What are the immigration dimensions to the new Employment Rights Bill?

The new Employment Rights Bill has been published. It is a substantial document: it weighs in at 158 pages. There are several aspects of the Bill relevant to immigration issues.

Before I go any further, the context to this legislation includes gross and widespread exploitation of migrant workers in sectors such as agriculture and adult social care which was facilitated by the policies and practices of the previous government.

Two existing labour market enforcement bodies are being abolished, with their functions being replaced. Clause 109 of the Employment Rights Bill abolishes the Gangmasters and Labour Abuse Authority and the Director of Labour Market Enforcement.

The first of these bodies was initially created in the aftermath of the Morecambe Bay disaster of 2004. It was renamed by the Immigration Act 2016. At the same time a new body was created, the Director of Labour Market Enforcement.

That a Director of Labour Market Enforcement could be instituted by the Immigration Act 2016 tells you everything about the government’s priorities at the time. It was all about being seen to crack down on illegal working, not about making a genuine effort to regulate the labour market by protecting workers’ rights.

With no ill-will at all intended to the previous director, Margaret Beels, it is hard to say that the institution had a significant real world impact. That is no doubt because of its badly designed legal powers, lack of resources and its focus on immigration. She herself seems to have planned to retire in November 2023 and was pressing to be replaced with a single enforcement body (see 2023-24 strategy) so will probably be pleased about the changes.

As she said back then:

Since its creation under the 2016 Immigration Act, I feel the government’s commitment to the role to the Director of Labour Market Enforcement could have been stronger. Repeated delays in clearing and publishing Strategies that I and my predecessors have delivered on time, have delayed useful progress addressing harm to vulnerable workers and weaken support for compliant employers, raising questions about the value added of my function. I am addressing with Ministers and officials at DBT and Home Office, and with the enforcement bodies how improvements might be delivered.

The bodies are not in law replaced with a new institution. Instead, the Secretary of State (for Business and Trade) is taking over. Clause 72 begins:

The Secretary of State has the function of enforcing the labour market legislation listed in Part 1 of Schedule 4

That legislation includes the Gangmasters (Licensing) Act 2004 and the Modern Slavery Act 2015. But not any immigration legislation.

Enforcement officers may be appointed (clause 72). The Secretary of State may delegate functions to a public authority (clause 74). It is not clear on the face of the Bill what the government’s intentions are but the accompanying notes state that a Fair Work Agency will be created.

The Secretary of State will be advised by a new advisory board established by clause 75, to include equal numbers of trade unionists, employers and independent experts.

As well as abolishing the old bodies, the accompanying sections of the Immigration Act 2016 on labour market enforcement undertakings and orders and the system of challenges to these measures are also abolished by Schedule 6 of the new Bill:

In the Immigration Act 2016, omit the following—

(a) sections 2 to 9;

(b) section 10;

(c) section 11(2);

(d) section 12(2);

(e) section 13;

(f) sections 14 to 30;

(g) sections 32 and 33;

(h) in Schedule 2, paragraphs 1 to 7, 9, 16 and 17;

(i) in Schedule 3, paragraphs 1 to 9, 11, 12, 14 to 16, 17(b), 18 to 22, 23(4)(b), 24(2) and (3) and 25 to 36

These are replaced by a system of… labour market enforcement undertakings and orders. See clauses 84 to 112 of the new Bill. I haven’t been through the new provisions in detail to compare them minutely but they look broadly similar to and indeed based on the old ones.

Just briefly, the idea is that a labour market offence is detected, the Secretary of State (or delegated public authority) may give notice to an employer and request a voluntary undertaking to do certain things. Such as stop committing the offence and also take measures to prevent or reduce the risk of recurrence. The maximum period for an undertaking is two years.

The Secretary of State (or delegated public authority) may apply to a court for an order where the employer refuses to give an undertaking or fails to comply with one. Courts are also empowered to issue orders where a person is convicted of a labour market offence.

The illegal working offence introduced by section 34 of the 2016 Act is retained, as are the system of illegal working closure notices introduced by section 38 and Schedule 6 of the 2016 Act. As far as I know, these have barely if ever been used.

Adult social care is not specifically an immigration issue. But a lot of skilled worker visas have been issued to social care workers and their family members over the last couple of years. I think something like nine out of ten social care workers are still British. But there is clearly a major problem in the industry with low pay. Immigration has been used as a way of trying to plug the labour market gap.

There are other ways to address the issue, though, including paying more and improving working conditions. That is difficult to do because local authorities pay most of the costs of adult social care but do not pay enough, meaning that private care home providers cannot pay their staff better. And local authorities have no money left.

So, the new Adult Social Care Negotiating Body is not directly an immigration measure. But it is relevant to immigration, in that it might, if it works, reduce the need for immigration.

Clauses 29 to 44 of the Bill establish the new body, which is tasked with addressing (from clause 30):

(a) the remuneration of social care workers, or of social care workers of a specified description;

(b) terms and conditions of employment of social care workers, or of social care workers of a specified description;

(c) any other specified matters relating to employment as a social care worker, or as a social care worker of a specified description.

This last point allows the Secretary of State (for Business and Trade) to add matters to the remit of the new body.

The body may submit agreements to the Secretary of State, who may send them back for reconsideration or may lay regulations giving effect to the agreement. And even if no agreement is reached the Secretary of State can introduce regulations anyway.

I’m no employment lawyer. But it looks like the agreements involve legally binding uniform basic contract terms. See clause 36:

(2) If the agreement relates to a social care worker’s remuneration, the worker’s remuneration is to be determined and paid in accordance with the agreement.

(3) A provision of the agreement that relates to any other term or condition of a social care worker’s employment has effect as a term of the worker’s contract.

(4) A term of that contract has no effect to the extent that it makes provision that is prohibited by, or is otherwise inconsistent with, the agreement.

“Social care worker” has a specific statutory meaning here, established by clause 31.

Will it work? I have no idea. But it seems to have pretty extensive powers. It’s all a bit corporatist back-to-the-1970s.

Obviously, there is a lot more to the Bill than just these elements. But the labour market enforcement undertakings and orders are potentially very powerful, if actually used in real life. What will matter is the priority and resources devoted to them.

What this looks like on a legislative level is a move from labour market enforcement led by an obsession with illegal working to a more holistic approach based on workers’ rights. The previous measures were almost entirely hypothetical, existing as paper tigers only. The new government seems to be prioritising these measures so hopefully we’ll actually see some real enforcement this time.

But if the new government were serious about addressing exploitation of migrant workers — and this Bill is not primarily about that — it would need to take a long hard look at the immigration policy it has inherited from the previous government. The Home Office has since Brexit willingly and deliberately issued hundreds of thousands of tied visas which enable exploitative employers to behave very badly indeed. At the same time it has so far been doing almost nothing to address or mitigate the exploitation that predictably ensued.