("In the 1971 Act, after section 25(2), insert—
(2A) If any person ("the employer") is employing or has within the preceding 3 months employed any person who is an illegal entrant or a person who has committed an offence under section 24(1)(b) or (c), an immigration officer may serve a notice on the employer, in accordance with regulations made by the Secretary of State.
§ (2B) Any employer who, within 12 months of being served with a notice under subsection (2A), employs any person who is an illegal entrant or a person who has committed an offence under section 24(1)(b) or (c), shall be guilty of an offence punishable on summary conviction with a fine of not more than level 5 on the standard scale or with imprisonment for not more than six months or with both.
§ (2C) It shall be a defence to proceedings under subsection (2B) above to prove that in respect of any person employed alter service of the notice under subsection (2A), before the employment began the employer made such enquiries or inspected such documents as were reasonable in the circumstances to satisfy himself that to employ the person would not contravene subsection (2B).799
§ (2D) Where an offence under subsection (2B) committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to the neglect on the part of—
- (a) any director, manager, secretary or other similar officer of the body corporate; or
- (b) any person who was purporting to act in any such capacity,
he as well as the body corporate shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
§ (2E) Where the affairs of a body corporate are managed by its members, subsection (2D) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
§ (2F) In this section, "employ" means employ under a contract of service or apprenticeship, whether express or implied and (if it is express) whether it is oral or written, and "employment" shall be construed accordingly."").
§ The noble Lord said: My Lords, I introduced this amendment in Committee and was given some assurance by the Minister that he would take the matter away, look at it and see whether we could come to an agreement on its form. I am sorry to say that nothing of that sort has happened. Effectively, my purpose was to assist the Government as regards precisely what they said while in opposition. I distinctly remember the Labour Party saying, when in opposition, that it would repeal Section 8 of the Immigration Act 1971. I was simply trying to assist them in this particular exercise.
§ Perhaps I may explain the purpose of the amendment. It is not designed to take away any powers that the Government have now. In fact, there arc now much wider powers in terms of the powers of immigration officers. We are trying to ensure that the powers they use do not in any way harm good community relations in this country. The purpose is simply to amend the Immigration Act 1971 and put into statutory form the criminal sanctions on the employment of illegal workers as they are being applied by the Government at present.
§ Why do we think that it is necessary to do so and what would the proposed new clause do? The new clause would provide a two-stage process. In the first stage, an immigration officer would be given specific powers to serve a notice in a prescribed form on an employer where the officer has reasonable grounds to believe that the employer is employing an illegal entrant—an overstayer, or a person in breach of his or her conditions of leave. Of course, the power is supplementary to powers that may be exercised directly in relation to any offence committed by the employee. The power to serve a notice is discretionary and consistent with current policy. It is anticipated that immigration officers will serve notices on those employers whose employment practices are of particular concern to the Immigration Service, notably those who appear to be involved in large-scale exploitation of illegal workers.
§ The basic defect of Section 8, which is now incorporated in the Bill, is that, by imposing a threat of prosecution on all employers and by offering a statutory defence that was acknowledged to be an 800 additional burden to employers, it is an invitation to discriminate on racial grounds. Rather than become involved in checking documents for every new employee, employers are easily tempted to avoid recruiting anyone whose appearance or accent suggests that he or she may be foreign.
§ The forecast made from these Benches by my noble friend Lord Thurso, as early as 1996 when we debated Section 8 in this House—namely, that some employers would simply "go white" to avoid prosecution—has already been realised in some cases, while, in others, employers have introduced their own arbitrary restrictions, based on a misunderstanding of immigration law, and have excluded jobseekers who are lawfully able to work in this country.
§ The new offence has been drafted to meet the Government's reluctance to accept the recommendation of the CBI, the Federation of Small Businesses, the Better Regulation Task Force, the TUC and the Commission for Racial Equality. It would shift the balance of responsibility to the Immigration Service; it would put the responsibility on employers to change their practice once there is evidence that they are permitting people who have committed immigration offences to work for them. It would also remove the threat of prosecution—and either the burden of elaborate checking or the inducement to discriminate—from well-intentioned employers. As it is proposed to repeal Section 8, Clause 18, which seeks to modify the discriminatory impact of Section 8, would not be required and should be deleted from the Bill. I beg to move.
§ Lord Sheppard of Liverpool
My Lords, I hope that my noble friend the Minister will take rather seriously what the noble Lord, Lord Dholakia, has said. At various moments we have expressed concerns in your Lordships' House about the effect of immigration and asylum law on race relations. There is nothing that has touched me more sharply than this particular Section 8, about which I spoke on Second Reading. I said that I wished it was not there. I do not believe that the Government's Clause 18 actually removes the sting.
§ If we want to know where bad race relations bite as seriously as anywhere, the answer is in employment. The temptation for an employer to avoid all the hassle of vigorous interviewing, looking at people beyond his normal circle of staff and perhaps taking on someone who has an unfamiliar name or an unfamiliar face, is a great one. It is hard to charge someone with an omission when that omission is the fact that he has not vigorously recruited in the whole field and has limited his recruiting to where he feels he will be safe.
§ Employers have been exhorted over and over again by race relations legislation and by many attempts to produce codes of practice. I ask my noble friend the Minister to tell us what he thinks this new code of practice is likely to achieve that others have failed to achieve. I believe that the noble Lord, Lord Dholakia, has it the right way round. If an immigration officer has suspicions, he should serve a notice to which the employer must respond. But to make employers carry 801 out such research will simply prove to be a disincentive to them to take on workers in fields where we very much want them to widen their recruiting.
§ 6.30 p.m.
§ Lord Williams of Mostyn
My Lords, the noble Lord, Lord Dholakia, is quite right; when he introduced his proposal at an earlier stage I said that we would take it away and think about it carefully. That has been done. I hope that he has received a letter from my colleague, Mrs Roche, dated 12th October, which sets out fully the nature of the consultation that we undertook.
Originally the amendment of the noble Lord, Lord Dholakia—this was a critical difference—differed from the present one. The new offence under the present amendment of the noble Lord, Lord Dholakia, would be in addition to the existing Section 8 of the Asylum and Immigration Act 1996. I am not sure whether the noble Lord intended that. I thought that his purpose originally—I understood that this evening—was to repeal Section 8. We consulted quite widely through the summer. Those consultations included the CBI, the TUC, the Commission for Racial Equality, the Better Regulation Task Force, the Federation of Recruitment and Employment Services, the Construction Confederation, the Federation of Small Businesses, the Cleaning and Support Services Association and of course colleagues within government. The proposals of the noble Lord, Lord Dholakia, were supported by some but not by others. It was not an easy conclusion to reach.
The amendment outlined a warning notice procedure, but under the proposed arrangements there would be no obligation that a recipient could be warned of breaching. Without any expectation that employers would carry out employability checks, employers could employ illegal workers with impunity until served a warning notice. In other words, the message would be, "Employ illegal workers until you are found out". As Mrs Roche's letter to the noble Lord pointed out, we considered whether or not we could construct a hybrid amendment retaining the basic thrust of Section 8 but building into it elements of the noble Lord's proposals specifically to target more carefully—or in a more focused way—those in the business of exploiting the labour of those who are here illegally. This further alternative has not been supported either by the TUC or the CBI or, notably, the CRE.
The measures originally were designed to combat widescale abuse and not to penalise small employers who may have made a simple mistake. Where appropriate, offending employers were warned in the first instance rather than prosecuted, but no one can pretend now that the provision is new. The evidence we have suggests that most employers are aware of what is required of them. There has been one successful prosecution and a number are in prospect. The recent prosecution involved the illegal employment of a number of people in the horticultural industry. In many cases—I do not speak of any in the pipeline—people are being exploited in a harsh, abusive way. 802 This is one protection for them. I believe that more cases will be brought to court to send a strong signal to those who are alleged to be racketeers that the Government are determined to see this kind of abuse tackled.
My noble friend Lord Sheppard asked what benefit a new code of practice would bring. We believe that it is able to work in a tighter, more focused way so that potential employers have their responsibilities properly in mind. We had to try to balance the maintenance of a firm line on the problem of illegal immigration on the one hand with the avoidance of the scope for discriminatory practice on the other. We believe that Section 8 can work properly if it is allowed to do so. However, we do not want this to be at the expense of good community relations.
That brings me to the point of Clause 18, the purpose and intention of which is to supplement the provisions of Section 8. We have been concerned at reports from the CRE that some employers may be making more checks than the legislation requires. We have had to face up to that.
Clause 18 therefore is aimed at employers and their duty to avoid racial discrimination in their recruitment practices when seeking to secure the statutory defence under Section 8. It places the Secretary of State—I return to the question of my noble friend Lord Sheppard—under a statutory duty to issue a code of practice containing measures to ensure that employers do not breach provisions of the Race Relations Act 1976 by making more checks than are required.
Some will perhaps take a contrary view to that expressed by my noble friend Lord Sheppard. They will feel that this is an additional cost to business and that another code of practice will add little. It is a difficult balance, but we think that we have it right. For the reasons I have set out in a little detail—I am bound to defer to the helpful and thoughtful way in which the noble Lord, Lord Dholakia, has approached this matter—I repeat that I said that we would listen carefully and consult widely. We have done so. I do not pretend that it was an easy conclusion to reach. I am sorry that the noble Lord will be disappointed but I do not think he can feel that I have not fulfilled my undertaking despite the fact that we came to the policy conclusion in the end that our way was better than his. I hope that that explanation will enable the noble Lord neither to press his challenge to Clause 18 nor to insist on his amendment.
§ Lord Dholakia
My Lords, I am grateful to the Minister for his explanation. I am well aware of the considerable consultation he has undertaken. However, there is still a difference of opinion on this matter. I am grateful for the comments of the noble Lord, Lord Sheppard, on this matter. Although I shall study carefully the effect of the code of practice that the Minister said will be issued, the end product of all this, however, is that a large number of people are still being subjected to inconvenience and are suspected of being illegal immigrants during "fishing raids". There are often big headlines in the newspapers about such "fishing raids" leading to the arrest of illegal 803 immigrant workers although the actual numbers involved are rarely the same as those reported originally as having been arrested. That creates an unhealthy situation. I am grateful for the Minister's comments. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 18 [Restrictions on employment: code of practice]:
§ [Amendment No. 19 not moved.]
§ Clause 20 [Duty to report suspicious marriages]:
Lord Bassam of Brighton moved Amendment No. 20:
Page 14, leave out lines 41 and 42 and insert ("without delay and in such form and manner").
§ The noble Lord said: My Lords, in moving Amendment No. 20, I should like to speak also to Amendments Nos. 21, 22, 23 and 24. This group of amendments relates to Clause 20 which makes provision for registrars to report suspicious marriages to the Home Office. It had originally been intended that regulations would require registrars to make reports within two working days if, when they take a notice of marriage, or before, during or after the ceremony, they have reasonable grounds for suspecting that the marriage will be, or is, a sham.
§ It is essential that registrars prepare and send reports while the facts of each case, and their reasonable suspicions, are fresh in their minds. Amendment No. 20, which requires registrars to make reports "without delay", will ensure that this occurs and will achieve the necessary degree of flexibility.
§ A commitment was made in Committee to bring forward this amendment. It also seeks to satisfy the concerns of the Select Committee on Delegated Powers and Deregulation. On reflection, Amendments Nos. 21 and 22 would be too restrictive and may cause practical difficulties for some registrars, particularly those who work only a few days each week. Conversely, registrars in larger districts would be expected to make reports as soon as possible. The wording of Amendment No. 20 is preferable in our view because it requires registrars to make returns "without delay". This recognises the need for a flexible approach to the reporting arrangements to reflect the practicalities of delivering the local registration service. I hope that, in the light of this, the noble Baroness, Lady Williams of Crosby, and the noble Lord, Lord Cope, will agree to withdraw Amendments Nos. 21 and 22. I therefore commend Amendment No. 20 to the House.
§ Regulations provided for in the Bill set out the form and manner of reports which registrars will make to the Home Office. It is proposed that these include details of the couple's name, age, address, details of any documents produced, the date and place of marriage, and the registrar's reasons for suspecting the marriage to be a sham. It is also intended that information about the duty to report sham marriages will be made available at registry offices.804
§ I believe that there would be obvious disadvantages in informing the couple that a report has been made which would be the effect of the Opposition's Amendment No. 23. Almost certainly, registrars would feel constrained in setting out their reasonable suspicions; and there might be a reluctance to comply with the duty to report, with a likely consequential under-reporting of suspected sham marriages. It must also be recognised that the duty to be placed on registrars is to report their reasonable suspicions. It will be for the Home Office to investigate individual cases in the light of those suspicions and the full facts of the case. In some instances no action may be taken following the receipt of a report. I am sure that other reports will reveal the existence of sham marriage rackets that the Home Office will wish to investigate. Giving couples and racketeers advance notice of such an investigation would negate the underlying purpose of the making of reports by registrars. For that reason, we cannot accept those amendments.
§ Finally, I turn to Amendment No. 24. The noble Lord, Lord Dholakia, tabled a similar amendment at the Committee stage which, after discussion, was withdrawn. As I understand it, his concern is to ensure that the duty to report sham marriages does not reintroduce the "primary purpose" rule in another guise.
§ The primary purpose rule, which required applicants to prove that the primary purpose of their marriage was not to obtain admission to the United Kingdom, was widely considered to be arbitrary, ineffective and unfair as it caught genuine couples. In line with our manifesto commitment, we abolished the rule on 5th June 1997. We have no intention of reinstating it by another route. However, there is a legitimate expectation that where an individual seeks to remain in the United Kingdom on the basis of marriage, that marriage must be genuine. The aim of this provision of the Bill is to tackle abuse by those who are prepared to enter into a sham marriage in order to secure an immigration advantage.
§ The purpose of Clause 20 is to impose a duty on registrars to report all marriages where there are reasonable grounds to suspect that they are being contracted for immigration purposes. Registrars will be provided with detailed guidance in this regard and will take into account only factors obtained by direct observation or questioning related to the preliminaries of the marriage. They will not make immigration-related inquiries, nor will they question couples about the motives for their marriage.
§ Registrars therefore will not be in a position to make an assessment as to whether a marriage might be entered into solely for the purpose of securing an immigration advantage; nor would we wish them to do so. This is a consideration rightly reserved for immigration officials.
§ Once a registrar has reported the grounds for his or her suspicions, it will be for the Immigration Service to consider the report in conjunction with all the other facts relating to an individual's circumstances. Where an application is made for leave to remain in the 805 United Kingdom on the basis of a marriage which has been reported as suspicious, consideration will be given to all the facts of the case, including evidence of the subsisting nature of the marriage. I appreciate the noble Lord's reason for raising this point, but I ask the House to reject his amendment. I beg to move Amendment No. 20.
§ The Deputy Speaker (Lord Brougham and Vaux)
My Lords, I must advise the House that if Amendment No. 20 is agreed to, I cannot call Amendment No. 21.
§ Lord Cope of Berkeley
My Lords, the amendment shows how difficult it is to help the Government. In Committee, I moved an amendment to this clause which suggested that the registrar of marriages should have five days to deliver up this information. The noble and learned Lord Williams—he was not learned at that point; he has become learned since—said that the Government thought two days was the correct period of time. I thought that I would try and help and put down two days for the Report stage, which I did. It turns out that the noble Lord, Lord Bassam, has changed his mind or the Government have changed their mind. Now we have "without delay" instead. I do not consider that quite as satisfactory as imposing a limit. However, I accept that there are some part-time registrars— there were some in my constituency when I was a Member of another place—and it is perhaps better therefore to say "without delay". I shall not pursue the amendment standing in my name.
§ 6.45 p.m.
§ Lord Dholakia
My Lords, I wish to speak to the amendment, particularly in relation to the very small amendment I have tabled. My amendment is to ensure that only serious allegations about sham marriages are made to the Home Office.
The amendment is slightly different to the one I proposed in Committee. I accept that there is no intention on the part of the Government to introduce the primary purpose rule through other means. That is not in dispute. However, there are always a variety of reasons for a marriage. For instance, when one of the parties is in the UK subject to immigration control and the couple want to be together, that party may not qualify for further permission to stay—because a course of study has come to an end, for example—and they may decide to marry sooner rather than later. This may be in breach of the immigration regulations but by no stretch of the imagination would that marriage be a sham. One of its purposes might be to avoid the effect of the immigration rule which requires a student to leave at the end of a particular course.
The Government still have not answered the question I raised at the Committee stage. They have failed to address in this clause the issue of discrimination contrary to the ECHR in that it does not apply to marriage in the Church of England and the Church in Wales. The Minister's argument at that time was that there was no evidence of abuse in such marriages. But the only evidence is the report of registrars to the Home Office. Anglican ministers are 806 not asked to report. The argument therefore is entirely circular and illogical. I hope that we will talk solely about sham marriages rather than marriages which are suspected of being sham without any substance whatever.
§ The Earl of Sandwich
My Lords, I wish to speak briefly to Amendment No. 23, which stands in my name. The noble Baroness, Lady Williams, raised in Committee the question of the investigative role of registrars. I remain concerned. Many of us are still concerned about the dual purpose of registrars. Is it not quite inappropriate to ask registrars, when they are explaining the importance of a marriage to a couple, to investigate and report back on their conversations? I know that we have had this debate but it should be registered that some people are concerned still about this issue. Surely it is more appropriate for an immigration officer than for a registrar.
Much of the conversation in Committee was about simultaneously reporting to the couple. This is a small point about information being given to the couple about what is being passed on. In this new amendment we have made that subsequent to the interview and within a reasonable time. It meets the Government's point that simultaneous reporting might interfere with the proceedings, as the noble Lord said. It is not the contents but the fact of the report that we are concerned about. I believe that this is a small compromise amendment the Government could take on.
§ Baroness Williams of Crosby
My Lords, the noble Earl, Lord Sandwich, has spoken to this amendment in his usual extremely reasonable and, if I may so, moderate way. My name is associated with the amendment and I want to put the case a little more strongly.
The noble Earl made the point—he is absolutely right—that we have amended our amendment to take into account the point made by the noble Lord, Lord Bassam, which was also made in Committee, that advance notice should not be given to the couple. We understand that they might decide to do a moonlight flit or marry somewhere mysterious, such as the Cayman Islands. Of course, we are not in the business of trying to encourage sham marriages, but we are profoundly concerned about letting the legislation go ahead with no requirement that at any point should the couple be informed that the registrar has passed on his suspicions about them.
Perhaps I may explain briefly why. The noble Lord, Lord Bassam, said that he felt that that might inhibit registrars in giving the information in the first place. It seems to me that that problem could be overcome by the registrar making it absolutely plain when he saw any couple that he was under a legal obligation to report the matter if he believed the marriage to be a sham; he would cover himself in advance.
However, I am much more deeply concerned about the principle that a report, which can involve people in very substantial consequences, may be given without their having any idea that that has happened and, 807 therefore, without their having any ability to respond to it. Let me put it in very tough terms. For several years, from 1990 to 1996, I worked in central and eastern Europe. One of the most disturbing characteristics was that the secret police never had to inform anyone about any charge that was made or any criminal action that was to be taken; therefore no possible defence existed.
I am not drawing a parallel between the two situations—it would be quite unreasonable to do so—but for me at least, and I would have thought for many noble Lords, the line has to be drawn with every possible definition that can be drawn. When we bring a criminal action against someone we insist—and rightly so—that the police inform him of the action they are going to take as soon as they have enough evidence to make an arrest. Surely, it is not unreasonable to say that couples who may be charged in a way that may end their marriage or lead to their deportation should at least have the right to prepare a defence against the charge made.
As the noble Earl, Lord Sandwich, said, we are not asking for advance notice. We take the Minister's point on that. However, the Government should reconsider circumstances where the couple will receive no information at all. They then cannot prepare what might be a convincing defence. If I may say so, for a country like Britain to allow legislation to appear on the statute book, however minor it may seem, where people can be accused of a grave offence and not know that they have been accused, would be to place a foot into an opening that might lead to very undesirable consequences. I beg the Government to think again.
§ The Lord Bishop of Oxford
My Lords, the right reverend Prelate the Bishop of Southwark has had to dash down the river to take a service in his cathedral. He has asked me to speak on his behalf as well as on my own in support of the amendment of the noble Lord, Lord Dholakia.
We support the amendment because of the injustice which might otherwise be done to those communities such as the Asian community in Leicester where arranged marriage is so common. Often it takes place between a young person in this country and a friend of the extended family overseas. In those circumstances, it would be easy for a registrar who was not familiar with the different cultural norms to leap to the conclusion that the proposed marriage was a sham, entered into to avoid immigration restrictions.
The fact is that a marriage may have many motives, and although I am not so naive as to suggest that arranged marriages are without problems, it is also obvious that there are many examples among our fellow citizens of extremely happy, stable and loving marriages of heart and soul, emerging from what might have seemed an unpromising arrangement.
Mixed motives are present in all walks of life, and neither this House nor the Church is immune from them. I urge noble Lords to respect the mixed nature of all human motives and to accept that unless a 808 marriage can be shown to be contracted solely for immigration purposes—Amendment No. 24, tabled in the name of the noble Lord, Lord Dholakia seeks to insert the word "solely"—it is as likely to be as sincere as any other human act. I very much hope that the Minister will be able to accept the amendment.
§ Lord Hylton
My Lords, I am glad that the right reverend Prelate the Bishop of Oxford has touched on the matter of arranged marriages. I believe I also mentioned that point in Committee, although it seems a long time since that stage.
Like the right reverend Prelate, I acknowledge and accept that many arranged marriages work out very well in practice and prove to be happy and successful. Nevertheless, we are faced with a situation where marriages may be fixed in advance over thousands of miles' distance between people who may have never, or hardly ever, seen each other. For that reason, I believe that it is important that registrars should satisfy themselves that consent has been freely given by both parties. That is even more important where one of the parties is under the age of 18 and, technically speaking, still a child.
Are the Government able to comment on that point now? I realise that that may be moving a little beyond the scope of the Bill, but it is an important point and one that bears directly on human rights and on the likelihood of success of marriages arranged between families.
§ Lord Bassam of Brighton
My Lords, I have listened carefully to the comments of noble Lords, and to those of the right reverend Prelate the Bishop of Oxford on arranged marriages. I shall take advice on that point.
We must examine the situation that will confront the registrar in his or her office and consider the matter in practical terms. I think the view is generally shared that registrars will need to adopt a pragmatic approach. We are not asking registrars to conduct an in-depth investigation. We are asking simply that they pass on their suspicions. This is not a matter of charges being laid or prosecutions being brought. Registrars are to act proportionate to the situation they see in front of them. I do not believe that noble Lords would condone in any shape or form sham marriages, because clearly that is not the cause of this debate.
Noble Lords have expressed understandable concerns about the proprieties of this matter. Of course we do not wish to blunder into what may be a highly sensitive situation. We think we have the balance right, and that is the reason for our sensible amendment which we believe is helpful, despite having had so much help from the noble Lord, Lord Cope, in this matter. The noble Lord has been extremely obliging in his comments today.
The noble Lord, Lord Dholakia, asked that we should insert the word "solely". We think that that would make it extremely difficult for registrars to operate effectively, and it would act as a disincentive to properly report those situations where they have reasonable suspicions. As I said earlier, where there are 809 reasonable suspicions it will not be for the registrar to intervene. They will not carry out the investigation. That will be for immigration officers who, I am sure, will abide by the proper rules in responding to difficult situations where they have to question those suspected of indulging in sham marriages to get around the immigration legislation.
On the point raised by the noble Baroness, Lady Williams, we believe that it may be more distressing for a couple to be told that such a report had been made. It would be far better for immigration officers to deal with any concerns directly with the couple involved. That would be a better way of dealing with the matter.
§ Baroness Williams of Crosby
My Lords, I am grateful to the Minister for giving way. In his earlier speech, he mentioned "practical considerations". Before we move on from the point, I should like to put a further practical consideration to him. Let us say that, subsequent to conducting a marriage, a registrar writes to the couple to say that he has doubts about it. He does not have to meet the couple; he simply writes to them to report that he is of the view that the marriage may not be genuine. That would enable the couple to consider whether there is evidence they can bring to bear before an immigration officer questions them.
That would meet our concern that the immigration officer will have to reach a conclusion on the basis of having no knowledge of evidence on one side unless he can receive from the couple evidence that theirs is a genuine and not a sham marriage. Will the Minister therefore look practically at the possibility of providing for a letter to be sent by the registrar to the couple saying something along the lines of, "I am not convinced of the bona fides of your marriage?".
§ Lord Bassam of Brighton
My Lords, I am grateful to the noble Baroness. She has reiterated a point that she made firmly earlier. As I said, that would place an unfortunate burden on the registrar. We genuinely feel that it would act as a disincentive to him or her to properly fulfil the duties as set out in the amendment, which, in its effect, broadly has the agreement of your Lordships' House. We rely on the argument that we believe that it is proper and more appropriate for the immigration officer to deal with issues which the couple may raise, having been confronted with the possibility that they have entered into a sham marriage. We believe that our argument has force and conviction.
§ Lord Lester of Herne Hill
My Lords, I am puzzled by the answer the Minister has given. Can he clarify the following? Clause 20 requires the registrar to have,reasonable grounds for suspecting that the marriage will be a sham marriage".If the couple are not to be informed that there is a suspicion about their marriage, then I do not understand the point of inserting the word "reasonable" here. What quality control will there be and who would deal with a registrar who reported a 810 matter without there being any reasonable ground for suspicion? I do not understand that part of the Minister's answer.
§ 7 p.m.
§ Lord Bassam of Brighton
My Lords, we have to trust the good sense of the registrars. Registrars are very experienced. They deal with marriages as an every day part of their working lives. It would not be unreasonable to rely on their good judgment that they may have reasonable grounds. That is an important point and it is one on which, I suggest to the noble Lord, Lord Lester, it is worth reflecting.
We are content with our amendment. We believe that it satisfies the commitment we gave earlier. I ask the House to reject the other amendments because of their various imperfections and the difficulties in which they would place us. We understand that good advice and guidance will be given to the registrars so that they will be able better to perfect their judgments. I believe that we can rely on their good sense in these circumstances. The clause is important to achieve an effect which, in general terms, the House has approved in the past.
§ On Question, amendment agreed to.
§ The Deputy Speaker (Baroness Turner of Camden)
My Lords, I cannot call Amendment No. 21 due to pre-emption.
§ [Amendment No. 21 not moved.]
§ [Amendments Nos. 22 to 24 not moved]
§ Clause 21 [Provision of facilities for immigration control at ports]:
Lord Cope of Berkeley moved Amendment No. 25:
Page 15, line 19, leave out ("free of charge") and insert ("at cost price").
§ The noble Lord said: My Lords, as I am allowed to speak only once I shall, in moving this amendment, speak also to Amendments Nos. 26, 27 and 27A, which are grouped with it.
§ Lord Hacking
My Lords, I intend to move Amendment No. 27A separately. It relates to Clause 22, whereas the noble Lord's amendments all relate to Clause 21.
§ Lord Cope of Berkeley
My Lords, in that case, shall not speak to Amendment No. 27A at this point. I shall in any case speak rather briefly because I am aware that other noble Lords have been much closer to this matter than I have myself.
There has been considerable consultation on this subject between the Home Office and the port representatives. The subject concerns what facilities a port or airport should be obliged to supply to the immigration authorities. The ports are not suggesting that they should not supply any facilities. However, at the same time they see that sweeping powers are being taken in this clause to require them to supply all kinds of facilities.
811 It is not clear to me that the clause would limit the Secretary of State and the Immigration Service should it require sufficient accommodation to house the whole Immigration Service. Under the clause as drafted, the Immigration Service might conceivably move its headquarters and everything else to a suitable port. It would then occupy an enormous amount of space entirely free of charge. Amendment No. 25 addresses the question of cost. The Immigration Service might also decide to put in one port an area headquarters to cover several ports in that county, area or district of the country, and might require space for that.
This seems to be an extremely wide power, particularly as the Secretary of State and the Immigration Service will not be paying any money for these facilities. The facilities may take up valuable space that the port would otherwise be able to use not only for its own purposes but, as is nowadays the habit, to let out for all kinds of expensive shops. A great deal of the income of airports and some of the income of seaports comes from the letting of retail premises of one kind or another.
Another specific question is that of car parking. Many ports and airports are extremely pushed for car parking space. I understand that in discussions between officials and representatives of the ports it was suggested that no car parking space will be required under these provisions. If that is so, it would at the very least be a good thing if the Minister could say so to the House and we would then have it on the record that the Secretary of State would not use these powers to require space for car parking. If he cannot not do so, we shall wonder why he is not prepared to do that and whether space will be required for car parking in some instances. Of course there may be space at some ports and thus car parking will be no difficulty. In that case the Immigration Service officials could be allowed to park where they wished and there would be no difficulty for the port. But at other ports and airports car parking space is at a great premium. At Heathrow, for example, one has to park a long way away and come in on a bus to catch an aeroplane. That is one demonstration of the difficulty of car parking there.
Underlying the discussions that have taken place, there has been an attempt on the part of the port authorities to achieve some kind of dispute resolution procedure in the arrangements. That need not be statutory, although it would be an advantage if it were. Amendment No. 27, which stands in the name of my noble friend Lord Cadman and to which I have added my name, addresses exactly that point. It is difficult to know exactly how far the Secretary of State and the Immigration Service intend to go in this matter but the powers they have taken in the Bill are very sweeping. Given the long discussions that have taken place and, as I understand the position, the relatively unsatisfactory outcome of those discussions, although I have not taken part in them, it is not surprising that 812 the port and airport authorities of this country are extremely worried about the prospect of this clause. I beg to move.
§ Lord Cadman
My Lords, in speaking to my amendments, Amendments Nos. 26 and 27, I make no apology for revisiting this subject. I am happy to acknowledge that, via the Bill, the Government are attempting to address the problems caused by an increasing number of people who, for various reasons, seem to regard our country as one to which they might turn in preference to their own. That said, I am grateful to the Minister for meeting us recently and I am slightly reassured by the suggestion of the emergence of some kind of code of practice or memorandum of understanding.
The problem is that in the Bill the Government have decided that the Immigration Service needs to be able to beef up its facilities to, I suppose, defend us from the aforementioned onslaught. In doing so, the ports and airports are being almost ordered to provide facilities for the Immigration Service carte blanche, or so it would appear. In reply to my concerns at the Committee stage, the noble and learned Lord, Lord Falconer, suggested that, in view of the increased prosperity that improvements to control ports' capacity or customer services would generate, they should be responsible for the cost of any increased demand made thereby on the Immigration Service. This has evoked reaction based on the fact that in the past in some cases the Immigration Service, along with others such as the police, when consulted with, have required facilities which are, or have been proved subsequently to be, inappropriate to the task in hand or in excess of what later turned out to be necessary. Some noble Lords may have noticed the not inconsiderable office building to the left of the immigration kiosks at Eurotunnel's Coquelles terminal in France. It was built by Eurotunnel, at its expense, to provide for the accommodation of the Immigration Service at Coquelles. Subsequently, it has remained empty. It is unusable, because it is the wrong side of the theoretical frontier, being in effect in Britain, and is therefore not available by virtue of its redundancy, for occupation by Eurotunnel or the French.
The proposed legislation would give the Secretary of State sweeping powers to demand almost anything. There is presently little requirement to consult, and no procedures to be followed in cases where a genuine dispute arises. My amendments are designed to introduce a measure of cost-effectiveness upon the Secretary of State's determination and, failing that, to provide for an effective system of arbitration should negotiations or consultation break down.
It seems difficult to accept that the consequences of other EC countries' neglect of their responsibilities in this matter, coupled with our correct insistence on policing our borders properly, should be loaded on to the port and airport authorities. It is a matter of public policy, and the cost should be borne by the taxpayer. It is our hope that last week's discussions in Finland will result in some more common approach to immigration 813 problems. But it is surely wrong for any government to attempt to finance a public service by using the increased prosperity of a control port, brought about by that port's increases in business efficiency, as an excuse for making possibly over-zealous requirements, especially where no effective method of dispute resolution or definition of service is in force.
§ The Countess of Mar
My Lords, I tend to support the noble Lords, Lord Cope and Lord Cadman. This is very much like the Ministry of Agriculture, Fisheries and Food and the Department of Health proposing that food producers should pay for the food standards agency. As I understand it, immigration control is for the greater public good. Therefore, the cost should rest upon the taxpayer, not upon the people who are expected to provide facilities at ports.
§ Lord Hacking
My Lords, I should like to give some support to Amendments Nos. 25, 26 and 27. As the noble Lord, Lord Cope of Berkeley, rightly said, under Clause 21 very large powers are given to the Secretary of State. It would be sensible to take a more rational view of those powers.
There is a large area of co-operation between the British Airports Authority and the immigration authorities. On the whole, that has worked very well over a number of years. But it is not a reason for any extensive right to expand immigration facilities at airports and leave the full costs with the British Airports Authority or other airport operators in this country. I hope that my noble friend will consider favourably the purport behind these amendments and that he will be able to help us, at least by Third Reading.
I support the dispute resolution proposals set out in Amendment No. 27. On many occasions I have urged upon your Lordships the virtue of arbitration. I am delighted to see that the noble Lord, Lord Cope of Berkeley, has identified arbitration as the best dispute resolution process. There should certainly be a dispute resolution process, particularly when such large powers rest with the Secretary of State.
§ Lord Greenway
My Lords, in supporting the general thrust of the amendments, I must declare an interest. Part of my work outside this House is with a company in the international port industry. I hasten to add that its work is on the marketing side and has nothing to do with immigration.
The noble Lord, Lord Cope of Berkeley, was right to express the widespread concern that exists in the ports industry in regard to this clause. The industry is anxious that its costs will rise. There is a tendency for more border controls, rather than fewer, to be imposed. I shall not venture too far down the road of cost to take up the interesting intervention from my noble friend Lady Mar; I shall have more to say on the matter in relation to a later amendment.
Experience has shown that the demands of the immigration authorities for basic facilities are generally reasonable. Unfortunately, there have been a number of cases where that is not so. There are also 814 considerable grey areas in respect of the provision of backroom facilities. I support the proposals for arbitration in Amendment No. 27. It is important that there should be some means of resolving disputes regarding the provision of facilities.
I also support Amendment No. 27A, which has just been moved. It makes a useful start—
§ Lord Greenway
My Lords, I beg the noble Lord's pardon, but I shall speak to it anyway. We have to sort out some definition of "basic facilities". Reference has been made to that. I understand that working parties are examining the matter. The noble Lord's amendment is a useful step in the right direction.
§ 7.15 p.m.
§ Lord Berkeley
My Lords, I, too, support the general thrust of the amendments. The Government and the Immigration Service have a duty to operate in an efficient and effective manner, providing good value for the taxpayer, if the taxpayer is paying, and, more importantly, best value as compared with the best private sector practice, if the private sector is paying.
Many noble Lords have given examples of practice that is less than good. Long lists of examples were given in Committee which I shall not try to repeat. It is important that some limit is placed on what the service can ask for, whether in relation to accommodation which is then used for managing an airport or port 50 miles away, or whether for totally unconnected purposes.
The services also have a duty to demonstrate that they are working efficiently. If the accommodation is no longer required or can be reduced, buildings can be handed back. The accommodation should therefore be located where it can be of use to the port, not as in the example given by the noble Lord, Cadman, regarding Eurotunnel. The noble Lord did not mention I hat the requirement from the British Immigration Service was 10 times that from the French immigration service. We should reflect on that point.
The Minister was very helpful, and agreed to meet the noble Lord, Lord Cadman, and myself last week. Today, we received a document from the Immigration Service headquarters. It is a copy of a letter sent to the Immigration and Asylum Charging Consultation Group. I was not aware who the group were. The letter argues that the Home Office does not think,it would be possible, nor indeed necessary, to introduce to formal provision on the face of the Bill … for an independent and binding arbitrator".It goes on to refer to a review process, ending with,an opportunity for an independent person to provide advice".The letter has been sent out as part of a process of consultation with the industry.
The outcome of that approach would be less certain. I can see that that is why the noble Lords, Lord Cadman and Lord Cope of Berkeley, have tabled Amendment No. 27. Consultation goes only so far: 815 "We will consult you, and then we'll do what we want". I am sure that that will not be the case, but it could be inferred.
Secondly, Amendment No. 26 it is a reasonable test of economic cost and practical relevance, to which I referred earlier. I say to my noble friend the Minister: why not accept the spirit of these amendments as a contribution to modernising government and setting an example to other ministries, as the noble Countess just said, which might learn from some of the examples set. I am pleased to support the amendments.
§ Baroness Williams of Crosby
My Lords, I rise to support the amendments. One concern many of us have is that as the number of small airports and ports extends—we are beginning to see that happening quite a lot—this provision will become a heavy burden for small airports and ports which are trying to attract business. They may suddenly find themselves having to carry substantial costs for providing immigration facilities.
I understand the Government's need for such facilities. It is quite likely that those facilities will move outwards to new ports and airports, particularly regional airports, as charter aircraft and so on use them. It would be a great shame if it were made economically difficult for that to happen because of the cost of immigration control.
I believe that the amendment in the names of the noble Lords, Lord Cadman, and Lord Cope of Berkeley, is reasonable. It would make it quite clear that the cost should be cost price and that the provision should in no way be exploited by the Government or, alternatively, by the authorities of the transport industry. There should be a compromise on this basis. The amendment is an attempt to go a long way to meet the Government's reasonable arguments for immigration facilities. It is also important to protect the interests of the transport industry when it is attempting to expand into different parts of the country, including some that could do without having to carry heavy economic burdens in order to flourish. I am thinking of some of the new airports in the North of England, Scotland and elsewhere.
§ Viscount Brentford
My Lords, I support my noble friends' amendments. Is any further encroachment involved here beyond the present situation in making, in this case, private companies, pay for the Government's expense? Alternatively, does this provision continue the present position? I suspect that it represents a continuation of the present situation, but it seems to me that there is a danger of further encroachment with more public expenditure being borne by private industry.
I should like to raise two questions. First, Clause 21(1) states "reasonably necessary". I assume that that means what may appear to be reasonably necessary to the Secretary of State and that, for example, the manager of the control port would have no right to say that something was totally unreasonable. Perhaps the Minister could answer that.
816 Secondly, my noble friend Lord Cope said that the clause could give the Secretary of State the power to site a whole immigration service in a port, if I understood it correctly. If that were the case, I suggest that that could be obviated simply by adding at the end of subsection (1) the words "at such port". The subsection would therefore read,the operation of immigration control at such port".It is perhaps far-fetched to see the whole of Lunar House being moved into a small northern airport, with the costs being borne by that control port, but that worry could be removed by such a small amendment, if the Minister thought fit.
§ Lord Bassam of Brighton
My Lords, I am grateful to all noble Lords for the comments made in a longer series of points in debate than I thought was merited. However, important points have been raised and I shall try to deal with as many as I can in turn.
In one way or another, Amendments Nos. 25, 26 and 27 are aimed at placing restrictions on the Secretary of State's ability to determine the level of facilities required to operate the immigration control and which are to be provided free of charge. I shall try to explain why they are unnecessary.
The House debated Amendment No. 26 in Committee at the instigation of the noble Lord, Lord Cadman. I am disappointed that he was not sufficiently reassured by the statements made at that time by my noble and learned friend Lord Falconer. I hope that I can dispel some of his anxieties. I had hoped I had dispelled them when we met last week, but we shall try to deal with the points raised.
The facilities to be provided are described in Clause 21 as being those which are,reasonably necessary for, or in connection with, the operation of immigration control".The amendment refers to their,practical relevance to the control of immigration".I should have thought that the test of reasonable necessity in the clause, as it stands, is stricter than that part of the amendment.
I should like to deal with the headquarters point raised by the noble Viscount, Lord Brentford, and the noble Lord, Lord Cope. Facilities have to be "reasonably necessary". That relates to immigration control at the port, which therefore could not be used to house any part of headquarters. We do not intend to pick up Lunar House and transport it to some faraway airport as a piece of sharp practice to try to re-allocate costs from headquarters! That is not the intention of the general drift of our legislation.
The amendment also requires regard to be had to the economic cost of the facilities to be provided. The clause provides for the facilities to be provided free of charge to be specified in directions. Subsection (2) requires the Secretary of State to consult in advance such persons likely to be affected by the directions. We are working very closely with the industry on the range of facilities it is reasonable to expect it to provide. When the statutory consultation takes place, if not 817 before, I am sure that the port operators will undertake their own economic appraisal of the cost to them of providing the facilities being sought. If port operators consider the requirements too onerous, they will doubtless make representations to the Secretary of State. It is open to them to suggest that the costs falling on them are too great and onerous.
I can assure the House that the Secretary of State will give careful consideration to all and any representations made to him. It is perhaps important to recognise at this point that the facilities necessary for the operation of immigration control at a particular port will be dependent on the nature and scale of that control. The nature and scale of the operation needed and the size of the port will determine and drive the nature and scale of the immigration control. In turn, the nature and scale of the immigration control at a port will necessarily reflect the size. It follows, therefore, that a direction to provide facilities which ignored the size and nature of that port's operation could be challenged in the courts. So there is always that final test.
Amendment No. 27, in the name of the noble Lord, Lord Cadman, suggests an arbitration procedure as a possible way of providing assurance to port authorities that their concerns will be recognised. Subsection (1) of the clause makes it clear that the responsibility for deciding what facilities are reasonably necessary for the operation of the immigration control lies with, and only with, the Secretary of State. The Secretary of State will be able to take advice from whomever he chooses. We shall look at whether it would be appropriate to seek the advice of an independent person where there is some dispute.
However, we could not accept a binding arbitration. We could not accept being bound by an arbitrator as to the level of immigration control that was necessary at any port and the facilities needed to support it. That is a question which has a heavy element of policy in it. I am afraid that I must ask the House to reject the amendment accordingly.
However, as I indicated, the Secretary of State will carefully consider any representations put to him before making directions. Informal discussions have been going on with the industry for some time now and we are currently giving consideration to how any disputes between port authorities and the Home Office might be settled. That will include looking carefully at procedures to take into account any independent advice.
I am grateful to the noble Lord, Lord Berkeley, for his comments earlier. He carefully drew attention to correspondence which was despatched towards the end of last week. He quoted from it that we would seek,an opportunity for an independent person to provide advice on issues of dispute".That is to be part of a wider internal review, and we would want to ensure and be satisfied that an independent view was given. In doing that, it is only right and proper that we provide those who are being consulted with every opportunity to make their views known to us.
818 I turn to the amendment in the name of the noble Lord, Lord Cope of Berkeley, Amendment No. 25. It would mean that instead of port authorities providing facilities free of charge, they should be provided at cost price. I readily concede that in respect of some facilities for which the Home Office currently pays, payment at cost would be preferable to the charges imposed by port authorities. But it is also right to acknowledge that some port authorities already provide facilities free of charge to the Immigration Service, and in that case the amendment would mean an increase in public expenditure.
Perhaps I may reiterate why the Government believe that a certain level of facilities should be provided free of charge. In order to accommodate the growth in international travel and increases in passenger numbers, port operators may seek to expand existing facilities and establish new ports. That will require investment by the operators but, being commercial organisations, there will be an expectation of profits flowing from the expansion. Contrary to the suggestion of the noble Baroness, Lady Williams, although we do not want to impose a burden on business, we believe that there is a reasonable price to be paid by businesses in this area. We believe that our approach is entirely reasonable.
The Government welcome and are committed to facilitating growth, but the increase in passenger traffic will place additional burdens on the Immigration Service in terms of, among other things, increased staffing, rental and other associated costs. Inevitably, the taxpayer will be required to fund most of those additional costs. In those circumstances, I suggest to your Lordships that it is not unreasonable to expect port operators, who benefit commercially from their operations, to pay a small share of the increasing immigration costs. I hope that noble Lords will reject the amendment.
§ 7.30 p.m.
§ Lord Cope of Berkeley
My Lords, the Minister very kindly ruled out the possibility of moving Lunar House to a port, which I believe is a small advance on the way in which the clause is presently phrased. However, the noble Lord spoke constantly of the limitations that arose from the fact that the Secretary of State could do only what was reasonable for the operation of immigration control at that port. But at the moment the words "at that port" do not appear in the Bill; it refers only to,the operation of immigration control",and that is not limited to facilities at the port. As my noble friend Lord Brentford suggested, that opens up the possibility of an amendment at Third Reading to bring the Bill into line with the expression used by the Minister.
The Minister also referred to the question of a dispute resolution procedure, arbitration or something of that kind. He made the position of the Government very clear in rejecting that suggestion However, the independent person referred to is there to give advice. I suppose that in some circumstances 819 that may be helpful, but it is not really what my noble friend's amendment seeks. However, as far as concerns Amendment No. 25, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Cadman had given notice of his intention to move Amendment No. 26:
Page 15, line 21, at end insert—
("()In formulating such facilities, the Secretary of State shall have regard to their economic cost and practical relevance to the control of immigration.").
§ The noble Lord said: My Lords, I was slightly reassured by the Minister at our recent meeting. The term "reasonably necessary" when applied to the provision of facilities is open to considerable interpretation. Consequently, it is important that some kind of dispute procedure is made available. Any independent view on the matter is to be welcomed and will provide further reassurance. To reject the offer of arbitration appears to be a little harsh. I do not propose to pursue the matter any further at this stage.
§ [Amendment No. 26 not moved.]
§ [Amendment No. 27 not moved.]