Immigration Bill (HL Bill 96)

Part 1 Labour market and illegal working

CHAPTER 1 Labour market

5Director of Labour Market Enforcement

1 Director of Labour Market Enforcement

(1) The Secretary of State must appoint a person as the Director of Labour Market
Enforcement (referred to in this Chapter as “the Director”).

(2) The Director is to hold office in accordance with the terms of his or her
10appointment.

(3) The functions of the Director are exercisable on behalf of the Crown.

(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.

(5) The Secretary of State must pay the Director such expenses, remuneration and
5allowances as may be provided for by or under the terms of the Director’s
appointment.

2 Labour market enforcement strategy

(1) The Director must before the beginning of each financial year prepare a labour
market enforcement strategy for that year and submit it to the Secretary of State
10for approval.

(2) A labour market enforcement strategy (referred to in this Chapter as a
“strategy”) is a document which—

(a) sets out the Director’s assessment of—

(i) the scale and nature of non-compliance in the labour market
15during the year before the one to which the strategy relates, and

(ii) the likely scale and nature of such non-compliance during the
year to which the strategy relates and the following two years,

(b) contains a proposal for the year to which the strategy relates setting
out—

(i) 20how labour market enforcement functions should be exercised,
and

(ii) the education, training and research activities the Secretary of
State, and any other person by whom, or by whose officers,
labour market enforcement functions are exercisable, should
25undertake or facilitate in connection with those functions,

(c) sets out the activities the Director proposes to undertake during the
year to which the strategy relates in the exercise of his or her functions
under section 6, and

(d) deals with such other matters as the Director considers appropriate.

(3) 30The proposal mentioned in subsection (2)(b) must, in particular, set out how
the funding available for the purposes of the functions and activities concerned
should be allocated.

(4) The Director may at any time prepare a revised strategy and submit it to the
Secretary of State for approval.

(5) 35The Secretary of State may approve a strategy either with or without
modifications (but a modification may not relate to the assessment described
in paragraph (a) of subsection (2)).

(6) Any person by whom labour market enforcement functions are exercisable
during a year to which a strategy approved under this section relates must, in
40exercising those functions, have regard to the strategy.

3 Non-compliance in the labour market etc: interpretation

(1) For the purposes of this Chapter each of the following constitutes “non-
compliance in the labour market”—

(a) the commission of a labour market offence;

(b) failure to comply with the requirement under section 1 of the National
Minimum Wage Act 1998 (workers to be paid at least national
minimum wage);

(c) failure to pay any financial penalty required to be paid by a notice of
5underpayment served under section 19 of that Act (see section 19A of
that Act);

(d) breach of a condition of a licence granted under section 7 of the
Gangmasters (Licensing) Act 2004;

(e) failure to comply with any other requirement imposed by or under any
10enactment and which is prescribed by regulations made by the
Secretary of State.

(2) In this Chapter “labour market enforcement functions” means—

(a) any function of the Secretary of State in connection with prohibition
orders made under section 3A of the Employment Agencies Act 1973,

(b) 15any function of an officer acting for the purposes of that Act (see section
8A of that Act),

(c) any function of an officer acting for the purposes of the National
Minimum Wage Act 1998 (see section 13 of that Act),

(d) any function of the Gangmasters and Labour Abuse Authority
20conferred by section 1(2)(a) to (c) of the Gangmasters (Licensing) Act
2004,

(e) any function of an enforcement officer or a compliance officer acting for
the purposes of that Act (see section 15 of that Act),

(f) any function of the Gangmasters and Labour Abuse Authority under
25Part 2 of the Modern Slavery Act 2015 (slavery and trafficking
prevention orders etc),

(g) any function of an officer of that Authority acting for the purposes of
Part 1 or 2 of that Act (see sections 11A and 30A of that Act),

(h) any function an officer has by virtue of section 24, and

(i) 30any other function prescribed by regulations made by the Secretary of
State.

(3) In this section “labour market offence” means—

(a) an offence under the Employment Agencies Act 1973 other than one
under section 9(4)(b) of that Act;

(b) 35an offence under the National Minimum Wage Act 1998;

(c) an offence under the Gangmasters (Licensing) Act 2004;

(d) an offence under section 1 of the Modern Slavery Act 2015;

(e) an offence under section 2 or 4 of that Act—

(i) which is committed in relation to a worker or a person seeking
40work, or

(ii) which is otherwise committed in circumstances where
subsection (2) of section 3 of that Act applies;

(f) an offence under section 30(1) or (2) of that Act which is committed in
relation to—

(i) 45an order which was made on the application of the
Gangmasters and Labour Abuse Authority, or

(ii) an order which was made under section 14 of that Act and
which falls within subsection (4) below;

(g) an offence under section 25;

(h) any other offence prescribed by regulations made by the Secretary of
State;

(i) an offence of attempting or conspiring to commit an offence mentioned
in paragraphs (a) to (h);

(j) 5an offence under Part 2 of the Serious Crime Act 2007 in relation to an
offence so mentioned;

(k) an offence of inciting a person to commit an offence so mentioned;

(l) an offence of aiding, abetting, counselling or procuring the commission
of an offence so mentioned.

(4) 10An order made under section 14 of the Modern Slavery Act 2015 falls within
this subsection if—

(a) the order was made following the conviction of the defendant of an
offence mentioned in subsection (3)(d) or (e), and

(b) the prosecution resulted from an investigation conducted by a labour
15abuse prevention officer (within the meaning of section 114B of the
Police and Criminal Evidence Act 1984).

(5) In this section “worker” has the same meaning as in the Employment Rights
Act 1996 (see section 230 of that Act) and the reference to a person seeking work
is to be read accordingly.

(6) 20In this section references to the Gangmasters (Licensing) Act 2004 are
references to that Act only so far as it applies in relation to England and Wales
and Scotland.

4 Annual and other reports

(1) As soon as reasonably practicable after the end of each financial year in respect
25of which the Secretary of State has approved a strategy under section 2, the
Director must submit to the Secretary of State an annual report for that year.

(2) An annual report must include—

(a) an assessment of the extent to which labour market enforcement
functions were exercised, and activities of the kind mentioned in
30section 2(2)(b)(ii) were carried out, in accordance with the strategy
during the year to which the report relates,

(b) an assessment of the extent to which the strategy had an effect on the
scale and nature of non-compliance in the labour market during that
year, and

(c) 35a statement of the activities the Director undertook during that year in
the exercise of his or her functions under section 6.

(3) The Director must submit to the Secretary of State a report dealing with any
matter—

(a) which the Secretary of State has requested the Director report on, or

(b) 40which a strategy approved by the Secretary of State under section 2
states is a matter the Director proposes to report on,

and must do so as soon as reasonably practicable after the request is made or
the strategy is approved.

5 Publication of strategy and reports

(1) 45The Secretary of State must lay before Parliament—

(a) any strategy the Secretary of State approves under section 2, and

(b) any annual or other report the Secretary of State receives under section
4,

and must do so as soon as reasonably practicable after approving the strategy
5or receiving the report.

(2) A document laid under subsection (1) must not contain material removed
under subsection (3).

(3) The Secretary of State may remove from a document to be laid under
subsection (1) any material the publication of which the Secretary of State
10considers—

(a) would be against the interests of national security,

(b) might jeopardise the safety of any person in the United Kingdom, or

(c) might prejudice the investigation or prosecution of an offence under
the law of England and Wales, Scotland or Northern Ireland.

6 15Information hub

The Director must gather, store, process, analyse and disseminate information
relating to non-compliance in the labour market.

7 Restriction on exercising functions in relation to individual cases

(1) The Director must not in exercising any function make any recommendation in
20relation to an individual case.

(2) Subsection (1) does not prevent the Director considering individual cases and
drawing conclusions about them for the purpose of, or in the context of,
considering a general issue.

Gangmasters and Labour Abuse Authority

8 25Renaming of Gangmasters Licensing Authority

(1) The Gangmasters Licensing Authority is renamed the Gangmasters and
Labour Abuse Authority.

(2) In any enactment passed before the day on which this section comes into force,
and in any instrument or other document made before that day, references to
30the Gangmasters Licensing Authority are to be read, in relation to any time on
or after that day, as references to the Gangmasters and Labour Abuse
Authority.

9 Functions in relation to labour market

(1) Schedule 1 (functions in relation to labour market) has effect.

(2) 35The Secretary of State may by regulations confer other functions on the
Gangmasters and Labour Abuse Authority or its officers.

10 PACE powers in England and Wales for labour abuse prevention officers

(1) After section 114A of the Police and Criminal Evidence Act 1984 insert—

“114B Application of Act to labour abuse prevention officers

(1) The Secretary of State may by regulations apply any provision of this
5Act which relates to investigations of offences conducted by police
officers to investigations of labour market offences conducted by
labour abuse prevention officers.

(2) The regulations may apply provisions of this Act with any
modifications specified in the regulations.

(3) 10In this section “labour abuse prevention officer” means an officer of the
Gangmasters and Labour Abuse Authority who—

(a) falls within subsection (4), and

(b) is authorised (whether generally or specifically) by the
Secretary of State for the purposes of this section.

(4) 15An officer of the Gangmasters and Labour Abuse Authority falls within
this subsection if he or she is—

(a) acting for the purposes of the Employment Agencies Act 1973
(see section 8A of that Act),

(b) acting for the purposes of the National Minimum Wage Act
201998 (see section 13 of that Act),

(c) acting for the purposes of the Gangmasters (Licensing) Act 2004
as an enforcement officer within the meaning of section 15 of
that Act,

(d) acting for the purposes of Part 1 or 2 of the Modern Slavery Act
252015 (see sections 11A and 30A of that Act), or

(e) acting for any other purpose prescribed in regulations made by
the Secretary of State.

(5) The investigations for the purposes of which provisions of this Act may
be applied by regulations under this section include investigations of
30offences committed, or suspected of having been committed, before the
coming into force of the regulations or of this section.

(6) Regulations under this section are to be made by statutory instrument.

(7) Regulations under this section may make—

(a) different provision for different purposes;

(b) 35provision which applies generally or for particular purposes;

(c) incidental, supplementary, consequential, transitional or
transitory provision or savings.

(8) Regulations under subsection (4)(e) may, in particular, make such
provision amending, repealing or revoking any enactment as the
40Secretary of State considers appropriate in consequence of any
provision made by the regulations.

(9) A statutory instrument containing regulations under this section which
amend or repeal any provision of an Act of Parliament may not be
made unless a draft of the instrument has been laid before, and
45approved by a resolution of, each House of Parliament.

(10) Any other statutory instrument containing regulations under this
section is subject to annulment in pursuance of a resolution of either
House of Parliament.

(11) In this section—

• 5“enactment” includes an enactment contained in subordinate
  legislation within the meaning of the Interpretation Act 1978;

• “labour market offence” has the meaning given in section 3 of the
  Immigration Act 2016.”

(2) In section 18 of the Gangmasters (Licensing) Act 2004 (obstruction of officers),
10in subsection (1)(a), after “this Act” insert “or functions conferred by virtue of
section 114B of the Police and Criminal Evidence Act 1984 (application of that
Act to Authority officers)”.

11 Relationship with other agencies: requests for assistance

(1) The Gangmasters (Licensing) Act 2004 is amended as follows.

(2) 15Before section 23 (but after the italic heading before it) insert—

“22A Relationship with other agencies: requests for assistance

(1) The Authority may request any relevant person to provide assistance to
the Authority or any of its officers.

(2) The Authority may make a request under subsection (1) only if it
20considers that the assistance would facilitate the exercise of any
function by the Authority or any of its officers.

(3) Any relevant person may request the Authority to provide assistance to
the relevant person.

(4) A relevant person may make a request under subsection (3) only if the
25person considers that the assistance would facilitate the exercise by the
person of any function.

(5) A request under this section must—

(a) set out what assistance is being requested, and

(b) explain how the assistance would facilitate the exercise of the
30function.

(6) A person who receives a request under this section must respond to it
in writing within a reasonable period.

(7) Each of the following is a “relevant person”—

(a) a chief officer of police for a police area in England and Wales;

(b) 35the National Crime Agency;

(c) a National Crime Agency officer;

(d) a person appointed as an immigration officer under paragraph
1 of Schedule 2 to the Immigration Act 1971;

(e) any other person prescribed or of a prescribed description.

(8) 40Before making regulations under this section the Secretary of State
must obtain the consent of—

(a) the Scottish Ministers, if the regulations prescribe a person who
exercises, or a description of persons who exercise, any function

in a case where provision conferring the function would be
within the legislative competence of the Scottish Parliament if
contained in an Act of that Parliament;

(b) the Welsh Ministers, if the regulations prescribe a person who
5exercises, or a description of persons who exercise, any function
in a case where provision conferring the function would be
within the legislative competence of the National Assembly for
Wales if contained in an Act of that Assembly;

(c) the consent of the Office of the First Minister and deputy First
10Minister, if the regulations prescribe a person who exercises, or
a description of persons who exercise, any function in a case
where provision conferring the function would be within the
legislative competence of the Northern Ireland Assembly if
contained in an Act of that Assembly made without the consent
15of the Secretary of State.”

(3) In section 25 (regulations, rules and orders), in subsection (5)—

(a) omit the “or” at the end of paragraph (a);

(b) at the end insert “, or

(c) section 22A(7)(e) (regulations adding to the definition of
20“relevant persons”).”

Labour market enforcement undertakings

12 Power to request LME undertaking

(1) This section applies where an enforcing authority believes that a person has
committed, or is committing, a trigger offence.

(2) 25An enforcing authority may give a notice to the person—

(a) identifying the trigger offence which the authority believes has been or
is being committed;

(b) giving the authority’s reasons for the belief;

(c) inviting the person to give the authority a labour market enforcement
30undertaking in the form attached to the notice.

(3) A labour market enforcement undertaking (an “LME undertaking”) is an
undertaking by the person giving it (the “subject”) to comply with any
prohibitions, restrictions and requirements set out in the undertaking, as to
which see section 13.

(4) 35“Trigger offence” means—

(a) an offence under the Employment Agencies Act 1973 other than one
under section 9(4)(b) of that Act;

(b) an offence under the National Minimum Wage Act 1998;

(c) an offence under the Gangmasters (Licensing) Act 2004;

(d) 40any other offence prescribed by regulations made by the Secretary of
State;

(e) an offence of attempting or conspiring to commit an offence mentioned
in paragraphs (a) to (d);

(f) an offence under Part 2 of the Serious Crime Act 2007 in relation to an
45offence so mentioned;

(g) an offence of inciting a person to commit an offence so mentioned;

(h) an offence of aiding, abetting, counselling or procuring the commission
of an offence so mentioned.

(5) “Enforcing authority”—

(a) in relation to a trigger offence under the Employment Agencies Act
51973, means the Secretary of State or any authority whose officers are
acting for the purposes of that Act (see section 8A of that Act);

(b) in relation to a trigger offence under the National Minimum Wage Act
1998, means the Secretary of State or any authority whose officers are
acting for the purposes of that Act (see section 13 of that Act);

(c) 10in relation to a trigger offence under the Gangmasters (Licensing) Act
2004, means the Secretary of State or any authority whose officers are
acting as enforcement officers for the purposes of that Act (see section
15 of that Act);

(d) in relation to an offence which is a trigger offence by virtue of
15subsection (4)(d) (including an offence mentioned in subsection (4)(e)
to (h) in connection with such an offence), has the meaning prescribed
in regulations made by the Secretary of State.

(6) In subsection (5), a reference to an offence under an Act includes a reference to
an offence mentioned in subsection (4)(e) to (h) in connection with such an
20offence.

(7) In this section references to the Gangmasters (Licensing) Act 2004 are
references to that Act only so far as it applies in relation to England and Wales
and Scotland.

13 Measures in LME undertakings

(1) 25An LME undertaking may include a prohibition, restriction or requirement
(each a “measure”) if, and only if—

(a) the measure falls within subsection (2) or (3) (or both), and

(b) the enforcing authority considers that the measure is just and
reasonable.

(2) 30A measure falls within this subsection if it is for the purpose of—

(a) preventing or reducing the risk of the subject not complying with any
requirement imposed by or under the relevant enactment, or

(b) bringing to the attention of persons likely to be interested in the
matter—

(i) 35the existence of the LME undertaking,

(ii) the circumstances in which it was given, and

(iii) any action taken (or not taken) by the subject in order to comply
with the undertaking.

(3) A measure falls within this subsection if it is prescribed, or is of a description
40prescribed, in regulations made by the Secretary of State.

(4) The enforcing authority must not—

(a) invite the subject to give an LME undertaking, or

(b) agree to the form of an undertaking,

unless the authority believes that at least one measure in the undertaking is
45necessary for the purpose mentioned in subsection (5).

(5) That purpose is preventing or reducing the risk of the subject—