Immigration Bill

Lord Hodgson of Astley Abbotts Excerpts

Monday 18th January 2016 Lords Chamber

[The Earl of Sandwich]

My Lords, we may be in danger of making a meal of this group of amendments. I quite understand that the noble Lord, Lord Horam, has pointed out a connection between the two, but it is a very serious issue to describe the difference between them. I go back to the Modern Slavery Act, which was an excellent example of pioneering government and listening Ministers. A welcome number of government amendments on both that and this Bill shows that the law is constantly in need of review. As many NGOs are actively demonstrating, there is much more to be done on illegal working, as we work through this Bill and beyond. Part 1 does not adequately reflect human rights concerns. The noble Lord, Lord Rosser, pointed out the big confusion here that comes up under several amendments between labour regulation and immigration law enforcement, and the improper use—or potentially improper use—of employers and landlords as immigration officers, making migrant workers especially vulnerable. Some with more legal training than me are concerned about the likelihood that this encroachment is inconsistent with the ILO Convention No. 81, the Labour inspection convention of 1947. I hope someone will confirm that that is a difficulty. Do the Government agree that to ensure protection these two areas must be kept separate?

[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.