At Second Reading we expressed support for measures to toughen the penalties against employers who exploit employees. However, we expressed our concern about the provisions in the Bill in respect of those who work without leave to remain or beyond the restrictions of their visa, and which classify wages earnt in such employment as proceeds of crime. For employees in this situation the Bill creates a new criminal offence that is strict and without any defence, since it is committed if the individual employed does not have the right immigration status, and could result in a sentence of up to a year in prison.
No defence is set out in Clause 8. Our position is that there should not be such an offence for employees, but we also have an amendment in this group that would provide a defence of “reasonable excuse”. That amendment will provide the Government with an opportunity to clarify whether there is any defence to this new offence and, if they consider that there could be circumstances in which the offence would not be committed by an employee who did not have the right immigration status, to say why they have not included that, or provided for that situation, in the Bill.
What would be the position, for example, of people who were working in the belief that they had the right immigration status to do so—perhaps because they were sponsored by the employer—and then it emerged that they had committed this new offence because, without their knowing it, their employer had not completed all the necessary arrangements for sponsorship? Is the employee guilty of committing the new criminal offence, thus becoming a criminal? Unless there was a defence under the Modern Slavery Act—that certainly would not be the case in the situation I have outlined—Clause 8 would appear to say yes. Is that fair, just and proportionate?
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The Government’s line to date appears to be that the Director of Public Prosecutions can give guidance on whether a prosecution is in the public interest and that a court also has powers to stop an inappropriate prosecution for abuse of process. This, of course, could apply only if the process for taking action against an employee had already commenced. However, in the potential situation I have just outlined it cannot be right to leave the decision whether to proceed to the
discretion of the Director of Public Prosecutions, because surely such discretion is meant to be applied to the known offence and known defences to that offence. Under the Bill there is no defence to the offence of illegal working, which is triggered by not having the right immigration status. Surely, if a proper case can be made as a defence by an employee against the new offence of illegal working, it ought to be in the Bill, put there by Parliament, rather than left to the discretion of the Director of Public Prosecutions. This discretion should surely be in respect of how a laid-down defence should operate in individual cases in relation to whether a prosecution would be in the public interest, rather than, in effect, leaving it to the DPP to introduce a back-door defence that is not in the Bill and would not be an appropriate use of the DPP’s guidelines.
Clause 8 also appears to create a disparity between employers and employees on the issue of illegal working. It would appear that under Clause 9, employers are guilty of the offence of employing an illegal worker only if they do so “knowing”,
“or having reasonable cause to believe”,
that the employee does not have the required immigration status. That presumably means there is a test of reasonableness before they can become criminalised. There is no such test of reasonableness for employees in Clause 8. So, in a situation where an employer reasonably believed they had completed the necessary processes to sponsor an employee, but it subsequently emerged that, without their realising it, they had not, the employer has a potential defence; but the employee, who likewise had every reason to believe they were properly sponsored by their employer, and then found out that they were not, would have no defence. Perhaps the Minister can confirm that that is an entirely credible scenario under the Bill as it stands, and explain why an employee does not have the same kind of defence available to them as an employer in respect of the offence of illegal working.
We have also tabled Amendment 66, which would introduce a test of recklessness rather than negligence for the offence of employing an illegal worker, to reduce the possibility of hidden discrimination by employers wanting to avoid the risk of falling foul of this new criminal offence when deciding who to employ.
We think it would be better if Clause 8 was not in this Bill at all, because it will increase the likelihood and extent of exploitation and potentially put at risk some of the good work being achieved in this regard by the recent Modern Slavery Act. Migrants and vulnerable employees are very vulnerable under current conditions and often feel that they cannot come forward to explain to anyone what is happening to them, for fear, as the Migration Advisory Committee has said, of being sacked or deported. If the offence of illegal working is for the first time to be applied to employees, there is a distinct likelihood that the most exploited and vulnerable will become more exploited and vulnerable as they feel pushed further and further away from any legal protection. One can virtually guarantee that an unscrupulous employer would not hesitate to use the threat of being prosecuted for illegal working, receiving a criminal record and going to prison for 12 months, as a means of ensuring that a vulnerable and exploited employee did not speak out. The more vulnerable
workers are, the stronger the hand of the gangmasters or unscrupulous employers who seek to employ them, and the less likely vulnerable workers are to come forward to report their abusers.
Even among those who have a right to work here, awareness of their rights does not always appear high. According to the National Crime Agency, in cases that it has taken up, 78% of those who have been exploited for their labour in the UK have the right to work here as EEA nationals. Among people whose understanding of their rights is limited, one can be sure that, with this new criminal offence of illegal working, the threat of 12 months’ imprisonment and criminalisation will also be exercised against those who have a right to be here and working, as well as those who do not, with the no doubt unintended consequence of making it less likely that people will come forward to report their abusers.
There are three drivers of exploitation that those who campaign on this issue and work in this field have identified. One is the feeling among migrant workers that they deserve less or have fewer rights than UK citizens; another is the lack of checks on labour standards in the workplace, including everything from health and safety to minimum wage enforcement; and the final one is a fear of officials, especially of immigration officials or those who might have links to immigration officials. Clause 8, with its new offence for employees of illegal working, will make the first and last of those drivers of exploitation even more powerful.
On the second driver—the lack of enforcement against non-compliance with labour standards—it is worth noting that one of the organisations that campaigns and works to reduce exploitation told the Immigration Bill Committee in the other place that what would prevent people who should not be here, or not still be here, from working here would be enforcement of labour standards across the board, as the demand for workers who should not be here is due not to employers preferring such workers over those who have a right to be here, but to the fact that they cannot as easily pay workers who have a right to be here less than the minimum wage as they can workers who do not have the right to be in and work in this country.
If the Government want to address the extent of illegal working, they should concentrate on enforcement of labour standards rather than introduce a clause that creates a new offence of illegal working for employees, which will make it less, not more, likely that cases of labour exploitation and abuses of labour standards come to light. There is no significant evidence of which I am aware that this offence for employees is needed, as there are existing offences under which such employees can be charged if they are in this country when they should not be here or still be here. No one has been going round saying that an illegal working offence for employees is needed to solve that problem.
The only argument that the Government have produced for this new offence and its potentially significant and damaging unintended consequences relates to the recovery of earnings under the Proceeds of Crime Act 2002 from those who have been working in this country when they no longer have an immigration status that entitles them to do so, such as overstayers, and an apparent government concern expressed by the Minister
in the other place that in this situation the courts do not always regard earnings derived from working illegally as the proceeds of crime when considering cash seizure or asset confiscation cases. If that is the problem, no doubt the Minister will take the opportunity in his response to place on record the size and nature of it, and the amounts of money involved and the likelihood of it being recovered, since it would appear that this new offence is designed to tackle a much smaller number of individuals and their proceeds than those working illegally.
The Crown Prosecution Service guidance on proceeds of crime identifies a need to prioritise the recovery of assets from serious organised crime and serious economic crime. Pursuing workers who should not be here or still be here and who are working for little money and living a subsistence existence, consequently having limited realisable assets, will presumably not be a priority in line with the guidance, since it will not be cost effective or in the public interest to pursue confiscation proceedings against such people.
It would be helpful if the Minister could say to what extent the Government have sought to find other ways of addressing the problem that concerns them in respect of the Proceeds of Crime Act without leaving employees who are already being exploited facing threats, accurate or inaccurate, from those exploiting them of potentially being prosecuted, criminalised and sent to prison for 12 months with the intention of further discouraging them from daring to report their abusers. One would have thought that encouraging employees to report abuse should be the objective.
Clause 8 is potentially very damaging in its no doubt likely unintended consequences. The Government will no doubt say that the approach to dealing with those who have entered the country illegally and committed an offence will be to deport rather than prosecute. If that is the point the Government are going to make, then Clause 8, with the offence of illegal working by employees because of their immigration status, adds absolutely nothing. Instead, it will make it less likely than ever that such people will come forward and whistleblow about what is being done to them, and as a result it will frustrate the desire we all have to tackle illegal working and labour exploitation.
I hope the Minister will indicate that the Government will think again on the introduction of this new offence for employees, which is more likely to reduce the extent to which those being exploited or abused in the labour market will come forward and whistleblow on their abusers than to reduce the incidence of illegal working. I beg to move.