§ Lords amendment: No. 9, in page 6, line 2, leave out ("subsection (3)") and insert ("subsections (2A) and (3)")
§ Miss Widdecombe
I beg to move, That this House doth disagree with the Lords in the said amendment.
§ Miss Widdecombe
The amendments would add to the list of those in respect of whom an employer would not 831 be guilty of an offence under clause 8. The new category would be those employed as domestic workers where a police officer, doctor or solicitor had certified that the person had suffered substantial physical abuse or deprivation, or serious economic exploitation, as a result of what is described in Lords amendment No. 11 as "previous bonded employment".
The amendment creates an anomaly. While it would remove from the second employer liability for employing a person not permitted to undertake the work in question, it would not affect the position of the employee, who would still not have permission to work for the new employer. He or she would therefore be either in breach of immigration conditions or an overstayer. The amendments do not, therefore, achieve the intention behind them.
Let me put on record that I fully appreciate and, indeed, share, the genuine concerns that lie behind the amendments. The Government's rejection of them is in no sense a refusal to acknowledge that some employers treat their domestic workers in a thoroughly unacceptable manner, but amendments to the Bill's provisions on illegal working are not the right way in which to address those problems. We must not widen the scope for illegal working. At the same time, we cannot create a category of people who are allowed to change jobs at will. They would acquire a privileged status accorded to no other group of people who come to the United Kingdom to work. That is why we do all that we can to ensure at the pre-entry stage that only those who are willing to accompany their employers here under the domestic working concession are allowed to do so.
The arrangement is that the domestic worker, who must be at least 18 years old, must hold an entry clearance for that purpose on arrival here. When the entry clearance is applied for, the entry clearance officer will interview the domestic worker, with the employer excluded, and try to establish that the domestic worker is satisfied with the terms of employment. He will also ensure that the domestic worker receives and understands a leaflet explaining his or her rights in the UK, especially where to go for help or advice, should abuse of employment follow. The leaflet is available in English, Arabic, Tagalog, Hindi, Urdu, Punjabi, Bengali, Tamil, Thai and Spanish.
Additionally, the employer must give a written undertaking to provide adequate maintenance and accommodation, including a separate bedroom for the domestic worker. He must also set out in writing the main terms and conditions of the employment, a copy of which goes to the domestic worker, who is asked to confirm that he or she agrees to them.
We already make considerable efforts to weed out at the entry clearance stage applications that are backed by unsatisfactory arrangements. We refuse about 600 applications a year because those criteria are not met. However, we are always ready to listen to suggestions on how to improve further the pre-entry arrangements. There is no question of employers already here being allowed to recruit domestic workers direct from overseas. Workers must have been employed for at least one year by the person whom they are accompanying and for at least two years if nothing more than a short visit is involved. That 832 is designed to ensure that there is a genuine, established employer-employee relationship, which both parties wish to continue.
Therefore, while the amendments are well intentioned—I share their intention—they would be defective in effect. They will not eliminate the risk of abuse by employees' original or subsequent employers. The way forward on what, I admit, is a difficult issue is to prevent abuse at the entry clearance stage, or to deal with it where it occurs here through the normal processes of law. In cases of financial or other hardship, as with all persons who are in distress overseas, domestic workers may seek the help of their embassies. That advice is included in the leaflet.
§ Mr. Henderson
I accept that there are some technical difficulties on the definitions in the amendments made in another place, particularly the definition of serious economic exploitation and, probably, the definition of physical abuse. I also accept that that possible loophole would create other difficulties, which might allow persons wrongly to classify themselves as domestic servants and to substantiate that some abuse has taken place.
I accept, therefore, that there are problems in the way in which the Lords amendments are written, but the Government are not on high ground in their response because they have not dealt with the problem of bonded domestic servants who enter this country as visitors as an extension on the visa of the person who is their master or mistress. Under our immigration regulations, those servants have no protection.
At a previous stage of our proceedings, it was argued that we should recognise that some important foreign guests to this country wish to bring with them servants who are attached to their employment, but that servants should also have rights under our immigration law, and that they should be recognised in a category as domestic servants. That was the intention behind Labour Members' amendments to the Immigration Act 1971, which were of course rejected by the House.
The Minister believes that she is able to dispose of this issue with her motion, but she is disposing of it only in procedural terms. The problem still exists and the Government must face up to the fact that young women who enter this country as bonded servants to employers are being physically and sometimes sexually abused and have no protection under our immigration law. Those poor women have little alternative but to grin and bear what is happening to them, lest they be deported from our country, sometimes to face severe difficulties in the country to which they are deported, the risk of which is the reason why they became bonded servants in the first place. I ask the Minister to show compassion and to address the issue in further stages of the Bill.
§ Mr. Alton
We have heard the Minister of State again advance the argument that their lordships' amendments are defective, but, if the principles behind them were accepted, there has been a chance to put them right since they were passed in the other place. That is why I question precisely where the Government are coming from on some of the issues. They have had the chance to put right defective amendments and they have failed to do so. If Lords amendment No. 9 were accepted in its present form, even though it be defective, the Government could put it right between now and when it goes back to the House of Lords in a couple of weeks.
833 In a letter to the Home Secretary supporting the amendment, Kalayaan, otherwise known as Justice for Overseas Domestic Workers, said:If retained the amendment will provide fleeing domestic workers of whom we have interviewed over 1000 since 1992, to consider their position, and it will help to give them time to prepare litigation against their former abusing employers.The letter goes on:Instead of further entrapping her by placing secondary employers under the threat of prosecution, the Government should be seeking urgently to solve the scandal of what Anti-Slavery International has described as modern day slavery.The amendment has a long history. Much to his credit, my noble Friend Lord Hylton, the Cross-Bench peer, has campaigned for many years on the issue. The background is that, in 1981, the Government allowed rich employers coming to the UK to bring their domestic workers, who, tied to one employer, risked deportation if they left that employ. That led to innumerable injustices and to hundreds of instances of exploitation.
Lord Hylton gave a particular example of a Nigerian who wasbrought here direct by Nigerian employers in January 1991. She escaped from them in December 1995. During all that time she received no salary, was continually slapped and beaten by the employers and locked in their house."—[Official Report, House of Lords, 1 July 1996; Vol. 573, c. 1284–85.]He gave many other examples. During that debate, he called for an interdepartmental committee. He has been campaigning for 15 years, highlighting cases such as that of Mrs. Swami and the Kuwaiti princesses, which Members will recall.
The Government will say that they deplore these practices—they have done so again today—yet they do not conduct spot checks to find out what is happening to people, once they have arrived in the UK and become domestic workers. The Government propose no new penalties. They retain a concession that allows 12,000 bonded workers into the country every year and shackles them to their employers. Those workers have no more rights than mediaeval serfs. In a country that remembers the Tolpuddle martyrs and the early battles over trade union and labour laws, and that argues to this day about the social chapter and its protection for workers, it is mildly incongruous that we should be settling for anything less than the protection that any other worker receives in this country, merely because the workers in this case are foreign.
I would rather the so-called concessions were abolished, than keep in place a concession that allows people to abuse, to exploit and to curtail freedom to seek alternative employment. Even by the Government's own misguided lights, this is a denial of free-market forces and instead permits a small group of people to live in shadowy homes, where upstairs-downstairs attitudes hold sway. The Government should urgently examine the Dutch and Canadian systems of protecting domestic workers. They should give Lord Hylton the interdepartmental committee that he has requested. They should have an amnesty for overstaying domestic staff, who inhabit an even darker zone of the unprotected nether regions. They should permit workers who wish to bring civil or criminal cases against employers to stay here and to work until their cases are over.
Even without accepting the amendment:, the Government could provide greatly improved protection against abuse and exploitation by noting on arrival the 834 address to which employers intend to take domestic workers and by carrying out spot checks to ensure that the terms of the contract of employment are observed. Perhaps on arrival workers could be given the telephone number of a 24-hour helpline that would offer advice or help. To date, the Government have promised nothing to replace Lord Hylton's amendment. We should not put up with that negativity and indifference. Before the House decides, I hope that we shall hear from Ministers about what they propose to do to protect this group of people.
§ Sir Patrick Cormack
I am a member of the executive committee of Anti-Slavery International. There is real concern on this issue. I accept that there may be imperfections in Lord Hylton's amendment and logic in the Minister's recommendation to reject it, but we must have some measure. If we cannot have an interdepartmental committee immediately, we should at least have the promise of interdepartmental talks and a promise about the drawing up of clear guidance notes for those who have to deal with people, most of whom are women, who are often subjected to appalling brutality.
As the hon. Member for Liverpool, Mossley Hill (Mr. Alton) said, Lord Hylton has campaigned on this issue for many years from the Cross Benches. This should be entirely a Cross-Bench issue and we should all be concerned about having in our country people who are working under the control of what amounts to an alien regime. We would not for a moment condone certain practices for our own workers. As I have said, there must be interdepartmental discussions on this matter, the possibility of a committee of the type for which Lord Hylton has been campaigning, and the drawing up of clear guidance for all those who deal with these people. In asking us to reject the amendment, the Minister should at least give us those assurances.
§ Ms Glenda Jackson (Hampstead and Highgate)
I agree with everything that has been said by Opposition Members and by the hon. Member for South Staffordshire (Sir P. Cormack). As he said, there is cross-party agreement, except by the Government, on this issue and certainly on the case in my constituency that was brought to my attention. The Government are labouring under a delusion if they regard the people whom we are discussing as employees. Those inevitably rich families who bring bonded servants into the country do not regard them as employees or in many instances even as human. In a case that was brought to my attention, the person was an abused slave.
The Government's argument that the embassies of the nationals concerned offer some protection does not stand. Many employers of those bonded servants are families of great importance and wealth in their own countries and have close associations with embassy officials. In my experience, the embassies invariably take the side of the employer and not that of the bonded servant. If the Government will not listen to Opposition arguments, I hope that they will listen to those by Conservative Members.
§ Miss Widdecombe
I am afraid that I must maintain my resistance to the amendments. However, that does not mean that I underestimate the importance of their intentions. I have said that we are always interested in hearing about additional ways to improve our system so 835 as to give proper protection to people who are caught in this situation. I fully understand that some employees are subjected to physical and sometimes sexual and economic abuse. When that happens, our first duty is to give those people the protection of the law. I do not think that the problem will be solved by simply creating for them a unique situation which does not apply to anybody else coming into the country.
I assure my hon. Friend the Member for South Staffordshire (Sir P. Cormack) that I shall carefully consider his suggestions and those of other hon. Members. I pay tribute to Lord Hylton. He has been to see me and has always been persistent but reasonable on the issue. I assure the House that I am willing to explore further ways forward. The amendments are not the answer.
§ Ms Diane Abbott (Hackney, North and Stoke Newington)
Twice in this short debate, the Minister has said that she does not want to create a special situation for these people. We are arguing that they are already in a special situation because, unlike people in any other category of immigrant or asylum seeker, they are not acting under their free will. That is why we are calling for a different special situation.
§ Miss Widdecombe
If people have not come here voluntarily, are not satisfied with the terms and conditions of their employment and are likely to be exploited, those are clear signs that we have to provide even tighter and surer entry clearance procedures. I have said that I am willing to listen to suggestions on that rather than go down the suggested route.
§ Mr. Banks
The Minister has said that people who are abused, and she gave examples, should have the full protection of the law. What about the proposal that more should be done to inspect the conditions under which they are employed, if employed is an accurate description? After all, the Minister is more than happy to send in the forces to check on illegal immigrants who are working in factories and elsewhere. Why not go into some of those homes to find out what is going on? If that is not done, we cannot take her assurances.
§ Miss Widdecombe
If a complaint is received, proper investigations will be carried out. The answer must lie in good and tight clearance and inspection procedures on the genuineness of the employment.
§ Miss Widdecombe
I have been generous about giving way, but I have said that I will not give way again.
I maintain my resistance to the amendments, but I assure my hon. Friend the Member for South Staffordshire that I will carefully consider what he has said.
§ Lords amendment disagreed to.836
§ Lords amendment: No. 10, in page 6, line 3, leave out from ("employs") to ("as") in line 11 and insert
§ ("a person subject to immigration control ("the employee") who has attained the age of 16, the employer shall be guilty of an offence if—
- (a) the employee has not been granted leave to enter or remain in the United Kingdom; or
- (b) the employee's leave is not valid and subsisting, or is subject to a condition precluding him from taking up the employment,
§ Mr. Kirkhope
The amendment responds to concerns that were expressed during discussion of clause 8 in another place about the complexity of its wording. It also responds to unease about the use of the word "immigrant" in the Bill. The amendment does not in any way change the substance of the clause but, as amended, the clause will be easier for employers and others to understand. While we shall, of course, provide employers with guidance, the Government agree that it is desirable for the legislative provision itself to be as straightforward as possible.
As I have said, the amendment removes the word "immigrant" from the clause. The Government made it clear during debate in the House and in the other place that the term was simply a neutral one to refer to a person who was subject to immigration control and that it did not in any way affect anyone's immigration status. Nevertheless, we accepted that, however irrationally, the word "immigrant" is perceived by some as having a pejorative connotation and that its use could give rise to anxieties among minority communities. We also recognise that the word might be seen by the layman as referring to anyone who has come here from abroad to live rather than only to a person who is subject to immigration control under the Immigration Act 1971.
For those reasons, the Government tabled a series of amendments, including this one, to remove the word "immigrant" and replace it with the phraseperson subject to immigration control".We are satisfied that the phrase simply reflects the scope of the Bill. It is a technical definition with no pejorative connotations at all.
Amendments Nos. 12 and 15 will make it clear that an employer will not have a defence if he knows that an employee does not have permission to work in the United Kingdom. I gave notice of our intention to consider whether it would be appropriate to table an amendment to that effect before the Bill left the House. That consideration led us to the conclusion that we could not allow an employer to rely on one of the specified documents to provide him with a statutory defence if he knew that an employee was not entitled to work in the United Kingdom. To do so would be to leave a loophole that could be exploited by racketeers and by unscrupulous employers.
837 If clause 8 is not to be amended in this way, it is likely that it will not be possible to prosecute successfully at least some of the employers known to employ illegal workers on a regular basis. There would, therefore, be a risk that the effectiveness of the new offence could be limited in the cases of some of the employers about whom we are particularly concerned.
I hasten to say that amendment No. 10 will not in any way increase the burden on legitimate employers. Employers will be additionally liable only if they have specific actual knowledge that renders a defence invalid. It would be for the prosecution to prove that the employer had such knowledge. I know that the Confederation of British Industry, among other organisations, has written to hon. Members to express its concerns. I hope that my remarks are of comfort to those organisations.
Those attempting to comply with the legislation in good faith will never have such knowledge, and so will be able to have complete confidence that they have established a satisfactory defence. We shall of course ensure that the guidance that we issue makes the position abundantly clear.
Lords amendment Nos. 13 and 14 simply make some minor but important adjustments to clause 8. Lords amendment No. 13 removes from subsection (3) the requirement that an employer must prove that the document he inspected to provide himself with a defence was produced to establish that the employment would not constitute an offence. On consideration, we took the view that that was not a necessary requirement. The important elements are that the document was produced and, when necessary, copied. Furthermore, while in many cases the document will have been produced simply because of the requirements of the clause, that will not necessarily be the case. A P45, for example, will continue to be produced principally for purposes related to income tax.
Lords amendment No. 14 is a minor drafting amendment that makes it clear that employers will be expected to prove only that a document that was produced to them "appeared" to be one of the specified documents. The previous 1 ext specified that the documentwas of a description specified.Theoretically, that would not cover a forged document. We made it clear in the consultation document that employers would be expected to satisfy themselves only that a document appeared to be one of those specified. The amendment ensures that there is no doubt about what is expected of employers on that point.
Lords amendment No. 16 introduces into clause 8 a definition of the term "employ". That definition makes it clear that "employment" means employment under a contract of service or apprenticeship. The intention is to make it clear that the employed, but not the self-employed. should come within the scope of clause 8.
As the House is aware, clause 8 will make it an offence to employ a person aged 16 or over who does not have permission to live and work in the United Kingdom. However, the term "employ" was not originally defined. That was consistent with the approach taken in the Immigration Act 1971 and in the immigration rules, where no attempt was made to define what is meant by "employment". However, if "employ" is not defined in clause 8, it will, finally, be for magistrates courts to decide the scope of that term for the purposes of clause 8.
838 Some respondents to our consultation document made the point that we should define in the Bill what is meant by the term "employ". Having considered the matter, we agreed that it would be helpful to have such a definition, as that would make it easier to give clear guidance to employers about the nature of their obligations. The term is of course defined in other legislation affecting employment.
The most common definition, and the one that it seemed most appropriate us for use in the context of this new offence, relates to employment under acontract of service or of apprenticeship.That is a well-established term, and there is a considerable body of case law that explores the circumstances in which such a contract would be taken to exist.
A person who is self-employed works under a contract for services and would, quite properly, not be covered by the terms of clause 8.
§ Mr. Henderson
I think that Lords amendment Nos. 13 and 14 constitute a minor improvement. Employers will welcome the fact that they will have a defence if they believed that documents that were presented were genuine, although subsequently they were shown not to be. However, there is generally no substantial improvement in clause 8 and in how it is affected by the other amendments. It is not only one of the most unacceptable parts of the Bill, it is one of the most unacceptable aspects of any legislation that Parliament has considered. Not only workers and the general public but employers will regard its provisions as racist and divisive because they separate people based on the colour of their faces and on the language that they speak.
Furthermore, as Ministers know, although employers' organisations have reluctantly conceded that some aspects of clause 8 are less unacceptable than they were, there is still overwhelming opposition to it. In short, clause 8 is bureaucratic, draconian, unpopular and unnecessary, and—as Ministers know—it will not work.
§ Mr. John Fraser (Norwood)
It is quite right that employers should have a defence if they have seen a national insurance number or a birth certificate. That would clear them, and they would know that no offence has been committed. However, with the introduction of Lords amendment No. 15—coupled with the fact that exemptions for employers are not in statute but only in regulations, which the Minister will make—there is a very good chance that the situation will turn out nothing like it has been portrayed to the House today.
For example, the Minister said that production of a national insurance number would provide clearance for an employer to employ someone, and that that would be quite in order. The Minister knows perfectly well that, if someone comes to the United Kingdom as a Commonwealth holidaymaker for two years he will be given a national insurance number, but that does not guarantee that he will be entitled to work after the two years have expired, although he will still have the number. Having a number also does not allow him to work full time all the time. In those circumstances, either the Minister will have to change the regulations, or the employer, as a result of Lords amendment No. 15, will be at risk of committing an offence.
839 Let us take another example. Quite often, students are given permission to work during vacations if they have a letter from their college to present to their local employment office. They will also be given a national insurance number. However, it is impossible to determine limitations on their ability to work simply from a national insurance number.
There are similar provisions for students' spouses who applied before the 1995 immigration rules came into force. Those spouses are allowed to work, and they receive national insurance numbers. Since the 1995 rules came into force, however, only spouses married to students with studentships of more than 12 months are given leave to work.
So there is a mishmash of circumstances in which people will be given national insurance numbers, and it does not automatically follow that employment is unrestricted because someone has a national insurance number. There are two possible consequences of that. The first risk is that perfectly innocent employers who have not colluded with an employee may be committing an offence. The second risk is that the Minister will spot the problem and then change the regulations.
The Minister stated in the consultation document that it will be sufficient if an employee produces a birth certificate. The Minister knows that, as a result of the British Nationality Act 1981—which came into force on 21 December 1983—birth in the United Kingdom does not automatically confer United Kingdom nationality. We have only two years to go before those born before 1 January 1984 will come on to the labour market with birth certificates, but not necessarily with United Kingdom citizenship or with an entitlement to work. I think that there could be—I do not say that there necessarily is—a hidden agenda.
Perfectly innocent employers are perplexed at the possibility that they may commit an offence when they learn—perhaps half way through someone's employment—that they have employed a Commonwealth holidaymaker, for example. It would be much better to have a clear, unambiguous exemption for employers.
If the Minister wants to amend the Bill, he should amend it so that it applies only to employers who collude in the commission of an offence, ensuring that the real rogues are caught and not those who have quite enough to do in getting on with their jobs and in employing people.
§ Lords amendment agreed to.
§ Lords amendment No. 11 disagreed to.
§ Lords amendment's Nos. 12 to 23 agreed to.