Before I start, may I say that I certainly do not wish to comment adversely if the Minister got a little confused as to where he was in his notes, if only because I am pretty confident that that is going to happen to me on probably more than one occasion through the passage of the Bill. It is nice to know that I am already in good company.
As we pointed out at Second Reading, the Explanatory Notes to the Bill say:
“The purpose of the Bill is to tackle illegal immigration by making it harder to live and work illegally in the UK … The intention behind the Bill is that without access to work, illegal migrants will depart voluntarily, but where they do not, the Bill contains other measures to support enforced removals”.
Those two sentences are not tucked away at the back of the Explanatory Notes, almost as an afterthought, but are in the second of two short paragraphs at the very beginning of the Notes that constitute the first section, “Overview of the Bill”.
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Since the clauses dealing with the new post of Director of Labour Market Enforcement, which we are discussing, are the first seven clauses of the Bill, it is not unreasonable to ask the Government what the role of the Director of Labour Market Enforcement will be in delivering the purpose of the Bill in making it harder to live and work illegally in the UK, in increasing the number of migrants who will depart voluntarily and, if they do not, in supporting enforced removals.
In his welcome and helpful letter of 8 January 2016, responding to points raised at Second Reading, the Minister said, on behalf of the Government, that the new director’s role did not cover immigration control, that nowhere in the Bill was he or she given the purpose or power to do that, and that, if they did, they would be acting outside their statutory powers. That clarifies the issue in relation to immigration control, although it begs the question of what activities or roles the Government do or do not regard as being covered by the words “immigration control” and therefore outside the statutory powers of the Director of Labour Market Enforcement.
I appreciate that the Director of Labour Market Enforcement will not have staff at points of entry to the UK making decisions on who can and cannot be allowed to enter, and will not determine asylum claims or applications for extended leave. But that does not mean that the director and his organisation can play
no part in what many might regard as part of the immigration control process. As has already been said, the new post is, after all, being introduced in an Immigration Bill and a Home Office Bill. The director must surely have some part to play in the immigration enforcement system because, if he or she does not, how will they contribute to the declared purpose of the Bill as set out in the Explanatory Notes, to which I have already referred?
The purpose of our Amendment 4 is to seek to ensure that the functions of the Director of Labour Market Enforcement are exercised primarily for the purpose of protecting those vulnerable to labour market exploitation, and to make that clear on the face of the Bill. The Government’s argument against doing this appears to be that Clause 3 defines the director’s role by reference to the legislation and enforcement functions that will be within the remit of the post, including the three enforcement bodies for which the director will set the strategy: namely, the Employment Agency Standards Inspectorate, HMRC’s national minimum wage team and the Gangmasters Licensing Authority.
That, of course, is correct but it is also a problem since the Bill, in particular Clause 3, sets out a range of functions but does not set out what the primary function should be, which, for a Director of Labour Market Enforcement, one would have thought would be the protection of those vulnerable to labour market exploitation through the enforcement of labour market legislation, with the primary role of this post being a protective one.
In the other place, the government Minister said that the purpose of the Director of Labour Market Enforcement was to tackle labour market exploitation across the field. But he was not prepared, for reasons that are not clear, to say that that was the primary purpose of the director, and to put that in the Bill, in line with our amendment. The need to make clear in the Bill that the primary purpose of the director is to secure the enforcement of labour market legislation and tackle labour market exploitation was further highlighted by the observation of the government Minister in the other place that while the role of the new director,
“was not intended to stray into the separate issues of immigration enforcement”,
if he or she came across people who were here illegally,
“the director would be duty-bound to report that and to pass on intelligence”.—[Official Report, Commons, Immigration Bill Committee, 27/10/15; col. 166.]
It is quite likely, one would have thought, that the director could on this basis prove to be a not insignificant player in finding people who are here illegally. It is precisely because of this, and the fact that the post is being established on a statutory footing in an Immigration Bill whose declared purpose is to tackle illegal immigration by making it harder to live and work illegally in the UK, that it is so necessary to spell out in the Bill what the primary role of the director is if we are to avoid any misunderstandings or wrong assumptions from those who might come into contact with the director’s organisation that the post is also about immigration checks rather than just about labour market enforcement.
There is clear evidence from the Netherlands and the USA of the dangers if there is any confusion over, or merging of, the roles of labour inspection and immigration enforcement. Research in the Netherlands shows that dual labour inspection priorities to identify undocumented workers on the one hand and victims of trafficking on the other have negative impacts on the uncovering of trafficking cases, since victims of trafficking are too scared to come forward and the labour inspectors also fail to identify them.
The Anti-Slavery Commissioner has also made the point that many people have fled from countries where confidence in the rule of law and the authorities is low. If they come here and are exploited, they are going to be fearful of going to the authorities because of previous experience. If we are not careful, this could be an unintended consequence of the Bill as it stands, in relation to the Director of Labour Market Enforcement.
Three other amendments in this group relate to the strategy that the Director of Labour Market Enforcement will set out. Amendment 7 would ensure that the labour market enforcement strategy would include an assessment of the threats and obstacles to effective labour market enforcement and the remedies secured by victims of labour rights infringements and labour market offences. The Bill requires the director to make an assessment of non-compliance in the labour market, but there is no requirement to assess the threats or obstacles to effective enforcement which could, of course, include powers and resources, human and financial, which would impact on non-compliance, or a requirement to examine remedies secured by victims of non-compliance in the labour market which, likewise, could also impact on levels of non-compliance. A strategy is not just about making an assessment of non-compliance and its extent. It is also about looking at how enforcement could be done better and at what actions need to be taken, or changes made, to achieve that objective. The Minister will, no doubt, also wish to say something, either now or in a later group of amendments if he finds that more appropriate, about the resources that will be made available to the new director.
The Modern Slavery Act is victim-focused and victims of labour exploitation ought to be a key focus of this Bill. This is why the amendment provides for the enforcement strategy to cover the issue of remedies. Information on compensation for infringement of labour market standards is currently limited. For example, HMRC does not keep data in a format that provides statistics on the amount of arrears paid—or not paid—to working people. Data on civil claims and damages awarded are, likewise, not available. During the financial years 2010-11 to 2012-13, there were no prosecutions by the Gangmasters Licensing Authority resulting in compensation orders for victims of human trafficking, and data on compensation secured through the criminal injuries compensation scheme for such victims are not recorded. With the present dearth of information, how can anyone know whether progress is being made on meeting the needs of victims of exploitation in the labour market if data on remedies are not being collected, as would be required in future under the terms of Amendment 7?
Amendment 35 seeks to ensure that labour market offences committed against all workers are included within the scope of the enforcement work of the Director of Labour Market Enforcement, irrespective of immigration status. That should include all those who may be in the labour market, including undocumented victims of trafficking—hence the wording of the amendment. Finally, Amendment 36 refers to the annual report from the Director of Labour Market Enforcement and is intended to ensure that it links with his or her assessment about non-compliance in the labour market the remedies secured by victims and the threats and obstacles to effective enforcement. This is not provided for in the Bill, as drafted, and nor is linking the director’s strategy with his or her assessment of non-compliance in the labour market. The amendment aims to ensure that the strategy covers everything that it should and that the annual report is tied into the same process.
These amendments were also considered in Committee in the other place. The government Minister maintained that Amendment 7 was unnecessary because the Government expected that the director would feed information of the kind called for in the amendment into the planning and reporting cycle, and that this would be covered by the director’s labour market enforcement strategy. He then went to say that the director’s strategy,
“is about setting out information and issues concerning the work of different bodies and agencies, including some themes of non-compliance”.—[Official Report, Commons, Immigration Bill Committee, 27/10/15; col. 180.]
That seemed a rather less specific commitment that the director would be assessing the threats and obstacles to effective labour market enforcement, including powers and resources. Why not put this clearly in the Bill?
There is an issue with resources, particularly since the Government intend that while the relevant Secretaries of State will take the new director’s proposals on resources into account, the Government will set the overall level of resources devoted to labour market enforcement, and that the director should then recommend how resources should be allocated within the total envelope of funding available to the three enforcement bodies coming under the director, namely the Gangmasters Licensing Authority, the employment standards inspectorate and HMRC’s national minimum wage enforcement teams. A number of independent bodies, including the Migration Advisory Committee, have expressed concern that the resources at the moment for the existing agencies are such that the likelihood of any inspection or action being taken is very low and that, as a result, there is not much of a deterrent to most of those who may be involved in abuse in the labour market. One example is that Gangmasters Licensing Authority investigations dropped from 134 in 2011 to 68 in 2014.
Despite a recent increase in the funding for HMRC to enforce the national minimum wage, it still does not match the scale of the task. For example, the TUC estimates underpayment of the national minimum wage to be in the region of at least 250,000 workers. The number of front-line enforcement staff at the Gangmasters Licensing Authority has been cut by 25% since 2010-11 and the Employment Agency Standards
Inspectorate now has nine inspectors, compared to 20 at its peak. Millions more workers will come within the remit of the HMRC team when the national living wage is introduced.
The Government are also proposing to create a new authority out of the GLA, which will be responsible for prosecuting a new offence of aggravated labour law breach across the whole economy. The Government will need to commit to increasing significantly the funding available for enforcement work if it is to be effective and act as a deterrent. Without providing the necessary resources, any strategy from the new Director of Labour Market Enforcement will not achieve the objectives set out in the Bill. Accordingly, the issue of any threats or obstacles to effective labour market enforcement is one which the director should be required to address in his labour market enforcement strategy.
On Amendment 35, the Minister in the Commons was less than clear in Committee. He said that the labour enforcement agencies would tackle non-compliance by employment agencies, businesses and gangmasters regardless of whether the affected workers had the right to be or to work in the United Kingdom, and that the Government were committed to tackling serious crimes against individuals whatever their status. However, the Minister then said that the amendment was not attractive because it,
“appears to take us in a direction that would apply new rights to those who are here illegally, whereas there are other mechanisms through the linkages, through the rights that the Gangmasters Licensing Authority will have, and through the consultation. It is about the extension of those aspects through other means”.
The Minister in the other place also said:
“The director’s role that we have proposed supports our wider strategy on modern slavery, enhancing the response to labour exploitation”.—[Official Report, Commons, Immigration Bill Committee, 27/10/15; col. 184.]
It would be helpful if the Minister, the noble Lord, Lord Bates, could interpret the seemingly contradictory and complex comments by the Minister in the other place by spelling out what protections, if any, are provided under the Bill to workers irrespective of immigration status, and what role the Director of Labour Market Enforcement will play in respect of labour exploitation and abuse in the workplace of those who do not have the required immigration status to be in this country. I beg to move Amendment 4.