Immigration Bill

Lord Hylton Excerpts

Monday 18th January 2016 Lords Chamber

I also noticed that, with new subsections (6), (7) and (8) proposed in government Amendment 46, we are moving into the 21st century: with some caveats a labour market enforcement notice can be sent to individuals by electronic means. That is certainly progress. Will the noble Lord, Lord Ashton of Hyde, bring that matter to the attention of his friends in BIS? I am thinking of the noble Baroness, Lady Neville-Rolfe. We have some contradiction between how people who have allegedly committed offences are treated and how law-abiding citizens are treated in the Trade Union Bill—it is going through this House on virtually the same timescale—under which they are not allowed to receive their ballot paper by electronic means. There could be some interesting amendments in the next few weeks. We have the Government supporting the use of electronic means here, but at the same time denying their use for people trying to get their ballot paper. That is a contradiction. I will leave it there and look forward to the Minister’s response.

[Lord Hylton (CB)]

My Lords, what I have to say follows from what the noble Lord, Lord Kennedy, has just said. Amendment 43 refers to offences under four existing Acts together with inciting, aiding, abetting or counselling such offences. These can trigger undertakings. Amendment 44 refers to notices, orders and enforcement. All this is bound to cost money. Resources have been repeatedly mentioned today, so I must ask: how much of this additional expenditure will be new money and how much will be transferred from the enforcement mechanisms of the existing legislation? It would be a great waste of our time and effort to create a series of new offences without having the means to cope with them.

[Lord Ashton of Hyde]

My Lords, I thank noble Lords for their remarks. Before I move to the amendments spoken to by the noble Baroness, Lady Hamwee, I shall comment on the points raised on the government amendments.

I was asked when the new system, which the noble Lord, Lord Kennedy, described as burdensome, will be used. This is a new power to be used after the existing penalties have been applied under the existing Acts. For example, in national minimum wage regulations, the current penalty is naming and shaming. In other areas, there are civil penalties. These amendments are designed for egregious offences and repeated offences where, for example, some companies may decide to take the fine and continue to pay their workers less than the minimum wage. We have included these new powers to put an end to breaches of labour market rules. We think they are an important part of the new toolkit to address these serious matters.

Resources have been mentioned on several occasions this evening. I take the point that if these new powers are not properly enforced, there will be no point in having them. My noble friend has already committed to talk about resources and to write to noble Lords on that subject, and I will ask him to include this in his letter.

The noble Lord, Lord Kennedy, raised the subject of electronics. He cleverly included matters which are nothing to do with this Bill. Of course, electricity is dangerous when it is incorrectly applied. The electronic means in this Bill bring it into the 21st century, but that does not mean that they should be used in all cases.

The noble Lord, Lord Hylton, talked about the four current Acts which can trigger the possibility of going into enforcement, and—again—he mentioned money. I agree it is bound to cost some money. As I said before, my noble friend will include that in his reply, if I could leave it like that for the time being.

Of course, the Director of Labour Market Enforcement will set out in his strategy how the funding that is available for the enforcement agencies should be allocated. Every year he makes an annual report. It would be very surprising, if he were underresourced, that he would not refer to that in his annual report.

As I have said to the noble Lord, Lord Kennedy, routine cases will continue to be dealt with using existing powers. There will be LME undertakings, and then orders will be for the more serious cases.

I move on to the amendments in the name of the noble Baroness, Lady Hamwee, to which I listened carefully. Amendment 47A would change the court’s power to make an LME order on application from an enforcement agency, so that the court would have to be satisfied beyond reasonable doubt that the person had committed or was committing a trigger offence.

We think it appropriate that a court should be able to make an LME order on application from an enforcement agency on the basis of the balance of probabilities rather than the criminal standard of proof. In these circumstances, the order is designed to prevent further offending, not as a means of sentencing the person on conviction for an offence. The amendment would limit the ability of enforcement agencies to invoke the LME order regime to secure compliance as an alternative to straightforwardly prosecuting the person for a trigger offence.

Amendment 50A would remove the court’s power to include a prohibition, restriction or requirement in an LME order on bringing the order, the circumstances in which it was made and any action by the respondent to comply, to the attention of persons likely to be interested in the matter. However, we think it right that the courts, in making an LME order, should be able to require a business to make the matter known to interested parties, and failure to do so would result in a breach of the order with the possibility of prosecution for the consequent offence. It is properly for the courts, not the Director of Labour Market Enforcement, to impose this requirement. The amendment would significantly weaken this provision, possibly enabling those subject to an LME order to conceal it from its employees, creditors and trading partners.

Amendment 57A would remove from the provisions relating to offences by bodies corporate the possibility of a manager committing the offence of failing to comply with an LME order where they have consented or connived in the offence or it was attributable to their neglect. However, it is appropriate that managers, in addition to their companies, should be held liable for the offence of failing to comply with an LME order where the offence resulted from their neglect, consent or connivance. Secondary liability provisions of this kind, including liability for managers, are commonplace in other legislation. The principle that managers can be held liable for offences committed by their company in certain circumstances is well established.

In the light of what I have said, I hope that the noble Baroness will agree not to move her amendments.

--- Later in debate ---

I cannot do better than that. I hope that the Minister, in his response, will give us some indication that the Government will accept that Clause 8 is a waste of space.

[Lord Hylton]

My Lords, I am not happy about the inclusion of Clause 8, on the grounds that it creates a new offence that can be punishable with up to one year’s imprisonment and/or a fine. I also note that it is one year for England and Wales, but only six months for Scotland or Northern Ireland. That seems pretty inconsistent.

As regards Amendment 64, I always understood that asylum applicants could undertake voluntary work, provided that they were not paid, of course, and that they kept themselves available for interviews, whenever those might be required. Perhaps the Minister would say whether I am right, or whether the noble Baroness, Lady Hamwee, is right.