Immigration Bill

Lord Bates Excerpts

Monday 18th January 2016 Lords Chamber

[The Minister of State, Home Office (Lord Bates) (Con)]

I begin, as I have been invited to, by apologising to the Committee for the late tabling of these amendments, but let me try to explain that a little further. We were faced with a particular challenge. Noble Lords will recall that we had the Second Reading on 22 December, and one issue raised at that point was that the scheduled date for the first day in Committee was 13 January. In the light of the likely publication of our response to the consultation, we agreed to see whether the start date could be put back—which it was until today, 18 January.

We were then faced with a challenge regarding the publication of the report, referred to by the noble Baroness, Lady Hamwee, in response to the consultation document on tackling exploitation in the labour market. We said that we would have a period of consultation, which ran from September through to December, and that we would legislate on the back of that consultation, which seems to me to be general good practice. The question was then: at what stage should the amendments be introduced? There was a little debate—I am looking at the Box, but it is probably best that I do not—as to whether they should be introduced on Report, or in Committee. My noble friends Lord Ashton, Lord Keen and I took the view that if they were introduced for the Committee stage, at least they could receive a thorough airing, which could be reflected on before Report.

There is a large number of amendments. We had a meeting with all interested Peers and again, we tried to listen carefully to the points that were being raised. One was that because the amendments were tabled, it was not easy for an opposition spokesman or any Member of the House, let alone the Minister responding, immediately to correlate the amendment to the specific recommendation. A suggestion was made that we should produce a schedule, which was done within 24 hours of that meeting. That then went out to noble Lords who had attended the meeting, through the usual channels to the official party groupings and to Cross-Benchers, of course.

I am trying to explain some of the thought process. It was not intended to be discourteous to your Lordships’ House but sought to be helpful. The other point is on the nature of these amendments. I think that 59 relate to the consultation document. There is also a vast swathe—I did not manage to calculate the number—linked to the licensing of private hire taxi companies. We shall be coming to that issue in later groups. I did not realise that it seems as if every locality in the entire country has its own regulation for private hire taxi companies, so one amendment cannot apply across the entire country but needs to amend legislation pertaining to a particular area. That deals with the large tranche of the amendments.

I add to the previous debate on the minimum wage regulations my appreciation and that of the whole House to the Delegated Powers and Regulatory Reform Committee for its incredibly speedy work, even if it did introduce a bit of a riposte by stating that,

“the Government tabled a substantial number of amendments—54 pages’ worth!”.

I think that is the first time I have seen an exclamation mark in one of its reports. The point was made eloquently by symbol on the committee’s feelings on that. I offer my apologies, and hope that this is by some way of explanation. I also express our appreciation to the Select Committee on the Constitution for its very helpful report, which I know we will be coming to in later stages.

With that attempt at setting out the position, which I know is not ideal, I now turn to the amendments before us. The noble Baroness has rightly noted that the Director of Labour Market Enforcement’s remit covers the work of enforcement bodies that sit under two departments: the Gangmasters Licensing Authority reports to the Home Secretary while the Secretary of State for Business, Innovation and Skills is responsible for the work of the Employment Agency Standards Inspectorate and the HMRC’s national minimum wage team.

The Government have been clear in the consultation that we published and our response to it, as well as in assurances made by my right honourable friend James Brokenshire in Committee in another place, that the director will be a joint appointment by the Home Secretary and the Secretary of State for Business, Innovation and Skills. They will jointly appoint the director and receive the strategy. The noble Baroness may have concerns about how the two Secretaries of State will reach agreement, but I reassure her that preventing abuse of labour market laws is a priority for both departments. Subject to parliamentary approval of the role, they will both be looking to appoint a director with the necessary skills and experience to make a difference.

The requirement to consult Scottish and Northern Irish Ministers in Amendment 3 brings me to the territorial extent of this role. Employment law is broadly reserved as the UK operating as a single labour market brings great benefits to workers and employers. Therefore, the director’s remit will be UK-wide. However, there are parts of the remit where the policy is not reserved. To deal with this, we are legislating to ensure that the director can set the strategy to enforce labour market legislation only to the extent that it already applies and is reserved. That is: the whole of the UK in respect of the national minimum wage; Great Britain for the Employment Agencies Act 1973 and the Gangmasters (Licensing) Act 2004; and England and Wales in respect of the Modern Slavery Act 2015. Therefore, there will be no need for Ministers formally to consult Scottish Ministers or the Department of Justice in Northern Ireland.

However, to allow the strategy to be successful, the legislation requires it to be evidence-based and include the director’s assessment of the scale and nature of non-compliance in the labour market. To do this, the director will draw on the widest possible range of sources. This will include the intelligence hub provided for in Clause 6, but will inevitably include engaging non-governmental organisations, as the noble Lord, Lord Kennedy, requested, bodies representing employers, bodies representing workers and other organisations to develop the fullest possible picture. These will include charities, the enforcement bodies themselves, and other organisations such as the police.

Amendments 6 and 13 would require the Director of Labour Market Enforcement to engage certain people in the development of the labour market enforcement strategy, while Amendment 11 would require the Director of Labour Market Enforcement to engage with civil society and voluntary organisations in the development of the labour market enforcement strategy. It is not yet clear how the director would be able to discharge the legal requirement to,

“engage with civil society and voluntary organisations”,

which is not defined. I fear that putting this duty on the director would be unhelpful as it does not specify the full range of organisations that the Government expect would need to be consulted as part of that provision. These include non-governmental organisations, bodies representing employers, bodies representing workers and other organisations not specified in the amendment. Therefore, my opposition to it rests on it being unnecessary, while risking unhelpfully to narrow the director’s focus.

Amendments 12 and 14 appear to limit the director’s proposed role by not permitting his strategy to alter the strategies set out by any of the other enforcement bodies, or binding the enforcement bodies to delivering the director’s strategy. The director’s strategy is not intended to undermine the strategies of the enforcement bodies, or to take precedence. Rather, we expect those strategies to be informed by the director’s strategy as they deliver their contribution to tackling labour market exploitation.

On the GLA, the GLA board will continue to be responsible for the delivery of the GLA’s functions. What will change is that the delivery of those functions will sit within a wider vision of tackling labour market exploitation. While I will address this in due course, the Government’s amendments will add the functions of the GLA board to the list of labour market enforcement functions as specified. Furthermore, the GLA board will have a duty to exercise its functions in accordance with the director’s strategy. We believe that this will ensure that the enforcement bodies and the director work together more effectively.

The final amendment in this group, Amendment 38, brings me to the intelligence hub. Clause 6 as drafted gives the new director the duty to lead an intelligence hub that forms a coherent view of the nature and extent of exploitation and non-compliance in the labour market.

[Baroness Hamwee]

I think the Minister may have turned over two pages and gone on to the next group.

[Lord Bates]

Well, I have to say in that respect, I have not turned over two pages, but I may well be on to the next group. If so, and with that helpful prompt from the ever-helpful Baroness, I give way.

[Lord Kennedy of Southwark]

I thank the Minister for his helpful explanations of his remarks. Will he confirm that, because of the situation we find ourselves in with these amendments coming at such a late stage—civil society will want to look at them again—there will be plenty of time outside the Chamber for noble Lords and campaigners to meet the Minister to discuss these things in more detail?

[Lord Bates]

I can certainly say that. That is a very helpful intervention on a number of levels. I know that officials found our meetings last week and before Christmas very helpful. I think that that will continue to strengthen the work of the Committee. With that, I will pause my remarks and hope that the noble Baroness will feel able to withdraw her amendment at this stage.

[Baroness Hamwee]

My Lords, I certainly will. It would not be profitable to continue the discussion now about the tabling of these quite considerable changes. I. too, am grateful to the officials who have been very helpful in the most difficult circumstances.

It is extraordinary to me how many people outside this House read the report of our proceedings in very considerable detail, particularly those who have an interest in the subject matter. For them, I will say that I checked with the Public Bill Office this morning and it was confirmed to me that, provided we do not divide but merely agree the government amendments, there are no bars to our tabling amendments to what will then be part of the Bill on Report. I apologise to the Minister and officials if that prompts a flood of further amendments—but so be it.

My only other point, with regard to the Minister’s remarks on taxis, is to offer him a piece of advice. He should never tell a taxi driver that he is a Minister in the Government—or indeed a Member of this House—because he will not get out of the taxi without a most difficult conversation.

On Amendment 11, I understand the technical points that the Minister makes, but the third sector is hugely important. As has been said, it is the linchpin of the way in which our immigration service—if that is the right word—deals with asylum seekers and some other immigrants. It is absolutely central. It should not need saying that there will be the contact with the voluntary sector and other organisations that has been spelled out. I think that it says a lot that it was felt necessary to put that down.

With regard to my amendments and which departments do what and how they work together, we are told that the legislation is a priority for both departments, but I would say that each department has its own distinctive and different priorities. That is where I see problems, perhaps, coming. I beg leave to withdraw Amendment 1.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts (Con)]

I have to say that I have some sympathy with my noble friend Lord Horam about the importance of not narrowing the gateway too much in terms of the work of the Director of Labour Market Enforcement. The wording in Clause 2(2)(a)(i) allows for a very wide remit: it seems to me to be important to preserve this. It is very easy of course to see this only through the prism of the victims—and indeed there are terrible victims who need protection—but the director should surely be able to identify practices, behaviours and trends not only relating to the protection of workers.

I am a keen supporter of employee share ownership. Every year the Employee Ownership Association has a dinner in your Lordships’ House, which I am proud to sponsor. Last year I was sitting next to one of the biggest companies in the field of imports, which brings a lot of stuff across the Channel in containers. He said to me, “Do you know that up to about a year ago, once a year a container would have people inside it; two or three times a week now, you open the container in Cowley and six or seven people jump out and disappear into the dark. They have a baseball bat and you can’t stop them—and talking to my colleagues in other firms this is an increasingly prevalent practice”.

It seems to me that this is the sort of issue that ought to be publicised and the director ought to be able to raise. It is not about protection of workers, though that is a very important part of his job. It is about what is happening in the labour market generally. It would be a grave mistake if we allowed ourselves not to think about these activities as well, and make sure that the director could comment on them and make suggestions for improvement. It is in the interests of everybody, but particularly those who are victimised, that this should be publicised—and the other side of the coin should be publicised as well. I hope that my noble friend will bear that in mind when he comes to consider his reply to this set of amendments.

[Lord Bates]

I first thank the noble Lord, Lord Rosser for moving this amendment. I am glad we are on the same page in terms of tracking the amendments. As I do that, let me remove another lever-arch file, with a message from the Box, which I thought was a very timely one: if noble Lords would kindly tell us when they plan to degroup an amendment, then we will try to do better at telling people when we intend to lay an amendment. But I suppose it is the first day in Committee and we are all finding our way through that postbag.

This has been a useful exchange. Under this particular group, as I see it, the Committee is seeking to understand better the nature of the role of the new Director of Labour Market Enforcement and to flesh it out, to understand something more of the resources and to understand where the immigration enforcement boundary and the role of standards in the labour market actually connect. While I appreciate the desire to include upfront a strong statement of the remit of the Director of Labour Market Enforcement, a role that has been welcomed on all sides of the House and in the other place, I believe that amendments on the subject are unnecessary. The role and remit of the director are clearly set out already in Clauses 1 to 7. We want the director to bring co-ordination across the whole spectrum of breaches in employment law, from employers who do not know the rules right through to the organised criminal exploitation of workers.

I should say here—this is relevant to the contributions from a number of noble Lords, particularly the noble Lord, Lord Alton, and the noble Earl, Lord Sandwich—that we often find that the rogue employers, underpaying employees with regard to the national minimum wage, and the unscrupulous employment agencies that deduct far more than they should from employees’ salaries are often the same people, who will be guilty of abuse across a whole range of different headings. That is the essential value that the information gives us, and the essential value of the overall role.

I will send around to noble Lords a very useful schematic. I know that schematics are not favoured by your Lordships’ House because of the difficulties that they convey to the Official Report in communicating them, but this one is a good way of illustrating that at the moment a number of disparate functions are prosecuted in different silos. We are seeking to be much more effective by bringing those silos together, not just in terms of their strategy but by placing the Director of Labour Market Enforcement above them to ensure that scarce resources are allocated most efficiently, and that we learn the maximum that we are able to about exploitation.

Where we set the director’s primary purpose in legislation as enforcement, as the noble Lord, Lord Rosser, seeks in Amendment 4, we are prejudging the best way to secure compliance. The noble Baroness, Lady Hamwee, seeks in Amendment 5 to give the director the purpose of protecting workers from exploitation. Exploitation is not universally defined and means different things to different people. Concerns have been expressed that the director will get involved in enforcing our immigration laws. I reassure noble Lords that that is not part of the role of the Director of Labour Market Enforcement. I know that there was some discussion about the exchanges in Committee in another place on this, but I am happy to place on record again my remarks in my letter of 8 January:

“I want to reassure colleagues”,

following Second Reading, that immigration control,

“is not part of the role of the Director of Labour Enforcement. Nowhere in this Bill is the Director given the power or purpose to do that … they would be acting outside of their statutory powers”.

It is useful to get that very clear statement on the record in Committee. Concerns have been expressed that the director will get involved in enforcing our immigration laws, and I want to ensure that that is not the case.

I turn to the annual labour market enforcement strategy. The Government’s position is that it will be successful only if it includes an assessment of threats and obstacles by “turning over stones”, telling Ministers where the gaps are and making proposals for how they can be addressed. Similarly, a successful strategy will be based on the evidence of what enforcement has happened in previous years, including what remedies were secured for victims. These are both already covered by the Bill so Amendment 7, in our opinion, is unnecessary.

Amendments 8 and 10 cover the director’s role in the funding arrangements for the enforcement bodies. It is the Government’s intention that Ministers in the Home Office and the Department for Business, Innovation and Skills should continue to set the overall envelope of spending available for labour market enforcement and should recommend how best to allocate this between the three bodies and the different activities they undertake, based on their assessment of the likely nature of non-compliance in the following year. I cannot support these amendments. While the Government intend that the relevant Secretaries of State will take the director’s proposals on resources into account in their discussions with the Treasury about funding, it is right that the Government set the overall level of resources devoted to labour market enforcement in the context of the totality of pressures on public spending.

Amendments 18, 25, 28 and 32 relate to the power to change the scope of the labour market enforcement strategy by regulations. While at present we believe that the director’s remit is sensibly defined, it may make sense in the future to extend this if it becomes clear that the risk of abuse and exploitation is changing. It is appropriate for such extension to be made by secondary legislation to ensure flexibility and to enable us to act quickly, subject of course to the appropriate degree of parliamentary oversight.

Amendments 33 to 35 relate to the director’s strategy-making role in respect of offences committed against workers under the Modern Slavery Act 2015. The clause or the proposed amendments would not redefine “worker”—as mentioned by the noble Baroness, Lady Ludford—for the purposes of the Employment Agencies Act 1973, the National Minimum Wage Act 1998 or the Gangmasters (Licensing) Act 2004. The existing coverage of the respective Acts continues to apply. This means that the Employment Agency Standards Inspectorate and the GLA will still tackle non-compliance by employment agencies, businesses and gangmasters regardless of whether the affected workers have the right to be—or work—in the UK. We see the director’s focus as improving the way we enforce labour market and employment law rules—making sure workers who are properly here are protected better. However, we are committed to tackling serious crimes committed against individuals, whatever their status, as the noble Baroness will know from the work she and others did on the Modern Slavery Act last year—a landmark piece of legislation.

I turn to the contents of the director’s annual report. The Bill already requires the annual report to include an assessment of the extent to which the strategy had an effect on non-compliance in the labour market. There is no need to specify the other details. If the strategy identifies threats and obstacles to effective enforcement and makes proposals to address them, the effectiveness of these throughout the year must be covered in the annual report. Similarly, as the strategy will set out how the enforcement bodies are to exercise their functions, including seeking remedies for victims, the success of this must be covered by the annual report. Therefore, I believe the majority of Amendment 36 is unnecessary.

The point was made that we need to focus our attention on victims. Victims have been protected, for example, by the recovery of unpaid earnings, by making sure that employment agents who persistently abuse contracts or unfairly treat their employees are no longer allowed to register as agents, and by the Gangmasters Licensing Authority not renewing certain licences.

The final amendment in this group concerns the publication of the annual strategy and annual report. The legislation as drafted states that any strategy or annual or other report prepared by the director and laid before Parliament must not contain material that has been removed for very specific reasons. These reasons are where the publication of such material,

“would be against the interests of national security, … might jeopardise the safety of any person in the United Kingdom, or … might prejudice the investigation or prosecution of an offence under the law of England and Wales, Scotland or Northern Ireland”.

These are pretty standard exclusions that we have come across in previous legislation. The Bill as drafted requires the Secretary of State to remove information from a publication if he or she considers it to fall into those categories. The Government believe that this is essential and strikes the right balance between transparency and safety. Indeed, it replicates provisions in Section 42 of the Modern Slavery Act regarding the strategic plan and annual report prepared by the Independent Anti-slavery Commissioner. I hope that my answer will reassure noble Lords on that point.

Finally, we have put on the face of the Bill, in Clause 1(4):

“The Secretary of State must provide the Director with such staff, goods, services, accommodation and other resources as the Secretary of State considers the Director needs for the exercise of his or her functions”.

That is a statutory statement. My noble friend Lady Neville-Rolfe announced in the previous debate that the amount of money that has gone into national minimum wage enforcement has increased by £4 million. While it is right to press us to spell out in more detail exactly what is intended for the role, I think that there is a logic there, which my noble friends Lord Horam and Lord Hodgson have reinforced. I hope that, with that reassurance, the noble Lord will feel able to withdraw the amendment.

[Baroness Hamwee]

My Lords, before the noble Lord responds, perhaps I may take some of those comments but in something of a reverse order. On the question of resources, the Minister referred to Clause 1(4), but that relates to provision for the director. Of course, we are concerned not just about the director but about the organisations—if that is the right term for the various entities—which will be implementing the strategy. Whoever’s strategy it turns out to be is the subject of another debate. So, although I accept the point that the Minister has made, I do not think that it goes all the way, as some of us were seeking.

[Lord Bates]

If it would be helpful to noble Lords, I should be happy to set this out in writing. However, I can tell them that the 2015-16 budget for the Employment Agency Standards Inspectorate is £0.5 million and it has 8.6 full-time-equivalent staff. For the same period, the Gangmasters Licensing Authority has funding of £4.268 million, including £100,000 for Northern Ireland enforcement, and it has 66 full-time-equivalent staff. The budget for the national minimum wage enforcement team was increased by £4 million to the current figure of £13.2 million, and it has 230 full-time-equivalent staff. We are saying that the helpful part of the role of the Director of Labour Market Enforcement will be to look at those three groups and the current basket of resource, which has been increased substantially over the past year, and to see how it can be most effectively deployed to tackle the types of wrongs that we are seeing.

[Baroness Hamwee]

My Lords, the figures are interesting. Nobody is ever content and no one will say, “That’s enough”, but my impression—I say this as somebody who hears those figures, although they do not really mean anything to me; I am not an expert in any of those fields—is that there are organisations struggling to do the job that they have and which in some cases they do absolutely extraordinarily. Just hearing figures expressed in millions does not advance the argument in the way that I know the noble Lord and I are concerned with.

[Baroness Hamwee]

My Lords, I am looking to the Minister, but he has not received inspiration on that yet.

[Lord Bates]

I have not received inspiration, but I do not doubt for one minute what the noble Lord rightly observes. He refers to a time when we were having to tackle some pretty sizable problems in the public finances, and that continues to be a pressure. That is one reason why, I think, we are bringing these resources together. It would be helpful—and I will certainly undertake to do this—to set out in one letter to Members of the Committee in your Lordships’ House the situation on resources, perhaps in a way that is easier to assess. However, the point is that when you have different pots in different areas with different groups of people, it makes it all the more important that they are joined up, that there is co-ordination and that we get the maximum effect for every taxpayer pound that is spent. That is, of course, what the remit of the Director of Labour Market Enforcement is envisaged to be.

[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.