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Earl Russell: The noble Baroness says that this clause is not a licence to discriminate. I welcome that, and I accept entirely the sincerity of the Minister's intention. The question is about the effect.

I am reminded of a remark by Archbishop Laud. He was reading through a form of service for reconciling to Christianity those who, while captive and in slavery in

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Algiers, had been with a degree of coercion converted to Islam. He said that the service laid down that they were to stand in a church porch in a white sheet doing penance throughout a day. Seeing that, Laud wrote in the margin: "Memorandum. Small boys not to gather to laugh at them." I cannot help wondering whether one hope is just about as likely to be realised as the other.

Baroness Blatch: I am always interested and sometimes amused by the noble Earl's references back into the annals of history and his incredible font of true-life references in our debates. If there is that kind of open discrimination, we believe that the Race Relations Act is the proper way to deal with it. We believe that employers will act fairly. My noble and learned friend the Lord Advocate mentioned to me a few moments ago that if the person seeking work has lived next door to the company and has known the people there since he was born, it would be entirely proper for an employer not to seek a defence in the case of that particular person. However, if the applicants who came along had strange accents or were of a colour which made the employer say, "My goodness, this must be an illegal immigrant" that situation is caught by the race relations legislation.

We trust employers to be sensible and not to discriminate on the basis of race, colour or creed. We believe that to put this provision on the face of the Bill would impose an unnecessary burden on employers. They should be free to avail themselves of the defence if they need to. Having said that, as I said to the right reverend Prelate, we have an expectation that the provision will be applied fairly and universally because that is the best possible defence for any employer.

10.15 p.m.

Baroness Seear: Before the Minister concludes her response, can she say whether this will apply to domestic employment? I am not trying to be facetious in any way but, for example, if a housewife takes on a cleaning lady--that is, if she is lucky enough to find one--does it mean that she will have to go through the process, or is there a domestic exemption in that respect? I ask that because there have been some domestic exemptions.

Baroness Blatch: We have already discussed domestic employees this evening. We have said that people must be careful that they are not employing illegal immigrants. Indeed, I believe that there probably are quite a number of illegal immigrants employed in that way. It is the responsibility of employers to assure themselves that the potential employee is not an illegal immigrant.

Baroness Seccombe: Before my noble friend the Minister sits down, can she take note of the fact that we are all most grateful to the many Asians who run corner shops and mini supermarkets? If guidance is to be sent

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out in clear English, perhaps their needs could also be taken into account and, if necessary, translations provided.

Baroness Blatch: I can assure my noble friend that that point will be taken into account.

Earl Russell: If the Minister will forgive me, I have one further question. Will additional staff in the Home Office be given the task of answering questions from employers about the operation of the clause? Moreover, where telephone advice is given, will there be written confirmation of it? That could be extremely helpful to a number of small employers, such as those mentioned by the noble Baroness, Lady Seccombe. Indeed, I agree with her in that respect.

Baroness Blatch: We want to keep the burden on employers as light as possible. We also want to be as helpful to them as possible and to explain in the simplest possible way how they can avail themselves of the defence against committing an offence under the Bill. We shall certainly do all that we can in that respect. Indeed, we work very well and very constructively through the employers' federations. With regard to the information that goes out to new employers--that is, people who become employers--we shall certainly find ways and means of ensuring that they understand their obligations under the legislation. As I said, we shall do what we can. I am not sure that we intend to employ new people at the Home Office to tackle the task. But clearly we do not want to make the process so complicated that employers would feel the need to keep telephoning us on a regular basis.

Lord Brabazon of Tara: I had not intended to intervene in the debate, but the noble Baroness, Lady Seear, raised a point which might strike home so far as I am concerned in that I could well be an employer of an illegal immigrant for all I know: a cleaning lady. I hope that my noble friend the Minister will publicise the new requirements as fully as possible. Otherwise there may be many people who may find themselves in an extremely embarrassing position.

Baroness Blatch: If I may say so, I believe that a fairly senior person--namely, the President of the United States--found himself in rather a difficult position for that very offence.

Lord Dubs: Perhaps I may point out that two potential Members of the Cabinet in Washington failed their hearings precisely on that point. Therefore, the noble Lord's concerns are well placed. However, I think that they go slightly wide of the amendment. I believe that I understood correctly what the Minister said in her original response, but perhaps she will be kind enough to confirm my understanding.

The Minister said that the Government's intention was that there should be no discrimination by employers. She said that she would put into the guidelines the sentiments contained in the amendment, so that employers would treat all people equally. However, the Minister also said that she would not accept the amendment because she felt that all

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employers ought to be free not to have to make checks. I find that a little puzzling. The Minister said that employers should have the freedom not to make checks, yet she accepted the spirit of the amendment and said that she would put it in the guidelines. I do not understand whether or not the Minister wants the provision.

It seems to me that if the amendment is technically defective, then all the Minister has to do is to say so. However, if employers are to know how to behave on the basis suggested and if the Minister agrees with the content of the amendment, I cannot understand why she will not accept it. It seems to me to be counter to that spirit to say that employers ought to be free not to make checks. In other words, I am still puzzled in that respect.

Baroness Blatch: It will be an offence--offences have been created in this Bill--to employ an illegal immigrant. We have provided a defence for employers, which they are free to avail themselves of, or not to avail themselves of. We believe that whatever practice they adopt, that should certainly be a fair practice. We also believe that, in practice, it would be better to apply it universally so that any new people entering a company should be checked according to these rules. We are saying that if an employer believes that his recruitment policies are such that he does not wish to avail himself of the defence, he is free to do that. But I have to say that, if subsequently he is found to be employing an illegal immigrant, he will not have a defence against the offence of employing one.

Lord Dubs: I thank the Minister for those comments. The amendment states that,

    "where for purposes of subsection (3)(a) an employer inspects a document ... he shall inspect a document in respect"
of each employee. The amendment does not even say that the employer has to inspect all employees' documents at all times. However, if he adopts a practice of inspecting documents, he must do so for each employee prior to employing him. It is late and I do not wish to press this matter. Perhaps I can withdraw my amendment on the basis that the guidelines will be clear and unambiguous along the lines of what the Minister has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 92:

Page 6, line 36, at end insert--
("( ) Before making any order under subsection (3), the Secretary of State shall consult such organisations as appear to him to be representative of employers and employees and the Commission for Racial Equality.").

The noble Lord said: In moving Amendment No. 92, I wish to speak also to Amendment No. 94. I rather think that these can be probing amendments because the Minister has referred to the intention of the Government to produce a document containing details of the provisions of the order in response to a number of previous amendments. I welcome that. The need for Amendment No. 92 is heightened by the amendments which the Minister has already persuaded the Committee--by force of votes--should be added to the

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Bill, and therefore subtracted from the defences available to employers in proceedings under this part of the Bill.

This will inevitably be an enormously complicated series of instructions to employers. The measure comprises statutory obligations which we have been debating tonight. It will comprise the contents of orders under subsections (2)(b), (3)(a) and (3)(b). It will comprise guidance which does not even have the status of orders. It will be enormously difficult for employers to understand what is proposed by the provisions of this clause. We think therefore that it is necessary for there to be two safeguards. The first is the safeguard contained in Amendment No. 92 which states,

    "Before making any order under subsection (3)"--
those are the two orders relating to documents and to the retention of documents--the Secretary of State should consult employers' organisations, employees' organisations (I take it that would be the trade unions) and the Commission for Racial Equality which has been closely observing and commenting on the Bill. Before the final decision is taken to bring this measure into effect--that is, the whole of this clause--

    "the Secretary of State shall take reasonable steps to circulate to employers a document containing details of the provisions of the order".
I think that the Minister has already said that. The Secretary of State shall also provide,

    "facsimile representations of any documents an employee can produce".
It is necessary to do this graphically as well as in words. This evening we have had difficulty understanding the provisions of the clause. I hesitate to suggest this but I think that Ministers must have had some difficulty--as they were being briefed and as they were presenting the clause to us--in understanding the provisions of the clause. I do not think that the whole thing is self-evident and clear in the way that it would have to be for employers. I suggest to Ministers that it would be to their advantage and in no way detract from the effectiveness of the clause if they were to take account of the two stages of consultation proposed in Amendments Nos. 92 and 94. I beg to move.

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