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17 Jan 2006 : Column 193

Tuesday, 17 January 2006.

Grand Committee

The Committee met at half-past three of the clock.

[The Deputy Chairman of Committees (LORD LYELL) in the Chair.]

Immigration, Asylum and Nationality Bill

(Third Day)

Clause 20 [Orders]:

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland) moved Amendment No. 48:

The noble Baroness said: There are a number of government amendments in this group. We hope that they will improve parliamentary scrutiny of the implementation of the civil penalty arrangements, which we discussed in great detail during our last sitting. They also reflect the measures we are taking in the Equality Bill to provide for a single statutory body responsible for equality matters.

Amendments Nos. 48 and 49 would make the order-making power under Clause 15(2) subject to the affirmative resolution procedure instead of the negative resolution procedure. Under Clause 15(2), the Secretary of State may prescribe by order the maximum level of penalty that can be imposed on an employer under the civil penalty arrangements. As we have said previously, our intention is to set the maximum possible penalty at £2,000 per illegal worker. Clause 20, a technical provision, currently sets out that the order-making powers under Clauses 15, 16 and 19 are subject to the negative resolution procedure, which includes the Clause 15(2) order-making power.

The amendment reflects a recommendation made by the Delegated Powers and Regulatory Reform Committee in its recent 10th report. The committee recommended that, in view of the absence from the Bill of an implied maximum penalty, orders to prescribe a maximum penalty should be subject to the affirmative resolution procedure, thereby ensuring that they are subject to debate and approval by each House. We accept the committee's recommendation to provide that orders made under Clause 15(2) will be subject to the heightened level of parliamentary scrutiny required by the affirmative resolution procedure. I hope that noble Lords will agree that we have fulfilled our obligation in that regard.

Amendments Nos. 50 and 51 make a consequential change to a reference to the Commission for Racial Equality in Clause 23 to reflect the provisions of the Equality Bill. Noble Lords will be very familiar, as am I, with the provisions of the Equality Bill, which has been debated extensively here and in another place. The Equality Bill provides for the dissolution of the Commission for Racial Equality, the Equal
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Opportunities Commission and the Disability Rights Commission, and their replacement with the new Commission for Equality and Human Rights. The Equality Bill provides that the Secretary of State must use his or her order-making power to dissolve the former equality commissions by a statutory deadline of 31 March 2009.

It is right that Clause 23 of the Immigration, Asylum and Nationality Bill should reflect that important provision in the Equality Bill. Clause 23 currently places a duty on the Secretary of State to consult the CRE and the Equality Commission for Northern Ireland before issuing a code of practice to employers on avoiding unlawful racial discrimination while avoiding liability to a penalty and avoiding committing an offence under Clause 21. In amending Clause 23, we intend that the reference to the CRE should be replaced with a reference to the Commission for Equality and Human Rights. Until the CRE is dissolved by virtue of the exercise of the order-making power in Clause 37 of the Equality Bill, the Secretary of State will continue to have a legal duty to consult the CRE before issuing a code of practice to employers. Thereafter, the duty would be to consult the new commission. The amendments do not affect the position of the Equality Commission for Northern Ireland. On the basis of the way in which I have outlined the provisions, I hope that noble Lords will feel able to accept the amendments. I beg to move.

Baroness Anelay of St Johns: I put on the record my gratitude to the Minister for tabling Amendments Nos. 48 and 49, which reflect the recommendations of the Delegated Powers and Regulatory Reform Committee, because it is not always the case that the Home Office comes forward with acceptance of those recommendations in Committee. It is always much more appropriate that that should be done in Committee where possible, because if there are any outstanding contentious matters—which I do not think there should be in this case—it gives noble Lords the opportunity to use the Committee stage procedure to question, or cross examine, the Minister. It also means that valuable time on Report, which is necessarily constricted, is not eaten into. I am very grateful to the Minister and her officials for being so quick in their response. I would hope that it will be good practice throughout, but in my bitter experience it is not.

For the benefit of those who read our proceedings rather than those taking part, it is also important to put on the record that in Grand Committee the rules are that government amendments may be made in this format only if all Members of the Committee agree. I therefore signify our agreement to all four amendments.

Lord Dholakia: I thank the Minister for the explanation on the four government amendments. She rightly described Amendments Nos. 48 and 49 as dealing with orders under Clause 20. Amendments Nos. 50 and 51 deal with "Discrimination: code of practice". In a way, the Government had to bring these amendments forward for the simple reason that the
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House of Lords Delegated Powers Committee said in its 10th report that provisions prescribing the maximum amount of the penalty should be subject to the affirmative resolution procedure.

We will comment briefly on Amendments Nos. 48 and 49. Very little detail of the scheme is given in the Bill. While provisions such as Clause 15(7) appear detailed, they merely set out non-exhaustive lists of what secondary legislation may contain and thus provide little real guidance. For that reason, and given that the Government have agreed to make orders setting the maximum amount of penalty subject to the affirmative resolution procedure, there may be a case for urging them to make all the prescribed requirements, and the code on setting the level of penalty, subject to that procedure. That would ensure that all those provisions fell to be debated together.

We also wish to see the affirmative procedure proposed under Clause 23 on discrimination. The risks of discrimination associated with these provisions are enormous. That was the Labour Party's primary reason, when it was in Opposition, for objecting to the current offence for employers as set out in Section 8 of the 1996 Act. The current draft code offers little comfort and appears to do little to obviate the risk of discrimination.

It would be helpful if the Minister could indicate the timetable and what she has in mind for the new equality commission. I understand also that there is a separate move by the Commission for Racial Equality to set up a separate commission dealing with race issues. I assure her that we stand by the provisions of the Equality Bill and would have nothing to do with the CRE's new proposal. It simply takes us back to 1965 and 1966 when there were two separate bodies which we spent years bringing together. In these amendments, it is important to ensure that any provisions established under this legislation will be subject to discrimination provision by the Commission for Racial Equality or the equality commission, when it is set up.

Lord Avebury: I should like to add one question to those put by my noble friend. On Amendment No. 51, I can easily see the advantage of having a seamless transition between consultations on how the employer complies with Clause 15 while at the same time avoiding contravention of the Race Relations Act 1976 between the CRE and the new organisation when it comes into existence. But there might be other obligations to consult with the Commission for Racial Equality which ought to be considered in an environment other than this Grand Committee. Will the Minister undertake on behalf of the Government that, if there are any other references in legislation to consultation with the Commission for Racial Equality that have not yet been identified—or, where they have been spotted, there is no suitable opportunity in a Bill likely to be passed in time to amend them as this clause does—they will, as an administrative duty, consult the commission as soon as the transition occurs? This matter was not raised in another place, either in
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Standing Committee or on Report, showing how easy it is for such an important point to escape notice in spite of the number of stages of scrutiny. If the noble Baroness cannot give me an answer off the cuff, I hope that at least she will have the matter looked at in the department.

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