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Viscount Addison: My noble friend has been most helpful. On that basis, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Blatch moved Amendment No. 89ZA:

Page 6, line 22, at end insert--
("(3A) The defence afforded by subsection (3) above shall not be available in any case where the employer knew that his employment of the employee would constitute an offence under this section.").

The noble Baroness said: I spoke to this amendment with Amendment No. 84A. I beg to move.

On Question, amendment agreed to.

Baroness Williams of Crosby moved Amendment No. 89A:

Page 6, line 24, leave out ("5") and insert ("3").

The noble Baroness said: At this late hour I shall move this amendment briefly. The point of it is to reduce the level of fines implied by offences under this clause. Because I am still far from clear whether employers will know exactly what they are required to do to protect themselves from a charge being laid against them for employing an illegal immigrant knowingly or unknowingly, I suggest that the fines implied by level 5 are extremely crushing. Under that level the fine is £5,000 and under level 3 it is £1,000, which is a very big difference. Under the Criminal Justice Act 1991 the fines at each level were substantially increased. My understanding is that as well as a fine of £5,000, an employer can be sent to prison for up to six months for level 5 offences. That seems to be a very ponderous and heavy burden for someone to bear.

In a sense there is a balance in what the noble Baroness said at an earlier stage about the clarity that will be laid down as to what employers are expected to do in order to protect themselves. However, I was a little troubled that she felt unable to accept any of the amendments in the last group moved by the noble Lord, Lord McIntosh, which were an attempt to pursue a much clearer set of indications about what the employers are supposed to do.

I hope that noble Lords who are concerned about this clause and its possible effect on employers will consider supporting the amendment. I think that a penalty as heavy as level 5--that is, of up to £5,000 or up to six months' imprisonment--is a substantial penalty to impose on an employer who may well be unclear about exactly what he is supposed to do and about whether he has been through all the proper documents. The noble Viscount, Lord Addison, has just given an example of how difficult it is for employers in some industries to get the necessary documents.

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I must confess that I am troubled by the provisions. I do not really understand why the Home Secretary feels obliged to increase the fines to level 5 for this offence. Although I recognise that there are some bad cases, it will be a tremendously heavy fine for most employers. I am troubled by the fact that once again as we have argued repeatedly from these Benches, and as has been argued from the Cross-Benches and from the Benches of the Lords Spiritual, rather than face that level of fine many employers will decide not to employ anybody who might conceivably be defined as an "immigrant" for the purposes of this clause. I beg to move.

Lord Renton: I am afraid that this clause would be incomplete without these two subsections. An employer can be either an individual, a partnership, a corporation or a company--

Baroness Williams of Crosby: Perhaps I may intervene. I was speaking to Amendment No. 89A, the sole purpose of which is to reduce the maximum penalty attracted by an offence under this clause. I believe that the noble Lord is addressing the next amendment.

Lord Renton: I apologise to the noble Baroness and to the Committee.

Earl Russell: This amendment raises a question about priorities to which I have been trying to get an answer for some time. There is no argument between us about whether there should be a fine. The question relates to the level of the fine. It might help if we could have a comparative scale of fines. Let us take an example which is more extreme than anything that we are arguing here. It would cause us a certain amount of surprise to find people being imprisoned for being drunk and disorderly if there had been no threat to life.

Perhaps we could be told what are the fines on employers who are found guilty of unfair dismissal. What are the fines on employers who keep people working for longer than is allowed without a meal break? What are the fines on employers for using dangerous and unguarded machinery? What are the fines on employers for polluting rivers, as happens from time to time? We need to know that comparative information. We need to put this offence on a comparative scale with other offences. We then need to consider whether the gravity which has been given to this particular offence is proportionate to the offence. That is a real question. I should like to have some material to help to answer it.

Baroness Blatch: There really is a misunderstanding on this part of the Bill. The amendment would set the maximum penalty for the new offence at level 3--currently £1,000--rather than at level 5--currently £5,000. Both of those figures are maximum figures. There are no powers whatever in Clause 8 to imprison anybody, so imprisonment is not an alternative to the fines.

In setting the maximum penalty for the new offence, the most important consideration is, as always, to ensure that the courts will be able to sentence appropriately the most serious examples of the offence. Within that

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maximum penalty, it is then for the courts to set the penalty in individual cases taking account of the seriousness of the particular offence and the financial circumstances of the offender.

We do not believe that a maximum penalty of just £1,000 would allow the courts adequately to deal with, for example, the deliberately exploitative employer who employs people he knows, or suspects, to be working illegally simply because he can pay them lower wages. We believe that a maximum penalty of £5,000 would allow the courts to deal with such offenders in an appropriate fashion. We are setting a level within which there can be proper reflection of the seriousness or otherwise of the offence. Obviously, in the examples given by the noble Baroness it will operate at the lower end of the level 5 fine of £5,000, and for the most serious offences that I have referred to a fine of up to £5,000 can be imposed on an employer.

Earl Russell: The noble Baroness has still not addressed the comparative point which exercises me quite considerably. To take another comparative figure, last Tuesday night we discussed carriers' liability. In that case the fine is a maximum of £2,000. This is more than twice the fine that is imposed upon carriers. Why is this a much more serious offence?

Baroness Blatch: I understand that in the case of carriers' liability it is a flat £2,000. It is not a question of the fine going up to anything; it is a £2,000 levy, charge or whatever which is being considered. I am afraid that I am unable to provide the levels of fines in cases of unfair dismissal, working with unguarded machinery and so on. Sometimes industrial tribunals set their own penalties to be imposed on employers. If the noble Earl wishes me to write to him about it I shall do so. For the more serious exploitative examples of employing illegal immigrants, we take the view that £1,000 is too low and that a fine of up to £5,000 will allow the seriousness of the offence to be reflected in the fine. Of course, for less serious cases we expect it to operate at a much lower level than £5,000 but within that range.

Lord McIntosh of Haringey: As I understand it, under Clause 8(1) an offence is committed if an employer employs a person who is an illegal immigrant. Therefore, the fine is for an offence which relates to a single employee or immigrant. If an employer employs five or ten at a time the maximum fine can be £5,000 times five or ten. I do not say that the maximum fine will always be imposed. The Minister is right about that. However, it is a specific offence which relates to a single employee. Therefore, the fines multiply as the number of employees multiplies.

Baroness Blatch: The noble Lord has got me on that technical question. My understanding is that if the police are concerned about a particular employer whose workforce is made up entirely of illegal immigrants the employer will be prosecuted for employing illegal

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entrants. I am not sure that the fine would be £5,000 times the number of persons employed. I would need to take advice on that. I do not know.

Lord McIntosh of Haringey: The Bill is very clear. Subsection (1) reads:

    "Subject to subsection (3) below, if any person ('the employer') employs an immigrant ('the employee') ... the employer shall be guilty of an offence".
Subsection (4) provides:

    "A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale".
There is no doubt what the Bill says.

Baroness Blatch: If they are separate offences the fine may be £1,000 in each case, as long as it is within the £5,000. The fine may be £500 in each case. It is a matter for the court to determine the right fine to impose on the employer who is guilty of that particular offence. The noble Lord is absolutely right in his definition of the offence. If an employer employs a person without availing himself of a defence, he will be guilty of an offence and it will be for the court to determine the matter.

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