Immigration Bill

Debate between Baroness Hamwee and Baroness Butler-Sloss

Wednesday 20th January 2016 Lords Chamber

[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.

Immigration Bill

Debate between Baroness Hamwee and Baroness Butler-Sloss

Monday 18th January 2016 Lords Chamber

[Baroness Hamwee]

My Lords, Amendment 12, together with Amendments 14 and 38, is in my name and that of my noble friend Lord Paddick. The first of these amendments again goes to the relationship between the new director and the other bodies which the Bill concerns, in particular the Gangmasters Licensing Authority. The Bill provides for a strategy to be prepared by the director. Amendment 12 is probing in the sense that I am not sure whether the language is quite right, but the point is clear enough. It would provide that anyone else who is entitled to prepare a labour market legislation strategy under that legislation gets to keep it, so that their strategy cannot just be altered by some diktat from the director. Of course, in real life, one hopes there would be consultation and discussion.

As we have heard from several noble Lords this afternoon, most recently the noble and learned Baroness, Lady Butler-Sloss, the GLA is a successful body. It has a board and it publishes a strategy. Which strategy takes precedence? In particular, what is the function of the GLA board under the new regime if a strategy is to be handed down by the director? It is important to know how the Government envisage that this will work. We start at the top of the tree with two Secretaries of State, who will have to sort out what was described earlier as “an envelope”. Then there is some sort of trickle-down arrangement. The Government must have thought about how the relative powers and the working arrangements would operate. It is not going to be that easy.

My other amendments are rather to the same point. Amendment 14 is about whether or not the other bodies should be bound by what the director provides. These amendments came before the Government’s mega-tranche of amendments last week. Again, I want to probe the relationship between the various strategies and whether Clause 2(6) affects the GLA board. It refers to:

“Any person by whom labour market enforcement functions are exercisable”.

Is the GLA a “person” for this purpose? Clause 2(6) refers to Labour market enforcement functions being carried out by enforcement officers, not by the employing authority

The last amendment in the group, Amendment 38, is on Clause 6, which provides that the director must set up what is referred to as an “information hub”. The GLA has an information hub. Is that to be superseded? Again, it raises the question of resources. Something like a hub does not just come naturally by shoving some pieces of paper into a file. One thing that will have to be addressed is the funding of the IT infrastructure. Who is to manage the hub? As I said, the Government’s new proposals were published after these amendments were tabled, so they have been rather overtaken—or possibly had their significance magnified—by the new proposals.

This morning on the “Today” programme, the Prime Minister talked, I think in the context of the police, about a country whose Government rely on independent institutions. He said something like, “Independent institutions should be able to exercise independent judgments”. That rather neatly encapsulates the quandary that I find myself in when trying to understand who will be able to be independent within this new regime. I beg to move.

[Baroness Butler-Sloss]

My Lords, I share the concerns of the noble Baroness, Lady Hamwee, in relation to Amendment 12. As I said on the earlier amendments, and as agreed by everyone in the House, the Gangmasters Licensing Authority has gained a great deal of expertise and is working extremely efficiently. The concern that I share and would like to ask the Minister about is whether the director is going to give the Gangmasters Licensing Authority a free rein to continue the good work it is doing. Is there not a danger it may be controlled by strategies set out by someone who does not have the same expertise as Paul Broadbent and his team? I would be very worried about putting the director over the Gangmasters Licensing Authority without clear instructions that his strategy must be very broad and that he should let the authority get on with the work it has done so well. It would not do it so well if it was confined by any sort of strategy that posed unnecessary restrictions on the work of Paul Broadbent and his team.