to noble Lords who have spoken in support of my amendments. I have to say that my trigger finger on my iPad is not fast enough to have got into the Police Reform and Social Responsibility Act. The Minister will understand that I will want to check whether it is on all fours in this regard. If it absolutely is, I might have to say, “You have got me there”.
The amendments have been described as technical. I do not think that they are; they are about people’s livelihoods, and that is why I am quite persistent with them. That was an impressive list of consultees who, we are told, helped to shape the proposal. I could not deduct whether they were shaping a proposal that they did not like and just making it a little better or whether they were going along with the proposal as it was put to them.
I will finish by saying that what I really do not want to see is a confusing of licensing and immigration—a point that crops up at a number of points in the Bill. They are separate issues and that is why I was so concerned. I am grateful to your Lordships for allowing me to indulge myself with this tranche of amendments, and I beg leave to withdraw Amendment 78.
Lord Bates
Lord Bates
Lord Bates
My Lords, I shall speak also to government Amendments 95 to 99, 102 to 104, 107 to 116, 118 and 119, 123, and 127 to 132. I shall await the formal moving of the other amendments in this group and will cover them in my response.
The Government are seeking to prevent illegal working in the taxi and private hire sector, which, like the licensing sector, represents a high risk of illegal working. Many, but not all, licensing authorities undertake immigration checks. We are therefore taking action in Clause 11 and Schedule 2 to mandate immigration checks by all licensing authorities and to embed immigration safeguards in the existing licensing regimes.
I shall be moving a number of amendments today. While they appear significant in number, their purpose is simple, and that is to extend the existing provisions in Schedule 2 to Scotland, Northern Ireland and Plymouth. The main thrust of the government amendments is therefore to ensure that this measure applies across the whole of the UK. The Bill currently amends primary legislation in England and Wales with the sole exception of Plymouth, as I am sure the Deputy Chairman will be interested to know. We have needed extra time to work out and consult on the technical detail to fill these jurisdictional gaps. Taxi and private hire vehicle licensing in Plymouth is covered by the Plymouth City Council Act 1975 and not by the Local Government (Miscellaneous Provisions) Act 1976. Accordingly, we are seeking to amend the 1975 Act to extend to Plymouth taxi and private hire vehicle licensing provisions equivalent to those in the rest of England and Wales.
Further government amendments remove the enabling power in Clause 11 to extend provision to Scotland and Northern Ireland and, in its place, introduce substantive provision. In the case of Scotland, the provisions amend the Civic Government (Scotland) Act 1982 and, in the case of Northern Ireland, the Taxis Act (Northern Ireland) 2008. The Government have worked with the Governments of Scotland and Northern Ireland in bringing forward these amendments.
The remaining government amendments are also technical. We wish to ensure that there is consistency across all relevant licensing legislation where possible in relation to the offence of non-compliance with the mandatory return to the relevant licensing authority of expired licences and licences which have been revoked or suspended on immigration grounds. We also wish to specify the circumstances in which immigration offences and penalties will not be taken into account in any decision to revoke or suspend a licence. These are spent convictions and civil penalties which were served more than three years previously and which have been paid in full. I beg to move.
Baroness Hamwee
My Lords, I have a number of amendments in this group; most of them are amendments to the government amendments and most of them come in pairs.
Amendment 99A is the first amendment of these pairs and deals with the licensing authority having to set an expiry date for a licence for someone who has been granted limited leave to enter or remain in the UK. The Government are proposing that the licence period,
“must end at or before the end of the leave period”,
which could mean a significantly shorter time before the end of the leave period. My amendments would mean that the licence would end at the end of the leave period. It would be fairly obvious that I would want to ask why the Government think it necessary to make provision for it to end some time before the end of the leave period. Presumably, the licensing authority can grant a licence for a shorter period in any event. I can see the need that it should not go on beyond the end of the leave period, but why does it have to be less?
Amendment 99B is the first of the other pairs of amendments. If leave is extended, the licensing authority can set the duration of the licence, which must not be more than six months. Again, I would ask why. I am proposing that the licence should coincide with the leave period. I make the point that I made in the previous group of amendments that we are dealing with people’s livelihoods.
Amendment 117 is pretty much the same as the amendment in the previous group about whether an appeal, having been successful, can be entertained when a licence has been refused and is appealed on. I lost a grip of what the Minister said on that and will have to read Hansard, but he will probably have the same answer.
On Amendments 120 to 124, Schedule 2 provides for guidance from the Secretary of State to the licensing authorities in determining whether an applicant for a licence is disqualified because of his immigration status. My amendments amount to a requirement to consult with representatives of the licensing authorities, including Transport for London.
Lord Kennedy of Southwark
My Lords, this group comprises a large group of government amendments in the name of the noble Lord, Lord Bates, and a number of amendments in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick. It is clear that the government amendments are included to make matters clear and consistent across all relevant lines of legislation. That in itself is a good thing. But for me that further illustrates the point that this legislation has been rushed and ill thought out and these revisions should have been in the Bill from the start.
Also, the Secretary of State is given powers in these government amendments to amend fine amounts by secondary legislation. That may be perfectly acceptable in this case. But the Government like their secondary legislation, hiding behind the limited ability of Parliament to hold them to account in such circumstances, but that I think is a wider issue for the House.
I have looked at the amendments put down by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, and with respect to Amendment 117, they have a good point to make. It is not unreasonable for the courts to take into account that, after the date of a decision being appealed against, the person has been granted leave to remain in or enter the UK.
I take it that the other amendments are probing in nature in order to assist the Committee in further understanding the intention of the Government and satisfying noble Lords that what is being proposed is achievable, and of course they can be retabled later in the course of the Bill if we think it necessary. I very much accept the point made by the noble Baroness, Lady Hamwee, that these are important issues that concern people’s livelihoods.
Lord Bates
My Lords, I understand the nature of the amendments and I understand them better now that the noble Baroness has spoken to them. At the same time, I should like to provide some reassurances on the points she has made, in respect of taxi and private hire licence holders who have limited leave to be in the UK, that any licence granted must be for the full duration of the leave period. This fails to recognise that taxi and private hire licences cannot be granted for more than three years, while operating licences cannot be granted for more than five years. As the licence holder’s immigration leave may expire after the relevant maximum licence duration, the Bill must enable licences to be granted for a shorter period.
Amendments 99B, 99D, 101, 106, 118B, 122, 126 and 131B relate to leave being extended by virtue of Section 3C of the Immigration Act 1971 when a person makes an application in time for an extension of leave, an administrative review or an appeal. While I appreciate the reasons behind these amendments, the Government believe that it is reasonable to limit the duration of a licence issued during a period of Section 3C leave to six months. The provisions would not work in practice without a stated duration, since licensing authorities cannot grant licences of unspecified duration. The six-month duration mirrors the period of an excuse provided to an employer who performs a right to work check on a migrant during a period in which they may have Section 3C leave to remain. If at the end of the six-month period the licence holder has been granted further leave, he or she will be able to demonstrate this leave and obtain a new licence.
Amendment 117 has already been considered by noble Lords in the context of alcohol and late night refreshment licences. The purpose of an appeal is to ascertain whether the original decision was correctly made. It would therefore not be appropriate for the court to consider a subsequent immigration decision. An appellant who has subsequently been granted leave would need to make a fresh application and include the required information which provides evidence of immigration status.
Amendments 120 to 124 would require the Secretary of State to consult licensing authorities and Transport for London before issuing relevant guidance on whether an applicant is disqualified from holding a licence because of their immigration status. This will be done anyway. In formulating these provisions, the Home Office, with the assistance of the Department for Transport, consulted the Local Government Association, licensing authorities, the Institute of Licensing and Transport for London.
In the light of this explanation, which I hope has addressed the key points made by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Kennedy, I hope that she feels reassured enough not to press her amendment.
Lord Bates
“London Hackney Carriages Act 1843 (c. 86)(1) Section 18 of the London Hackney Carriages Act 1843 (licences and badges to be delivered up on the discontinuance of licences) is amended as follows.
(2) At the beginning insert “(1)”.
(3) At the end of subsection (1) insert—
“(2) Subsection (1) does not require the delivery of a licence and badge on the expiry of the licence if the licence was granted in accordance with section 8A(2) or (4) of the Metropolitan Public Carriage Act 1869 (but see section 8A(5A) of that Act).””
“(5A) If a licence granted in accordance with subsection (2) or (4) expires, the person to whom it was granted must, within the period of 7 days beginning with the day after that on which it expired, return to Transport for London—
(a) the licence,(b) the person’s copy of the licence (if any), and(c) the person’s driver’s badge.”
“(7A) The Secretary of State may by regulations made by statutory instrument amend the amount for the time being specified in subsection (7)(b).
(7B) Regulations under subsection (7A) may make transitional, transitory or saving provision.
(7C) A statutory instrument containing regulations under subsection (7A) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
Lord Bates
“Plymouth City Council Act 1975 (c. xx)3A The Plymouth City Council Act 1975 is amended as follows.
3B After section 2 insert—
“2A Persons disqualified by reason of immigration status
(1) For the purposes of this Act a person is disqualified by reason of the person’s immigration status from carrying on a licensable activity if the person is subject to immigration control and—
(a) the person has not been granted leave to enter or remain in the United Kingdom, or(b) the person’s leave to enter or remain in the United Kingdom—(i) is invalid,(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or(iii) is subject to a condition preventing the individual from carrying on the licensable activity.(2) Where a person is on immigration bail within the meaning of Part 1 of Schedule 7 to the Immigration Act 2016—
(a) the person is to be treated for the purposes of this Part of this Act as if the person had been granted leave to enter the United Kingdom, but (b) any condition as to the person’s work in the United Kingdom to which the person’s immigration bail is subject is to be treated for those purposes as a condition of leave.(3) For the purposes of this section a person is subject to immigration control if under the Immigration Act 1971 the person requires leave to enter or remain in the United Kingdom.
(4) For the purposes of this section a person carries on a licensable activity if the person—
(a) drives a private hire vehicle,(b) operates a private hire vehicle, or(c) drives a hackney carriage.2B Immigration offences and immigration penalties
(1) In this Act “immigration offence” means—
(a) an offence under any of the Immigration Acts,(b) an offence under section 1 of the Criminal Attempts Act 1981 of attempting to commit an offence within paragraph (a), or(c) an offence under section 1 of the Criminal Law Act 1977 of conspiracy to commit an offence within paragraph (a).(2) In this Act “immigration penalty” means a penalty under—
(a) section 15 of the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”), or(b) section 23 of the Immigration Act 2014 (“the 2014 Act”).(3) For the purposes of this Act a person to whom a penalty notice under section 15 of the 2006 Act has been given is not to be treated as having been required to pay an immigration penalty if—
(a) the person is excused payment by virtue of section 15(3) of that Act, or (b) the penalty is cancelled by virtue of section 16 or 17 of that Act.(4) For the purposes of this Act a person to whom a penalty notice under section 15 of the 2006 Act has been given is not to be treated as having been required to pay an immigration penalty until such time as—
(a) the period for giving a notice of objection under section 16 of that Act has expired and the Secretary of State has considered any notice given within that period, and(b) if a notice of objection was given within that period, the period for appealing under section 17 of that Act has expired and any appeal brought within that period has been finally determined, abandoned or withdrawn.(5) For the purposes of this Act a person to whom a penalty notice under section 23 of the 2014 Act has been given is not to be treated as having been required to pay an immigration penalty if—
(a) the person is excused payment by virtue of section 24 of that Act, or (b) the penalty is cancelled by virtue of section 29 or 30 of that Act.(6) For the purposes of this Act a person to whom a penalty notice under section 23 of the 2014 Act has been given is not to be treated as having been required to pay an immigration penalty until such time as—
(a) the period for giving a notice of objection under section 29 of that Act has expired and the Secretary of State has considered any notice given within that period, and (b) if a notice of objection was given within that period, the period for appealing under section 30 of that Act has expired and any appeal brought within that period has been finally determined, abandoned or withdrawn.”3C (1) Section 9 (licensing of drivers of private hire vehicles) is amended as follows.
(2) In subsection (1)—
(a) in paragraph (a) after “satisfied” insert “—(i)”, and(b) for the “or” at the end of paragraph (a) substitute “and(ii) that the applicant is not disqualified by reason of the applicant’s immigration status from driving a private hire vehicle; or”.(3) After subsection (1) insert—
“(1A) In determining for the purposes of subsection (1) whether an applicant is disqualified by reason of the applicant’s immigration status from driving a private hire vehicle, the Council must have regard to any guidance issued by the Secretary of State.”
3D In section 11(1) (drivers’ licences for hackney carriages and private hire vehicles)—
(a) in paragraph (a) for “Every” substitute “Subject to section 11A, every”, and(b) in paragraph (b) after “1889,” insert “but subject to section 11A,”.3E After section 11 insert—
“11A Drivers’ licences for persons subject to immigration control
(1) Subsection (2) applies if—
(a) a licence within section 11(1)(a) or (b) is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period (“the leave period”),(b) the person’s leave has not been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision), and(c) apart from subsection (2), the period for which the licence would have been in force would have ended after the end of the leave period.(2) The Council must specify a period in the licence as the period for which it remains in force; and that period must end at or before the end of the leave period.
(3) Subsection (4) applies if—
(a) a licence within section 11(1)(a) or (b) is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period, and(b) the person’s leave has been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision).(4) The Council must specify a period in the licence as the period for which it remains in force; and that period must not exceed six months.
(5) A licence within section 11(1)(a) ceases to be in force if the person to whom it was granted becomes disqualified by reason of the person’s immigration status from driving a private hire vehicle.
(6) A licence within section 11(1)(b) ceases to be in force if the person to whom it was granted becomes disqualified by reason of the person’s immigration status from driving a hackney carriage.
(7) If a licence granted in accordance with subsection (2) or (4) expires, the person to whom it was granted must, within the period of 7 days beginning with the day after that on which it expired, return the licence and the person’s driver’s badge to the Council.
(8) If subsection (5) or (6) applies to a licence, the person to whom it was granted must, within the period of 7 days beginning with the day after the day on which the person first became disqualified, return the licence and the person’s driver’s badge to the Council.
(9) A person who, without reasonable excuse, contravenes subsection (7) or (8) is guilty of an offence and liable on summary conviction—
(a) to a fine not exceeding level 3 on the standard scale, and(b) in the case of a continuing offence, to a fine not exceeding ten pounds for each day during which an offence continues after conviction. (10) The Secretary of State may by regulations made by statutory instrument amend the amount for the time being specified in subsection (9)(b).
(11) Regulations under subsection (10) may make transitional, transitory or saving provision.
(12) A statutory instrument containing regulations under subsection (10) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
3F (1) Section 13 (licensing of operators of private hire vehicles) is amended as follows.
(2) In subsection (1)—
(a) after “satisfied” insert “—(a)”, and(b) at the end of paragraph (a) insert “; and(b) if the applicant is an individual, that the applicant is not disqualified by reason of the applicant’s immigration status from operating a private hire vehicle.”(3) After subsection (1) insert—
“(1A) In determining for the purposes of subsection (1) whether an applicant is disqualified by reason of the applicant’s immigration status from operating a private hire vehicle, the Council must have regard to any guidance issued by the Secretary of State.”
(4) In subsection (2) for “Every” substitute “Subject to section 13A, every”.
3G After section 13 insert—
“13A Operators’ licences for persons subject to immigration control
(1) Subsection (2) applies if—
(a) a licence under section 13 is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period (“the leave period”),(b) the person’s leave has not been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision), and(c) apart from subsection (2), the period for which the licence would have been in force would have ended after the end of the leave period.(2) The Council must specify a period in the licence as the period for which it remains in force; and that period must end at or before the end of the leave period.
(3) Subsection (4) applies if—
(a) a licence under section 13 is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period, and(b) the person’s leave has been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision).(4) The Council must specify a period in the licence as the period for which it remains in force; and that period must not exceed six months.
(5) A licence under section 13 ceases to be in force if the person to whom it was granted becomes disqualified by reason of the person’s immigration status from operating a private hire vehicle.
(6) If a licence granted in accordance with subsection (2) or (4) expires, the person to whom it was granted must, within the period of 7 days beginning with the day after that on which it expired, return the licence to the Council.
(7) If subsection (5) applies to a licence, the person to whom it was granted must, within the period of 7 days beginning with the day after the day on which the person first became disqualified, return it to the Council.
(8) A person who, without reasonable excuse, contravenes subsection (6) or (7) is guilty of an offence and liable on summary conviction—
(a) to a fine not exceeding level 3 on the standard scale, and (b) in the case of a continuing offence, to a fine not exceeding ten pounds for each day during which an offence continues after conviction.(9) The Secretary of State may by regulations made by statutory instrument amend the amount for the time being specified in subsection (8)(b).
(10) Regulations under subsection (9) may make transitional, transitory or saving provision.
(11) A statutory instrument containing regulations under subsection (9) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
3H (1) Section 17 (qualification for drivers of hackney carriages) is amended as follows.
(2) In subsection (1)—
(a) in paragraph (a) after “satisfied” insert “—(i)”, and(b) for the “or” at the end of paragraph (a) substitute “and(ii) that the applicant is not disqualified by reason of the applicant’s immigration status from driving a hackney carriage; or”.(3) After subsection (1) insert—
“(1A) In determining for the purposes of subsection (1) whether an applicant is disqualified by reason of the applicant’s immigration status from driving a hackney carriage, the Council must have regard to any guidance issued by the Secretary of State.”
3I (1) Section 19 (suspension and revocation of drivers’ licences) is amended as follows.
(2) In subsection (1) before the “or” at the end of paragraph (a) insert—
“(aa) that he has since the grant of the licence been convicted of an immigration offence or required to pay an immigration penalty;”.(3) After subsection (1) insert—
“(1A) Subsection (1)(aa) does not apply if—
(a) in a case where the driver has been convicted of an immigration offence, the conviction is a spent conviction within the meaning of the Rehabilitation of Offenders Act 1974, or(b) in a case where the driver has been required to pay an immigration penalty—(i) more than three years have elapsed since the date on which the penalty was imposed, and(ii) the amount of the penalty has been paid in full.”(4) After subsection (2) insert—
“(2A) The requirement in subsection (2)(a) to return a driver’s badge does not apply in a case where section 20A applies (but see subsection (2) of that section)).””
3J (1) Section 20 (suspension and revocation of operators’ licences) is amended as follows.
(2) In subsection (1) before the “or” at the end of paragraph (c) insert—
“(ca) that the operator has since the grant of the licence been convicted of an immigration offence or required to pay an immigration penalty;”.(3) After subsection (1) insert—
“(1A) Subsection (1)(ca) does not apply if—
(a) in a case where the operator has been convicted of an immigration offence, the conviction is a spent conviction within the meaning of the Rehabilitation of Offenders Act 1974, or(b) in a case where the operator has been required to pay an immigration penalty—(i) more than three years have elapsed since the date on which the penalty was imposed, and(ii) the amount of the penalty has been paid in full.”3K After section 20 insert—
“20A Return of licences suspended or revoked on immigration grounds
(1) Subsection (2) applies if—
(a) under section 19 the Council suspend, revoke or refuse to renew the licence of a driver of a hackney carriage or a private hire vehicle on the ground mentioned in subsection (1)(aa) of that section, or(b) under section 20 the Council suspend, revoke or refuse to renew an operator’s licence on the ground mentioned in subsection (1)(ca) of that section.(2) The person to whom the licence was granted must, within the period of 7 days beginning with the relevant day, return to the Council—
(a) the licence, and(b) in the case of a licence of a driver of a hackney carriage or a private hire vehicle, the person’s driver’s badge.(3) In subsection (2) “the relevant day” means—
(a) where the licence is suspended or revoked, the day on which the suspension or revocation takes effect;(b) where the Council refuse to renew the licence, the day on which the licence expires as a result of the failure to renew it.(4) A person who, without reasonable excuse, contravenes subsection (2) is guilty of an offence and liable on summary conviction—
(a) to a fine not exceeding level 3 on the standard scale, and(b) in the case of a continuing offence, to a fine not exceeding ten pounds for each day during which an offence continues after conviction.(5) The Secretary of State may by regulations made by statutory instrument amend the amount for the time being specified in subsection (4)(b).
(6) Regulations under subsection (5) may make transitional, transitory or saving provision.
(7) A statutory instrument containing regulations under subsection (8) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.””
3L In section 37 (appeals) after subsection (2) insert—
“(3) On an appeal under this Act or an appeal under section 302 of the Act of 1936 as applied by this section, the court is not entitled to entertain any question as to whether—
(a) a person should be, or should have been, granted leave to enter or remain in the United Kingdom, or(b) a person has, after the date of the decision being appealed against, been granted leave to enter or remain in the United Kingdom.””
Baroness Hamwee
Baroness Hamwee
My Lords, with the leave of House, perhaps I may respond to some points made by the Minister on these amendments. I will be very quick. As to the requirement as regards private hire licensing and alcohol licensing for an applicant who did not have leave at the point when the initial decision was made but gets leave in the interim period before an appeal, it is very hard on that applicant that the licensing of the appeal court—although “appeal” may not be quite the right term for what I am trying to say—cannot entertain the consideration of that situation. The applicant will incur costs and a delay. Businesses will be affected and third parties—employees—may be affected. Of everything I have heard, that concerns me particularly. I may be misunderstanding some of the procedures but, if I am misunderstanding them and the language is not completely clear, that could cause a problem for those who will have to operate them. I beg to move.
Lord Bates
To clarify for the noble Baroness, I understand her point. My understanding is that what we are saying is that the applicant should not be making an application for a licence that extends beyond the period in which they have leave to remain in the country. Therefore, the point we are seeking to hold is that they should have the licence for the period which relates to the legal position that they have been given to be in the UK. We are trying to tie up those two points.
Baroness Hamwee
My Lords, I think I follow that—but what if the application for leave has initially been turned down on the basis of a mistake? That would leave the applicant for a licence in a difficult position. I do not think that it will benefit us to take this discussion further now, but I have no doubt that the Minister, in his usual very helpful way, will be able to undertake discussions between Committee and Report. I will certainly look at it again and perhaps we could pursue it.
Lord Bates
“(6A) If a licence granted in accordance with subsection (2) or (4) expires, the person to whom it was granted must, within the period of 7 days beginning with the day after that on which it expired, return the licence and the person’s driver’s badge to the district council which granted the licence.”
“(9) The Secretary of State may by regulations made by statutory instrument amend the amount for the time being specified in subsection (8)(b).
(10) Regulations under subsection (9) may make transitional, transitory or saving provision.
(11) A statutory instrument containing regulations under subsection (9) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.””
Lord Bates
“(5A) If a licence granted in accordance with subsection (2) or (4) expires, the person to whom it was granted must, within the period of 7 days beginning with the day after that on which it expired, return the licence to the district council which granted the licence.”
“(8) The Secretary of State may by regulations made by statutory instrument amend the amount for the time being specified in subsection (7)(b).
(9) Regulations under subsection (8) may make transitional, transitory or saving provision.
(10) A statutory instrument containing regulations under subsection (8) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.””
“( ) Section 61 (suspension and revocation of driver’s licences) is amended as follows.”
“( ) After subsection (1) insert—
“(1A) Subsection (1)(aa) does not apply if—
(a) in a case where the driver has been convicted of an immigration offence, the conviction is a spent conviction within the meaning of the Rehabilitation of Offenders Act 1974, or(b) in a case where the driver has been required to pay an immigration penalty—(i) more than three years have elapsed since the date on which the penalty was imposed, and(ii) the amount of the penalty has been paid in full.”( ) After subsection (2) insert—
“(2ZA) The requirement in subsection (2)(a) to return a driver’s badge does not apply in a case where section 62A applies (but see subsection (2) of that section).””
“( ) Section 62 (suspension and revocation of operators’ licences) is amended as follows.”
“( ) After subsection (1) insert—
“(1A) Subsection (1)(ca) does not apply if—
(a) in a case where the operator has been convicted of an immigration offence, the conviction is a spent conviction within the meaning of the Rehabilitation of Offenders Act 1974, or(b) in a case where the operator has been required to pay an immigration penalty—(i) more than three years have elapsed since the date on which the penalty was imposed, and(ii) the amount of the penalty has been paid in full.””
“After section 62 insert—
“62A Return of licences suspended or revoked on immigration grounds
(1) Subsection (2) applies if—
(a) under section 61 a district council suspend, revoke or refuse to renew the licence of a driver of a hackney carriage or a private hire vehicle on the ground mentioned in subsection (1)(aa) of that section, or(b) under section 62 a district council suspend, revoke or refuse to renew an operator’s licence on the ground mentioned in subsection (1)(ca) of that section.(2) The person to whom the licence was granted must, within the period of 7 days beginning with the relevant day, return to the district council—
(a) the licence, and(b) in the case of a licence of a driver of a hackney carriage or a private hire vehicle, the person’s driver’s badge.(3) In subsection (2) “the relevant day” means—
(a) where the licence is suspended or revoked, the day on which the suspension or revocation takes effect;(b) where the district council refuse to renew the licence, the day on which the licence expires as a result of the failure to renew it.(4) A person who, without reasonable excuse, contravenes subsection (2) is guilty of an offence and liable on summary conviction—
(a) to a fine not exceeding level 3 on the standard scale, and(b) in the case of a continuing offence, to a fine not exceeding ten pounds for each day during which an offence continues after conviction.(5) The Secretary of State may by regulations made by statutory instrument amend the amount for the time being specified in subsection (4)(b).
(6) Regulations under subsection (5) may make transitional, transitory or saving provision.
(7) A statutory instrument containing regulations under subsection (8) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.””
Lord Bates
“Civic Government (Scotland) Act 1982 (c. 45)14A The Civic Government (Scotland) Act 1982 is amended as follows.
14B In section 13 (taxi and private hire car driving licences) after subsection (3) insert—
“(3A) A licensing authority shall not grant a licence to any person under this section unless the authority is satisfied that the person is not disqualified by reason of the applicant’s immigration status from driving a taxi or private hire car.
(3B) Section 13A makes provision for the purposes of subsection (3A) about the circumstances in which a person is disqualified by reason of the person’s immigration status from driving a taxi or private hire car.
(3C) In determining for the purposes of subsection (3A) whether a person is disqualified by reason of the person’s immigration status from driving a taxi or private hire car, a licensing authority must have regard to any guidance issued by the Secretary of State.”
14C After section 13 insert—
“13A Persons disqualified by reason of immigration status
(1) For the purposes of section 13(3A) a person is disqualified by reason of the person’s immigration status from driving a taxi or private hire car if the person is subject to immigration control and—
(a) the person has not been granted leave to enter or remain in the United Kingdom, or(b) the person’s leave to enter or remain in the United Kingdom—(i) is invalid,(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or(iii) is subject to a condition preventing the individual from driving a taxi or private hire car.(2) Where a person is on immigration bail within the meaning of Part 1 of Schedule 7 to the Immigration Act 2016—
(a) the person is to be treated for the purposes of this section as if the person had been granted leave to enter the United Kingdom, but(b) any condition as to the person’s work in the United Kingdom to which the person’s immigration bail is subject is to be treated for those purposes as a condition of leave.(3) For the purposes of this section a person is subject to immigration control if under the Immigration Act 1971 the person requires leave to enter or remain in the United Kingdom.”
14D (1) Schedule 1 (licensing - further provisions as to the general system) is amended as follows.
(2) In paragraph 8 (duration of licences) in sub-paragraph (8) after “paragraphs” insert “8A and”.
(3) After paragraph 8 insert—
“Taxi etc driving licences for persons subject to immigration control8A (1) Sub-paragraph (2) applies if—
(a) a taxi driver’s licence or private hire car driver’s licence is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period (“the leave period”),(b) the person’s leave has not been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision), and(c) apart from sub-paragraph (2), the period for which the licence would have had effect would have ended after the end of the leave period.(2) The licensing authority which grants the licence must specify a period in the licence as the period for which it has effect; and that period must end at or before the end of the leave period.
(3) Sub-paragraph (4) applies if—
(a) a taxi driver’s licence or private hire car driver’s licence is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period, and(b) the person’s leave has been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision).(4) The licensing authority which grants the licence must specify a period in the licence as the period for which it has effect; and that period must not exceed six months.
(5) A taxi driver’s licence or private hire car driver’s licence ceases to have effect if the person to whom it was granted becomes disqualified by reason of the person’s immigration status from driving a taxi or private hire car.
(6) Section 13A (persons disqualified by reason of immigration status) applies for the purposes of sub-paragraph (5) as it applies for the purposes of section 13(3A).
(7) If a licence granted in accordance with sub-paragraph (2) or (4) expires, the person to whom it was granted must, within the period of 7 days beginning with the day after that on which it expired, return the licence to the licensing authority.
(8) If sub-paragraph (5) applies to a licence, the person to whom it was granted must, within the period of 7 days beginning with the day after the day on which the person first became disqualified, return the licence to the licensing authority which granted the licence.
(9) A person who, without reasonable excuse, contravenes sub-paragraph (7) or (8) is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(10) This paragraph applies in relation to the renewal of a licence as it applies in relation to the grant of a licence.”
(4) In paragraph 11 (suspension and revocation of licences) after sub-paragraph (2) insert—
“(2A) A licensing authority may order the suspension or revocation of a taxi driver’s licence or a private hire car driver’s licence if the holder of the licence has, since its grant, been convicted of an immigration offence or required to pay an immigration penalty (see paragraph 20).(2B) Sub-paragraph (2A) does not apply if—(a) in a case where the holder of the licence has been convicted of an immigration offence, the conviction is a spent conviction within the meaning of the Rehabilitation of Offenders Act 1974, or(b) in a case where the holder of the licence has been required to pay an immigration penalty—(i) more than three years have elapsed since the date on which the penalty was imposed, and(ii) the amount of the penalty has been paid in full.”(5) In paragraph 18 (appeals) after sub-paragraph (8) insert—
“(8A) On an appeal under this paragraph relating to a taxi driver’s licence or a private hire car driver’s licence, the sheriff is not entitled to entertain any question as to whether— (a) a person should be, or should have been, granted leave to enter or remain in the United Kingdom, or(b) a person has, after the date of the decision being appealed against, been granted leave to enter or remain in the United Kingdom.”(6) After paragraph 19 insert—
“20 (1) In this Schedule “immigration offence” means an offence under any of the Immigration Acts.
(2) In this Schedule “immigration penalty” means a penalty under—
(a) section 15 of the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”), or(b) section 23 of the Immigration Act 2014 (“the 2014 Act”).(3) For the purposes of this Schedule a person to whom a penalty notice under section 15 of the 2006 Act has been given is not to be treated as having been required to pay an immigration penalty if—
(a) the person is excused payment by virtue of section 15(3) of that Act, or (b) the penalty is cancelled by virtue of section 16 or 17 of that Act.(4) For the purposes of this Schedule a person to whom a penalty notice under section 15 of the 2006 Act has been given is not to be treated as having been required to pay an immigration penalty until such time as—
(a) the period for giving a notice of objection under section 16 of that Act has expired and the Secretary of State has considered any notice given within that period, and(b) if a notice of objection was given within that period, the period for appealing under section 17 of that Act has expired and any appeal brought within that period has been finally determined, abandoned or withdrawn. (5) For the purposes of this Schedule a person to whom a penalty notice under section 23 of the 2014 Act has been given is not to be treated as having been required to pay an immigration penalty if—
(a) the person is excused payment by virtue of section 24 of that Act, or (b) the penalty is cancelled by virtue of section 29 or 30 of that Act.(6) For the purposes of this Schedule a person to whom a penalty notice under section 23 of the 2014 Act has been given is not to be treated as having been required to pay an immigration penalty until such time as—
(a) the period for giving a notice of objection under section 29 of that Act has expired and the Secretary of State has considered any notice given within that period, and (b) if a notice of objection was given within that period, the period for appealing under section 30 of that Act has expired and any appeal brought within that period has been finally determined, abandoned or withdrawn.””
Lord Bates
“Road Traffic Offenders (Northern Ireland) Order 1996 (SI 1996/1320 (NI 10))(1) Part 1 of Schedule 1 to the Road Traffic Offenders (Northern Ireland) Order 1996 (SI 1996/1320 (NI 10)) is amended as follows.
(2) After the entry relating to section 1(3) of the Taxis Act (Northern Ireland) 2008 insert—
“Section 2A(8) | Failing to return an operator’s licence | Summarily | Level 3 on the standard scale”. |
“Section 23A(8) | Failing to return an operator’s licence | Summarily | Level 3 on the standard scale”.” |
Lord Bates
“(8) The Secretary of State may by regulations amend the amount for the time being specified in subsection (7)(b).””
Lord Bates
“(8) The Secretary of State may by regulations amend the amount for the time being specified in subsection (7)(b).””
“( ) After subsection (2) insert—
“(2A) Subsection (2)(aa) does not apply if—
(a) in a case where the licence holder has been convicted of an immigration offence, the conviction is a spent conviction within the meaning of the Rehabilitation of Offenders Act 1974, or(b) in a case where the licence holder has been required to pay an immigration penalty—(i) more than three years have elapsed since the date on which the penalty was imposed, and(ii) the amount of the penalty has been paid in full.””
“( ) After subsection (4) insert—
“(5) Subsection (4)(aa) does not apply if—
(a) in a case where the licence holder has been convicted of an immigration offence, the conviction is a spent conviction within the meaning of the Rehabilitation of Offenders Act 1974, or(b) in a case where the licence holder has been required to pay an immigration penalty—(i) more than three years have elapsed since the date on which the penalty was imposed, and(ii) the amount of the penalty has been paid in full.””
“(1) Section 32 (regulations) is amended as follows.
(2) In subsection (1) after “other than section” in the first place those words appear insert “3A(8), 13A(8) or”.
(3) After subsection (2) insert—
“(2A) The power to make regulations conferred on the Secretary of State by section 3A(8) or 13A(8) is exercisable by statutory instrument.
(2B) A statutory instrument containing regulations under either of those sections may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
(4) In subsection (4) after “made under section” insert “3A(8), 13A(8) or”.”
Lord Bates
“Taxis Act (Northern Ireland) 2008 (c. 4)25 The Taxis Act (Northern Ireland) 2008 is amended as follows.
26 (1) Section 2 (operator’s licences) is amended as follows.
(2) In subsection (4) for the “and” at the end of paragraph (a) substitute—
“(aa) if the applicant is an individual, the applicant is not disqualified by reason of the applicant’s immigration status from operating a taxi service; and”.(3) After subsection (4) insert—
“(4A) In determining for the purposes of subsection (4) whether an applicant is disqualified by reason of the applicant’s immigration status from operating a taxi service, the Department must have regard to any guidance issued by the Secretary of State.”
(4) In subsection (7) for “An” substitute “Subject to section 2A, an”.
27 After section 2 insert—
“2A Operator’s licences for persons subject to immigration control
(1) Subsection (2) applies if—
(a) an operator’s licence is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period (“the leave period”),(b) the person’s leave has not been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision), and(c) apart from subsection (2), the period for which the licence would have been granted would have ended after the end of the leave period.(2) The licence must be granted for a period which ends at or before the end of the leave period.
(3) Subsection (4) applies if—
(a) an operator’s licence is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period, and(b) the person’s leave has been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision).(4) The licence must be granted for a period which does not exceed six months.
(5) An operator’s licence ceases to be in force if the person to whom it was granted becomes disqualified by reason of the person’s immigration status from operating a taxi service.
(6) If a licence granted in accordance with subsection (2) or (4) expires, the person to whom it was granted must, within the period of 7 days beginning with the day after that on which it expired, return it to the Department.
(7) If subsection (5) applies to a licence, the person to whom it was granted must, within the period of 7 days beginning with the day after the day on which the person first became disqualified, return it to the Department.
(8) A person who, without reasonable excuse, contravenes subsection (6) or (7) is guilty of an offence.”
28 (1) Section 23 (taxi driver’s licences) is amended as follows.
(2) In subsection (2) after paragraph (a) insert—
“(aa) the applicant is not disqualified by reason of the applicant’s immigration status from driving a taxi;”.(3) After subsection (2) insert—
“(2A) In determining for the purposes of subsection (2) whether an applicant is disqualified by reason of the applicant’s immigration status from driving a taxi, the Department must have regard to any guidance issued by the Secretary of State.”
(4) In subsection (8) for “A” substitute “Subject to section 23A, a”.
29 After section 23 insert—
“23A Taxi driver’s licences for persons subject to immigration control
(1) Subsection (2) applies if—
(a) a taxi driver’s licence is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period (“the leave period”),(b) the person’s leave has not been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision), and(c) apart from subsection (2), the period for which the licence would have been granted would have ended after the end of the leave period.(2) The licence must be granted for a period which ends at or before the end of the leave period.
(3) Subsection (4) applies if—
(a) a taxi driver’s licence is to be granted to a person who has been granted leave to enter or remain in the United Kingdom for a limited period, and (b) the person’s leave has been extended by virtue of section 3C of the Immigration Act 1971 (continuation of leave pending variation decision).(4) The licence must be granted for a period which does not exceed six months.
(5) A taxi driver’s licence ceases to be in force if the person to whom it was granted becomes disqualified by reason of the person’s immigration status from driving a taxi.
(6) If a licence granted in accordance with subsection (2) or (4) expires, the person to whom it was granted must, within the period of 7 days beginning with the day after that on which it expired, return to the Department—
(a) the licence,(b) the person’s driver’s badge, and(c) any other evidence of identification which the Department has issued under section 24.(7) If subsection (5) applies to a licence, the person to whom it was granted must, within the period of 7 days beginning with the day after the day on which the person first became disqualified, return to the Department—
(a) the licence,(b) the person’s driver’s badge, and(c) any other evidence of identification which the Department has issued under section 24.(8) A person who, without reasonable excuse, contravenes subsection (6) or (7) is guilty of an offence.”
30 (1) Section 26 (power to suspend, revoke licences or curtail licences) is amended as follows.
(2) In subsection (2) before the “or” at the end of paragraph (a) insert—
“(aa) the licence holder has, since the grant of the licence, been convicted of an immigration offence or required to pay an immigration penalty;”.(3) After subsection (2) insert—
“(2A) Subsection (2)(aa) does not apply if—
(a) in a case where the licence holder has been convicted of an immigration offence, the conviction is a spent conviction within the meaning of the Rehabilitation of Offenders (Northern Ireland) Order 1978 (SI 1978/1908 (NI 27)), or(b) in a case where the licence holder has been required to pay an immigration penalty—(i) more than three years have elapsed since the date on which the penalty was imposed, and(ii) the amount of the penalty has been paid in full.”(4) In subsection (6) before the “or” at the end of paragraph (a) insert—
“(aa) the licence holder has, since the grant of the licence, been convicted of an immigration offence or required to pay an immigration penalty;”.(5) After subsection (6) insert—
“(7) Subsection (6)(aa) does not apply if—
(a) in a case where the licence holder has been convicted of an immigration offence, the conviction is a spent conviction within the meaning of the Rehabilitation of Offenders (Northern Ireland) Order 1978 (SI 1978/1908 (NI 27)), or(b) in a case where the licence holder has been required to pay an immigration penalty—(i) more than three years have elapsed since the date on which the penalty was imposed, and(ii) the amount of the penalty has been paid in full.””31 In section 32 (return of licences etc) after subsection (5) insert—
“(5A) Subsection (4) does not apply if the licence was granted in accordance with section 2A(2) or (4) or 23A(2) or (4) (but see sections 2A(6) and 23A(6)).”
32 In section 34 (appeals) after subsection (5) insert—
“(6) On any appeal, the court is not entitled to entertain any question as to whether—
(a) a person should be, or should have been, granted leave to enter or remain in the United Kingdom, or(b) a person has, after the date of the decision being appealed against, been granted leave to enter or remain in the United Kingdom.”33 After section 56 insert—
“56A Persons disqualified by reason of immigration status
(1) For the purposes of this Act a person is disqualified by reason of the person’s immigration status from carrying on a licensable activity if the person is subject to immigration control and—
(a) the person has not been granted leave to enter or remain in the United Kingdom, or(b) the person’s leave to enter or remain in the United Kingdom—(i) is invalid,(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or(iii) is subject to a condition preventing the individual from carrying on the licensable activity.(2) Where a person is on immigration bail within the meaning of Part 1 of Schedule 7 to the Immigration Act 2016—
(a) the person is to be treated for the purposes of this Part as if the person had been granted leave to enter the United Kingdom, but(b) any condition as to the person’s work in the United Kingdom to which the person’s immigration bail is subject is to be treated for those purposes as a condition of leave.(3) For the purposes of this section a person is subject to immigration control if under the Immigration Act 1971 the person requires leave to enter or remain in the United Kingdom.
(4) For the purposes of this section a person carries on a licensable activity if the person—
(a) operates a taxi service, or(b) drives a taxi.56B Immigration offences and immigration penalties
(1) In this Act “immigration offence” means—
(a) an offence under any of the Immigration Acts,(b) an offence under Article 3 of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 (SI 1982/1120 (NI 13)) of attempting to commit an offence within paragraph (a), or(c) an offence under Article 9 of that Order of conspiracy to commit an offence within paragraph (a).(2) In this Act “immigration penalty” means a penalty under—
(a) section 15 of the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”), or(b) section 23 of the Immigration Act 2014 (“the 2014 Act”).(3) For the purposes of this Act a person to whom a penalty notice under section 15 of the 2006 Act has been given is not to be treated as having been required to pay an immigration penalty if—
(a) the person is excused payment by virtue of section 15(3) of that Act, or (b) the penalty is cancelled by virtue of section 16 or 17 of that Act. (4) For the purposes of this Act a person to whom a penalty notice under section 15 of the 2006 Act has been given is not to be treated as having been required to pay an immigration penalty until such time as—
(a) the period for giving a notice of objection under section 16 of that Act has expired and the Secretary of State has considered any notice given within that period, and(b) if a notice of objection was given within that period, the period for appealing under section 17 of that Act has expired and any appeal brought within that period has been finally determined, abandoned or withdrawn.(5) For the purposes of this Act a person to whom a penalty notice under section 23 of the 2014 Act has been given is not to be treated as having been required to pay an immigration penalty if—
(a) the person is excused payment by virtue of section 24 of that Act, or (b) the penalty is cancelled by virtue of section 29 or 30 of that Act.(6) For the purposes of this Act a person to whom a penalty notice under section 23 of the 2014 Act has been given is not to be treated as having been required to pay an immigration penalty until such time as—
(a) the period for giving a notice of objection under section 29 of that Act has expired and the Secretary of State has considered any notice given within that period, and (b) if a notice of objection was given within that period, the period for appealing under section 30 of that Act has expired and any appeal brought within that period has been finally determined, abandoned or withdrawn.””
Lord Bates
“Transitional provision(1) Subject to sub-paragraph (2), an amendment made by any of paragraphs 2, 3, 3C to 3H, 5 to 10, 14B, 14D(2) and (3), 17 to 20 and 25 to 28 does not apply in relation to an application for a licence made before the coming into force of that paragraph or a licence granted in response to such an application.
(2) Sub-paragraph (1) does not prevent an amendment made by any of those paragraphs from applying in relation to—
(a) an application for the renewal of a licence where that licence was granted before the coming into force of that paragraph, or(b) a licence renewed in response to such an application.(1) Subject to sub-paragraphs (2) and (3), an amendment made by any of paragraphs 3I, 3J, 11, 12, 14D(4), 21 and 29 applies in relation to a licence granted before or after the coming into force of that paragraph.
(2) An amendment made by any of those paragraphs applies in relation to a conviction for an immigration offence only if the person in question has been convicted of that offence after the coming into force of that paragraph in respect of the person’s conduct after that time.
(3) An amendment made by any of those paragraphs applies in relation to a requirement to pay an immigration penalty only if the person in question has been required to pay the penalty after the coming into force of that paragraph in respect of the person’s conduct after that time.
(1) Section 19(1) of the Plymouth City Council Act 1975 has effect in relation to the licence of a driver of a hackney carriage or private hire vehicle granted before the coming into force of paragraph 3I as if before the “or” at the end of paragraph (a) there were inserted—
“(ab) in the case of a refusal to renew a licence, that he is disqualified by reason of his immigration status from driving a hackney carriage or a private hire vehicle;”. (2) Section 20A(1)(a) of that Act has effect in relation to such a licence as if after “subsection (1)(aa)” there were inserted “or (ab)”.
(3) Section 20(1) of that Act has effect in relation to an operator’s licence granted before the coming into force of paragraph 3J as if before the “or” at the end of paragraph (c) there were inserted—
“(cb) in the case of a refusal to renew a licence, that the operator is disqualified by reason of the operator’s immigration status from operating a private hire vehicle;”.(4) Section 20A(1)(b) of that Act has effect in relation to such a licence as if after “subsection (1)(ca)” there were inserted “or (cb)”.
(5) Section 61(1) of the Local Government (Miscellaneous Provisions) Act 1976 has effect in relation to the licence of a driver of a hackney carriage or private hire vehicle granted before the coming into force of paragraph 11 as if before the “or” at the end of paragraph (a) there were inserted—
“(ab) in the case of a refusal to renew a licence, that he is disqualified by reason of his immigration status from driving a hackney carriage or a private hire vehicle;”.(6) Section 62A(1)(a) of that Act has effect in relation to such a licence as if after “subsection (1)(aa)” there were inserted “or (ab)”.
(7) Section 62(1) of that Act has effect in relation to an operator’s licence granted before the coming into force of paragraph 12 as if before the “or” at the end of paragraph (c) there were inserted—
“(cb) in the case of a refusal to renew a licence, that the operator is disqualified by reason of the operator’s immigration status from operating a private hire vehicle;”.(8) Section 62A(1)(b) of that Act has effect in relation to such a licence as if after “subsection (1)(ca)” there were inserted “or (cb)”.
(9) Subsections (3A) to (3C) of section 13 of the Civic Government (Scotland) Act 1982 apply in relation to an application for the renewal of a taxi driver’s or private hire car driver’s licence granted before the coming into force of paragraph 14B as they apply in relation to an application for the grant of such a licence made after that time.”
Baroness Hamwee
My Lords, my noble friend Lord Paddick and I do not wish to see Clause 12 stand part of the Bill. We have other amendments in the group, and we intend to oppose the question that Schedule 3 be the third schedule to the Bill. I have some amendments to Schedule 3 as I am not entirely confident that the Minister will instantly accede to our amendments to and arguments on the schedule.
These provisions are about closing premises if it is thought that illegal working is taking place, followed by the possibility of compliance orders. It seems to us that these are something of a sledgehammer set of provisions. If anyone should be allowed to wield a sledgehammer, it should be the courts, not the Executive. A lot of this Bill—as we have said before and, I dare say, will say again—is about sending messages, which we do not think is the purpose of legislation.
The Bill would give immigration officers powers to close an employer’s premises for up to 48 hours when they are satisfied on reasonable grounds that the employer is employing an illegal worker. He might, of course, not necessarily actually be an illegal worker, but someone that the immigration officer has reasonable cause to believe is not entitled to work. I accept the phrase “reasonable cause” but, by definition, “reasonable cause” is not fact. A closure notice can lead on a pretty fast track to a compliance order being imposed for up to two years, which is a matter for the court. It seems to me that any closure, including the initial closure, should be a matter for the court. What happens when there are mistakes, poor decisions or bad judgment on the part of an immigration officer? The consequences for an employer can be considerable to both his reputation and financially, as they can be for the employees legally working for a business and, indeed, for other separate businesses operating from the same premises. Why is this measure required, given the criminal sanctions proposed for illegally employing someone? What safeguards are provided to ensure that this power is not used oppressively? What records will be made of the decision-making process and will they be disclosed to the owner of the premises?
As I said, I have tabled specific amendments to Schedule 3. Paragraph 1(12) requires an immigration officer to consult anyone he thinks is appropriate before issuing a closure notice. Amendment 135 would require consultation—which, of course, in this context would mean discussion before issuing the notice—with, as a minimum, the employer, people who live on the premises and anyone who has an interest in the premises.
Amendment 146 was tabled following debate in the Commons on paragraph 15(3)(d) of Schedule 3, which is about the possibility of compensation for loss being ordered by the court if, having regard to all the circumstances, the court is satisfied that it is appropriate. The discussion was around whether other criteria must also be satisfied. The Government consider that the word “and” should be included at the end of the relevant provision, not “or”. This is clearly an important point. The ability to order compensation for an employer is restricted, as are the circumstances in which compensation can be paid to third parties—the sort of third parties I have mentioned—who would be adversely affected. Therefore, I am not happy with the Government’s amendment, but at least it will bring clarity.
If the Secretary of State has presented inaccurate information to the court which has led the court to make an order which it would not otherwise have made, or the Secretary of State has acted in an oppressive manner or otherwise wrongfully, will the court have the power to order the payment of compensation or damages without having to start separate proceedings? And if not, why not? The government amendments remove all possibility of compensation for losses incurred as a result of an illegal working closure notice if that notice has been cancelled. It seems likely that where a notice has been issued wrongly, the Home Office should move to cancel it. I ask these questions to seek clarification on these provisions.
Lord Ashton of Hyde (Con)
My Lords, it might be helpful for noble Lords if I speak now to the government amendments to explain them and come to the noble Baroness’s amendments and the stand part debate at the end.
Government Amendments 136 to 145 and 147 have been tabled in respect of illegal working closure notices and compliance orders. They are technical matters, although they also clarify the circumstances in which a person may apply to the courts for compensation where they allege they have suffered financial loss as a consequence of an illegal working closure notice.
Amendment 136 clarifies that an immigration officer may cancel a closure notice only if either the employer operating at the premises is not employing any illegal workers, or the employer does not have an unspent conviction for the offence of knowingly employing an illegal worker, or has not received a civil penalty for employing an illegal worker which is less than three years old or which remains unpaid. This is because these are the circumstances in which a closure notice may be served, according to Schedule 3, paragraph 1(3) and (6).
Amendment 137 corrects an incorrect cross-reference. Amendment 139 excludes compensation from being available where a notice has been cancelled due to the employer being able to evidence compliance with right-to-work checks only after the notice has been issued. This is to ensure that any deliberate delay by the employer is not incentivised in the knowledge that they could still claim compensation. Amendments 140, 141 and 142 simply delete unnecessary references.
Amendments 143 and 144 make it clear that a compensation order may be made only when there has been a mistake of fact as to the conditions in paragraph 1(3) or 1(6) being satisfied. Employers will be given an opportunity to demonstrate that they have conducted right-to-work checks in relation to any illegal workers found before there is any decision to serve a closure notice. The court has discretion to award compensation where these specified conditions have not been satisfied and the claimant has suffered financial loss in consequence of a closure notice.
Following debate in the other place, Amendment 145 simply confirms that the relevant paragraph has a conjunctive construction. In case some noble Lords do not understand that, it means that we add an “and” to the penultimate sub-paragraph, which means that all the conditions must be satisfied
Amendments 138 and 147 omit paragraph 15(4) as it was felt this contributed to the ambiguity raised in debate in the other place. By preventing compensation for financial loss in relation to a person’s work, it could have been read to prevent all compensation for financial loss in relation to a closure notice, such as the earnings of illegal and legal workers. I can assure the Committee that that is not the Government’s intention. Therefore, the government amendments clarify that the compensation mechanism will apply in cases of mistake on specified grounds. I beg to move.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
My Lords, at the risk of being a pedant, I point out that, strictly, these amendments are not moved; they are spoken to at this time. They are moved only in the order in which they appear in the Marshalled List.
Baroness Ludford (LD)
My Lords, I react with as much puzzlement to the Minister calling the government amendments “technical matters” as my noble friend Lady Hamwee did when the noble Lord, Lord Kennedy, called her Amendments 78 to 91 on licensing, “technical amendments”. These are about people’s livelihoods, whether it is a licence or closing premises. It seems an extraordinary use of Executive power for an immigration officer to be able to close premises—a shop or other place of work—under the conditions that have been cited. I cannot see how this complies with the rule of law. There is going to be no transparency in this process.
Lord Ashton of Hyde
My Lords, I thank the two noble Baronesses who have spoken. I start by making the general point that these powers will be used only for repeat offenders. They will not be used widely; they are for the most egregious offenders. As well as employing illegal workers, they must already have had illegal working penalties or convictions.
Clause 12, which gives effect to Schedule 3, sets out the regime for illegal working closure notices and illegal working compliance orders. The clause and schedule provide new powers to deal with businesses that repeatedly flout the law by employing illegal workers. The intention is to use them in the most serious cases, as I have just indicated, where civil penalties or previous convictions have failed to change employer behaviour. Such employers may also be exploiting their workers, including legal workers, by not paying the minimum wage or by breaking health and safety legislation. When immigration officers conduct an enforcement visit under existing powers to an employer’s premises, any illegal workers identified may be arrested and the employer may be liable to pay a civil penalty or to prosecution for an offence. Despite this, the employer may continue to use illegal workers who are not apprehended at the time of the visit or who are recruited subsequently. Furthermore, some businesses dissolve to evade sanctions and then reopen in a new name and continue their non-compliance as before. My notes tell me that this is often referred to as “phoenixism” and that may be so. The provisions are designed to break this cycle of non-compliant business behaviour.
The provisions create a new power for immigration officers to close premises for up to 48 hours in certain cases, where the employer or a connected person in relation to the employer has previously faced sanctions for employing illegal workers. An application must be made to a court for an illegal working compliance order, unless the closure notice is cancelled. This compliance order may extend the closure of the premises or make any order the court decides is appropriate to prevent an employer operating at the premises from employing an illegal worker. This might include ordering the business to perform right-to-work checks to ensure that illegal workers are not employed, or to permit immigration officers to enter the premises to ensure that the employer is complying with illegal working rules.
These provisions are loosely modelled on the power to close premises associated with nuisance or disorder, which is in Part 4 of the Anti-social Behaviour, Crime and Policing Act 2014. Let me reassure the House that this power will be subject to appropriate safeguards and its use will not be considered lightly. It is designed to be used as a last resort in the most serious cases, where established methods of securing compliance have been unsuccessful, by limiting the duration of the closure notice that may be served by immigration officers; by making the courts responsible for determining whether a compliance order should be imposed; by providing a right of appeal against a compliance order; and by providing a mechanism to apply for compensation, should mistakes be made, we believe that Schedule 3 provides appropriate judicial oversight of the use of these powers and sufficient safeguards and remedies for those who feel that they have been treated unfairly.
The noble Baronesses, Lady Hamwee and Lady Ludford, talked about what records will be kept and the noble Baroness, Lady Ludford, talked about the transparency in the process. Guidance may be published under paragraph 16 of Schedule 3, after appropriate consultation, which would provide for guidance for immigration officers in respect of how their immigration powers should be exercised and recorded. We will ensure that immigration officers make operational records in their pocket notebooks, as is standard practice, and that this is supported by guidance issued under paragraph 16. The Home Office will monitor compliance as a matter of course.
On the question from the noble Baroness, Lady Hamwee, the compensation mechanism in paragraph 15 does not apply where the court has made an order, since an adversely affected party should, in this case, appeal the order. The court, on hearing an appeal, may make any order it considers appropriate under paragraph 9(5) and this might include the award of compensation. The noble Baroness also asked whether compensation should be payable when inaccurate information is presented to a court by an immigration officer. If a court considers that the conditions for issuing the notice under paragraph 1(3) or paragraph 1(6) were not satisfied, the court may award compensation to a claimant who has suffered financial loss, if it considers it is appropriate. The compensation mechanism in paragraph 15(3), as I have just said, does not apply when the court has made an order, since the adversely affected party should appeal the order. Compensation may be payable at the discretion of the court if the immigration officer supplied inaccurate information to the court as to whether any illegal workers were present at the property or if the employer had not previously been convicted of an immigration offence or received an immigration penalty. Compensation may also be payable when the immigration officer has not used reasonable efforts to notify people who live at or have an interest in the property.
As to the point that the initial closure order should be issued by a court and not an immigration officer, the Government respectfully disagree. We think that the immediacy of the present approach is designed to serve as a deterrent to employers who have repeatedly flouted illegal working rules. The present approach allows for the trigger conditions to be applied to a particular moment in time. Imposing a requirement for an initial court order would give the employer an opportunity to hide their illegal working, including through dissolving the company.
The noble Baroness, Lady Ludford, mentioned that she thought the powers were oppressive and contrary to the rule of law. I point out that the closure of a business premises by law enforcement officers is not unprecedented and the proposal in this Bill, including the safeguards, is modelled on the approach taken in the Anti-social Behaviour, Crime and Policing Act 2014. As a result of those remarks, I hope that in due course the noble Baroness will accept that Clause 12 and Schedule 3, to which it gives effect, should remain part of the Bill.
Turning to the amendments tabled by the noble Baroness, Lady Hamwee, Amendment 135 would require the immigration officer to consult the employer,
“people who live on the premises … and … any person who has an interest in the premises”.
The officer will already be required by Schedule 3 to consult any person they think appropriate before issuing a closure notice, and this may include many of those interested parties. In addition, immigration officers are already required to make reasonable efforts to inform any person who lives on the premises and any person who has an interest in the premises that the notice is going to be issued. A requirement to also consult such people—who, I remind noble Lords, have already committed an illegal working offence—seems an unnecessary additional requirement. Also, paragraph 1 makes it clear that a closure notice cannot prohibit access to premises to any person who habitually lives on the premises.
The amendment also requires the employer to be consulted. I can reassure noble Lords that employers will be given an opportunity to demonstrate that they have complied with the law in this area. The decision to serve a closure notice will not be taken lightly. If the employer can produce evidence that right-to-work checks have been undertaken, Schedule 3 makes it clear that the notice must not be issued, or if such evidence is produced after the notice has been issued, the notice may be cancelled. The whole purpose of serving the closure notice is because the business has repeatedly flouted the law in this area. It will be a serious case where the established civil penalty scheme or previous convictions have not prevented continued illegal behaviour.
Amendment 146 would have the effect of always giving the court the discretion to award compensation, even where immigration officers have acted lawfully and the claimant was responsible for illegal working on the premises. This would frustrate the objective of the proposed scheme of closure notices, which is to strengthen our ability to deal with repeat offenders involved in the use of illegal workers. It would be inappropriate to provide the facility for such persons to obtain compensation for financial loss where the immigration authorities have acted correctly in closing their premises.
In the light of my explanation of these provisions, I hope that the noble Baroness will feel able not to press her amendments.
Lord Lucas (Con)
My Lords, perhaps I might ask my noble friend a couple of questions. He said several times that this is to deal with people who are repeat offenders—the most serious offenders—but paragraph 1(6) requires only one offence. As with certain members of the Government who make mistakes in employing illegal workers from time to time, as do many people, it seems unfair to lump them in with people who are deliberately flouting immigration rules. It sounds very much from what my noble friend is saying that the guidance would require many more offences to have been committed than just the one in the previous three years. I would be comforted if he could reinforce that that is the case and say why paragraph 1(6) says only once.
The other thing that I wanted to raise with him is the conjunction between paragraph 1(3) and 1(11). Surely if the person who is employing gets even a few moments’ prior notice that this procedure is about to be activated, he has a “Lord Sugar” defence—all he has to say is, “You’re fired”, and he is no longer employing anyone.
Lord Ashton of Hyde
My Lords, in answer to the first question, the whole point is that it is not just sub-paragraph (6) that has to be taken into account before a closure notice is provided; it is in combination with sub-paragraph (3). The condition is that an employer is employing someone illegally and, in sub-paragraph (6), they have to have previously been convicted of an offence. If an immigration officer suspects that illegal working is going on, they can apply for the closure notice if, and only if, sub-paragraph (6) also applies where they have previous convictions in respect of illegal working.
On my noble friend’s second point about giving notice, that is precisely why for the first 24 hours, which may be extended to 48 hours, we feel that an immediate closure notice can be served, before the court is applied to, to prevent employers doing things which would enable them to continue employing illegal workers. The fact that we can do it immediately, albeit for only up to 48 hours, is an important factor in clamping down on this offence.
Lord Lucas
My Lords, when paragraph 1(11) says,
“An illegal working closure notice may be issued only if reasonable efforts have been made to inform”,
that surely says that the person who is running the premises has to be told beforehand that a notice is to be issued and therefore there is a small space of time in which people can be disemployed. I agree that a company could not be closed. I understand how sub-paragraphs (3) and (6) work together, but sub-paragraph (6) is the bit that covers the previous convictions and, in my opinion, it does not match the words of my noble friend that this is for the most serious offences and the really rogue offenders. This catches anyone who has made one mistake beforehand. If we are giving the Executive this power, which I do not disapprove of in extreme cases, we should restrict it to extreme cases and not include a person who makes a second mistake within three years, which in the retail industry is not hard to do.
Lord Ashton of Hyde
My Lords, we are talking about illegal working by illegal immigrants. It is just a question of what you define as serious. In our view, with employers who have previously been convicted of illegal working offences and who are suspected of employing illegal workers, we regard that as serious. I think it is a question of definition whether you have to have had one, two or three convictions before it applies. At the moment that is where we consider it should be and we consider that serious.
With regard to my noble friend’s earlier point, sub-paragraph (11) says that there is a duty to inform,
“people who live on the premises”—
not necessarily the employer—but we think it is reasonable that people who live on a premises should be informed that a premises might be closed.
Baroness Hamwee
My Lords, that is exactly the point about the written words matching the oral words which has been concerning me about paragraph 1(6). I do not know whether the Minister can answer this question now. If there has been a conviction, leaving aside for the moment how many offences there have been, and it is a spent conviction under the Rehabilitation of Offenders Act, it does not apply. But if there has been at any time a requirement to pay a penalty following an illegal working closure notice, and failure to pay that penalty, does that fall within the reference to the Rehabilitation of Offenders Act? I suspect it does not. In other words, although there might be a spent conviction, the non-payment of a penalty notice could blight your business for ever. I am not suggesting that penalty notices should not be paid.
Lord Ashton of Hyde
I think that the noble Baroness has made my point for me. If there is a civil penalty and businesses do not pay it, they are not the sort of business which we would necessarily feel that this clause should not apply to. On the concern that the printed words do not match the oral words, I am very happy to write to the noble Baroness to confirm that what I said is correct—and we are of course happy to discuss this at any time afterwards. But in the mean time, I would be grateful if she would withdraw her opposition to the clause standing part.
Baroness Hamwee
My Lords, I am not suggesting that the Minister is misrepresenting the Government’s intention. I want to see the intention reproduced on paper. A civil penalty should, at the very least for this purpose, be on all fours with a conviction. After all, it is lighter than a conviction. For it to bite for ever and ever, and come up to bite you in 15 years’ time or whatever, seems inappropriate.
Lord Ashton of Hyde
Is the noble Baroness saying that if you do not pay a civil penalty for 15 years, you should get away with it?
Baroness Hamwee
My Lords, if you can—in the Minister’s words—get away with a conviction because of the Rehabilitation of Offenders Act, which is well-respected legislation, then you should be able to get away with not paying a penalty in the terms in which we are discussing them. I am not advocating law-breaking or the non-payment of penalties; I am sure that the Minister really understands that.
Lord Ashton of Hyde
I do understand, and it might be appropriate to continue this discussion between ourselves later, outside the Chamber.
Baroness Hamwee
My Lords, I do not wish to continue that bit of the discussion, but perhaps I might put into a future discussion a question on payment of compensation. The Minister referred to the court being able to pay compensation. Under paragraph 9, it can make any order it regards as appropriate—but a separate paragraph 15, on compensation, requires an application to be made. I think he said that guidance would be given under paragraph 9(5) but I am not sure how paragraphs 9 and 15 work together. I do not expect an answer now; that would not be fair. But I would be grateful if I could have some clarity—others may understand it perfectly—as to how those two paragraphs work together.
I will not test the patience of the Committee by responding to other points. No doubt the Question on Clause 12 is about to be put. We will not at this moment object to it.
Lord Rosser
“Protection from slavery for overseas domestic workers
All overseas domestic workers in the United Kingdom, including those working for staff of diplomatic missions, shall be entitled to—(a) change their employer (but not work sector) while in the United Kingdom;(b) renew their domestic worker or diplomatic domestic worker visa, each such renewal being for a period not exceeding twelve months, as long as they remain in employment and are able to support themselves without recourse to public funds;(c) a three month temporary visa permitting them to live in the United Kingdom for the purposes of seeking alternative employment as an overseas domestic worker where there is evidence that the worker has been a victim of modern slavery.”
Lord Rosser
My Lords, there are two amendments in this group, one in my name and in the names of my noble friend Lord Kennedy of Southwark, the noble Lord, Lord Alton of Liverpool, and the noble Baroness, Lady Hamwee. There is a second amendment in the name of the noble Lord, Lord Hylton, within the group. I intend to be relatively brief because I imagine that a number of others may wish to speak in this debate.
The amendment to which I wish to speak seeks to reverse the 2012 visa changes for overseas domestic workers by allowing them to change their employer and renew their visa for a period of 12 months,
“as long as they remain in employment and are able to support themselves without recourse to public funds”.
It would also provide for overseas domestic workers to be entitled to a temporary visa, permitting them to live in this country for the purposes of seeking alternative employment when there is evidence that they have been a victim of modern slavery.
A similar amendment was pursued during the passage of the Modern Slavery Bill, when the Government declined to go down the proposed road as they were having an independent review undertaken of the overseas domestic worker visa, including those for diplomatic overseas domestic workers. That independent review by James Ewins was, I believe, presented to the Home Secretary on 6 November last year and published on 17 December, when the Commons Minister said that the Government’s response would be announced in due course.
In his review, Mr Ewins considered as his fundamental question,
“whether the current arrangements for the overseas domestic workers visa are sufficient to protect overseas domestic workers from abuse of their fundamental rights while they are working in the UK, which includes protecting them from abuse that amounts to modern slavery and human trafficking”.
His review concludes that,
“the existence of a tie to a specific employer and the absence of a universal right to change employer and apply for extensions of the visa are incompatible with the reasonable protection of overseas domestic workers while in the UK”.
In the light of this finding, he recommends in his review as the minimum required to address the problem which he has identified that,
“all overseas domestic workers be granted the right to change employer … and apply for annual extensions, provided they are in work as domestic workers in a private home … that such extensions do not need to be indefinite, and that overseas domestic workers should not have a right to apply for settlement in the UK in order to be adequately protected”,
and that,
“after extensions totalling up to 2 ½ years, overseas domestic workers are required to leave the UK”,
with this extension being, as I said, the minimum required to give effective protection to those overseas domestic workers who are being abused in the UK.
Mr Ewins also stated in his review that the rights that he is proposing should be granted to all overseas domestic workers, with no different treatment between,
“seriously abused, mildly abused and non-abused workers”,
and that,
“overseas domestic workers must be given a real opportunity to receive information, advice and support concerning their rights while at work in the UK”,
if the essential changes that he has proposed to the terms of the visa are to be of practical help to such workers. He also comments that implementation of his recommendations,
“will provide data, information and intelligence which will enable the police, Immigration Enforcement or the proposed Director of Labour Market Enforcement, to take intelligence-led steps to investigate and pursue those who abuse overseas domestic workers with criminal, civil or immigration sanctions”.
There are many other important recommendations and points in Mr Ewins’s review to which I have not referred.
During debate on the then Modern Slavery Bill about the overseas domestic worker visa issue and the Government’s decision to have an independent review, the Minister in the Commons said that the Government looked forward to the recommendations of the review. She went on to say that while she could not commit a future Government, the intention was that whoever was in government would “implement the review’s recommendations”.
I do not wish to go over the ground again on the arguments in favour of the terms of the amendment I am moving, as they were spelled out during the passage of what is now the Modern Slavery Act. Since then, the recommendations from the independent review which the Government set up have been published and, in essence, they confirm the validity of the concerns expressed during the passage of that Act, including on the tie to an individual employer. I invite the Minister to say what the Government’s response is to the recommendations in the independent review and what actions they now intend to take, since we need to resolve the issues surrounding the overseas domestic worker visa as part of our consideration of the terms of this Bill. I beg to move.
Lord Hylton (CB)
My Lords, I will speak to Amendment 134B, which is in my name. Last year, on what became the Modern Slavery Act, we made progress even on the long-vexed question of foreign—that is, non-EU—domestic workers coming to this country on the tied, short-term visa or working for diplomats here in London.
The Government appointed Mr James Ewins QC to do an independent review of the effects, in practice, of the restrictive visa. He took evidence and considered whether there was sufficient protection from abuse of those workers’ fundamental rights, such as would amount to modern slavery and human trafficking. In November last year, as has been mentioned, on the balance of the evidence, he found that the tie to a specific employer without the right to change or to apply for a visa extension was incompatible—I repeat, incompatible—with reasonable protection, as was mentioned previously by the noble Lord, Lord Rosser. Today, his Amendment 133 goes a long way to meeting the Ewins recommendations. I believe that it repeats the wording of my previous amendment from last year, which was approved by your Lordships on a Division during the progress of the Modern Slavery Bill.
However, I wish to go just a little further and be a little clearer on the instructions to the Secretary of State. My amendment would implement the improvements by changes to the Immigration Rules, making them variable but without recourse to new primary legislation. Proposed new paragraphs (a), (c) and (f) in my amendment are the same as those in Amendment 133. My paragraph (b) provides for an,
“information session within one month of the commencement of their visa”.
This would allow the workers to be fully informed of their rights. Checks could be made at that time that they had contracts of employment and understood them, that they had access to their passports—a point which has been mentioned very often in previous debates —and that they knew how to raise complaints.
My proposed new paragraph (d) would probably not apply to workers on a six-month visa unless the employers themselves obtained extensions of stay, as does in fact quite often happen. It would also be helpful for diplomatic employees and in some irregular situations where time had passed by but there were strong grounds for allowing settlement. It would, furthermore, make possible applications in this country without the applicant having to return to another country and therefore apply from outside the United Kingdom.
My proposed new paragraph (e) would not apply automatically but would helpfully assist family reunion and parental ties—for example, in cases where small children had been left behind in the country of origin. This is obviously a very hard choice but one into which mothers may be forced by extreme poverty. With these explanations, I trust Amendment 134B will commend itself to your Lordships and provide the Government with satisfactory guidance on how to implement the Ewins recommendations. This protection for highly vulnerable people is urgently needed, and further delays would be quite unacceptable.
Lord Alton of Liverpool (CB)
My Lords, I wish to support Amendment 133, moved by the noble Lord, Lord Rosser, and to say a word in support of my noble friend Lord Hylton’s Amendment 134B. In March last year, at the last gasp of the then Modern Slavery Bill, your Lordships voted down the amendment that my noble friend has referred to, which would of course have provided greater protection for domestic migrant labour in the way that the noble Lord, Lord Rosser, described. My noble friend Lord Hylton has of course persistently championed this cause, and this new legislation gives us an opportunity to rectify what is a long-standing injustice.
In March, those of us who divided the House pressed for the most basic of protections: first, the right to change employer but remain restricted to domestic work in one household; secondly, if in full-time work as a migrant domestic worker in a private household, the option to apply to renew the visa; and thirdly, in instances of slavery, a three-month visa to allow the workers to look for decent work. We argued that without these sorts of provisions, we would leave in place a system found repeatedly over the previous three years to facilitate exploitation, including trafficking of migrant domestic workers.
One of the foremost charities working with these groups, Kalayaan, described how such workers have literally sacrificed themselves to the well-being of their wider families. They do not self-protect in the way that someone with more choices would expect. Many explain that they are prepared to put up with any amount of mistreatment if they can provide for their children and ensure that the same will not happen to them. Kalayaan reports that 65% of the 120 domestic workers on the new visa who they saw between 6 April 2012 and 6 April 2014 did not even have their own rooms but shared children’s rooms or slept on the floor of communal areas, while 53% worked more than 16 hours a day and 60% were paid less than £50 a week.
In 2009, the Home Affairs Select Committee, quoting Kalayaan, said in its inquiry into trafficking that the visa issue was,
“‘the single most important issue’ in preventing the forced labour and trafficking of such workers”.
I recognise that the wholly unacceptable exploitation of domestic workers will not be entirely abolished by the acceptance of these amendments, but it would certainly be an improvement on the current situation.
In reply to the debate last March, the Minister—the noble Lord, Lord Bates—urged Members of your Lordships’ House to resist our amendment and to await the outcome of the review of James Ewins, which the noble Lord, Lord Rosser, has mentioned. The Minister said:
“Most crucially, the amendment is defective because a serious and considered piece of work is currently going through its process under the widely respected James Ewins. Our argument is that that should be allowed to take its course”.—[Official Report, 25/3/15; col. 1448.]
In the review, which followed the debate, Mr Ewins takes as his fundamental question,
“whether the current arrangements for the overseas domestic workers visa are sufficient to protect overseas domestic workers from abuse of their fundamental rights while they are working in the UK, which includes protecting them from abuse that amounts to modern slavery and human trafficking”.
We now have the result of that review, and Mr Ewins has recommended removing the visa tie:
“On the balance of the evidence currently available, this review finds that the existence of a tie to a specific employer and the absence of a universal right to change employer and apply for extensions of the visa are incompatible with the reasonable protection of overseas domestic workers while in the UK”.
He goes on to say:
“The review recommends that all overseas domestic workers be granted the right to change employer … and apply for annual extensions, provided they are in work as domestic workers in a private home”.
Who are the kind of people we are talking about? The Anti Trafficking and Labour Exploitation Unit provides a number of examples, of which I will give only one, relating to the plight of an African national caught up in the cat’s-cradle of domestic labour exploitation. She entered the UK as a domestic worker under the rules in place before April 2012. Her visa has been extended a number of times and she has continued domestic work. She worked for an employer for over three years and was mistreated: she was paid less than promised, shouted at and rarely allowed to leave the house, and her passport was taken by her employers on arrival—the key point. She of course felt very scared. She managed to gain their agreement to a short holiday after the three years, and when she got her passport back, she changed employers. She was advised about the protection available under the national referral mechanism but has been reluctant to pursue this as she fears she will be sent home to her country of origin by the Home Office. The study shows that a common form of control is retention of documents, psychological abuse and restriction of movement.
However, domestic workers who are allowed to change employer can solve problems that arise with one employer by changing employment and moving away from the problem. The case also shows that the NRM will not be the right fit for everyone, even with advice. Individuals can be frightened of being perceived to cause trouble for others and of repercussions from that.
Although Amendment 133 has provided this welcome opportunity to debate what provision should be made for overseas domestic workers, this can all be achieved simply by amendments to the Immigration Rules, so the full range of options is open to the Government. Either way, Mr Ewins’s recommendations, which he identifies as the minimum necessary to protect overseas workers, should be implemented without delay as an essential first step towards comprehensive protection.
As my noble friend Lord Hylton said, he would go slightly further in Amendment 134B. Maybe these two ideas, which are not in conflict, could be taken together before Report. What is abundantly clear is that the Government must get on with resolving this issue and providing reasonable and basic protection to those caught up in a tangle of exploitation and coercion.
Baroness Hamwee
My Lords, I have my name to the first of this pair of amendments, but I congratulate the noble Lord, Lord Hylton, on picking up some specifics from the report and spelling them out in his Amendment 134B. We must all thank James Ewins, who was promoted in my speech at Second Reading, according to the Official Report, to coming from the UN rather than Ewins—not an inappropriate promotion. We must also thank the organisations which gave evidence, which have worked so hard for so long and provided so much support to this group of workers.
I was not entirely clear from the speech of the noble Lord, Lord Rosser, whether he and his party are behind the Ewins recommendations. His tone was certainly warm and supportive, but it may be that when I read his speech I will detect whether they would like them implemented in whole or in part. The Liberal Democrats regard the report and its recommendations as clear, considered, compassionate and to be implemented.
I will not repeat the arguments that have been made, with which I agree very much, but it is telling that Mr Ewins says that,
“this review has not taken such previous proposals as a starting point”,
but,
“has deliberately gone back to first principles and applied those principles to the evidence currently available. The fact that the conclusions accord to a considerable extent”—
not completely—
“with previous recommendations adds further weight to the argument in favour of the changes proposed”.
I, too, look forward to hearing how the changes he proposes are to be implemented.
Lord Green of Deddington (CB)
My Lords, I share the condemnation of domestic slavery, which I am sure is shared by all Members of this House, and I strongly support those organisations that seek to help such workers. In doing so, I speak with some experience on the ground. I was the consul in Abu Dhabi and the consul-general in Saudi Arabia, which is where 50% of these applications come from.
Let me start, then, by welcoming the Modern Slavery Act, which seeks to tackle the worst cases of abuse, providing advice and support for those who seek to escape. However, what is now proposed goes well beyond that. The independent reviewer seems to be suggesting that any domestic servant who is not satisfied with his or her conditions will be able to change employer and then remain in the UK working legally for, I think he says, two years—others say without time limit. At the end of that period, he supposes, I think, that they would simply pack up and go home to their impoverished home country. That seems a very unlikely outcome. It is far more likely that they will continue to work here—illegally, if necessary—so that they can continue to send money home. In many respects, that is understandable, but we must recognise that if that situation were to develop, word would spread very quickly among domestic workers in a number of source countries and it would not be very long before we had a significant loophole in the immigration system.
Lord Alton of Liverpool
First, I shall clarify the figure that the noble Lord asked about. It is the figure quoted in the Kalayaan report of people that it had interviewed over the course of two years—120 people. The case that I have advanced today is based not entirely on what I regard as the excellent report of James Ewins. I wonder whether the noble Lord has had a chance to read the recommendation of the Joint Committee on the draft Modern Slavery Bill, which looked at this issue and concluded:
“In the case of the domestic worker’s visa, policy changes have unintentionally strengthened the hand of the slave master against the victim of slavery. The moral case for revisiting this issue is urgent and overwhelming”.
It recommended that the Home Office reverse the changes to the overseas domestic workers visa. That was also a view that the Joint Committee on Human Rights took; in 2014, it said:
“We regard the removal of the right of an Overseas Domestic Worker to change employer as a backward step”,
and urged its reversal. So this is not just Mr Ewins—there is a substantial amount of evidence from highly regarded committees of this House and Joint Committees, which have looked at this matter in detail and come to the same conclusions as Mr Ewins.
Lord Green of Deddington
Yes, I quite see that. I would expect the people whom the noble Lord quoted to say what they said. There is clearly some force in that, and there clearly is a problem. We are not in doubt that there is a problem over the treatment of domestic servants who are brought to the UK; that is entirely understood and not in question. What is in question is the balance between trying to ensure that that problem is alleviated—it will never be removed; we will always have rogue employers—and the needs of the immigration system, which would be considerable because these numbers would go up very fast indeed. If people knew that they had only to get here with one employer and they were here for ever, of course they would come in their thousands. So there must be a balance. That is really my point.
Lord Hylton
But does the noble Lord agree that they cannot come without visas?
Lord Green of Deddington
I do not think that I understand the noble Lord’s point.
Baroness Hamwee
My Lords, I think that my question to the noble Lord may be the same as that asked by the noble Lord, Lord Hylton. The noble Lord said that he knows that currently employers bring in domestic servants but lose them because they go on to other employment. If they come in on a tied visa, how can that be?
Lord Green of Deddington
Well, they come in on a tied visa and then they do a runner and go and work for somebody else. The employer then goes back to his home country and puts in a visa next year for a new servant; he will claim, no doubt, that the servant has been working for a year, because that is one of the requirements, and come with his next servant. So the numbers will certainly increase. If you produce a loophole in these matters, they will increase very fast.
Baroness Lister of Burtersett (Lab)
My Lords, I hope that we are not moving from waiting for Ewins to looking for loopholes. I was a member of the Joint Committee on Human Rights at the time of the legislative scrutiny of the 2014 Bill. As the noble Lord, Lord Alton said, this is a matter of human rights. Not only did we say that the removal of the right of overseas domestic workers was a backwards step but we noted that the 2012 regime had been cited internationally as good practice.
I am not going to make a great speech, because I think the case has already been made admirably by other noble Lords. But my noble friend Lord Rosser pointed out that the Minister in the Commons towards the end of the last Government, but a member of today’s governing party, said as a statement of intent that whoever was in government would implement the review’s recommendations. I simply do not understand why this very important report, which we were all waiting for and for which everything had to be suspended to see what it said, was presented to the Government nearly three months ago with a sense of urgency to it, yet we do not yet have the Government’s response to it, even though we have started Committee stage of this highly relevant Bill. Why do we not yet know the Government’s response and how quickly will we know it—and will it be in the spirit of the statement made by Karen Bradley in the Commons last March?
The Earl of Sandwich (CB)
I add one more voice from these Benches in support of the amendment. My noble friend Lord Hylton has already reminded us that the amendments in some form have already been won in this House. The Minister will already understand the strength of feeling on these Benches—with, obviously, some notable exceptions. The Ewins recommendations have sharpened them up, recommending the three-month temporary visa. I tend to support my noble friend’s wider amendment. The evidence being already on the record from Kalayaan and others, I shall not repeat any of that, but has the Minister seen the evidence from Justice for Domestic Workers, in its survey of last August, I think, in relation to the ILO convention 189? I shall give some brief illustrations: 72% of these—mainly—women feel that they have been required to work while they are unwell, while 94% say that they are injured while they are at work, by falling over and so on. One has to appreciate the depth of the suffering of these individuals—but I shall not go on about that. Case studies show how vulnerable they are and how wary they are of seeking help from any authorities, including consulting the NRM, where they should be going. I suspect that the Home Office, like my noble friend Lord Green, sees these amendment as holes in the dyke, carrying risk. But we have to give these domestic workers a way out of their situation in such a way that it will not open the gates to more migration. That is where the Ewins recommendations come in: the workers have to pass the test of exploitation. I see no reason why their case cannot be singled out from the rest.
Lord Bates
My Lords, I am grateful to the noble Lords, Lord Rosser and Lord Hylton, for tabling these amendments. It is entirely right that we discuss this important issue; it is something on which, as the noble Earl, Lord Sandwich, mentioned, I and the Government are in no doubt whatever about the strength of feeling in your Lordships’ House. What is more, we are in no doubt that there is a problem that needs to be addressed; that is not in question at all. Were it not so, we would not have wasted taxpayers’ money, as it were, on the Ewins review in the first place, nor would we have introduced the measures that we did in the Modern Slavery Act, which sought to address some of these issues.
Let me be clear at the beginning about what I intend to do at this stage—and I hope that noble Lords will bear with me. My proposal is to set out some of the initial response to the report and address some of the comments that have been made in the debate. I would then be immensely grateful if noble Lords who have an interest in this area might have the opportunity to meet Home Office officials and myself—and possibly Karen Bradley if her diary permits—to go over what we propose to do.
Lord Alton of Liverpool
Before the Minister sits down, I would be grateful if he would clarify the nature of the process that he has just referred to. It would be very useful to Members of your Lordships’ House if, for instance, Mr Ewins could also be invited to whatever discussions take place. When we looked at the previous legislation on modern slavery, the Minister was good enough to invite organisations such as Kalayaan to come and give first-hand evidence. Although that may not be appropriate at a joint meeting with Members of the House, nevertheless there ought to be some input from that organisation as well. I hope the Minister might give an undertaking.
Lord Bates
I will certainly give an undertaking to go away and reflect on the point that the noble Lord makes. I understand what he is saying. I am conscious that we met with Kalayaan on many occasions in the course of the Modern Slavery Act. It does very valuable work on this and its position is very clear regarding what it wishes to do. More particularly, I was hoping we could outline in a bit more detail than perhaps is possible at this stage where the Government’s mind is on this, and genuinely enter into a discussion about the best way forward.
As to whether it would be appropriate that the authors of the report should be there, I hear very much what the noble Lord says. That may be useful, but he will understand that in the nature of the way that government works, I have, as it were, secured a certain amount of leeway from my colleagues in the course of responding to your Lordships’ concerns, and it would be courteous of me to go back to them and seek their approval for that suggestion. I shall give an undertaking to do just that.
Lord Rosser
Before I respond to the suggestion that the Minister has made, I take it from what he has said that the Government do not actually accept the key part of Mr Ewins’s recommendation, which was that,
“the existence of a tie to a specific employer and the absence of a universal right to change employer and apply for extensions of the visa are incompatible with the reasonable protection of overseas domestic workers while in the UK”.
I take it from what the Minister has said that the Government do not actually accept that fundamental part of his recommendations.
Lord Bates
Were it the case that we did not accept that there was any correlation with the visa tie, we would of course not have made the change that we did in the Modern Slavery Act to say that when people enter the national referral mechanism, and there are reasonable and conclusive grounds, they will have the ability to change employers. I do not think it is possible to draw from that that it is something we are not prepared to move on; we have already moved some way on that in previous legislation.
Lord Rosser
I thank the Minister for that response. I also sense from his comments that the Independent Anti-slavery Commissioner, Mr Hyland, is also not necessarily fully supportive of the recommendations of Mr Ewins. I thought I had picked up the comment that he thought there might be as much mileage from taking other action as from loosening the tie, which is the key part of Mr Ewins’ recommendation.
Lord Bates
The anti-slavery commissioner, Kevin Hyland, is independent, and thoroughly and robustly defends his independence. I would simply quote a remark that he made: he felt that a system, which may be included as part of James Ewins’s recommendations, of checks and periodic meetings to ensure that people were aware of their rights and to check on their safety may have more effect in providing a safeguard of the position.
Lord Rosser
I think there will be a degree of disappointment at the response we have had from the Minister today, although I appreciate the offer that he has made, along with the reply that he has given and the detail that he has gone into in order to explain the Government’s position. I also appreciate the contributions that we have had to the debate.
Bearing in mind that the Minister has offered to have the meeting between Home Office officials, himself and interested Peers—as I understand it, I think he said that he would consider whether Mr Ewins might also be there—and that the Government have said they will bring forward proposals in response to the Ewins report on Report of the Bill, I certainly have no intention of declining the offer that he has made. I thank him for making that offer and for giving the detailed explanation of where the Government now stand, and I can only sincerely express the hope that we are able to get to the point where the proposals that the Government bring forward on Report meet the wishes of the House and of those who have been campaigning so hard on this issue.
Lord Kennedy of Southwark
“Asylum seekers: permission to work after six months
(1) The Immigration Act 1971 is amended as follows.
(2) After section 3(9) (general provisions for regulation and control) insert—
“(10) In making rules under subsection (2), the Secretary of State must provide for persons seeking asylum, within the meaning of the rules, to apply to the Secretary of State for permission to take up employment, including self-employment and voluntary work.
(11) Permission to work for persons seeking asylum must be granted if—
(a) a decision has not been taken on the applicant’s asylum application within six months of the date on which it was recorded, or(b) an individual makes further submissions which raise asylum grounds and a decision on that new claim or to refuse to treat such further submissions as a new claim has not been taken within six months of the date on which the submissions were recorded.(12) Permission for a person seeking asylum to take up employment shall be on terms no less favourable than those upon which permission is granted to a person recognised as a refugee to take up employment.””
Lord Kennedy of Southwark
My Lords, Amendment 134 in my name and those of my noble friend Lord Rosser, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Alton of Liverpool, would allow those asylum applicants who have been waiting for longer than six months for a decision on their asylum application to be allowed to work. The latest immigration statistics show that about 3,600 applicants have been without an initial decision for longer than six months. The only exception that they are presently allowed is that after 12 months an asylum seeker can apply for permission to work, but only in national shortage occupations.
When this is compared to other countries in the EU, we are certainly not generous. All EU member states, with the exception of the UK and Ireland, permit applicants to work after nine months, and some have gone further: Belgium and Denmark permit work after six months, and in Germany it is after three months. For many asylum seekers, not being allowed to work means that they are unable to develop and maintain skills, and for professional people this can have a very difficult effect on their future employment prospects in this country, if in due course they are granted asylum status and allowed to work, or return to their country of origin or move elsewhere. Allowing asylum seekers to work after six months would also cut the cost to the taxpayer, as those who found work would no longer need to be supported by the taxpayer.
Amendment 134A, in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, would make a small but important change, allowing asylum seekers to work after 12 months as a matter of right without having to apply for permission. I support the aims of that amendment as well. I beg to move.
Baroness Hamwee
My Lords, as the noble Lord has said, my name is to this amendment. I am particularly delighted that it has been moved from the Labour Front Bench since this was not something on which they felt able to support us during the last Parliament. This is something that we sought to achieve then even though we were part of the coalition Government. We have tabled this amendment to the Bill in these terms in the Commons. I am sure that my noble friend Lord Roberts of Llandudno will have a good deal to say on it, as he has had a Private Member’s Bill on the subject and argued for this proposition many times.
I will not take long, but I do not apologise for the fact that the arguments are not novel. According to the latest immigration statistics, I am told by the Refugee Council, over 3,600 applications for asylum have been without an initial decision for longer than six months. As the Refugee Council comments, when you take into account their dependants, that is nearly 5,000 people living on little over £5 a day in asylum support who are unable to work. It seems to us that applications should not drag on and, as the noble Lord said, six months, which is the Home Office target, is not overly ambitious. In any event, what is to be gained by a restriction that continues up to the 12-month point?
It seems that a lot is to be lost: contribution to the economy through work and taxation; savings for the state on asylum support; and, as for the individuals, the impact on their self-esteem, mental health, possible—probably likely—loss of skills, and the ability to find employment when the period comes to an end. It also seems that this restriction reinforces exclusion. For those who stay, their community integration is important and we should not delay it, because more than half of the asylum seekers who come here stay.
This is a very topical point, as a colleague, Suzanne Fletcher, who was a councillor in the north-east and who is still a very active Liberal Democrat, has been all over the media today on the issue of the red doors, on which the Times has reported—doors that were painted red so that the occupants could easily be identified as immigrants. Of course the Minister, James Brokenshire, immediately criticised that, and I believe that the Government are taking steps there. However, from the emails I have seen on this subject today, it has taken years of campaigning to bring this to attention. That shows what power the media have, because Suzanne had taken that matter to the National Audit Office and to one of the Select Committees in the other place.
Would relaxing the current restrictions be a pull factor? Is there evidence of that? I suspect not. If your reasons for coming here are economic rather than to seek asylum, I would have thought that six months would be quite a deterrent in itself.
Our Amendment 134A deals, as the noble Lord has said, with the 12-month period. Currently, if you are here for more than 12 months, although you may be able to work, your work is confined to the “shortage occupations” as designated by the Home Office—for the same reasons, of course, that could be applied to the six months. In addition, however, the list of shortage occupations, which I had a look at over the weekend, seems to be made up almost entirely of technical or professional occupations and often requires references from previous employers, which I suspect are by definition unavailable, or requires UK qualifications. Therefore, asylum seekers would not be likely to get such jobs, because the period of their stay is uncertain, even if they were qualified to do them. They are more likely to get low-skilled jobs that British citizens, frankly, are often unwilling to undertake.
Lord Alton of Liverpool
My Lords, in supporting the amendment moved by the noble Lord, Lord Kennedy of Southwark, and supported by the noble Baroness, Lady Hamwee, may I first put in a request to the Minister, almost in parenthesis, for when he comes to reply? This relates to an issue that was raised on day one, which is the role of people who are involved in voluntary work and what the legal position is, because contradictory positions were expressed on day one. I was looking at some of the briefing material for today’s debate, particularly about a project called the Brushstrokes Community project in Smethwick in Birmingham, which has been providing services for refugees and asylum seekers for over 15 years. Brushstrokes described one asylum seeker who volunteered with the project for over a year before she received refugee status, and who continues to volunteer to this day. Last year she won an award as volunteer of the year in Sandwell. Another woman volunteered as a teaching assistant for around six months while awaiting the outcome of her application. She has now been granted refugee status and is on the path to fulfilling her aspiration of becoming a teacher in the United Kingdom. What is the legal situation of people who work in a voluntary capacity?
There are five substantial reasons why the arguments expressed so well by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Kennedy, should commend themselves to your Lordships’ House. First, these amendments would provide asylum seekers with a route out of poverty. More than 3,600 asylum seekers have currently been waiting more than six months for an initial decision on their case, surviving on just £5 a day.
Secondly, it reduces the burden on the taxpayer, as asylum seekers who are able to work will not need to be supported for extended periods and will instead be able to contribute to the economy through increased tax revenues and consumer spending. It also safeguards their health and prevents them having to resort to irregular work in what some describe as the black economy.
Thirdly, it avoids the negative consequences of prolonged economic exclusion and forced inactivity. During my 18 years as a Member of another place representing an inner-city neighbourhood in Liverpool I often saw that kind of grinding poverty first hand: the detrimental impact on mental health and self-esteem, the break-up of marriages and families—many Members of your Lordships’ House are very familiar with these kinds of arguments. The dignity that work gives should never be underestimated.
Fourthly, what is the experience elsewhere in other European Union countries? With the exception of the United Kingdom, Denmark and Ireland, other European countries allow asylum seekers to work after nine months and 11 of them grant permission to work after six months or less if a decision has not been made on their asylum application. That has not been a bad experience—it works very well and has not been a pull factor, as the noble Baroness, Lady Hamwee, was right to remind us.
Fifthly, for those asylum seekers who are eventually given permission to stay, avoiding an extended period outside the labour market is key to ensuring their long-term integration into UK society and encouraging them to be self-sufficient. Therefore, alleviating destitution amongst asylum seekers is a prerequisite if we believe in the upholding of a person’s human dignity. The right to work is fundamental to this and it also relieves the state of having to provide financial support.
In 2014, the noble Earl, Lord Attlee, set out the defence of the Government’s policy when he said that asylum seekers are,
“provided with support and accommodation while we determine whether they need our protection and until they have exhausted the right of appeal”.—[Official Report, 17/3/14; col. 30.]
However, the reality is that £5 a day to meet their essential living needs of food, clothing, toiletries and transport and to pursue their asylum application—housing and utility bills are paid for separately for those who need it—is wholly inadequate. Which of us could survive on that kind of paltry sum? Therefore the asylum seeker loses, but so does the state. We must give asylum seekers a route out of poverty and help them not to become part of a dependency culture.
At the end of June 2015, more than 3,500 asylum seekers had been waiting more than six months for an initial decision. The Minister arranged an all-Peers meeting, which I was able to attend, and Mr James Brokenshire, the Minister, was also there. He of course said that the Government’s aim is to ensure that there are no people waiting for longer than six months. Can the Minister tell us just how many people are waiting for longer than six months and how long it will be before that objective is met?
I am told that an asylum seeker spends an average of around 18 months on Section 95 support. Asylum seekers who have to survive solely on this level of support for extended periods of time will suffer a negative impact on their mental and physical health.
While a Member of the Commons, Sarah Teather chaired a cross-party parliamentary inquiry into asylum support for children and young people. In January 2013 it found that,
“asylum seeking parents are prevented from working, leaving families dependent on state support. This means that parents are left powerless and lose their skills”—
a point to which the noble Baroness alluded—
“while children are left without positive role models. The government’s own research has highlighted that this can lead to high levels of unemployment and underemployment once a family gains refugee status”.
That inquiry took evidence from over 200 individuals and organisations, including local authorities and safeguarding boards, and specifically recommended that asylum seeking parents and young adults should be given permission to work if their claim for asylum had not been concluded in six months—the point of these amendments.
Let us be clear: by keeping them out of work, many experienced and professional asylum seekers are deskilled, and the time spent not working hinders the opportunity to develop a career. It prejudices the chance to get references for future employment, and it denies people the chance to gain experience. Mr Brokenshire said that this provision would,
“blur the distinction between economic migration and asylum”.—[Official Report, Commons, Immigration Bill Committee, 10/11/15; col. 461.]
But this amendment addresses that concern, because permission to work would apply only when the delay was not due to action taken by the applicant. I therefore hope that this amendment commends itself to the House.
The Lord Bishop of Southwark
My Lords, Amendment 134, which I wish to support, is simple, just and proportionate in its aims. I accept that Home Office officials must, in the discharge of their duties in this area, deal with barriers of language, emotional distress, the fear of authority, the complexity of people’s lives and, on occasion, deceit. All this takes time. However, it is far from unknown for applicants for asylum to wait months or even years for a substantive decision in their case. This subjects them to a fearful limbo, with limited means of support and the background anxiety of not knowing for a very prolonged period what the outcome will be. Furthermore, we know from the experience of our own citizens the deleterious effects of prolonged inactivity on their emotional and physical well-being, and how this can erode an individual’s skill base.
The European Union’s reception conditions directive, which came into force last July, recognises this and requires of all EU countries—except Ireland, Denmark and the UK, as the noble Lord, Lord Alton, was saying—that asylum seekers waiting nine months for a decision may work. Germany has responded, interestingly, by legislating for a three-month threshold.
It is the policy of the Church of England, by resolution at its General Synod in February 2009, that all asylum seekers should be granted permission to seek employment. If the Government brought forward their own amendment with a threshold of nine months rather than six, as here, I could accept that. What is manifestly unfair is excluding such individuals from the world of work for an indefinite period, as at present. This amendment, with its threshold of six months, is not an invitation for migrants to enter the UK job market by an easy route. It could not be, with that sort of threshold. It is a measured and fair response to a manifestly unfair and damaging exclusion. I support the amendment in the name of the noble Lord, Lord Kennedy of Southwark, and others.
Baroness Lister of Burtersett (Lab)
My Lords, I am pleased to be able to speak in support of the amendment tabled by my noble friends on the Front Bench. Indeed, I, too, am delighted that this is now my party’s official policy.
The right to work—or, perhaps more accurately, the right to be allowed to undertake paid work—is a human right enshrined in the Universal Declaration of Human Rights and incorporated into human rights law as part of the International Covenant on Economic, Social and Cultural Rights, which recognises,
“the right of everyone to the opportunity to gain his living by work”.
After the Second World War, TH Marshall wrote that in the economic field, the basic civil right is the right to work. More recently, in 2007—long before I came to this place—the Joint Committee on Human Rights described the denial of the right to work as part of a deliberate policy of destitution, in breach of asylum seekers’ human rights.
The all-party parliamentary inquiry into asylum support, mentioned by the noble Lord, Lord Alton—of which I was a member—talked about how asylum seekers who are not able to undertake paid work lose skills and are unable to provide a role model for their children, and about the impact on their self-esteem, self-confidence and mental health. All this has a damaging effect on their children. A Freedom from Torture report on poverty among torture survivors states:
“Many questionnaire respondents, and most participants in client focus groups, highlighted the importance to them of having permission to work while their asylum claim is decided as a means of supporting themselves and being self-reliant. Indeed, the lack of permission to work for asylum seekers was a major theme of discussion and the key change that focus group respondents called for, although they also recognised that many torture survivors”,
may not be “well enough to work”.
A letter to the Independent at the end of last year asked why asylum seekers are not allowed to work in the UK. It pointed out:
“We have skills to contribute: some of us are doctors, nurses, carers, teachers, builders. But these skills are wasted and deteriorate while we wait for a decision on our asylum applications. We want to contribute to the UK economy and to be part of this society”.
Much of government social policy, whichever party is in power, is premised on the principle that paid work is the primary responsibility and the most important contribution that people make to society, summed up in the rather tired mantra of “hard-working families”. Why should asylum seekers be denied the opportunity for a whole year of joining the happy ranks of hard-working families in the labour market—and even then joining only on very restrictive terms? The evidence shows that this impedes integration. The Home Office’s own research shows that delayed entry into the labour market can cause problems even when refugee status is then granted, leading to high levels of unemployment and underemployment.
We have already heard about what happens in other European countries. My understanding is that most of these countries have fewer applications for asylum than are received in the UK, which does not support the argument that providing the right to work acts as a pull factor. The lack of impact on the number of applicants is confirmed by a study of OECD countries. Indeed, after our last debate on the issue, the then Minister acknowledged the paucity of hard evidence to support the Government’s case. Moreover, as Still Human Still Here argues, it is not very likely that economic migrants would draw themselves to the attention of the authorities by making an asylum claim, so that they might be able to apply for permission to work in a whole six months’ time.
The danger is that asylum seekers will end up in the shadow labour market, facing the kind of exploitation we discussed earlier in the context of undocumented migrants. Indeed, can the Minister say whether, if they do take paid work, they could be caught by Clause 8 —criminalised for working illegally even though they are legally in the UK awaiting a decision on their asylum claim?
I fear that Governments are often timid with regard to the rights of asylum seekers, for fear of public opinion. However, surveys by the IPPR, and the British Social Attitudes survey, show that there is public support for allowing asylum seekers the right to work. The Joseph Rowntree Charitable Trust, in an inquiry into destitution among asylum seekers a few years ago, said:
“Overwhelmingly, giving asylum seekers the right to work was the favoured solution identified”,
by those who gave evidence.
As has been said, we have debated this issue a number of times in your Lordships’ House, even in just the five years that I have been here. Since the previous time we debated it, the financial position of asylum-seeking families has worsened because of the savage cut in asylum support for children. So the cost to them of not being able to undertake paid work is all the greater now, with damaging implications for their mental and physical health and that of their families. I urge the Minister to take this amendment away and think about whether the time has not now come to concede this most basic of human rights.
Baroness Ludford
I, too, welcome the support of the Labour Party and its conversion to this cause. It is hugely important and significant. All the considerable benefits of a change in policy have been cited, and I do not need to enumerate them. They are so powerful, and there are only benefits—there are no costs, quite honestly, associated with this policy, except possibly a political one. That is no doubt what the Government fear. So I want to propose a rebranding exercise: to position this not so much as the right to work as the obligation to work—a requirement to work, except for asylum seekers who, for reasons of age or health, cannot do so. We could reframe it in those terms, as we do in the field of welfare. Indeed, a Liberal Democrat policy document from two years ago did exactly that. Why not talk about an obligation on fit asylum seekers to use their skills to benefit themselves, this country and the taxpayer? I think that you would also see a different approach and a different perception from the public, as well as, one hopes, from the Government, if that rebranding were to take place.
Lord Roberts of Llandudno (LD)
My Lords, first, I welcome all those who now support so vigorously and enthusiastically the right of asylum seekers to work after, say, six months. They have such potential. I know they are not asylum seekers but a third of the doctors and consultants in the hospitals and half the nurses in north Wales are not of Welsh extraction; they are from overseas. We rely on each other. If you go to the hospitals in Liverpool, the same story is told. We work together; we are one world. We have a responsibility towards each other—a responsibility, I suggest, to help everybody, wherever they are from, to reach their potential and to contribute as much as they can to the well-being of the whole community.
I am not going to speak at great length—I would be very unpopular if I did. In any case, everybody else has said what I wanted to say. It is wonderful that we are in an atmosphere of wanting this policy to succeed.
I will say just one thing. Last night I was at a meeting where we spoke of the children in the camps at Calais and Dunkirk. At Dunkirk there are no facilities, and we have all seen the pictures of the children tramping in the mud, which in places is a foot deep. One contributor last night said, “You know, they haven’t had any education for 12 months. They haven’t had any schooling. They are missing out”. Many of those of Arab extraction who are coming to the UK—people who speak the languages of other nations—could become the teachers who help this new generation, and in helping that new generation I am sure we will be doing something to build the kind of world that Lloyd George talked about. He once said that he wanted to build a country fit for heroes to live in. Let us build a world fit for children to live in. We can do it in this Bill by adopting amendments such as the one that is proposed here.
The Earl of Sandwich
My Lords, I am always heartened by the words of the noble Lord, Lord Roberts. I remember one rather lonely evening when he moved a version of this amendment and there were not so many friends present as there are today. I see already that he is heartened by the voices from all around the Committee.
I am strongly in favour of extending the time available to migrants and asylum seekers because it is realistic. It recognises and legalises a situation that is already happening. As my noble friend said, the issue of permission to work is linked to concerns about destitution, which we will come to in Part 5 when we discuss Section 95 support. As Sir Keir Starmer said about Clause 8 in the Commons, the most vulnerable will become even more so if we do not pass this amendment. For example, making it a specific crime to work without leave drives the exploited and enslaved further underground.
There is one more point which needs to be underlined. The Immigration Minister said during Committee in the Commons that asylum seekers could frustrate the process of application in order to qualify for the permission, and I expect that the Minister has this argument in mind this evening. But the amendment addresses this point—and the Refugee Council makes this clear—because permission would be granted only where the delay was in the process and not due to any action taken by the asylum seeker.
Lord Ramsbotham (CB)
My Lords, until seven years ago, I thought that Red Cross food parcels were handed out only to British prisoners of war in Germany. However, when I was a commissioner in the Independent Asylum Commission, I saw Red Cross food parcels being handed out on the streets of Manchester to destitute asylum seekers who had been refused permission to work.
One of the things that has distressed me most about what has been said tonight relates to remarks that I made at Second Reading about the quality of Home Office casework. Listening to the noble Baroness, Lady Hamwee, and my noble friend Lord Alton, I could not help reflecting that a great deal of this unnecessary destitution is caused by poor casework in the Home Office. I wonder whether the Minister can say what steps are being taken to improve that situation and speed up the processing of these applications.
Lord Green of Deddington
My Lords, I think that I may find myself in a small minority in this Committee, although, I have to say, certainly not in the country. The first point to make is a very general one: it is a mistake to generalise about asylum seekers. Roughly 50% of them claim only when they are discovered. Therefore, it would appear that they come, at least initially, as economic migrants. Of those who then do claim, half are refused, but only half of those who are refused are removed. That is why I suggest that we need to be a bit more discerning about people who are referred to simply as asylum seekers.
As for the amendment, the Committee will be aware—indeed, it has already been mentioned—that the most recent EU directive, No. 33 of 2013, requires that asylum seekers should have access to the labour market after nine months if the asylum claim is still pending. The UK, Ireland and Denmark have, of course, opted out. Nevertheless, the amendment proposes a time limit of six months. It would also remove the current requirement for the job to be on the shortage occupation list, despite the fact that the EU directive provides for such provisions. Therefore, in these two respects, the amendment goes beyond the minimum standards now required by the EU directive, from which we have, as I said, opted out.
Let us be clear that the effect of the amendment would be to make the UK not the most but one of the more generous countries in Europe in terms of access to the labour market, and there is no doubt that that would act as a pull factor for both asylum seekers and economic migrants. The extreme case is Sweden, which until recently allowed asylum seekers to work on arrival. Of course, the numbers went up and up and now it has had to close its borders. So it is absolutely clear that the ability to work is, in that case and more generally, an incentive to people when they choose a country in which to seek asylum.
It is also worth pointing out that people are queueing up in their thousands in Calais—in a country which is perfectly safe. They have every right to seek asylum in France—they would have a slightly less good chance of getting it—but they do not. They want to come here despite the fact that they cannot work for 12 months. I hope that it is the general nature of our society that attracts people, and let us be proud of that, but I come back to the point about balance when it comes to setting up an immigration and asylum system. There has to be a balance between reasonable treatment of people, half of whom are in serious need, and the need not to attract those who may well not be genuine asylum seekers. For goodness’ sake, anyone who has read the newspapers in the last three months will surely understand the need to be very careful on that front.
Lord Kennedy of Southwark
The noble Lord referred to the position in most of the European Union where people have to wait for nine months before they can work. Is he saying that he would support a time period of nine months?
Lord Green of Deddington
No. I am saying that we should keep it at 12 months in order that we are not more attractive than other countries on that point.
Lord Kennedy of Southwark
Amendment 134A in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, says that asylum seekers should get permission to work after 12 months as a right. Would the noble Lord support that amendment?
Lord Green of Deddington
The short answer is no. We have an asylum system which does not work as fast as people would like, but let us improve the system. The obvious answer is to process the claims more quickly and then this question would not arise. However, I would go back to the original, existing system.
Lord Ashton of Hyde
My Lords, this is an emotive issue. As the noble Baroness, Lady Hamwee, said, these are not new arguments. In fact, I think they were had on the last Immigration Act and possibly in immigration Bills before that. Of course, it is an emotive issue and everyone has sympathy with the plight of some of the people whom we are talking about. It is a difficult line to draw and we have to draw a balance.
I have listened carefully to the arguments in favour of allowing permission to work where an asylum claim is still outstanding after six months, removing the caveat that any delay must not be of the asylum seeker’s own making, and lifting restrictions on the types of employment available. The amendments would radically change existing permission-to-work arrangements for asylum seekers and the Government are not convinced that that is sensible. As a general rule, the Government believe that it is not appropriate to allow asylum seekers to work. It is important that we protect the resident labour market for those lawfully present in the UK.
Lord Roberts of Llandudno
Did the Minister listen to the employment statistics announced by one of our Ministers three weeks ago? She said that there were 200,000 job vacancies in the UK.
Lord Ashton of Hyde
I am not aware of those statistics, but I will take a look at them.
Lord Green of Deddington
There are about 600,000 vacancies in the UK, and there always are. It is frictional unemployment. The only way that you can take another job is if a job is vacant.
Lord Ashton of Hyde
We will come to employment in a moment.
It is important that we protect the resident labour market for those lawfully present in the UK and discourage those not in need of protection from claiming asylum for economic reasons. There are provisions in the Immigration Rules to allow non-EEA nationals to come to the UK to take up employment where there are no suitable resident workers available, and which give priority to those coming to fill roles included on the list of shortage occupations published by the Home Office. These arrangements are subject to numerical limits. This ensures that the employment meets our needs for skilled labour and benefits the UK economy. This approach prioritises access to employment and business opportunities for those lawfully in the UK, including recognised refugees. It will undermine this approach if non-EEA nationals can bypass employment restrictions by claiming asylum, particularly where that claim is clearly without merit.
There has been much comment, including tonight from the noble Lords, Lord Alton and Lord Ramsbotham, and the noble Baroness, Lady Hamwee, about historic delays in decision-making in the Home Office, but this has been brought under control. The Home Office met its public commitment to decide straightforward asylum claims lodged before April 2014 by 31 March 2015, and to decide all straightforward claims lodged from 1 April 2014 within six months. About 85% of cases are straightforward. This means that the vast majority of asylum claims are decided quickly. While awaiting a decision, asylum seekers are provided with free accommodation and a cash allowance to cover essential living needs—I will come on to the detail of that in response to the noble Lord, Lord Alton—if they would otherwise be destitute. They can also undertake volunteering activities while their claim is outstanding. I am not relying on volunteering as a primary argument, and it will not be financially beneficial, but it will help with integration, making friends, learning the language, maintaining skills and so forth. I will also deal with the noble Lord’s question about volunteering in a moment.
The Government believe that the current policy strikes the right balance. If a claim remains undecided after 12 months, for reasons outside their control, the person can apply for permission to work. That is a fair and reasonable policy and is consistent with our obligations under EU law. It also assists genuine refugees. It is common knowledge that some people make unfounded asylum claims. The reasons why can be difficult to establish, but it is reasonable to assume that some do so because of the benefits, real or perceived, that they think they will gain. Earlier access to employment risks making asylum more attractive for those who are otherwise not eligible to work in the UK.
Providing more generous employment opportunities for those who claim asylum therefore creates a risk of more unfounded claims. An increase in the number of such claims would slow down the processing of genuine claims and undermine our progress towards a fair and efficient asylum system. The Government do not believe that that is a risk worth taking.
I said that I would address the question asked by the noble Lord, Lord Alton, about voluntary work and volunteering. Asylum seekers can undertake voluntary activity, but it must not amount to unpaid work. They cannot be paid for it and it cannot be undertaken on a contractual basis. The noble Baroness, Lady Lister, asked a straightforward question about whether asylum seekers would be caught by Clause 8 and the offence of illegal working. The right to work is a different question from whether you are in the UK lawfully and it is better if I write to the noble Baroness and send copies to interested Peers to confirm how Clause 8 will affect asylum seekers.
The noble Baronesses, Lady Lister and Lady Hamwee, talked about other countries that allow asylum seekers to work that had fewer asylum claims and whether reducing the period would act as a pull factor for asylum seekers. Germany, which was mentioned by the right reverend Prelate, the noble Lord, Lord Kennedy, and others, allows asylum seekers to work after three months and the highest number of applicants were registered in Germany in 2015, including thousands of migrants from the western Balkans who are economic migrants and rarely qualify for asylum. Germany has the highest asylum intake in the EU.
The noble Baroness, Lady Hamwee, asked about the permission to work, which is limited to the shortage occupation list. The list is based on expert advice from the independent Migration Advisory Committee. It comprises skilled jobs where there is an identified national shortage that it is sensible to fill, at least in part, through immigration. The restriction ensures that the employment meets our needs for skilled labour and benefits the UK economy. Under EU law, we are entitled to prioritise access to work for UK and EEA citizens over asylum seekers. Limiting access for those granted permission to work to employment on the shortage occupation list is an effective mechanism for achieving that. However, those granted refugee status have unrestricted access to the labour market.
The noble Baroness also mentioned the recent news about red doors. As the Immigration Minister told the other place today, we have commissioned an urgent review and officials will be travelling to Middlesbrough tomorrow to begin that.
The noble Lords, Lord Ramsbotham and Lord Alton, talked about the support package that is made available to asylum seekers. Nobody is pretending that they will live in anything like the lap of luxury, but it is not a random amount. The £36.95 per week is in addition to free furnished accommodation, with utility bills and council tax paid; and the weekly cash allowance is designed to meet essential living needs. It is reviewed every year using evidence-based methodology and we are satisfied that we provide enough to meet essential needs. The current level is for each person in the household—the asylum seeker and any dependant—and of course they have access to NHS healthcare and all minor children are legally entitled to free primary and secondary education.
The noble Baroness, Lady Hamwee, asked how many asylum seekers had been awaiting a decision for at least six months. There are around 3,500. As I have said, the delays that have happened before have been brought under control and we have met our public commitments.
The noble Lord, Lord Ramsbotham, talked about Red Cross food parcels. The British Red Cross has produced a report on the problems of destitution faced by asylum seekers which is based on 56 cases, but for the most part these were not asylum seekers. Some 46 of the 56 were failed asylum seekers, people the courts agreed did not need our protection.
As I said at the beginning, this is an emotive issue. The Government do not believe that the risk entailed in reducing the period is worth it. In light of the points I have made, I respectfully ask the noble Lord to agree to withdraw his amendment.
Lord Kennedy of Southwark
My Lords, in response to the comments made by the noble Lord, Lord Alton of Liverpool, the Minister referred to the nature of voluntary work. I think we may need a little more detail on that, and perhaps it would be a good idea if he wrote to noble Lords. It is an important point because voluntary organisations and the people who work for them need to be very clear about their position on this matter.
Lord Ashton of Hyde
I completely agree that it is an important point and I will be happy to write to the noble Lord and others who have spoken on this after our session in Committee today.
Lord Alton of Liverpool
I am grateful to the Minister for his response to the noble Lord, Lord Kennedy. Can he be clear in that response on the distinction that is being made between voluntary activity and voluntary work, which I found very difficult to understand, and I am sure that many in the field will find it perplexing too. Their worry will be that either they as organisations or some of those asylum seekers who are involved in voluntary activities could find themselves prejudiced against or even prosecuted. These are significant issues that need to be addressed in some detail.
Lord Ashton of Hyde
I take the point from the noble Lord, and that is why it would be better if our response was written down once we had had a chance to think about it carefully and get our definitions right. I will circulate the response and put a copy in the Library of the House so that voluntary organisations know where they are.
Lord Kennedy of Southwark
My Lords, I thank all noble Lords who have spoken in the debate. When applications for asylum take longer than six months, being allowed to work is a reasonable objective. I thank the noble Lord for his response and I look forward to the letter on the points we have just discussed. Some powerful speeches have been made, particularly by the noble Lord, Lord Alton of Liverpool, and many others. Surviving on £5 a day is an impossible hardship and it has to be endured for many months. As my noble friend Lady Lister said, the risk is that these people will be driven into the illegal work market where the risk of exploitation is even greater.
The noble Baroness, Lady Hamwee, mentioned the issue of the red doors in Middlesbrough. It is unbelievable and I hope that the Government will take very firm action, but let us make sure that we do not end up just painting all the doors blue next time. I make that point because this has to be dealt with properly. It is a scandal and an absolute disgrace. With that, and with my thanks for other comments made by the noble Lord, I beg leave to withdraw the amendment.
Lord Hylton
“Protection from slavery for overseas domestic workers
Rules made by the Secretary of State under section 3 of the Immigration Act 1971 shall make provision for overseas domestic workers in the United Kingdom, including domestic workers employed in diplomatic households, to—(a) change their employer;(b) be required to attend a group information session within one month of the commencement of their visa;(c) be able to renew their visa as long as they remain in employment and are able to support themselves without recourse to public funds;(d) be able to apply for settlement;(e) be able to apply to be joined in the United Kingdom by their dependants;(f) be entitled to a three month temporary visa permitting them to live in the United Kingdom for the purposes of seeking alternative employment as an overseas domestic worker, where there is evidence that the worker has been a victim of exploitation.”
Lord Hylton
My Lords, I rise to confirm that I only spoke to my amendment and did not move it, but in doing so perhaps I may thank those who spoke in favour of the fullest possible implementation of the Ewins recommendations, and I welcome what the Minister said as regards his intention to make progress between now and the Report stage.
Lord Bates
(a) the immigration officer considers that the condition in paragraph 1(3) or (6) is not met, or(b) ”
“( ) that at the time the notice was issued, the condition in paragraph 1(3) or (6) was not met,”
Lord Bates