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Mr. Alistair Carmichael (Orkney and Shetland) (LD): Does the hon. Gentleman agree that an employer who is minded to employ people illegally will also be well disposed to the notion of hiding behind the veil of incorporation in its various guises, and that that would be exceptionally problematic in regard to recovering civil penalties?

4.15 pm

Mr. Malins: The hon. Gentleman makes an interesting point—there is of course a corporate criminal offence set out in the Bill—and he might wish to develop it himself in the course of the debate.

The Joint Council for the Welfare of Immigrants, a much-respected body, also has concerns about the provisions. It has consulted businesses, and has registered on behalf of many of them concerns about the provision for a civil penalty. A problem that it has identified—perhaps the Minister will address it directly—is that the Government are almost asking employers to become

So a lot of genuine people who have a full right to work could find themselves—for completely understandable reasons—accidentally discriminated against. They would therefore suffer as a result. When the Minister tells us about his consultations with the CBI and other business organisations, I am sure that he will be able to address those concerns.

The provisions would result in an even greater burden being placed on smaller businesses, which should not be expected to act as a continuing watchdog on behalf of the Government. Amendment No. 8 sets out an exemption for the employers of part-time workers. Its purpose is to ask the Minister please to be very cautious
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before placing unnecessary burdens on small employers who employ people part-time or just for one-off jobs, because they would be covered by the civil penalty.

Amendment No. 9 is a probing amendment that proposes to leave out clause 14(1)(b). This proposal would not place quite such a burden on the employer as the existing one. The employer would be subject to a penalty if he employed someone who had not been granted leave to enter or remain in the UK, but would not face a civil penalty if, for example, the person whom he had employed had leave but it had expired and there was a possibility of its being renewed. The Minister may remember that this issue was raised in Committee by the hon. Member for Walthamstow (Mr. Gerrard), who always takes a great interest in these matters. The Government's response at that time, though helpful in part, was incomplete. That links up with my point on that amendment involving the nature of the documentation, which the employer will have to read and understand. Some of those documents are complex.

I am going to say to the Minister something that may trouble him a little. I have read that those employers who are concerned that the penalty provision might impact on them can phone an employers' helpline—a hotline of sorts for employers—to get the fullest possible advice as to what they should and should not do, and how they should approach individual employment cases. The parallel with the immigration hotline, which is used by many of my hon. Friends and Members across the House to get answers on immigration matters, is interesting. I want the Minister to tell us in his winding-up speech whether the employers' helpline—or it is a hotline?—exists. Will he give us its telephone number? I have a number in front of me, but something tells me that it might be more appropriate for him to talk to us about this, just in case I have the wrong one. I think there is such a helpline and that it will be useful for employers.

Amendment No. 10 is the one about which it is fair to say I feel the strongest. Clause 14(3) says:

Amendment No. 10 would introduce a few words giving the employer an excuse if he

As we are hammering employers under this provision, if they have taken reasonable steps, they should have some form of excuse. That is the principal amendment to which I shall speak. It is, I think, linked with amendment No. 12.

My hon. Friend the Member for North-West Norfolk (Mr. Bellingham) tabled a not dissimilar amendment in Committee, hoping thereby to ease the position of the innocent employer who may have made an innocent mistake. It was a pro-business amendment, so we were sorry, but not surprised, that the Government did not take it on board at that stage; nor have they tabled their own amendment today to ameliorate the position of employers. In tabling that amendment, my hon. Friend expressed his concern—and that of others, including the CBI—about that burden.

In Committee, the Minister indicated that the clause would be watered down. He did not use those words, but suggested that it would be shown to be more employer
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friendly by a code of practice, which would apparently offer a more lenient approach to first-time transgressors. I do not know exactly what that means. If first-time transgressors are not to be penalised under this civil measure, let us hear it. If the Minister will have discretion not to penalise first-time transgressors, employers have no reason to be comfortable, because they simply will not know their fate. I hope the Minister can respond on that point.

Prescribed requirements, which are not defined although the employer has to comply with them, mean inspection of documents. Anybody with the slightest knowledge of the immigration world realises that we are now entering a minefield. Picture yourself, Mr. Deputy Speaker, or any of us here, running a small business taking on labour. Then, one asks to see certain documents. Bearing in mind that many documents that are not real seem to pass the test with our immigration officials and those at airports, I do not see how the innocent employer will spot them. Did you know, Mr.   Deputy Speaker, that it is a piece of cake in Lithuania to wander along and buy yourself a Lithuanian passport, which gives you everything that you need to come into this country? Did you know that it is a piece of cake in Italy and Greece—I hasten to say that I have not done it, but I know it to be true—to get hold of a Greek or Italian identity card and wander into this country on that basis? Finally, I am not sure that employers are expected to know that there is a terrific trade of Brazilians entering Portugal and getting hold quite easily of Portuguese identity and other documents, and then wandering around the EU, not to mention this country. The notion that expertise must be put into the mind of the employer is illusory.

My amendment No. 11 deals with a separate issue, and I hope that I have expressed fairly and opened up a debate on the burdens on employers, the concerns of business and the lack of detail that we have had so far. The clause states that a penalty notice must "specify a date". The date specified in the notice—goodness knows who sends it or has found out that an employer has an illegal migrant as an employee—is meant to be

The amendment changes that from 14 days to 28 days. It is quite important—I know that the Minister is taking the point on board—that a reasonable period is given to the employer to pay the penalty. We do not know what the penalty will be, and have no idea who will judge how much it will be. If it is a Home Office official who decides on the penalty, such an official will have no idea about an employer's wealth, means or ability to pay and will, I presume, just pick a figure out of the air, which seems idiotic. It seems right, particularly as people are sometimes away for two or three weeks, that a reasonable period of grace should be given for the employer to pay the penalty.

On the question of the financial means of the person in receipt of a penalty, I see nothing in the Bill to tell me that the level of the penalty will be adjusted according to the means of the person who must pay it. In our courts, however, defendants' means are carefully examined—they carefully fill in a form about whether they are on benefits or X pounds a week. As a result, the courts set
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the fine at a level compatible with the defendant's means. Where is that provision in the Bill, and where is the prospect of the Minister allowing a little more time? If one is fined in a magistrates court, one is invariably given, if one asks for it, 28 days to pay. That is why I have suggested that 28 days be allowed in relation to the penalty notice.

Amendment No. 12 follows on from my amendment No. 10 and again seeks to lessen the burden on the employer.

Amendment No. 13 asks us to leave out paragraph (e), which requires

Not only will a burden be placed on an employer at the beginning of the employment, when he must inspect and deal with certain documents, but he will be required to do the same

Neither the specified intervals nor the specified occasions are quantified. We have had informal guidance from Ministers, but now that we have reached the Report stage, it would be helpful if this Minister went into more detail.

4.30 pm

Does the Minister think that the penalty clause is absolutely necessary? Existing legislation covers the employment of persons and the need to examine their documents. Will he comment on the workings of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, which require agencies that supply workers to carry out checks to confirm workers' identities? Is that invariably done, what pitfalls exist, and have any measures been taken against agencies that have not dealt with the matter properly?

Will the Minister also comment on the workings of the Gangmasters (Licensing) Act 2004, which was intended to protect workers in the agriculture and shellfish sectors by requiring labour providers to register and apply for licences to act as gangmasters? Given that plenty of checks and regulations are already in force, and given that although there are probably 200,000, 300,000 or 400,000 illegal workers in the country—no one can gainsay that—only about 20 have been prosecuted in the last eight years, one wonders whether the real problem is that of enforcing existing law properly.

Amendment No. 14 seeks to omit clause 15(3)(c). It is merely a probing amendment. Paragraph (c) says that a notice of objection must be given "in the prescribed manner". If someone wished to object to a civil penalty, what would the "prescribed manner" be? The question troubles me a bit, because it raises the possibility that a notice would be deemed faulty because it had not been given in the prescribed manner. If a defendant wishes to appeal against a conviction or sentence in court, he or she is not required to provide a notice of appeal in a prescribed manner; it is necessary merely to file the notice. If it is on the back of an envelope and reads "I wish to appeal against the sentence because I thought it was very tough", that is good enough.

Amendment No. 15 relates to appeal against the penalty. I thought for a moment that the Minister was asking me to give way, but it seems that he is not—
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[Interruption.] I am told that the hon. Member for Leicester, East (Keith Vaz) has just woken up. It is good to see him in his place.

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