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”.”
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.
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).””
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
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.”
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.”
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).””
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.”
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 Bates
(a) the immigration officer considers that the condition in paragraph 1(3) or (6) is not met, or(b) ”
Lord Bates