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Baroness Turner of Camden: My Lords, I speak to Amendment No. 23, which is included in the group that we are discussing. I introduced a rather similar amendment in Grand Committee. This one is rather shorter but is concerned with the use by employers of migrant workers as cheap labour. In Grand Committee, perhaps because of the way in which
 
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I spoke about the possibility of regularising illegal workers, much of the discussion—and, indeed, the response of my noble friend the Minister—dealt with the whole issue of the employment of illegal workers.

The main objective of my amendment is to draw attention to the fact that there are unscrupulous employers who will exploit migrant workers if they can get away with it and that everything possible should be done to make sure that they do not. I have already drawn attention in previous debates to the way in which the director-general of the CBI has welcomed immigration on the ground that it deals with "wage inflation"; in other words, it keeps the general level of wages down. Migrant workers are willing to work for low wages; they are often quite unaware of the existence of minimum wage rates or of health and safety conditions and are much too scared to take issue with their employer even if they are aware of them. Many of them are sending part of their earnings home to families who are even poorer than they are.

Of course, a suspicion that migrant workers are undercutting wage levels does not help race relations. I am glad that trade unions are recruiting among migrant workers and doing their best to improve wages and conditions. However, there are problems. On the BBC's "Politics Show" at the weekend there was discussion of this whole issue. It is clear that some people think that a free market in labour is keeping down the general level of wages and is therefore to be welcomed. That is all very well; large profits can be made but, of course, as usual, the very poor pay for it. For that reason my amendment refers to the right to join unions and to participate in workshop organisations.

I hope that this time round my noble friend the Minister will be willing to respond sympathetically to the wording of the amendment. As I said earlier, in Grand Committee and, I believe, at Second Reading, the possibility of migrant workers undercutting the general level of wages is not a very good idea in this country. It can lead to a worsening of race relations and make employment relations that much more difficult. I therefore hope that my noble friend will be prepared to view what I have said with sympathy.

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Lord Dholakia: My Lords, I support what was said by the noble Baroness, Lady Anelay, about the issue affecting the Chinese community. All of us have met the person concerned at different times and she has made representations on behalf of the Chinese community. However, she also made it very clear that the issue affects other minorities, particularly those involved in the catering industry.

One of the assumptions that is often made by decision makers is that if you have a large ethnic community in this country, particularly involved in the catering trade, you should be able to find people from that community to provide services. That is utter nonsense. A large number of people growing up in this country who comprise the second, third or fourth generations of their ethnic minority do not want to do
 
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precisely what their parents did. They have received a better education and are better qualified than their parents and do not want to go into the catering industry. However, that industry creates substantial wealth for this country. It contributes about £2.3 billion or £2.4 billion to the British economy. We ought to be careful to ensure that no generalised assumptions are made where applications are concerned and that the Minister takes into account the special needs of that community to be able to make them.

Lord Avebury: My Lords, if the Minister has not already done so, I suggest that she also meets Bangladeshi restaurateurs. She has met Chinese restaurateurs on two occasions. Bangladeshi restaurateurs and the Bangladeshi food industry probably comprise at least as big a contributor to our economy and to gastronomic excellence as the Chinese food industry. I hope that the Minister agrees that both of them deserve to be heard.

During the consultations, various representations were made. The noble Baroness, Lady Anelay, gave us details of three proposals made by a leader of a Chinese community association. I hope that the Minister can publish the results of the consultation that she has held with both sectors before Third Reading, as it would be enormously helpful to your Lordships to know that at least we are moving in the right direction in accommodating the special needs of those industries. I believe that that would satisfy the noble Baroness, Lady Anelay.

With respect to the amendment spoken to by the noble Baroness, Lady Turner, it occurred to me while she was speaking that if one merely provided that the treatment of migrant workers was not less favourable than that which applies to national workers, one would miss something, because most of these people are employed in a sector where there are no nationals. As we have constantly heard during our discussions with both the Chinese and the Bangladeshis, the natives of this country do not know how to do Chinese or Bangladeshi cooking. That is the reason why people come in from abroad to carry on those operations. Therefore, there is no exact equivalent with which to compare them. If one were to make provision for these workers, as is suggested by the noble Baroness, it would have to be applied to national workers in equivalent occupations. Then I think that the issue would be properly taken care of. I hope that the noble Baroness will consider that. The measure is a good idea in principle.

As regards the employers who will go on the register, one of the factors that ought to be considered—even if it is not formally put into the statute—is how they treat existing migrant workers. They should not get on to the list of approved employers for the points scheme unless the noble Baroness and the Government were satisfied that they treated migrant workers as favourably as local workers.

Lord Lyell of Markyate: My Lords, in supporting my noble friend Lady Anelay's amendment, I make
 
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the following points. This is a civil penalty. No doubt the Minister has told us, but I am sorry that I do not know how much she has in mind for it and what the maximum is. However, what the amendment suggests is reasonable. Once the Government have caught up with an employer thought to be employing those he should not be employing, it is likely that he will either be stopped by having it drawn to his attention or he will carry on regardless. The Government are keen on civil penalties. When one is acting as an enforcement authority, this method of enforcement provides a cumbersome form of appeal and places all the burdens on the defendant. One can justify that sometimes, but we are nudging up against what is reasonable. It is extremely important to remember that any prosecutor should act reasonably before enforcing. The amendment asks the Government to act reasonably. I hope that the Minister will take that point into account.

Baroness Ashton of Upholland: My Lords, I am grateful, not least to the noble and learned Lord, Lord Lyell, for joining our debate. We spelt out in our debates in Committee many of the issues that he rightly wishes to address. There is a maximum penalty. It can be applied at different levels in order to recognise the contribution of employers in making sure that they were trying to act reasonably and so on. The Secretary of State is required to act reasonably. Perhaps I may refer the noble and learned Lord to those discussions. He can then come back to me if I can give him further detail.

I completely accept the points about behaving reasonably and trying to make the system work appropriately. The noble and learned Lord will know that we have brought it in in order to try to deal with a problem without criminalising employers, but recognising that some perhaps do not do their job properly and are sloppy and those who cannot be bothered need to recognise that a penalty is involved. The majority of employers do not behave in that way; and hence part of what we are seeking to do is to address working with employers to recognise that we all have a bit of a part to play in making sure that the right workforce is operating for business. In a quick snapshot that is the background to the amendments; I am grateful to the noble and learned Lord for giving me the chance to make those remarks.

As the noble Baroness, Lady Anelay knows, I have met Christine and other members of the Chinese community and representatives of the Indian, Pakistani and Bangladeshi restaurant community too. We talked about food a great deal and it was hugely enjoyable. We talked a great deal about the issues of small employers and their concerns. It was not a formal consultation but I am happy for the correspondence to be placed in the public domain. I am not sure whether a record of the meeting was taken, but I have no difficulty with the points from the meeting being made public and I hope that the noble Lord, Lord Avebury, will accept that I will do that in good faith.
 
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I turn to the amendments in the name of the noble Baroness, Lady Anelay. She invited me to talk further about the draft code, around which we had a discussion. It is currently being revised in the light of our discussions in Committee. As soon as I have a new version I will make it available to your Lordships. We took on board the need to be clearer about the way in which the penalties will operate and we recognise the role that employers will play in collaborating when issues arise.

The critical question within Amendment No. 22 is the yellow cards system—as I referred to it before—which the CBI has felt strongly about. The difficulty I have is that it provides a complete excuse not to have recognised the fact that one has not done something that one should have done. I turn to the conversations with the different communities. It was clear to me that they were concerned that what they were being asked to do should not be onerous. I completely agree with that. We do not expect employers to become experts in forgery, nor indeed necessarily to have a great understanding of all the documentation. However, it is reasonable to ask them to look at documents and to check photographs of the person involved. We will be working through the helpline and with the different officers who will be working with them to give support and advice to employers so that they become better at understanding what the documents will do.

We also talked to the community about how frequently one would be expecting to consider documents again. Noble Lords will know from Committee that we discussed 12 months as being the point, regardless of whether the employee had a six-month visa and was going to renew it. We are not expecting them to keep track of individuals in that way, but we think that about once a year is right. In speaking to the community I believe that at the end of the meeting there was great reassurance about the way in which we are seeking to approach the issue and that it is not about trying to catch people out or to make life more difficult. The representatives also spoke about circumstances where they felt it would be better if there was greater clarity and understanding about what they had to do so that they would be clear about the process. They wanted to make sure that they were employing people legally for all the reasons that noble Lords would expect. So we made significant progress in talking through how this measure would work.

The noble Baroness, Lady Anelay, talked about consulting. I agree that we cannot consult people whom we do not know exist. We certainly now have in mind to make sure that the Chinese community and the Bangladeshi, Pakistani and Indian community, particularly around the restaurant business, are consulted. I am grateful again that the late Lord Chan was able to do that for us. They will certainly be part of what will be a consultation. I place on the record that this will be a full, detailed, public consultation on the measures proposed. It will be in accordance with
 
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the Better Regulation Executive's code of practice on consultation. It will last for 12 weeks and responses will be analysed. It will pay particular attention to possible new approaches to the questions that have been consulted on, evidence given on the impact of the proposal and the strength of feeling among particular groups, which in part seeks to deal with the issue that Mr May raised, as the noble Baroness, Lady Anelay, mentioned. I will commit to taking that issue away to discuss with my colleagues in the Home Office, and I will come back to the noble Baroness with copies to other noble Lords of what has been determined.

Once the consultation has taken place, copies will be placed in the Libraries of both your Lordships' House and another place to ensure that they are available to noble Lords as well. I hope that that will be sufficient to enable noble Lords to feel comfortable that we are determined to make sure that employers work collaboratively with us and that the civil penalty side is simply to address the fact that we know there will be circumstances where unfortunately perhaps a few employers do not do that and we need to deal with that properly and efficiently. In Committee and, I hope, this evening, I have made it clear how we will do that and I have indicated that we will obtain more details of the latest code of practice, which will take on board points to be made.

I turn to Amendment No. 23 in the name of my noble friend Lady Turner of Camden. I am sorry that I did not address it properly in Committee, although I sought to do so. My difficulty is that it is in the wrong place, because in this Bill we are trying to deal with illegal working. There are specific issues where we are seeking to deal with illegality that do not apply to those people working legally and who, as my noble friend rightly said—I sensed a great deal of support for her proposals—were people who work legally in the system but are not treated properly. They are not treated properly in part because people think that because they are migrant workers they do not need to be.

Because I am a DCA Minister I am not sure where to take the proposal, except to say that I could not agree more with the sentiments behind it. However, I cannot insert it here in the Bill because the Bill is about illegality and I would not want migrant workers working properly and legally to be mixed up in our minds with those who work illegally. All I can do that might help is to commit to take away the issue and look at it with the appropriate department, which may be the Department for Trade and Industry rather than the Home Office. We can then come back to my noble friend and invite other Minister colleagues to meet her to see what more could be done to address the issue. It is an incredibly important issue but I hope my noble friend will understand that it is not right in this Bill, not least because we do not want to mix up illegality and legality for this important group of people. I hope that I have reassured the noble Baroness, Lady Anelay, and that she will be able to withdraw her amendment.
 
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