Immigration Bill
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Lord Rosser
“Protection from slavery for overseas domestic workers
All overseas domestic workers in the United Kingdom, including those working for staff of diplomatic missions, shall be entitled to—(a) change their employer (but not work sector) while in the United Kingdom;(b) renew their domestic worker or diplomatic domestic worker visa, each such renewal being for a period not exceeding twelve months, as long as they remain in employment and are able to support themselves without recourse to public funds;(c) a three month temporary visa permitting them to live in the United Kingdom for the purposes of seeking alternative employment as an overseas domestic worker where there is evidence that the worker has been a victim of modern slavery.”
Lord Rosser
My Lords, there are two amendments in this group, one in my name and in the names of my noble friend Lord Kennedy of Southwark, the noble Lord, Lord Alton of Liverpool, and the noble Baroness, Lady Hamwee. There is a second amendment in the name of the noble Lord, Lord Hylton, within the group. I intend to be relatively brief because I imagine that a number of others may wish to speak in this debate.
The amendment to which I wish to speak seeks to reverse the 2012 visa changes for overseas domestic workers by allowing them to change their employer and renew their visa for a period of 12 months,
“as long as they remain in employment and are able to support themselves without recourse to public funds”.
It would also provide for overseas domestic workers to be entitled to a temporary visa, permitting them to live in this country for the purposes of seeking alternative employment when there is evidence that they have been a victim of modern slavery.
A similar amendment was pursued during the passage of the Modern Slavery Bill, when the Government declined to go down the proposed road as they were having an independent review undertaken of the overseas domestic worker visa, including those for diplomatic overseas domestic workers. That independent review by James Ewins was, I believe, presented to the Home Secretary on 6 November last year and published on 17 December, when the Commons Minister said that the Government’s response would be announced in due course.
In his review, Mr Ewins considered as his fundamental question,
“whether the current arrangements for the overseas domestic workers visa are sufficient to protect overseas domestic workers from abuse of their fundamental rights while they are working in the UK, which includes protecting them from abuse that amounts to modern slavery and human trafficking”.
His review concludes that,
“the existence of a tie to a specific employer and the absence of a universal right to change employer and apply for extensions of the visa are incompatible with the reasonable protection of overseas domestic workers while in the UK”.
In the light of this finding, he recommends in his review as the minimum required to address the problem which he has identified that,
“all overseas domestic workers be granted the right to change employer … and apply for annual extensions, provided they are in work as domestic workers in a private home … that such extensions do not need to be indefinite, and that overseas domestic workers should not have a right to apply for settlement in the UK in order to be adequately protected”,
and that,
“after extensions totalling up to 2 ½ years, overseas domestic workers are required to leave the UK”,
with this extension being, as I said, the minimum required to give effective protection to those overseas domestic workers who are being abused in the UK.
Mr Ewins also stated in his review that the rights that he is proposing should be granted to all overseas domestic workers, with no different treatment between,
“seriously abused, mildly abused and non-abused workers”,
and that,
“overseas domestic workers must be given a real opportunity to receive information, advice and support concerning their rights while at work in the UK”,
if the essential changes that he has proposed to the terms of the visa are to be of practical help to such workers. He also comments that implementation of his recommendations,
“will provide data, information and intelligence which will enable the police, Immigration Enforcement or the proposed Director of Labour Market Enforcement, to take intelligence-led steps to investigate and pursue those who abuse overseas domestic workers with criminal, civil or immigration sanctions”.
There are many other important recommendations and points in Mr Ewins’s review to which I have not referred.
During debate on the then Modern Slavery Bill about the overseas domestic worker visa issue and the Government’s decision to have an independent review, the Minister in the Commons said that the Government looked forward to the recommendations of the review. She went on to say that while she could not commit a future Government, the intention was that whoever was in government would “implement the review’s recommendations”.
I do not wish to go over the ground again on the arguments in favour of the terms of the amendment I am moving, as they were spelled out during the passage of what is now the Modern Slavery Act. Since then, the recommendations from the independent review which the Government set up have been published and, in essence, they confirm the validity of the concerns expressed during the passage of that Act, including on the tie to an individual employer. I invite the Minister to say what the Government’s response is to the recommendations in the independent review and what actions they now intend to take, since we need to resolve the issues surrounding the overseas domestic worker visa as part of our consideration of the terms of this Bill. I beg to move.
Lord 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.
Immigration Bill
Lord Rosser Excerpts(8 years, 10 months ago)
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Lord Rosser
“( ) The primary purpose of the Director is to secure the enforcement of labour market legislation, as defined in section 3(3) of this Act.”
Lord Rosser (Lab)
Before I start, may I say that I certainly do not wish to comment adversely if the Minister got a little confused as to where he was in his notes, if only because I am pretty confident that that is going to happen to me on probably more than one occasion through the passage of the Bill. It is nice to know that I am already in good company.
As we pointed out at Second Reading, the Explanatory Notes to the Bill say:
“The purpose of the Bill is to tackle illegal immigration by making it harder to live and work illegally in the UK … The intention behind the Bill is that without access to work, illegal migrants will depart voluntarily, but where they do not, the Bill contains other measures to support enforced removals”.
Those two sentences are not tucked away at the back of the Explanatory Notes, almost as an afterthought, but are in the second of two short paragraphs at the very beginning of the Notes that constitute the first section, “Overview of the Bill”.
Baroness Hamwee
But within the budgets set by the two departments, as we have just heard. I do not think that anyone is arguing against efficiency, but those budgets are being spent, I assume, to their maximum now. So it is a discussion that will go on.
With regard to the point about the regulations and the possibility of extending the scope of the director’s work, the Minister mentioned parliamentary oversight. Of course, that is a very current issue, because oversight only goes so far. Indeed, one might say that it is “sight” but not “change”, because we cannot do anything about secondary legislation.
I want to comment on the points that have been made about trends and the work, other than that to which the noble Lord and I have pointed, on the protection of workers. I realise that the way in which I have worded my amendment was perhaps not the most felicitous. I did in my speech mention things such as monitoring and trends, and I meant that in a very wide sense. I understand, for instance, that the GLA—this is a very important part of its work—has been extremely successful in its relationship with employers and runs a liaison group with employers and agents in the sectors in which it currently works. One might take any survey with a pinch of salt, but a 93% approval rating—I think I have got that right—from employers in their view of their own regulator strikes me as being pretty high, and I for one certainly do not dismiss the points that have been made by the two noble Lords on the other side.
Lord Rosser
My Lords, I will be brief in responding, with just one or two points to make. I have listened carefully to what the Minister has said in response but, frankly, I think that we are making a meal out of not being willing, as far as the Government are concerned, to put the primary purpose of the Director of Labour Market Enforcement in the Bill. I certainly do not accept any argument that it would somehow restrict the functions of that particular post.
I appreciate what the Minister has had to say about his willingness to send a letter relating to resources, and I am sure that that will be extremely helpful. It is certainly my intention to come back to the issue of resources in a later group of amendments.
On the issue of the involvement or otherwise of the Director of Labour Market Enforcement in the immigration system, the Minister repeated the part of his letter that I also referred to: that the new director’s role did not cover immigration control and that nowhere in this Bill is the director given the purpose or power to do that, and if he or she did they would be acting outside their statutory powers. This is a genuine question and not a challenge, but if the Minister is going to send a letter on resources, will he consider adding to it an indication of which clauses of the Bill would preclude the director from being involved in any aspect of immigration enforcement and control? I ask that partly in the context of Clause 2, which states that
“A labour market enforcement strategy … is a document which … deals with such other matters as the Director considers appropriate”.
What happens if the director considers that a strategy relating in part to some involvement in the immigration process is appropriate? Is he entitled under that particular subsection to get so involved? It would be extremely helpful if in his letter the Minister would address that point. With those comments, I beg leave to withdraw the amendment.
Immigration Bill
Lord Rosser Excerpts(8 years, 10 months ago)
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Lord Rosser (Lab)
I thank the Minister for introducing the government amendments in this group, which set out the Government’s proposals for the new Gangmasters and Labour Abuse Authority. We also have an amendment in this group calling for the Secretary of State to undertake a review of the existing, highly successful and effective Gangmasters Licensing Authority, with a view to extending its remit to enforce labour standards and protection wherever it is believed abuse and exploitation of workers may be taking place.
The Delegated Powers and Regulatory Reform Committee, as the Minister has said, has already expressed its views, through the use of an exclamation mark, on the number of last-minute amendments the Government have submitted. In its speedily produced report on those amendments—for which we are, I am sure, all very grateful—the committee made a number of recommendations relating to the latest tranche of government amendments. It would be helpful if the Minister could say whether the Government intend to adopt those latest recommendations and will therefore be bringing forward appropriate amendments as necessary. It would be very helpful to know what the Government’s position is on that point.
The Gangmasters Licensing Authority, as has already been said, was set up in the aftermath of the Morecambe Bay tragedy in 2004, when 23 Chinese cockle pickers drowned while working there. In the past two years, the GLA has prevented the exploitation of over 5,000 workers. The question that has to be asked, in the light of the changes proposed by the Government and the setting up of a new Gangmasters and Labour Abuse Authority, is whether these changes will address the problem of labour exploitation and abuse across the board, or will the effect be to extend across a broader front a watered-down and less effective version of the current Gangmasters Licensing Authority? If that is the case, this would do little to help eradicate labour exploitation or abuse or, equally significantly, do little to encourage those being abused to come forward.
According to the Association of Labour Providers, which conducts a survey of Gangmasters Licensing Authority licence holders once every two years, this year—as I think the noble Baroness, Lady Hamwee, said earlier—93% of licence holders said they were in favour of licensing, 73% perceived the Gangmasters Licensing Authority to be doing a good job and 67% deemed the Gangmasters Licensing Authority to have contributed to a significantly or slightly improved level-playing field. The point about regulation and achieving a level playing field is important because, as the chairman of the Migration Advisory Committee told the Public Bill Committee in the Commons,
“It takes away the cowboys … and the people who do the undercutting”.—[Official Report, Commons, Immigration Bill Committee, 20/10/15; col. 20.]
The proposed new or revamped authority, the Gangmasters and Labour Abuse Authority, will have the power to enforce the National Minimum Wage Act 1998, the Employment Agencies Act 1973 and relevant parts of the Modern Slavery Act of last year across the entire labour market. It will also engage in criminal investigation and enforcement. The setting up of the Gangmasters and Labour Abuse Authority, as the changed name suggests, will also lead to a move towards what the Government are describing as,
“a more flexible approach to licensing”.
Before putting forward their proposals on the proposed Gangmasters and Labour Abuse Authority, the Government conducted a consultation on tackling exploitation in the labour market. In the part of the questionnaire on licensing, the Government asked respondents to say whether they agreed that the Government,
“should introduce a more flexible approach to licensing, based on a risk assessment, judged on a sector by sector basis and agreed by Ministers and Parliament”.
Since, as the noble Lord, Lord Alton, has already pointed out, almost twice as many respondents answered no to that question as answered yes, it looks, frankly, as though the Government had already made up their minds on the issue of flexible licensing before the consultation started. Otherwise, what was the point of the consultation when almost twice as many respondents answered no to that particular question?
Unscrupulous gangmasters can of course also be flexible and simply move to a sector where the proposed flexibility of the licensing arrangements may enable them to carry on their exploitation and abuse in the labour market. What firm assurances can the Government give that this would not happen under a “flexible approach” to licensing? Can the Minister give an assurance that flexible licensing does not mean a reduction in licensing? I suspect that he cannot give such an assurance. If it means a reduction, that could threaten efforts in the Modern Slavery Act to protect vulnerable workers from exploitation and to reduce cases of modern slavery. Will the Minister also confirm that there will be no shift away from licensing towards voluntary schemes? Witnesses before the Bill Committee in the Commons were clear that the enforcement of labour standards across the board is the only way to level the playing field.
The issue raised most frequently by respondents to the consultation related to resources, and comments have already been made on this issue. Having sufficient resources attached to ensure that the new authority had the ability to match its mission was a recurring theme, and overall respondents were clear that any reforms would need to be sufficiently resourced and enforced. No doubt this clear response was in part conditioned by the fact that labour inspection authorities have seen steep declines in their budgets over the past five years, including a cut of more than 20% to the Gangmasters Licensing Authority. Not only will the GLA, in its changed role, see its remit extended to the whole labour market but it will receive new criminal powers of investigation and enforcement that could require significant resources which, if not provided, could then distract from core licensing and monitoring functions.
However, although this was the most frequently raised issue in the consultation, the Government failed to address it in any meaningful way in their response. Instead, there is a suggestion that the Director of Labour Market Enforcement will help to pool resources between labour inspection authorities. Given the existing budgets on which they operate, though, such pooling could not ensure that the proposed increase in workload was adequately funded. I ask the Minister to tell us, either now or well before Report, in the letter that he earlier undertook to send on resources, what the Government’s estimate is of the resources that will be needed by the new bodies that they are creating under the Bill, including, importantly, the new Gangmasters and Labour Abuse Authority, to undertake the role and remit that they are being given in future under the terms of the Bill—a role and remit that, in many cases, are extended over those that currently apply. Presumably, the Government do not set up new statutory bodies or organisations with defined roles and powers without having a view on the resources that will be needed to enable the remit to be carried out, and the powers given to be effectively applied and enforced.
We have also expressed concerns, in the discussions on previous amendments, about the relationship between labour standards enforcement authorities and the immigration authorities. There is a reference in one of the Government’s new clauses to the new Gangmasters and Labour Abuse Authority having a working relationship with immigration officials and,
“any other person prescribed or of a prescribed description”,
over requests for assistance. Since there is evidence that, the greater the overlap between labour inspection and immigration control, the less likely victims of exploitation are to come forward for identification, could the Minister spell out in some detail what the parameters will be of the working relationship, set out in the Bill, with immigration officials and others undefined, to which I have referred?
The Bill’s provisions also bind officers from, now, the Gangmasters Licensing Authority and, in future, the Gangmasters and Labour Abuse Authority to the provisions of the Director of Labour Market Enforcement’s strategy. The noble and learned Baroness, Lady Butler-Sloss, has already expressed her reservations about that. Why do the Government believe—I ask this despite the previous explanation that the Minister gave—that this is necessary, as opposed to requiring the GLA, and, in future, the GLAA, to have regard to the director’s strategy? What difficulty do the Government see arising if the primary functions and overall strategy of the GLA and GLAA are set by their own board after having regard to the director’s strategy? What is it that the Director of Labour Market Enforcement could conceivably require the GLA to do that that body might not want to do, and thus appear to justify the Government’s proposal that it will be bound by the provisions of the Director of Labour Market Enforcement’s strategy? I hope that the Minister will respond in some detail on that point.
I hope that I am not abusing my ability to speak on this group, but I also invite the Minister to respond, under this group or in the letter that he earlier undertook to send, to a question that I asked in an earlier group about the protections given under the Bill to workers irrespective of immigration status, and what role the Director of Labour Market Enforcement and the agencies that he or she will oversee, including the new GLAA, will play in addressing labour exploitation and abuse in the workplaces of those who do not have the required immigration status to be in this country.
As always, I will listen with interest to the response of the Minister, who I hope will be able to reply, either now or prior to Report, to the points made in response to the Government’s proposals, including the latest batch of amendments following their consultation on labour market exploitation.
Baroness Donaghy (Lab)
My Lords, as the Minister will know, I am a refugee from the employment relations world and the language of immigration is not familiar to me. I know that the Minister himself has a lot of personal experience of employment relations so I hope he will understand that, in supporting my noble friend’s amendment, I have real concerns about why these issues have come up under an Immigration Bill at all. Obviously, I must not be self-indulgent and make a Second Reading speech at this stage, but I echo what has been said that, if this is associated with immigration matters then reporting by vulnerable workers will be even less likely, and that is a matter of some concern.
My other concern is that vulnerable workers can also be British-born. We have heard a lot about how some adults with special needs have been housed in tin shacks and exploited horribly. When I produced a report for the previous Labour Government on construction fatalities, I identified that there were also vulnerable groups of workers who were British-born: the very young, who would not necessarily challenge the authority of their employer, and—how shall I put it?—the quite mature, who were perhaps reaching the end of their working life in construction and thought that they knew rather more about it than they actually did, or perhaps were not familiar with a piece of machinery. So I would regret it if this were seen entirely as an issue of immigrant and migrant labour. Because of where it has appeared in the legislation, there is a danger that that could happen.
I take some comfort from the fact that the consultation exercise was shared between the Home Office and BIS. I look for an assurance from the Minister that BIS will have a very full role to play so that the employment relations aspect of all this—the labour market issues as I know them—rather than immigration issues, will be fully taken into consideration.
Lord Rosser
Is it the Government’s position that the resources currently available to the existing authorities will be sufficient to cover the apparently extended role and remit under this Bill of the Director of Labour Market Enforcement and the GLAA, which, as the Minister has said, will now exercise its function across a much wider front? Do the Government think that the kind of sums the Minister says are being spent at the moment will be sufficient to cover what appears to be a considerably enhanced role for this authority in future?
Lord Bates
As I said, they are 25% higher than this time last year in terms of overall labour market enforcement. Are we saying that that is sufficient? No, because what we are focusing on is the strategy. A very important role of the Director of Labour Market Enforcement will be to advise the Home Secretary and the Secretary of State for Business, Innovation and Skills on what resources are necessary to tackle labour market abuse and exploitation. That is what we are doing, but once we have an overall strategy that says where the focus should be, we would be confident in identifying where the gaps are. We would have more confidence in claims made for increases in resources at that point than perhaps might have existed when we were looking at them in isolation. Again, I would have thought that that would be welcomed.
The noble Lord, Lord Rosser, rightly asked if we would look at the recommendations made by the Delegated Powers and Regulatory Reform Committee. Of course we will. We take all the committees of this House extremely seriously. I would say in our defence—as has been used in defence against us—that the report is dated last Friday, 15 January, and it is now Monday.
Lord Rosser
I hope the noble Lord will accept that it is dated Friday of last week because the Government were so late in producing their significant tranche of amendments.
Lord Bates
Touché. I get that point. The point I am trying to make is a very serious one: that the Government will of course listen to and pay very careful regard to the recommendations of a committee of your Lordships’ House. I will have more to say on that by the time we get to the relevant section on Report.
Will our reforms make it easier for rogue gangmasters to operate without fear of detection? Absolutely not. Our reforms will ensure that the GLAA has tough new enforcement powers to tackle criminals in any labour sector, not just those that are licensed. Importantly, the number of licences granted for 2014-15 was 82, with 27 refusals and 23 revocations, out of a total of 954 licences in existence. That shows that it is something more than a box-ticking exercise: that genuine work is being done by the GLA in assessing the quality of those licences, and we want that to continue.
I have touched on reviews—perhaps not to the entire satisfaction of the noble Lord, Lord Alton—but I will come back to that issue and set out the position in a letter. The licensing rules contain detailed provisions on a variety of matters, such as what information should be provided by a licence holder to a worker before they start—for example, shellfish-gathering rules on tide, accommodation, record keeping and sector- specific provisions. This follows a model set out in Section 7 of the Private Security Industry Act 2001 which allows the Security Industry Authority to set its licensing criteria by publishing a document without any parliamentary procedure but with the approval of the Secretary of State.
I come to the point made on PACE powers—that there is no mention of the new labour market enforcement order offence in the proposed new Section 114B of PACE. Amendment 55, which introduces the new clause “Investigative functions”, provides that the enforcing authorities can use the investigative powers they already have for the relevant trigger offence to be investigated in any breaches in LME orders. This means that where the GLAA has PACE powers for the trigger offence, it can use those powers to investigate a breach. I am immediately conscious, as I read that out, that that does not answer the particular point. Staff designated to exercise police-style powers will be subject to the relevant PACE codes and to Independent Police Complaints Commission supervision. As I say, I am conscious that that does not answer the specific question my noble friend asked, and I will undertake to write to him and to other noble Lords whom I have not had the opportunity to respond to in the time available. I hope, with those reassurances, that noble Lords and Baronesses will feel able to withdraw their amendment.
Immigration Bill
Lord Rosser Excerpts(8 years, 10 months ago)
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Lord Rosser
At Second Reading we expressed support for measures to toughen the penalties against employers who exploit employees. However, we expressed our concern about the provisions in the Bill in respect of those who work without leave to remain or beyond the restrictions of their visa, and which classify wages earnt in such employment as proceeds of crime. For employees in this situation the Bill creates a new criminal offence that is strict and without any defence, since it is committed if the individual employed does not have the right immigration status, and could result in a sentence of up to a year in prison.
No defence is set out in Clause 8. Our position is that there should not be such an offence for employees, but we also have an amendment in this group that would provide a defence of “reasonable excuse”. That amendment will provide the Government with an opportunity to clarify whether there is any defence to this new offence and, if they consider that there could be circumstances in which the offence would not be committed by an employee who did not have the right immigration status, to say why they have not included that, or provided for that situation, in the Bill.
What would be the position, for example, of people who were working in the belief that they had the right immigration status to do so—perhaps because they were sponsored by the employer—and then it emerged that they had committed this new offence because, without their knowing it, their employer had not completed all the necessary arrangements for sponsorship? Is the employee guilty of committing the new criminal offence, thus becoming a criminal? Unless there was a defence under the Modern Slavery Act—that certainly would not be the case in the situation I have outlined—Clause 8 would appear to say yes. Is that fair, just and proportionate?
Lord Bates
It is the same argument as before: whether the same test applies to people who are here legally—in one form—but are exceeding or abusing the terms by which they are in the UK. The noble Baroness may be saying that if that provision contained the phrase “without reasonable excuse”, it should be read across. But there is no ability to say that you can be prosecuted for the proceeds of crime unless you have a reasonable excuse. It is therefore consistent to apply the same test to somebody who is here illegally as to somebody who is here legally but exceeding the terms of their permission to be here.
Lord Rosser
Before I respond to the Minister, I thought he said earlier that he would be reflecting on certain aspects ahead of Report. I wonder whether he would mind repeating what issues he will reflect on before Report.
Lord Bates
The short answer is, of course, that I reflect on all the comments made by noble Lords ahead of Report. I have nothing specific in mind, but it would be helpful if the noble Lord came back with a further question.
Lord Rosser
Is the Minister agreeing to reflect on the points made in the debate this evening and to come back with a response, negative or positive, before Report? Is that what he is agreeing to do, without any specific commitment?
Lord Bates
The new offence will serve as an important deterrent. I have listened very carefully to the noble Lord’s concerns. Although I am of the opinion that there are sufficient safeguards to ensure that the offence is used appropriately and that victims of modern slavery are protected, I said that I would reflect on that point very carefully, listen to the debate and come back with further remarks on Report. The particular point was about whether the defences are sufficient for those who may have been the victims of modern-day slavery.
Lord Rosser
Do I understand that it will not cover the example that I referred to and which the noble Baroness, Lady Hamwee, has just referred to? That is where an individual had effectively been told by their employer that they could be employed, but it was subsequently found out, for example, that the employer was not properly sponsoring them because for some reason or other they had not completed the necessary paperwork correctly, and therefore the individual found themselves in a situation where they were not entitled to work. That was, in essence, the point I was raising.
I appreciate it is probably unfair to expect the Minister to respond to that point now, but I get the impression from what he has said that the area he has agreed to reflect on is very limited. I would hope that he might be willing to say, without making any commitment, that he will reflect on the necessity of this whole issue relating to the offence of illegal working for employees. I accept that this is not the only argument that has been raised, but the principal argument is that the threat of action being taken will be used to deter vulnerable people who may be being exploited, to a greater or lesser degree, from coming forward to expose and report their abusers. That is the principal effect that this new offence is likely to have, and it is likely to be used in that way by unscrupulous employers. I do not think that the Minister has responded directly to that point and I simply urge him to reflect on what has been said on that particular issue—without, I accept, making any commitment—between now and Report.
Lord Bates
I am very happy to do that. If it would be helpful, I would also be very happy to meet with the noble Lord and other interested Peers, with the relevant officials, to talk through our experience on that, which is what has led us to the position that we have taken, and to hear what evidence they may wish to present to the contrary. I think both sides will find that very helpful ahead of Report.
Lord Rosser
In that case, I will not say any more other than to express my thanks to the Minister for agreeing to do that. I beg leave to withdraw my amendment.
Identity Documentation
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Lord Rosser (Lab)
My Lords, first, I add my thanks to those expressed already by so many others to my noble friend Lord Campbell-Savours for securing this debate. It provided us with a real trip down memory lane to be reminded by my noble friend Lord Harris of Haringey of an early episode of “Fawlty Towers” and then to be fascinated by hearing about his favourite places.
As my noble friend Lord Campbell-Savours said, both Conservative and Labour Governments, and the Home Affairs Committee in the other place, have at differing times expressed an interest in, or introduced, identity cards. In May 1995, the Conservative Government published a Green Paper on identity cards. In 1996, the Home Affairs Select Committee in the other place concluded in a report that the balance of advantage to the individual citizen and to the public as a whole was in favour of some form of voluntary identity card, subject to a number of provisos. The committee also stated that only a compulsory card, or one that carried details of immigration status, would have an impact on preventing illegal immigration. The Queen’s Speech of the 1996-97 parliamentary Session then included a commitment by the then Government to publish a draft Bill on the introduction of voluntary identity cards.
In 2004, the House of Commons Home Affairs Committee published a report, following its own inquiry and the publication of a draft Bill by the then Government, which concluded that the Government had made a convincing case for proceeding with the introduction of identity cards. The committee said that the test should be whether the measures needed to install and operate an effective identity card system were proportionate to the benefits such a system would bring and to the problems to be tackled, and whether such a proposed system was the most effective way of achieving this goal. It also expressed the view that the scheme proposed by the then Government would represent a significant change in the relationship between the state and the individual—a point raised by the noble Lord, Lord Oates, who was opposed to going down the road advocated by my noble friend Lord Campbell-Savours.
The Labour Government then passed the Identity Cards Act 2006, which created a framework for national identity cards in the UK and a national identity register. The rollout of compulsory ID cards for foreign nationals began in November 2008 and the rollout of the identity card to UK residents began on a voluntary basis in November 2009. The then Government argued that the Act would achieve less illegal migration and illegal working, enhance the UK’s capability to counter terrorism and serious and organised crime, reduce identity fraud and lead to more efficient and effective delivery of public services. That was not a view shared by the incoming 2010 Conservative-led coalition Government, who immediately passed an Identity Documents Act cancelling identity cards, which ceased to be a legal document for confirming a person’s identity in January 2011 and ceased to be a valid travel document. However, as has been said, the UK Border Agency continues to issue biometric residence permits to non-European Economic Area foreign nationals staying in the UK for more than six months to provide evidence of the holder’s immigration status in this country.
In his speech, my noble friend Lord Campbell-Savours made his case for identity cards in his typically powerful and persuasive manner, and raised a number of points which require a full answer from the Government if this debate is to have any meaningful purpose and not simply turn out to be little better than a talking shop. On previous, very recent occasions when the issue of identity cards has been raised, both in this House and in the other place, the Government’s response has been that they considered money that would have been spent on identity cards had been and was being more usefully spent on better equipping security forces and better securing our borders.
There are two points on that. First, to suggest that we have improved and are improving control of our borders by using money not being spent on identity cards seems a rather doubtful claim from a Government who are nowhere near achieving their own declared objective of net migration in the tens of thousands, who apparently have large numbers of asylum seekers whose claims they have rejected still in this country without even knowing where they are, and who have no real idea how many people are in this country with no authority to be here.
The second point is that the Government appear to see identity cards as an inferior option to investing in other means of improving security and control rather than as potentially another complementary string to the bow. If that is the Government’s argument and I have not misrepresented it, they have to make their case, including by responding in detail to the specific and clear points made by my noble friend Lord Campbell-Savours about the potential wide-ranging benefits of identity assurance and an identity database. As has been said, many other European countries have identity card systems in one form or another in which they appear to have confidence, so it is not some revolutionary, untested idea.
As my noble friend Lord Harris of Haringey and others have said, we also live in a society where, in the light of technological developments, the amount already known about an individual, or which can relatively easily be found out about an individual, by both commercial and other organisations and the state is considerable and seems to expand by the year. As a result, the extent to which it can be claimed that an identity card system and an identity register represent some further unacceptable intrusion into privacy is one on which there are likely to be very different views.
In the House of Commons earlier this week, the Government were asked by both a Conservative and a Labour Member to reconsider the question of ID cards in the light of issues concerning immigration and the identification, detention and deportation of illegal immigrants, as well as the introduction of digital services, national security and the protection of UK citizens from terrorism. In his speech, my noble friend Lord Campbell-Savours laid emphasis on how he considered the benefits of identity assurance went way beyond those areas and into addressing the increasingly worrying area of identity fraud.
I have to say that this is a Government who are prone, on occasions, to making hasty decisions on security and border control issues. There was the issue of control orders, which the Government decided they could not countenance but then found they had to bring back in all but name. Then there was the Government’s determination to opt out of EU directives on justice and home affairs issues, only to find, when reason prevailed, that it was in the national interest to opt back in to the key matters. Perhaps this was when the Government finally appreciated that Europe and co-operation were not the causes of security issues and other problems, but rather the potential solutions to them.
Given this Government’s track record in this area of, on occasions, acting first and thinking second, the issue raised by my noble friend Lord Campbell-Savours deserves not to be hastily dismissed as it has been on previous occasions. Instead, the case that my noble friend has made today deserves to be considered carefully in the light of the current situation—particularly in respect of increasing identity fraud, the need for identity assurance, the threat of terrorist activity and apparent levels of illegal immigration—and given an evidence-based response, irrespective of whether the Government decide they are going to change their approach or not.
I hope that that is what the Government’s line will be today: that, without any commitment to change their current stance, they will nevertheless set up a review of the advantages or otherwise of the introduction of an ID system giving identity insurance, including looking at the position in other countries that have such systems and the benefits or otherwise that those systems actually bring—an issue raised by the noble Lord, Lord Scriven.
In today’s environment, all measures that might further enhance security and address other significant problems and issues, including identity fraud, merit careful and full consideration of their advantages and disadvantages so that decisions made on what measures it is in the interest of our nation and our citizens to adopt are clearly evidence-based.
Lord Bates
In the strict way in which the noble Lord poses the question, of course, the answer would be—
Bus Services: Local Government Funding
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Lord Ahmad of Wimbledon
I did not see the programme. Part of my Sundays are taken up with my own “countryfile” responsibilities of helping my children build their country projects—in this case, however, it was a chocolate cake.
To get back to the question, the noble Lord is quite right to point out that there are challenges in funding. However, this is not about apportioning blame to one over the other; it is about ensuring that essential services are sustained, and the Government are moving forward on this. Indeed, yesterday, during the debate on the devolution Bill, I talked about the creation of STBs, which I intend will ensure that local decisions on transport are made by the people who know best.
Lord Rosser (Lab)
My Lords, given the drop in fuel prices, what action have the Government taken to ensure that there is now a reduction in bus fares to reflect the reduced cost arising from that?
Lord Ahmad of Wimbledon
As the noble Lord will be aware, one of the legislative proposals coming forward is the buses Bill, which will ensure again that local authorities are empowered—through the purposes of franchising, for example—to ensure better, sustainable fares and the sustaining of essential bus services. That will form part and parcel of the Bill.
Immigration Bill
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Lord Rosser (Lab)
The last page of the Bill states that its purpose is:
“To make provision about the law on immigration and asylum; to make provision about access to services, facilities, licences and work by reference to immigration status”.
On the face of it, that is pretty innocuous, since immigration has brought significant benefits to our nation. However, two sentences in the second paragraph of the Explanatory Notes tell us in blunt and stark terms the true objective and purpose of the Bill:
“The purpose of the Bill is to tackle illegal immigration by making it harder to live and work illegally in the UK. The intention behind the Bill is that without access to work, illegal migrants will depart voluntarily, but where they do not, the Bill contains other measures to support enforced removals”.
This is one group of working people who will not be lauded by the Government but will instead now be criminalised and removed from the country for the offence of working hard. We shall need to keep in mind the two sentences I have quoted from the Explanatory Notes as the Bill goes through its different stages in this House, since they explain the driving force behind the Government’s clumsy legislative proposals.
Strong arguments will no doubt be made that in reality some of the clumsy measures in the Bill will make the illegal immigration situation worse rather than having the effect the Government envisage. The differences of view that are likely to arise will be over the manner in which the declared objective of reducing illegal immigration is intended to be achieved and the likely effectiveness of the measures actually proposed. Unlike the Government, we will not be judging the desirability of or the need for the measures in the Bill against the criterion of whether they make life harder for some extremely vulnerable people.
No one is likely to be opposed to reducing illegal immigration—the key word being “illegal”. However, the Bill has appeared before there has been any time for a proper assessment of the effectiveness or otherwise of the Immigration Act 2014. One can only conclude that the Bill has been driven primarily not by hard evidence of what works and what does not work but by the continuing political difficulties the Government have created for themselves by not coming even remotely near their own ill-judged, self-imposed and self-chosen objective of net migration in the tens of thousands. There appears to be a need in the Government’s eyes to give the impression to their supporters that they are acting tough on immigration, when in fact the Bill simply highlights the reality that the Government, on this issue, are like a duck paddling furiously simply to try to stand still.
There are some aspects of the Bill which we support, and I shall refer to these before coming to the parts we consider clumsy and potentially damaging. We support the establishment, although not the precise functions, of a Director of Labour Market Enforcement, who could provide much-needed strategic leadership in protecting the victims of labour market exploitation, but who should not also have any role connected to immigration control. We support the strengthening of sanctions for employers of illegal workers, which builds on the Immigration, Asylum and Nationality Act 2000. We also support the requirement for banks to carry out immigration status checks on current account holders, although it needs to provide sufficient redress for those wrongly identified, and the introduction of a duty on public authorities to ensure that all public sector workers in public-facing roles are able to speak fluent English.
I turn to our key but not only areas of concern, but make one general point. That is the apparent lack of hard evidence clarifying the extent or nature of the problems that the Government perceive as existing, and thus the need to take the kind of measures proposed in the Bill, or to show that the measures proposed in the Bill will, first, have the effect that the Government expect and, secondly, will not prove to be counterproductive and harm community cohesion.
The Bill’s overarching impact assessment is thin in terms of both pages and content, which suggests little quantifiable impact on reducing illegal immigration and even less assessment undertaken. There are references in the impact assessment to some financial savings but, as we consider the Bill, we will need to know by how much the Government expect each major measure to impact on illegal immigration and the hard evidence on which such expectations are based.
In that context, I assume that the reference in the Explanatory Notes of the purpose of the Bill being “to tackle illegal immigration” means, as far as the Government are concerned, reducing illegal immigration. No doubt that point can be clarified in the Minister’s response at the end of the debate, along with an indication of the criteria against which the Government intend subsequently to assess the success or otherwise of the Bill in delivering their declared objectives.
The Bill creates an offence of illegal working, although it is already an offence for a person who does not have leave to enter or remain to be in this country. The Bill simply creates a further criminal offence for such people. The Government do not appear to be claiming that this further criminal offence is needed to enable those who are working in this country illegally to be discovered and removed when without it they would not be. Rather, they are saying that this new criminal offence is being created because being able to catch such people under the new offence enables the earnings that they have made from working illegally to be seized under the Proceeds of Crime Act 2002.
The actual need for this measure, what it will achieve in reality and how it will operate will have to be explored in Committee. Perhaps even now the Government could say whether it is one of their objectives to criminalise some vulnerable people further in order to get from them what little money some of them will have earned, possibly over a lengthy period and in a situation where they will have been exploited, to a greater or lesser degree, by those employing them. It is those doing the employing and exploiting who should feel the full force of the law, not those being employed and exploited.
We need to find out whether the Government intend to prosecute all those found to be in breach of this new illegal working offence. How many people do the Government estimate are currently working illegally in this country in what will in future be breach of the new offence, and how many will be prosecuted for the new offence during each of the first three years during which it is on the statute book? How much money do the Government expect to seize in earnings from illegal workers during each of the first three years during which the new criminal offence of illegal working will be on the statute book, if the Bill is passed as it stands?
The new illegal working offence runs the real risk of further disempowering potentially vulnerable workers and empowering would-be exploiters, who will now have a further offence that they can remind those who they are employing they could be prosecuted for if they get the authorities. It could also leave vulnerable people opened to being trafficked. What is needed is more resources for inspections, a focus on exploitative employers and mechanisms to encourage, not discourage, those who believe that they are being exploited to come forward. Criminalising vulnerable or potentially vulnerable people through the proposed illegal working offence seems to cut right across these objectives. Since there are already criminal offence provisions relating to those who have breached the Immigration Rules, is there really a need to introduce a new criminal offence of illegal working, against which an employee who does not have the right immigration status has no defence at all?
The Bill also includes proposals to terminate support for asylum seekers and their children who have had their applications turned down and any appeal rejected but have not departed from this country within the required period of time. The only basis on which support could continue would be under a provision now inserted in the Bill which says that they would be eligible for support if they could demonstrate that there was a “genuine obstacle” to their leaving the UK. There will be no right of appeal against decisions to refuse or discontinue support under this limited provision, despite the track record of the Home Office in seeing successful appeals against its decisions, so the only potential remedy would presumably be judicial review, which is neither quick nor cost effective. Perhaps the Minister could say what the anticipated amount is that would be paid out each year under this provision—namely new Section 95A—compared with the savings that would be made by withdrawing all existing support under Section 95 of the Immigration and Asylum Act 1999.
Will the Minister also say what might count as a “genuine obstacle” to leaving the UK, and confirm that the reality is that the onus would be on the failed asylum seeker to somehow find and produce the evidence to prove their case? This risks increasing the chances that failed asylum seekers will abscond, again increasing the risk of vulnerable people—not least, the children of families affected—being exploited. Simply offering warm words on these concerns from the Government’s Dispatch Box is not sufficient. Terminating support might also make it more difficult for the Home Office to remain in contact with people liable for removal from the UK and undermine efforts to promote voluntary deportations. Evidence suggests that support for families facing removal—including support by way of help with documents and advice—is the best way of ensuring that they leave. Withdrawing support for this category of migrants seems like a threat of destitution as a means of enforcing the Immigration Rules.
A further issue is that of immigration detention. The Government have said that they will be conducting an internal review on this. What is needed is an independent review on immigration detention to be carried out within a short period of time once this Bill has come into force. It should consider the effectiveness and suitability of the law concerning immigration detention, including the merits of having a time limit. The All-Party Parliamentary Groups on Refugees and Migration have called in a report for a time limit on detention to be introduced, which they argued should be 28 days. I believe that I am right in saying that the UK is the only country—or about the only country—in Europe that does not have a time limit of any sort for immigration detention.
Another concern relates to the new criminal offence under the Bill for landlords and letting agents who do not comply with the right-to-rent scheme or fail to evict tenants who do not have the right to rent. In our view, potentially criminalising landlords in this fashion could lead to discrimination in the rental markets, as landlords play it safe over whom they accept as tenants when it comes to immigration status. Landlords themselves are calling for clarification that they will not be prosecuted where they have done everything reasonably possible to confirm the status of a tenant or where they are actively seeking to evict a tenant whom they have been told does not have the right to rent.
Among other provisions of the Bill that will need careful consideration of their justification and likely impact, including on children, is the power that the Secretary of State will have to certify the claim of someone appealing against an immigration decision—including on human rights grounds—so that they can appeal only from outside the UK.
The Bill also contains some measures in respect of border security. The Government maintain that they have control of our borders, but that seems highly questionable if the Government are arguing that one of the justifications for the proposals in the Bill is the level of illegal immigration. It is clear that the resources provided for securing our borders are insufficient. Perhaps the Minister could say what the Government’s estimate is of illegal immigration each year. Indeed, perhaps the Minister could also say what the Government’s estimate is of the level of net migration for this year and for 2016. We will also during the passage of the Bill want to discuss the recommendations in the very recent report to the Government on overseas domestic workers.
I have set out our concerns about a number of what we regard as clumsy and potentially damaging provisions in the Bill. It will be for the Government to produce the hard evidence to show that their proposals are needed and justified; that they will deal with the problems that the Government say they are intended to address; and, most importantly, that they will avoid unintended consequences such as undermining the progress made on tackling modern slavery and human trafficking, leaving families—including children—destitute, and increasing the likelihood of discrimination in the workplace and housing market. If the Government cannot do this—and they certainly have not so far—we are in real danger of passing a Bill that, as it stands, would be counterproductive in respect of illegal immigration and would harm community cohesion. We will do our utmost to ensure that this does not happen.
Railways: Suicides
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Lord Ahmad of Wimbledon
We work very closely across the board with the British Transport Police on this issue. The noble Baroness may well be aware that initiatives are being taken—right here in the capital, for example—to increase police patrolling to ensure that we minimise not just suicide prevention, as she points out, but also hate crime that takes place on our networks. We seek to minimise that and we work together with the police on ensuring this.
Lord Rosser (Lab)
The Minister has already made reference to dividers on platforms. If he is talking about the same thing that I am, he will know that on the Jubilee line extension from Westminster eastwards at stations below ground level there are barriers at the edge of the platforms that also have the effect of preventing people from jumping in front of an incoming train. Are the Government pressing for such barriers to be extended to more stations on the London Underground in a bid to reduce the number of suicide attempts?
Lord Ahmad of Wimbledon
The noble Lord is right to point out that those have proven to be successful prevention barriers. The prevention barriers that I was referring to, those within Network Rail stations, physically divide the platforms and manage commuter traffic. We are looking at ensuring that prevention measures can be accommodated where possible in existing stations to prevent suicides. As I said, one suicide is one too many.
Counterterrorism: Muslim Communities
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Lord Ahmad of Wimbledon
I totally agree with the noble Lord, and perhaps I may put this into context. It is why our Prime Minister said recently when referring to Daesh that it is neither Islamic nor is it a state. That underlines how we deal with those who seek to hijack the noble faith in this country.
Lord Rosser (Lab)
My Lords, in November the Muslim Council of Britain took out an advert in the national press to underscore the united condemnation by Muslims of terrorism, especially after the Paris attacks. On 9 December thousands of Muslims took to the streets of London to participate in a peace rally, which received limited media coverage, presumably because such a story does not sell papers. Does the Minister think that all who are in a position to do so, whether they are individuals or organisations, have a responsibility to reflect in what they say and write the real abhorrence and rejection of terrorist activities by all key sections of our diverse nation?
Airport Security
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Lord Rosser
To ask Her Majesty’s Government which airports used by flights to and from the United Kingdom have been the subject of a security review leading to enhanced security arrangements since the end of October.
The Parliamentary Under-Secretary of State, Department for Transport and Home Office (Lord Ahmad of Wimbledon) (Con)
My Lords, since the tragic loss of the Metrojet aircraft we have been urgently reviewing security at a number of airports with flights to the UK and we are working closely with the countries concerned to address any shortcomings that we identify. Noble Lords will of course understand that we do not comment in detail on security arrangements.
Lord Rosser (Lab)
My Lords, I thank the Minister for that response, and obviously I accept what he said about not revealing details of security arrangements. However, can he say whether these reviews that are carried out are related simply to whether required procedures and processes are in place or do they also look at whether in reality those procedures and processes are being thoroughly adhered to and properly carried out? Obviously, the effectiveness of security arrangements at airports is also dependent on the attitude and approach of the people responsible for applying and implementing them. Secondly, are these reviews of security arrangements at airports around the world, which the Government have said are conducted in conjunction with the sovereign authorities, done on a pre-announced basis as far as the airport is concerned or on an unannounced basis?
Lord Ahmad of Wimbledon
The noble Baroness is, I believe, referring to the recent reports of the provisional investigation by the Egyptian authorities. Certainly we are clear that the Russian authorities have retained their view that it was an explosive device, and our actions were based on our own assessment and the intelligence reports we had, to ensure that we took effective action to ensure the safety and security of UK citizens. We continue to monitor the situation and we will not restore flights until we are satisfied that new arrangements are in place.
Lord Rosser
I inquired whether the reviews of security arrangement at airports around the world, done in conjunction with the sovereign authorities, were done on a pre-announced basis as far as the airport itself is concerned or on an unannounced basis. I do not think that the Minister responded to that point.
Lord Ahmad of Wimbledon
What I was alluding to is that we are dealing with sovereign authorities. Of course we will work in conjunction with how they see fit to monitor their airports. It would be inappropriate for a UK agency to demand access based on unannounced procedures that the sovereign authority had not agreed to.