My Lords, I support other noble Lords who have objected to Clause 8 and the introduction of the offence of illegal working.
The noble Lord, Lord Green, said that it sends out a powerful message if there is such a criminal offence, but my fear is that it would send out a message that empty window dressing statute is redundant and that
it is not effective law if we end up with no prosecutions and no confiscations. As other noble Lords have mentioned, the guidance from the CPS on proceeds of crime suggests that there will be very few cases when it would be in the public interest to pursue confiscation proceedings. The question has rightly been asked by my noble friend Lady Hamwee. On the question of whether there have been any prosecutions of Romanian, Bulgarian and Croatian workers for working without authorisation, I confess that it was news to me that there were already such criminal offences. I thank ILPA for that fact. We do not know whether there have been prosecutions of employees or whether employers were prosecuted in the same cases. It would help to know whether there has been a displacement of enforcement activity away from employers to employees, or whether we have offences on the statute book that have simply proved inoperative.
That is what would bring the law into disrepute. I have a feeling that if this was coming out of Brussels, it would rightly be criticised as a useless piece of legislation—not least by the present Government. It might be quite right to do so. There can already be prosecutions of people for breaching immigration law in arriving in the country in the first place. I do not know how many prosecutions there are—perhaps the Minister could tell us. The alleged purpose of this offence is to fill the gap that is said to exist whereby the Proceeds of Crime Act cannot be deployed. It seems very unlikely that that would be used because of the disproportionate nature of taking such action. We will end up with something on the statute book that frankly does not add up to a row of beans—all for the sake of window dressing and sending signals to certain parts of the press and the electorate, presumably.
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I find extremely powerful—much more powerful than anything I could say—the evidence given to the Public Bill Committee in the other place by Tony Smith, who spent 40 years in the Immigration Service, ending up as director-general of the UK Border Force. He said:
“The main lesson we learned”,
from an experiment about doing this kind of thing,
“was that the criminal justice system is not the most effective way to manage immigration offenders. It tied up the police and the courts unnecessarily and failed to fulfil the required intention of the Immigration Law”,
which is to remove people who breach such law. He continued:
“It was deemed more effective and efficient to serve a notice of intention to deport … than to prosecute”,
under immigration offences. As came out at Second Reading, most of us who objected to Clause 8 said that the focus of remedies for breach of immigration law is to remove those people who are in breach. If you prosecute it is enormously expensive and time-consuming.
Mr Smith went on to say about proceeds of crime that,
“illegal workers invariably have very limited means at their disposal. They are usually paid at or below the minimum wage; and any funds they do accrue are quickly remitted overseas. This is not a
sensible group to target under the Proceeds of Crime Act—nor will it act as a deterrent. In the same way that deploying scarce resources on prosecutions will limit the capacity of immigration enforcement to achieve more removals, deploying scarce resources on POCA work to seize assets that don’t exist will be wasteful and unproductive”.
I cannot do better than that. I hope that the Minister, in his response, will give us some indication that the Government will accept that Clause 8 is a waste of space.