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Lord Avebury: Perhaps I may come back for just a moment. I do not understand what the noble Baroness is saying. The circumstance envisaged in Amendment No. 89ZA is that an employer has looked at a document and satisfied himself that all is as it appears and that there is, for example, a national insurance number on the P.45. The noble Baroness is trying to catch the employer who nevertheless knows that that person is not entitled to work here; ipso facto the national insurance number or the passport or the stamp on the passport must have been obtained by fraudulent means. The evidence that that person had permission to work in this country must have been obtained fraudulently. If an employer knows that an employee is not entitled to work here, he must know that the document that was presented to him, which shows that that person is entitled to work here, is not genuine.

I am saying that we should not ask the employer to look behind the document. We should ask the employer to look at the document and to satisfy himself that it complies with the order which the Secretary of State is to make. If the employer knows that the person obtained that document in some improper manner, the employer will be guilty of an offence under the Bill. It seems quite simple.

Baroness Blatch: The noble Lord is confusing two things. If an employer knows that the person before him is here illegally, it is incumbent on the employer not to employ that person. We are saying that it is an offence to employ somebody illegally--and certainly to do so knowingly.

However, we do not want to turn employers into immigration officers. We do not want our employers to feel that it is incumbent on them to check national insurance numbers and passports to ascertain whether they are correct. If an employer has been proffered a passport that looks like a passport or a national insurance number that looks genuine, we are not requiring that employer to check whether that document is correct--

Lord Avebury: No.

Baroness Blatch: The noble Lord is suggesting that. If the employee is known to be an illegal immigrant, the employer has a duty not to employ him. If the employer does so knowingly, he would be caught by the amendment.

Lord McIntosh of Haringey: Nobody denies that the Government's objective in trying to deal with rogue employers who knowingly employ illegal immigrants is a proper objective. Nobody is saying that there is anything wrong with that. However, that is not what the amendments provide. The amendments apply to all

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employers. They must apply to all employers. There is no other way around it. The amendments seek to qualify the exceptions, the defences, which employers can use when arguing that they have carried out the checks that are necessary under the Bill. The basis of agreement with the employers' organisations was that those checks would be sufficient. The Minister has confirmed that this evening. If that is the case, how will anybody know that the employer knew something when he adequately performed the checks that are set out for him? The Government are hopelessly entangled in these provisions. They are trying to deal with a specific and almost certainly a very small number of employers by a general means which will not work.

Baroness Seear: I find this whole approach to the employment of immigrants extraordinary and unreal. There is an air of cloud cuckoo land about the whole thing. If the Government must make this an offence, I very much hope that they will consider making it a civil rather than a criminal offence. It seems totally inappropriate to make it a criminal offence to take on an illegal immigrant. I find it odd that a government who have been so eager to remove burdens from businesses should be imposing this burden on them, and that a government who have resisted the social chapter should be so desperately concerned that some employers may treat immigrant labour badly. I am concerned about the unreality of it. Where one has a well set up, proper personnel department the employer will do all of these things. However, has the noble Baroness given thought to what happens at a place like a building site where these people will go? A site foreman will be surrounded by machinery and probably items will fall on his head a good deal of the time. Will he go through all of these procedures? It is totally unreal. Here we are thrashing away at the details of a fairy tale approach to the employment of people.

Building sites are very good places for people who are trying to hide, as I well know. It is the place to which you send offenders to get jobs because no one asks any questions. They will also go to hotels to do washing up. Can one see the supervisor of kitchens going through all of these procedures? It is a nonsense. Can the Government at least give thought to making it a civil instead of a criminal offence?

8.30 p.m.

Lord Renton: I did not intend to take part in this debate. However, the noble Lord, Lord McIntosh, drew me into it by referring to mens rea, about which I will say more in a moment. The noble Earl, Lord Russell, also drew me into it by referring to the burden of proof. With the deepest respect, I believe that all noble Lords and the noble Baroness, Lady Seear, who have spoken on this subject, have made unnecessarily heavy weather of the whole matter. It is very simple. In Clause 8 the Government have done justice by enabling an employer to raise a defence to show that he is innocent as far as subsection (3) goes. Perhaps, as an afterthought, although a very necessary one, it has to be considered whether the employer might have known that the employment of the employee would constitute an offence. It is only right to spell that out in the Bill.

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If I may have the attention of the noble Lord, Lord McIntosh, mens rea in our criminal law is a matter of which we should be proud. It means that no person can be convicted of an offence unless a guilty intent has been proved. That is absolutely vital and not a matter to be despised. That will have to be proved in an alleged offence under this clause. So far as concerns the burden of proof, the noble Earl is right that there must be proof beyond reasonable doubt in criminal cases. In civil cases the burden of proof is on a balance of probabilities, which is different. But the onus remains on the prosecution in all criminal cases from beginning to end, except that where a particular type of defence is raised the burden can shift. It is then for the court to decide ultimately whether or not the prosecution has proved its case beyond reasonable doubt. If there is a reasonable doubt on any of the issues raised in the case, the accused person has to be acquitted. It is as plain as that. The clause does justice in necessary circumstances.

From time to time during Committee stage there have been implications that noble Lords opposite are absolutely wonderful in having no colour prejudice. I have no colour prejudice. Some of my close friends happen to be Indians. Only today I took 11 South Koreans round the Palace of Westminster. The leader of the delegation, which came from one of the largest cities in South Korea, was kind enough to give me a badge signifying membership of his city. I totally deny that noble Lords opposite are in a different position from any of us on these Benches, or the right reverend Prelate, on the issue of colour prejudice. I hope that that will be borne in mind during the remaining debates on the Bill.

Baroness Seear: Will the noble Lord tell the Committee what has been said to lead him to make that comment? I have no recollection of any suggestion that those on the other side of the Chamber have colour prejudice. What has been said that moves the noble Lord to make that statement?

Lord Renton: I do not want to embarrass noble Lords by referring back to previous speeches. But from time to time there has been the clearest implication that their arguments are supported by a lack of colour prejudice and that anything which resists them involves it.

Lord McIntosh of Haringey: Does the noble Lord suggest that of me?

Earl Russell: I have not for one moment hinted at colour prejudice anywhere in this Chamber. The only references I have made to its existence have related to the country outside where, regrettably, it is not unknown. I am entirely happy to accept everything the noble Lord says on the subject. I am extremely sorry if inadvertently I have said anything which led him to say what he did say. If inadvertently I have given any such impression, I unreservedly offer to apologise.

For some time I have asked the noble Baroness to confirm that suspicion does not constitute proof. That is clear enough. The noble Baroness shakes her head, which I hope will go on the record. I thank her warmly. Another matter which gives me concern is that the

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Home Office has no quantitative evidence on the point. I appreciate the difficulty of obtaining quantitative evidence of any illegal activity. In any crime statistics there are always duff figures. However, even for those employer organisations which do not contest the clause--although they do not give it a particularly excited welcome--it will inevitably mean a burden. One wants to know that there is some quantifiable evidence of mischief, even if one does not know that it is the whole mischief, before the need for the clause is accepted. The Department of Social Security used to say that it did not introduce policy based upon anecdotal evidence. That was a good restraint. One wonders whether the Home Office should accept a similar restraint. If the noble Baroness has any pulk of evidence which led the Home Office to decide that the clause is necessary, I would listen to it with a great deal of interest.

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