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Miss Widdecombe: If a complaint is received, proper investigations will be carried out. The answer must lie in good and tight clearance and inspection procedures on the genuineness of the employment.
Mr. Jeremy Corbyn (Islington, North): Will the Minister give way?
Miss Widdecombe: I have been generous about giving way, but I have said that I will not give way again.
I maintain my resistance to the amendments, but I assure my hon. Friend the Member for South Staffordshire that I will carefully consider what he has said.
Lords amendment disagreed to.
Mr. Kirkhope:
I beg to move, That this House doth agree with the Lords in the said amendment.
Madam Deputy Speaker:
With this, it will be convenient to discuss Lords amendments Nos. 12 to 16.
Mr. Kirkhope:
The amendment responds to concerns that were expressed during discussion of clause 8 in another place about the complexity of its wording. It also responds to unease about the use of the word "immigrant" in the Bill. The amendment does not in any way change the substance of the clause but, as amended, the clause will be easier for employers and others to understand. While we shall, of course, provide employers with guidance, the Government agree that it is desirable for the legislative provision itself to be as straightforward as possible.
As I have said, the amendment removes the word "immigrant" from the clause. The Government made it clear during debate in the House and in the other place that the term was simply a neutral one to refer to a person who was subject to immigration control and that it did not in any way affect anyone's immigration status. Nevertheless, we accepted that, however irrationally, the word "immigrant" is perceived by some as having a pejorative connotation and that its use could give rise to anxieties among minority communities. We also recognise that the word might be seen by the layman as referring to anyone who has come here from abroad to live rather than only to a person who is subject to immigration control under the Immigration Act 1971.
For those reasons, the Government tabled a series of amendments, including this one, to remove the word "immigrant" and replace it with the phrase
Amendments Nos. 12 and 15 will make it clear that an employer will not have a defence if he knows that an employee does not have permission to work in the United Kingdom. I gave notice of our intention to consider whether it would be appropriate to table an amendment to that effect before the Bill left the House. That consideration led us to the conclusion that we could not allow an employer to rely on one of the specified documents to provide him with a statutory defence if he knew that an employee was not entitled to work in the United Kingdom. To do so would be to leave a loophole that could be exploited by racketeers and by unscrupulous employers.
If clause 8 is not to be amended in this way, it is likely that it will not be possible to prosecute successfully at least some of the employers known to employ illegal workers on a regular basis. There would, therefore, be a risk that the effectiveness of the new offence could be limited in the cases of some of the employers about whom we are particularly concerned.
I hasten to say that amendment No. 10 will not in any way increase the burden on legitimate employers. Employers will be additionally liable only if they have specific actual knowledge that renders a defence invalid. It would be for the prosecution to prove that the employer had such knowledge. I know that the Confederation of British Industry, among other organisations, has written to hon. Members to express its concerns. I hope that my remarks are of comfort to those organisations.
Those attempting to comply with the legislation in good faith will never have such knowledge, and so will be able to have complete confidence that they have established a satisfactory defence. We shall of course ensure that the guidance that we issue makes the position abundantly clear.
Lords amendment Nos. 13 and 14 simply make some minor but important adjustments to clause 8. Lords amendment No. 13 removes from subsection (3) the requirement that an employer must prove that the document he inspected to provide himself with a defence was produced to establish that the employment would not constitute an offence. On consideration, we took the view that that was not a necessary requirement. The important elements are that the document was produced and, when necessary, copied. Furthermore, while in many cases the document will have been produced simply because of the requirements of the clause, that will not necessarily be the case. A P45, for example, will continue to be produced principally for purposes related to income tax.
Lords amendment No. 14 is a minor drafting amendment that makes it clear that employers will be expected to prove only that a document that was produced to them "appeared" to be one of the specified documents. The previous text specified that the document
Lords amendment No. 16 introduces into clause 8 a definition of the term "employ". That definition makes it clear that "employment" means employment under a contract of service or apprenticeship. The intention is to make it clear that the employed, but not the self-employed, should come within the scope of clause 8.
As the House is aware, clause 8 will make it an offence to employ a person aged 16 or over who does not have permission to live and work in the United Kingdom. However, the term "employ" was not originally defined. That was consistent with the approach taken in the Immigration Act 1971 and in the immigration rules, where no attempt was made to define what is meant by "employment". However, if "employ" is not defined in clause 8, it will, finally, be for magistrates courts to decide the scope of that term for the purposes of clause 8.
Some respondents to our consultation document made the point that we should define in the Bill what is meant by the term "employ". Having considered the matter, we agreed that it would be helpful to have such a definition, as that would make it easier to give clear guidance to employers about the nature of their obligations. The term is of course defined in other legislation affecting employment.
The most common definition, and the one that it seemed most appropriate us for use in the context of this new offence, relates to employment under a
A person who is self-employed works under a contract for services and would, quite properly, not be covered by the terms of clause 8.
Mr. Henderson:
I think that Lords amendment Nos. 13 and 14 constitute a minor improvement. Employers will welcome the fact that they will have a defence if they believed that documents that were presented were genuine, although subsequently they were shown not to be. However, there is generally no substantial improvement in clause 8 and in how it is affected by the other amendments. It is not only one of the most unacceptable parts of the Bill, it is one of the most unacceptable aspects of any legislation that Parliament has considered. Not only workers and the general public but employers will regard its provisions as racist and divisive because they separate people based on the colour of their faces and on the language that they speak.
Furthermore, as Ministers know, although employers' organisations have reluctantly conceded that some aspects of clause 8 are less unacceptable than they were, there is still overwhelming opposition to it. In short, clause 8 is bureaucratic, draconian, unpopular and unnecessary, and--as Ministers know--it will not work.
Mr. John Fraser (Norwood):
It is quite right that employers should have a defence if they have seen a national insurance number or a birth certificate. That would clear them, and they would know that no offence has been committed. However, with the introduction of Lords amendment No. 15--coupled with the fact that exemptions for employers are not in statute but only in regulations, which the Minister will make--there is a very good chance that the situation will turn out nothing like it has been portrayed to the House today.
For example, the Minister said that production of a national insurance number would provide clearance for an employer to employ someone, and that that would be quite in order. The Minister knows perfectly well that, if someone comes to the United Kingdom as a Commonwealth holidaymaker for two years he will be given a national insurance number, but that does not guarantee that he will be entitled to work after the two years have expired, although he will still have the number. Having a number also does not allow him to work full time all the time. In those circumstances, either the Minister will have to change the regulations, or the employer, as a result of Lords amendment No. 15, will be at risk of committing an offence.
Let us take another example. Quite often, students are given permission to work during vacations if they have a letter from their college to present to their local employment office. They will also be given a national insurance number. However, it is impossible to determine limitations on their ability to work simply from a national insurance number.
There are similar provisions for students' spouses who applied before the 1995 immigration rules came into force. Those spouses are allowed to work, and they receive national insurance numbers. Since the 1995 rules came into force, however, only spouses married to students with studentships of more than 12 months are given leave to work.
So there is a mishmash of circumstances in which people will be given national insurance numbers, and it does not automatically follow that employment is unrestricted because someone has a national insurance number. There are two possible consequences of that. The first risk is that perfectly innocent employers who have not colluded with an employee may be committing an offence. The second risk is that the Minister will spot the problem and then change the regulations.
The Minister stated in the consultation document that it will be sufficient if an employee produces a birth certificate. The Minister knows that, as a result of the British Nationality Act 1981--which came into force on 21 December 1983--birth in the United Kingdom does not automatically confer United Kingdom nationality. We have only two years to go before those born before 1 January 1984 will come on to the labour market with birth certificates, but not necessarily with United Kingdom citizenship or with an entitlement to work. I think that there could be--I do not say that there necessarily is--a hidden agenda.
Perfectly innocent employers are perplexed at the possibility that they may commit an offence when they learn--perhaps half way through someone's employment--that they have employed a Commonwealth holidaymaker, for example. It would be much better to have a clear, unambiguous exemption for employers.
If the Minister wants to amend the Bill, he should amend it so that it applies only to employers who collude in the commission of an offence, ensuring that the real rogues are caught and not those who have quite enough to do in getting on with their jobs and in employing people.
Lords amendment agreed to.
"person subject to immigration control".
We are satisfied that the phrase simply reflects the scope of the Bill. It is a technical definition with no pejorative connotations at all.
"was of a description specified."
Theoretically, that would not cover a forged document. We made it clear in the consultation document that employers would be expected to satisfy themselves only that a document appeared to be one of those specified. The amendment ensures that there is no doubt about what is expected of employers on that point.
"contract of service or of apprenticeship."
That is a well-established term, and there is a considerable body of case law that explores the circumstances in which such a contract would be taken to exist.
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