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The Parliamentary Under-Secretary of State for the Home Department (Andy Burnham): I am grateful to hon. Members for the tone in which the debate has been conducted. We have had a proportionate and balanced debate on some very important issues. However, as the hon. Member for Orkney and Shetland (Mr. Carmichael) said, we have yet to consider some perhaps even more serious issues on Report, and it is right to devote as much time as possible to those issues. With the permission of the House, I will seek to deal not with every point that has been made, but with the substance of hon. Members' arguments and the assurances that they want.
With that in mind, I hope that I can persuade the hon. Member for Woking (Mr. Malins)—I know that he is a reasonable soul—that a vote on amendment No. 10 will not be needed. I genuinely believe that I can give him the assurance that he wants. The secondary legislation detailed in the Bill will achieve the effect of his amendment. I know that the hon. Member for Orkney and Shetland indicated that he would support the hon. Member for Woking in such a vote, but if the hon. Member for Woking is in the mood for doing deals, I can say that I may well be minded to accept amendment No. 11, the other amendment that he described as important because it would put more flexibility in the Bill. The Minister for Immigration, Citizenship and Nationality and I are minded to say that the amendment is reasonable.
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Before I deal with the substance of the points that the hon. Gentleman made, let me turn to the matters raised by my hon. Friend the Member for Leicester, East (Keith Vaz). He talked about additional burdens on the immigration and nationality directorate and asked whether the enforcement activity would impact on other work. He also talked about consultation with the ethnic minority community about the impact of the measures and discussed the IND's ability to deal with overstayers.
We are bringing forward the measures because the regime introduced by the Conservative party has failed to fulfil its intended function. In the nine years since that regime was introduced, some 17 prosecutions have been brought, but that is not to say that the IND has not
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carried out many more operations than that to detect illegal working and that it has not detected many more illegal workers than that during the course of its activity. The situation demonstrates the inadequacy of the current offence.
The measures that we are introducing, especially the civil penalty scheme, will put a wider range of tools at the disposal of the IND, so it will not have to use such heavy-handed means to address the problem. The civil penalty scheme is a more measured and calibrated system through which the problem can be addressed without having to resort to criminal prosecutions in every instance. On my hon. Friend's point about consultation, a draft code of practice has been published to set out the steps that employers can take to ensure that they keep within race discrimination legislation.
Keith Vaz: I want the Minister to picture my constituency and areas such as East Park road and the Belgrave road. Every single person who is employed in every single factory on those roads is from the ethnic minority communities. Some are British born, some have acquired citizenship and others have indefinite leave. Does he accept that the measure will disproportionately affect members of the ethnic minority community, and have an impact on those who are in this country legally because employers simply will not want to employ them?
Andy Burnham: My hon. Friend is right to raise such serious issues. I do not know his constituency anything like as well as he does, but I would guess that the vast majority of those people are British born and British passport holders, so there will be no requirement for employers to check their documentation. The draft code was published in October and I would encourage him to read it.
Keith Vaz: That is not the point. The Bill will allow those who have the power to go on fishing expeditions to find out which of those people are British citizens and individuals with indefinite leave—with the right to vote and work here—and which are not. The Bill will mean that people can start visiting factories and making checks, which will create more burdens.
Andy Burnham: The measures must be applied sensitively, which is why the draft code of practice sets out clearly the steps that should be followed to achieve that. The code makes what is acceptable clear to employers. We obviously want to ensure that there is consultation on the code of practice so that when it emerges in its final form, it will be a useful and practical document that will ensure that the scenario that my hon. Friend fears can be avoided. I understand my hon. Friend's point, but the purpose of the measures is to deal with illegal working. The IND carries out illegal working operations now and will continue to do so; the clauses simply gives the IND proportionate tools to use against employers who fail to comply.
The main point made by the hon. Member for Woking relates to amendment No. 10, in which he requests that reference be made in the Bill to employers who take reasonable steps to comply with the legislation. As he knows, secondary legislation will be required to bring into effect the clauses on employment.
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I refer the hon. Gentleman to the table in the draft code of practice that we have issued for the benefit of employers. He will see that it lays out clearly the practical steps that employers can take to ameliorate the size of any penalty. They can carry out a full check, which is defined, a partial check or no check at all. We have taken a balanced approach: the penalty varies in proportion to the extent to which an employer has taken steps to comply.
The hon. Gentleman will also see that it will be possible for a first-time offender who showed good will and carried out some partial checks to avoid a penalty on the first occasion of being found in breach. I genuinely believe that the secondary legislation to support the clauses will fulfil the purpose of amendment No. 10 by laying out clearly the practical steps that people can take, and I hope that it reassures the hon. Gentleman that first-time offenders will not be clobbered. The penalty will vary according to how many times the employer has breached the provisions and the extent to which the employer has taken steps to tackle the problem.
As I said, we are minded to accept amendment No. 11, which is sensible. It relates to the matters to be included in a civil penalty notice, specifically the Secretary of State's obligation under clause 14 to set a maximum period within which payment must be made. The effect of the amendment would be to increase the payment period specified in the notice from at least 14 days to at least 28 days. Clause 16 specifies that the period for bringing an appeal against a penalty will be 28 days and we intend that the maximum period for making objections under clause 15 will be the same. To accept amendment No. 11 is therefore logical.
Amendment No. 8 would exclude part-time workers from the scheme. That would not be sensible as it would undermine the principles of the scheme, weaken it, and create a potential loophole in the legislation. Employers could employ an illegal worker on a part-time basis for up to 15 hours a week having carried out no checks at all. I do not believe that that is really what the hon. Gentleman wants. It would not be sensible to accept the amendment, nor amendment No. 9, which would effectively exempt overstayers from the illegal working provisions. To exempt overstayers would be a counter-productive step that would undermine the scheme. The hon. Gentleman may know that a high proportion of the people who are picked up during operations tend to be overstayers. The hon. Gentleman asked about enforcement. [Interruption.] He is chuntering away on the Opposition Front Bench about who will enforce the provision, and he has asked about robust documents. How about a national identity card? Has the hon. Gentleman considered that? That might be an easy way to ensure that employers could quickly verify whether or not the person had the right to work in the country. The hon. Gentleman might want to think about that before we conclude our deliberations.
Other, less crucial points have been raised and Members have been able to have their say. I note the support from the hon. Member for Ryedale (Mr. Greenway) for an amnesty for all illegal workers. I am not sure that that is the policy of the two contenders for the leadership of the Conservative party, but it is something that they might want to consider.
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I took the point made by the hon. Member for Orkney and Shetland, principally in relation to amendment No. 16, which is about liability within a company, especially for the knowingly employing offence. If we accepted the amendment, that would weaken our position because we would have to revert to common law to try to ascertain who was ultimately liable. That would not be satisfactory. People in positions of responsibility within a company have to take responsibility to ensure that their house is in order. It would not be right to make the provisions vague so that people could have further room for manoeuvre to try to avoid their obligations.
I think that we should move on to the substantial matters that remain to be considered. I hope that the hon. Member for Woking will be encouraged by what I have said and persuaded to accept my position on amendment No. 10, which will enable us to move straight on to the other matters that are to come before the House.
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